Tag Archive for: ADA

Tenth Circuit rejects Cat’s Paw argument holding that review of termination decision by an independent decisionmaker breaks causal link on retaliation claim

In Parker v. United AirLines, Inc., the Tenth Circuit rejected the plaintiff’s Cat’s Paw argument holding that the review of her termination by an independent decisionmaker broke any causal link on her claim of retaliation.

Retaliation entails a causal link between an employee’s use of FMLA leave and the firing. That causal link is broken when an independent decisionmaker conducts her own investigation and decides to fire the employee.

The plaintiff, who had been on FMLA, argued that her use of FMLA leave “sparked retaliation from her supervisor” who, when the opportunity allegedly presented itself, recommended her discharge and continued to do so even when she appealed her decision to a higher level of management. She argued that her supervisor’s alleged contributions to the process constituted proof in her favor under the so-called Cat’s Paw theory. “That theory imputes a supervisor’s motive to an employer if the motive influenced the employer’s decision.” The Tenth Circuit rejected that argument.

(The Cat’s Paw theory) doesn’t apply when independent decisionmakers “conduct their own investigations without relying on biased subordinates.”

Seventh Circuit Affirms Employer’s Right To Provide Workers Comp Light Duty But Refuse To Provide Light Duty To Pregnant Workers

In EEOC v. Wal-Mart Stores East, L.P., the Seventh Circuit held that an employer need not offer light duty to pregnant workers, even though it offers the same to employees who are on workers compensation, so long as the company does not also offer light duty to those who are ill or injured off-the-job. In so doing, the Seventh Circuit looked to the Supreme Court’s 2015 decision in Young v. UPS, that held, without further explanation, that pregnant workers must be offered light duty if it is offered to other employees with similar restrictions. The Seventh Circuit distinguished a 2016 Second Circuit case, Legg v. Ulster County, that had required light duty for pregnant workers even though it was otherwise reserved for workers comp cases, because, there, the Seventh Circuit held the employer had offered “confused and inconsistent rationales” for its decision to reserve light duty for workers comp cases. The Seventh Circuit didn’t explain why that employer’s rationales were “confused and inconsistent,” whereas, this employer’s were clear and persuasive, except to note that this employer explained that reserving light duty for workers compensation cases helped it to reduce “costs” and “legal exposure,” given the state of Wisconsin’s statutory schemes governing workers compensation claims and the incentives provided therein for light duty.

EEOC issues guidance on federal anti-discrimination laws and employees who are caregivers outside work

The EEOC has issued a guidance explaining that employees who act as “caregivers” for their family and friends may be protected by existing anti-discrimination laws. The EEOC does not define the phrase “caregiver” and, therefore, presumably intends it in a general dictionary sense. In other words, readers should note the EEOC is not using that phrase in this guidance to mean medical or other professional caregivers. The EEOC notes that being a caregiver is not itself protected by federal anti-discrimination laws like Title VII, the ADA and the ADEA. Rather, the EEOC cautions, caregivers often fall into those laws’ other existing protected classes.

Caregiver discrimination violates federal employment discrimination laws when it is based on an applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age (40 or older), disability, or genetic information (such as family medical history).  Caregiver discrimination also is unlawful if it is based on an applicant’s or employee’s association with an individual with a disability, within the meaning of the ADA, or on the race, ethnicity, or other protected characteristic of the individual for whom care is provided.  Finally, caregiver discrimination violates these laws if it is based on intersections among these characteristics (for example, discrimination against Black female caregivers based on racial and gender stereotypes, or discrimination against Christian female caregivers based on religious and gender stereotypes).

The EEOC explains it has issued this guidance because many caregivers are facing challenges due to the COVID-19 pandemic.

The COVID-19 pandemic has significantly impacted employees’ work and personal obligations, creating concurrent and, at times, competing job and caregiving demands.  Abrupt changes in work locations, schedules, or employment status required millions of Americans with caregiving responsibilities for children, spouses, partners, older relatives, individuals with disabilities, or other individuals to quickly adjust to vastly changed circumstances.

Even as the pandemic evolves, the challenge of juggling work and caregiving obligations remains.  Some workplaces, classrooms, and care facilities may operate on hybrid schedules, request or require employees to work extra shifts, or close with short notice.  Employees may need to quarantine unexpectedly if they or household members are potentially exposed to or infected with COVID-19.  Some employees who live in households with persons who are immunocompromised, children too young to be vaccinated against COVID-19, or other vulnerable individuals may be reluctant to return to the workplace.

The EEOC discusses a number of ways it believes that an employee’s off-duty caregiver activities and obligations can implicate each of the existing protected classes under federal anti-discrimination laws.

EEOC cautions some cases of COVID-19 may cause a disability protected by law

While most cases of COVID-19 resolve without complication, the EEOC cautions in a new Section “N” added to its on-going COVID-19 guidance, that some cases may be more severe and cause a “disability” that is protected by the ADA (Americans with Disabilities Act).

The EEOC advises that anyone who experiences only no symptoms or mild symptoms, including symptoms comparable to a cold or flu, will not be considered “disabled.” Rather that person will have suffered a “transitory and minor” illness that is not a “disability.”

However, a person may experience a protected “disability” if they suffer “ongoing but intermittent” symptoms that “substantially limit” major life activities like “neurological and brain function, concentrating, and/or thinking,” or if they receive supplemental oxygen for breathing difficulties, or if they suffer “heart palpitations, chest pain, shortness of breath, and related effects to to the virus that last, or are expected to last, for several months and that “substantially limit” major life activities such as “cardiovascular function and circulatory function.” Likewise “intestinal pain, vomiting, and nausea” that lasts “for many months, even if intermittently” may constitute a “disability” if it substantially limits major life activities. (See. Section N.4). The EEOC explains its guidance is intended to confirm that at least some cases of so-called “long COVID” (more commonly called long-haul COVID) can constitute a “disability.”  Likewise even if the person does not experience long-haul COVID, they may nonetheless suffer a protected “disability” if the COVID-19 triggers a different condition (such as diabetes) that is itself a protected disability.

The EEOC cautions that employees may also be protected if “regarded as” so disabled even if they do not have an actual disability of this type, for example, if their employer fires them because it believes their symptoms will continue along such lines. See Section N. 7.  And the EEOC cautions they may also be protected if the company has a “record of” them having such a condition even if they do not actually have such a condition and are not “regard as” having such a condition.

NLRB General Counsel warns, if OSHA rule re vaccine-or-test becomes active again, unionized employers will have duty to give notice and opportunity to bargain over discretionary aspects of the rule

The NLRB issued Memorandum OM 22-03 opining that, if OSHA’s vaccine-or-test rule implementing President Biden’s mandate for employers of 100 or more is ever unfreezed by the courts, then employers with unionized workplaces will have a duty to give their unions notice and an opportunity to bargain. While companies cannot be required to negotiate over whether to comply or any nondiscretionary aspects of the rule, they will be required to give notice and an opportunity to bargain over discretionary aspects of the rule.

Although the General Counsel does not offer advisory opinions and each case stands on its own facts, the General Counsel’s position is that covered employers would have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment—to the extent the ETS provides employers with choices regarding implementation.

Many aspects of OSHA’s now-frozen rule remain unclear, but this seems to include the items specifically mentioned by OSHA in its rule and its preface as being subject to potential collective bargaining:

  • Whether the employer will adopt a mandatory vaccine-or-test policy or OSHA’s permitted alternative policy that would permit employees to opt out of vaccines and instead wear masks and be tested.
  • Whether to adopt one kind of policy for unionized workers even though another was adopted for non-union workers.
  • Whether employees will bear some or all of the costs of vaccines, masks, tests, etc.
  • How much paid leave will be provided to be vaccinated.
  • How much paid leave will be provided to recover.
  • How much paid leave, if any, will be provided for time off when employees who test positive are removed from work.
  • Whether any additional safety measures will be taken related to COVID-19 in the workplace.

Employers of 100 or more with unionized workplaces will need to continue to monitor developments in the courts and be prepared to provide notice and an opportunity to bargain if the OSHA rule is ever unfreezed by the courts.

White House announces extension of deadline for government contractors to implement vaccine mandate

When it announced the release of OSHA’s ETS implementing the President’s vaccine mandate for employers of 100 or more, the White House announced the deadline for government contractors to mandate that employees would need to be vaccinated would be extended from December 8, 2021 to January 18, 2022. Note: That will the deadline for employees to be “fully vaccinated,” meaning the deadline to actually receive their full-final vaccine injection will be 14 days earlier January 4, 2022.

Because the extension of this deadline was implemented by way of an announcement from the White House, not through OSHA’s ETS itself, the Fifth Circuit’s freezing of the ETS would not seem to affect this extension.

However, it is noted that the Federal Safer Work Place Task Force has yet to update its own documentation to reflect this new extension, and it was announced only in that relatively informal announcement from the White House; therefore, it is arguably possible that the White House may, especially after the ETS was frozen, wish to pull back on this delay. Employers should stay tuned to developments at the federal level.

Fifth Circuit freezes new OSHA vaccine rule

Within 24 hours after OSHA issued its new ETS implementing President Biden’s vaccine mandate for employers of 100 or more, one federal court — the Fifth Circuit of the United States Court of Appeals — has already frozen its implementation. Without further explanation, the Fifth Circuit noted that the ETS raises “grave statutory and constitutional issues.” President Biden’s other vaccine mandates including the government-contractor mandate are not affected by this ruling.

OSHA’s vaccine mandate rules

On 11/5/2021, OSHA issued its ETS (Emergency Temporary Standard) implementing President Biden’s vaccine mandate for employers of 100 or more. (OSHA published a separate ETS for healthcare settings, not addressed in this alert.)

OSHA’s information page regarding the new ETS is here. It includes a 28-minute webinar by OSHA, a FAQ sheet by OSHA, a fact sheet by OSHA, a general summary by OSHA, as well as a summary by OSHA of the reporting requirements.

Effective Date, Compliance Dates, Litigation

The ETS was effective as a statement of federal law immediately on its publication 11/5/2021. General compliance is required by 12/5/2021, to include the policy requirements, mask mandate, recordkeeping and reporting. The sole exception is that mandating vaccines/tests in lieu of vaccination will be required no later than 1/4/2022. Someone who receives their full-final injection on or after 12/21/2021 will not have to be tested in the 2 weeks thereafter as they wait to become fully vaccinated.

OSHA expects the ETS will remain in effect for 6 months after 11/5/2021, though OSHA cautions it may shorten or extend the ETS’ duration.

Because the ETS’ effective date as law was immediate on its publication 11/5/2021, litigation over it commenced almost immediately that same day. At the time of this posting, more than half of the states have filed a variety of lawsuits seeking to invalidate the ETS. Unless a court rules otherwise, though, employers should continue to work towards compliance.

Coverage

When considering coverage, the ETS reaches only some employers, and at those employers, only some employees.

Covered Employers

Employers of 100 or more “at any time the (ETS) standard is in effect” are covered by this ETS. The 100 is counted company-wide, not by location. When counting the 100, all employees are covered, whether full-time or part-time. Employees are counted by the head not FTE; in other words, two part-time employees each working half-time (20 hours per week) do not count as 1 even though together they constitute 1 FTE, rather they count as 2. True independent contractors do not count towards the 100, unless the company is a joint employer. In its preface to the ETS, OSHA offers the following examples (quoting list by OSHA):

  • If an employer has 75 part-time employees and 25 full-time employees, the employer would be within the scope of this ETS because it has 100 employees.
  • If an employer has 150 employees, 100 of whom work from their homes full-time and 50 of whom work in the office at least part of the time, the employer would be within the scope of this ETS because it has more than 100 employees.
  • If an employer has 102 employees and only 3 ever report to an office location, that employer would be covered.
  • If an employer has 150 employees, and 100 of them perform maintenance work in customers’ homes, primarily working from their company vehicles (i.e., mobile workplaces), and rarely or never report to the main office, that employer would also fall within the scope.
  • If an employer has 200 employees, all of whom are vaccinated, that employer would be covered.
  • If an employer has 125 employees, and 115 of them work exclusively outdoors, that employer would be covered.
  • If a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.
  • If a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing  agency employees for coverage purposes and therefore would not be covered. (So long as the staffing agency has at least 100 employees, however, the staffing agency would be responsible for ensuring compliance with the ETS for the jointly employed workers.)
  • If a host employer has 110 permanent employees and 10 temporary employees from a small staffing agency (with fewer than 100 employees of its own), the host employer is covered under this ETS and the staffing agency is not.
  • If a host employer has 110 permanent employees and 10 employees from a large staffing agency (with more than 100 employees of its own), both the host employer and the staffing agency are covered under this standard, and traditional joint employer principles apply.
  • Generally, in a traditional franchisor-franchisee relationship, if the franchisor has more than 100 employees but each individual franchisee has fewer than 100 employees, the franchisor would be covered by this ETS but the individual franchises would not be covered.

Covered Employees

All employees of a covered employer are covered by the ETS, except:

  • Employees working in workplaces covered by President Biden’s Government Contractor mandate. Such employees will be protected exclusively by the Government Contractor mandate.
  • Employees working in healthcare settings covered by OSHA’s Healthcare ETS.
  • Employees who do not report to a workplace where others are present.
  • Employees who work from home while they are working from home. However, if the employee “switches back and forth” working between home and in a workplace where others are present, then the employee becomes covered by the ETS while in the workplace. For example, that individual would have to comply with the following vaccination/testing/mask requirements while in the workplace.
  • Employees who work “exclusively” outdoors. However, if an individual spends more than “de minimis” time with others while not outdoors for work, then the ETS would apply. OSHA gives as examples of covered workers outdoor-workers individuals who carpool at the beginning and end of the shift, who share a vehicle while at work, who spend time in a jobsite trailer while at work. OSHA says “de minimis” time in a shared space with appropriate protects does not render the outdoor-worker covered, and gives as an example a worker who uses a properly ventillated multi-stall bathroom.

Requirements

Once a company is a covered employer with a covered employee, the requirements are manifold, including the following:

  • The company must issue a written policy(-ies) that
    • Either,
      • mandates vaccination for all current and new employees, permitting only the following exemptions:
        • Individuals for whom vaccination is medically contraindicated,
        • Individuals for whom it is medically necessary to delay vaccination,
        • Individuals who qualify for religious or disability accommodations.
        • And for each such individual, the company must require by written policy that they submit instead to weekly testing in lieu of vaccination.
        • And, mandates the wearing of masks in the workplace by unvaccinated individuals, whether or not exempted from the vaccine requirement. In other words, even when exempt from the vaccine mandate by reason of a federal required accommodation or one of the other permitted exemptions above, that exempt individual is only exempt from vaccination. They must undergo weekly testing instead. Also they must wear masks in the workplace even if unvaccinated individuals need not.
      • Or permits vaccination as above so that the worker need not wear a mask, but allows employees who choose not to be vaccinated to undergo weekly tests and wear masks instead without having to be vaccinated. Again though an individual who is permitted not to be vaccinated must not only be tested but also wear a mask even when vaccinated individuals are not required to be masked.
      • Employers may choose either approach.
    • Mandates compliance with other CDC workplace requirements, particularly regarding social distancing.
    • Mandates disclosure to the company of each individual’s vaccination status. The ETS specifies what documentation is sufficient to include the standard vaccine card that we have become familiar with, but it generally does not include, except in limited circumstances, self-attestation. Proof of so-called “natural immunity,” in other words documentation of a prior infection that produced antibodies, is not sufficient.
      • Employers who have already obtained and retained proof of vaccination status may be exempt under certain conditions specified in the ETS, from having to re-request vaccination status.
    • Provides paid time off (or sick leave) to be vaccinated then to recover.
    • Requires individuals to promptly notify the company of a positive test.
    • Informs individuals of certain facts regarding COVID-19 and vaccines.
    • Warns violations will result in discipline up to and including discharge.
  • The company must generate a roster of employees reflecting vaccination status.
  • The company must remove individuals from the workplace when they contract/test positive for COVID-19.
  • The company must meet certain recordkeeping requirements.
    • This includes keeping all vaccination and testing records as confidential medical records.
  • The company must meet certain reporting requirements arising out of workplace-related COVID-19 exposures.

As noted above, the testing mandate is delayed until 1/4/2022, companies will need to comply with the other requirements by 12/5/2021, including by adopting the required policy(-ies), requiring masks, generating the required roster, removing infected individuals for the required periods, and complying with the recordkeeping and reporting requirements.

Sample Policies

OSHA has provided a sample policy mandating vaccination and a sample policy mandating masks and testing in lieu of vaccines.

Either-Or

As noted, employers have a general requirement to implement a policy that mandates vaccination. However, employers may opt instead for a policy that mandates vaccination but permits instead testing/masks/etc. in lieu of vaccination. That decision is left to the company’s discretion, and a company can choose one approach or the other, or the company can choose one approach for one workplace, one group of workers in that workplace, one group of workers in one portion of the workplace, etc. In other words a company has the right to adopt the vaccine-mandate approach for all its workers as OSHA urges, or to mix-and-match as the company determines. Again though, in all situations where a person is not required to be vaccinated, they must be required to wear a mask, test weekly, etc.

OSHA recognizes there may be employers who develop and implement partial mandatory vaccination policies, i.e., that apply to only a portion of their workforce. An example might be a retail corporation employer who has a mixture of staff working at the corporate headquarters, performing intermittent telework from home, and working in stores serving customers. In this type of situation, the employer may choose to require vaccination of only some subset of its employees (e.g., those working in stores), and to treat vaccination as optional for others (e.g., those who work from headquarters or who perform intermittent telework). This approach would comply with the standard so long as the employer complies in full with paragraph (d)(1) and (d)(2) for the respective groups.

Testing

Employees who are allowed not to be vaccinated must undergo weekly testing. This is true whether they are allowed not to be vaccinated due to a religious accommodation, disability accommodation, or as part of the employer’s decision to permit testing in lieu of vaccination. Such individuals must provide the documentation of each negative test within 7 days. The type of testing is specified. No test will be sufficient if it is both self-administered and self-read.

Employees may be required to locate their own tests, have their own tests administered, on their own time and at their own cost. OSHA acknowledges this will be a significant burden but expressly states that it crafted the rule to incentivize workers not to elect testing in lieu of vaccination.

As mentioned above, requiring employers to pay for workplace protections makes it more likely that employees will take advantage of that protection, and in this ETS, OSHA intends to strongly encourage employees to choose vaccination, not regular COVID-19 testing. Because employees who choose to remain unvaccinated will generally be required to pay for their own COVID-19 testing, this standard creates a financial incentive for those employees to become fully vaccinated and avoid that cost.

Tests that show the person has so-called “natural immunity,” in other words, tests that for example confirm an unvaccinated person has antibodies from prior infection are not sufficient to meet the requirement for weekly testing, nor do they exempt the person from the need for vaccination.

Some exceptions exist. For example a worker who has tested positive for COVID-19 cannot be required to provide such weekly tests thereafter for 90 days.

OSHA reminds employers that other laws may apply, so that when an employer who chooses for example to permit the worker to undergo testing during work hours or in the workplace (or even to be vaccinated during work hours or in the workplace), then that employer may have subjected itself to a requirement under wage-hour laws, such as FLSA, to pay for such time.

Masks

The kind of mask, face covering, etc., that is permitted is specifically laid out by OSHA in its ETS. It does not include the more informal kinds of coverings we’ve become used to seeing such as neck buffs. It also does not include an otherwise acceptable mask when worn with the nose or mouth exposed. Employers must ensure that workers who are required to wear masks actually wear them such that they cover the person’s nose and mouth.

Employers need not provide masks to unvaccinated individuals. Employers need not pay for masks. Employers need not form-fit masks.

Unvaccinated individuals need not wear a face covering for the limited time it takes to eat or drink or while alone in a room with proper physical protections, such as closed door, ventilation, etc.

Employees may choose to wear more protective types of masks, such as respirators, if they choose; likewise, fully vaccinated individuals must be allowed to wear masks and face coverings if they would like, even though their vaccination status relieves them of the need to do so.

Paid Time-Off (PTO) or Sick Leave

A reasonable amount of paid time-off (PTO) or sick leave must be provided to be vaccinated and to recover.

To be vaccinated, the time off cannot be substituted with other paid time-off (PTO, vacation or sick leave that the employee might have. It must be fresh paid time off on top of whatever other time off the employee might have accrued. However, it can be capped at 4 hours, even if in a given location it will take the worker longer.

Paid time off to recover after the vaccine can be provided in the form of already-accrued PTO/vacation/sick leave, unless the individual has no such time available, in which case, even if the individual had such a policy available to them but has just used it all, additional fresh time must be provided for recovery. The ETS does not have a formal cap for recovery time, but in its preface, OSHA says it presumes no more than 2 days is reasonable.

Employers need not pay employees who have already been vaccinated for such times. The paid time off provisions are not retroactive.

Employers need not pay other costs related to vaccination, even travel costs for employees in remote locations.

Removal from the Workplace Following Positive Test

As noted, the company’s policy must require workers to promptly report a positive COVID-19 test. This is true whether the test was conducted as part of the weekly test-in-lieu-of-vaccine requirement or otherwise. For example, a non-symptomatic worker who experiences a positive test as part of their personal travel plans (who has to be tested for example prior to boarding a flight to a foreign country for vacation) would have to report the positive.

Any individual who has COVID-19, including as confirmed by a positive test, must be removed from the workplace. Under certain conditions they might be allowed to work not around anyone else, such as from home.

Employees may not be allowed to return to work until:

  • A negative nucleic acid amplification test (NAAT) that follows a positive antigen test.
  • The employee completes then-current CDC guidelines for isolation, which at this time are:
    • If the employee has no symptoms, 10 days following their positive test,
    • Or, if the employee has had symptoms, the later of 10 days following the onset of symptoms, 24 hours without a fever (unmedicated) and improving other symptoms (not necessarily including loss of taste or smell, which can last much longer),
    • Or, if the employee is released to return to work by a licensed healthcare provider.

Employers are not required — unless otherwise required — to pay for time away from work, though employees may of course use such time as they may have, including PTO/vacation/sick leave. OSHA notes that nothing in the ETS prohibits employees from claiming such time under workers comp laws if the employee can otherwise establish an entitlement to a work-related exposure workers comp claim.

Preemption of State and Local Laws, State OSHA Plans

This ETS is implemented as a law with what is called field preemption. Therefore, it preempts all less-strict or contrary state and local laws. It specifically preempts therefore state laws that conflict with the Biden vaccine mandates, prohibit vaccine passports in the workplace, and prohibit vaccination inquiries in the workplace. OSHA expressly notes this its ETS invalidates laws in at least Arkansa, Arizona, Florida, Montana, and Texas.

States that have their own state OSHA plans and their own state OSHA-type agencies are now required to develop and implement their own variations of the ETS, which must be no less protectful than OSHA’s. State plans must be approved by OSHA itself.

Production of Required Records

Employers must be prepared to produce its policies and roster within 4 hours of request by OSHA, and within end of next business day of a request by an employee or their representative (generally, their union). That roster should reflect employees broken down by their workplaces. Upon request by the Secretary of Labor, all other documents related to this ETS must be provided no later than end of next business day.

Cost of Compliance?

In perhaps the greatest understatement of all time, OSHA anticipates the cost of complying with its ETS, per covered employer, on average across all industries, will be $11,298, for a total nationwide cost of $2,981,347,368. In other words, even at an inconceivable unrealistic low of $11,298 per company, OSHA concedes its ETS is likely to cost $2.9-billion.

Those numbers do not include costs incurred by employees, for example, for testing in lieu of vaccination, which may cost on average $100 per test and as noted above are required weekly for such individuals. In other words, an individual who seeks an exemption from the vaccine mandate due to religious reasons may be coming out of their own pocket to pay more than $2,500 for testing over the course of the ETS’ expected 6-month lifespan, with additional expenditures to ensure they are always wearing a clean and compliant mask while at work.  As noted above, though, OSHA has explicitly said its choice was entirely to disincentivize employees from availing themselves of any option other than vaccination.

Work From Home After The Pandemic?

In an interesting aside, in its preface to the ETS, OSHA reviews recent surveys trying to predict how common work-from-home is likely to be after the pandemic. OSHA looks in particular at one report predicting that, after the pandemic, 22% of full work days post-pandemic will be worked from home, up from 5% pre-pandemic.

States start suing federal government over President Biden’s vaccine mandates

As expected, states have not only begun passing new laws as well as their own executive orders to oppose President Biden’s vaccine mandates but are now suing the federal government. The following ten states just filed one lawsuit in Missouri: Arkansas, Alaska, Missouri, Iowa, Montana, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. Seven states filed a separate lawsuit in Georgia: Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia. And Texas filed its own lawsuit in Texas, as Florida has in Florida.

So far the lawsuits focus on the President’s mandate for government contractors, which the White House perhaps not coincidentally simultaneously has begun to potentially soften.

The OSHA rule to implement the President’s mandate for employers of 100 or more  was expected to be issued as early as this week; however, it is now being widely reported that business groups are asking the White House to consider holding off until after the holidays as implementation during the holidays is, they contend, not feasible.

Employers are reminded that President Biden’s mandates remain Executive Orders (unless frozen or otherwise impacted by one of these lawsuits).

White House walks back a few possible steps from its government-contractor mandate

In one of his recent vaccine mandates, President Biden ordered all government contractors to have their personnel vaccinated by December 8, 2021, with permission arguably given later for exemptions for religious and disability accommodations. The federal government’s Safer Federal Workforce Task Force issued guidance affirming and fleshing out the mandate for government contractors. The mandate has by now been formally implemented into many government contracts pursuant to FAR 52.223-99, DFARS 252.223-7999, etc.

On October 27, 2021, White House Coronavirus Response Coordinaor Jeff Zients is widely reported as having walked back the mandate at least to some extent by saying December 8 was not a strict deadline — or in his reported words, not a “cliff” — and that the Whie House would permit some “flexibility.”

The Safer Federal Workforce Task Force then issued FAQs on its webpage that bring the December 8 deadline into question. To be sure, the FAQs warn, December 8 remains the deadline set in the President’s Executive Order, and a company’s failure to ensure that its covered workers be vaccinated or exempt due to a religious or disability accommodation remains grounds for contract termination, debarment, etc. However, the FAQs — although not its prior guidance — now suggest that:

  • An employee whose request for religious accommodation or disability accommodation may be able to be kept employed by the contractor while that request is being processed,
  • And, an employee who has not requested a religious or disability accommodation or who has been denied one may also be able to be employed for at least some limited period of time while a stepped process is employed attempting to start with counseling and education for the employee about vaccination.
  • Both employees would, at all times, be have to comply with masking and social distancing requirements, even if fully vaccinated individuals are exempt from such requirements due to the protection offered by the vaccine.
  • Additionally the FAQs note particular government agencies may impose heighted requirements above and beyond those otherwise applicable in government buildings and under applicable state and local requirements.

How will that actually work? The White House and Task Force offer no specifics. Hopefully, they will provide some sort of detailed step-by-step process employers can follow to comply with this increasingly unclear mandate. Until then, government contractors are reminded that, despite these new softer words from the White House and Task Force, the President’s Executive Order remains the law. Employers who fail to meet the December 8 deadline risk severe penalties including contract termination and future debarment.

Texas joins Montana in conflict against Biden vaccine mandates

By Executive Order of its Governor, Texas has joined Montana in an on-going conflict against the recent vaccine mandates announced by President Biden. But how direct are these conflicts? While certainly direct enough to ensure significant litigation in both states, there appears to be some room for some form of compliance with the Biden mandates, especially in Texas. Hopefully litigation will strike the state bans (or clearly rule, in reverse, that they somehow supersede the Biden mandates), so that employers (and employees) have clarity as to vaccine-related rights and obligations in these states; however, until and unless that occurs, these state laws are likely to create significant confusion as each law leaves significant room for partial compliance with the federal mandates.

The Texas Governor’s Executive Order is likely to be followed by a new statute from its legislature. Indeed, the Governor has already added it to the legislature’s agenda in an upcoming special session. Until then, it provides, as follows:

No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.

Thus, unless modified by the legislature in its upcoming special session, it appears that while Texas’ new law does apply to private employers, it does not prohibit them from complying with the Biden mandates. Rather, it expands an employee’s ability to demand exemption from a mandate. It is anticipated that all of the Biden mandates will likely permit reasonable accommodations, including exemptions, on the basis of religion and disability. This new Texas law appears to simply add/expand exemptions in Texas on the basis of “personal conscience” or “medical reasons, including prior recovery from COVID-19.” It is not clear how these compare to religion or disability. Is “personal conscience” broader than the already broad definition of “religion”? Are “medical reasons, including prior recovery from COVID-19” broader than “disability”?

The Montana ban flows from its legislature’s new law, House Bill 702. The Montana law adds “vaccination status” and a “vaccine passport” to its state’s EEO law’s definition of protected classes (along with race, etc.). It defines the phrase “vaccine passport” to include as an example a vaccine card. How does the Montana law square up to the Biden mandates? In its FAQ dated 9/29/2021, Montana dodges the question saying that, until the new OSHA rule comes out, its law is “in effect,” without explaining what that means.

The Montana law is already subject to multiple lawsuits seeking to strike it down. The Texas bill is sure to be challenged shortly in the courts.

Hopefully employers will soon obtain clarity from courts in these states. Until then, employers in both states (and any other state that joins this pool of confusion) should realize that neither Texas nor Montana’s state law flatly prohibits compliance with the Biden mandates. They may simply limit how or to what extent compliance is possible. Still both are clearly in direct enough conflict with the Biden mandates, it is likely courts will have to clarify these issues.

Tenth Circuit holds employer need not, under ADA, accommodate challenges that an employee’s disability imposes “outside the workplace unrelated to an essential function or a privilege of employment”

The Tenth Circuit recently decided a case involving an employee who required a flexible work schedule to do her job. She suffered from a disability related to her vision. She lived 60 miles from the workplace and relied on family and friends for rides to and from work. Her ability to make it to work on time proved a challenge. The company attempted to allow her to work a flexible work schedule, but that also proved unsuccessful, when her actual schedule became “erratic,” which “contributed to low patient satisfaction scores,” “less than stellar” performance evaluations. She sked the company to continue allowing her the flexible work schedule or even to work remotely full time. The company declined.

The Tenth Circuit held that her request to work remotely or on a flexible work schedule would, if granted, have accommodated “her transportation barrier (which was) a problem she faces outside the workplace unrelated to an essential job function or a privileged of employment.” The company could not control where she lived or when she was able to find rides with friends or family. She was in that sense like all employees, whether disabled or not, and nothing in the ADA imposes on an employer the obligation to grant accommodations that solve workers’ personal off-duty challenges. “(E)mployers have no obligation under the ADA to accommodate disabled employees for problems they face outside the workplace unrelated to the essential job functions of their positions or privileges of employment merely because they are disabled.”

Together with another recent Tenth Circuit case, the decision suggests how the courts may approach litigation that may arise as a result of the impact of the coronavirus pandemic on the workplace.

Source: Unrein v. PHC-Fort Morgan, Inc., — F.3d — (10th Cir. 4/8/2021).

EEOC issues guidance on vaccines

The EEOC issued guidance on vaccines, as subpart K of its Technical Assistance (FAQ) regarding coronavirus. The EEOC’s FAQ is not regulatory, it does not carry the weight of law, and it did not reach any specific conclusions. Rather, it included the EEOC’s current thinking that:

  • It may become possible, as vaccines begin to be available, for an employer to mandate vaccination as a condition of entry into the workplace if the company can establish business necessity and that failure to impose the requirement would pose a direct threat of harm to others or that employee’s own health.
  • The EEOC noted it may or may not also be possible for an employer to mandate vaccination as a condition of employment. In other words, the EEOC said that, while some employers may be able to require vaccination as a condition of physically entering the workplace, to terminate an un-vaccinated employee would require a higher showing to prove business necessity and direct threat. For example, such an employer would have to prove the inability to allow the worker to take leave, to work remotely, etc.
  • In both instances, an employer would have to provide a reasonable accommodation for an employee who declines vaccination
    • Regarding a disability, under the ADA, unless the employer can prove undue hardship, i.e., that “there is no way” to allow the worker into the workplace or just to keep their job without the vaccine, to take leave, if not even to work remotely, and/or
    • Regarding a sincerely held religious belief, under Title VII, unless it would impose more than a de minimis cost or burden to the company to provide such an accommodation.

The EEOC recommends that employers consider, in all circumstances, using a third-party medical contractor that expertly advise workers, obtain informed consent, and manage any questions as well as the administration of the vaccine, and the exchange of any information regarding genetics, within medical confidentiality, such that the worker would, once vaccinate, simply provide the company with documentation of having been vaccinated, ensuring no confidential information is shared with the company.

Employers should first be aware that the EEOC does not have jurisdiction over and did not opine on other federal or state laws, which may well be thornier restrictions for employers who feel required vaccines are needed in their workplaces. Further, multiple states have already begun the process of debating whether to legislate or simply regulate in this area.

Finally, it should be noted that the EEOC was discussing vaccines that have been “approved or authorized” by the FDA. Currently no vaccines have been “approved” by the FDA, some have received an emergency use “authorization.” The EEOC did not discuss the fact that, in the fact sheet supporting the current authorizations, the FDA specifically stated: “It is your choice to receive or not receive the Pfizer-BioNTech COVID-19 Vaccine.” While that statement seems to be limited to a patient’s choice in terms of their own medical care — not their employment rights — that statement’s importance has not yet been analyzed by the EEOC (or the courts).

Will employers be able to mandate vaccines?

Wondering if employers will be able to mandate vaccines? Long story, short, we don’t yet fully know. It is likely that employers will be able to mandate vaccines — at least as a condition of entry into some workplaces if not as a condition of continued employment — so long as it is required by a business necessity and so long as appropriate opt-outs are permitted especially for religious or disability reasons. Employers with unionized workforces may need to engage in bargaining with their unions, first, unless clear and unmistakable language in the CBA already allows unilateral action. However, federal and state officials throughout the country have said they are currently analyzing the issue and hope to issue guidance soon.

In the meantime, if you’re looking for a couple good reads on the subject as an introduction to these issues, you may want to start with two thought pieces on the issues: one by Holland & Hart attorney Brad Williams available here and the other by SHRM available here. With regard to just the EEO laws, especially Title VII’s religious protections and the ADA’s disability protections, interested readers may also like to review the EEOC’s 2009 thoughts from the H1N1 pandemic, especially question 13. Again, though, hopefully the EEOC, along with the DOL and the various state and local agencies, will all be updating their guidance shortly within the context of the current coronavirus pandemic.  

Stay tuned for future updates as guidance becomes available. 

Supreme Court reinforces anti-discrimination law’s ministerial exemption

In a 7-2 decision, the Supreme Court upheld religious elementary schools’ ability to otherwise-discriminate against teachers under the “ministerial” exemption. Title VII, the ADEA and other anti-discrimination laws recognize a ministerial exemption, consistent with the First Amendment, that permits a synagogue, for example, to require that its rabbi actually be Jewish and that she adhere faithfully to the synagogue’s interpretation of Judaism.

In this case two teachers sued for wrongful discharge. One alleged age discrimination, the other alleged disability discrimination. The schools responded that it need not prove the real reason for their discharges because neither were protected under either the age or disability discrimination laws, because both fell under the ministerial exemption. Neither teacher was a “minister” in the sense of being ordained, having the title of a minister, or having any religious education or formal training. However, both taught courses that included religion. Both had been instructed when hired and again during their employment that their individual faith and morals were essential components of their jobs performance. Both prayed with their students as part of their jobs. The majority of the Court held all of that was sufficient for both to fall within the ministerial exemption.

There is abundant record evidence that they both performed vital religious duties. Educating and forming students in the Catholic faith lay at the core of the mission of the schools where they taught, and their employment agreements and faculty handbooks specified in no uncertain terms that they were expected to help the schools carry out this mission and that their work would be evaluated to ensure that they were fulfilling that responsibility. As elementary school teachers responsible for providing instruction in all subjects, including religion, they were the members of the school staff who were entrusted most directly with the responsibility of educating their students in the faith. And not only were they obligated to provide instruction about the Catholic faith, but they were also expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith. They prayed with their students, attended Mass with the students, and prepared the children for their participation in other religious activities. …. Their titles did not include the term “minister,” and they had less formal religious training, but their core responsibilities as teachers of religion were essentially the same. And both their schools expressly saw them as playing a vital part in carrying out the mission of the church, and the schools’ definition and explanation of their roles is important. In a country with the religious diversity of the United States, judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition. A religious institution’s explanation of the role of such employees in the life of the religion in question is important.

Source: Our Lady of Guadalupe School v. Morrissey-Berru, case no. 19-267 (7/8/2020).

EEOC confirms coronavirus antibody testing not permitted as part of return-to-workplace program, although active-virus testing may be permitted

The EEOC updated its FAQ guidance with Q&A no. A7, advising that an employer may not require coronavirus antibody testing (which is the blood test done to see if the person’s blood suggests they were previously exposed to the virus sufficient to create antibodies) as part of a company’s return-to-workplace program. However the EEOC advised (1) this may change as the science develops and (2) an employer may be able to require active virus testing (which is commonly done with a nasal swab) if such testing is uniformly required and “job-related consistent with business necessity.”

A.7.  CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace? (6/17/20)

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.  Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test).  The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.

EEOC publishes YouTube webinar on ADA, Rehabilitation Act and coronavirus

The EEOC published a short 42-minute YouTube video on the ADA, Rehabilitation Act and coronavirus.  The webinar fleshes out the EEOC’s recent coronavirus guidance and identifies certain questions that it believes it is currently unable to answer, including the following:

  • Whether coronavirus (COVID-19) is or could be a disability protected by the ADA?

Questions addressed include, in addition to those raised in the above guidance:

  • Whether an employer can ask an employee if his/her family has tested positive for coronavirus? Here, the EEOC believes that question is too narrow, because it is limited to questions about the employee’s family and as such the EEOC says it believes the question might implicate the Genetic Information Nondiscrimination Act (GINA); therefore, the EEOC urges employers instead to ask if the employee has had any such contact with anyone whom he/she knows to have tested positive.
  • Whether an employer, when disclosing that someone has tested positive, can disclose that person’s identity? The EEOC repeats its position in its above guidance’s instruction that employers, upon learning of a positive coronavirus test result, have some ability to disclose the same within a true need-to-know basis, and that it may be able to disclose to co-workers that someone has tested positive, but it repeats the employer should not generally report the person’s identity. That is true, the EEOC says, even where coworkers may be guessing or attempting to guess at the person’s identity. It gives as an example that the company may report that a person is teleworking without telling his coworker’s that the reason for his absence from the workplace is a positive test result. Likewise the EEOC addresses the issue where an employer may be faced with a concern that disclosing something as general as “someone at this location” or “someone on the 4th floor” has tested positive, is not sufficient information for concerned coworkers; here too, the EEOC restates its position that, even in that situation, the employer should not disclose the person’s identity. 
  • Whether allowing workers to telework during the coronavirus crisis may be later used by a disabled worker requesting the right to telework after the coronavirus crisis? The EEOC answers flatly, no, the fact that an employer allows teleworking during this coronavirus crisis cannot be used as evidence that teleworking might be a reasonable accommodation outside the coronavirus crisis. However in an unhelpful muddling of its answer, the EEOC added that it “could” be somehow relevant to showing that telework was in general feasible at least in some circumstances, theoretically.

The EEOC says that, while teleworking, HR professionals and others with a need-to-know medical information must store information, even at home, in a confidential manner, including not leaving notes where they can be seen. In a frankly absurd moment, the EEOC actually recommends HR professionals consider writing their notes while teleworking “in code.”

The EEOC noted that, during the coronavirus crisis, employers may be having difficulty obtaining doctor’s notes related to ADA accommodation requests and suggests that employers consider whether other documentation might suffice — arguably at least until a doctor’s note becomes available — such as a “health insurance record” or “a prescription.”

While not particularly robust or helpful on some of those difficult questions — and adding to the confusion on some questions — the webinar is nonetheless recommended for HR professionals to review as soon as possible.

Expert testimony not required to prove a “disability,” some of the times

The Tenth Circuit held that a plaintiff doesn’t always need to have a medical expert to confirm the plaintiff’s medical condition rises to the level of a “disability” protected by the Americans with Disabilities Act.

When is a medical expert required? “(W)]here injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof,” and that question needs to be asked by each court in each individual case. This seemingly circular standard — expert medical testimony is required when it is necessary to understand the medical condition — was somewhat clarified by the Tenth Circuit when the Court contrasted such cases, at least, against those where the disability is “obvious.”

In short, the Tenth Circuit’s decision makes clear that expert medical testimony is likely always helpful to a plaintiff, might sometimes be required but isn’t always, and no plaintiff, or defendant, will know until the trial court, after undertaking a case-by-case analysis decides in any given case.

Source: Tesone v. Empire Marketing Strategies, case no. 19-1026 (10th Cir. 11/8/19).

Transfer to new supervisor held not a “reasonable accommodation”

What if a disabled employee’s preferred accommodation is to be transferred to a new supervisor? In a recent Pennyslvania case, the Third Circuit held that an employer was within its rights to deny such a request as it would not have been a “reasonable accommodation” required under the ADA (the Americans with Disabilities Act).

The Third Circuit observed that the employer had met its obligation to engage in the ADA’s required “interactive process” by exploring the disabled worker’s purported need for accommodation. The company had “met with her, considered her requests, and offered several accommodations, including a part-time work schedule.” The worker had, in turn, rejected all efforts to reach an accommodation. The Court observed that she was simply “unwilling to agree to any accommodation that included continued supervision by” her supervisor. The Court rejected her request for a new supervisor, holding it was not required by the ADA, and noting further that courts are not authorized by the ADA to restructure the terms of employment.

Source: Sessoms v. Univ. of Penn., case no. 17-2369 (3rd Cir. 6/20/18).

Tenth Circuit reaffirms indefinite leave request is not a reasonable accommodation

The Tenth Circuit recently reaffirmed that a request for indefinite leave is not a reasonable accommodation under the ADA. Although the plaintiff provided some information about her need for leave, she failed to provide any sense of the anticipated duration of her disability. Instead she “informed her supervisor at Kelly on a Monday morning that she planned ‘not to come to work this week at all’ and indicated she would need additional time off for ‘some appointments and tests’ and for ‘five times of radiation.’” The Tenth Circuit held that was insufficient.

The accommodation Plaintiff requested would have required GE either to go without someone working at the receptionist position it had contracted with Kelly to staff (requiring others at GE to take over Plaintiff’s duties at the receptionist desk while still carrying out their own job duties), or to accept a supertemporary employee or employees who would fill in for Plaintiff for the week she wanted off and for whichever other additional times she needed to take off for tests, appointments, “times of radiation,” and other cancer-related reasons, while letting Plaintiff return to take over her temporary job position whenever she was free and felt up to attending work.

The case is a good reminder to employers of the value (and legal requirement under the ADA) of the interactive process. By communicating with the plaintiff and hearing her full request, the employer was able to gauge the legal reasonableness of her request under the ADA and determine it to be insufficient.

Source: Punt v. Kelly Services

Tenth Circuit reaffirms disability and accommodation requirements

The Tenth Circuit reaffirmed the requirements an employer faces when a less than clear employee presents with a potential disability. In this case, the plaintiff had a pacemaker but otherwise no restrictions and needed no accommodations at work. He required a battery replacement to the pacemaker, and the procedure left him with an infection. He took FMLA leave then, while on leave, informed his employer he wouldn’t be able to return for an additional week after his FMLA leave expired.

He did not say he had a disability, but the Tenth Circuit held that the company knew enough to know that he did. The Tenth Circuit rejected the argument that, with his pacemaker, the plaintiff had no restrictions. The court noted that established ADA law requires courts to consider the plaintiff’s condition without the benefit of ameliorative treatments, like a pacemaker (medication, eyeglasses, etc.). But for the pacemaker, the court held that the company knew enough to know the plaintiff’s condition would have beenbad enough to constitute a protected disability.

With regard to the fact that he was entitled to no more FMLA leave, and with regard to the fact that he never actually asked for extra leave at the end of his FMLA leave, the Tenth Circuit held he’d effectively put the company on notice that it should have engaged in the ADA-required interactive process while he was on his FMLA leave. Even though he didn’t ask for extra leave, the company should have discussed with him whether his disability required a reasonable accommodation, and if it had done so, one potentially reasonable accommodation would have been an additional unpaid week’s leave.

Indeed, the facts of the case began even earlier with an OSHA investigation that the plaintiff maintained he’d been suspected of starting by anonymously complaining to OSHA. He sued for that as well, and the Tenth Circuit held that the foregoing, and other alleged conduct, could have been part of a claim for OSHA retaliation as well (under a Kansas law that recognizes such claims as public policy violations). Therefore, he was allowed to proceed on both his ADA and wrongful discharge claims.

The case is a good illustration to employers of the need to fully consider, in consultation with legal counsel, known information, even when a plaintiff seems otherwise fine, only suffers what seems to be a temporary setback and is himself less than clear about what he needs from the company.

Source: Yinger v. Postal Presort Inc., — F.3d —, case no. Court of Appeals, case no. No. 16-3239 (10th Cir. 6/8/17)

Beware asking one question too many

When the plaintiff applied for short-term disability benefits, he told the insurance company that he suffered from stress, anxiety and an addiction to prescribed narcotics. He was granted the requested medical leave of absence, took the leave, returned to work, received a write-up and resigned. He sued his employer for a number of alleged violations.

First, he claimed he’d been subjected to a hostile work environment because of his alleged disability. He said the hostile work environment included being “sarcastically belittled” and called “a baby.” The Court dismissed the claim, holding his allegations were not severe enough to violate the Americans with Disabilities Act (ADA), even if true.

Second, he claimed he’d been discriminated against because he’d been “regarded as” disabled when the company had allegedly required him to pass a drug test and to remain in the drug testing program for five years. The Court dismissed that claim as well, noting that he was the one who had asked for leave due to substance abuse and that the evidence established the employer treated others who did the same in the same way.

Finally, he argued that the company had wrongfully required him to disclose all legally prescribed medications he was using. Here, the Court held, if true, the employer had gone too far. The ADA strictly limits companies’ ability to request medical information, and the Court remanded the case for the lower court to determine what had actually happened. The Court noted that the f company could still provide it complied with the ADA’s rules. In short, the employer will have to prove it had a “business necessity” for the request and that the request was job-related given the plaintiff’s individual duties.

Employers are reminded to consult with experienced counsel when confronted with difficult cases involving leaves, disabilities, addiction and safety concerns.

The case was Williams v. FedEx Corporate Services, — F.3d — (10th Cir. 2/24/17).