They Say It’s Your Birthday!

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

This week, on the Cover Your Assets Labor and Employment Law Podcast, Thom and I discuss the recent case involving an employee who successfully sued his employer because the employer held a birthday party in his honor. We go beyond the headlines and discuss how this litigation might have been avoided. Have a listen!

Dealing with An Employee’s Request for Leave As A Reasonable Accommodation

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

[Have you listened to the Cover Your Assets Labor and Employment Podcast? Listen to it here!]

The Americans With Disabilities Act (ADA) prohibits discrimination against persons with disabilities. What sets it apart from other anti-discrimination statutes is the requirement that an employer provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer. [Title VII does require some reasonable accommodations for persons with closely held religious beliefs, but the standard is slightly different.]

So what is a “reasonable accommodation?” It is the stuff of much litigation, for starters.

The EEOC tells us that a reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. Basically, the determination of what is a reasonable accommodation must be made on a case-by-case basis through what is known as the interactive process–a conversation between the employer and employee about what accommodation(s) would help the employee perform the job and the impact on the employer if it provided such accommodations. And I shouldn’t have to tell you–document every step of that process.

It is important to note that an employer doesn’t have to provide an accommodation if doing so would cause “undue hardship” to the employer. Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.

A recent example of a requested accommodation that was simply not reasonable comes to us from Utah. In Anderson v. Zions Bancorporation N.A., No. 2:19-cv-00771, 2022 BL 66589, 2022 Us Dist Lexis 35716 (D. Utah Feb. 28, 2022), the plaintiff alleged that his former employer violated the ADA by denying his request for a reasonable accommodation, retaliating against him, and wrongfully terminating him after he requested a leave of absence due to depression and anxiety. The plaintiff requested almost one year of continuous leave as an accommodation for his mental health issues, and the employer found such a lengthy amount of leave to be an undue hardship. The court agreed.

We have seen other cases where employees seek leave without any end point, and such indeterminate leave is also considered to be an undue hardship for an employer.

If an employee requests leave as a reasonable accommodation, it is important for the employer to nail down exactly when the employee expects to come back to work. (As an aside, you should also determine if FMLA applies). If the employee doesn’t tell you, ask! Give them a deadline to provide the information. Then determine if the amount of leave is reasonable or presents an undue hardship. How long can you keep this job open? How long can other employees cover for this person?

If the employee does not come back on the anticipated date, the employer should follow up and determine if the employee is ever going to come back to work. If they don’t respond, they have essentially abandoned the job.

And speaking of FMLA, if an employee does not come back to work at the expiration of FMLA leave, it is generally not a good idea to terminate them immediately. Because if the reason that the employee needs the leave is because they have a disability, then the the ADA will apply and you need to commence the interactive process to determine if they need a reasonable accommodation, such as more unpaid leave.

This can get pretty complicated, so it is best to talk these issues over with trusted employment 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 2022 by 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.

When is COVID-19 Considered a “Disability” Under the ADA?

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

Today, the EEOC issued some new guidance that purports to clarify circumstances in which COVID-19 may or may not cause effects sufficient to meet the definition of “actual” or “record of” a disability for various purposes under Title I, as well as section 501 of the Rehabilitation Act. However, finding clarity on anything related to the ADA is a challenge, to say the least.

As an initial matter, the EEOC tells us that COVID-19 is not always considered to be a “disability.” Rather, each case must be examined on its own facts.

The ADA’s three-part definition of disability applies to COVID-19 in the same way it applies to any other medical condition. A person can be an individual with a “disability” for purposes of the ADA in one of three ways:

  1. “Actual” Disability: The person has a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function);
  2. “Record of” a Disability: The person has a history or “record of” an actual disability (such as cancer that is in remission); or
  3. “Regarded as” an Individual with a Disability: The person is subject to an adverse action because of an individual’s impairment or an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is objectively both transitory (lasting or expected to last six months or less) and minor.

The ADA uses a case-by-case approach to determine if an applicant or employee meets any one of the three above definitions of “disability.”

How does this apply to COVID-19? Depending on the specific facts involved in an individual employee’s condition, a person with COVID-19 has an actual disability if the person’s medical condition or any of its symptoms is a “physical or mental” impairment that “substantially limits one or more major life activities.” An individualized assessment is necessary to determine whether the effects of a person’s COVID-19 substantially limit a major life activity. This will always be a case-by-case determination that applies existing legal standards to the facts of a particular individual’s circumstances.

Keep in mind that a person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA.

Examples of Individuals with an Impairment that Substantially Limits a Major Life Activity:

  • An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee’s doctor attributes to the virus, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.
  • An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking.
  • An individual who has been diagnosed with COVID-19 experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months. The individual is substantially limited in cardiovascular function and circulatory function, among others.
  • An individual diagnosed with “long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities, and therefore has an actual disability under the ADA.

Examples of Individuals with an Impairment that Does Not Substantially Limit a Major Life Activity:

  • An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.
  • An individual who is infected with the virus causing COVID-19 but is asymptomatic—that is, does not experience any symptoms or effects—is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is the case even though this person is still subject to CDC guidance for isolation during the period of infectiousness.
  • As noted above, even if the symptoms of COVID-19 occur intermittently, they will be deemed to substantially limit a major life activity if they are substantially limiting when active, based on an individualized assessment.

To further complicate matters, in some cases, regardless of whether an individual’s initial case of COVID-19 itself constitutes an actual disability, an individual’s COVID-19 may end up causing impairments that are themselves disabilities under the ADA. For example:

  • An individual who had COVID-19 develops heart inflammation. This inflammation itself may be an impairment that substantially limits a major bodily function, such as the circulatory function, or other major life activity, such as lifting.
  • During the course of COVID-19, an individual suffers an acute ischemic stroke. Due to the stroke, the individual may be substantially limited in neurological and brain (or cerebrovascular) function.
  • After an individual’s COVID-19 resolves, the individual develops diabetes attributed to the COVID-19. This individual should easily be found to be substantially limited in the major life activity of endocrine function.

In some cases, an individual’s COVID-19 may also worsen the individual’s pre-existing condition that was not previously substantially limiting, making that impairment now substantially limiting. For example:

  • An individual initially has a heart condition that is not substantially limiting. The individual is infected with COVID-19. The COVID-19 worsens the person’s heart condition so that the condition now substantially limits the person’s circulatory function.

The situations in which an employer might “regard” an applicant or employee with COVID-19 as an individual with a disability are varied. Some examples include:

  • An employer would regard an employee as having a disability if the employer fires the individual because the employee had symptoms of COVID-19, which, although minor, lasted or were expected to last more than six months. The employer could not show that the impairment was both transitory and minor.
  • An employer would regard an employee as having a disability if the employer fires the individual for having COVID-19, and the COVID-19, although lasting or expected to last less than six months, caused non-minor symptoms. In these circumstances, the employer could not show that the impairment was both transitory and minor.

It is possible that an employer may not have engaged in unlawful discrimination under the ADA even if the employer took an adverse action based on an impairment. For example, an individual still needs to be qualified for the job held or desired. Additionally, in some instances, an employer may have a defense to an action taken on the basis of the impairment. For example, the ADA’s “direct threat” defense could permit an employer to require an employee with COVID-19 or its symptoms to refrain from physically entering the workplace during the CDC-recommended period of isolation, due to the significant risk of substantial harm to the health of others.

Of course, an employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition to disallow the employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.

The Takeaway: Most people who become sick with COVID-19 are not going to have a “disability” as defined by the ADA. However, there is a small subset of people, such as the “COVID long-haulers” who may be affected by COVID-19 to such an extent that they have a disability, as defined by the ADA, and therefore, those folks are protected from unlawful discrimination. This should be determined on a case-by-case basis.

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 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.

Can You Require Your Employees to Be Vaccinated for COVID-19? Should You?

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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.

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

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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.