Can An Employer Fire Employees Who Refuse To Come Back to the Office?

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By Kathleen J. Jennings (kjj@wimlaw.com)

As COVID restrictions ease, many employers are deciding whether to require employees who have been working remotely to come back to the office. So can an employer fire employees who refuse to come back to the office? Yes–with some important exceptions.

Let’s face it, we have learned over the past year that remote work has some advantages. No commute, no need to dress up and put on makeup very day (unless there is a Zoom meeting), no uncomfortable shoes, and you can fix your own pretty inexpensive lunch. And that super-chatty co-worker can’t stop by and take up your time with another story about his cats. But there are disadvantages as well. It’s hard to have a consistent corporate culture when employees are not in the same place. Employees may not feel connected to their co-workers because they don’t have the water cooler or break room conversations. Mental health issues have arisen for people who have felt lonely or isolated during remote work. And we cannot underestimate the value of face-time in furthering career advancement. The bottom line: some people thrive in a remote work setting, and some people don’t. Some people simply prefer to be in an office setting with co-workers.

If an employer decides that it wants employees back in the office, it can generally terminate employees who refuse to give up their remote work lifestyles; it is insubordination for an employee to refuse a reasonable directive of her/his employer. However, and this is a big however, if an employer is covered by the Americans With Disabilities Act, it may need to consider whether allowing a disabled employee to continue to work remotely is considered a reasonable accommodation. For example, in Massachusetts, a worker with asthma sued their employer regarding a work from home accommodation, and the federal district court allowed the case to go forward.

The success of remote work in the past year or so will make it more difficult for an employer to convince a court that working remotely is not a “reasonable” accommodation or that working at a particular location is an “essential function” of the job. It’s a good idea to consult an attorney in this situation.

Just because you CAN do something does not mean that you must do it. There are going to be some folks who feel so strongly about working remotely that they are willing to quit rather than return to the office. Or maybe they still don’t have reliable child care. Is it worth losing employees, especially valuable employees, over this issue? How easily will you be able to replace them?

And finally–if you want to avoid claims for discrimination on the basis of characteristics other than disability, you’d better have some valid, non-discriminatory reasons for allowing some employees to work remotely while others are required to go into the office. Don’t play favorites.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Think Before You Require Your Employees to Sign Non-compete Agreements

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By Kathleen J. Jennings (kjj@wimlaw.com)

Today, the President issued an Executive Order broadly tackling the issue of competition in the marketplace. One of the particular issues that the FTC has been tasked with is to restrict the use of non-competition agreements that have become common in certain industries and limit worker mobility. In addition, several states have enacted laws that restrict the use of non-competition agreements, especially for lower level employees. Nevertheless, there may be situations in which it is prudent for an employer to require some employees to sign non-competition agreements. As a practical proposition, such agreements are useful if an employer wants to protect something valuable that could give a competitor an unfair advantage.

Generally, non-competition agreements are governed by state laws. Every state is different, so if you decide to use non-competition agreements, it is best to have them drafted by an attorney who practices in that area. Furthermore, if your company has employees working in different states, you may need to tailor the agreements to meet the requirements of the state in which an employee works. Even the choice of which law to apply to a particular agreement will depend on a state’s law. Complicated? Yes–that’s why an attorney should draft these agreements.

Non-competition agreements are considered restraints on trade, so the chances that one will be enforced by a court can depend on what the agreement is designed to protect. Valid protectable interests include trade secrets, confidential information, confidential customer lists or databases, and even the company’s employees. The greater the measures a company takes to protect certain information from being divulged, the more likely it will be found to be a protectable interest. Conversely, if the information or the names of the company’s main customers can be readily found on the internet, they are not likely to be found to be protectable. If a company makes a big investment in employee training, it may have an interest in preventing those employees from taking that investment over to a competitor. Again, state law will determine what a protectable interest may be.

High level management employees or employees with specialized knowledge are more likely to have access to information about the company that could provide an advantage to a competitor and are the best candidates for these types of agreements. However, the agreements must be narrowly enough drawn so that the employee is still able to make some kind of living while any restrictions are in place.

Pro Tip: The stricter scrutiny being placed on non-competition agreements means that the tactic of making all employees sign these types of agreements simply to scare them from going to work for competitors, even when the employer knows they will not be enforced, may get an employer in legal hot water.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

EEOC Issues Updated Guidance on Avoiding Discrimination Against Transgender Employees

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By Kathleen J. Jennings (kjj@wimlaw.com)

Last week, on the first anniversary of the U.S. Supreme Court’s decision in Bostock v. Clayton County, in which the Court held that Title VII’s prohibition on discrimination on the basis is “sex” encompasses sexual orientation and transgender status, the EEOC issued some updated guidance regarding the treatment of transgender employees in the workplace. “All people, regardless of sexual orientation and gender identity, deserve an opportunity to work in an environment free from harassment or other discrimination,” EEOC Chair Charlotte A. Burrows said.

This new guidance is considered controversial, especially by social conservatives, because of both the substance and the way that it was announced. The substance addresses things such as dress codes, bathrooms, showers, and pronouns. And the guidance was issued without a vote by the five member bipartisan EEOC panel, which currently has a 3-2 Republican majority, resulting in three very unhappy Commissioners.

Keep in mind that the publication in itself does not have the force and effect of law and is not meant to bind the public in any way. Nevertheless, this guidance tells us the position the EEOC will take in response to EEOC Charges filed by transgender employees. EEOC guidance also can influence court decisions.

What kind of guidance did the EEOC offer to us? Here are some highlights.

Dress codes:

May a covered employer require a transgender employee to dress in accordance with the employee’s sex assigned at birth?

No. Prohibiting a transgender person from dressing or presenting consistent with that person’s gender identity would constitute sex discrimination.

Bathrooms, showers, locker rooms:

Does an employer have the right to have separate, sex-segregated bathrooms, locker rooms, or showers for men and women?

Yes. Courts have long recognized that employers may have separate bathrooms, locker rooms, and showers for men and women, or may choose to have unisex or single-use bathrooms, locker rooms, and showers. The Commission has taken the position that employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity. In other words, if an employer has separate bathrooms, locker rooms, or showers for men and women, all men (including transgender men) should be allowed to use the men’s facilities and all women (including transgender women) should be allowed to use the women’s facilities.

Pronouns:

Could use of pronouns or names that are inconsistent with an individual’s gender identity be considered harassment?

Yes, in certain circumstances. Unlawful harassment includes unwelcome conduct that is based on gender identity. To be unlawful, the conduct must be severe or pervasive when considered together with all other unwelcome conduct based on the individual’s sex including gender identity, thereby creating a work environment that a reasonable person would consider intimidating, hostile, or offensive. In its decision in Lusardi v. Dep’t of the Army, the Commission explained that although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.

Basically, the EEOC is telling employers to treat transgender employees in accordance with their gender identity, which is simply a matter of respect. However, employers should anticipate resistance from some employees to these guidelines and deal with it accordingly, or possibly face an EEOC Charge or a lawsuit.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Religious Liberty vs. LBGTQ Rights: Narrow Supreme Court Decision Fails to Resolve Many Questions

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By Kathleen J. Jennings (kjj@wimlaw.com)

One of the most eagerly anticipated decisions coming from the U.S. Supreme Court this term was Fulton v. Philadephia, a case involving a Catholic charity’s challenge to a Philadelphia ordinance that excluded it from part of the city’s foster-care program because the charity would not help place children with same-sex couples. The charity argued that the ordinance violated its First Amendment right to religious freedom, and the U.S. Supreme Court, in a unanimous decision, agreed. However, the Court’s decision focused very narrowly on the ordinance at issue and did not address the bigger question of what happens when religious liberty and anti-bias laws collide. Thus, it is likely that we will see more litigation on these issues.

What does this decision mean for employers? Not a heck of a lot–yet. Last year, the Supreme Court ruled that Title VII prohibits employment discrimination on the basis of sexual orientation and sexual identity. But that case did not answer any questions about the possibility of religious defenses to discrimination against LBGTQ employees and applicants. The ultimate question is this: Is there a Constitutional right to discriminate that would override Title VII in some context? 

Certain employers can invoke the Religious Freedom Restoration Act to defend against discrimination lawsuits brought by the government. Religious organizations, such as churches and religious schools, are permitted to give employment preference to members of their own religion under a Title VII exception. Religious groups are likely to continue pushing the boundaries of religious freedom. Whether that push will infringe upon the hard-won rights of LGBTQ people to be free from discrimination remains to be seen.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

OSHA Issues COVID Emergency Temporary Standard–For Healthcare. Is There More to Come?

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By Kathleen J. Jennings (kjj@wimlaw.com)

Today, the Department of Labor released the long-awaiting OSHA Emergency Temporary Standard (ETS) for dealing with COVID-19. This ETS applies to all settings where any employee provides healthcare services or healthcare support services.

In the world of OSHA, OSHA is authorized to set emergency temporary standards when it determines that workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them. Then, OSHA publishes the emergency temporary standard in the Federal Register, where it also serves as a proposed permanent standard. It is then subject to the usual procedure for adopting a permanent standard except that a final ruling should be made within six months. The validity of an emergency temporary standard may be challenged in an appropriate U.S. Court of Appeals. Indeed, some employer groups are considering a challenge to the COVID ETS on the ground, among other things, that COVID-19 no longer poses the type of emergency hazard that warrants an ETS.

The key requirements of the ETS are:

  • COVID-19 plan: Develop and implement a COVID-19 plan (in writing if more than 10 employees) that includes a designated safety coordinator with authority to ensure compliance, a workplace-specific hazard assessment, involvement of non-managerial employees in hazard assessment and plan development/implementation, and policies and procedures to minimize the risk of transmission of COVID-19 to employees.
  • Patient screening and management: Limit and monitor points of entry to settings where direct patient care is provided; screen and triage patients, clients, and other visitors and non-employees; implement patient management strategies.
  • Standard and Transmission-Based Precautions: Develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.
  • Personal protective equipment (PPE): Provide and ensure each employee wears a facemask when indoors and when occupying a vehicle with other people for work purposes; provide and ensure employees use respirators and other PPE for exposure to people with suspected or confirmed COVID-19, and for aerosol-generating procedures on a person with suspected or confirmed COVID-19.
  • Aerosol-generating procedures on a person with suspected or confirmed COVID-19: Limit employees present to only those essential; perform procedures in an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after the procedure is completed.
  • Physical distancing: Keep people at least 6 feet apart when indoors.
  • Physical barriers: Install cleanable or disposable solid barriers at each fixed work location in non-patient care areas where employees are not separated from other people by at least 6 feet.
  • Cleaning and disinfection: Follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC guidelines in patient care areas, resident rooms, and for medical devices and equipment; in all other areas, clean high-touch surfaces and equipment at least once a day and provide alcohol-based hand rub that is at least 60% alcohol or provide readily accessible handwashing facilities.
  • Ventilation: Ensure that employer-owned or controlled existing HVAC systems are used in accordance with manufacturer’s instructions and design specifications for the systems and that air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows it.
  • Health screening and medical management: (1) Screen employees before each workday and shift; (2) Require each employee to promptly notify the employer when the employee is COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms; (3) Notify certain employees within 24 hours when a person who has been in the workplace is COVID-19 positive; (4) Follow requirements for removing employees from the workplace; (5) Employers with more than 10 employees, provide medical removal protection benefits in accordance with the standard to workers who must isolate or quarantine.
  • Vaccination: Provide reasonable time and paid leave for vaccinations and vaccine side effects.
  • Training: Ensure all employees receive training so they comprehend COVID-19 transmission, tasks and situations in the workplace that could result in infection, and relevant policies and procedures.
  • Anti-Retaliation: Inform employees of their rights to the protections required by the standard and do not discharge or in any manner discriminate against employees for exercising their rights under the ETS or for engaging in actions required by the standard. Requirements must be implemented at no cost to employees.
  • Recordkeeping: Establish a COVID-19 log (if more than 10 employees) of all employee instances of COVID-19 without regard to occupational exposure and follow requirements for making records available to employees/representatives. Report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.

Many employers have been voluntarily taking these types of precautions for a while now. Now, for healthcare employers, these precautions become required by OSHA.

Non-healthcare employers, particularly those businesses where employees work in close proximity to one another for entire work shifts, are now wondering if they will be the next target of an OSHA ETS. If vaccination rates stall and fail to reach the 70% threshold, it is possible. I’ll keep you posted.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

EEOC Updates Guidance on Vaccinations, and Yes, Employers Can Require Employees to Be Vaccinated

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By Kathleen J. Jennings (kjj@wimlaw.com)

Late last week, just before most of us enjoyed a long holiday weekend, the EEOC issued some additional guidance addressing questions arising under the federal equal employment opportunity laws in regard to employees and COVID vaccinations. Considering that the distribution of vaccines started in February, the EEOC is a little late to the party, but better late than never. Employers have had a lot of questions about employees and vaccines, and this latest guidance answers some of them.

The key updates to the EEOC’s previous technical assistance are summarized below:

  • Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.  Other laws, not in EEOC’s jurisdiction, may place additional restrictions on employers.  From an EEO perspective, employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.
  • Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
  • Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information. [However, employers may not offer incentives to employees for their family members to be vaccinated, nor can they penalize them if their family members refuse to get vaccinated, as this may violate GINA. ]

It seems that more employers have chosen to offer incentives to employees in exchange for vaccination or proof of vaccination rather than require vaccination, so this new guidance is welcome insofar as it gives the EEOC’s blessing to incentives for vaccines.

Pro Tip: Employers must keep all information regarding employee vaccinations confidential. Indeed, the best practice is to place this information in secure confidential employee medical files, which must be maintained separately from employee personnel files.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Let’s Talk About HIPAA

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By Kathleen J. Jennings (kjj@wimlaw.com)

A lot of people talk about HIPAA, but how many of them have actually read the law? Not very many, from what I have seen and heard people say about HIPAA. Let’s set the record straight.

HIPAA rules do not apply to all communications that may involve health information. As we pointed out in an earlier blog post, that means that an inquiry about your vaccination status will probably not violate HIPAA.

Entities that must follow the HIPAA regulations are called “covered entities.”

Covered entities include:

  • Health Plans, including health insurance companies, HMOs, company health plans, and certain government programs that pay for health care, such as Medicare and Medicaid.
  • Most Health Care Providers—those that conduct certain business electronically, such as electronically billing your health insurance—including most doctors, clinics, hospitals, psychologists, chiropractors, nursing homes, pharmacies, and dentists.
  • Health Care Clearinghouses—entities that process nonstandard health information they receive from another entity into a standard (i.e., standard electronic format or data content), or vice versa.

In addition, “business associates” of covered entities must follow parts of the HIPAA regulations.

Often, contractors, subcontractors, and other outside persons and companies that are not employees of a covered entity will need to have access to your health information when providing services to the covered entity. These entities are called “business associates.” Examples of business associates include:

  • Companies that help your doctors get paid for providing health care, including billing companies and companies that process your health care claims
  • Companies that help administer health plans
  • People like outside lawyers, accountants, and IT specialists
  • Companies that store or destroy medical records

Covered entities must have contracts in place with their business associates, ensuring that they use and disclose your health information properly and safeguard it appropriately. Business associates must also have similar contracts with subcontractors. Business associates (including subcontractors) must follow the use and disclosure provisions of their contracts and the Privacy Rule, and the safeguard requirements of the Security Rule.

If you do business with a covered entity and are presented with a Business Associate Agreement–read it! Some of them can be quite broad and contain language that goes beyond the requirements of HIPAA.

Who Is Not Required to Follow These Laws

Many organizations that have health information about indivuduals do not have to follow these laws.

Examples of organizations that do not have to follow the Privacy and Security Rules include:

  • Life insurers
  • Employers
  • Workers compensation carriers
  • Most schools and school districts
  • Many state agencies like child protective service agencies
  • Most law enforcement agencies
  • Many municipal offices

What Information Is Protected 

  • Information your doctors, nurses, and other health care providers put in your medical record
  • Conversations your doctor has about your care or treatment with nurses and others
  • Information about you in your health insurer’s computer system
  • Billing information about you at your clinic
  • Most other health information about you held by those who must follow these laws

How This Information Is Protected

  • Covered entities must put in place safeguards to protect your health information and ensure they do not use or disclose your health information improperly.
  • Covered entities must reasonably limit uses and disclosures to the minimum necessary to accomplish their intended purpose.
  • Covered entities must have procedures in place to limit who can view and access your health information as well as implement training programs for employees about how to protect your health information.
  • Business associates also must put in place safeguards to protect your health information and ensure they do not use or disclose your health information improperly.

This may be more than you wanted to know about HIPAA. But if you want to dig even deeper into HIPAA, you can visit www.hhs.gov.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Can An Employer Ask for Proof of COVID Vaccination?

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By Kathleen J. Jennings (kjj@wimlaw.com)

Today, the CDC issued new guidance regarding persons who have been fully vaccinated aganst COVID-19. Now, fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. [People are considered to be fully vaccinated approximately two weeks after receiving the second of a 2 shot series (Pfizer or Moderna), or two weeks after receiving the one J&J shot.]

There are some places where even fully vaccinated should continue to wear masks, such as healthcare settings, public transportation, transportation hubs, homeless shelters, prisons, and jails.

For non-healthcare settings, employers can allow their fully vaccinated employees to stop wearing masks and socially distancing from one another. But how does an employer know which employees have been fully vaccinated, and which have not? Just ask.

The U.S. Equal Employment Opportunity Commision (EEOC) has issued its own guidance regarding employer inquiries about employee vaccination status. In fact, the EEOC states that it is not only lawful for an employer to ask an employee about his/her vaccination status, but the employer can also require proof of vaccination:

Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? 

No.  There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.  Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

And what about the employee who refuses to disclose his/her vaccination status on the grounds that “HIPAA protects this information?” Unless your business is the employee’s health care provider, this is not a valid excuse. Many people misunderstand the scope of HIPAA and believe it has a greater reach than it really does. HIPAA only applies to what are called ” covered entities.” Essentially, those are health care providers (doctors, hospitals, and pharmacies, for instance), health insurers, and health care clearinghouses (which process medical data). It also covers their “business associates,” or contractors who have to handle medical records in some way to do work for those covered entities.  It does not apply to the average person or to a business outside health care. 

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Have You Reviewed Your Emergency Action Plan Lately?

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By Kathleen J. Jennings (kjj@wimlaw.com)

Now is a great time to review your company’s emergency action plan.  Why?  We have the Atlantic hurricane season starting on June 1, and we have more workers returning to the physical workplace from their remote locations, thanks to mass vaccination.  So let’s make sure everyone knows what to do in the event of an emergency.  Note also that this is something that OSHA is likely to look for when it visits your establishment.

Where required by some Occupational Safety and Health Administration standards, firms with more than 10 employees must have a written emergency action plan; smaller companies may communicate their plans orally. Top management support and the commitment and involvement of all employees are essential to an effective emergency action plan.

Employers should review plans with employees when initially put in place and re-evaluate and amend the plan periodically whenever the plan itself, or employee responsibilities, change. Emergency procedures, including the handling of any toxic chemicals, should include:

  • Escape procedures and escape route assignments.
  • Special procedures for employees who perform or shut down critical plant operations.
  • Systems to account for all employees after evacuation and for information about the plan.
  • Rescue and medical duties for employees who perform them.
  • Means for reporting fires and other emergencies.

It is not just enough to have a written plan in place.  Every employee needs to know details of the emergency action plan, including evacuation plans, alarm systems, reporting procedures for personnel, shutdown procedures, and types of potential emergencies. Any special hazards, such as flammable materials, toxic chemicals, radioactive sources or water-reactive substances, should be discussed with employees.

Drills should be held at random intervals, at least annually, and should include outside police and fire authorities.

Training must be conducted at least annually and when employees are hired or when their job changes. Additional training is needed when new equipment, materials or processes are introduced, when the layout or design of the facility changes, when procedures have been updated or revised, or when exercises show that employee performance is inadequate.

Social distancing requirements may have changed the layout or design of your facility, triggering a review of your emergency action plan. And while you are at it, conduct a fire drill to remind everyone how to exit safely. Also, regularly check your exit signs to make sure that are unobstructed and in good working order.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

US Department of Labor Withdraws Independent Contractor Rule That Never Went Into Effect

Photo by Karolina Grabowska on Pexels.com

By Kathleen Jennings (kjj@wimlaw.com)

Today, to absolutely no one’s surprise, U.S. the Department of Labor formally withdrew the Independent Contractor Rule that had been implemented by the previous administration. The withdrawal is effective on May 6, 2021. After a long, strange trip, the Rule never went into effect. It should be noted, however, that some employer groups have filed a lawsuit seeking undo the withdrawal of the Rule.

Why does this matter? Because the requirements of the Fair Labor Standard Act (FLSA), such as the payment of a minimum wage and overtime, apply to “employees” and not to “independent contractors.” The misclassification of a worker as an “independent contractor” rather than an “employee” could be a very expensive mistake for an employer, which could be liable for unpaid minimum wages and/or overtime (and double the amount if the violation is deemed “willful”) and attorneys’ fees.

Legal Background

The Fair Labor Standards Act (“FLSA” or “Act”) requires all covered employers to pay nonexempt employees at least the federal minimum wage for every hour worked in a non- overtime workweek. In an overtime workweek, for all hours worked in excess of 40 in a workweek, covered employers must pay a nonexempt employee at least one and one-half times the employee’s regular rate. The FLSA also requires covered employers to make, keep, and preserve certain records regarding employees.


The FLSA’s minimum wage and overtime pay requirements apply only to employees. Section 3(e) generally defines “employee” to mean “any individual employed by an employer.” Section 3(d) of the Act defines “employer” to “include[] any person acting directly or indirectly in the interest of an employer in relation to an employee.” Section 3(g) defines “employ” to “include[] to suffer or permit to work.”

The Economic Realities Test

For decades, The DOL, consistent with case law, has applied a multifactor balancing test to assess whether the worker, as a matter of economic reality, is economically dependent on the employer or is in business for him or herself. The DOL and the U.S. Courts of Appeals generally consider and balance the following economic realities factors: the nature and degree of the employer’s control over the work; the permanency of the worker’s relationship with the employer; the degree of skill, initiative, and judgment required for the work; the worker’s investment in equipment or materials necessary for the work; the worker’s opportunity for profit or loss; whether the service rendered by the worker is an integral part of the employer’s business; and the degree of independent business organization and operation.


In withdrawing the Rule, the DOL stated that it would have set forth a new articulation of the economic realities test, elevating two factors (control and opportunity for profit or loss) as “core” factors above the other factors, and designating them as having greater probative value, likely resulting in the classification of a greater number of workers as independent contractors.

This is a big issue for companies that utilize gig workers, who are overwhelmingly classified as independent contractors. The current Secretary of Labor, however, has taken the position that the majority of gig workers should be classified as employees. We’ll have to see how aggressively the DOL intends to pursue this issue.

Pro Tip: The classification of a worker as an independent contractor takes more than simply issuing a 1099. A company needs to carefully apply the economic reality factors to the actual duties and responsibilities of the worker to make that determination. It is best to rely upon the advice of qualified counsel.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.