Organizations will continue to be held accountable for diversity, equality and inclusion post-COVID-19 and in connection with the Black Lives Matter movement. The next few video chats in our series will help in-house counsel and HR executives who are working to build a strong corporate culture of professionalism and respect do so in a way
The US Supreme Court significantly altered federal anti-discrimination law in its landmark June ruling in Bostock v. Clayton County. This week’s video chat provides practical advice for employers following Bostock’s extension of anti-discrimination protections to LGBTQ employees and its interaction with employees’ religious beliefs.
Please click below to watch the video chat:
Welcome to Baker McKenzie’s new Labor & Employment video chat series for US employers, The Employer Rapport. Our lawyers will provide quick, practical tips on today’s most pressing issues for US employers navigating the new normal. The videos complement our blog, The Employer Report, which provides written legal updates and practical insights about …
America’s political divisions seem to be deepening. And, what’s troubling for employers is that our polarized political climate appears to be affecting employee productivity significantly, according to research by Gartner. According to a nationwide survey in February, 47% of employees reported that debate surrounding the 2020 elections is impacting their ability to get work done.…
On July 20, 2020, the Wage and Hour Division of the US Department of Labor (DOL) published additional COVID-19 guidance in the form of a Q&A addressing Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and Families First Coronavirus Relief Act (FFCRA) issues arising when employers and employees return to work.
A few days before, on July 17, the DOL published streamlined optional-use forms for employer and employee notification and certification obligations under the FMLA and separately asked the public to comment on the FMLA and its regulations in a Request for Information (RFI). The additional guidance and forms should help employers navigate FMLA leave and employee wage and hour issues during COVID-19. And employers now have the opportunity to share their thoughts on the FMLA and its implementing regulations with the DOL. We provide more insight into the DOL’s recent activity below.
On June 15, 2020, the US Supreme Court changed the face of federal workplace anti-discrimination laws. In Bostock v. Clayton County, the Court ruled that Title VII’s prohibition against job discrimination on the basis of “sex” includes sexual orientation and gender identity. Though Title VII of the Civil Rights Act of 1964 has long-prohibited employers from discriminating on the basis of color, national origin, race, religion, and sex, the question of whether sexual orientation and gender identity were included in the definition of “sex” went unsettled — until now.
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Justice Neil Gorsuch wrote for the court in the 6-3 opinion. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Justice Gorsuch and fellow conservative Chief Justice John Roberts joined liberal Justices Breyer, Ginsburg, Kagan, and Sotomayor in the majority.
On June 11 and June 17, 2020, the EEOC updated “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” its Q&A technical assistance guidance for COVID-19 related issues. The new guidance expands its previous guidance, answering additional questions on several topics, including COVID-19 antibody tests, “high risk” employees (which we blogged about here), accommodations for employee screenings, how to handle national origin discrimination, and whether an employer’s safety concerns permit the exclusion of pregnant or older people from the workplace. We have summarized the new Q&A below.
Disability-Related Inquiries and Medical Exams
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?
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.
Even though vacation plans may be hampered by face coverings and social distancing this summer, US employers are still likely to see requests for time off from employees who want to step away from sheltering-in-place and visit reopening regions. But while employers may agree that their employees should take a break from work, they shouldn’t agree to putting other employees or customers at higher risk of catching COVID-19 when a traveling employee returns.
What can US employers do-without crossing the line-to keep tabs on vacationing US employees? We address some common questions in the following Q&A.
Q. Can I ask my employees about their travel plans when they request vacation time? Or can I ask them where they went when they return from vacation?
A. Yes, you can ask employees requesting vacation time to disclose their travel plans (or ask employees where they traveled once they return). The key is to make sure the information you’re requesting is in accordance with business necessity and that you are asking for the information in a non-discriminatory manner.
Business necessity: Employers have a general duty under Section 5(a)(1) of the Occupational Safety and Health Act to ensure that the workplace is free from recognizable hazards likely to cause death or serious physical harm. Keeping the workplace and employees free from cases of COVID-19 provides the business justification employers need to ask where employees are going during their time off. If your workforce is still working remotely, you have a business justification to make sure your employee travels with a company laptop or other necessary equipment should the employee become stranded or be required to quarantine upon return. Employees may want to know why you’re asking about their personal vacation plans; be prepared to explain why you’re asking.
On May 20, 2020, Chicago passed the “COVID-19 Anti-Retaliation Ordinance,” making it illegal for employers with employees in the City of Chicago to retaliate against employees who stay home: to follow public health orders related to COVID-19, to quarantine because of COVID-19 symptoms, or to care for an individual ill with COVID-19. Enacted as an amendment to Chicago’s Minimum Wage and Paid Sick Leave Ordinance, the Anti-Retaliation Ordinance prohibits employers from terminating, demoting, or taking other adverse action against employees who are unable to work for reasons related to COVID-19.
What do I need to know?
Under the Ordinance, an employer cannot terminate, demote, or take any other adverse action against an employee for obeying an order issued by Mayor Lightfoot, Governor Pritzker, or the Chicago Department of Public Health (or, in the case of subsections (2) through (4) below, a treating healthcare provider) requiring the employee to:
- Stay at home to minimize the transmission of COVID-19;
- Remain at home while experiencing COVID-19 symptoms or while being sick with COVID-19;
- Obey a quarantine order issued to the employee (to keep an employee who has come into contact with an infected person separate from others);
- Obey an isolation order issued to the employee (to separate an employee with COVID-19 from others); or
- Obey an order issued by the Commissioner of Health regarding the duties of hospitals and other congregate facilities.
In addition, an employer cannot take adverse action against an employee for caring for an individual subject to subsections (1) through (3) above.
The Ordinance became effective on May 20, 2020, and will expire (unless City Council intervenes) when the Commissioner of Public Health makes a written determination “that the threat to public health posed by COVID-19 has diminished to the point that [the] ordinance can safely be repealed.”
Are you ready to protect employees at higher risk for severe illness from COVID-19 as you reopen? That’s a question the CDC asks in its recently-released guidance for employers considering reopening. And the EEOC recently issued three new Q&As in the “Return to Work” section of its technical assistance guidance for COVID-19, instructing employers on managing “high risk” employees in compliance with the Americans with Disabilities Act (ADA). The below Q&A provides direction for employers regarding “high risk” employees returning to the workplace and reasonable accommodations to help keep those employees safer at work.
What is my employee required to do to request a reasonable accommodation if the employee has a medical condition the CDC says could put the employee at higher risk for severe illness from COVID-19?
The employee (or the employee’s representative, such as the employee’s doctor) must let you know the employee (i) needs a work accommodation (ii) for a reason related to the medical condition. The request can be made in conversation or writing, and does not need to use the term “reasonable accommodation” or even reference the ADA. Therefore, to ensure you don’t unintentionally run afoul of the ADA by missing a request for a reasonable accommodation, we recommend you review every communication from an employee (or employee’s representative) stating that the employee has a medical condition requiring a change at work as one that may require a reasonable accommodation. It is also important to train managers to be aware of these requests and to immediately inform HR if an employee mentions needing a change at work because of a medical condition.