Interesting claims have started to emerge nearly 10 months into the COVID-19 pandemic as the number of COVID-19-related employment complaints filed approaches 1,000. For a detailed analysis, please see our colleagues’ article by clicking here.
After being issued more than 12 years ago, the Equal Employment Opportunity Commission (EEOC) voted to publish a proposed update to its Compliance Manual section on religious discrimination. Once published, it will be open and available for public comment. According to the EEOC, the updated guidance will reflect recent legal developments and emerging issues under Title VII of the Civil Rights Act of 1964 (Title VII) as they pertain to religious discrimination in the workplace, such as for example, potential reasonable accommodation issues for employees. Additionally, the updated guidance will address legal defenses which may be available to certain religious employers.
The guidance next will be sent to the Office of Management and Budget so that it will be posted for public comment. Please stay tuned to the Jackson Lewis webpage as well as www.eeoc.gov for further updates.
The Tenth Circuit recently held that a disabled employee was not required to show that she suffered a separate adverse employment action to establish a failure to accommodate claim under the American’s with Disabilities Act (ADA). Exby-Stolley v. Board of County Commissioners. Plaintiff alleged that the employer failed to accommodate her physical limitations, which stemmed from a workplace injury and which compelled her to resign. In the District Court’s post-trial instructions to the jury, the Court stated that Plaintiff must prove “[t]hat Plaintiff was discharged from employment or suffered another adverse employment action by Defendant . . .” The Circuit Court noted that the incorporation of this requirement was at odds with the Tenth Circuit precedent, the views of the Equal Employment Opportunity Commission, and decisions from other Circuit courts. The Tenth Circuit was reluctant to create a circuit split and held that the lower court erred in inserting the requirement of an adverse-employment action into the jury instructions. The Court distinguished a failure to accommodate claim from a disparate treatment claim. According to the Court, it would be illogical to require a plaintiff to show that the employer acted adversely (or took an adverse action) toward the employee in a failure to accommodate claim, where the crux of the claim is that the employer failed to act. Although the ADA’s language requires that the discrimination “affect employment or alter the conditions of the workplace,” the Court held that in failure to accommodate actions the statute does not require a specific adverse action, nor does it mean that there is no discrimination in the absence of a “significant change in employment status.”
The reasonable accommodation process is one that is always analyzed on a case-by-case basis, based on the particular employee’s job duties and medical information. Thus, when employers are faced with accommodation requests, it is recommended that counsel be included in the conversation because no two circumstances are exactly alike.
On August 27, 2020, Michigan Governor Gretchen Whitmer issued Executive Order 2020-172. The Executive Order affirms that employers are prohibited from discharging, disciplining, or retaliating against employees who stay home when they or their close contacts are sick.
However, the Executive Order redefines the “principal symptoms of COVID-19” as follows:
The principal symptoms of COVID-19 are (i) any one of the following not explained by a known medical or physical condition: fever, an uncontrolled cough, shortness of breath; or (ii) at least two of the following not explained by a known medical or physical condition: loss of taste or smell, muscle aches (“myalgia”), sore throat, severe headache, diarrhea, vomiting, abdominal pain.
This stricter standard of “not explained by a known medical or physical condition” makes clear that employees may be subject to disciplinary action if they remain home when COVID-like symptoms could be explained by a known medical or physical condition other than COVID-19 (e.g., allergies or a cold). A prior Executive Order defined the principal symptoms as “fever, sore throat, a new uncontrollable cough that causes difficulty breathing, diarrhea, vomiting, abdominal pain, new onset of a severe headache, and new loss of taste or smell.”
Although the Executive Order gives employers a bit more room to address attendance issues in the pandemic environment, employers must keep in mind that applicable law still protects employees against discrimination and retaliation due to a disability, which could include conditions with similar symptoms that are not COVID related.
Executive 2020-172 is effective immediately.
On August 14, 2020, the U.S. Department of Labor Office of Inspector General (“OIG”)—the Department’s watchdog—released a report finding that the COVID-19 global pandemic has significantly increased the number of whistleblower complaints received by the Occupational Safety and Health Administration (“OSHA”). OSHA’s Whistleblower Program enforces 23 statutes that prohibit employers from retaliating against employees when they report employer violations of various workplace safety, consumer product, environmental, financial reform, and securities laws.
In the report, the OIG noted that the pandemic has resulted in a 30% jump in whistleblower complaints during the four-month period of February 2020 through May 2020 as compared to the same period in 2019—from approximately 3,150 complaints in 2019 to approximately 4,100 in 2020. Of the whistleblower complaints filed from February 2020 through May 2020, approximately 1,600 (39%) were related to COVID-19, such as claims that someone was retaliated against for claiming violations of guidelines regarding social distancing or personal protective equipment.
The report also noted that a shortage of investigators, coupled with the increase in complaints, has caused delays in completing investigations. The OIG made three recommendations to OSHA: filling a handful of vacant whistleblower investigator positions, considering an extension of its pre-pandemic pilot program nationwide to more efficiently screen complaints, and creating a “caseload management plan” that improves the agency’s ability to evenly divide up investigations among its investigators.
The report serves as a reminder to employers of just one of the many risks present in the current environment. While whistleblower investigations might take longer than usual for the time being, the OIG report has brought COVID-19 workplace safety to the forefront and employers can expect OSHA to treat whistleblower complaints seriously. What can employers do to protect themselves? There is no fail safe solution, and in an environment like the current one, complaints are going to happen. Listening to the concerns of employees and following guidance from the CDC, OSHA, and state authorities will help employers minimize the risk.
The legal landscape has changed radically since the start of 2020. While COVID-19 has profoundly impacted the Golden State, and the world, new employment laws are still driving change for California employers.
Join Jackson Lewis P.C. on Wednesday July 29 at 10:00 a.m. PST for a mid-year employment law webinar, where we will share critical mid-year updates, provide an overview of key rulings, and discuss pending new laws for 2021.
- Mid-year reminders about local minimum wage increases and paid family leave benefits
- New ordinances and requirements instituted as a result of COVID-19
- Employment case updates, including status of independent contractors and employment arbitration agreements
- Pending state legislation relating to employment and employee benefits
Webinars are CLE-accredited in California, Illinois, New York, Missouri and Texas. We are also accredited providers of HRCI and SHRM
For more information and to register, click here.
Earlier this month, the Equal Employment Opportunity Commission (“EEOC”) updated its Technical Assistance Questions and Answers on COVID-19 issues to state that employers cannot require antibody testing of its employees before they return to work. The EEOC’s guidance came in response to the CDC’s earlier statement regarding antibody testing. In adding Question A.7, the EEOC stated: “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. ” The full set of EEOC Technical Assistance Questions and Answers can be found here.
Employers should continue to check for updates from the EEOC, the U.S. Department of Labor, OSHA, and your State’s Department of Health.
The New York District Office of the Equal Employment Opportunity Commission recently commented that it had received an increasing number of charges relating to the COVID-19 pandemic, all of which alleged violations of the reasonable accommodation mandate of the Americans with Disabilities Act (ADA). While the number of filings was not disclosed, the New York State Division of Human Rights and the City Commission also indicated a growing number of such complaints, many alleging refusal to recall workers with disabilities due to health and exposure. As States around the country re-open their economies, compliance efforts should focus upon the anti-discrimination and accommodation provisions of the ADA and similar non-federal statutes.
In a landmark ruling, the United States Supreme Court ruled that LGTBQ+ employees are protected from workplace discrimination under Title VII of the Civil Rights Act of 1964. An article by our colleagues discussing the case and its implications can be read here. A copy of The Court’s decision can be accessed here.
In what may be the beginning of a wave of post-COVID-19 lawsuits, a former Assistant Director of Nursing filed a whistleblower complaint against her employer, a long-term care facility. The lawsuit claims termination for raising concerns about alleged health and safety issues relating to, inter alia, staffing levels and the use of effective personal protective equipment. Retaliation claims are asserted under state law, which will vary in scope and remedies across the country.