Tag: The Practical Employer

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Vaccines — can an employer require them; should an employer require them?

flu season coronavirus, fever

There are currently more than two dozen COVID-19 vaccines in development worldwide as pharmaceutical companies race to perfect a viable vaccination to halt the ongoing pandemic.

When (and it’s a big when) one or more vaccines becomes available, can an employer require it of their employees as a condition of employment?

When the EEOC initially published its guidelines on pandemic preparedness 11 years ago (in response to the H1N1, aka Swine Flu pandemic) it answered this question with a “yes.”
In response to the COVID-19 pandemic, the EEOC reissued its guidance. 

May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII.

ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Here’s the thing. While the EEOC says that employer can’t require “all” of its employee to take a vaccine, an employer actually can require a vaccination subject to reasonable accommodation exceptions for ADA disabilities and sincerely held religious beliefs.

But just because an employer can mandate vaccines for most employees doesn’t necessarily mean that it should. Instead, I fall back to the EEOC’s closing statement about “encouraging employees” to get vaccines.

Mandating what employee does with his or her body feels too invasive and Big-Brothery to me. I’d prefer that employers arm employees with the knowledge they need to make an informed choice about the benefits of inoculations, and then strongly encourage employees to make the scientifically and medically responsible choice.

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Court finds no cause of action when employer watches employee give a urine sample for a drug test

gavel, legal, OSHA

Is the privacy of an at-will private-sector employee invaded when a representative of the employer watches him or her give a urine sample for a workplace drug test?

On Aug. 27, in Lunsford v. Sterilite of Ohio, the Ohio Supreme Court answered this question in the negative.

The facts of the case are not complicated. Sterilite required “direct observation” of its employees providing a urine sample pursuant to its reasonable suspicion and random workplace drug-testing policy. It sends an individual of the same sex to accompany the to-be-tested employee into a restroom to visually observe the employee producing the sample. Its goal is to prevent the employee from cheating the drug test.

Two years ago, the appellate court held that employees “have a reasonable expectation of privacy with regard to exposure of their genitals,” and that “the compelled exposure of their genitals and compelled urination before a stranger intruded upon that privacy.”

The Ohio Supreme Court, in a narrow 4-3 decision, disagreed.

[W]e recognize that workplace drug-testing policies implicate employees’ privacy interests.… [T]he facts in the complaint demonstrate appellees did consent to the use of the direct-observation method. …

[W]hen appellees individually reported for the collection of their urine samples, they were advised by the same-sex monitor that the direct observation method would be used. At that time appellees had a second opportunity—consent or refuse—and appellees consented by their action. …

Sterlite had the right to condition employment on consent to drug testing under the direct-observation method, appellees had the right to refuse to submit to the direct-observation method, and because appellees were at-will employees, Sterilite had the right to terminate their employment for their failure to submit. Because Sterilite had the legal right to terminate appellees’ employment at any time, appellees’ argument that their consent was involuntary because of their fear of termination necessarily fails. …

When an at-will employee consents, without objection, to the collection of the employee’s urine sample under the direct-observation method, the at-will employee has no cause of action for common-law invasion of privacy.

In other words, employees voluntarily consented to the “direct observation” by submitting to the drug screen instead of quitting their jobs or refusing and being fired. While I certainly understand the at-will nature of their jobs, I’m troubled by the fact that direct observation was imposed across the board, without limitation for the specific interest the employer was trying to uphold (i.e., employee cheating).
Thus, what advice would I provide if a client asks me about implementing a “direct observation” policy?
  1. I’d ask, “Why?” What are you trying to achieve? Are there less obtrusive means available to prevent employees from cheating a drug test (e.g., searches before they enter the restroom, pat-downs, etc.)? Does it make more sense to limit direct observation to situations in which you have a reasonable suspicion of cheating?
  2. Make sure all employees have notice of the direct observation and when you might use it. Put it in your drug-testing policy, and have employees sign off on it as an express condition of employment. With notice and consent, they can’t complain about any invasion of privacy (legal or illegal), as they’ve voluntarily given up that right.
Just because Ohio’s Supreme Court gave a thumbs-up to Sterilite’s policy in this case does not mean that the policy makes for a good HR practice that you should adopt. Instead, consider the specific goals you hope to advance with your drug-testing policy, and tailor it accordingly.
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Coronavirus Update: New DOL guidance explains employers’ obligation to track compensable telework time

timeclock, wage and hour, schedule, timesheet rounding

With more employees working from home than ever before (thanks to COVID-19), employers are facing the new reality of tracking working time for remote workers and paying for that time.

The DOL recently published a new Field Assistance Bulletin explaining the obligation of employers to pay for non-exempt employees’ “working time” and the obligation of those employees to track this time. It’s not a change in the law, but instead a great reminder of the obligations the FLSA imposes on employers and employees.

An employer is required to pay its employees for all hours worked, including work not requested but suffered or permitted, including work performed at home. If the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked. An employer may have actual or constructive knowledge of additional unscheduled hours worked by their employees, and courts consider whether the employer should have acquired knowledge of such hours worked through reasonable diligence. One way an employer may exercise such diligence is by providing a reasonable reporting procedure for nonscheduled time and then compensating employees for all reported hours of work, even hours not requested by the employer. If an employee fails to report unscheduled hours worked through such a procedure, the employer is not required to undergo impractical efforts to investigate further to uncover unreported hours of work and provide compensation for those hours.  However, an employer’s time reporting process will not constitute reasonable diligence where the employer either prevents or discourages an employee from accurately reporting the time he or she has worked, and an employee may not waive his or her rights to compensation under the Act.

What does this mean:

  • Generally an employer must pay a non-exempt employee for all time during which the employer knows, or should know through the exercise of reasonable diligence, the employee is working.
  • If an employer has reasonable reporting rules detailing an employee’s responsibility to report the employee’s working time, an employer must pay the employee for all such time reported.
  • However, if an employee fails to report time pursuant to those rules, the employer is excused from any obligation to pay for that unreported time. An employer is not required to undertake efforts efforts to investigate, uncover, and pay for unreported time.
  • An employer cannot, though, prevent or discourage employees from reporting working time to avoid paying for it.
What should you be doing now? Dust off your handbook and make sure it contains a policy explaining to employees their obligation to report working time and advising that they will not be paid for unreported time. Absent such a policy, you are responsible to exercise reasonable diligence to discover time employees are working, an exercise that will almost certainly miss time and result in exposure for unpaid time/overtime.
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COVID-19 and protected concerted activity

employment law, labor law, overtime records

Let’s suppose you’re a health care organization that terminates an employee after the employee refuses to wear a shared isolation gown and after the employee starts a group discussion with co-workers about the risks and dangers of shared gowns.

If that employee files an unfair labor practice charge with the National Labor Relations Board alleging that the termination unlawfully violate his right to engage in protected concerted activity under Section 7 of the National Labor Relations Act, do you win or lose the case?
According to this recent Advice Memo [pdf] published by the NLRB, the employer wins and the employee loses.
Although Charging Party discussed the gown issue with Charging Party on March 30, 2020, prior to drafting letter to the Employer, there is no evidence that the object of the conversation was initiating or inducing or preparing for group action in the interest of employees, as opposed to simply discussing that the nurses now had to share gowns. Further, Charging Party letter is solely focused on personal disgust at the notion of sharing gowns and fear for own and family’s safety, which believed to be at risk. …
Even if we credit Charging Party that a group discussion and plan of action to not share gowns that evening occurred, there is no evidence that the plan went any further than that.… [T]he employees here never took their concerns to management as a group. And, although Charging Party spoke to Charging Party about discharge which appears to have motivated Charging Party to take a stand that evening during shift, there is no evidence that they formed a plan of action together. Nor is there evidence the Employer considered Charging Party’s solo speech and refusal to work to have been concerted.
Furthermore, although Charging Party discussed the gown sharing issue with coworkers on March 30, Charging Party alone confronted management regarding the issue on March 29 and 30 and did not claim on those dates to be speaking on behalf of anyone. While Charging Party invited two employees in the parking lot to join a protest that evening, Charging Party informed them that it … would move forward with or without them. Nor is there evidence that any other employee formed a plan with Charging Party to refuse to work.… No employee requested Charging Party to act on their behalf or authorized to do so; simply decided on their own to represent coworkers.
These conclusions are consistent with the Board’s latest statements on lone-wolf activity, that a “lone wolf” can only engage in concerted activity, that “the totality of the circumstances … support[s] a reasonable inference that in making the statement, the employee was seeking to initiate, induce or prepare for group action.”
That said, employers should tread very carefully before terminating an employee for raising safety-related issues related to the current pandemic (or otherwise). The termination could violate OSHA. It could violate state law. And, in the correct circumstances, it could violate the NLRA (this case notwithstanding). It also sends the wrong message to your employees—that you don’t care about their safety, which is the absolutely wrong message to send while we are living with COVID-19.
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States should follow Illinois’ lead in making it a felony to assault an employee over a mask rule

essential workers; workers' compensation, mask

Elmo, Big Bird, Cookie Monster … and assault?

Sesame Place is the latest employer to have an employee assaulted for trying to enforce a mask rule. It joins more likely suspects such as Target, WalMart (which has said that for the protection of its employees it will not require them to enforce mask rules), and McDonald’s (of which 44% of its employees report being physically of verbally assaulted by a non-mask-wearing customer).

Illinois is now the first state to enact a law targeted at this abhorrent behavior.

The law amends the definition of “aggravated battery” to specifically include an offense targeted at an employee who is “performing his or her duties, including, but not limited to, relaying directions for healthcare or safety from his or her supervisor or employer or relaying health or safety guidelines, recommendations, regulations, or rules from a federal, State, or local public health agency.” In layman’s terms, a customer who attacks an employee because that employee is trying to enforce a COVID-19 mask or other safety rule faces two to five years in prison.

According to a statement put out by the office of Illinois Governor J.B. Pritzker, “This provision sends the message that it’s vitally important for workers to be both respected and protected while serving on the front lines.”

Other states should follow Illinois’ lead and enact similar legislation. Employees need protection from these dangerous reactions to basic health and safety rules. I don’t believe your employees should be your front-line enforcers or mask and other safety rules. As I wrote three months ago, employers shouldn’t “leave it up to untrained employees to try to enforce these rules and potentially deal with escalating hostilities and violence.” Instead, employers should “deploy trained personnel (ideally security, but at least someone at management level) to enforce a mandatory mask rule in your business, and also train all other employees not to engage and instead to summon a designated responder.”

Still, even in the best of circumstances an employee may be put in harm’s way by an irrationally dangerous customer. No employee should face the risk of bodily injury just for telling someone to wear a mask. Laws like that enacted by Illinois send the message that this special brand of misbehavior should not and will not be tolerated.
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Are employees taking paid leave under the FFCRA?

employment law

According to a recent poll conducted by the National Partnership for Women & Families, less than one in five employees have either taken or plan to take paid sick or paid family leave under the FFCRA.

Of the 19 percent who has actually taken, or intend to take, paid FFCRA leave:

  • 9 percent say they are using new leave protections for their own illness or isolation.
  • 8 percent say they are using new leave protections due to a family member’s isolation/illness.
  • 7 percent say they are using new leave protections to care for a child due to child care or school closure.
  • 6 percent said they took leave, but not because of the new policy.
Yet, a higher number, more than one in four employees, have no idea that this paid leave even exists or are unsure if they will use it. Of this 28 percent of employees:
  • 17 percent said they were unaware of the new protections.
  • 11 percent are not sure if they will use the new protections.
These numbers seem low to me. So I’ve created my own poll, which you can take below.

I’ll publish the results tomorrow.
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Must you accommodate an employee with a high-risk family member?

ADA, coronavirus, acommodate

One of the questions I have received most from clients during this pandemic comes in some variation of the following: “An employee [does not want to come into work/wants to work from home/wants a leave of absence] because s/he lives with someone who is at high risk for coronavirus complications. What do we do?”

In other words, must you accommodate an employee for the employee’s close family member’s disability?

According to the EEOC, the answer is, “No.”

Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?

No. Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.

For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.

According to me, however, the answer is, “It depends” (on how you’ve historically treated similar requests by similarly situated employees).
The ADA not only protects employees with disabilities, but it also protects employees associated with individuals with disabilities. There is, however, one critical difference between these two types of protections. The former imposes on employers an obligation to offer reasonable accommodations, while the latter does not. This difference, however, does not mean that employers in all cases can deny accommodations to employees associated with individuals with disabilities.
If an employer has a history of accommodating employees similarly situated to an employee requesting an accommodation for an employee associated with someone at risk for coronavirus complications, the employer would be open to claim of disparate treatment by denying the employee’s accommodation request. Thus, an employer must scrutinize its decision to deny an accommodation request for an employee’s family member against similar requests by other similarly situated employees to avoid a claim of disparate treatment.
Of course, the ADA is a floor and not a ceiling. An employer is always free to accommodate any employee’s request for any reason. As the EEOC points out, “[A]n employer is free to provide such flexibilities if it chooses to do so.” Further, during the pandemic, the DOL “encourages employers and employees to collaborate to achieve flexibility and meet mutual needs.”
Moreover, there are myriad business reasons why an employer might choose to grant an accommodation in this case.
  1. It’s the ethically or morally correct thing to do.
  2. It will help you to retain a quality employee.
  3. Granting the accommodation will create goodwill, strengthening the employee’s loyalty to your company.
  4. You will avoid the potential for bad press or negative social media if you deny the request, or worse, fire an employee seeking an accommodation under these circumstances.
For these reasons, I generally favor granting the accommodation. Unless there is a legitimate and overriding business reason to deny an accommodation request to an employee who, during the COVID-19 pandemic, seeks remote work or a leave of absence because he or she does not want to endanger a high-risk family member, grant the request. It’s the right thing to do, and, depending on the circumstances, it might also be the legal thing to do.
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How to communicate when an employee tests positive for COVID-19

essential workers; workers' compensation, mask

Positive COVID-19 tests are sadly the reality of 2020 and likely at least part of 2021.

Nationally, 2.23 million of us have tested positive for coronavirus. If your employees have been fortunate enough so far to avoid the virus, the odds are good that before this pandemic is over one or more of your employees will test positive.

Before we discuss the right way to communicate a potential workplace exposure to your employees, let’s explore the wrong way, via one of my favorite punching bags, the WWE.

Via Deadspin:

As “Monday Night Raw” was wrapping up last night, reports started to leak out that a member of WWE’’s developmental program had tested positive for COVID-19.… It’s hard to pinpoint which is the more galling aspect: that the talent and crew of WWE found out about the positive test the same way the rest of us did, through social media and the internet last night, or that everyone showed up to work thinking they were safe, or however close to that word they felt by working for WWE, when in fact they weren’t.

If one of your employees tests positive for COVID-19, your other employees deserve to hear the news from you, not from a Facebook post, a tweet, a local news reporter or otherwise. You just have to make sure you are communicating the news legally.
The ADA’s confidentiality rules still apply to these communications, and an employee’s positive coronavirus test is still a confidential medical record. This means that you cannot divulge to anyone else the identity of the employee(s) who tested positive. It does not mean, however, that you can’t (and shouldn’t) communicate to employees that they might have been in contact with someone who has tested positive (or is displaying symptoms consistent with COVID-19) and that they should be diligent about monitoring their own health for potential symptoms.
Your only limit is disclosing the identity of the corona-positive employee. Otherwise, you are free to make any communication you want.
And you should. Your employees will resent you if they learn of the diagnosis of their potential exposure from anyone but you. Moreover, you can flip the story around into one focused on everything you are doing to protect the health and safety of your employees.
Dear Employees:
It saddens us to inform you that one of your co-workers has tested positive for COVID-19. The law prevents us from telling you the identity of that co-worker, but we want to assure you that we will continue to support this employee as your co-worker heals from this virus, and we will welcome them back to join you at work once it is safe to do so.
We are doing everything within our ability and resources to keep you as safe and healthy as possible at work. Still, with many cases of COVID-19 transmitted before anyone knows they have been exposed, and with you only being at work for a fraction of you day, we cannot 100 percent guarantee the virus won’t enter our workplace.
We continue to require that you self-assess daily for your own potential COVID-19 symptoms (fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, or diarrhea). If you have any of these symptoms, please let us know, and do not return to work until you have received a negative COVID-19 test, or you are symptom-free for at least 72 hours and at least seven days have passed since your first symptoms.
We are also continuing to take the following steps to help ensure, as best as possible, your health and safety here at work:
  • Employees are required to wear masks or other facial coverings at all times while at work, unless you granted a specific exception (such as for safety, a medical reason, or because you are working alone in a closed office).
  • employees are required to maintain six feet of social distance from others at all times.
  • Employees must diligently wash their hands and otherwise use hand sanitizer (which we are providing in intervals around the workplace).
  • Employee must self-assess their own health before reporting to work, and no employee is permitted to come to work if they have any of the known symptoms of COVID-19.
  • Lunch room and other common areas are closed until further notice.
  • Each employee is responsible for cleaning their own work station at the end of each shift.
  • We are deep cleaning the entire workplace on a weekly basis.
Additionally, because of the unfortunate positive test, we had the facility deep cleaned and sanitized prior to anyone being allowed to reenter after we learned of the positive test.
Our commitment to your health and safety is our top priority. If you have any questions or concerns, please contact ______________. Our door is always open.
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Does Title VII protect employees whose spouses are pregnant?

maternity, paternity, pregnant, baby
A male Disney employee has filed suit against his former employer, claiming that Disney unlawfully discriminated against him because of his wife’s pregnancy.
According to Steven Van Soeren’s complaint, Disney fired him after he took two weeks of paternity leave following the birth of his child, and after supervisors advised him during his wife’s pregnancy on the wisdom of having a child. (As an aside, Van Soeren claims that his supervisors learned of the pregnancy by hacking his computer.)
The Pregnancy Discrimination Act (enacted in 1978) amended Title VII’s definition of “sex” to make clear that it also includes “pregnancy, childbirth, or related medical conditions.” Disney is now arguing that Van Soeren’s lawsuit should be dismissed because Title VII doesn’t protect a male employee because of his wife’s pregnancy. Yet, the statute does not say “a woman’s pregnancy”; the definition is gender-neutral. Thus, Disney has an uphill battle to establish that the Pregnancy Discrimination Act doesn’t equally cover dads as moms.
Further, consider the following passage from Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County—

It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee — put differently, if changing the employee’s sex would have yielded a different choice by the employer — a statutory violation has occurred.

Bostock says very clearly that an employer discriminates on the basis of sex if “changing the employee’s sex would have yielded a different choice by the employer.” Would Disney have made the same decision relating to a woman’s choice to have a child, or did it rely on outdated and illegal stereotypes about a man’s role as a provider instead of a caregiver? It’s doubtful, based on the comments Van Soeren claims his supervisors made after they learned of his wife’s pregnancy.
Bostock leaves open a lot of questions: Can religious employers claim an exemption from Title VII’s prohibition against LGBTQ discrimination, and if so, how broadly?
Does Title VII’s prohibition against LGBTQ discrimination moot the Trump Administration’s plan to roll back protections for transgender people from discrimination in health care and insurance coverage? Add to this list the question of just how broadly Bostock’s causation standard will apply, and if it applies to other forms of sex discrimination such as pregnancy discrimination?
I believe it does, and I believe Disney will lose its effort to have Van Soeren’s lawsuit dismissed.
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Everything you need to know about the LGBTQ discrimination decision in 5 quotes

lgbtq, legal, discrimination, diversity and inclusion

June is Pride Month. If you thought the month’s biggest LGBTQ news was Nickelodeon tweeting that SpongeBob was part of the LGBTQ+ community, you have another thing coming.

On June 15, in Bostock v. Clayton County, the United States Supreme Court clearly, decisively and unequivocally held:

An employer who fires an individual merely for being gay or transgender violates Title VII.

The Bostock majority opinion is 33 pages long. I’ll break it down for you in five key quotes.

1. “Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long­time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.”

2. “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

3. “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

4. “There is simply no escaping the role intent plays here: Just as sex is necessarily a but­-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking.”

5. “We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a ‘canon of donut holes,’ in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception.… ‘Sexual harassment’ is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Same with ‘motherhood discrimination.’ Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.”

(Bonus wishy-washy quote, from Justice Kavanaugh’s dissent: “Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.”)

There has not been a more significant employment law decision in over 22 years. It might be that long or longer before we see another of this import. Bostock is worthy of celebration because it finally puts to rest any open issue that employers can insidiously and intentionally discriminate against their LGBTQ employees.

June 15 is a day worth celebrating because it will forever be the day that our LBGTQ brothers and sisters finally gained their civil rights at work. It was long overdue.

Employers, take heed. If you are still among the group of businesses that discriminate against LGBTQ employees, you are violating the law. This is no longer an open question. Case closed.