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

Photo by Karolina Grabowska on Pexels.com

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

Photo by Laura James on Pexels.com

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.

Merry Christmas!

Photo by Oleg Zaicev on Pexels.com

By Kathleen Jennings (kjj@wimlaw.com)

Cover Your Assets wishes everyone a safe and festive Christmas!

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.

©2020 Kathleen J. 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.

The Costs of Not Taking COVID-19 Seriously

Photo by cottonbro on Pexels.com

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

By all accounts, the number of COVID-19 infections (and deaths) are on the rise and are likely to increase even more after Thanksgiving. At the same time, there is a great political divide as to how seriously folks take the virus. Politics aside, what are some of the potential costs to your business if you fail to take COVID-19 seriously?

As an initial matter, when I talk about taking COVID-19 seriously, I mean that your business is following CDC guidelines, which provides strategies and recommendations for employers responding to COVID-19, which include disinfecting, hand washing, social distancing and the wearing of masks. Employers should also be familiar with OSHA guidance, which focuses on jobs classified as having low, medium, high, and very high exposure risks, and provides specific recommendations for employers and workers within specific risk categories.

So what are some of the potential business consequences of failing to take COVID-19 seriously?

Worker Absenteeism. If workers are not protected from exposure to the virus, they are more likely to get sick, and if they get sick, they cannot come to work. Worst case scenario–one sick worker infects a number of co-workers because no one is taking precautions in the workplace to avoid the spread of the virus, and now you have a number of employees who cannot come to work. Or an exposed worker then exposes his/her family, and they must stay home to care for a sick child. Or maybe a worker is afraid to come to work because they are immunocompromised or live with someone who is immunocompromised. How will you run your business if you don’t have enough people coming to work?

OSHA inspection. If any of your employees believes that you are not taking the necessary precautions to protect them from exposure to COVID-19, they can call OSHA and make a complaint against your business. A federal OSHA inspector may show up at your business to conduct an inspection. They will want to see evidence of your compliance with the OSHA laws, regulations, and guidance. Oh, and during the inspection, if they see something that is unsafe, even though completely unrelated to the initial complaint, they can cite you for it. If you can’t show compliance, you may receive a citation and fine. [And remember: you cannot, and should not, retaliate against any employee for making a complaint to OSHA.]

Employee turnover. Once the pandemic is over, your employees are going to remember how they were treated during the pandemic. Did you listen to their concerns? Or were you dismissive of them? When the economy stabilizes and the job market opens up, the employees who felt like the company did not care about their safety are going to look around for other opportunities. And what do you think those departing employees going to say about your business on job hunting sites?

Union organizing. Less likely, but still within the realm of possibilities. When employees feel like management is not listening to them, or does not care about their safety, they may reach out to a third party, such as a union, to act on their behalf. Do you really want union organizers sniffing around your employees?

Lawsuits. The least of your concerns, actually. While it is extremely difficult to pinpoint where a person was exposed to COVID-19, that is not going to stop enterprising lawyers from filing lawsuits against businesses to see if they can scare up a quick settlement Some states, such as Georgia, have enacted statutes that provide immunity from liability for COVID-19 exposure, which makes it even less likely that a lawsuit will be successful.

Adverse publicity. If your business is open to the public, you can count on members of the public to post something on social media about your compliance (or lack thereof) with COVID precautions or local orders. With photos. Do you want to be that business?

Look, we are all tired of COVID-19. Heck, I’m tired of writing about it. But until there is a reliable vaccine, it’s not going away, so we all need to do what we can to minimize the spread.

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.

©2020 Kathleen J. 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.

Jurors Say the Darnedest Things

Photo by Alexandra Maria on Pexels.com

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

During a trial, lawyers can be so focused on the law and facts of a case that they may not recognize that jurors may be focused on different things entirely. A federal case out of Connecticut makes this point quite nicely. (SEC v. Westport Capital Markets, LLC, No. 3:17-cv-02064 (JAM)(D.C. Conn., 10/26/20). It is not a labor or employment case, but the conduct of a particular juror is so interesting I had to write about it.

The Securities and Exchange Commission (SEC) filed a civil action against Westport Capital Markets, LLC, and its owner and chief executive officer, Christopher E. McClure, for failing to comply with their disclosure obligations under the Investment Advisers Act. The district court granted summary judgment in favor of the SEC on three of its claims, and the jury at trial ruled for the SEC on the two remaining claims.

After the trial, one of the jurors wrote a glowing letter to one of the SEC’s attorney’s congratulating him on the victory and complimenting the presentation of his case at trial. In that letter, the juror also wrote this about the wife of defendant McClure:

Here’s an aside you might find interesting. During our deliberations we spoke of many things and McClure’s wife came up. She looked like she should have been at the Country Club playing Bridge. Her appearance came up and one of the jurors (who was a store manager at Macy’s in West Hfrd) asked if anyone noticed her shoes—I did! The manager told us they cost $3000 a pair. Ouch! You might pass that on to defense attorneys you know.

Ouch, indeed! That’s right, the jurors were commenting on the appearance and the three thousand dollar shoes worn by the defendant’s wife. I imagine that they were very nice shoes, but they clearly did not make the jury sympathetic to the defendant’s case. (And the juror’s letter was also not a reason to set aside the verdict, said the court).

This is why I take great care to give instructions to clients and witnesses how to dress at trial. Before one trial in Atlanta federal court, I found myself at a Big and Tall store buying button up shirts and ties for a client’s manager to wear because he did not own any. I have also told a client’s officer to leave her Louboutin shoes at home when she came to court. Appearances matter, especially at trial.

Coincidentally, I have also heard that juries tend to have a higher opinion of attorneys who dress well and look “prosperous,” the theory being that if the attorney is prosperous, she or he must be a good attorney. This may explain why there are always custom suit makers at many bar functions. And it means that maybe I need to find some $3,000 shoes to wear at my next trial….

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.

©2020 Kathleen J. 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.

Do I Need To Give My Employees Time Off to Vote?

Photo by cottonbro on Pexels.com

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

Election Day is one week away, so it is a good time for employers to review the laws governing voting leave in the states where they do business. Chances are that you may be required to give employees some time off to vote.

In Georgia, there is a law that generally requires employers to give employees leave time to vote. O.C.G.A. 21-2-404 provides as follows:

Each employee in this state shall, upon reasonable notice to his or her employer, be permitted by his or her employer to take any necessary time off from his or her employment to vote in any municipal, county, state, or federal political party primary or election for which such employee is qualified and registered to vote on the day on which such primary or election is held; provided, however, that such necessary time off shall not exceed two hours; and provided, further, that, if the hours of work of such employee commence at least two hours after the opening of the polls or end at least two hours prior to the closing of the polls, then the time off for voting as provided for in this Code section shall not be available. The employer may specify the hours during which the employee may absent himself or herself as provided in this Code section.

Translated into regular language from legalese: a Georgia employer must give employees up to 2 hours off to vote, with the following conditions: (1) the employee gives reasonable notice of his/her intention to take the time off to vote, and (2) the employee’s work schedule on Election Day does not begin two or more hours after the polls open or end two or more hours before the polls close.

An employer who violates the statute is guilty of a misdemeanor.

The statute does not specify whether an employer must pay the employee during this voting leave, which means that an employer is not required to pay employees for their voting leave time. If an employer decides to pay employees for voting leave time, it should be consistent in its practice–if you decide to pay one employee for voting leave time, you should pay all employees for voting leave time.

The Georgia statute predates the current early voting periods. A literal reading of the statute would make it applicable only to voting leave on Election Day, and not during the entire voting period. However, there may be a practical reason for an employer to allow employees to use voting leave during the early voting period, especially when long delays in voting are expected on Election Day–it will limit the number of employees who are out of work at one time to vote. In other words, an employer can use an expanded voting leave policy to spread out the number of absent employees during the early voting period rather than have a large number out on Election Day. As always, an employer needs to be consistent in the application of its policy to avoid potential claims of discrimination.

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.

©2020 Kathleen J. 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.

Sorry Dude: Title VII Does Not Protect An Expectant Father From Pregnancy Discrimination

Photo by Anna Shvets on Pexels.com

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

Yes, you read that right–an expectant father cannot assert a claim for pregnancy discrimination under Title VII of the Civil Rights Act of 196, as amended. And we know this because an expectant father in New York tried to assert such a claim under Title VII and New York law, and the lawsuit was dismissed. (Van Soeren v. Disney Streaming Serv. , S.D.N.Y., 19 Civ. 10196 (NRB), 10/16/20). Not surprisingly, the Court held that Title VII’s prohibition on discrimination on the basis of pregnancy applies to employees who are actually pregnant, and not to spouses of pregnant employees.

Based on the facts alleged in the lawsuit (and the case was dismissed on a motion to dismiss, so we only have the plaintiff’s side of things), the plaintiff, Van Soeren, worked in a pretty toxic work environment. He alleged that various supervisors and co-workers “sham[ed],” “harass[ed],” and “treated [him] differently from all other employees at the Company” as a result of his “familial status vis a vis his spouse’s pregnancy.” For example, before plaintiff had disclosed his wife’s pregnancy to anybody at work, a co-worker said to plaintiff that he “shouldn’t have a kid,” and in another instance stated, within hearing distance of plaintiff, “I don’t know why he [plaintiff] decided to have a kid.” Another employee asked plaintiff whether he had a good reason for having a child. In one instance, presumably once plaintiff told his co-workers that his wife was pregnant, another co-worker sprayed baby powder on plaintiff. When Van Soeren returned to work after paternity leave, that same co-worker allegedly made a comment to plaintiff about still birth and improperly developed fetuses. Charming.

So while the plaintiff’s co-workers were definitely obnoxious, their actions did not amount to pregnancy discrimination against the plaintiff. At best, the plaintiff had a claim of discrimination on the basis of “familial status,” which is not covered by Title VII.

Even though the plaintiff failed to state a claim for pregnancy discrimination, an employer should not tolerate the kind of conduct allegedly directed at this plaintiff by his co-workers. If these folks are making negative comments about children and childbirth to a man, it is likely they may say the same things to a pregnant woman–and that could lead to a valid claim under Title VII. Furthermore, this kind of workplace bullying is not likely to enhance employee morale or productivity.

Keep in mind also that a new father may still have rights under the FMLA or state leave laws if he works for a covered employer.

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.

©2020 Kathleen J. 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 You Require Your Employees to Be Vaccinated for COVID-19? Should You?

Photo by RF._.studio on Pexels.com

By Kathleen Jennings (kjj@wimlaw.com)

An FDA approved vaccine for COVID-19 has arrived, so employers may be wondering whether they can require employees to be vaccinated. The answer is generally yes, but should an employer make vaccines mandatory? Here are some important considerations and exemptions.

Considerations:

  • Vaccines are medical examinations under the ADA and, if they are to be required, must be job-related and consistent with business necessity or justified by a direct threat. It is a non-brainer that healthcare employers should make vaccines mandatory due to the potential exposure of employees to COVID-19. For other businesses, they will need to balance the possibility of exposure, consequences of exposure (how many employee absences at one time can the business tolerate?), and utility of the vaccine. Will a full complement of vaccinated employees allow you to resume business as usual?
  • Know your employees. How will they react to a mandatory vaccine rule? Will they comply? Are they likely to have a political objection to a mandatory vaccine rule? Will they rebel? Will they seek out a union organizer to help them rebel?
  • If vaccines are mandatory, will your workers’ compensation policy cover the side effects of a vaccine if an employee experiences a reaction? Check with your carrier. This will vary state to state.
  • What will OSHA require? Keep an eye on OSHA. If OSHA requires mandatory vaccines as part of an employer’s general duty to provide a safe workplace, then employers don’t have much choice; they’ll need to have a mandatory vaccine rule.
  • What will company leadership do? If the company’s leaders roll up their sleeves and get vaccinated as soon as possible, this will send a message to other employees.
  • Does state law require vaccines?
  • Do you have a collective bargaining agreement? If yes, it must be reviewed before implementing a mandatory vaccine rule. Even if the CBA does not require that the union agree to such a rule, it is generally a good idea to give advance notice to the union before implementing such a rule.

Exemptions:

An employer that implements a rule that requires employees to be vaccinated must build in exemptions for religion and disability.

Religion: An employee may be exempt from taking a required vaccine if vaccination violates a sincerely held religious belief. When deciding whether an employee is seeking an exemption based upon a simple disbelief in vaccination versus a religious objection that is part of a larger belief system, the courts look to the U.S. Supreme Court’s United States v. Seeger decision, which framed the the question to be asked as: “[D]oes the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?” Deep stuff, but it basically boils down to the difference between someone who does not believe in vaccination based on statements of media figures or a general distrust of authority, and a Christian Scientist. The first will not be exempt from a vaccination requirement, while the second will be exempt. Note that courts do not look favorably on seeking documentation from a pastor as to the sincerity of a person’s religious beliefs, so do not ask for it.

If an employee is exempt from a vaccination requirement on the ground of a sincerely held religious belief, the employer may need to look at making reasonable accommodations for that employee. In the case of COVID-19, that could look like social distancing and mask requirements in the proximity of the unvaccinated employee, or the employee may work remotely, if the job can be performed remotely.

Disability: Similarly, there may be employees who may be exempt from a vaccination requirement on the basis of a disability. They may have a serious allergy to a component of a vaccine, or they may suffer from a medical condition that could be worsened by a vaccination.

An employer can ask an employee seeking an exemption from a vaccination requirement on the basis of disability for medical documentation to support the exemption. Of course, all medical information must be maintained as confidential in a file separate from the employee’s personnel file. Similar to the situation of the employee exempted by religion, discussed above, the employer may need to provide a reasonable accommodation to the exempted disabled employee.

Now is the time for employers to prepare a vaccine plan as part of a larger COVID-19 strategy.

  • What approach are you going to use: are you going require vaccines for all employees, some employees, or none at all?
  • If you require vaccination, are you prepared to take action, up to including discharge, against those who refuse to get vaccinated and do not qualify for an exemption?
  • Will you offer incentives to convince employees to voluntarily get vaccinated?
  • How will you identify those who are legally exempted from vaccination?
  • What accommodations can you offer to those who are legally exempted from vaccination?

You’ve heard it a million times, but I’ll say it: the current pandemic is an unprecedented situation. The best course is to seek advice from qualified counsel as you move forward.

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.

©2020 Kathleen J. 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.

Employee or Independent Contractor? DOL Issues Proposed Worker Classification Rule

Photo by Karolina Grabowska on Pexels.com

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

Worker classification is a hot issue issue right now. The recent California law that classifies most workers as employees has completely upended the gig economy in that state, so it is no surprise that the law is being challenged by a number of business groups.

Under federal law, whether an employer classifies a worker as an employee or an independent contractor can have major economic consequences, especially if the worker is misclassified. For example, wrongly misclassifying an employee as an independent contractor can result in liability under the Fair Labor Standards Act (FLSA) for unpaid minimum wage and/or overtime compensation. Multiplied by two if the misclassification is considered a willful violation of the FLSA.

Today, the U.S. Department of Labor (DOL) announced a proposed rule offering what it claims to be clarity to determine whether a worker is an employee under the Fair Labor Standards Act (FLSA) or an independent contractor.

 In the proposed rule, the DOL would:

  • Adopt an “economic reality” test to determine a worker’s status as an FLSA employee or an independent contractor. The test considers whether a worker is in business for themselves (independent contractor) or is economically dependent on a putative employer for work (employee);
  • Identify and explain two “core factors,” specifically: (1) the nature and degree of the worker’s control over the work; and (2) the worker’s opportunity for profit or loss based on initiative and/or investment. These factors help determine if a worker is economically dependent on someone else’s business or is in business for themselves;
  • Identify three other factors that may serve as additional guideposts in the analysis including: (1) the amount of skill required for the work; (2) the degree of permanence of the working relationship between the worker and the potential employer; and (3) whether the work is part of an integrated unit of production; and
  • Advise that the actual practice is more relevant than what may be contractually or theoretically possible in determining whether a worker is an employee or an independent contractor.

As a practical matter, this Proposed Rule is intended to be more employer-friendly than the guidance of the previous administration on the same issue. It is not clear if this Proposed Rule will be enacted as a Final Rule before the election. If enacted before the election, a change in administration after the election likely will result in further change.

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.

©2020 Kathleen J. 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.

Telecommuting as a Reasonable Accommodation Under the ADA: The Pandemic Trial Run

Photo by Andrea Davis on Pexels.com

In the times before COVID-19, there were people (like the author) who telecommuted, but we were definitely in the minority. Now, thanks to the pandemic, many more people have been working remotely, and doing so successfully. And according to some new EEOC Guidance, successful telecommuting could be considered something of a trial run for those employees who ask to work remotely after the pandemic as a reasonable accommodation under the Americans With Disabilities Act (ADA).

This is a new Q & A from the EEOC’s “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws:”

Q: Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request? (9/8/20; adapted from 3/27/20 Webinar Question 22)

A: Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.

In a nutshell: if an employee with a disability had requested telecommuting as a reasonable accommodation before COVID-19, and that request was denied on the grounds that the employer did not think telecommuting would be workable, and then that employee successfully telecommutes during the pandemic, now the employer may no longer have grounds to deny the telecommuting as a reasonable accommodation after all of this pandemic stuff is over. Why? Because the pandemic telecommuting operated as a “trial run” that showed that the employer’s initial concerns about teleworking may be unfounded. At a minimum, the employer cannot simply deny the request to work remotely on the ground that it was denied previously. Instead, the employer must work through the interactive process with the employee to determine what accommodation is reasonable.

Although I am always reminding employers to be consistent in their treatment of employees, this is an exception to that rule. An employer may need to treat a disabled employee differently from other employees because the disabled employee needs accommodations that other employees do not. The interactive process by which an employer, the disabled employee, and the employee’s health care provider discuss and decide upon a reasonable accommodation requires an individualized assessment of the employee’s abilities and needs.

The takeaway: The duty to provide reasonable accommodation is a fundamental statutory requirement under the ADA. An employer should respond expeditiously to a request for reasonable accommodation. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible.  Similarly, the employer should act promptly to provide the reasonable accommodation. Unnecessary delays can result in a violation of the ADA.

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.

©2020 Kathleen J. 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.