Georgia Now Has A COVID Immunity Law

Photo by Nandhu Kumar on Pexels.com

Yesterday, Georgia Governor Brian Kemp signed into law S.B. 359, which will protect businesses and other organizations in Georgia from potential lawsuits over Covid-19 exposure. The law takes effect immediately.

Georgia businesses, and healthcare facilities and providers in particular, will generally be protected from liability over COVID-19 exposure except in cases of gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.

Furthermore, businesses can provide additional protection from liability by posting or printing specific warnings, which will create a rebuttable presumption of assumption of the risk by a claimant.

The rebuttable presumption of assumption of the risk is created by printing the following warning on any receipt or proof of purchase for entry, including but not limited to an electronic or paper ticket or wristband, issued to a claimant by the individual or entity for entry or attendance, includes a statement in at least ten-point Arial font placed apart from any other text:

Any person entering the premises waives all civil liability against this premises owner
and operator for any injuries caused by the inherent risk associated with contracting
COVID-19 at public gatherings, except for gross negligence, willful and wanton
misconduct, reckless infliction of harm, or intentional infliction of harm, by the
individual or entity of the premises.

Alternatively, businesses and healthcare facilities or providers can post the following sign at a point of entry to the premises, in at least one-inch Arial font placed apart from any other text:


Warning
Under Georgia law, there is no liability for an injury or death of an individual entering
these premises if such injury or death results from the inherent risks of contracting
COVID-19. You are assuming this risk by entering these premises.

Seven other states–Kansas, Louisiana, Mississippi, North Carolina, Oklahoma, Utah, and Wyoming, have passed similar measures. Other states, including Nevada, Ohio and Tennessee, are considering similar legislation. Senate Republicans are trying to include immunity on a federal level in the next coronavirus relief package. Stay tuned for more developments!

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.

Maintaining the Confidentiality of Employee Health Information During the Pandemic

Photo by Andrea Piacquadio on Pexels.com

In order to take the CDC recommended precautions to minimize the spread of COVID-19 in the workplace, employers must gather information about employee health. What can they gather, and what should they do with it? For answers, we look to the the Americans with Disabilities Act (ADA). The ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:

  •  An employee’s ability to perform essential job functions will be impaired by a medical condition; or   
  • An employee will pose a direct threat due to a medical condition.

 This reasonable belief “must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination.

Not surprisingly, the EEOC has concluded that based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard, which justifies making inquiries to determine if employees are infected with COVID-19.  Therefore, employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19.  Currently these symptoms include, for example, fever, chills, cough, shortness of breath, or sore throat.

Employers may also receive information from employees regarding certain health conditions that may make them or close family members more vulnerable to complications from COVID-19.

What’s an employer to do with all of this health information? Keep it confidential.

The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.

It is also a good idea to limit access to confidential employee health information to a few trusted management level employees, such as a Human Resources Manager or Safety Manager, and if your company has one, a company nurse. Remember, if someone doesn’t know about an employee’s health condition, she can’t use that knowledge as a basis to discriminate against the employee.

What happens if employees ask whether a certain employee has tested positive for COVID-19? The correct response is to say that you cannot give out confidential health information. Even if it is a small workplace, and folks may guess that the employee who has been out for 14 days may have COVID-19, do not be tempted to confirm any rumors.

Keep quiet, and keep washing those hands!

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.

Home Alone: Current CDC Guidance on At-Home Isolation for Persons Infected with COVID-19

Photo by Pixabay on Pexels.com

Many states continue to see rising numbers of persons with positive COVID-19 tests, which means that workplaces in those states are dealing with employees who are infected with COVID-19. The CDC recommends that employees who test positive for COVID-19 (using a viral test, not an antibody test) should be excluded from work and remain in isolation if they do not need to be hospitalized. But for how long?

Recently, the CDC has updated the recommendations for discontinuing home isolation as follows:

Persons with COVID-19 who have symptoms and were directed to care for themselves at home may discontinue isolation under the following conditions:

  • At least 10 days have passed since symptom onset and
  • At least 24 hours have passed since resolution of fever without the use of fever-reducing medications and 
  • Other symptoms have improved.

[However, for patients with severe illness, duration of isolation for up to 20 days after symptom onset may be warranted. Consider consultation with infection control experts.]

Persons infected with SARS-CoV-2 who never develop COVID-19 symptoms may discontinue isolation and other precautions 10 days after the date of their first positive RT-PCR test for SARS-CoV-2 RNA.

Be aware that the recommended isolation time for employees who have been exposed to COVID-19 is longer than that for those infected with COVID-19. CDC recommends 14 days of quarantine after exposure based on the time it takes to develop illness if infected. Thus, it is possible that a person known to be infected could leave isolation earlier than a person who is quarantined because of the possibility they are infected.

Wash your hands, wear your mask, and be safe out there!

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.

Handling Employees Who Refuse to Comply With a Workplace Mask Rule

Photo by Pixabay on Pexels.com

The CDC recommends the wearing of face masks as one way to slow the spread of the novel coronavirus, and 29 states and the District of Columbia have instituted or announced statewide orders requiring face coverings in public, with similar but varying requirements. Even states that do not have mask orders are strongly recommending that citizens wear masks in public to slow the spread of the coronavirus (Hello, Georgia). So it is not surprising that many private employers have enacted work rules that require employees to wear face coverings at work. But where there are work rules, there are always employees who just don’t want to follow them. To make matters worse, the issue of face coverings is highly politicized, and the internet and social media provide creative but usually invalid excuses for employees to use when they refuse to wear a face covering. So let’s talk about how a private employer can handle employee excuses for refusing to wear a face covering.

  • Wearing a mask violates my religion. This excuse requires further inquiry by the employer. Title VII requires covered employers to accommodate the sincerely held religious beliefs of employees. Therefore, in response to this statement, the employer can inquire into what sincerely held religious beliefs the employee ascribes to, and what part of that religion’s doctrine forbid face coverings. I am aware of religions that require face coverings, but not one that would forbid a person from wearing one, so this should lead to an interesting conversation.
  • I can’t wear a mask for medical reasons. The Americans With Disabilities Act generally requires a covered employer to provide a reasonable accommodation to a qualified person with a disability. Therefore, this type of statement should trigger the ADA’s interactive process through which the employer and employee work out a reasonable accommodation. The employer should obtain permission from the employee (in the form of a signed HIPAA release) to confer with the employee’s physician to discuss possible reasonable accommodations. Of course, all medical information should be kept confidential.
  • I can’t wear a mask because I can’t breathe and I will pass out. If this is due to a documented medical condition (perhaps COPD or asthma?), then the employer should start the interactive process discussed above. The employer may need to provide different types of masks that are more comfortable for those with breathing problems or mask free breaks during the workday. Otherwise, the employee needs to wear the mask; medical professionals wear masks all the time without passing out.
  • I don’t want to wear a mask because it makes me breathe in my own CO2. This excuse seems to based upon internet junk science and is not valid.
  • Wearing a mask violates my liberty rights. Just no. This is a not a valid excuse.
  • I can’t wear a mask because it makes me feel anxious or claustrophobic. If this excuse is based upon an actual diagnosis from a health care professional, the employer should start the interactive process discussed above. The employer can offer different mask options so that the employee can pick one that is most comfortable and perhaps provide mask free breaks during the workday. Absent a medical diagnosis, however, this may just be another way for an employee to say that they just don’t want to wear a mask.
  • I don’t care if you have a rule; I won’t wear a mask. At least this employee is being honest with you. However, the refusal to follow an employer’s reasonable work rule is considered insubordination and it should result in some kind of discipline. The employer should be consistent in the way it disciplines employees for violations. If you ignore some employee violations of a rule but enforce the rule against others, you are setting yourself up for a possible claim of discrimination. And failing to enforce a workplace rule is often worse than having no rule at all. So you will need to deal with the mask refuser appropriately.

As a final note–if you have a rule requiring face coverings at work–make sure that employees are not only wearing face coverings, but that they are wearing them correctly. The face covering should cover the nose and mouth. You may need to provide some gentle reminders to employees from time to time.

Stay safe!

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.

Let’s Talk About Employee Speech in the Workplace

Photo by cottonbro on Pexels.com

How much control can an employer exercise over employee speech in the workplace?

As an initial matter, let’s talk about the First Amendment of the U.S. Constitution. The First Amendment protects speech against interference by the government; it does not protect speech against interference by a private employer. So employees of private employers cannot properly invoke their “first amendment rights” against any employer restrictions on their speech.

Private employers do need to be aware that Section 7 of the National Labor Relations Act (NLRA) prohibits interference with employee protected concerted activity, which includes workplace discussions about terms and conditions of employment (which is pretty broad, if you think about it). This would include employee conversations with one another about their wages, supervisors or work environment. In fact, if your Employee Handbook provides that employees cannot discuss their wages or salaries with other employees, that provision arguably violates Section 7 and may need to be removed.

These days, Section 7 may protect group chatter or actions about how the company is dealing with COVID-19 cases, such as the refusal by a group of employees to work in an area they believe is not properly sanitized, or the refusal by a group of employees to work near another employee who displays symptoms of COVID-19 infection.

If you thought that the National Labor Relations Act applied only to unionized workplaces, you thought wrong. Coverage under the NLRA is very broad and is based upon the dollar amounts of goods and services in interstate commerce, and different standards apply to different industries. It does not apply to independent contractors–but you’d better make sure that your independent contractors are properly classified under the most recent applicable standard. [Board law is a moving target that can change depending upon the political makeup of the Board members and Office of the General Counsel]. It is best to check with qualified labor and employment counsel to determine if the NLRA applies to your business and employees.

Other federal laws may protect employee speech about workplace safety or discrimination. However, knowingly false or malicious complaints about safety violations or discrimination may bit necessarily be protected.

So what kind of workplace speech can a private employer control? The kinds of things that have no place in the workplace, such as profanity, discriminatory slurs, or fighting words. Prohibiting talk about politics may be trickier–if employees are talking about how a politician or candidate may affect their work, job, or pay, it may be protected by Section 7.

Nevertheless, an employer can–and should–have a work rule that requires employees to talk with one another in a respectful way. In addition, it should have an effective open door policy or complaint procedure that employees can utilize if they have complaints about anything. As a practical matter, it is in a company’s interest to encourage employees to bring all complaints to the attention of the company rather than to a third party, such as a government agency or union organizer. And in the case of complaints about discriminatory slurs or harassment, such a procedure, if effective, can provide a defense against potential legal liability.

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 An Employer Terminate An Employee Who Refuses to Wear a Mask at Work?

Photo by cottonbro on Pexels.com

As several states see dramatic increases in the number of people who test positive for COVID-19, employers must be very proactive in taking steps to protect workers and customers from the spread of the virus.  According to OSHA, employers should assess worker exposure to hazards and risks and implement infection prevention measures to reasonably address them consistent with OSHA Standards. Such measures could include promoting frequent and thorough handwashing or sanitizing with at least 60% alcohol hand sanitizer; encouraging workers to stay at home if sick; encouraging use of cloth face coverings; and training them on proper respiratory etiquette, social distancing, and other steps they can take to protect themselves. Employers should clean and disinfect frequently touched surfaces (e.g., door handles, sink handles, workstations, restroom stalls) at least daily, or as much as possible. 

OSHA generally recommends that employers encourage workers to wear face coverings at work if appropriate. Face coverings are intended to prevent wearers who have COVID-19 without knowing it (i.e., those who are asymptomatic or pre-symptomatic) from spreading potentially infectious respiratory droplets to others. This is known as source control.

Employers have the discretion to determine whether to allow employees to wear cloth face coverings in the workplace based on the specific circumstances present at the work site. For some workers, employers may determine that wearing cloth face coverings presents or exacerbates a hazard. For example, cloth face coverings could become contaminated with chemicals used in the work environment, causing workers to inhale the chemicals that collect on the face covering. Workers may also need to use PPE that is incompatible with the use of a cloth face covering (e.g., an N95 filtering facepiece respirator).

Note that cloth face coverings are not considered PPE.

While OSHA and the CDC encourage the use of face masks, the wearing or face masks has become very politicized, and there are many who simply refuse to wear them.  

So what happens if an employer mandates that all employees must wear face masks at work, and an employee refuses?  Well, if an employee refuses a reasonable directive of his or her employer, it is considered insubordination, and the employee can be disciplined. If the employee continues to refuse to wear a mask despite repeated discipline and warnings of the consequences, he or she can be terminated.  

It is also important for the employer to avoid getting into political or idealogical arguments with employees who refuse to wear face masks.  In response to the employee who wants to start an argument, simply state:  “we are requiring the wearing face masks to comply with OSHA and CDC Guidance as a way to protect the health of our employees [and customers].  I am sorry that you do not agree, but this rule applies to everyone.  Anyone who does not follow the rule will be disciplined.”

As I have discussed in past posts, an employer must be consistent in its treatment of employees so that it can avoid claims of discrimination. Don’t look the other way when you see that Thomas is not wearing his mask but write up Karen when she does the same thing.

In rare instances, an employee may have a medical reason for not wearing a mask. If an employee claims that he or she cannot wear a mask due to a medical condition, the employer should go through the interactive process with the employee and his/her health care professional to determine if there is a reasonable accommodation that will still prevent the potential spread of the coronavirus.  [And if the employee presents a “reasonable accommodation” card that they have printed off the internet, you can toss it in the trash]. 

Stay safe and healthy!

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 An Employer Fire an Employee Because of Noisy Kids in the Background of Work Teleconference Calls? It Depends.

Photo by Anastasia Shuraeva on Pexels.com

A friend sent me an article about a woman who claimed that she was terminated from her job because her kids were heard in the background of her teleconference calls when she was working from home due to the pandemic.  She has retained a lawyer and is suing her employer, claiming gender discrimination, retaliation, gender harassment, intentional infliction of emotional distress, and wrongful termination (this happened in California).  

Now that many employees are working from home, it would seem that this is not an isolated situation.  So can an employer terminate an employee because her children are heard (or seen, in the case of video) in the background of work-related calls without exposure to liability in a lawsuit?  It depends.  We need to look at two important factors:  expectations and consistency.  And we will throw in a bit of flexibility.  

Expectations:   As a general rule, an employer can require its employees to conduct themselves in a professional manner.  To that end, the employer should communicate its expectations to employees so that everyone is on the same page. If an employer suddenly finds itself with many employees working from home rather than in an office, that employer should put its expectations of those remote workers in writing.  This can be in the form of an email or a more formal policy, but it can include things like making efforts to keep extraneous noise—kids, dogs, TV programs, heavy metal music—out of work-related calls. No cats walking across keyboards in the Zoom calls.  No inappropriate photos in the background of Zoom calls.  Another item to include would be guidelines for timekeeping and working hours.  This is an important issue especially for employers who have non-exempt workers that are telecommuting, and could be a subject of a blog post of its own.  

Consistency:  An employer should be consistent in its treatment of employees who violate its policy or fail to meet its expectations regarding professional behavior.  If an employer disciplines the female employee for having her children make noise in the background of business calls, but it does nothing to the male employee who has a barking dog in the background of business calls, that could be considered gender discrimination.  In other words, if the employer does not not want extraneous noise disrupting business calls or videoconferences, it should be consistent in the treatment of all employees who violate this policy.  

Flexibility:  In these challenging times, it also doesn’t hurt for an employer to show some flexibility. With schools not in session and day care options limited by the pandemic, many employees have young children at home with them while they work.  If a parent asks to schedule a conference call during the time that their child is napping in order to minimize disruptions, the employer should make an effort to work with them on this type of scheduling.  

However, if clients or customers make complaints about an employee’s lack of professionalism in their audio or video conference, the employer should document those complaints and follow up with the offering employee.  Complaints may also come from other employees.  I wouldn’t recommend terminating an employee for a first offense, but if the lack of professionalism continues despite counseling and warnings, an employer does have the option of termination.  If the employer has been clear in its expectations and consistent in its treatment of employees for similar behavior, this will help to minimize its potential liability if the terminated employee decides to file 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.

©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.

Is a Genetic Mutation a Disability? The Sixth Circuit Says Maybe.

Photo by Miguel Á. Padriñán on Pexels.com

Is a genetic mutation disability?  Specifically,  is the genetic mutation known as a BRCA1 mutation (Angelina Jolie revealed that she has this mutation) a “disability” under the Americans with Disabilities Act (ADA) even though the employee has not yet developed breast cancer?  In a case of first impression, the Sixth Circuit Court of Appeals said maybe.  (Darby v. Childvine, Inc., No. 19-4214 (6th Cir. June 30, 2020)).

Sherryl Darby underwent a double mastectomy following diagnosis of the growth of abnormal pre-cancerous cells along with the BRAC1 genetic mutation that contributes to abnormal cell growth. Invoking the Americans with Disabilities Act and Ohio law, Darby alleged she was discriminated against when her employer terminated her employment upon learning of her condition. (Interestingly, she did not bring a claim under GINA.) The district court dismissed her claims, concluding that Darby’s genetic mutation had not yet manifested into a disability cognizable under the ADA. The Sixth Circuit reversed the decision below and held that Ms. Darby’s allegations were sufficient to survive a motion to dismiss.

The key issue was whether Darby’s genetic mutation, which had not manifested in cancer, constitutes a “disability” under the ADA. Under the ADA, a disability as defined as “a physical or mental impairment that substantially limits one or more [of her] major life activities.” 42 U.S.C. § 12102(1)(A).  

Darby argued that her impairment substantially limits her normal cell growth as compared to the general population due to both a genetic mutation (BRCA1) that limits her normal cell growth and a medical diagnosis of abnormal epithelial cell growth serious enough to warrant a double mastectomy.  For purposes of Rule 12(b)(6) motion to dismiss, the Court agreed and found that Darby’s gene mutation and abnormal cell growth, though not cancerous, qualify as a disability under the ADA. See Lonergan v. Fla. Dep’t of Corr., 623 F. App’x 990 , 993 (11th Cir. 2015) (finding plaintiff successfully alleged a substantial limitation in major life activity of normal cell growth in part due to allegation of “abnormal growth of pre-cancerous cells”). 

The Court further noted that Darby’s claims are entitled to further consideration through discovery: “Particularly with less-well-understood medical issues like the BRCA1 genetic mutation and its effects on “abnormal epithelial cells,” expert medical testimony may help reveal whether Darby’s condition “substantially limits” normal cell growth.”

The Court also stated that a genetic mutation that merely predisposes an individual to other conditions, such as cancer, is not itself a disability under the ADA. The terms of the Act do not reach that far. See Shell v. Burlington N. Santa Fe Ry. Co., 941 F.3d 331 , 335-36 (7th Cir. 2019) (finding no ADA disability where plaintiff based his claim on conditions he feared he would develop as a result of obesity). In other words, in order to rise to the level of a disability, a genetic mutation must have some immediate effect on a person’s body that substantially limit a major life activity.  

The takeaway:  This is an area of the law that is still developing. Thus, each situation must be considered by an employer on a case by case basis.  In order to avoid potential liability under the ADA, an employer must be extremely cautious in its treatment of any employee who presents medical issues related to a genetic predisposition or mutation.  

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.

Testing Employees for COVID-19: What Employers Can and Cannot Do

Photo by cottonbro on Pexels.com

COVID-19 is still among us. Indeed, there are areas of the country where COVID-19 cases are surging.  In those areas especially, employers want to minimize the spread of the virus to other employees and customers or clients. So what tests can an employer require from employees to determine whether they have COVID-19?

For the answer to this question, we look at guidance issued by the U.S. Equal Opportunity Commission (EEOC).  The EEOC issued some technical assistance questions and answers entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”  And what the EEOC wants employers to know is that the EEOC considers testing employee temperatures or testing for COVID-19 to be “medial examinations,” and medical examinations must generally be job-related and consistent with business necessity.  

According the the EEOC, employers may do the following:

  • Employers may measure employees’ body temperature.
  • An employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. This is the testing, generally via a swab, to determine if someone has an active case of COVID-19. As discussed below, antibody tests are treated differently.

Employers may not do the following:

  • Employers cannot require antibody testing before allowing employees to re-enter the workplace.  In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. 

It is also important for employers to maintain all information about employee illness and testing as a confidential medical record in compliance with the ADA. The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. 

An employer should not reveal the identity of an employee who is sick with COVID-19 to other employees or the general public. (And please–make sure your employees don’t post this kind of information on social media!). However, an employer can disclose the name of an employee to a public health agency when it learns that the employee has COVID-19.

Stay safe out there!

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.

Who is the Equal Opportunity Harasser and Why Do We Care?

Photo by Andrea Piacquadio on Pexels.com

Who is the Equal Opportunity Harasser? It is the person who asks both men and women questions about their favorite sexual positions. The person who tells jokes that offend pretty much every ethnic group. The manager that screams at everyone and takes special delight in making employees cry. Basically, this is a person who is a complete jerk and a bully.

Why do we care?  From a legal standpoint, the “equal opportunity harasser” is a defense raised by employers to charges and lawsuits alleging harassment.  The gist of the defense is that because the equal opportunity harasser offends everyone, a plaintiff cannot prove that he or she harassed a particular individual because of sex, or race, or some other characteristic protected by Title VII.  Some federal courts have utilized this defense to absolve employers from liability for harassment in the workplace.  See, e.g., EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498, 508 (6th Cir. 2001) (explaining in a sex harassment case that “‘Title VII does not cover the ‘equal opportunity . . . harasser'” “because such person is not discriminating on the basis of sex.'” (internal citation omitted)). 

Now, many attorneys and scholars are questioning the continued validity of the equal opportunity harasser defense after some language contained in the U.S. Supreme Court’s ruling in Bostock v. Clayton County (the recent LBGTQ rights case) seems to cast doubt on it. Specifically, Justice Neil Gorsuch wrote:

The consequences of the law’s focus on individuals rather than groups are anything but academic. Suppose an employer fires a woman for refusing his sexual advances. It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex. Nor is it a defense for an employer to say it discriminates against both men and women because of sex. This statute works to protect individuals of both sexes from discrimination, and does so equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it. 

In other words, as my Mother always said, “two wrongs don’t make a right.”

Some attorneys and legal scholars are skeptical that the equal opportunity harasser defense has been completely eviscerated by the Supreme Court.  They argue that Title VII does not prohibit indiscriminate bullying in the workplace. 

We’ll need to wait and see how the lower courts interpret Justice Gorsuch’s language.

In the meantime, even if the equal opportunity harasser defense lives on, that does not necessarily mean that employers should tolerate the equal opportunity harasser.  Do you really want to have a workplace where folks dread coming to work every day because they expect to be yelled at or belittled? Where employee morale is low and employee turnover is high?  Is the equal opportunity harasser worth those costs?

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.