In a decision issued on June 15, 2020, the U.S. Supreme Court held in the case of Bostock v. Clayton County that Title VII of the federal Civil Rights Act of 1964 prohibits employment discrimination against individuals on the basis of their sexual orientation or transgender status.
By Bello Welsh LLP
- What safeguards should employers consider implementing to protect employees (and customers, visitors, and vendors) after state and local authorities allow non-essential businesses to reopen?
- Develop an infectious disease preparedness and response plan
- Identify a workplace coordinator responsible for COVID-19 issues
- Identify which workers, customers, individuals may be exposed (or transmit), or where within the work place such exposure/transmission may occur
- Develop contingency plans
- Increased rate of worker absenteeism
- Need for social distancing, staggered work shifts, and other exposure-reducing measures
- Need to modify existing supply chains
- Actively encourage sick employees to stay home
- Review policies and consider implementing new policies (see Q&A 13, below) to make sure that policies and practices are consistent with public health recommendations, as well as applicable laws
- Support respiratory etiquette and hygiene
- Increase environmental cleaning and disinfection
- Maintain a healthy work environment (for example, improving building ventilation systems)
- Does fear of contracting COVID-19 justify an employee’s refusal to work on-site?
An employee’s fear about contracting the virus will not typically justify a refusal to work, unless the fear is related to a serious health condition. In that circumstance, the employee could be eligible for traditional FMLA leave subject to the normal notice and certification process, but only if the underlying condition would independently be eligible for FMLA leave.
That said, while not likely, an employee could refuse to work if he/she has a good faith, reasonable, and demonstrable fear that they are in “imminent danger” of immediate death or serious physical harm. According to OSHA and as applicable to COVID-19, the following conditions must be met before a hazard becomes an imminent danger:
- There must be a threat of death or serious physical harm. “Serious physical harm” means that a part of the body is damaged so severely that it cannot be used or cannot be used very well.
- For a health hazard there must be a reasonable expectation that toxic substances or other health hazards are present and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency. The harm caused by the health hazard does not have to happen immediately.
- The threat must be immediate or imminent. This means that the employee must believe that death or serious physical harm could occur within a short time, for example before OSHA could investigate and remedy the situation.
There also is the potential that employees could cite to the protections for “concerted” activity as a basis for refusing to work. Section 7 of the National Labor Relations Act (NLRA) extends broad-based statutory protection to employees who engage in “protected concerted activity for mutual aid or protection.” This protection, which applies in both union and non-union environments, include circumstances in which two or more employees act together to improve their employment terms and conditions and could encompass situations where employees participated in a “concerted refusal” to work in unsafe conditions. If this situation presents itself, we strongly recommend consulting legal counsel before taking any action.
- Can an employer discipline or terminate an employee who refuses to report to work from a generalized fear of contracting COVID-19?
Generally, an employer may discipline or terminate a worker who refuses to work (or return to work). While in ordinary circumstances this would be deemed a resignation and disqualify the individual from receiving unemployment benefits, it remains to be seen how unemployment agencies will handle such cases in the context of COVID-19.
- Does the previous answer change if the employee refused to return to work for one of the reasons identified in the “CARES” Act that provides eligibility for unemployment benefits?
Probably not. Eligibility for unemployment is a distinct issue from the right to discipline or terminate an individual. The Coronovirus Aid, Relief, and Economic Security Act (“CARES Act”) provides for Pandemic Unemployment Assistance (“PUA”) for individuals who certify that they are otherwise able and available to work (within the meaning of state law), but are unemployed, partially unemployed, or unable or unavailable to work for a wide range of reasons related to COVID-19. For more information about expanded eligibility for unemployment benefits under the CARES Act, please see our Alert dated March 30th on this topic. That said, employers should consider the practical “fall-out” from terminating an individual in such circumstances in terms of employee relations, social media about the company, and the like.
- What if the employee refuses to return to work because he or she is in a high-risk group, such as over the age of 65 or with an underlying health condition?
This is a complex subject as it requires balancing obligations and rights in a way that is highly dependent on the facts of the situation. In the case of an underlying health condition, an employer would be required to explore reasonable accommodations for an employee who refuses to report to work because of a health condition that meets the definition of a “disability.” In accordance with EEOC guidance, accommodations could include: increasing distancing or installing barriers that reduce the chances of exposure; elimination of marginal job duties; temporary transfers to a different position; or modifying a work schedule or shift assignment. Employers may also choose to place an end date on the accommodation. An employer may also grant an accommodation on a temporary basis until, for example, government recommendations on social distancing are relaxed. These situations are highly fact specific, and you should consult with legal counsel if this type of scenario presents itself.
- Can employees insist that they be allowed to continue working remotely?
In most circumstances, no. There could be situations, however, where an employer would need to consider work from home as a reasonable accommodation for a “disability” under the ADA or applicable state law. To date, neither the EEOC nor the Massachusetts Commission Against Discrimination has provided guidance as to whether either would consider COVID-19 to be a “disability,” in and of itself. It is likely that there will not be a single answer to this question, and it may well depend on the severity and longevity of the COVID-19 infection for an individual. Again, if this situation presents itself, you should consult legal counsel before taking action.
- May employers implement health screening protocols before allowing employees to return to the workplace?
Yes, to determine whether those entering the workplace would pose a direct threat to health in the workplace. Appropriate health screening protocols may include asking about symptoms, taking workers’ temperature, and conducting or requiring COVID-19 tests.
Symptom screening: Employers may ask all who enter the workplace whether they have exhibited COVID-19 symptoms. When asking about specific symptoms, employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease.
Temperature taking: Although measuring an employee’s body temperature is generally considered to be a prohibited medical examination, because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
Employers that decide to take the temperature of those entering the workplace should consider various related logistical issues, such as: what type of device to use; who will be the temperature taker; what type of protective equipment should the temperature taker wear; and how to protect the health and confidentiality of the employees being tested.
COVID-19 testing: Yes. Although a COVID-19 test will be deemed a “medical test” and therefore it must be “job related and consistent with business necessity,” the latest guidance from EEOC is such tests are permissible.
Employers of course should ensure that the tests are accurate and reliable. For example, employers should review guidance from the FDA about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates.
Employers may also ask that employees have a COVID-19 test taken elsewhere, with the results presented to the employer before entering the workplace. The employer will be required to pay for the test.
Antibody testing: There is no specific guidance yet regarding whether an employer can take or require an antibody test, although ultimately, as the science around antibody testing develops, this is likely to be subject to the same standard as a COVID test. At this time, however, there remains substantial medical debate about whether the presence of COVID-19 antibodies means that the person with the antibodies is immune and, if so, how long the immunity lasts. And, although the FDA has approved certain antibody tests under its “emergency use” authority, as of yet, these tests have not been subject to rigorous validation studies. Further, the presence of antibodies does not rule out that the individual with antibodies has a current COVID-19 infection. Given the uncertainty, we recommend caution in this area, and further consultation before implementing this form of testing.
For information about maintaining the confidentiality of the results of health screenings, see Q&A 11 and 12, below.
- May an employer who implements health screening protocols before allowing employees to return to the workplace limit the screening protocols to high-risk individuals?
Likely no. Limiting screening to individuals who otherwise are protected by anti-discrimination laws, such as individuals over a certain age, who are pregnant, or who have underlying medical conditions, will be viewed by the EEOC and similar state agencies as unlawful discrimination.
- If an employee has symptoms of COVID-19 such as a fever, chills, or other symptoms recognized by the CDC or other governmental health authorities, can an employer send the individual home and when can they return to work?
Yes. Although an employee has a fever or other symptoms common to COVID-19, employers may (and should) send the employee home.
Current CDC guidelines indicate that individuals with COVID-19 who have self-isolated may leave isolation after having no fever for 72 hours without the use of fever-reducing medication, other symptoms have improved, and 7 days have passed since symptoms first developed. The most common period of time before an individual should return to work is, therefore, 14 days. We are unaware of any guidance from the CDC that directs how long an individual should self-isolate after having a fever but experiencing no other symptoms of COVID-19.
- May employers discipline employees who fail to follow employer-imposed safety policies/guidelines (including refusing to allow health screening)?
Yes, but of course discipline should be implemented in a manner unrelated to any protected status. For example, an employer may not discipline a “high-risk” individual (i.e., an older worker or one with an underlying medical condition) who refuses to follow safety guidelines, but not respond in a similar manner to an employee engaged in the same conduct who is deemed “low risk.”
- May an employer maintain records relating to health screening and, if so, how should these records be maintained?
Employers may- and should- maintain records of health screenings, including an employee’s statement that they have or suspect they may have the disease, or the employer’s notes or other documentation from questioning an employee about symptoms. However, as is required under the ADA, all medical information about a particular employee should be stored separately from the employee’s personnel file, and access should be limited.
- May an employer disclose the name of a worker who tests positive for COVID-19?
The answer to this is complicated, as the ADA and FMLA both prohibit the disclosure of information regarding the medical condition or history of an employee. Accordingly, many advisors recommend that employers disclose that a co-worker or visitor to the workplace has tested positive or been exposed to COVID-19 without disclosing any identities.
This unfortunately can conflict with efforts to control the potential spread of COVID-19. It is important from a public health perspective that those who have been in close contact with a person infected with COVID-19 be given sufficient information so they can take precautions to minimize the risk posed to themselves and others with whom they have close contact. We recommend that an employer seek permission from an infected individual to disclose his or her identify; if permission is refused, the employer should consider whether the public health benefit outweighs the risk. Consulting with legal counsel in such situations is strongly advised.
An employer also should ask an employee who has tested positive for COVID-19 for a list of all individuals with whom he or she came into contact in the workplace over the prior 14 days, as well as office areas and shared spaces visited. The fact that another individual has potentially been exposed should then be disclosed to anyone in the workplace who may have had contact with the infected individual, or who may have visited the same spaces within the offices over the prior few days (without necessarily disclosing the identity of the infected individual).
- What policies should employers consider implementing or updating as employees begin to return to the workplace?
Employers should review current policies and practices and/or implement new policies and practices, consistent with public health recommendations and applicable laws, relating to the following topics:
- Sick leave.
- Flexible work arrangements. This includes alternate worksites (telework), hours (staggered shifts), and meeting and travel options.
- Health and workplace safety standards, including physical layout (separating work-spaces to maintain distance), environmental controls, and personal protective equipment.
- Stagger scheduled breaks and presence in common areas (cafeterias).
- Are the circumstances of the pandemic relevant to whether a requested accommodation can be denied because it poses an undue hardship?
In general, an employer does not have to provide a reasonable accommodation if doing so poses an “undue hardship,” which means “significant difficulty or expense.” However, it is becoming clear that this concept, which has been interpreted narrowly and strictly by the EEOC and courts, will be applied more flexibly in the COVID context. The EEOC itself has published guidelines reflecting that an accommodation that would not have posed an undue hardship outside of the pandemic may pose one now. For example, EEOC has reflected that it may be significantly more difficult now to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Similarly, EEOC has noted that it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. Also, prior to the COVID-19 pandemic, the EEOC and courts typically found that most accommodations do not pose a significant expense when considered against an employer’s overall budget and resources. But, even the EEOC concedes that the sudden loss of some or all of an employer’s income stream because of this pandemic is now relevant, as are the availability of discretionary funds. If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.
EEOC recently published its Strategic Enforcement Plan (SEP) for Fiscal Years 2017-2021, in which it outlines the areas in which it intends to focus its strategic litigation and enforcement activities in the coming years. Not surprisingly, the EEOC indicates that it intends to expend significant resources on understanding and protecting temporary employees and members of the gig workforce.
As described in the SEP, EEOC’s substantive priorities for Fiscal Years 2017-2021 are: Read more
The U.S. Equal Employment Opportunity Commission (EEOC) has released proposed Enforcement Guidance on Retaliation and Related Issues. This proposed guidance provides insight as to how the EEOC interprets applicable law and hints at the areas that may receive increased focus going forward.
Existing federal employment laws prohibit employers from retaliating against applicants or employees for exercising rights protected by fair employment practice laws. This protected activity includes an employee’s opposition to a practice believed to be unlawful, such as complaining about discrimination or refusing an order believed to be discriminatory. It also includes participation in an employment discrimination proceeding, such as submitting a complaint, filing a charge of discrimination, or participating in an investigation of discrimination.
Retaliation claims may be brought under every law that the EEOC enforces, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Equal Pay Act, and others. The percentage of retaliation charges has increased significantly in recent years, constituting about 42% of charges filed with the EEOC in 2014, making it the most frequently alleged violation by complainants. Importantly, retaliation may be found even when the underlying claim of discrimination is ruled to be without merit. For example, if an employee files a complaint erroneously alleging sexual harassment in the workplace, but is fired because she filed the complaint, she could be successful in a claim of retaliation, despite the fact that no harassment occurred.
The proposed guidance does little to change current law. It does, however, update prior guidance published in 1998. After defining retaliation and outlining the three elements of a retaliation claim, the guidance provides an updated overview of relevant case law. The guidance also expands on the examples of retaliation given in the 1998 publication, and provides examples of both lawful employer action and unlawful retaliation. In addition to updating these sections, the proposed guidance includes a new section with five “best practices” for employers to implement to minimize the likelihood of retaliation violations. These best practices are:
- Designing and implementing written employer policies that include clear examples of both legal and illegal behavior and a reporting mechanism for potential or perceived retaliation;
- Providing training on anti-retaliation policies for all employees;
- Providing support for managers and supervisors to improve responses to complaints of retaliation;
- Implementing a follow-up procedure to check in with employees after a complaint has been filed; and
- Designating an individual to review proposed adverse employment decisions before action is taken.
The EEOC is requesting public input during the 30-day comment period ending February 24. The proposed guidance may be viewed here.
Today, the U.S. Equal Employment Opportunity Commission (EEOC) issued a proposed revision to the Employer Information Report (EEO-1) to include the annual collection and reporting of pay data. Currently, federal law requires federal contractors with 50 or more employees, and all other employers with 100 or more employees, to file an annual EEO-1 report, which reports employees’ ethnicity, race, and sex by job category. The revised EEO-1 would require all employers with 100 or more employees to continue to collect and report this demographic data and, in addition, pay data. Federal contractors with between 50 and 99 employees would not be required to report pay data, but would continue to report ethnicity, race, and sex.
According to the press release published announcing this new requirement, the data collected will be used by both the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) “to assess complaints of discrimination, focus agency investigations, and identify existing pay disparities that may warrant further examination.” In addition, as described in an EEOC- published “Questions and Answer” document, the data will be aggregated and published, to “help employers evaluate their own pay practices to prevent pay discrimination in their workplaces.”
A “Small Business Fact Sheet” provides a detailed description of the data that would be collected if the proposal becomes law. In summary, using W-2 wage data employers would tally and report the number of employees within each EEO-1 job category whose W-2 pay for twelve months was in one of twelve “pay bands.” These pay bands, which would track the twelve pay bands used by the Bureau of Labor Statistics in the Occupation Employment Statistics survey, are:
- $19,239 and under;
- $19,240 – $24,439;
- $24,440 – $30,679;
- $30,680 – $38,999;
- $39,000 – $49,919;
- $49,920 – $62,919;
- $62,920 – $80,079;
- $80,080 – $101,919;
- $101,920 – $128,959;
- $128,960 – $163,799;
- $163,800 – $207,999; and
- $208,000 and over.
In addition to reporting (by ethnicity, race and sex) the number of employees whose total W-2 pay fell into each pay band, employers would also tally and report the total number of hours worked by the employees counted in each pay band over the prior twelve months. This would accounts for part-time or partial-year employment.
Members of the public may submit comments through April 1, 2016. Barring revision or withdrawal of the proposal, employers will be required to comply with the new EEO-1 obligations by submit ting pay data as of the September 30, 2017 EEO-1 filing deadline.
The EEOC also The proposed revised EEO-1 may be viewed here.
In a much anticipated decision, the United States Supreme Court today held that Abercrombie & Fitch violated the prohibition against religious discrimination, as set forth in Title VII of the Civil Rights Act of 1964, by refusing to hire a Muslim applicant who wore a headscarf (a hijab) during a job interview. In so holding, the Court rejected Abercrombie & Fitch’s argument that an employer cannot be liable for discrimination unless it can be shown that the employer had actual knowledge of the applicant’s need for a religious accommodation. Instead, the Court stated, an employer violates Title VII if its actions are motivated by a desire to avoid accommodating a religious practice even if the employer is not certain that an accommodation will be needed. Importantly, the Court left for another day the question whether an employer may be liable under Title VII if it has neither knowledge nor suspicion that an applicant or employee may require a religious accommodation.
Early in March, the Wall Street Journal reported that the Securities and Exchange Commission had begun to probe “whether companies are muzzling corporate whistleblowers” through the use of confidentiality agreements that may impede employees from disclosing corporate wrongdoing. As reported, the SEC sent letters to a number of companies asking them to turn over “every nondisclosure agreement, confidentiality agreement, severance agreement and settlement agreement they entered into with employees since Dodd-Frank went into effect, as well as documents related to corporate training on confidentiality…” The agency “also asked for ‘all documents that refer or relate to whistleblowing’ and a list of terminated employees.”
Early this week, the United States Supreme Court issued its much-anticipated decision in Young v. United Parcel Service, Inc., finding that UPS may have engaged in pregnancy discrimination by refusing to accommodate an employee’s pregnancy-related lifting restrictions by transferring her to a light duty position. In so holding, the Supreme Court applied the same legal standard to pregnancy discrimination cases as applies to cases based other categories protected under Title VII (race, sex, religion, ethnicity, and the like). Specifically, the Court applied the burden-shifting analysis articulated in McDonnell Douglas v. Green and its progeny, pursuant to which the plaintiff first must establish that the facts alleged are adequate to support her claim. Thereafter, the employer is given the opportunity to articulate a legitimate, nondiscriminatory reason for its action, which reason the plaintiff must show is merely a pretext for discrimination before she may proceed to trial. Read more
The Equal Employment Opportunity Commission (“EEOC”) recently issued an enforcement guidance relating to the treatment of pregnant employees (the “Guidance”). The Guidance reaffirms the EEOC’s position that, although pregnancy itself is not a disability under the Americans with Disabilities Act (“ADA”), many temporary pregnancy-related impairments may qualify as disabilities. Temporary impairments that may qualify as disabilities include, for example, carpel tunnel syndrome, gestational diabetes, preeclampsia, and even nausea resulting in severe dehydration. Per the EEOC, therefore, employers may be required to offer reasonable accommodations to employees with such pregnancy-related impairments.
On June 30, 2014, the Equal Employment Opportunity Commission touted its recent agreement with Princeton HealthCare System to settle litigation challenging PCHS’s “inflexible” leave of absence policy under the Americans with Disabilities Act.
According to the press release published by the EEOC, PHCS maintained a fixed leave policy whereby employees were terminated if they were unable to return to work at the end of FMLA-covered leaves of absence, or after a shorter period if ineligible for Family and Medical Leave Act-related leave. This blanket policy, the EEOC asserts, violates the ADA because it fails to consider leave as a reasonable accommodation. To settle the case, PCHS will pay $1,350,000 and eliminate its inflexible leave policy. The EEOC press release also celebrates of “significant resolutions of EEOC cases involving leave and attendance policies, including its settlements with Interstate Distributor, Supervalu, Sears and Verizon. Read more
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