Category: Labor & Employment

Giving It Your Best Shot: Maintaining a Compliant Vaccination Program in the Healthcare Sector

Workplace vaccination programs are not new. While many focus on influenza, healthcare employers often impose more robust requirements to protect employees and vulnerable patient populations. The Centers for Disease Control and Prevention (CDC) recommends healthcare workers receive several vaccinations, including: hepatitis B; influenza; measles, mumps, and rubella (MMR); varicella (chickenpox); tetanus, diphtheria, and pertussis (Tdap); and meningococcal. Many states have enacted laws requiring such vaccinations for healthcare workers. (The CDC maintains a list of state requirements.) Indeed, because healthcare workers can be at a heightened risk for both exposure and transmission of disease to patients, families, and coworkers, prominent medical groups such as the Infectious Diseases Society of America (IDSA) recommend mandatory vaccinations consistent with CDC recommendations as part of an effective infection prevention and control program.

Recent outbreaks of vaccine-preventable diseases, such as measles and pertussis, have focused public attention on the need for employee vaccine programs. For example, the CDC reports that between January 1, 2019 and August 8, 2019, there were a total of 1,215 confirmed cases of measles in the United States, the highest number since 1994. This is despite the fact that measles was eliminated in the United States in 2000, due to an effective MMR vaccination program. The World Health Organization (WHO) reports that the rise of measles cases is likely due to a decline in people getting the vaccine. (The CDC has additional information about measles and the safety and efficacy of the MMR vaccine.)

Healthcare institutions are increasingly mandating that employees receive vaccinations, such as Tdap and MMR. But, while mandatory vaccination programs are on the rise, so are challenges from employees. Employee objections to vaccines (strengthened by misinformation about vaccines such as MMR), and thus litigation, have increased in recent years. While employers may not always have to accommodate generalized or unfounded objections to vaccinations, employees do have legally cognizable objections to being vaccinated under certain circumstances. Specifically, the Equal Employment Opportunity Commission (EEOC) takes the position that Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) require employers to provide exemptions from mandatory vaccination policies or other accommodations to employees with religious objections and disabilities.

Just as wise employers seek to immunize their workforces from harmful pathogens, employers may also seek to immunize their vaccination programs from common legal claims. Employers may want to take into consideration the following issues:

Is the vaccination program mandatory?

Will the vaccination program be voluntary, mandatory, or a hybrid based on employee classification and work setting? Voluntary programs are attractive from the standpoint of avoiding employee objections and ADA/Title VII accommodation issues, but compliance rates may be inadequate or the healthcare setting may favor a mandatory program for some or all healthcare workers. Employers may want to consult the CDC’s recommendations, review applicable state vaccination laws, and assess the risks posed in their facilities in coordination with their infection prevention and control programs.

Is the workforce unionized?

Are nurses or other employees represented by a labor union? Employers with unionized workforces generally must bargain with the unions before imposing mandatory vaccination programs.

Who is covered?

In deciding whether to adopt a mandatory program, what is the scope of the mandate? Is it necessary to require vaccines for all employees (including clerical workers, etc.), or is it more appropriate to reserve the mandatory program for healthcare workers involved in direct patient contact or healthcare workers in vulnerable patient settings, such as the neonatal intensive care unit (NICU), pediatric intensive care unit (PICU), emergency department, or operating room? Some employers may find it more effective to implement a mandatory program with respect to a subset of healthcare workers in patient-contact roles, while offering an incentivized voluntary program to others.

Will the program permit exceptions or accommodations?

What accommodations will be permitted, and what is the process for evaluating such requests? In particular, employers should consider having a process to receive and evaluate employee requests for exemption or accommodation due to disability or sincerely held religious beliefs.

  • Under the ADA, a reasonable accommodation may be required for an employee with a disability, unless it would result in an undue hardship or a direct threat to the safety of the employee or the public. In these cases, employers can work with their infection-control team to determine the risks of exposure and transmission. For example, with employees objecting to a Tdap or MMR vaccine, the risk for a nurse working in the NICU may be very different than that of an office assistant in the back office. The ADA analysis for undue hardship and direct threat are fact specific and complicated.
  • Under Title VII, an accommodation may be required for sincerely held religious beliefs, unless doing so would pose an undue hardship. Employers should be aware that the EEOC and courts interpret “religion” broadly, and the term is not limited to major faiths but may include “religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.” Under Title VII, an undue hardship may exist where there is more than a de minimis cost or burden. The EEOC has considered several factors when determining whether an undue hardship exists, such as (1) the assessment of the public risk at that time, (2) the availability of other means of infection control, and (3) the number of accommodation requests.
  • Employers must maintain medical information and vaccination records collected from employees as confidential files in accordance with ADA requirements.
  • State vaccination laws—including where certain vaccines are mandatory for certain categories of healthcare workers—may also be relevant in designing and implementing a workplace vaccination policy.

What types of accommodations would be permitted?

Where an employer decides, after a case-by-case analysis, that an accommodation is required, it may consider is viable in the healthcare setting. Some common options include the following:

  • Requiring an employee to wear a mask, gown, or other safety gear. This option may depend on the nature of the risk, as a mask may be a reasonable accommodation for influenza in some settings, but it may not be sufficient in a setting with particularly vulnerable patients or with other pathogens that have multiple means of transmission.
  • Modifying an employee’s duties to remove at-risk activities, such as direct patient contact.
  • Temporary or permanent transfers to other positions or work areas that do not contain the same risks to patient safety.
  • Providing alternative vaccines. For example, some employees might have religious objections based on the contents of a vaccine itself, such as its use of swine products or fetal cell lines. In some cases, it may be possible to provide an alternative vaccine from a different manufacturer that does not contain the objectionable ingredient.

Healthcare employers may have legitimate reasons for requiring employee vaccinations and may want to give thoughtful consideration to federal and state employment law protections, as well as the objective medical risks applicable to specific employee groups, healthcare settings, and patient populations, before imposing sweeping mandatory policies. Such organizations may consider reviewing their vaccination programs to avoid unnecessary exposure to discrimination claims.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more vaccination legal considerations see the National Law Review Biotech, Food, Drug law page.

Running Backs NLRB Petition Seeks To “Stiff Arm” NFL Players Association With New Bargaining Unit

An upstart labor organization, the International Brotherhood of Professional Running Backs (IBPRB), has filed a petition with Region 13, the Chicago office of the National Labor Relations Board (NLRB), seeking to form a separate union for the National Football League’s running backs. The unit clarification petition, NLRB Case No. 13-UC-246227, seeks to sever and create a separate running back bargaining unit from the National Football League Players Association (NFLPA), which has historically represented all NFL players regardless of position.

A unit clarification or “UC” petition generally is used to resolve disputes regarding the unit placement of disputed positions, typically newly created positions, in a process referred to as an accretion. However, a UC petition also can be used as a method to affect the subdivision of an existing bargaining unit, as the IBPRB seeks to do here. A severance effort is most often undertaken when some changed circumstances have occurred that have negated any “community of interest” (similarity of terms and conditions of employment) that may have previously existed among the bargaining unit and raise uncertainty regarding the continued appropriateness of the existing bargaining unit.

The petition filed by the IBPRB cited “the unique career structures” of running backs as its basis for the loss of the necessary community of interest between the running backs and the other NFL player members of the NFLPA.

For a successful UC petition, the petitioner must show “recent, substantial changes in their operations, or that other compelling circumstances exist which would warrant disregarding the long-existing bargaining history” of the parties. In Batesville Casket Company, Inc., 283 NLRB 795 (1987), the NLRB relied upon the standard established in Rock-Tenn Co., 274 NLRB 772 (1985), and dismissed a UC petition because the employer-petitioners did not show any “recent, substantial changes in their operations, or that other compelling circumstances which would warrant disregarding the long-existing bargaining history” of the parties.

It may be difficult for the IBPRB to meet the “recent, substantial changes” test.

While the role of a running back has evolved over recent years as the passing game has become the dominant force in offensive schemes, the basic mission of the position– to carry the ball, catch passes, and block – is unchanged. Whatever may be the unique career structures to which the IBPRB referred in the petition (the average career of an NFL running back is 2.5 years compared to 3.3 years for all positions), it may be difficult for the union to show that there have been “recent, substantial changes” in the running back position to satisfy the Batesville Casket threshold for unit clarification.

In representation cases such as this, the regional office of the NLRB conducts an initial investigation and holds a hearing if appropriate. A notice of hearing has not yet been issued. The NLRB may still be in a huddle.

Jackson Lewis P.C. © 2019

More sports law on the National Law Review Entertainment, Sports & Art law page.

OFCCP Proposes New Rule to “Ensure Religious Employers are Protected”

As previewed in the Spring regulatory agenda, the Office of Federal Compliance Contract Programs (OFCCP) has proposed a new rule to clarify aspects of a religious exemption available to federal contractors. In the proposed rule, the agency said it intends to address concerns from religious organizations that ambiguity in the exemption left them reluctant to participate in federal contracts.

The proposed rule was published August 15 in the Federal Register. OFCCP will accept public comments on the rule for 30 days, until September 16, 2019.

The rule would clarify the religious exemption in Executive Order 11246, which includes anti-discrimination obligations for federal contractors. The exemption allows religious organizations to prefer individuals of a particular religion, while still requiring adherence to other anti-discrimination provisions. The rule comes one year after OFCCP issued a Directive reminding its staff to tread lightly when dealing with religious contractors and “proceed in a manner neutral toward and tolerant of . . . religious beliefs.”

As proposed, the rule would clarify that:

  • The exemption covers “not just churches but employers that are organized for a religious purpose, hold themselves out to the public as carrying out a religious purpose, and engage in exercise of religion consistent with, and in furtherance of, a religious purpose.”

  • Religious employers can condition employment upon acceptance of, or adherence to, a religious tenet, provided that they do not discriminate based on other protected bases.

  • Define terms such as “Religion,” “Particular Religion,” and religion “As understood by the employer.”

The rule does not explicitly mention sexual orientation or LGBTQ protections. However, it does cite Masterpiece Cakeshop, the recent U.S. Supreme Court decision involving a business owner’s decision to deny service to gay customers based on the owner’s religious beliefs.  In a news release, OFCCP said it considered that case while drafting the rule, in addition to other Supreme Court cases, statutes, and executive orders.

Today’s proposed rule helps to ensure the civil rights of religious employers are protected,

said Patrick Pizzella, acting U.S. Secretary of Labor.

“As people of faith with deeply held religious beliefs are making decisions on whether to participate in federal contracting, they deserve clear understanding of their obligations and protections under the law.”

The proposed rule also comes at the same time it has been reported by Bloomberg Law that the Department of Justice and EEOC are seemingly taking differing positions on LGBTQ rights before the Supreme Court.

Jackson Lewis P.C. © 2019
For more on religious protections, see the National Law Review Civil Rights 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.

Does Asking About Employee’s Alcohol Use Violate the ADA?

In Lansdale v. UPS Supply Chain Solutions, Inc., No. 16-4106 (July 23, 2019), the United States District Court for the District of Minnesota concluded that a jury had sufficient evidence to find that an employer’s discharge of an employee for suspected corporate credit card abuse following an investigation in which the employee was asked about his alcohol use and drinking habits did not constitute disability discrimination in violation of the Americans with Disabilities Act (ADA) or corresponding state law.

Background

The employer had a policy prohibiting employees from using corporate credit cards for personal purchases and providing inaccurate expense reports. Following an audit that revealed discrepancies between the employee’s corporate credit card expenses and expense reports, the employer conducted an investigation. During the investigation, the employer interviewed the employee, who indicated that he had used his corporate card for personal charges in order to hide his alcohol consumption from his wife. During the interview, the employer asked the employee several questions about his drinking habits and how his drinking affected his health and family.  The following morning, the employer discharged the employee.

The employee contended that he had been asked impermissible disability-related questions and that his employment had been terminated based on his responses. Under the ADA, an employer “shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”

Analysis

The court found that the jury had been provided sufficient evidence to find that, even if the questions posed to the employee had been disability-related inquiries, the inquiries had not caused the termination of his employment; rather, the employee’s acknowledgement that he had used his corporate credit card for personal use was a sufficient evidentiary basis for a jury to find that this admission by itself was the reason for the termination.

Additionally, while alcoholism may constitute a disability under the ADA and corresponding state laws, this case confirms that an employee so claiming must still establish that he or she had an impairment that substantially limited one or more major life activities, or that the employer regarded him or her as having such an impairment, and that it was a motivating factor in the termination decision.

Conclusion

Here, the court found that a reasonable jury, weighing the credibility of the witnesses—in  particular, the employee’s own testimony about his alcohol consumption and how it impacted him, his wife’s testimony that he drank nightly, and his doctor’s testimony that he drank more than what was recommended (though the doctor never applied any diagnostic criteria or noted any serious concerns)—could have found that the employee failed to prove that he suffered from an impairment that substantially limited one or more of his major life activities, that the employer regarded him as having such an impairment, and that it was a motivating factor in the termination decision. In the end, the employee’s belated attempts to claim a disability to excuse his corporate credit card and expense report abuses were insufficient to establish a disability discrimination claim.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more ADA questions see the Labor & Employment Law page on the National Law Review.

Are Your AI Selection Tools Validated? OFCCP Provides Guidance for Validation of AI-Based Algorithms

We have long counseled employers using or contemplating using artificial intelligence (“AI”) algorithms in their employee selection processes to validate the AI-based selection procedure using an appropriate validation strategy approved by the Uniform Guidelines on Employee Selection Procedures (“Uniform Guidelines”).  Our advice has been primarily based on minimizing legal risk and complying with best practices.  A recently updated Frequently Asked Questions (“FAQ”) from the Office of Federal Contract Compliance Programs (“OFCCP”) provides further support for validating AI-based selection procedures in compliance with the Uniform Guidelines.

On July 23, 2019, the OFCCP updated the FAQ section on its website to provide guidance on the validation of employee selection procedures.  Under the Uniform Guidelines, any selection procedure resulting in a “selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by Federal enforcement agencies as evidence of adverse impact,” which in turn requires the validation of the selection procedure.  These validation requirements are equally applicable to any AI-based selection procedure used to make any employment decision, including hiring, termination, promotion, and demotion.

As stated in the Uniform Guidelines, and emphasized in the FAQ, the OFCCP recognizes three methods of validation:

  1. Content validation – a showing that the content of the selection procedure is representative of important aspects of performance on the job in question;

  2. Criterion-related validation – production of empirical data demonstrating that the selection procedure is predictive or significantly correlated with important aspects of job performance; and

  3. Construct validation – a showing that the procedure measures the degree to which candidates possess identifiable characteristics that have been determined to be important in successful performance on the job.

With the exception of criterion-related validating studies, which can be “transported” from other entities under certain circumstances, the Uniform Guidelines require local validation at the employer’s own facilities.

If a selection procedure adversely impacts a protected group, the employer must provide evidence of validity for the selection procedure(s) that caused the adverse impact. Thus, it is crucial that employers considering the implementation of AI-based algorithms in the selection process both conduct adverse impact studies and be prepared to produce one or more validation studies.

The new FAQ also provides important guidelines on the substantial methods utilized by OFCCP in evaluating potential adverse impact.  In accordance with the Uniform Guidelines, OFCCP will analyze the Impact Ratio – the disfavored group’s selection rate divided by the favored group’s selection rate.  Any Impact Ratio of less than 0.80 (referred to as the “Four – Fifths Rule”) constitutes an initial indication of adverse impact, but OFCCP will not pursue enforcement without evidence of statistical and practical significance.  For statistical significance, the OFCCP’s standard statistical tests are the Fisher’s Exact Test (for groups with fewer than 30 subjects) and the Two Independent-Sample Binomial Z-Test (for groups with 30 or more subjects).

With the publication of this new FAQ, employers – and particularly federal contractors – should be sure to evaluate their use of AI-based algorithms and properly validate all selection procedures under the Uniform Guidelines.  Moreover, although not addressed in the OFCCP’s new FAQ, employers should also ensure that their AI-based algorithms are compliant with all other state and federal laws and regulations.

©2019 Epstein Becker & Green, P.C. All rights reserved.

Employers Beware: SC Abolishes Common-Law Marriage

On July 24, 2019, South Carolina joined the ranks of Alabama, Pennsylvania, and others in abolishing future recognition of common law marriages in the state.  The state will continue to recognize all common law marriages in effect before this date, but they will be subject to a higher standard of proof.  On and after July 25, 2019, all South Carolina marriages will require the issuance of a marriage license.

This ruling from the South Carolina Supreme Court came after many legislative attempts at abolishing common law marriage failed.  The court determined the paternalistic reasons behind the original recognition of a common law marriage, e.g., the stigma of unwed mothers, children out of wedlock, and the logistics of the “circuit minister” or other official required to cover a large territory, no longer apply.  With the elimination of future common law marriage recognition, the court also handed down a new standard of proof parties must meet to continue to be considered married under common law.  Probate cases in South Carolina use the “clear and convincing evidence” standard to prove marriage, and now this standard applies to the living too.

Our workforce is transient.  Employees residing in South Carolina often move across state lines for work and personal reasons.  And many companies with principal offices outside South Carolina choose to open locations in South Carolina.  For that reason, this ruling reaches beyond state lines, and it is important for all employers to understand its implications upon benefit plans and leaves of absence.

After July 24, 2019, it no longer is enough for employees claiming an employee is a “spouse” for employee benefit plan purposes simply to establish they were married under the common law of South Carolina.  Now, the critical factor is the date as of which that marriage was established.  The documents submitted to prove the marriage (e.g., tax returns, documents filed under penalty of perjury, introductions in public, contracts, and checking accounts) must also reflect this timing.

This Court decision will also have implications for employees in South Carolina seeking to take a leave of absence under the Family and Medical Leave Act to care for a spouse with a serious health condition.  Before July 25, 2019, eligible employees could take a leave of absence under the FMLA to care for a common law spouse with a serious health condition.  Yet after this Court ruling, employees can only take FMLA leave to care for a common law spouse if that common law marriage was established on or before July 24, 2019.  Employers should remember that under the Department of Labor’s FMLA Regulations, employees can be required to provide reasonable documentation evidencing the existence of a valid marriage.

Jackson Lewis P.C. © 2019

Inclusion Does Not Stop Workplace Bias, Deloitte Survey Shows

In Deloitte’s 2019 State of Inclusion Survey, 86% of respondents said they felt comfortable being themselves all or most of the time at work, including 85% of women, 87% of Hispanic respondents, 86% of African American respondents, 87% of Asian respondents, 80% of respondents with a disability and 87% of LGBT respondents. But other questions in the company’s survey show a more troubling, less inclusive and productive office environment, and may indicate that simply implementing inclusion initiatives is not enough to prevent workplace bias.

While more than three-fourths of those surveyed also said that they believed their company “fostered an inclusive workplace,” many reported experiencing or witnessing bias (defined as “an unfair prejudice or judgment in favor or against a person or group based on preconceived notions”) in the workplace. In fact, 64% said that they “had experienced bias in their workplaces during the last year” and “also felt they had witnessed bias at work” in the same time frame. A sizable number of respondents—including 56% of LGBT respondents, 54% of respondents with disabilities and 53% of those with military status—also said they had experienced bias at least once a month.

Listening to those who say they have witnessed or experienced bias is especially important. When asked to more specifically categorize the bias they experienced and/or witnessed in the past year, 83% said that the bias in those incidents was indirect and subtle (also called “microaggression”), and therefore less easily identified and addressed. Also, the study found that those employees who belonged to certain communities were more likely to report witnessing bias against those communities than those outside them. For example, 48% of Hispanic respondents, 60% of Asian respondents, and 63% of African American respondents reported witnessing bias based on race or ethnicity, as opposed to only 34% of White, non-Hispanic respondents. Additionally, 40% of LGBT respondents reported witnessing bias based on sexuality, compared to only 23% of straight respondents.

While inclusion initiatives have not eliminated bias, Deloitte stresses that these programs are important and should remain. As Risk Management previously reported in the article “The Benefits of Diversity & Inclusion Initiatives,” not only can fostering diversity and inclusion be beneficial for workers of all backgrounds, it can also encourage employees to share ideas for innovations that can help the company, keep employees from leaving, and insulate the company from accusations of discrimination and reputational damage.

But building a more diverse workforce is only the first step, and does not guarantee that diverse voices are heard or that bias will not occur. Clearly, encouraging inclusion is not enough and more can be done to curtail workplace bias. And employees seeing or experiencing bias at work has serious ramifications for businesses. According to the survey, bias may impact productivity—68% of respondents experiencing or witnessing bias stated that bias negatively affected their productivity, and 70% say bias “has negatively impacted how engaged they feel at work.”

Deloitte says that modeling inclusion and anti-bias behavior in the workplace is essential, stressing the concept of “allyship,” which includes, “supporting others even if your personal identity is not impacted by a specific challenge or is not called upon in a specific situation.” This would include employees or managers listening to their colleagues when they express concerns about bias and addressing incidents of bias when they occur, even if that bias is not apparent to them or directly affecting them or their identity specifically.

According to the survey, 73% of respondents reported feeling comfortable talking about workplace bias, but “when faced with bias, nearly one in three said they ignored bias that they witnessed or experienced.” If businesses foster workplaces where people feel comfortable listening to and engaging honestly with colleagues of different backgrounds, create opportunities for diversity on teams and projects, and most importantly, address bias whenever it occurs, they can move towards a healthier, more productive work environment.

Risk Management Magazine and Risk Management Monitor. Copyright 2019 Risk and Insurance Management Society, Inc. All rights reserved.
For more on workplace discrimination issues, please see the National Law Review Labor & Employment law page.

Note To Chicago Employers: Expansive New Work Scheduling Rules Take Effect July 2020

The Chicago City Council passed the Chicago Fair Workweek Ordinance on July 23, regarding advance scheduling notice for certain employees in certain industries, including healthcare, hotels, restaurants, and retail, among others. Chicago Mayor Lori Lightfoot has already indicated that she will sign the new ordinance in short order, describing it as the most expansive worker scheduling policy in the country, including the first in the country to cover healthcare employers.

The ordinance, which goes into effect in July 2020, imposes significant administrative requirements relative to the employer/employee relationship. Chicago employers should consider familiarizing themselves with them now in order to avoid penalties in 2020.

Details and Penalties of the New Ordinance

The ordinance will require covered employers operating in the City of Chicago to provide employees with 10 days advance notice of scheduled work, generally beginning on July 1, 2020. After June 30, 2022, the period of required advance notice of the work schedule will increase to 14 days. The work schedule must be posted in a conspicuous location at the workplace, or must be emailed upon the request of the employee.

In addition, the ordinance provides a carve-out for smaller employers, only applies to employees who earn less than $50,000 annually or $26.00 per hour or less, and does not apply to independent contractors or day and seasonal laborers.

Employers generally covered by the law are those who have 100 or more employees (in total, not just in Chicago), or 250 or more employees in the case of nonprofit entities. Restaurants covered by the ordinance are those with more than 30 locations and at least 250 total employees (and franchisees with four or more locations). Of the total employee count, for the employer to be governed by the law, at least 50 of their employees must be “covered” employees.

If employers make changes inconsistent with the requirements of the ordinance, the employees must receive compensation. The amount of compensation will depend on the nature of the scheduling change.

Right to Decline Work Scheduled

Employees under the ordinance have the right to decline any work scheduled that does not comply with the required advance notice period. Further, if an employer alters an employee’s schedule after the deadline, depending on the particular circumstances, the employer may be required to pay the employee an additional hour for each altered shift. The ordinance also prohibits retaliation against the employee for exercising rights conferred by the scheduling ordinance.

A number of exceptions do apply. For example, schedule changes caused by power outages, blizzards, a mutually agreed-upon shift trade, or a schedule change that is mutually agreed upon by the employer and employee and confirmed in writing.

The Chicago Department of Business Affairs and Consumer Protection has been tasked with enforcing this new ordinance. Employers who violate this law will be subject to a fine of between $300 and $500 for each offense. The law also establishes a process by which an employee may initiate a civil action under the law, beginning with a written complaint to the department.

 

© 2019 BARNES & THORNBURG LLP
For more employment ordinances nation-wide, please see the Labor & Employment law page on the National Law Review.

Don’t Slip Up: When Are California Employers Required to Pay for Employees’ Shoes?

A hot-button issue in California is whether an employer is required to pay for or reimburse an employee for shoes that are required as a condition of employment. A recent ruling by the California Court of Appeal highlights the complexity of the issue and lack of concrete guidance on a critical question: whether California workplace safety law requires an employer to pay for nonspecialty safety shoes, such as generic steel-toe boots, that the employer allows the employee to wear off the jobsite.

An employer’s failure to properly pay for or reimburse for the shoes it requires its employees to wear as a condition of employment can expose the employer to civil liability and/or regulatory enforcement by California’s Division of Occupational Safety and Health (Cal/OSHA). Indeed, there has been a dramatic uptick in both civil class action claims against employers and regulatory enforcement by Cal/OSHA alleging failure to pay for or reimburse for the cost of shoes required as a condition of employment. These difficult scenarios range from generic waterproof shoes requirements in food processing plants to nonspecific requirements for work boots to be worn on construction sites.

In Townley v. BJ’s Restaurants, Inc., No. C086672 (June 4, 2019), the California Court of Appeal ruled that under California Labor Code section 2802 and the Industrial Welfare Commission’s Wage Order No. 5 applicable to the restaurant industry, BJ’s Restaurants was not required to pay for the cost of the slip-resistant shoes that it required its employees to wear as a condition of employment. In so holding, the court relied on Wage Order No. 5, which provides that a restaurant employer must pay for its employees’ work apparel only if it is a “uniform” or if it qualifies as certain protective apparel regulated by Cal/OSHA or the federal Occupational Safety and Health Administration (OSHA).

Section 2802 provides that employers are required to reimburse their employees for “necessary expenditures … incurred by the employee[s] in direct consequence of the discharge of [their] duties.” Thus, if slip-resistant shoes were part of a uniform or apparel regulated by Cal/OSHA or OSHA, then pursuant to section 2802, BJ’s Restaurants would have been required to reimburse its employees for the cost of the shoes. The court relied on a California Division of Labor Standards Enforcement (DLSE) opinion letter to find that the plaintiff had not demonstrated that the slip-resistant shoes constituted a “uniform” within the meaning of the Wage Order No. 5:

The definition and [DLSE] enforcement policy is sufficiently flexible to allow the employer to specify basic wardrobe items which are usual and generally usable in the occupation, such as white shirts, dark pants and black shoes and belts, all of unspecified design, without requiring the employer to furnish such items. If a required black or white uniform or accessory does not meet the test of being generally usable in the occupation the emplolyee [sic] may not be required to pay for it.

The court found that because the plaintiff did not argue that the slip-resistant shoes were part of a “uniform” or were not usual and generally usable in the restaurant occupation, the employer was not required to reimburse the plaintiff for the slip-resistant shoes under Labor Code section 2802.

However, even though the court held as such, given that the plaintiff had not attempted to characterize the shoes as apparel regulated by Cal/OSHA or OSHA, the court did not reach the issue of whether the employer could be obligated to pay for the slip-resistant shoes under Cal/OSHA or OSHA. This unanswered question is bad news for California employers, as it is unsettled whether an employer is required to pay for nonspecialty protective shoes required as a condition of employment, such as generic work boots. It remains unsettled because there is a conflict between Cal/OSHA and OSHA regulations regarding generic nonspecialty protective shoes.

Shoes as Personal Protective Equipment

Under federal OSHA regulations, which were amended in 2008, an employer is required to provide personal protective equipment, including certain specialty protective shoes, at no cost to the employee. However, the federal OSHA regulations also contain an exemption that does not require the employer to pay for generic nonspecialty shoes, such as steel-toe boots, which the employer permits to be worn off the jobsite. Further, a 2011 OSHA directive interpreted this regulation as not requiring employers to “pay for non-specialty shoes that offer some slip-resistant characteristics, but are otherwise ordinary clothing in nature.”

Consistent with the federal OSHA regulations, Cal/OSHA regulations provide that “[a]ppropriate foot protection shall be required for employees who are exposed to foot injuries from electrical hazards, hot, corrosive, poisonous substances, falling objects, crushing or penetrating actions, which may cause injuries or who are required to work in abnormally wet locations.” Also consistent with federal law, California law generally provides that, if protective equipment is required by Cal/OSHA, the employer is responsible for the cost of the protective equipment.

However, California law significantly diverges from federal law when it comes to nonspecialty safety shoes that can be worn off the jobsite. Under Cal/OSHA, there is no corresponding provision that specifically exempts employers from paying for the cost of generic nonspecialty safety shoes, such as steel-toe boots. Indeed, in 2012, the California Occupational Safety and Health Standards Board proposed the adoption of a regulation similar to the federal regulation, which exempted employers from paying for the cost of nonspecialty safety footwear. The proposed regulation initially contained exceptions despite the California Occupational Safety and Health Standards Board’s having noted that “existing case law requiring employers to pay for [personal protective equipment] is more effective than the federal standard, because California enforces the employer’s duty to pay for safety devices and safeguards without the exceptions provided in the federal standard.” The regulation was ultimately not adopted. Consistent therewith, Cal/OSHA has taken the stance that if an employer requires shoes for safety purposes, whether specialty or nonspecialty, the employer must pay for the cost of those shoes.

In contrast, California employers have argued that the federal OSHA regulation exempting employers from paying for the cost of generic nonspecialty safety shoes should control in California. Indeed, in Townley, the trial court originally granted BJ’s Restaurant’s motion for summary judgment finding that the federal OSHA regulation exempting employers from paying for the cost of nonspecialty safety shoes controlled in California because California did not adopt a Cal/OSHA regulation requiring employers to reimburse employees for the cost of such shoes—and thus, BJ’s Restaurants was not required to reimburse for the cost of the slip-resistant shoe. However, as noted above, the California Court of Appeal did not reach the issue of the applicability of Cal/OSHA and OSHA to these types of situations.

Key Takeaways

What does this all mean for California employers? The short answer is that, if an employer requires employees to wear shoes with safety characteristics as a condition of employment, it may want to assess whether it is required to reimburse employees for the cost of the shoes. An employer’s failure to pay for or reimburse an employee for the cost of shoes could expose the employer to potential civil claims or regulatory enforcement by Cal/OSHA.

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For more on employer safety requirements, see the National Law Review Labor & Employment page.