EEOC

Can Employers Require High Risk Employees to Stay Home? Latest EEOC Guidance on Interpreting the ADA During the Pandemic

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The CDC has identified a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19. The EEOC has recently provided updated guidance on how employers should treat employees in this category. To summarize the EEOC guidance, while employees may request to stay home, and employers are required to consider whether that would be a reasonable accommodation, employers cannot require high risk employees to stay home unless they have requested to do so or their reporting to work would rise to the level of a “direct threat.”

What if an employer already knows an employee is at higher risk? Can the employer require the employee to stay home?

Generally, no. Even if the employer is concerned about the employee’s health, the employer cannot take any adverse action against the employee (such as requiring the employee to stay home) on the basis of being higher risk, unless the employee’s disability rises to the level of a “direct threat” to his or her health that cannot be eliminated or reduced by reasonable accommodation.

“Direct threat” is a high standard to meet.  It requires an individualized assessment based on a reasonable medical judgment about the employee’s disability – and cannot be based solely on the employee’s disability being listed on the CDC list. If the employee’s disability does pose a direct threat, the employer must attempt to provide a reasonable accommodation such as telework or reassignment before excluding the employee from the workplace.

Can employers ask employees if they have a disability that might put them at higher risk?

The EEOC has not provided clear guidance on this issue, so we currently are recommending against asking employees if they have a disability that might put them at higher risk.  However, it is would be permissible to inform employees generally that if they have a disability that would put them at higher risk, and they wish to request a reasonable accommodation (which could include staying home), that the employer would be happy to consider such requests.

In a previous guidance issued by the EEOC in response to flu pandemics, the agency cautioned against asking about medical conditions that might put employees at higher risk.  However, the EEOC did not close the door entirely on such inquiries.  The guidance stated that if a pandemic “becomes more severe or serious according to the assessment of local, state or federal public health officials, ADA-covered employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic influenza.” It’s possible that the current COVID-19 pandemic may fit the situation that the EEOC described, but the EEOC has not yet provided clarification.

In the absence of definitive guidance from the EEOC, there are significant risks involved in making disability-related inquiries, including the risk of claims after the pandemic based on the employer’s knowledge of an employee’s disability. Accordingly, we recommend employers avoid making these inquiries until the EEOC provides further guidance.

Employers may ask employees if they have symptoms of coronavirus or have tested positive.  Additionally, employers may invite employees to voluntarily disclose any underlying condition that make them vulnerable to the coronavirus, so that the employer may provide any necessary reasonable accommodations.

Do employers have to provide reasonable accommodations to employees who have a higher risk from COVID-19?

Potentially, yes, if the employee’s higher risk is due to a preexisting condition rising to the level of a disability and the accommodation does not cause an undue hardship. See our previous guidance on reasonable accommodations here.

Can Employers administer COVID-19 tests? What about reasonable accommodations? Latest EEOC Guidance on Interpreting the ADA during the Pandemic

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The EEOC continues to update its guidance [Link: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm] on the enforcement of workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act, during the coronavirus pandemic. Below are the highlights from the latest updates:

Can employers administer COVID-19 tests?

Yes. Employers may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. Employers should ensure that that the tests are accurate and reliable, consistent with guidance from the U.S. Food and Drug Administration, CDC and other public health authorities.

Remember that employers who choose to test employees must keep the results confidential and store this information separately from the employee’s personnel file.

Do employers have to provide reasonable accommodations to employees who have a higher risk from COVID-19?

Potentially, yes, if the employee’s higher risk is due to a preexisting condition and it does not cause an undue hardship. The EEOC proposes a number of potential low-cost accommodations for reducing exposure in the workplace, including designating one-way aisles, and using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance. Additionally, temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying work schedules may be reasonable accommodations.

Do employers have to provide reasonable accommodations to employees who have a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic?

Potentially, yes, if it does not cause an undue hardship. Although many employees feel stress due to the pandemic, employees with certain preexisting mental health conditions, such as anxiety disorder or post-traumatic stress disorder, may have more difficulty handling the disruption and may require an accommodation.

Is the pandemic relevant to what accommodations can be denied as causing an “undue hardship”?

Yes. An accommodation that would not have posed an undue hardship prior to the pandemic may pose one now, as the pandemic changes what accommodations cause employers “significant difficulty or expense.” For example, it may now be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to acquire certain items as delivery may be impacted. Additionally, the EEOC notes that the sudden loss of some or all of an employer’s income stream and amount of discretionary funds available because of this pandemic are relevant considerations.

Does the pandemic change the interactive process or length of accommodations?

Potentially, yes. During the pandemic, the employers may still ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation

However, employers may choose to forgo or shorten the interactive process and grant accommodation requests on an interim, short-term or trial basis to keep up with the changing circumstances based on public health directives. Employers may choose to put an end date on the accommodation (for example, until the end date of a stay-at-home order) but must consider extensions, particularly if current government restrictions are extended or new ones adopted.

May employers require employees to wear face masks or gloves?

Yes. Employers may require employees to wear protective gear and observe infection control practices. However, employees may request reasonable accommodations under the ADA or religious accommodations from wearing this equipment.

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Non-Coronavirus Related Activity in the Supreme Court

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While attentions have been focused elsewhere, the Supreme Court continues to operate remotely and release decisions. Here are recent highlights from the highest court:

Clarified Standards for federal ADEA and Section 1981 Claims

The Supreme Court has ruled on two cases recently regarding the standards for proving employment discrimination claims. Each case determined which of two standards was necessary to prove a claim:

  • The “but for” standard, which requires an employee to show that the employer would have reached a different decision if the protected characteristic wasn’t considered; or
  • The “motivating factor” standard, which requires employees to show that the protected characteristic was one of several factors that led to an adverse employment action.

In Babb v. Wilkie, the Court found that federal employees may prove age discrimination under the Age Discrimination in Employment Act (ADEA) using the more lenient “motivating factor” standard. For private sector employees, the Supreme Court has already ruled that employees must use the “but for” standard, but the court noted that the federal-sector provision in the ADEA is worded differently from its private-sector counterpart. However, federal employees will still need to show discrimination based on the stricter “but for” standard to receive remedies under the ADEA.

In Comcast Corp. v. National Association of African American-Owned Media, the Court held that the “but for” standard applies to claims under 42 U.S.C. 1981 (Section 1981). This means that employees bringing claims for employment discrimination on the basis of race or ethnicity under Section 1981 may only prove their case using the “but for” standard. This ruling did not impact the standards under Title VII, which allows employees to prove race discrimination using the “motivating factor” standard.

Takeaway: The difference between these standards can be significant in practice. The motivating factor test requires employees to show that the protected characteristic was one of several reasons that led to the action. The but-for test requires the employee to show that the decision would not have happened, but for the protected characteristic.

Justice Clarence Thomas, in his dissent in Babb, cautioned that applying this more lenient standard could result in the federal government facing more ADEA lawsuits. Meanwhile, civil rights groups have raised concerns that the Comcast decision disadvantages victims of race discrimination, who are “in the least advantageous position to know” whether race was the but for cause of a decision, rather than one of several factors.

EEOC Investigatory Powers

The Supreme Court declined to review a decision from the Ninth Circuit ruling that the Equal Employment Opportunity Commission (EEOC) may continue to investigate a charge of discrimination after it has issued a right-to-sue letter.

In VF Jeanswear v. EEOC, Lori Bell, a former salesperson for VF Jeanswear filed a gender discrimination charge with the EEOC—a required administrative step before filing a federal lawsuit. The EEOC issued Bell a notice of right to sue, and she subsequently filed a lawsuit against VF. Nevertheless, more than a year after issuing the notice of right to sue, the EEOC sent VF a subpoena requesting information about its employees. When VF refused to comply with the subpoena, the EEOC went to court to enforce it. The Ninth Circuit found that the subpoena was enforceable, because it was relevant to the allegations in Bell’s charge, even though the information requested was about practices that did not affect Bell.

Although the Ninth Circuit’s decision conflicted with a previous Fifth Circuit holding that issuing a right to sue notice terminates the EEOC’s ability to investigate, the Supreme Court declined to weigh in on the Ninth Circuit’s decision.

Takeaway: Employers should be aware that—although rare—the EEOC may continue to investigate a charge, even after a notice of right to sue has been issued. Outside of the Fifth Circuit, the employer may be required to comply with such a subpoena. At some point in the future, the Supreme Court hopefully will resolve this circuit split.

EEOC Speaks On Mental Health

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EEOC LOGOThe Equal Employment Opportunity Commission (EEOC) recently published an informal publication outlining the rights of employees who suffer from depression, post-traumatic stress disorder (PTSD), and other mental health conditions under the Americans with Disabilities Act (ADA). Although nothing new per se, the publication serves as a great reminder as to the rights of employees with mental health conditions. The guidance addresses the following topics:

Discrimination. An employer may not discriminate against an employee — which includes firing, rejecting for a job or promotion, and forcing to take leave — simply because he or she has a covered mental health condition or has asked for a reasonable accommodation.

Privacy/Confidentiality. An employer may only ask medical questions (including questions about mental health) in the following situations:

  • When an employee asks for a reasonable accommodation.
  • After it has made a job offer, but before employment begins, as long as everyone entering the same job category is asked the same questions.
  • When it is engaging in affirmative action for people with disabilities, in which case an employee may choose whether to respond.
  • On the job, when there is objective evidence that an employee may be unable to do his or her job or that the employee may pose a safety risk because of the condition.
  • To establish eligibility for benefits under other laws, such as the Family and Medical Leave Act (FMLA).

If an employee informs an employer about a condition, the employer cannot discriminate against the employee, and it must keep the information confidential.

“Substantially limiting” condition. A condition does not have to be permanent or severe to qualify. What matters is that the condition — when the symptoms are present —  makes activities more difficult, uncomfortable, or time-consuming.

Reasonable Accommodation. The guidance encourages employees to ask for a reasonable accommodation before any problems occur or become worse. The EEOC gives the following examples of reasonable accommodations:

  • Altered break and work schedules (e.g., scheduling work around therapy appointments);
  • Quiet office space or devices that create a quiet work environment;
  • Changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them);
  • Specific shift assignments; and
  • Permission to work from home.

The guidance notes that where an employee cannot perform all the essential functions of the job and no paid leave is available, an unpaid leave may be a reasonable accommodation if the leave will help the employee get to a point where he or she can perform those functions. Remember that an employer must provide a reasonable accommodation unless it involves substantial difficulty or expense.

Harassment. The guidance reiterates that harassment based on disability is prohibited under the ADA, and that employees should follow employers’ reporting procedures to report any harassment.

We suggest that you review the guidance and make sure that your current policies and practices comply.

 

 

EEOC Issues Final Retaliation Guidance

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EEOC LOGOThe Equal Employment Opportunity Commission (EEOC) has released its final Enforcement Guidance on Retaliation and Related Issues. While the guidance doesn’t create any new law, it serves as a good reminder of the position the EEOC takes on such claims.  Here are a few highlights from the Guidance:

  • Retaliation can exist even when no official employment action against the employee is taken.  For example, it could be retaliation because of the employee’s EEO activity for an employer to:
    • reprimand an employee or give a performance evaluation that is lower than it should be;
    • transfer the employee to a less desirable position;
    • engage in verbal or physical abuse;
    • threaten to make, or actually make reports to authorities;
    • increase scrutiny;
    • spread false rumors, treat a family member negatively; or
    • take action that makes the person’s work more difficult.
  • The EEOC makes clear that an employer cannot retaliate against an employee for raising Americans with Disabilities Act (ADA) rights, and cannot interfere with ADA rights by doing anything that makes it more difficult for an applicant or employee to assert these rights.
  • The Guidance contains an entire section entitled “Examples of Facts That May Defeat a Claim of Retaliation.” This section includes examples such as poor performance, inadequate qualifications, negative job references, misconduct, reductions in force or downsizing, as well as others.
  • The Guidance includes a list of suggestions that the EEOC believes may reduce the risk of retaliation violations:
    • Implementing a written anti-retaliation policy;
    • Training all supervisors on the anti-retaliation policy;
    • Providing advice and individualized support for those who could be in a position to retaliate and those who could be in the firing line for retaliatory action;
    • Proactively following up after protected activity or opposition has taken place; and
    • Reviewing your internal employment actions to ensure full compliance with the EEOC laws on retaliation.

We encourage all employers to review the Guidance carefully to make sure that their  current policies and practices are compliant. Employers should pay particular attention to the EEOC’s suggestions on practices that may reduce the chances of retaliation, as implementing and enforcing these may help to protect employers from potential retaliation claims.

 

 

 

 

 

EEOC Issues New Rules for Corporate Wellness Programs

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EEOC LOGOOver the last few years the Equal Employment Opportunity Commission has increasingly taken the position that corporate wellness programs — and in particular, the testing they require, the information they collect, and the benefits they provide — can violate discrimination laws. On Monday, the EEOC issued two final rules establishing the standards under which wellness programs will be reviewed.  (See our previous post regarding the proposed rules here.)

One of the rules specifically applies to Title I of the Americans with Disabilities Act (ADA), while the other applies to Title II of the Genetic Information Nondiscrimination Act (GINA).

The Final ADA Rule. The final ADA rule provides that “wellness programs that are part of a group health plan and that ask questions about employees’ health or include medical examinations may offer incentives of up to 30 percent of the total cost of self-only coverage.” The rule requires employers to give participating employees notice that tells them “what information will be collected as part of the wellness program, with whom it will be shared and for what purpose, the limits on disclosure and the way information will be kept confidential.”

The Final GINA Rule. The final GINA rule provides “that the value of the maximum incentive attributable to a spouse’s participation may not exceed 30 percent of the total cost of self-only coverage, the same incentive allowed for the employee… No incentives are allowed in exchange for the current or past health status information of employees’ children or in exchange for specified genetic information … of an employee, an employee’s spouse, and an employee’s children.”

A few notes about the new rules directly from the EEOC:

  • Both rules will be effective beginning on January 1, 2017.
  • Both rules apply to all workplace wellness programs, including programs in which employees or their family members may participate without also enrolling in a particular health plan.
  • Both rules prohibit employers from requiring employees or their family members to agree to the sale, exchange, transfer, or other disclosure of their health information to participate in a wellness program or to receive an incentive.
  • Employers should ensure confidentiality by adopting and communicating clear policies, training employees who handle confidential information, encrypting health information, and providing notification to employees and their family members if breaches occur.

In light of these new rules, we suggest that you carefully review your wellness programs and corresponding financial incentives to ensure compliance. Also, note that under existing laws – even before the introduction of these new rules – you cannot:

  • Require employees to participate in a wellness program;
  • Deny health insurance to employees who do not participate in the program;
  • Take any adverse employment action or retaliate against, interfere with, coerce, or intimidate employees who do not participate in the program; or
  • Deny employees with disabilities reasonable accommodations that allow them to participate in a wellness program and receive any related incentives.

 

 

EEOC Provides Guidance on Leave as a Reasonable Accommodation under the ADA

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EEOC LOGOEarlier this week, the Equal Employment Opportunity Commission (EEOC) issued a new resource document on when leave constitutes a reasonable accommodation under the Americans with Disabilities Act (ADA).  Although the EEOC has always taken the position that employer-provided leave can be a reasonable accommodation, the new document highlights some of the standards for when and how leave must be granted.  At its core, the EEOC resource clarifies that unpaid leave is a reasonable accommodation unless the employer can show that the leave causes an undue burden.

The new EEOC document covers the following topics and provides specific examples of each:

  • Equal Access To Leave.  Employees with disabilities must be afforded access to leave on the same basis as all other similarly-situated employees.  In other words, if an employer receives a request for leave from a qualified disabled employee, and the leave would be covered  under the employer’s existing leave policy, the employer must treat the individual the same as an employee who requests leave for reasons unrelated to a disability.  The EEOC notes here that “employers are entitled to have policies that require all employees to provide a doctor’s note or other documentation to substantiate the need for leave,” but employers can’t apply that requirement discriminatorily.
  • Unpaid Leave.  Employers must consider providing unpaid leave as a reasonable accommodation to an employee with a disability if the employee requires it to return to work, as long as the leave would not create an undue hardship on the employer’s operations or finances.  This is required even if: “the employer does not offer leave as an employee benefit; …the employee is not eligible for leave under the employer’s policy; or … the employee has exhausted the leave the employer provides as a benefit …”
  • Interactive Process.  The employer is required to engage in an “interactive process” with the employee once the employee requests leave and the employer determines that the leave is not permitted under another program (such as PTO, FMLA or Worker’s Compensation).  As the EEOC acknowledges, the interactive process will likely continue during the employee’s leave, with the employer checking in on the employee’s progress and/or need for additional leave. When a leave is at issue, the EEOC recommends that the  process focus on the following questions:
    • “the specific reason(s) the employee needs leave …
    • whether the leave will be a block of time…, or intermittent …; and
    • when the need for leave will end
  • Maximum Leave Policies.  Employers may have leave policies that establish a maximum amount of leave allowed, but more time above the maximum would be a reasonable accommodation, unless the employer can show that allowing such leave would cause an undue hardship.
  • Return to Work.  An employer cannot require an employee to be “100% healed or recovered” to return to work — it must provide the employee a reasonable accommodation (including reassignment, for example) as long as the accommodation does not create an undue hardship.  An employer can refuse to allow an employee to come back to work with a medical restrictions only if the employee would pose a “direct threat” of substantial harm to him/her self or to others.
  • Undue Hardship.  When considering whether a leave would cause an undue hardship, the EEOC considers the following factors:
    • “the amount and/or length of leave required…;
    • the frequency of the leave…;
    • whether there is any flexibility with respect to the days on which leave is taken…;
    • whether the need for intermittent leave on specific dates is predictable or unpredictable…;
    • the impact of the employee’s absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner…; and
    • the impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner, which takes into account, for example, the size of the employer.”

We encourage all employers to read this new EEOC resource document in full.  Although “nothing new” per se, it serves as a great reminder for ADA compliance and offers many specific examples that may be pertinent to your own employee leave issues.

 

 

Webinar – Back to School: Employment Law Update

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school-suppliesAs fall approaches and students head back to school, The Employment Lawyers are taking a look back and a look ahead at issues in labor and employment law. Join us for an informational webinar to review developments over the past year and discuss tips to keep your workplace practices current in the coming year.

Thursday, September 17, 2015
12:00 pm – 1:30 pm (CDT)
CLICK HERE TO REGISTER

TOPICS

  • Proposed changes to overtime regulations that will make more employees overtime-eligible
  • New standards in accommodating religious practices and pregnancy
  • The NLRB’s “quickie” election rules and what they mean for union organizing efforts
  • Raising the standard to establish that a worker is properly classified as an independent contractor
  • The EEOC’s new position on wellness programs and disability discrimination
  • Expanding employee retaliation and whistleblower claims
  • New state and local laws that impact minimum wage, paid sick leave and accommodation requirements

And more…

CLE Credit Available | This program has been submitted to the HR Certification Institute for review.

QUESTIONS

Contact Annie Darmofal at 312.476.7626 or adarmofal@lplegal.com

EEOC Affirms: Sexual Orientation Is Prohibited Under Title VII

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EEOC LOGOThe EEOC has confirmed its position that Title VII prohibits discrimination against employees based on sexual orientation.  The EEOC’s statement followed on its prior determination that Title VII protects individuals against discrimination based on transgender status, gender identity, and an employee’s transitioning between genders. According to the EEOC, sexual orientation bias is “associational discrimination on the basis of sex.” Thus, employees who work for an employer with 15 or more employees can file a charge of sex discrimination with the EEOC if the employee has been discriminated against because of sexual orientation or gender identity or expression.

Notwithstanding the EEOC’s position, there is still no federal law that explicitly protects individuals from employment discrimination based on sexual orientation and gender identity. However, 22 states (including Illinois), Washington, D.C., and Puerto Rico, have state-based employment nondiscrimination laws that cover sexual orientation and/or gender identity that apply to both private and public sector employers.

With so much recent attention, employers should be particularly attentive to issues relating to sexual orientation and gender identity. We suggest updating any employment policies and practices to include prohibitions on discrimination and harassment based on sexual orientation and gender identity to help protect employers against EEOC and state-law challenges.

Reminder: Review Your Record-Keeping Procedures

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laptop-file-cabinet (2)Employment laws regularly include record keeping requirements.  And while these requirements are rarely front and center, they can rear their head and open companies to legal action.  This month the EEOC filed suit in Philadelphia against a nationwide provider of janitorial and facilities management services for failing to maintain records and other information relating to how its employee selection procedures impact equal employment opportunities.

Under Title VII, covered employers must maintain records that disclose the impact that their selection procedures have on employment opportunities of individuals identifiable by race, sex, or ethnic group. In this lawsuit, EEOC claims that the company failed to make and keep records of applicants’ criminal background checks and criminal history assessments, information that they use to make ultimate hiring decisions.  According to the EEOC, these records are necessary to show the impact that the company’s selection procedures have on individuals identifiable by race, sex, or ethnic group.  The EEOC is seeking an injunction requiring the company to make and keep these records.  This case is an important reminder for employers to ensure that they are properly making and keeping the records required by applicable federal, state, and local statutes and regulations.

Given the EEOC’s focus on records regarding criminal history and background checks, companies should also confirm compliance with federal, state and local laws regarding background checks, and how and when they are conducted and used.  As we have previously discussed in this blog, a growing number of state and local governments have enacted “Ban-the-Box” legislation, putting restrictions on when criminal history information may be gathered.  Companies that haven’t recently reviewed policies and procedures relating to retention of employee and applicant information, or that haven’t carefully considered whether their use of background checks is legally compliant, should do so.