Voters in Five States Approve Marijuana Ballot Initiatives on Election Day

Voters in Arizona, Mississippi, Montana, New Jersey, and South Dakota approved laws to legalize marijuana on Election Day 2020. Recreational marijuana was approved in Arizona, Montana, and New Jersey, while Mississippi voters approved medical marijuana. South Dakota voters approved both medical and recreational marijuana ballot initiatives.

Medical Marijuana

  1. Mississippi – Mississippi Ballot Measure 1 passed, with 68% voting “yes” and 32% voting “no.” Ballot Measure 1 asked voters to generally cast a vote for “either measure” Initiative 65 or Alternative 65A, or against both measures. Voters who cast a vote for “either measure” were then required to cast an additional vote for their preferred measure. Mississippi voters passed Initiative 65 with 74% voting for it and 23% voting for Alternative 65A.*

Initiative 65 allows the medical use of marijuana by patients who suffer from qualifying medical conditions. Qualified medical marijuana patients may possess up to 2.5 ounces of medical marijuana. The new law does not permit a qualifying patient to be “subject to criminal or civil sanctions for the use of medical marijuana.” However, it does not require “accommodation for the use of medical marijuana or require any on-site use of medical marijuana” in any place of employment. It also does not affect any “existing drug testing laws, regulations, or rules.”

The Mississippi State Department of Health has the authority to implement, administer, and enforce the law. It is required to issue final rules and regulations regarding medical marijuana by July 1, 2021. The Department must begin issuing medical marijuana identification cards and treatment center licenses no later than August 15, 2021.

  1. South Dakota – South Dakota’s Initiated Measure 26 passed, with 69% voting “yes” and 31% voting “no.” The new law allows the medical use of marijuana by patients who suffer from a debilitating medical condition. Medical marijuana card holders may possess up to three ounces of marijuana and cultivate marijuana plants. The law goes into effect July 1, 2021, but it may take up to a year before medical marijuana is available in the state.

Under the new law, medical marijuana cardholders are entitled to “all the same rights under state and local laws” as the person would be afforded if they were prescribed a pharmaceutical medication as it pertains to: (1) any interaction with a person’s employer; (2) drug testing by a person’s employer; and (3) drug testing required by any state or local law, agency, or government official.

The new law requires the South Dakota Department of Health to issue regulations regarding medical marijuana within 120 days after the law goes into effect (October 29, 2021) and to begin issuing registry identification cards to qualifying patients within 140 days after the law goes into effect (November 18, 2021).

The new law does not apply to employers to the extent it would conflict with the employer’s obligations under federal law or regulation or if it would disqualify an employer from a monetary or licensing-related benefit under federal law or regulation.

Although employers may discipline employees for ingesting marijuana in the workplace or for working while under the influence of marijuana, employers may not consider a qualifying patient to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in “insufficient concentration to cause impairment.” Employers in South Dakota should take note of this language because there is no universally accepted concentration of marijuana that proves “impairment.”

Recreational Marijuana

  1. Arizona – The Smart and Safe Arizona Act passed with nearly 60% voting “yes” and 40% voting “no.” Under the Smart and Safe Arizona Act, individuals 21 years of age or older may lawfully use and purchase less than one ounce of marijuana (except, not more than five grams may be in the form of marijuana concentrate) and may cultivate up to six marijuana plants for personal use at the individuals’ primary residence (subject to certain restrictions). The new law does not include a delayed effective date, but it will likely be several months before Arizonans can purchase recreational marijuana.

The new law requires the Arizona Department of Health Services to begin accepting applications for marijuana establishment licenses from “early applicants” beginning January 19, 2021 through March 9, 2021. Licenses will be issued to qualified applicants within 60 days of receiving an application.

The new law does not restrict the rights of employers to “maintain a drug-and-alcohol free workplace” or prevent employers from having workplace policies “restricting the use of marijuana by employees or prospective employees.” It also does not require employers to “allow or accommodate the use, consumption, possession, transfer, display, transportation sale or cultivation of marijuana in a place of employment,” nor does it restrict employers from prohibiting or regulating marijuana use that occurs on or in their properties.

Arizona passed the Arizona Medical Marijuana Act in 2010, prohibiting employers from discriminating against medical marijuana patients. The recreational marijuana law expressly states that is it not intended to limit any privilege or right of a qualifying patient under the Arizona Medical Marijuana Act.

  1. Montana – Montana’s Initiative 90 and Constitutional Initiative 118 both passed with approximately 57% voting “yes” and 43% voting “no” for Initiative 90.  Effective January 1, 2021, individuals age 21 or older may possess, use, or transport one ounce or less of marijuana, and grow up to four mature marijuana plans and four seedlings on the grounds of a private residence. The Montana Constitution provides that a person 18 years of age or older is an adult for all purposes, except that a different legal age may be established for purchasing, consuming, or possessing alcoholic beverages. Effective October 1, 2021, the Montana Constitution will similarly permit a different legal age (i.e., 21 years of age or older) to be established for the purchase, consumption, or possession of marijuana.

Certain provisions of the new law go into effect on October 1, 2021, which is the deadline for the Department of Revenue to issue rules and regulations related to licensure of adult-use marijuana providers and dispensaries. The Department must begin accepting applications from dispensaries, providers, and manufacturers on or before January 1, 2022. However, for the first 12 months, the Department will only accept such applications from providers and dispensaries licensed under Montana’s medical marijuana statute.

The new law does not impose restrictions on employers. It states that is may not be construed to: (1) require an employer to permit or accommodate recreational marijuana use (or any other conduct permitted by the law) in any workplace or on the employer’s property; (2) prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while intoxicated by marijuana; (3) prevent an employer from declining to hire, discharging, or otherwise taking adverse action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment because of the individual’s violation of a workplace drug policy or intoxication by marijuana while working.

Montana has had a medical marijuana law since 2004.

  1. New Jersey – New Jersey’s Question 1 passed with 67% voting “yes” and only 33% voting “no.” Effective January 1, 2021, the New Jersey Constitution will be amended to legalize recreational use of marijuana for adults ages 21 and older. The constitutional amendment provides for the Cannabis Regulatory Commission to regulate recreational marijuana and subjects all retail sales of recreational marijuana products to state sales tax.

The Cannabis Regulatory Commission and New Jersey lawmakers will address the regulatory issues that will determine the amount individuals can possess legally, the requirements for operating dispensaries for sale of cannabis, and taxation by state and local authorities. This process is expected to take up to approximately one year.

New Jersey has approved the use of medical marijuana since 2013. Under 2019 amendments to the Jake Honig Compassionate Use Act, employers are not permitted to discriminate against those who use cannabis for medical reasons.

  1. South Dakota – South Dakota’s Constitutional Amendment A passed with 53% voting “yes” and 47% voting “no.” Effective July 1, 2021, the new law permits individuals 21 years of age or older to possess and use one ounce or less of marijuana and to grow up to six marijuana plants on the grounds of a private residence.

No later than April 1, 2022, the South Dakota Department of Revenue is required to issue rules and regulations related to the commercial sale, cultivation, and testing of marijuana. The new law also directs the legislature to pass laws regulating the cultivation, processing, and sale of hemp and medical marijuana by April 1, 2022.

The new law does not require employers to permit or accommodate conduct authorized by it. It also does not affect an employer’s ability to restrict the use of marijuana by employees.

Next Steps

Employers should review their drug and alcohol policies – especially drug and alcohol testing policies – for compliance with applicable state laws.

While marijuana remains a Schedule I drug under the federal Controlled Substances Act, the trend in the courts over the last three years is to disregard marijuana’s status under federal law and to enforce state laws instead (with the exception of federally regulated employees such as those regulated by the U.S. Department of Transportation).

Employers must be familiar with the marijuana laws in the states where they operate before taking employment actions against those who use marijuana.

Jackson Lewis P.C. © 2020
For more articles on marijuana legalization, visit the National Law Review Biotech, Food, Drug section.

Employment Litigation Is on the Decline, but Expect More Wage and Hour Claims

A recent Lex Machina study (available via signup here) noted that the number of federal employment cases filed in the second and third quarter of 2020 was down. Not surprisingly, harassment and discrimination cases showed the biggest decrease, by almost 20%, likely due to the increase in remote work and decrease in actual interaction between workers.

However, Family and Medical Leave Act (FMLA) claims and wage and hour cases under the Fair Labor Standards Act (FLSA) were down only slightly.  A crystal ball is not needed to predict that FLSA claims are likely to increase. One obvious reason is the increase in remote work.  A change from office to remote work makes it harder to actually observe when someone is working.  And, for a large number of workers, especially those impacted by changes to school or child care, work schedules may have shifted, such as more early or late work, in order to accommodate other demands on their time, and those changes may contribute to poor or difficult tracking.

Other aspects of the FLSA also make challenges more likely.  One is the timing for filing a lawsuit. Pursuing federal harassment or discrimination claims requires first filing an administrative charge, which in most states typically has to be filed within 300 days (in some states it is 180 days).  In contrast, FLSA claims can be filed up to three years after the alleged violation (but may be limited to a two-year period depending on circumstances).

Another difference is the potential for individual liability.  Title VII does not allow for individual liability, but the FLSA does.  The financial distress of a company might deter some harassment claims, but that is less likely for FLSA claims, since individuals can be sued and may be jointly liable.  Finally, unlike harassment claims, FLSA claims cannot be easily waived in a release.  FLSA claims are not properly waived unless there is approval from the Department of Labor or a court.

In short, employers should not interpret the decline in litigation as a decreased need for vigilance, especially for FLSA (and state wage and hour) claims.

The potential for such claims begs the question of what should companies be doing now?  Below are a few suggestions:

  • If you have not already done so, reassess your procedures for timekeeping.Do they allow for or adequately address current work circumstances, in which many employees are teleworking?If not, make adjustments – in writing.If applicable, communicate the temporary nature of the changes.
  • Regularly remind nonexempt employees to follow established procedures regarding time tracking, which may include some of the following:
    • Reporting all time worked (and a reminder to either not work outside of scheduled hours or being sure to report the additional work time).
    • Asking for approval for overtime (but remember, even if not approved, overtime must be paid at time and a half of the regular rate) or otherwise communicating about the need for overtime.
  • Remind managers or supervisors to notice if someone seems to be working outside of normal hours, especially if it is a pattern (like frequent late night or weekend emails). And they should assess whether time reports are too regular (reflecting working Monday to Friday, 8-12 and 1-5).If so, the information is probably only reflecting the schedule for work, not the actual time the employee is working.
© 2020 Foley & Lardner LLP
For more articles on employment litigation, visit the National Law Review Labor & Employment section.

Executive Summary: COVID-19 Pandemic Spurs Wave of Mega Corporate Bankruptcies

The COVID-19 pandemic has disrupted the global economy and triggered a wave of large corporate bankruptcies. In particular, the number of mega bankruptcies (over $1 billion in reported assets) increased dramatically in the second and third quarters of 2020.

This report examines trends in Chapter 7 and Chapter 11 bankruptcy filings between January 2005 and September 2020 by companies with over $100 million in assets.[i]

In the first three quarters of 2020, 34, 55, and 49 companies with over $100 million in assets filed for bankruptcy, respectively, compared to the quarterly average of 19 for the 2005–2019 period. The 55 bankruptcy filings in Q2 2020 was the second-highest total for any quarter since 2005, only behind the 65 bankruptcies in Q1 2009.

A total of 138 companies with over $100 million in assets filed for bankruptcy in the first three quarters of 2020. This number is 84 percent higher than the number of bankruptcies (75) filed during the same period last year.

There was a substantial increase in the number of “mega bankruptcies” (i.e., those filed by companies with over $1 billion in reported assets) in Q2 2020. In Q2 and Q3 2020, there were 31 and 15 mega bankruptcies or roughly six and three times the quarterly average (five) during the 2005–2019 period, respectively.

Mega bankruptcies were concentrated in two industries: Mining, Oil, and Gas; and Retail Trade. These two industries accounted for 58 percent of the mega bankruptcies in Q1–Q3 2020.

The largest bankruptcy in the first three quarters of 2020 was filed by The Hertz Corporation, which had an estimated $25.84 billion in assets at the time of filing.

Figure 1: Key Trends in Bankruptcy Filings

2005–Q3 2020

2005–2019
Quarterly Average

Q1 2020

Q2 2020

Q3 2020
Chapter 11 Bankruptcy Filings

18

33

54

49
Chapter 11 Mega Bankruptcies

5

6

31

15
Chapter 11 Bankruptcy Filings by Public Companies

11

8

34

26
Chapter 11 Bankruptcy Filings by Private Companies

7

25

20

23
Chapter 7 Bankruptcy Filings

1

1

1

0
Average Asset Value at Time of Filing (Billions)

$2.21

$0.66

$3.01

$1.52

Source: BankruptcyData

Note: Only Chapter 11 and Chapter 7 bankruptcy filings by companies (both public and private) with over $100 million in reported assets are included. For companies where exact assets are not known, the lower bound of the estimated range is used. Asset values are not adjusted for inflation. Mega bankruptcies are defined as those for companies with over $1 billion in reported assets at the time of their bankruptcy filings.

Read COVID-19 Pandemic Spurs Wave of Mega Corporate Bankruptcies

[i]      This report relies on data obtained from BankruptcyData. It focuses on asset values at the time of bankruptcy filings due to the higher prevalence of missing information on liabilities in BankruptcyData. Some other publications have focused on liabilities due to potential concerns over whether book values of assets overstate valuations for bankrupt firms (see, e.g., Edward Altman, “COVID-19 and the Credit Cycle,” Journal of Credit Risk 16, no. 2 (2020): 1–28 at 13–14). Using available data on liabilities in this report would not meaningfully change any of the findings.

Copyright ©2020 Cornerstone Research

ARTICLE BY Allie Schwartz and Joseph B. “J.B.” Doyle of Cornerstone Research
For more articles on bankruptcy, visit the National Law Review Bankruptcy & Restructuring section.

Lessons From Above: SCOTUS Declines to Review a Class Arbitrability Case (the Issue Had Been Delegated to an Arbitrator)

In its restraint, SCOTUS has shown us the mischief that arbitrators may do if parties are lax in setting boundaries in their agreement to arbitrate.  By declining to grant certiorari regarding the Second Circuit’s most recent decision in Jock v. Sterling Jewelers, Inc., 2019 U.S. App. LEXIS 34205 (2d Cir. Nov. 18, 2019), cert. den., No. 19-1382, 2020 U.S. LEXIS 4133 (Oct. 5, 2020), SCOTUS reminds us of the significance of the doctrine of judicial deference to the authorized decisions of an arbitrator.

In Jock, the ultimate issue was formidable — class arbitrability.  And the subsidiary issues were and are daunting. For example,

(1) parties to an arbitration agreement can delegate the class arbitrability issue (is class arbitration permitted?) to an arbitrator in the first instance, but would that delegation bind non-appearing putative class members, who are of course not parties to the operative arbitration agreement?

(2) who decides that delegation issue?

(3) would an arbitrator’s determination that class arbitration is permitted bind (a) non-appearing putative class members or (b) an unwilling respondent vis-à-vis those non-appearing putative class members?

The Second Circuit held that an arbitrator had acted within her authority in “purporting to bind the absent class members to class procedures,” 2019 U.S. App. LEXIS 34205 at *14, and that that determination therefore would stand “regardless of whether [it] is, as the District Court believes, ‘wrong as a matter of law.’”  Id.  Indeed, the Second Circuit had framed its inquiry as “whether the arbitrator had the power, based on the parties’ submissions or the arbitration agreement, to reach a certain issue” and “not whether the arbitrator correctly decided that issue.”  Id. at *8-*9, citing Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 569 (2013).

Thus, the Court of Appeals did not review the merits of the arbitrator’s Class Determination Award (“CDA”), but rather defended it from scrutiny on the merits.  Instead, the Second Circuit focused on the delegation question — did the parties clearly and unmistakably delegate the class arbitrability issue to the arbitrator for determination in the first instance?

The first lesson:  if the issue of class arbitrability is delegated to an arbitrator for determination in the first instance, the resulting award becomes a hardened target with respect to its legal merits.  It may be challenged on the narrow grounds for vacatur set out in Section 10(a) of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 10(a), and it then benefits from the deference accorded to all arbitral awards.  Consequently, a decision concerning class arbitrability that might be reversed on de novo review if issued by a court will likely be left undisturbed if issued by an arbitrator.

That lesson alone is important to any company that uses a form arbitration clause in many substantially similar contracts – e.g, employment, consumer, financial, or insurance agreements.  It highlights the urgency of getting one’s form(s) of arbitration agreement in order, including the advisability (i) to state clearly whether arbitrability issues – and class and/or collective arbitrability issues in particular – are to be determined by a court or an arbitrator in the first instance, and (ii) to expressly prohibit class and collective arbitration if bilateral arbitration is the sole desired structure for dispute resolution.

To illustrate the point, consider that SCOTUS decided in Lamps Plus, Inc. v. Varela, 139 S.Ct. 1407, 2019 U.S. LEXIS 2943 (U.S. Apr. 24, 2019), that when a court is deciding the matter under the FAA in the first instance, neither silence nor ambiguity in an arbitration agreement regarding the permissibility of class arbitration is a sufficient basis to find that the parties agreed to permit class arbitration.  And SCOTUS implied that incorporation by reference of institutional rules such as those of the American Arbitration Association (“AAA”), including its Supplementary Rules for Class Arbitration, is not a sufficient basis to infer an agreement to permit class arbitration.  (The AAA’s Supplementary Rules are expressly consistent with that. See R-3.)

But, as the Second Circuit pointed out, the parties in Lamps Plus had agreed that a court, not an arbitrator, should resolve the class arbitrability question, and so the District Court’s decision in Lamps Plus was subject to de novo review on appeal, rather than the deferential review that applies concerning a motion to vacate an arbitrator’s award.  See, 2019 U.S. App. LEXIS 34205 at *18.

In the Jock case, on the other hand, the class arbitrability issue had been delegated to an arbitrator for determination in the first instance:  (1) the appearing arbitrating parties had “squarely presented to the arbitrator” the issue of whether the controlling arbitration agreement permitted class arbitration, id. at *6, in effect resolving the delegation issue via an ad hoc agreement; (2) the operative arbitration agreement provided that the arbitrator shall decide questions of arbitrability and procedural questions, see id. at *12-*13; and (3) the operative arbitration agreement incorporated the AAA’s arbitration rules, including the delegation provision (see R-3) of its Supplementary Rules for Class Arbitration, which “evinces agreement to have the arbitrator decide the question of class arbitrability,” id. at *12, citing Wells Fargo Advisors, LLC v. Sappington, 884 F.3d 392, 396 (2d Cir. 2018).  The Second Circuit justifiably took these manifestations to be “clear and unmistakable evidence” of an intent by the appearing parties to delegate the class arbitrability issue to an arbitrator.

The wild card question, however, was whether the non-appearing putative class members should be deemed bound by that delegation.

It is worth recalling that the Jock case has a lengthy history in the Southern District of New York and the Second Circuit, having bounced back and forth between those courts several times already.  In an earlier go-round, after an arbitrator had “certified” a class of 44,000 employee claimants (including 250 active claimants),1 the District Court denied respondent Sterling’s motion to vacate that CDA, but the Second Circuit reversed and remanded, noting that it had not previously squarely determined “whether the arbitrator had the power to bind absent class members to class arbitration given that they…never consented to the arbitrator determining whether class arbitration was permissible under the agreement in the first place.”  2019 U.S. App. LEXIS 34205 at *6.  On remand, the District Court then vacated the arbitrator’s CDA.  But the Second Circuit reversed again, this time based principally on the appellate court’s determination that the arbitrator had been authorized to adjudicate class arbitrability in the first instance, and so the District Court’s review of that award was therefore limited by (a) the narrow grounds for vacatur set out in FAA § 10(a)(4) and (b) the requisite deferential standard of review of such awards.

In that decision, which SCOTUS eventually let stand, the Second Circuit arguably could have addressed a number of issues:

(1) did the parties to the operative arbitration agreement delegate the class arbitrability issue to an arbitrator?

(2) did the non-appearing members of a putative class too delegate the class arbitrability issue to the particular arbitrator in the pending arbitral proceeding?

(3) are the non-appearing putative class members, who were not parties to the operative arbitration agreement, bound by that arbitrator’s decision regarding class arbitrability?

(4) should the District Court have vacated the arbitrator’s CDA?

The Second Circuit first determined that the class arbitrability issue had been delegated to an arbitrator.  It also decided that the District Court should not have vacated the CDA because the arbitrator had the authority, based on the delegation, to resolve the class arbitrability issue in the first instance, and the merits of that determination therefore were not up for review even if the District Court believed that it had been wrongly decided as a matter of law.

Finally, the Second Circuit decided– and this was novel– that the arbitrator had the authority to reach the class arbitrability issue even with respect to the non-appearing putative class members.  2019 U.S. App. LEXIS 34205 at *15.  Thus, the appellate court decided that, in the circumstances, the non-signatory “absent class members” (a) were deemed to have delegated the class arbitrability issue to the particular arbitrator in the proceeding in question, and (b) were bound by her determination that class arbitration was permitted.

The court’s rationale was:  (1) each of the non-appearing putative class members respectively had made an arbitration agreement with respondent Sterling Jewelers that was substantially identical to the agreement upon which the appearing arbitration participants relied; (2) they thereby consented to, and indeed “bargained for,” an arbitrator’s authority to decide the class arbitrability issue, see id. at *11, *14; (3) that constituted an express contractual consent to delegation by the non-appearing putative class members, see id. at *17; and (4) even if the non-appearing class members had not expressly agreed to “this particular arbitrator’s authority,” id. at *15, that did not matter because judicial class actions routinely bind absent members of mandatory or opt-out classes, id. at *15-*16.  (But of course, arbitration is not litigation, and Fed. R. Civ. P. 23 does not apply in arbitrations.)

Notably, this rationale appears to be inconsistent with the skepticism in this regard expressed by Justice Alito in his concurring opinion in the Oxford Health case.  Justice Alito had opined that an arbitrator’s interpretation of an arbitration agreement generally “cannot bind someone who has not authorized the arbitrator to make that determination,” and that “it is difficult to see how an arbitrator’s decision to conduct class proceedings could bind absent class members who have not authorized the arbitrator to decide on a class-wide basis when arbitration procedures are to be used.”  Oxford Health Plans, LLC v. Sutter, 133 S.Ct. at 2072 (Alito, J., concurring).  Thus too, “an arbitrator’s ‘erroneous interpretation’ of a contract that does not authorize class procedures cannot bind absent class members who have ‘not authorized the arbitrator to make that determination.’”  2019 U.S. App. LEXIS 34205 at *10-*11, citing Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 574 (2013) (Alito, J., concurring).

Nevertheless, SCOTUS let the Jock decision, with all it entails, stand.  And we are left to puzzle out what further lessons SCOTUS intended to convey in this regard.

1 The arbitrator “certified” an arbitration class solely for purposes of injunctive and declaratory relief, and it was an opt-out class (which is usually certified for class action litigations seeking money damages) rather than an opt-in class (which might have lent more justification to the CDA) or a mandatory class.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.
ARTICLE BY Gilbert A. Samberg  of Mintz
For more articles on litigation, visit the National Law Review ADR / Arbitration / Mediation section.

Civil Rights Lawsuit Filed to Strike Down EO 13950

On October 29, 2020, the National Urban League and the National Fair Housing Alliance (represented by the NAACP Legal Defense and Education Fund, Inc.) filed a complaint challenging the constitutionality of Executive Order (EO) 13950 and asking for injunctive and declaratory relief. The plaintiffs, on behalf of themselves and a proposed class that includes federal contractors that the EO impacts, brought the lawsuit against the president, the secretary of Labor, and the U.S. Department of Labor (DOL).

The plaintiffs summarize the EO 13950 as follows:

In short, EO 13950 prohibits any federal contractor from engaging in speech, including the provision of certain training to its employees, that may foster belief in certain concepts that President Trump has deemed divisive, but which are widely-accepted, historically-based concepts that have been used for years in trainings and programs across the country in corporate, public sector, and educational settings.

They request relief based on several constitutional principles falling under the First and Fifth Amendments to the United States Constitution.

First Amendment Allegations

The plaintiffs contend that the order prohibits and censors protected speech, chills future protected speech, and vests the DOL with unfettered enforcement discretion in violation of the First Amendment to the United States Constitution.

In support of the censorship argument, the plaintiffs focus on the EO’s restrictions on whether and how covered organizations can include certain topics in their diversity and inclusion trainings. What the EO describes as “divisive concepts” and restricts, the plaintiffs contend, are fundamental to the public interest and constitute protected speech. Pointing to vague language in the order that they argue precludes reasonable employers and the DOL, as the enforcement agency, from understanding what speech constitutes noncompliance, the plaintiffs state that the order provides “no objective way to determine which activities are permitted and which are prohibited, creating a broad chilling effect and inviting unpredictable, uneven, and potentially selective enforcement.” The plaintiffs assert that the order lacks necessary parameters and, consequently, chills protected speech and vests the DOL with “unfettered discretion,” which the First Amendment prohibits.

The complaint sets forth a sequence of events leading to the issuance of EO 13950 that the plaintiffs claim is relevant to the First Amendment analysis and “reveal[s] the order’s clear purpose to restrict, if not, prohibit the expression of viewpoints.”

The plaintiffs also identify several post-order actions that they argue have created “uncertainty and confusion” surrounding the order. In this regard, the plaintiffs reference:

  • public statements by the president of the United States and administration officials;
  • the EO’s “radical departure from other executive orders and from [the] usual procedures [for enacting executive orders]”;
  • the executive branch’s action in discontinuing diversity trainings altogether;
  • the Office of Management and Budget’s September 28, 2020, memo, “Ending Employee Trainings that Use Divisive Propaganda to Undermine the Principle of Fair and Equal Treatment for All”;
  • the Office of Federal Contract Compliance Programs’ (OFCCP) October 7, 2020, frequently asked questions and the agency’s October 22, 2020, request for information.

The plaintiffs conclude that the order even threatens to chill speech that the order permits “because many federal contractors will choose to err on the side of caution and decline to discuss any matters that even remotely bear on issues of race or sex, for fear of violating the broad prohibitions in the Order.”

Fifth Amendment Allegations

The plaintiffs contend that the same facts and authorities underlying the First Amendment claim also establish Fifth Amendment violations. The plaintiffs claim that the EO is “unconstitutionally vague” and deprives people of color, women, and the LGBTQ community of equal protection and violates their due process rights. They argue that “[r]ace and sex-based discrimination against individuals who are people of color, women, and/or LGBTQ community were [sic] a substantial or motivating factor behind the issuance of EO 13950, in violation of the Fifth Amendment.” The complaint alleges that the order’s stated rationale is merely “pre-textual and meant to obfuscate its impermissible discriminatory purpose,” pointing to facts supporting the First Amendment analysis, the inconsistency between the order’s stated goals for workforce economy and efficiency and its effect to the contrary, and the foreseeable certainty of its disparate impact on people of color, women, and/or LGBTQ individuals.

Takeaways for Employers

This lawsuit and other potential legal challenges to EO 13950 are significant in a number of respects.

  • The order does not apply to contracts executed before November 22, 2020. In the meantime, lawsuits like this one signal to companies (and their employees) that there is some doubt about the order’s constitutionality, accuracy, enforceability and impact. The present legal challenge also highlights that there is at least some possibility the order will be struck down or modified before OFCCP has a meaningful opportunity to enforce it. To that extent, companies may conclude that overhauling their diversity programs in response to the order would be premature.
  • Constitutional challenges may bring to the surface the level of public concern over a statute, ordinance, or executive order. An organization’s internal departments may benefit from context related to the possible views of EO 13950 of their markets (e.g., customers, clients, communities). To the extent this complaint’s arguments align with company-stated values, this development may address concerns regarding a company’s possible withdrawal from diversity and inclusion efforts.
  • A complaint seeking to strike down the order may result in disclosure of additional information about how the administration intends to apply the order. At a minimum, employers will have more insight than they do now. In addition, the lawsuit may result in an interpretation of the order that clarifies for contractors the scope of their trainings and whether they can continue (even if they require some modifications).

Guidance and legal information about EO 13950 is evolving quickly, and employers can expect many further developments in the coming days and weeks.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more articles on civil rights, visit the National Law Review Civil Rights section.

Driven To The Edge: Saga Of Uber And Lyft Litigation Continues As Court Of Appeal Affirms Order Forcing Driver Reclassification

On Thursday, October 22, 2020, the California Court of Appeal denied Uber and Lyft’s request to overturn a recent California Superior Court’s preliminary injunction ordering the companies to reclassify their drivers as employees, rather than independent contractors. With the appeal garnering Amicus Curiae briefs from more than 50 different organizations—ranging from the U.S. Chamber of Commerce to Mothers Against Drunk Driving—the decision marks the most recent entry in the highly watched ongoing litigation against the companies over their compliance with A.B. 5. With California’s upcoming vote on Proposition 22, however, many are left wondering what, if any, impact the denial might have on Uber, Lyft, or the gig economy as a whole.

The litigation involves a recent complaint filed by the California Labor Commissioner alleging, in relevant part, that Uber and Lyft violated California’s recently enacted legislation, A.B. 5, by classifying their app-based drivers as independent contractors, rather than employees. Under A.B. 5, companies are required to classify their workers as employees unless the companies can show:

  • The workers are generally free from the company’s direction and control over how they perform their work;
  • The workers are not engaged in the type of work the company usually engages in in its regular course of business; and
  • The workers are engaged in an established trade or professions separate and apart from the company itself.

Whether or not Uber and Lyft’s app-based drivers satisfy this test has been a hotly debated point of dispute. For Uber and Lyft, however, the consequences of being found to not pass this test are potentially dire, as an adverse decision on this point would force the companies to restructure their entire business model by changing the classification of their app-based drivers from independent contractors to employees.

The appeal was motivated by a California Superior Court’s recent decision to issue a preliminary injunction that ordered Uber and Lyft to begin this reclassification process, even prior to the suit’s resolution—a decision signaling that the Superior Court believed the companies to be fighting an uphill battle they would ultimately loose. In light of the order, Uber and Lyft promptly appealed the decision, citing in relevant part, the grave harm that the order would cause by necessitating “substantial changes to…organizational structure, hiring processes, software tools and management systems, and company culture.” To adapt to these forced changes, the companies explained that they would likely need to “reduce the number of drivers” allowed to use the platform, “control the drivers’ time…by having them work scheduled shifts,” and “prohibit drivers…from unilaterally rejecting or cancelling rides.” Unfortunately, Uber and Lyft’s arguments ultimately fell on deaf ears, as the Court of Appeal affirmed the lower court’s ruling forcing the companies to reclassify their app-based drivers—although the order isn’t set to take effect for at least 30 days.

Proposition 22 could save Uber and Lyft from this fate long before those 30 or so days are up. Currently set for the November 3rd ballot, Proposition 22, would exempt certain gig-economy companies, like Uber and Lyft, from the strictures of A.B. 5 while simultaneously allowing for a new middle ground between independent contractor and employee classification. The ballot initiative would do this: (a) allowing app-based drivers to maintain their traditional independent contractor status; while also (b) providing them with new and added benefits not previously available to independent contractors—a compromise that could inhere to the benefit of both parties.

If successful, Proposition 22 could stop the California Labor Commissioner’s suit in its tracks. As a result, only time will tell if the recent Court of Appeal ruling will ultimately have any impact on Lyft, Uber, or the gig economy generally.

©2020 Greenberg Traurig, LLP. All rights reserved.
For more articles on Uber & Lyft, visit the National Law Review Corporate & Business Organizations section.

Why Employees at Religious Organizations May Not Be Protected Against Discrimination

In Demkovich v. St. Andrew the Apostle Parish, the Seventh Circuit recently held in a 2-1 decision that the ministerial exception does not preclude church ministerial employees from asserting hostile work environment claims.

Supreme Court Rulings Clarify Ministerial Exception in Employment Discrimination Cases

The decision in Demkovich was preceded by two significant Supreme Court cases that clarified the reach of the ministerial exception by explaining the test for determining which employees of a religious institution are considered ministers. In the 2012 case Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, in a unanimous decision, the Court recognized that the ministerial exception bars ministerial employees from bringing employment discrimination claims against their religious employers. The issue was whether a teacher in a religious school who taught secular subjects should be considered a minister. The Court held, based on several specific facts about the teacher’s duties and status, that she was in fact a minister in the church’s view and thus was barred from bringing her claim that she was fired because of her disability. The ministerial exception bars all types of employment discrimination claims brought by ministers alleging discrimination under Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, at issue in Hosanna-Tabor. Although it appears to protect bad actors, the ministerial exception serves to ensure that the ecclesiastical authority to select and control who will minister to the faithful is not undermined by the state.

More recently, this past July, in a 7-2 decision in Our Lady of Guadalupe v. Morrissey-Berru, the Court held that the primary consideration in determining whether a claim was barred by the ministerial exception turned on the tasks the employee performed. Hence, in determining whether two parochial school teachers who taught fifth and sixth grade classes and claimed they were fired—in one instance because of her age and in the other because she had breast cancer—could assert an age discrimination or a disability claim, the court determined they could not assert such claims, because the tasks they performed were vital religious duties such that the ministerial exception would apply. Specifically, the Court held that both teachers educated their students in the Catholic faith and guided them to live according to that faith.

As explained in the Demkovich decision, these Supreme Court decisions analyzed termination decisions by the religious schools and held that courts could not allow ministerial employees to challenge such decisions regardless of the reasons for their terminations. Demkovich, on the other hand, would determine whether the ministerial exception should apply to bar hostile work environment cases that did not involve such tangible employment action.

Applying the Ministerial Exception in Hostile Work Environment Cases

In September 2012, Mr. Demkovich began working as the Music Director, Choir Director, and Organist for the Archdiocese of Chicago and St. Andrew Parish in Calumet City. His supervisor, Saint Andrews Pastor, Reverend Jacek Dada, often made derogatory comments about Mr. Demkovich’s being an openly homosexual man engaged to a same-sex partner. Mr. Dada called Mr. Demkovich a bitch and his nuptials a fag wedding. Mr. Dada, also aware that Mr. Demkovich suffered from diabetes and a metabolic syndrome that caused weight gain, made additional remarks about his weight—urging him to walk his dog to lose weight, complaining about the cost of keeping him on the parish’s health and dental insurance, and commenting that he needed to lose weight because Mr. Dada did not want to preach at Mr. Demkovich’s funeral. After enduring prolonged verbal abuse, Mr. Demkovich was finally terminated in September 2014 after marrying his same-sex partner.

Mr. Demkovich initiated a Title VII, ADA, and wrongful termination claim. The defendants, Saint Andrews Parish and the Archdiocese of Chicago, moved to dismiss arguing the suit was barred by the ministerial exception. The district court granted the defendant’s motion, holding all the claims were barred. Mr. Demkovich filed an amended complaint dropping his wrongful termination claim, but seeking damages for a hostile work environment caused by discriminatory remarks and insults based on his disability and sex. The district court dismissed his hostile work environment claims based on sex, sexual orientation, and marital status because even though the claims were not barred by the ministerial exception, their adjudication would lead to excessive entanglement in matters of faith. The district court certified the following legal question for review by the Seventh Circuit: “Under Title VII and the Americans with Disabilities Act, does the ministerial exception ban all claims of a hostile work environment brought by a plaintiff who qualifies as a minister, even if the claim does not challenge a tangible employment action?”

Hostile environment claims do not involve challenges to employment decisions made by religious officials, so the resolution of the question in Demkovich turned on whether litigating the claim would nevertheless result in excessive entanglement between church and state. The Demkovich court discussed both procedural and substantive entanglement. The court concluded there would be no undue procedural entanglement, which refers to the operation of the entire legal process. The church’s concern about the intrusive nature of litigation is shared by all litigants and thus concern of excessive entanglement would not bar hostile work environment claims by ministers any more than by the non-ministerial employees of a church. Next, the court discussed substantive entanglement, analyzing whether civil courts can decide substantive questions of law while avoiding issues of faith. The court discussed a variety of cases allowing claims against churches involving tax disputes, property disputes, tort claims, and application of the Fair Labor Standards Act to church employees. As in those cases, the court determined it was possible for a court to rule on a harassment claim without getting into matters of religious faith. Mr. Demkovich faced ongoing harassment in part due to his sexual orientation. The church argued that all comments made about Mr. Demkovich were motivated by church doctrine and the manner Reverend Dada expressed these beliefs were shielded from judicial scrutiny. The church also argued that haranguing Mr. Demkovich about his health was within his supervisor’s purview in implementing the proper formation of a member of the clergy. Although the district court had accepted the church’s argument in part, dismissing his sexual orientation claim, the court of appeals was not as persuaded that the risk of substantive entanglement was so great that hostile work environment cases should be dismissed without further inquiry. The court emphasized that Reverend Dada could have expressed the church’s views on gay marriage and obesity without being personally abusive, so the content of his religious reprimands did not excuse compliance with valid, neutral laws against harassment.

Courts Split on Reach of Ministerial Exception

The Seventh Circuit decision to narrow the reach of the ministerial exception deepens a split among the circuit courts of appeal. The Seventh Circuit now has joined the conclusion the Ninth Circuit reached in 2004 in Elvig v. Calvin Presbyterian Church, holding that the ministerial exception does not categorically bar ministers’ hostile work environment claims where the religious employer denies or disavows the conduct. At the same time, the Seventh Circuit has rejected the Tenth Circuit’s opposite conclusion in a 2010 case Skrzypczak v. Roman Catholic Diocese of Tulsa, holding that the ministerial exception bars all hostile work environment claims. Because of this lack of uniformity in applying the ministerial exception, ministerial employees who are victimized by any type of harassment constituting a hostile environment should consult an employment attorney to determine whether they can pursue a claim against their religious employer.

Katz, Marshall & Banks, LLP
For more articles on labor discrimination, visit the National Law Review Labor & Employment section.

The 2020 Election: Previewing the Potential for Shifts in Labor & Employment Law

As Election Day approaches, employers nationwide consider the changes that may come with a victory by Senator Joseph Biden in the Presidential race and/or shift in representation in the U.S. Senate.  While we cannot be certain of what the future holds—either in the election or the subsequent legal landscape—the Bracewell Labor & Employment team has prepared the following information in an effort to highlight areas of employment law that may transform, in both the near and far term, in the event of such changes in the country’s elected officials.

Labor Relations, Collective Bargaining and Union Organizing

  • Senator Biden strongly supports unions, stating that “Everything that defines what it means to live a good life and know you can take care of your family  . . . is because of workers who organized unions and fought for worker protections.”
  • Specifically, he supports:
    • Provisions of the Protecting the Right to Organize Act (PRO Act) – which would institute financial penalties on companies that interfere with union organizing – and supports legislation that would hold company executives personally liable for such interference.
    • Funding a “dramatic increase” in the number of investigators at the National Labor Relations Board (NLRB).
    • Shorter timelines for union election campaigns and bans on mandatory employer meetings with employees during union organizing campaign.
    • Creating a federal right to union organizing and collective bargaining for all public sector employees.
    • Creating a cabinet-level working group that will “solely focus on promoting union organizing and collective bargaining.”
    • Extending the right to organize and bargain collectively to independent contractors.
  • While recent prior Democrat administrations were not able to strengthen organized labor in the way Senator Biden’s platform hopes to achieve, at a minimum, if Senator Biden were to become President, his appointments to the NLRB would return a pro labor union majority to the agency.  In that case, the NRLB decisions and rule making would strengthen union organizing and limits on workplace rules.

Workplace Rules

  • President Donald Trump shifted the limits of employer workplace policies by undoing pro-union rulings the NLRB made under former President Barack Obama.  A Biden Presidency would likely swing such rulings back to where they were in the Obama era.
  • Employees should look for potential changes in the following areas:
    • Facially neutral workplace rules:  The Trump NLRB, in its Boeing Company decision, ruled that an employer does not necessarily violate the NLRA by maintaining a facially neutral work rule, policy or handbook provision that could be reasonably construed to interfere with union or other protected concerted activity protected under Section 7.  This overruled Lutheran Heritage Village-Livonia, which under the Obama administration, was frequently applied to invalidate facially neutral employer rules adopted and applied for legitimate business reasons unrelated to an employee’s Section 7 activity. Examples of Section 7 activity include the right discuss wages and working conditions and the right to organize.
    • Workplace investigations: In its 2015 Banner Health decision, the NLRB prohibited employers from requiring employees to keep workplace investigations confidential.  Last December, the Trump NLRB, in Apogee Retail, reversed the Banner Health decision, finding that employer policies that require confidentiality during internal investigations are per se lawful.
    • Employer e-mail: As a result of the NLRB’s 2014 Purple Communications decision, employers could not prohibit employees from accessing company email for union-related communications.  The Trump NLRB, in its Caesar’s Entertainment decision, restored employer rights to prohibit use of its email systems for non-business purposes.

Employment Law Developments and Enforcement

Senator Biden supports the following legislation:

  • The Equality Act
    • A proposed law that would codify anti-discrimination protections for LGBTQ individuals in employment as well as other contexts, including housing.
    • Ensure protection from associational discrimination – discrimination on the basis of a person’s association with an individual in a protected class.
    • The Equality Act passed the House of Representatives but has not come to a vote in the Senate.
  • Paycheck Fairness Act
    • A proposed law that addresses wage discrimination on the basis of sex.
    • Amends equal pay provisions of the Fair Labor Standards Act to restrict use of the bona fide factor defense to wage discrimination claims, enhance non-retaliation provisions, make it unlawful to require an employee to sign a contract or waiver prohibiting the employee from disclosing information about the employee’s wages and increase civil penalties for violations of equal pay provisions.
    • Prohibits employers from screening job applicants based on their salary history or requiring salary history during the interview or hiring process.
    • Requires EEOC to issue regulations for collecting compensation and other employment data from employers according to the sex, race, and ethnic identity of employees for use in enforcing laws prohibiting pay discrimination.
    • The Paycheck Fairness Act passed the House of Representatives but has not come to a vote in the Senate.

Department of Labor: Independent Contractors, Wage Changes and Federal Contractors

  • As stated above, Senator Biden supports the PRO Act:

    • Increasing the standard to classify workers as independent contractors
    • Expanding the definition of “joint employer”
    • Criminal liability for employer interference with organizing efforts
  • DOL, Wage & Hour/FLSA:  Recent Rules & Potential Changes
    • (Existing) Final Rule increasing the salary threshold to $684/week
      • If the minimum wage is increased to $15/hr, then the salary threshold would likely increase to retain a sufficient gap between exempt and non-exempt employees under the FLSA ($15/hr = $600/wk)
    • (Existing) Final Rule expanded Section 7(i) overtime exemption for retail and service industries by withdrawing the dated list of businesses with “no retail concept.”
      • Likely not affected
    • (Existing) Final Rule allows bonuses or other incentives to salaried, nonexempt employees without defeating the fluctuating workweek” method described in 29 CFR 778.114.
      • Likely not affected
    • (Existing) Final Rule on joint employer describing “vertical” and “horizontal” joint employer scenarios (enjoined by federal district court) to the extent the DOL too narrowly defined joint employment)
      • This may be challenged.
    • Proposed rule adopting the “economic realities” test for  independent contractors and emphasizing the factors of control and opportunity for profit and loss.
      • This may be challenged.
  • Senator Biden’s general proposals:
    • Increased penalties (in addition to current FLSA remedies and liquidated damages) for worker misclassification.
    • Senator Biden proposes to increase DOL/FLSA enforcement effort.
    • Senator Biden proposes to increase staffing of agencies.
    • Senator Biden proposes  greater collaborative enforcement efforts between various labor agencies (NLRB, EEOC, IRS, State unemployment and labor agencies).
  • Executive Orders & the Office of Federal Contract Compliance Programs (OFCCP)
    • Executive Order 13950, “Combating Race and Sex Stereotyping” prohibiting federal contractors from instilling race or sex stereotyping or scapegoating in workplace diversity and inclusion training
      • Likely withdrawn by Senator Biden administration
  • Notably, the OFCCP under the Trump Administration collected greater enforcement fines than expected –  e.g., OFCCP collected more than $21 Million from Dell Technologies, Goldman Sachs and Bank of America primarily relating to gender/race wage disparity claims.

COVID Response – Economic and Public Health Policies Affecting Employers

  • From “Unemployment” to “Employment Insurance”:
    • Focus on maintaining employment at reduced hours, with federal government supplementing worker wages
    • 100% federal financing for short-time compensation plan that is “automatically extended based on economic and health conditions” (without the vote of Congress)
    • Tax credit for employer’s extra health care costs
  • COVID:
    • Create Pandemic Testing Board to “guarantee regular, reliable and free access to testing for all, including every worker called back to the job”
    • Hire 100,000 Americans to conduct contact tracing
    • Ensure emergency paid leave for all who contract COVID-19 or need to care for a loved one with COVID-19
    • “Ensure worker protection and accountability” including tasking OSHA with “setting and enforcing a rigorous emergency temporary standard”
    • Equip small business with a “restart package” to retain and rehire workers
  • Schools – Issuing “basic, objective criteria” at the federal level to guide school reopening and passing significant emergency federal funding for school.

OSHA and Workplace Safety

  • Senator Biden has committed to reinstating a variety workplace safety and health regulations altered during the Trump administration, such as regulations requiring companies to report their workplace injuries.
  • He also has promised to increase the number of investigators in the Occupational Safety and Health Administration (OSHA) and the Mine Safety Health and Administration (MSHA) and to direct OSHA to substantially expand its enforcement efforts.

Employment Agreement Restrictions

  • Senator Biden has promised to will work with Congress to eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets, and outright ban all no-poaching agreements.
© 2020 Bracewell LLP
For more articles on the election, visit the National Law Review Election Law / Legislative News section.

Spooktacular Severability Ruling Raises Barr From The Dead, Buries TCPA Claims Arising Between November 2015 and July 2020

A few weeks ago, the Eastern District of Louisiana held that courts cannot impose liability under Sections 227(b)(1)(A) or (b)(1)(B) of the TCPA for calls that were made before the Supreme Court cured those provisions’ unconstitutionality by severing their debt collection exemptions.  The first-of-its-kind decision reasoned that courts cannot enforce unconstitutional laws, and severing the statute applied prospectively, not retroactively. Plaintiffs privately panicked but publicly proclaimed that the Creasy decision was “odd” and would not be followed.

So much for that. Yesterday, the Chief Judge of the Northern District of Ohio followed Creasy and dismissed another putative class action.  The new case—Lindenbaum v. Realgy—arose from two prerecorded calls, one to a cellphone and another to a landline. The defendant moved to dismiss, arguing that “severance can only be applied prospectively,” that Sections 227(b)(1)(A) and (b)(1)(B) were unconstitutional when the calls were made, and that courts lack jurisdiction to enforce unconstitutional statutes. The plaintiff opposed the motion, arguing, among other things, that a footnote in Justice Kavanaugh’s plurality opinion in Barr v. AAPC suggests “that severance of the government-debt exception applies retroactively to all currently pending cases.”

The court sided with the defendant. It began by agreeing with Creasy that this issue “was not before the Supreme Court,” and the lone footnote in Justice Kavanaugh’s plurality opinion is “passing Supreme Court dicta of no precedential force.” It then surveyed the law and found “little, if any, support for the conclusion that severance of the government-debt exception should be applied retroactively so as to erase the existence of the exception.” It reasoned that, while judicial interpretations of laws are “given full retroactive effect in all cases still open on direct review and as to all events,” severance is different because it is “a forward-looking judicial fix” rather than a backward-looking judicial “remedy.” In short, severance renders statutes “void,” not “void ab initio.”

Defendants are now two-for-two in seeking dismissal of claims based on the now-undeniable unconstitutionality of the debt-collection exceptions in Section 227(b)(1)(A) or (b)(1)(B). With more such motions pending in courts across the country, this may become a powerful weapon against whatever claims remain after the Supreme Court’s decision in Facebook v. Duguid.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.
For more articles on the TCPA, visit the National Law Review Litigation / Trial Practice section.

Balancing Hospital Visitations and Religious Freedoms During a Pandemic

On October 20, 2020, the Office for Civil Rights (“OCR”) settled two religious discrimination complaints involving access to clergy during the Public Health Emergency. Both complaints arose from a hospital’s failure to permit visits by religious clergy due to COVID-19 visitor restrictions. In the first complaint, a COVID-19 positive new mother requested that a priest visit her newborn son and baptize him. Due to its restrictive visitor’s policy, the hospital refused. In the second complaint, a priest was denied ICU access in order to provide Catholic religious sacraments to an end-of-life patient. 

In connection with resolution of the complaints, OCR provided technical assistance and guidance to the hospitals in order to strike a balance between protecting the hospital’s staff, visitors, and patients and respecting the patient’s right to religious support. OCR approved the following requirements for visiting clergy:

  • Visiting clergy must follow all safety policies put in place by the hospital, including COVID-19 screening protocols;
  • Visiting clergy must adhere to proper infection prevention practices, such as hand washing, physical distancing and wearing a mask;
  • Visiting clergy must complete infection control training;
  • Visiting clergy must use fit-tested Personal Protective Equipment (“PPE”);
  • Visiting clergy must sign an acknowledgment of the risks associated with visiting a patient who tested positive for COVID-19; and
  • In urgent end-of-life situations, an exception to the controls listed above may be made but visiting clergy must self-quarantine for 14 days following the visit.

Hospitals are encouraged to review their visitation policies for compliance with a patient’s right to religious support.

© Steptoe & Johnson PLLC. All Rights Reserved.
For more articles on civil rights and COVID-19, visit the National Law Review Civil Rights section.

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