Tag: EEOC

You Have Mail (Better Read It): District Court Finds EEOC 90-Day Deadline Starts When Email Received

If a letter from the EEOC is in your virtual mailbox but you never open it, have you received it? Most of us are familiar with the requirement that a claimant who files an EEOC charge has 90 days to file a lawsuit after receiving what is usually required a “right-to-sue” letter from the agency. This is one of the deadlines that both plaintiff and defense counsel track on their calendars. But when is that notice officially “received” by the claimant — especially in these days of electronic correspondence? In Paniconi v. Abington Hospital-Jefferson Health, one Pennsylvania federal court decided to draw a hard line on when that date actually occurs.

A Cautionary Tale

Denise Paniconi worked for a hospital in Pennsylvania and filed a charge of discrimination with the EEOC alleging race and religious discrimination. The EEOC investigated and issued a right-to-sue letter dated September 8, 2021, which gave her 90 days to file her complaint. She filed her complaint 91 days after the EEOC issued the letter. The employer moved to dismiss the complaint for failing to comply with the 90-day deadline.

What ordinarily would just be a day counting exercise took a twist because of how the EEOC issued the notice. The EEOC sent both the plaintiff and her lawyer an email stating that there was an “important document” now available on the EEOC portal. Neither the plaintiff nor her lawyer opened the email or accessed the portal until sometime later. They argued that the 90-day filing deadline should run from the date that the claimant actually accesses the document, not from the date the EEOC notified them it was available.

The court dismissed the complaint for failing to meet the deadline. The opinion noted that although the 90-day period is not a “jurisdictional predicate,” it cannot be extended, even by one day, without some sort of recognized equitable consideration. Paniconi’s lawyer argued that the court should apply the old rule for snail mail  ̶  without proof otherwise, it should be assumed that the notice is received within three days after the issuance date. The court disagreed and pointed out that no one disputed the date that the email was sent  ̶   it was simply not opened and read by either Paniconi or her lawyer. The court said that there was no reason that those individuals did not open the email and meet the 90-day deadline.

Deadlines Are Important

This is another example of how electronic communication can complicate the legal world. The EEOC has leaned into its use of the portal, and the rest of the world needs to get used to it. The minute you receive an email or notice from the portal, you need to calendar that deadline. Some courts (at least this one) believe that electronic communication is immediate, and you may not get grace for not logging on and finding out what is happening with your charge. Yet another reason to stay on top of your emails.

Article By J. William Manuel and Anne R. Yuengert of Bradley Arant Boult Cummings LLP

For more labor and employment legal news, click here to visit the National Law Review.

© 2022 Bradley Arant Boult Cummings LLP

EEOC and the DOJ Issue Guidance for Employers Using AI Tools to Assess Job Applicants and Employees

Employers are more frequently relying on the use of Artificial Intelligence (“AI”) tools to automate employment decision-making, such as software that can review resumes and “chatbots” that interview and screen job applicants. We have previously blogged about the legal risks attendant to the use of such technologies, including here and here.

On May 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) issued long-awaited guidance on the use of such AI tools (the “Guidance”), examining how employers can seek to prevent AI-related disability discrimination. More specifically, the Guidance identifies a number of ways in which employment-related use of AI can, even unintentionally, violate the Americans with Disabilities Act (“ADA”), including if:

  • (i) “[t]he employer does not provide a ‘reasonable accommodation’ that is necessary for a job applicant or employee to be rated fairly and accurately by” the AI;
  • (ii) “[t]he employer relies on an algorithmic decision-making tool that intentionally or unintentionally ‘screens out’ an individual with a disability, even though that individual is able to do the job with a reasonable accommodation”; or
  • (iii) “[t]he employer adopts an [AI] tool for use with its job applicants or employees that violates the ADA’s restrictions on disability-related inquiries and medical examinations.”

The Guidance further states that “[i]n many cases” employers are liable under the ADA for use of AI even if the tools are designed and administered by a separate vendor, noting that “employers may be held responsible for the actions of their agents . . . if the employer has given them authority to act on [its] behalf.”

The Guidance also identifies various best practices for employers, including:

  • Announcing generally that employees and applicants subject to an AI tool may request reasonable accommodations and providing instructions as to how to ask for accommodations.
  • Providing information about the AI tool, how it works, and what it is used for to the employees and applicants subjected to it. For example, an employer that uses keystroke-monitoring software may choose to disclose this software as part of new employees’ onboarding and explain that it is intended to measure employee productivity.
  • If the software was developed by a third party, asking the vendor whether: (i) the AI software was developed to accommodate people with disabilities, and if so, how; (ii) there are alternative formats available for disabled individuals; and (iii) the AI software asks questions likely to elicit medical or disability-related information.
  • If an employer is developing its own software, engaging experts to analyze the algorithm for potential biases at different steps of the development process, such as a psychologist if the tool is intended to test cognitive traits.
  • Only using AI tools that measure, directly, traits that are actually necessary for performing the job’s duties.
  • Additionally, it is always a best practice to train staff, especially supervisors and managers, how to recognize requests for reasonable accommodations and to respond promptly and effectively to those requests. If the AI tool is used by a third party on the employer’s behalf, that third party’s staff should also be trained to recognize requests for reasonable accommodation and forward them promptly to the employer.

Finally, also on May 12th, the U.S. Department of Justice (“DOJ”) released its own guidance on AI tools’ potential for inadvertent disability discrimination in the employment context. The DOJ guidance is largely in accord with the EEOC Guidance.

Employers utilizing AI tools should carefully audit them to ensure that this technology is not creating discriminatory outcomes.  Likewise, employers must remain closely apprised of any new developments from the EEOC and local, state, and federal legislatures and agencies as the trend toward regulation continues.

Article By Joseph C O’Keefe and Edward C. Young of Proskauer Rose LLP

For more labor and employment legal news, click here to visit the National Law Review.

© 2022 Proskauer Rose LLP.

The X Box: EEOC Announces Addition of Nonbinary Gender Option to Discrimination Charge

In recognition of Transgender Day of Visibility, today, the EEOC announced that it would be providing members of the LGBTQI+ community the option to select a nonbinary “X” gender marker when completing the voluntary self-identification questions that are traditionally part of the intake process for filing a charge of discrimination.

Specifically, in an effort to promote greater equity and inclusion, the EEOC will add an option to mark “X” during two stages of the intake and charge filing process. This addition will be reflected in the EEOC’s voluntary demographic questions relating to gender in the online public portal, which individuals use to submit inquires regarding the filing of a charge of discrimination, as well as related forms that are used in lieu of the online public portal. The nonbinary “X” gender marker will also be included in the EEOC’s modified charge of discrimination form, which will also include “Mx” in the list of prefix options.

Additionally, the EEOC will incorporate the CDC and NCHS’s proposed definition of “X,” which provides as follows: (1) “unspecified,” which promotes privacy for individuals who prefer not to disclose their gender identity; and (2) “another gender identity,” which promotes clarity and inclusion for those who wish to signify that they do not identify as male or female.

The EEOC’s announcement came shortly after the White House released a detailed Fact Sheet highlighting the steps the federal government has taken to address equality and visibility for Transgender Americans.

Article By Aretta K. Bernard and Stephanie Olivera Mittica of Roetzel & Andress LPA

For more labor and employment legal news, click here to visit the National Law Review.

©2022 Roetzel & Andress

Knock Your Socks Off: A Conversation with EEOC Leaders

Mandatory vaccinations, harassment and retaliation charges, and guidance and enforcement priorities are just some of the important issues U.S. Equal Employment Opportunity Commission (EEOC) officials addressed at Ward and Smith’s Fall Employment Law Update.

I moderated the discussion that was led by Tom Colclough, Deputy District Director of the EEOC Charlotte District Office, and Glory Gervacio Suare, Director of the EEOC Raleigh Area Office.

Over his 25 years with the EEOC, Colclough has investigated charges and complaints of discrimination, led high-performing teams, and served in various leadership positions. Currently, he plays a key role in fulfilling the agency’s mission through strategic enforcement, management, and planning.

Gervacio’s background includes serving as the director of the EEOC’s Honolulu office. Her career with the Commission began as an enforcement investigator in 2001, and she continually provides outreach and educational assistance to various committees in her jurisdiction.

The conversation began with an analysis of how many charges the EEOC handles in an average year, and of those charges, how many go through mediation, conciliation, or litigation. “We normally receive between 65,000 and 100,000 charges per year,” said Colclough. “This year, it was around 65,000. In our district, we received about 5,500 charges this year.”

Of that amount, Colclough explained that the EEOC:

  • Resolved 17.8% of cases through the negotiated settlement process;
  • Completed approximately 500 successful mediations;
  • Issued a ‘no cause’ determination for 65% of cases; and
  • Dismissed around 29% for untimely filing or because a summary review of the Charge allowed the investigator to determine that a violation did not occur.

The leading types of charges last year included retaliation, followed by disability and race. “This is interesting because, in the previous year, race was the second type of charge that was filed,” commented Gervacio. “So I think we’re seeing a trend because of COVID, and with reasonable accommodation requests and vaccination mandates, we’re probably going to see more disability charges in the near future.”

Enforcement Priorities

The local EEOC district office focuses their efforts in part on supporting six national strategic enforcement priorities, says Colclough. These enforcement priorities include:

  • Eliminating barriers in recruitment and hiring;
  • Protecting immigrants, migrants, and other vulnerable workers;
  • Addressing emerging and developing issues;
  • Enforcing equal pay laws;
  • Preserving access to the legal system; and
  • Preventing harassment through systemic enforcement and targeted outreach.

Colclough indicated his district has developed a complement plan to address issues that are important to the local community: “For the most part, we’re looking at vulnerable workers, also emerging issues dealing with the ADA. As you know, COVID is an emerging issue that continues to develop every single day. And retaliation is the number one priority.”

Retaliation goes beyond someone receiving an adverse result after objecting to a form of harassment or discrimination. “There’s more to retaliation than just the mirror opposition or exercising a right to complain,” noted Gervacio. “Disability is on the rise, and there’s a component of retaliation when somebody requests a reasonable accommodation due to their disability.”

COVID Vaccinations

The subject of mask mandates and vaccination requirements is still on employers’ minds and continually evolving. Generally, officials at the EEOC expect to see a substantial increase in COVID-related charges and inquiries pertaining to reasonable accommodations.

For those who watch the news every day, it’s clear that vaccination mandates remain a hot button issue, explained Colclough. “One thing I’d like to folks to know is that, on our website, we clearly state that federal laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.”

Gervacio illuminated the subject with an analysis of a recent case involving United Airlines, in which a court order placed a temporary stay on the company’s vaccination mandate. Basically, the judge ordered that placing employees on unpaid leave for requesting an exception to the airline’s vaccination mandate due to a disability or religious exemption is not a reasonable accommodation.

“We are still waiting on guidance from our headquarters on how to address that,” said Gervacio, “so it is unfolding as we speak.”

In light of this development, employers should understand that it is doubtful that placing an individual who requests an exemption to a vaccine mandate on unpaid leave is a reasonable accommodation. Until the EEOC provides updated technical guidance, a potential best practice for employers is to go through an interactive process for all disability and religious-related exemption requests.

Is Long COVID a Disability?

Recently, the EEOC stated that it would be adopting the Department of Health and Human Services position on “long COVID” is to classify it as an ADA disability. The determination ultimately turns on whether or not it substantially limits one or more daily activities.

Employers should educate themselves on what “long COVID” is and its symptoms and understand that since it could potentially be classified as an ADA disability, they should be prepared to engage in an interactive discussion with the employee.

Working from Home

At the pandemic’s start, many employers suddenly had to transition the majority of their workforce to a remote or a virtual environment. With that in mind, the question of which positions are appropriate for telework remains relevant.

Given a choice, many employees would choose to work from home, but that may not be in the employer’s best interest. “Telework as a reasonable accommodation “might be the gold Cadillac standard of what an individual wants,” explained Colclough, “but that’s not necessarily what the employer has to provide.” Employers only need to consider whether an accommodation allows the individual to perform the essential job functions.

“Telework is just one of many tools of accommodation an employer has in their toolkit,” adds Colclough. Employers may sometimes feel that the employee is driving the interactive process and that they have to comply with the employee’s preferred accommodation.

Ultimately, however, it is up to the employer to decide what accommodations are reasonable based on the needs of the business and what will allow the employee to perform the essential job functions. Employers have various options for those who are averse to getting the vaccine, whether their request for an exception is ADA-related or due to a religious exemption. As far as reasonable accommodations, the following are listed on the EEOC’s website as technical guidance on potential reasonable accommodations to vaccine mandates:

  • Social distancing, e., placing an individual in their own office;
  • Modifying shifts to limit interactions with other employees and customers;
  • Periodic testing; and
  • Reassignment.

Gervacio pointed out that “[t]here are many examples of reasonable accommodation listed on the Job Accommodation Network. This service provided by the U.S. Department of Labor’s Office of Disability Employment Policy offers technical guidance on various types of accommodations for certain disabilities, including specific COVID-related issues from telework.”

An unexpected outcome the EEOC has seen after the rise of telework is an increased number of sexual harassment complaints over the past 18 months. These complaints have originated from Zoom meetings, Facebook, and other forms of social media.

Employers should consider developing standards for how employees are expected to behave in a virtual environment, advised Colclough. “We’ve got to convince people to get back to being as professional as they were in person,” he said. “And perhaps that will help some harassment complaints go down.”

Gervacio recommended that employers train their managers and supervisors. “A lot of the charges we get, it seems the manager or supervisor is not aware of their roles and responsibilities, and whether or not they need to take action,” commented Gervacio. “This training should be tailored to the workforce because you want them to be engaged.”

Another update the EEOC leaders mentioned included a change to the notice of right to sue. When the EEOC decides to close an investigation, it issues what is commonly referred to as a notice of right to sue, which allows the charging party to file a federal lawsuit if they want to pursue the claim further.

Finally, the EEOC leaders shared that recently, the regulations were amended to make digital service an acceptable form of communication for this notice. “Doing it digitally is much, much faster,” added Colclough, “and we get an almost instantaneous notice when parties take a look at it. This helps us ensure the right to sue got into the right hands.”

© 2021 Ward and Smith, P.A.. All Rights Reserved.

Article By Hayley R. Wells of Ward and Smith, P.A.

For more articles on the EEOC, visit the NLR Labor & Employment section.

EEOC Will Issue Guidance on COVID-19 Vaccine Incentive Programs Offered by Employers

Lawmakers and many employer organizations have urged the Equal Employment Opportunities Commission (EEOC) to issue guidance to companies that are considering providing incentives to employees who get the COVID-19 vaccine. Specifically, Sen. Richard Burr and Rep. Virginia Foxx stressed the importance of guiding employers that want to protect their employees stating,

“Employers actively working to protect their employees by increasing the number of workers receiving vaccinations through incentive programs are seeking assurance this action is allowable and does not violate important labor laws such as the Americans with Disabilities Act…”

In response, just a few days ago Carol Miaskoff, the EEOC’s acting legal counsel, stated that the agency expects to update its technical assistance to address these issues, but that the work is still ongoing. She did not indicate when the EEOC would issue its guidance.

Even without the promised guidance, many employers have offered incentives to their employees who receive the COVID-19 vaccine, including paid time off and cash bonuses, but the concern is the legality of the incentive programs. Do these incentives violate federal anti-bias laws? Do they violate the Americans with Disabilities Act (ADA)? If an employee cannot receive the vaccine for medical or religious reasons, how are those employees being treated?

Employers should be careful when offering incentives to employees prior to the EEOC’s guidance. Things to consider before offering incentives are to look at the size of the incentive, meaning if the incentive is too large, it may lose its “voluntary” status, the value of the incentive, and to ensure there isn’t a disability-related inquiry of the employees.

©2021 Roetzel & Andress
ARTICLE BY Amanda M. Connelly of Roetzel & Andress LPA
For more articles on the COVID-19 vaccine, visit the NLR Labor & Employment section.

Mandatory or Voluntary Employee Vaccinations: EEOC Weighs In

Since well before FDA approval of the first COVID-19 vaccine, many employers have contemplated whether eventual employee vaccination should be a voluntary or mandatory condition of returning to, or remaining at, the workplace. The current legal considerations surrounding employee vaccination depend on interpretation of many existing laws and other sources of employee rights in the workplace. Such rights are not just established by laws, but also by collective bargaining relationships and, in some cases, the industry which the employer does business. In addition, there are compelling business considerations unique to each employer that should influence whether to mandate, or simply encourage, employee COVID-19 vaccination.

In addition to other previous guidance released, the Equal Employment Opportunity Commission (EEOC) has now provided its current interpretation, which certainly is subject to change, of how employers might grapple with the laws the agency enforces.1

Voluntary Employee COVID-19 Vaccination

EEOC’s new guidance generally clears the way for employers to encourage employees to receive vaccinations on a voluntary basis. Critical to this is EEOC’s clear statement that it does not consider vaccinations themselves to be “medical examinations” which require special justification under the ADA. EEOC does state that the concurrent need to answer pre-vaccination medical screening questions may implicate ADA rights, requiring employers to establish that employee vaccination is “job related and consistent with business necessity.” However, EEOC makes an exception to this justification requirement “if an employer has offered a vaccination to employees on a voluntary basis.”

Mandatory Employee COVID-19 Vaccination

EEOC’s new guidance does not prevent employers from making employee vaccination a mandatory condition of remaining in or returning to the workplace, but it does impose an obstacle course for employers if they choose to make COVID-19 vaccination mandatory.

The obstacle course starts with the medical screening questions required before employees receive the vaccination. As noted, EEOC states that answering these questions may implicate employee ADA rights, so any employer mandating vaccination which either itself administers or contracts out mandatory vaccine administration must establish that the mandatory vaccination requirement is “job related and consistent with business necessity” for each position for which the employer requires mandatory vaccination. Employers can avoid this obstacle if they are willing to accept proof of mandatory vaccination carried out by “a third party that does not have a contract with the employer, such as a pharmacy or other health care provider.” But even employers who accept such proof of vaccination are cautioned “to warn the employee not to provide any medical information as part of the proof.”

The obstacle course continues in how employers mandating vaccinations must handle employees who object to receiving the vaccination either due to a disability or religious beliefs. In both cases it is necessary for the employer to channel such employees through “a flexible, interactive process” of exploring, in an open-minded manner, the nature of the objection and whether reasonable accommodation may be made to allow the employee to continue working. If the only way a disabled employee can continue working is by being present in the workplace, the employer must be able to prove, under the ADA’s legal standards, that the unvaccinated employee poses a “direct threat” causing a “significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Even where there is “no possible reasonable accommodation,” EEOC’s view is “this does not mean that employer may automatically terminate the worker” without first determining “if any other rights apply under the EEO laws or other federal, state or local authorities.”

Practical Realities and Implications

In the opening to the new “Vaccinations” addition to its guidance, EEOC includes a disclaimer-type statement that “The EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.” Accordingly, employers should be safe to follow such authorities. That said, neither the CDC nor any federal, state, or local public health authority has, as of today, made it mandatory for any group of employees to receive the COVID-19 vaccination as a condition of remaining in or returning to the workplace. Assuming this remains the case, and there is no further law or guidance on the subject, any employer who wishes to implement mandatory vaccinations should consider and determine, taking into account its business and unique circumstances, how to navigate each obstacle in the course EEOC has set up in its Dec. 16, 2020 guidance.

1 With a widely anticipated Dec. 16, 2020 update to its publication “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” EEOC addresses vaccination under the laws it enforces that supply relevant employee rights, including the rights of employees with disabilities, as protected by the Americans With Disabilities Act (ADA), the rights of employees who may have religious objections to receiving a vaccination, as protected under Title VII of the Civil Rights Act of 1964 (Title VII) and the right not to disclose or allow employers the opportunity to use genetic information under Title II of the Genetic Information Nondiscrimination Act (GINA).

©2020 Greenberg Traurig, LLP. All rights reserved.
For more articles on the coronavirus vaccine, visit the NLR Coronavirus News section.

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

The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing federal anti-discrimination laws, today updated its Technical Assistance Questions and Answers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” This Technical Assistance is intended to help employers address practical issues that may arise in their day-to-day operations and oversight of their employees as they return to work in the context of COVID-19. The EEOC has consistently reminded employers that the federal anti-discrimination laws continue to apply during the pandemic and that these laws do not interfere with the guidance issued by public health authorities, including the CDC.

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

The EEOC’s previously issued Technical Assistance discussed critical issues such as disability-related inquiries and medical examinations, confidentiality of medical information, and hiring and onboarding during the COVID-19 pandemic. In addition, the EEOC provided detailed guidance on handling reasonable accommodations during the pandemic. In this newly issued Technical Assistance, the EEOC focuses in even further on these and related issues, and provides an analysis of common topics that many employers have been or will be facing as employees are preparing to return to work.

The updated questions and answers include topics such as: whether an employee is entitled to an accommodation under the ADA to avoid exposing a family member who is at higher risk of severe illness from COVID-19; whether reasonable accommodations are required during the process of screening employees before they enter the worksite; whether employees age 65 or older, who are at higher risk of severe illness from COVID-19, can be involuntarily excluded from the workplace based on their age; whether pregnant employees can be involuntarily excluded from the workplace due to their pregnancy and, relatedly, whether there is a right to accommodation based on pregnancy during the pandemic. In addition, the updated Technical Assistance discusses steps employers can take to prevent and address possible harassment and discrimination that may arise related to the pandemic, particularly as against employees who are or perceived to be Asian.

EEOC Technical Assistance Questions and Answers

Employers should review this newly issued Technical Assistance from the EEOC so that they are prepared to address these issues if they arise as businesses are re-opening and employees are returning to the workplace.

©2020 Norris McLaughlin P.A., All Rights Reserved

For more on EEOC COVID-19 guidance, see the National Law Review Labor & Employment law section.

EEOC Issues ADA and Title VII Guidance for Employers on COVID-19

The Equal Employment Opportunity Commission (EEOC) recently hosted a webinar in which the agency answered questions about the applicability of the Americans with Disabilities Act (ADA) and Title VII to COVID-19-related employment actions.  This Q&A supplemented earlier guidance posted by the EEOC.

This post summarizes the guidance and takeaways from the EEOC webinar.

  • The EEOC updated its previously published guidance entitled “Pandemic Preparedness in the Workplace and the Americans With Disabilities Act” to provide information and examples regarding COVID-19. This new guidance confirms that COVID-19 constitutes a “direct threat” and a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace.
  • Employers should follow the EEOC guidance in conjunction with the guidelines and suggestions made by the CDC and state/local health authorities.
  • The guidance also answers common employer questions about the COVID-19 pandemic, such as:

Q:     How much information may an employer request from an employee who calls in sick in order to protect the rest of its workforce during the COVID-19 pandemic?

A:    ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. Employers generally may not ask these questions of employees who are teleworking since they are not entering the workplace and do not pose a threat to others.

We note, however, that if an employee recently started teleworking, employers may want to ask the employee if they exhibited symptoms of COVID-19 before starting telework, so the employer can inform those with whom the employee had been in close contact about the potential exposure.

Q:     What if an employee refuses to answer COVID-19 related questions by the employer?

A:    The ADA allows employers to bar an employee’s physical presence in the workplace if he or she poses a threat to others. Employers should ask for the reason behind the employee’s refusal and reassure the employee if the employee is hesitant to provide this information.

Q:    When may an employer take an employee’s temperature during the COVID-19 pandemic?

A:    Generally, taking an employee’s temperature is a medical examination under the ADA. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19, employers may take employees’ temperature. However, employers should be aware that some people with COVID-19 do not have a fever, while some people with a fever do not have COVID-19.

Employers, however, are well-advised to first consult with counsel to ensure the administration of these tests stays within the guidance and does not otherwise violate applicable law.

Q:    Can an employer ask COVID-19 related questions about an employee’s family members? 

A:    This unnecessarily limits the inquiry. A better question is whether the employee has had contact with anyone diagnosed with COVID-19 or who was showing symptoms of COVID. A general question like this is more sound. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about an employee’s family members.

Q:    How are employers supposed to keep medical information of employees confidential while teleworking?

A:     The ADA requires that medical information be stored separately away from other personnel files and employee information. A supervisor who receives this information while teleworking should follow normal company procedures to store this information. If they cannot follow the procedures for whatever reason, they should make every effort to safeguard the information from disclosure (for example, do not leave a laptop open or accessible to others; do not leave notepads with information around the home, etc.).

Q:    What are an employer’s ADA obligations when an employee says he has a disability that puts him at a greater risk of severe illness if he contracts COVID and therefore asks for a reasonable accommodation?

A:    The CDC has identified certain conditions (for example, lung disease) that put certain people at a higher risk for severe illness if COVID-19 is contracted. Thus, this is clearly a request for a reasonable accommodation and a request for a change in the workplace. Because employers cannot grant employees reasonable accommodations for disabilities that they do not have, employers may verify that the employee has a disability, what the disability is, and that the reasonable accommodation is necessary because the disability may potentially put the individual at a higher risk for severe illness due to COVID-19.

There may also be a situation in which the employee’s disability is exacerbated by the current situation. The employer may verify this as well. Aside from requesting a doctor’s note, other options to verify an employee’s disability may be to request insurance documents or their prescription. An employer may want to provide a temporary reasonable accommodation pending receipt of the documentation.

Q:    If an employer grants telework to employees with the purpose of slowing down/stopping COVID-19 – after the public health measures are no longer necessary, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who wishes to continue this arrangement?

A:    No. Anytime an employee requests a reasonable accommodation, the employer has the right to understand and evaluate the disability related limitation and make a determination on the request. After the pandemic, a request to telework does not have to be granted if working at the worksite is an essential function of the job in normal circumstances (i.e. not during a pandemic). The ADA never requires an employer to limit the essential functions of a position, and just because an employer did this during the pandemic does not mean an employer has to permanently change the essential functions of a position, and is not an admission that telework is a feasible accommodation or that telework does not place an undue hardship on the employer.

The guidance further addresses common questions related to discrimination and harassment under Title VII, such as:

Q:     May an employer decide to layoff or furlough a pregnant employee who does not have COVID-19 or symptoms solely based on the CDC guidance that pregnant women are more likely to experience severe symptoms and should be monitored?

A:     No, because pregnant employees are protected under the Pregnancy Discrimination Act of Title VII.

Q:    May an employer exclude from the workplace an employee who is 65 or older and who does not have COVID, solely because he or she is in an age group that is at higher risk for severe illness as a result of COVID?

A:    No, age based actions are not permitted. The Age Discrimination in Employment Act prohibits discrimination against those who are 40 or older.

Q:    May an employer single out employees based on national origin and exclude them from the workplace due to concerns about possible COVID-19 transmission? May employers tolerate a hostile work environment based on an employee’s national origin or religion because others link it to the transmission of COVID-19?

A:    No, because Title VII prohibits national origin discrimination. It does not matter that it is linked to COVID-19. Employers should remind employees of anti-discrimination and anti-harassment policies and also should ensure that they are not taking employment actions based on an employee’s protected class(es).

  • An employer may make inquiries that are non-disability related to identify potential non-medical reasons for an employee’s absence or future absence. For example, an employer may ask a “yes” or “no” question that asks if the employee or someone in his or her household falls within the categories identified by the CDC for being at higher risk for severe illness if COVID-19 is contracted (such as pregnancy or being over the age of 65).
  • An employer may also screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.
  • While employers may require doctors’ notes certifying their fitness for duty before returning to work, as a practical matter, doctors and other health care professionals may be too busy during the pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches, such as requesting an employee’s prescription, may be necessary.

This is a challenging time and events are changing rapidly. EEOC guidance and interpretation of what is permissible under the ADA and Title VII is evolving and may change as circumstances develop.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

For more employer guidance from Gov’t Agencies amid the COVID-19 pandemic, see the National Law Review dedicated Coronavirus News section.

EEOC Provides Guidance on Reporting Non-Binary Gender Employees

Over the last few years, many employers have implemented diversity and inclusion programs, whether official or unofficial, emphasizing a work force that includes a wide variety of individuals based on, among other categories, race, gender, and sexual orientation.

Internally, companies have updated employment policies, expanded the scope of anti-harassment trainings, created avenues for diverse mentorship, and implemented changes to create workplaces that include and support a diverse office culture.

Externally, a number of states too have begun to update government documents to accommodate diverse individuals, including those who identify their gender as non-binary. For example, California recently enacted legislation permitting individuals to identify as female (F), male (M), or non-binary (X) on their drivers’ licenses.

Yet many employers with non-binary employees have been concerned as to how to appropriately report all of their employees on the federal EEO-1 reports and still comply with the law. As we previously reported, in 2017, the EEOC made it clear that the protections offered by Title VII include an “individual’s transgender status or the individual’s intent to transition,” “gender identity,” and “sexual orientation.”

The EEOC guidance also went further, stating that “using a name or pronoun inconsistent with the individual’s gender identity in a persistent or offensive manner” is sex-based harassment.  It is clear, therefore, that non-binary individuals must be afforded protections regarding their gender identity.  However, the EEO-1 report, which requires employers with over 100 employees to submit data specific to their employees’ gender and race/ethnicity, limits the gender categories to either male or female.  Employers with non-binary employees therefore have had no category to indicate the correct gender identity of these individuals, and several questioned whether it was appropriate (or even legally compliant) to request that non-binary employees choose a marker for which they do not identify.

Last month, the EEOC offered guidance by updating its Frequently Asked Questions to address this issue.  In the FAQ, the EEOC advises that employers “may report employee counts and labor hours for non-binary gender employees by job category and pay band and racial group in the comment box on the Certification Page,” and further provides examples as to how employers may comply with submitting the EEOC-required data in the future for those employees who identify as non-binary.

While describing these details in a comment box as opposed to checking a pre-marked gender identity box is not as streamlined or efficient as some employers would have hoped, it is at least a step toward ensuring that employers have a means to comply with reporting requirements and support their employees by acknowledging the gender identity of their choice.

© 2019 Foley & Lardner LLP

For more on diversity in the workplace, see the National Law Review Labor & Employment law page.

Does Inconsistency Always Kill the Cat?

Spoiler alert – this article doesn’t have anything to do with cats. But it is about something you hear all the time from employment attorneys. You have to be consistent when it comes to enforcing your attendance policies and plant rules. You have to treat all employees the same. If you don’t, there is a huge risk you won’t be successful in defending your disciplinary decisions in labor arbitrations and employment litigation. As a general rule, this is excellent advice.

Does this mean, though, that you absolutely have to be consistent 100% of the time? If you make an exception to your attendance policy by giving a particular employee one last chance (other than for reasons relating to the ADA or the FMLA), will that be the end of your ability to enforce the policy?

Will excusing a violation of a plant rule in one instance mean you can never enforce it? Will your company be a victim of the “no good deed goes unpunished” rule?

The answer is that if you make exceptions sparingly, and wisely, you will probably be okay. Here are some tips that will put you in a better position to defend the (very) occasional exception:

  1. Make sure you have a compelling reason for making an exception, something that really makes this employee’s situation very different from other cases (e.g., some combination of a long service employee, an otherwise outstanding overall record, and a believable and sympathetic explanation from the employee as to why there was a problem and why it won’t be repeated).
  2. Document why you made an exception. Two years from now, when you are defending an employment litigation and the plaintiff is pointing out how he/she was treated “worse” than the employee for whom you made an exception, you will be in a far better position to remember and explain why you made the exception, and have a judge or jury decide the exception shouldn’t be held against you, if you have contemporaneous documentation explaining the exception.
  3. Be extremely judicious in your use of exceptions. If lack of consistency becomes the rule, rather than the exception, you are going to have a very hard time enforcing your policies and rules.
  4. Make sure the circumstance in front of you today (when you are not making an exception) really is different from the circumstance where you made an exception two years ago. In other words, if the employee you are considering disciplining now is in substantially the same boat as the employee for whom you made an exception, you should rethink whether to impose the discipline.

None of this is meant to minimize the problems that can be caused by inconsistent treatment. Even the EEOC, however, recognizes that there are circumstances where disparate treatment is justifiable. Enforce your rules and policies consistently, but don’t be afraid to make an exception where circumstances, and fairness, demand it.

© 2019 Foley & Lardner LLP
For more in employment  & scheduling, see the National Law Review Labor & Employment page.