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“Colorado employers continue to lose vast majority of cases to compel workers back on the job,” reports Denver Business Journal

As noted in prior blog posts, Colorado employers have been, and now continue to be, held liable for unemployment benefits in bulk of unemployment claims, despite calls to return to work.

“It has held remarkably steady between 16% and 18%,” Fitzgerald said of the total number of decisions that have gone for employers over the three-plus months the department has heard such disputes. “There’s a number of folks who are just not safe to return to a job regardless of the actions their employers take.”
— Read on www.bizjournals.com/

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 updates Q&A, specifically re employees with an underlying disability that puts them at “higher risk” re coronavirus

The EEOC updated its prior Q&A re coronavirus, adding three questions (numbered G3-G5) to address the needs of employees who already suffer from an underlying disability that, now, puts them at “higher risk” related to coronavirus.

First in questions G3-G4, the EEOC advises that an employer is obligated to consider whether a reasonable accommodation exists to permit such an individual to return to work once a request is made. Until a request is made, the employer has no obligation to consider the possibility of a reasonable accommodation. The EEOC explains too that the request need not be made formally — it may be made “in conversation or in writing” — and it need not be made by the employee themselves — it may be made by the employee “or a third party, such as an employee’s doctor.” Indeed the request need not even be a request, it is enough if the employee “let(s) the employer know that she needs a change for a reason related to” an underlying disability.

Question G4 confirms that an employer need not consider a reasonable accommodation even when the company knows the worker has an underlying disability that might put them at a “higher risk” related to coronavirus, until such a request is made. However where the employer is itself concerned that the employee’s disability might put them at a “higher risk” related to coronavirus, the employer cannot on its own initiative “exclude” the worker from work unless it can prove a “direct threat” to the worker’s own health (or the health of others) and, further, that the “direct threat” cannot be removed by reasonable accommodation, such as allowing “telework, leave, or reassignment” if reasonable. The EEOC discusses the possibility of showing such a “direct threat,” noting it “is a high standard,” with proof that “if, after going through all these steps (of considering the relevant risk, the possibility of reasonable accommodation, etc.), the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.”

Question G5 discusses possible accommodations that should be considered by an employer and worker in trying to determine if a reasonable accommodation might exist to permit a worker with an underlying disability to work despite a “higher risk” related to coronavirus (emphasis added).

Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace.  Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others.  Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position).  In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

These are only a few ideas.  Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace.  An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations.  As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.

EEOC issues guidance re Pandemic Preparedness in the Workplace

The EEOC issued a guidance entitled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. While the guidance does not answer some of the more difficult questions posed in the current coronavirus crisis, it does provide guidance on at least some questions employers are facing and are likely to face, including the following:

  • Before an influenza pandemic occurs, may an ADA-covered employer ask an employee to disclose if he or she has a compromised immune system or chronic health condition that the CDC says could make him or her more susceptible to complications of influenza?

No. …

  • Are there ADA-compliant ways for employers to identify which employees are more likely to be unavailable for work in the event of a pandemic?

Yes. …

Below is a sample ADA-compliant survey that can be given to employees to anticipate absenteeism.

ADA-COMPLIANT PRE-PANDEMIC EMPLOYEE SURVEY

Directions: Answer “yes” to the whole question without specifying the factor that applies to you. Simply check “yes” or “no” at the bottom of the page.

In the event of a pandemic, would you be unable to come to work because of any one of the following reasons:

    • If schools or day-care centers were closed, you would need to care for a child;
    • If other services were unavailable, you would need to care for other dependents;
    • If public transport were sporadic or unavailable, you would be unable to travel to work; and/or;
    • If you or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).

Answer: YES______ , NO_______

  • May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?

Yes. …

  • During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?

ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. …

  • When an employee returns from travel during a pandemic, must an employer wait until the employee develops influenza symptoms to ask questions about exposure to pandemic influenza during the trip?

No. …

  • During a pandemic, may an ADA-covered employer ask employees who do not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to influenza complications?

No. …

Employers should take the time to review the EEOC’s guidance and familiarize themselves with the nuances of the EEOC’s carefully worded answers. In the foregoing summaries, for brevity’s sake, only the EEOC’s conclusions (like “No”) are cited, but the EEOC’s answers, as indicated by the ellipses (“…”) proceed to qualify its answers.

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).

Tenth Circuit reaffirms Adverse Employment Action element of discrimination claims, including failure-to-accommodate claims under the ADA

The Tenth Circuit reaffirmed that plaintiffs must prove they suffered an Adverse Employment Action in all discrimination claims, including claims alleging a failure to accommodate under the ADA.

(A)n adverse employment action is an element of a failure-to-accommodate claim 
To establish an Adverse Employment Action, the plaintiff must prove more than that she suffered a “a mere inconvenience or an alteration of job responsibilities.” Rather, the Tenth Circuit held she must prove that she suffered harm to “a term, condition, or privilege of employment.”