Tag: employee safety

Nonbinary Pronoun Usage in the Workplace: What Employers Are Doing to Promote Inclusivity

Using the correct pronouns and honorifics in the workplace has become an increasingly important part of maintaining an inclusive workplace. At the same time, the sensitive nature of this trend and the many variations of pronouns and honorifics in use may leave employers confused as to how to accomplish that goal. Moreover, employers may be concerned with how to comply with employees’ requests in an ever-evolving space and with the increasing use of nonbinary pronouns.

Nonbinary Pronouns and Honorifics

Individuals have traditionally identified with binary sets of pronouns based on male and female gender expressions (i.e. he/him/his and she/her/hers). Increasingly, many individuals are expressing that they do not identify as either a “man” or “woman.” An estimated 11 percent of individuals who identity as LGBTQ in the United States (i.e., approximately 1.2 million people), identity as nonbinary, according to a recent study. The vast majority (76 percent) are between the ages of 18 and 29, the study found.

It is increasingly common for these individuals to go by gender-neutral, nonbinary pronouns, including they/them/theirs. Many others go by other nonbinary pronouns, such as ze (or zie)/zir/zirs; ne/nir/nirs; xe/xem/xir; and ve/ver/vis, or a growing set of nonbinary pronouns that are resurfacing or newly appearing within the U.S. vernacular. Similarly, honorifics, such as Mr., Miss, Mrs., Ms., Sir, and Madame reflect a binary gender view leading some individuals to go by “Mx.,” “Fren,” or another gender-neutral honorific.

The issue has particular significance for employers since the June 2020 decision by the Supreme Court of the United States in Bostock v. Clayton County, Georgia, which found that discrimination against gay and transgender individuals is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. The high court reasoned that an adverse action against an individual because the individual is gay or transgender is a form of discrimination based on sex “because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” However, the Court left open several questions on how the ruling applies to sex-segregated restrooms, dress codes, grooming standards, and pronouns.

Following the decision, the Equal Employment Opportunity Commission (EEOC) issued new guidance on June 15, 2021, taking the position that “intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment” in violation of Title VII. This suggests there could be potential liability for employers who refuse to use a nonbinary employee’s correct pronouns. Further, while Title VII does not cover every employee in the United States, many state and local laws, such as California’s Fair Employment and Housing Council’s regulations and the New York City Human Rights Law (NYCHRL), provide similar or greater protection from gender identity discrimination.

Best Practices

It is increasingly becoming a commonplace practice for companies to permit employees to include their pronouns in their email signatures or on their social media profiles. This trend might just be the start. In light of the evolving movements in these areas, some employers may be struggling with how to support nonbinary individuals in their workplaces.

Safe Spaces

Some employers will take the stance that it is important to provide safe spaces for employees to identify their pronouns without pressure or the worry of retaliation in order to maintain an inclusive environment. Employers may further want to consider additional training for supervisors and other employees on how to handle everyday interactions regarding pronoun use. For example, employers may want to encourage employees to be comfortable with apologizing and correcting themselves if the wrong pronoun is used. This may be an especially important subject if an employee had started at the company using one set of pronouns and later realizes a different gender identity during the course of employment. A diversity, equity, and inclusion (DEI) committee or diversity liaisons can guide employers in facilitating these conversations.

Privacy Concerns

At the same time, employers are faced with the tension of ensuring respect for each individual’s privacy. In this regard, employers may want to be conscious that individuals generally will not want to be into a situation in which they must choose between using a nonbinary pronoun or facing inappropriate questions about their choice from management or co-workers. It may be necessary to keep pronoun sharing optional and to encourage employees to default to gender-neutral language where possible.

Gender-Neutral Corporate Communications and Record-Keeping

The Biden Administration, in March 2022, announced a series of federal government policy changes to allow U.S. citizens to identify as nonbinary, including allowing U.S. citizens to select an “X” gender marker on their U.S. passport applications. In accordance, the EEOC also announced that it would provide the option to use a nonbinary gender marker in the filing of a charge of discrimination. Several states have further allowed the use of a gender-neutral marker on state identity documents, including drivers’ licenses. Given these developments, employers may also want to consider using gender-neutral language in communications and updating their human resources demographic record-keeping procedures to allow for employees to be identified as nonbinary or with a gender-neutral marker.

Key Takeaways

The Bostock decisions and the proliferation of state and local anti-discrimination laws may require that employers make efforts to allow employees to share and be addressed by nonbinary pronouns. This could be critical in employer recruiting and retention with younger generations entering the workplace that are increasingly comfortable with expressing their nonbinary gender. Also, it is clear that accurate or appropriate pronouns and honorifics will continue to change. Employers may want to remain ready to adjust in this rapidly evolving space in order to provide inclusive environments and keep workplaces free of harassment and discrimination.

Companies seeking to create more inclusive workplaces for nonbinary individuals can find further information and guidance from a number of organizations that provide educational resources and technical assistance.

Article By Kelly S. Hughes, Alan J. Brozovich, and Zachary V. Zagger of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

Employers Beware: Take-Home COVID Cases are on the Rise (US)

You’ve just been informed that an employee who apparently contracted COVID-19 from exposure in your workplace brought the virus home, and now his spouse, who is in a high-risk category, has contracted the virus and is in the hospital.  Do you as the employer face potential liability for the spouse’s illness?

More than two dozen so-called “take-home” COVID-19 lawsuits have been filed across the country, including against some of the largest employers in the US. This alarming pattern has prompted trade groups to warn employers of the potential for lawsuits stemming from COVID infections filed not only by workers’ family and friends but by anyone infected by that circle of people, creating a seemingly endless chain of liability for employers. Some states have enacted laws shielding employers from such suits, but where that is not the case, the legal theories and procedural paths under which these suits have proceeded vary – including some being brought in state courts, some in federal courts, and others brought under claims within the worker’s compensation system.

The issue is currently being tested in California, where the US Court of Appeals for the Ninth Circuit recently certified questions to the California Supreme Court seeking guidance on the state’s laws. The case, Kuciemba v. Victory Woodworks, Inc., arose after Mr. Kuciemba allegedly was exposed to COVID-19 through his work at one of his employer’s job sites.  According to the Kuciembas, Victory knowingly transferred workers from an infected construction site to the job site where Mr. Kuciemba was assigned without following the safety procedures required by the San Francisco Health Order. He was forced to work in close contact with these employees, and soon developed COVID-19, which he brought back home. His wife is over 65 years old and was at high risk from COVID-19, and the family had been careful to limit their exposure to the virus, with the exception of Mr. Kuciemba going to work. Mrs. Kuciemba subsequently tested positive for the disease and was hospitalized for over a month after developing severe symptoms. The Kuciembas filed suit, alleging that Victory caused Mrs. Kuciemba’s injuries by violating the Health Orders, and negligently allowed COVID-19 to spread from its worksite into their household.

The lower court dismissed the case, which was then appealed to the federal appeals court. After hearing the argument, the court asked the California Supreme Court to answer two questions of state law. First, whether Mrs. Kuciemba’s illness was an “injury” that was “derivative” of Mr. Kuciemba’s work-related injury, and therefore, Mrs. Kuciemba’s claims would be subject to the exclusive jurisdiction of the Worker’s Compensation Act (“WCA”); and second, assuming that the WCA is not the exclusive remedy, whether the employer owed a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19. Neither question has been squarely answered by the California Supreme Court, although, as noted by the federal appeals court, in a somewhat analogous situation, California courts have allowed suits against employers who negligently allowed their employees to carry asbestos fibers home to their families.

While the Kuciemba case was pending, a California Court of Appeal in another case, See’s Candies v. Superior Court, ruled that the derivative injury doctrine does not bar third-party COVID-related claims. Under a similar fact pattern, the court allowed the negligence case to go forward while noting that the plaintiff would still need to prove that the employer owed a duty of care to non-employees infected with COVID-19 due to an employee contracting the virus at work. Acknowledging that an analysis of this duty “appear[s] worthy of exploration,” the state appellate court said the analysis would include an assessment of “public policy concerns that might support excluding certain kinds of plaintiffs or injuries from relief.” The California Supreme Court declined to review the See’s case, meaning that it’s holding still stands.

The California Supreme Court has not yet announced whether it will use its discretion to respond to the Ninth Circuit’s certified questions in the Kuciembas’ case. In the meantime, California employers cannot automatically rely on the exclusive remedial scheme provided under the worker’s compensation system to cover these claims and are not necessarily shielded from COVID-19 lawsuits brought by employees’ family members (and perhaps others). That said, even if employers owe their employees’ families a duty of care, affected employees will still have to prove that it was the employer’s negligence that caused the illness and that the virus was not contracted from another source – a tall order for a highly transmissible virus like COVID-19. In the meantime, however, it behooves all California employers to continue maintaining health and safety measures to prevent the spread of COVID-19, and react quickly and appropriately in the event of an outbreak of COVID-19 in the workplace.

Article By Karen E. Wentzel and Cristen R. Hintze of Squire Patton Boggs (US) LLP

For more Coronavirus news, click here to visit the National Law Review.

© Copyright 2022 Squire Patton Boggs (US) LLP

Winter Weather: OSHA Updates on Cold Weather Hazards

Jackson Lewis Law firm

Stepping outside this week is a biting reminder that winter has arrived. OSHA has updated its website with information about winter hazards and the steps that can be taken to protect employees.  Although there is no specific standard covering winter weather, employees are protected by the Occupational Safety and Health Act (1970) General Duty Clause or Section 5(a)(1), which requires employers to provide employees a workplace free from recognized hazards.  This is a good time for employers to review their cold weather work practices.

In order to plan accordingly, it is essential that employers understand the potential dangers posed by the weather and familiarize themselves with the terminology used by meteorologists and the medical community.  Icy conditions or heavy snow can lead to slick or blocked roads and downed power lines.  Although people may be advised to stay off the roads in these conditions, such advice is impracticable for workers such as EMTs, snow plough operators, and power company employees.   According to OSHA, environmental cold exposes workers to the risk of cold stress. Any worker exposed to cold temperatures is susceptible to cold stress but extra attention should be paid to workers whose work necessitates them being outside, employees with health conditions such as heart disease or high blood pressure, new employees who may not be accustomed to the conditions, and workers who are returning to work after an absence.

In addition to OSHA’s webpage on “Winter Weather” there are other tools available to help an employer assess the situation and take the necessary precautions to protect their workers.  The American Conference of Governmental Industrial Hygienists (ACGIH) has published a chart entitled “Work/Warm-up Schedule for a 4-Hour Shift” which provides a clear model for employers to determine the length of time someone can work under decreasing weather conditions.  https://www.osha.gov/dts/weather/winter_weather/windchill_table.pdf

According to OSHA, employers can help alleviate the risks of cold stress by adapting work schedules to the weather conditions: implementing safe practices such as limiting the amount of time workers are outside, scheduling frequent breaks, providing hot, sweet drinks (e.g. tea but NOT alcohol); providing engineering controls, including providing radiant heat and protecting workers from drafts.  Additionally, employers should monitor workers for signs of cold stress, especially those employees previously mentioned.

Environmental cold can lead to cold stress which occurs when lower skin temperature gives way to a lower core temperature.  A person’s body temperature will cool down faster when there is a wind chill.  The most common types of cold stress include: frostbite (freezing, usually of the extremities, e.g. fingers and toes, which can lead to amputation of the affected area); hypothermia (characterized by a core body temperature falling below 95° F, can be fatal); chilblains (ulcers caused by repeated exposure of skin to cold temperatures); and trench foot (result of extended periods of cold, wet feet).  See NIOSH’s Fast Facts sheet –http://www.cdc.gov/niosh/docs/2010-115/pdfs/2010-115.pdf

According to OSHA employers should train employees about these hazards. Well-educated employees can contribute to a safer working environment.  Training should at a minimum cover the following areas:

  • What are the dangers?

  • How to recognize the symptoms associated with Cold Stress related conditions

  • Monitoring oneself and co-workers for signs of cold stress

  • How to dress appropriately for the weather (i.e. layers of loose clothing)

  • First Aid in the case of emergency.

OSHA’s Quick Card “Protecting Workers from Cold Stress” is a concise, easy to read reference sheet identifying the most common cold stress health hazards, how to recognize them, and the emergency measures to be taken if you suspect someone is suffering from cold stress.  See https://www.osha.gov/Publications/OSHA3156.pdf

Employers whose employees use company vehicles or who work around vehicles, it is also essential for vehicles to be properly maintained and equipped for severe driving conditions.  Depending on the work environment, additional training of employees may be advisable.  Suggested topics of training might include:

  • Work zone traffic safety

  • What to do if you are stranded in a vehicle

  • How to safely shovel snow

  • The use of equipment such as snow blowers

  • Working at heights

  • Walking safely to prevent slips, trips, and falls

  • Repairing downed or damaged power lines or being in the vicinity of downed or damaged power lines

See https://www.osha.gov/dts/weather/winter_weather/hazards_precautions.html.

OSHA has published comprehensive materials about winter weather.  These may be viewed at https://www.osha.gov/dts/weather/winter_weather/index.html

ARTICLE BY

Tressi L. Cordaro
OF
Jackson Lewis P.C.