Tenth Circuit takes expansive view of remedies available in Title VII claims

In a recent decision, the Tenth Circuit took an expansive view of the remedies available to a plaintiff in a Title VII claim, including on the following points of law:

  1. The court held that reinstatement is the strongly preferred remedy, instead of front pay. Often in cases, especially after the tribulations of a trial, courts have been prone to enter a monetary award of front pay, rather than ordering that the employee be re-hired, but the Tenth Circuit held that reinstatement should be the “preferred remedy” and should be ordered absent “extreme hostility” between the parties. Whether extreme hostility exists should be gauged by asking whether there are “objective” reasons that would make it “unworkable.” Objective reasons do not depend on the parties’ own subjective feelings, especially not the defendants’. For example, in the case before it, the court rejected as “far short” of sufficient the defendants’ argument that the litigation tactics employed by the plaintiff and their attorney in the case had been “unfair.” Likewise coworker dislike of the plaintiff is not generally enough to establish “extreme hostility,” nor is management’s “speculating in general and conclusory manner” that the plaintiff would not be welcomed back.
  2. The court clarified that an order of reinstatement does not block an award of front pay. Since back pay is awarded for the period of time from wrongful termination until judgment is entered, front pay should be awarded for the gap going forward between the period of time starting with the entry of judgment until reinstatement.
  3. The court held that, when determining the proper remedy, a plaintiff’s award should not be docked for failure to mitigate if the plaintiff turned down work that was not “substantially equivalent.” While the defendant need not prove the plaintiff turned down a job that was “virtually identical,” the defendant must at least prove the turned-down job was “substantially equivalent,” in order to terminate liability for lost pay and reinstatement.
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DOL withdraws Fact Sheet 84 re pay for vaccine and related time

Saying it had made a mistake by publishing Fact Sheet 84 explaining the compensability of time related to vaccines, testing, etc., the DOL cautions that the content of its now-withdrawn Fact Sheet 84 may in fact end up stating correctly its views. Apparently the publication of the Fact Sheet was premature in that the DOL failed to incorporate its withdrawal of OSHA’s prior large-employer mandate rules (the former so-called OSHA ETS). As SHRM has pointed out in its own article regarding this maneuver by the DOL, former Fact Sheet 84 was arguably consistent with DOL’s other guidances regarding these topics and such time possibly being compensable.

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OSHA withdraws its large-employer vaccine mandate

OSHA has withdrawn its large-employer vaccine mandate, which was the OSHA ETS that was recently stayed by the Supreme Court. In doing so, OSHA left the ETS as a proposed rule, on which it has invited public comment, in other words, left it as a draft that it is considering making final subject to input from the public. As a proposed rule, the OSHA ETS does not carry the force and effect of law. Also in withdrawing its rule, OSHA noted that states may adopt their own rules and that OSHA’s withdrawal of its now-frozen rule does not require states, such as California, to withdraw their own state ETS rules.

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Do employers face exposure for claims by non-employees for coronavirus contracted from employees?

The California Court of Appeals recently held that an employer can be sued by the estate of a non-employee spouse who passed away from COVID-19 allegedly contracted from his employee-wife who allegedly contracted it at workplace due to the alleged negligence of her employer.

Plaintiffs allege that Mrs. Ek, defendants’ employee, contracted COVID-19 at work because of defendants’ failure to implement adequate safety measures. They claim that Mr. Ek subsequently caught the disease from Mrs. Ek while she convalesced at home. He died from the disease a month later.

The court held the claim by the non-employee’s estate — in other words, the employee and their childrene — was not barred by exclusivity provisions of workers compensation.

Assuming arguendo that Mrs. Ek’s workplace infection constitutes an injury for purposes of the WCA, we reject defendants’ efforts to apply the derivative injury doctrine to any injury causally linked to an employee injury.

As the court opinion itself notes in its detailed analysis, this is not the only court or even the first to address this issue. The courts are currently split on this issue.

Even if not barred by workers compensation, it is noted this kind of claim remains a challenge for plaintiffs who must next prove that the employer was in fact negligent in its efforts to protect its employees, that it owed a duty to non-employees not to be negligent, that the non-employee contracted COVID-19 from the workplace exposure and not simply as part of the on-going pandemic from any number of possible sources we all face everyday now, and that the employer’s negligence was in turn not only a cause but the proximate cause of the non-employee’s death.

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DOL issues Fact Sheet 84 explaining compensability of time related to CV19-related vaccines, testing, temperature checks, etc.

The DOL issued a new Fact Sheet (#84) explaining when time must be paid related to coronavirus-related vaccinations, testing, temperature checks, etc.

Time must be compensated if the activity was required by the employer; it need not be compensated if it was at the option of the employee. Time that must be compensated counts as hours worked, including towards overtime.

Examples of time that must be compensated include:

  • Time an employee spends getting vaccinated if the employer has a policy that mandates vaccination.
  • Time an employee spends getting a COVID-19 test if required by the employer.
  • Time an employee spends to have their temperature checked if required by the employer.

The DOL says that not only must the employer pay such time but it must allow such time “during normal working hours” generally and when that is not possible, it will count as hours worked, in other words, towards any overtime.

Examples of time that need not be compensated include:

  • Time an employee spends being tested in lieu of being vaccinated where the employee has opted not to be tested, even if the test is required under a vax-or-test policy adopted by the company (including for example if adopted under the now-frozen OSHA ETS).
    • The same time even if the employee has qualified for an accommodation exempting the employee from testing, for example on religious or disability ground is being tested even if the employer.
  • Time an employee spends getting vaccinated, unless the employer has a policy that mandates vaccination, even if the employee is doing so at the encouragement of the employer.
    • The same time even if the employee is doing so solely because they wish to avoid the hassle of not being vaccinated under an employer’s policy (including for example under the kind of policy required under the now-frozen OSHA ETS).
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Biden vaccine mandate for federal workers blocked nationwide

In a continuing blow to President Biden’s vaccine mandates, the President’s federal-worker vaccine mandate has also just been blocked nationwide.

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Supreme Court re-freezes OSHA ETS implementing President Biden’s large-employer mandate but allows his healthcare mandate

In a pair of decisions released today, the Supreme Court (1) re-froze OSHA’s ETS that implemented President Biden’s large-employer mandate but (2) allowed the regulations to take effect that implemented President Biden’s healthcare vaccine mandate.

Why the different outcomes? In short, a majority of the Supreme Court held it depended on whether Congress had clearly authorized each agency to implement its regulations. In the healthcare case, the majority held, yes, the language of the Congressional statute at-issue had expressly authorized the Secretary of Health and Human Services to implement such a mandate:

Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” 42 U. S. C. §1395x(e)(9).* COVID–19 is a highly contagious, dangerous, and—especially for Medicare and Medicaid patients—deadly disease. The Secretary of Health and Human  Services determined that a COVID–19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients. 86 Fed. Reg. 61557–61558. He accordingly concluded that a vaccine mandate is “necessary to promote and protect patient health and safety” in the face of the ongoing pandemic. Id., at 61613. The rule thus fits neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients  is consistent with the fundamental principle of the medical profession: first, do no harm. It would be the “very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19.” Florida v. Department of Health and Human Servs., 19 F. 4th 1271, 1288 (CA11 2021).

However, a majority of the Supreme Court held that Congress had not similarly authorized OSHA to implement such a mandate. In particular, the majority noted that coronavirus is a pandemic, affecting individuals everywhere, it is not unique to workplaces. The majority found no statutory language that would authorize OSHA to implement a vaccine mandate simply because some exposure, even a significant exposure, may be found in workplaces.

Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.

The majority noted OSHA could adopt narrower regulations implementing vaccine mandates for jobs that might have coronavirus-specific risks, such as “particularly crowded or cramped” workplaces.

The Supreme Court’s decisions left a very important question of administrative law to be resolved in further cases. A fraction of the majority, led by Justice Gorsuch, wrote a concurrence to the majority’s OSHA opinion in which he addressed two doctrines of administrative law: (1) The major questions doctrine that says so-called “major questions” of public policy must be reserved for decision by legislatures and cannot be resolved by bureaucratic agency fiat and (2) the nondelegation doctrine that basically prohibits Congress from delegating to agencies its sovereign authority over issues like that. Justice Gorsuch’s concurring opinion characterized the majority’s decision as having applied the major questions doctrine, and while the majority’s opinion is arguably consistent with that doctrine, it is noted that the majority did not expressly articulate it. Therefore, an open question remains whether a majority of the Supreme Court would adopt or at least apply with vigor these two doctrines.

Notwithstanding that question, the majority decisions in today’s cases are clear indicators to the lower courts that the Supreme Court believes the OSHA ETS is unlawful and the healthcare rule lawful. While both will continue to be litigated, it would seem unlikely that lower courts will revive the OSHA ETS after today’s rulings.

Employers are reminded of the status of other vaccine mandates, including the following:

  • President Biden’s government-contractor vaccine mandate remains frozen.
  • Although the government contractor mandate is frozen, President Biden’s order that various federal buildings, bases and properties implement their own vax-or-test rules  arguably remains in effect. A number of federal properties around the country have begun implementing the requirement.
  • Likewise a number of private businesses and landowners have adopted their own mandate vaccines or vax-or-test rules. Companies wishing to do so are reminded to review potentially contrary state laws.
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