Tag: employment

Employer Liability for Employees’ Privacy Violations: What Your Organization Should Learn from Walgreens’ Expensive Lesson (Hint: It Has Little To Do with HIPAA)

Poyner Spruill Law firm

You may already have read the scintillating facts surrounding a jury award of $1.44 million (recently challenged unsuccessfully on appeal) against Walgreen Co. following its pharmacist’s alleged inappropriate review and disclosure of patient records. What caught our attention was not so much the lurid details (the pharmacist was alleged to have looked up her boyfriend’s ex in Walgreens’ patient records, apparently to determine whether the ex might have passed an STD to her boyfriend). The more notable development was an employer footing the bill for a large jury verdict even though the employee violated the company’s policies as well as the law. This alert describes how Walgreens was put on the hook for its employees’ misdeeds, and examines whether a similar rationale could be applied in other privacy contexts (not just HIPAA) to create a new trend in employer liability for employee privacy violations. The implications are significant given the relative lack of success plaintiffs have encountered to-date when attempting to prosecute perceived privacy violations in court.

Employer Liability

Against the pharmacist, the patient pursued state-law claims of negligence/professional malpractice, invasion of privacy/public disclosure of private facts, and invasion of privacy/intrusion. She sought to hold Walgreens liable through respondeat superior (vicarious liability), and also included direct claims for negligent training, negligent supervision, negligent retention, and negligence/professional malpractice. While the trial judge dismissed the negligent training claim against Walgreens and the invasion of privacy by intrusion claim against the pharmacist, he allowed the other claims to proceed. The jury returned a general verdict for the patient, finding the pharmacist and Walgreens jointly liable for $1.44 million in damages.

The linchpin of respondeat superior is that an employer can only be held vicariously liable for damage caused by an employee if the employee was acting “within the scope of employment” when the injury occurred. When it appealed the jury verdict, Walgreens seized on this factor and argued that the pharmacist’s actions were outside the scope of employment because she clearly violated Walgreens policy. The appellate court disagreed, citing case law holding an employee’s actions are within the scope of employment if those actions are of the same “general nature” as the actions authorized by the employer, even when the employee’s specific actions are against company policy. The court reasoned that the pharmacist’s improper access of  the patient’s records was of the same “general nature” as the actions authorized by Walgreens because  the pharmacist took the same steps to access  the patient’s records as she would have in properly accessing records of other patients. The pharmacist was authorized to use the Walgreens computer system and printer, handle prescriptions for Walgreens customers, look up customer information on the Walgreens computer system, review patient prescription histories, and make prescription-related printouts. The court found that the pharmacist’s conduct in accessing  this patient’s records for personal reasons, while against company policy, was of the same “general nature” as the conduct authorized by Walgreens, and therefore at least some of her actions were within the scope of her employment. Since the pharmacist was acting within the scope of employment, the court affirmed that Walgreens could be held liable under respondeat superior.

Acknowledging Walgreens could not be held vicariously liable unless the pharmacist was also liable, the court turned next to the issue of the jury’s verdict concerning the pharmacist. As the jury returned only a general verdict (which does not indicate the specific grounds on which it made its decision), the court speculated on the theory of liability for the pharmacist, and held that the jury could have properly found the pharmacist liable under a general negligence theory. The key factors in a negligence claim are a duty owed to the plaintiff by the defendant, a breach of that duty by the defendant, causation, and damages. To establish the pharmacist owed a duty to the patient, the court looked to a state law requiring pharmacists to hold patient records and information in the strictest of confidences. Finding this statute to clearly establish that the pharmacist owed a duty of confidentiality the patient, the court found it unquestionable that the pharmacist’s actions breached that duty, and that the patient sustained at least some damages as a result. Therefore, the court concluded the jury could properly have found the pharmacist directly liable for the breach of confidentiality, and Walgreens vicariously liable for the breach.

Potential Impact

Commentary on this case has largely focused on HIPAA implications, and sometimes the more specific prospect of employer liability for employee HIPAA violations. Importantly, HIPAA was not a factor in the appellate court’s reasoning. Rather, the court looked primarily to state law for privacy expectations and a duty of confidentiality. That distinction creates broader implications for employer liability beyond HIPAA or health care generally.

A multitude of state laws now impose confidentiality, privacy and security obligations. Some are limited to certain professional occupations (e.g., pharmacists, physicians, even <<gasp>> lawyers), but many are more general. For example, many states have enacted requirements to maintain general or specific security measures without regard to industry. In fact, states increasingly read privacy and security obligations into their application of unfair and deceptive trade practices statutes, imposing a duty to maintain privacy and security across sectors and without regard to types of personal information affected.

The Indiana appellate court’s reasoning in the Walgreens’ case clearly suggests that employees owing a statutory duty of confidentiality under state law could be liable for a breach of such duties, and their employers may be vicariously liable for the reasons noted. While some state laws specifically enumerate such duties at the employee level (particularly where a license is held by the individual), it is not clear that distinction made a difference to the court’s rationale, meaning courts applying general privacy or security laws may consider following suit, even if the law does not create duties specifically aimed at employees.

Further, the Indiana appellate court’s broad characterization of what constitutes actions “within the scope of employment” could leave many employers on the hook for large damage awards, even if the underlying employee violation is indisputably against company policy.

While the Walgreens outcome alone may not establish a trend toward more frequent employer liability, it is important to recognize the case may be novel only in the size of the verdict awarded. For example, in 2006, the North Carolina Court of Appeals used similar reasoning to overturn the dismissal of a plaintiff’s negligent infliction of emotional distress claim against a doctor who allegedly allowed his office manager to improperly access the plaintiff’s medical records (Acosta v. Byrum).

What Should You Do?

The Walgreens outcome makes clear that policies, training and other compliance efforts may not indemnify employers against an employee’s breach of confidentiality or privacy. In addition to keeping an eye on further developments that either support or erode this potential liability trend, employers should consider whether broad technical access to systems is necessary and justified. Flat access rights can be necessary, particularly in health care settings where care often trumps privacy as a consideration. However, technical access limitations are the most effective way to demonstrate that employee misdeeds, when orchestrated in violation of systems-based (rather than merely policy-based) access controls, should not be held against the employer because they are clearly outside the scope of employment. Interestingly, the same approach can strengthen employer’s Computer Fraud and Abuse Act claims and can reduce the risk of HIPAA enforcement that may arise from similar facts.

ARTICLE BY

Jacob A. Lopes
Elizabeth H. Johnson
OF
Poyner Spruill LLP

An In-Depth Analysis of the NLRB’s Decision to Permit Employees to Use Employer Email Systems for Union Organizing and Other Non-Work Purposes

Sheppard Mullin Law Firm

The rights of employees under Section 7 of the National Labor Relations Act have been given quite the digital treatment over the last few years.  In its newest decision issued on December 11, 2014, the National Labor Relations Board ruled that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”  The full decision can be found here.

In Purple Communications, Inc. and Communications Workers of America, AFL–CIO. Cases 21–CA–0951 51, 21–RC–091531, and 21–RC–091584, the Board overturned its previous decision in Register Guard, 351 NLRB 1110 (2007), which held that employees do not have a right to use their employers’ email systems for Section 7 purposes.  But, as seen in recent years, the Board has embraced the digital age and has concluded that employee Section 7 rights include everything from social media to, in this case, company email.

Like most companies, Purple Communications, Inc., has an “Internet, Intranet, Voicemail and Electronic Communication Policy” in its employee handbook.  Among other things, this policy prohibits employees from using the “computer, internet, voicemail and email systems, and other Company equipment” to engage in “activities on behalf of organizations or persons with no professional or business affiliation with [the] Company” or “sending uninvited email of a personal nature.”  The Communications Workers of America filed an unfair labor charge regarding this policy, and the Administrative Law Judge found the policy lawful under Register Guard, dismissing the allegations.  This new decision by the NLRB then followed.

In overturning Register Guard, the Board stated that email has “effectively become a natural gathering place pervasively used for employee-to-employee conversations” and the fact that this “gathering place” is virtual does not undermine the role that email plays in Section 7 protected workplace discussions.  In fact, the Board concluded that “email’s effectiveness as a mechanism for quickly sharing information and views increases its importance to employee communication,” especially in the seven years since Register Guardwas issued.  Interestingly, the Board relied on empirical evidence regarding the rise in “teleworking” and email usage for all work functions, at the physical workplace and remotely, to demonstrate that email has become a significant platform for employee communication.  Accordingly, it was held that email’s use for Section 7 activity must be protected under the NLRA.  The Board will no longer “perpetuate” an “outmoded assessment of workplace realities.”

The Board attempted to preemptively address employers’ concerns about the ruling, by stating that this decision is a “limited one,” in that it addresses only email and not any other types of electronic communication systems.  Moreover, businesses are not prevented from monitoring their computers and email systems for legitimate management purposes.  Finally, the Board stated that an employer may justify a ban on non-work use of its email system if it can point to “special circumstances” that necessitate the ban, including system overload, the nature of the business, and excessive costs.  Regardless, the Board’s dissenting members apparently are not convinced, arguing that this decision will lead to significant problems down the road.

Interestingly, the Board fails to directly address the decision’s effect on other types of policies that could be affected, such as non-solicitation and non‑distribution policies.  The Board distanced itself from the issue, stating that “we do not find it appropriate to treat email communication as either solicitation or distribution per se.”  The dissent took issue with this stance and predicts that this decision will make it very difficult to determine what communications violate lawful restrictions against solicitation in the future.

Although the Board did not outright declare Purple Communication’s electronic communications policy unlawful, employers should be wary of overly broad or restrictive electronic communications policies.  As with the onslaught of social media decisions and subsequent policy revisions, employers should take a hard look at their electronic communications policies in light of this decision and consider whether their policies put them at risk in this evolving digital age.

ARTICLE BY

Kevin M. Cloutier
Mikela T. Sutrina
OF
Sheppard, Mullin, Richter & Hampton LLP

HIPAA Considerations In The Event Of Employee Death or Incapacitation

McBrayer NEW logo 1-10-13

The Health Insurance Portability and Accountability Act of 1996, otherwise known as HIPAA, acts in part to provide federal protection for identifiable health information retained by covered entities, which includes most businesses that offer company health plans. While many employers have policies and procedures in place to ensure HIPAA compliance in routine, every day matters relating to the management of employee health data, few employers have developed policies or even considered how to manage protected health information in the unfortunate event of employee death or incapacitation.

Employee Benefits Folder

Importantly, HIPAA’s protection of identifiable health information does not expire in the event of incapacitation or even the death of an employee. In fact, HIPAA continues to protect identifiable health information for 50 years after death. Consequently, it is important for employers to know to whom protected health information may be disseminated during this time period in order to continue to ensure compliance and avoid the assessment of steep penalties and fines.

Covered health information for the deceased or incapacitated employee during this time may be released to their legal representative under state law. In most instances involving a diseased employee, this would be the appointed administrator of the deceased’s estate. It is permissible to release protected health information to non-representative family members, including but not limited to spouses, domestic partners, parents, children, or siblings, unless doing so is inconsistent with any prior expressed preference that is known to the covered entity. However, the information released to a non-representative family member must be limited to that information which is relevant to that person’s involvement in the decedent’s or incapacitated employee’s care or payment for care. The regulations leave the determination of this relevancy up to the entity’s “professional judgment.” 45 CFR 164.510(b)(5).

The Department of Health and Human Services gives the following example of what could be released: “For example, a covered health care provider could describe the circumstances that led to an individual’s death with the decedent’s sister who is asking about her sibling’s death. In addition, a covered health care provider or pharmacy could disclose billing information or records to a family member of a decedent who is assisting with closing a decedent’s estate. However, in both cases, a provider generally should not share information about past, unrelated medical problems.” (Click here to directed to The Department of Health and Human Services website.)

Consequently, unless protected information is requested by the legal representative of the deceased’s estate, or the information requested is directly related to the requestor’s involvement in the deceased’s care prior to death or payment for the deceased’s care prior to death, a signed HIPAA release by the legal representative is required prior to release of the protected information. Other exceptions allowing the release of protected health information covering special situations are also available, including the allowance of release to law enforcement to assist in a criminal investigation.

Medical History Questionnaire with Pen

It is important that employers understand their responsibilities to protect identifiable health information covered by HIPAA and develop policies to ensure compliance.

ARTICLE BY

Brandon K. Johnson
OF
McBrayer, McGinnis, Leslie and Kirkland, PLLC

Employers in Illinois Take Note: Pregnancy Accommodation Amendments Go Into Effect January 1, 2015

Neal Gerber

As of January 1, 2015, the recently enacted pregnancy accommodation amendments to the Illinois Human Rights Act (“IHRA”) will go into effect, requiring many Illinois employers to update or change their policies and practices with regard to the expecting and new mothers in their workforce.  Read below for the highlights of the IHRA’s pregnancy-related amendments, and stay tuned for an announcement from our group about an upcoming breakfast training at which we will discuss the details of the amendments, along with other employment hot topics for 2015.

Which employers are covered by the amendments?  All private, non-religious employers in Illinois, regardless of the number of employees, will be covered by the new pregnancy-related provisions of the IHRA.  Note, most IHRA provisions generally apply only to employers with 15 or more employees in Illinois.  The Act’s pregnancy-related amendments, however, apply to all employers, regardless of size.

Which employees are protected by the amendments?  The amended IHRA prohibits discrimination based on, and requires employers to provide reasonable accommodations for, “pregnancy.”  “Pregnancy” is defined broadly under the Act to include “pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth.”  Thus, the amendments generally will apply to applicants and employees who are expecting and who recently gave birth.

What do the amendments require?  Broadly speaking, the amendments impose an affirmative obligation on employers to offer reasonable accommodations for pregnancy and childbirth-related conditions.  Such accommodations may include:  more frequent or longer breaks; providing time and a private, non-bathroom space to express breast milk; physical accommodations such as seating and assistance with manual labor; modified or a part-time work schedule or even “job restructuring”; time off to recover from conditions related to childbirth; and/or leave “necessitated by” pregnancy, childbirth or medical “or common conditions” resulting from pregnancy or childbirth.

Importantly, under the amended IHRA employers may not require expecting or new mothers to just take leave, or to accept an accommodation that the applicant or the employee did not request.  The individual must agree to the form of accommodation being offered.  However, prior to providing the requested accommodation, employers will have the ability to require the requesting employee to submit medical proof of the need for that accommodation, to include a description of the advisable accommodation and its probable duration.

In addition, similar to the provisions of the federal Americans with Disabilities Act, the amended IHRA will not require employers to create new positions, discharge or transfer other employees, or to promote an unqualified employee in order to meet the “reasonable accommodation” requirement.  If the requested accommodation would pose an “undue hardship,” it need not be provided.  Employers should note, however, that the amended IHRA (similar to the ADA) places the burden of proving an “undue hardship” squarely on the employer, and meeting that burden is no easy task.  An “undue hardship” will be found to exist only if the requested accommodation is “prohibitively expensive or disruptive” when considered in light of certain specified factors, including the accommodation’s nature and cost, the overall financial resources of and impact on the facility or facilities involved in providing the requested accommodation, the overall financial resources of the employer, and the employer’s general operations.  Importantly, if the employer provides or would be required to provide the kind of accommodation being requested to other similarly-situated, non-pregnant employees, the amended IHRA will impose a “rebuttable presumption” that the requested accommodation would not impose an undue hardship.

Once an employee’s need for reasonable accommodation ceases and she relays an intent to return to her former position, the amended IHRA requires that the employer reinstate her to that former position or an equivalent position with equivalent pay, without loss of seniority or other benefits, unless, again, doing so would impose an undue burden.

The amended IHRA further requires that employers in Illinois post an Illinois Department of Human Rights-prepared or approved notice about the pregnancy accommodation amendments in the workplace, and also include appropriate information regarding employees’ rights under the amendments in their handbooks.

In short…  Considering that women compose nearly 50% of all workers in Illinois, it is important for employers to understand and ensure compliance with the IHRA’s new pregnancy-related amendments.  Any request for an accommodation made by an expecting or new mother must be evaluated thoughtfully, with the new statutory framework in mind.

ARTICLE BY

Sonya Rosenberg
OF
Neal, Gerber & Eisenberg LLP

Is Obesity the Next Pivotal Employment Discrimination Issue Within the European Union?

Greenberg Traurig Law firm

Introduction

Obesity is one of the greatest health challenges worldwide. During the last decade, the population that is overweight in the European Union (EU) Member States has increased significantly, which has resulted in more than half of the EU population being overweight or obese.1  According to a recent study published in The Lancet, more than one-third of the population worldwide is overweight or obese, of which 36.9 percent are men and 38 percent are women.2  The aforementioned development has led to a growing discussion on how to deal with obese (severe overweight) employees in the workplace. That discussion includes the question whether obesity is a ground for unlawful discrimination.

In 2013, the European Court of Justice (ECJ) was asked in a preliminary ruling in a Danish case – for the first time – which provisions of EU law, if any, apply to discrimination based on obesity. The ruling of the ECJ is expected at the end of 2014. Meanwhile the Advocate General (AG) delivered his opinion on the matter on 17 July 2014.3  The AG’s opinion basically revolved around two questions:

  • can obesity be considered as a self-standing ground of unlawful discrimination under EU law?
  • does obesity fall within the scope of the notion of disability as referred to in the Equal Treatment Framework Directive (Directive)?4

The aforementioned Directive has the objective of creating a level playing field, where equality in employment and occupation in both the public and the private sectors are concerned.5  Based on recent case law, the ECJ appears to have adopted, following the approach of the UN Convention, a social and not a (purely) medical model of disability.6

In this respect, it is important to understand that the Directive provides for minimum rules to be implemented by EU Member States with regard to their national laws. Member States are free to implement and execute provisions more favorable than the Directive so long as they are in line with the Directive, specifically and and EU law, in general. As a result, there are a variety of laws in place in the respective EU Member States regarding this topic, among many others, in combination with general EU law.

Given these developments, the topic of obesity in the context of employment discrimination is receiving greater scrutiny, and thus, the Danish case being closely watched by the employment law community in Europe. Indeed, obesity might be the next frontier in employment discrimination law.

This article is intended to highlight the most relevant aspects of the Danish case. It is likely that some of the issues will seem surprising to readers in the United States, inasmuch as, since the 2008 amendments to the Americans with Disabilities Act, the Equal Employment Opportunity Commission and the courts have already begun to rule that severe or morbid obesity is a disability regardless of whether or not it was caused by a psychological disorder.7

Facts

An employee, Mr. Kaltoft, has been employed since 1996 as a childminder (taking care of other peoples´ children in their own homes) in the Municipality of Billund, Denmark. Mr. Kaltoft has been obese during the entirety of his employment. Although he performed his job to everyone’s satisfaction, he was dismissed in 2010. According to the notice of dismissal, the termination was due to a decline in the number of children to be taken care of.

The dismissal followed an internal hearing in which the obesity of Mr. Kaltoft was discussed. The parties disagree as to whether and if so, how, his obesity constituted part of the basis for the dismissal. Mr. Kaltoft argued that his employment was terminated due to his obesity, and that this amounted to discrimination based on obesity.

Obesity as a self-standing ground of unlawful discrimination?

Mr. Kaltoft basically argued that the open-ended nature of certain provisions in the European Charter of Human Rights (ECHR), Protocol 12 of the ECHR and the EU Charter of Fundamental Rights of the European Union (EU Charter) as well as other general EU law principles, requires the conclusion that any form of discrimination should be protected.

The AG disagrees. In his analysis, he asserts that EU legislation prohibiting discrimination addresses specific grounds of discrimination within specific subject areas without an existing general prohibition on discrimination. Thus, since obesity  is not specifically mentioned as a prohibited ground of discrimination in the EU treaties, nor in any EU legislation, it cannot be seen as a self-standing ground of unlawful discrimination. If at all, according to the AG, obesity discrimination could only be grounded on Article 21 of the EU Charter, which prohibits ‘discrimination based on any ground such as (…).’ On this particular wording (such as) it might be argued that there is a general principle of non-discrimination in EU law covering grounds of discrimination not explicitly mentioned in the Charter. In this respect, the AG refers to an ECJ ruling in a previous case where the ECJ ruled that the discrimination within the scope of Directive 2000/78 should not be extended by analogy beyond those grounds listed- exhaustively – in Article 1 of the Directive.8  Therefore, the AG concludes that there is no general principle of EU law prohibiting discrimination in the labor market that would cover discrimination on grounds of obesity as a self-standing ground of unlawful discrimination.

Disability under Directive 2000/78

According to Article 1 of the Directive, discrimination on the grounds of disability is prohibited. The term ‘disability’ is not defined by the Directive, but a ‘notion’ of disability is being developed via case-law.  This case-law is consistent with the concept of disability as laid down in Article 1 of the United Nations Convention on the Rights of Persons with Disabilities (U.N. Convention), which is an evolving concept, and the U.N. Convention’s case-law. The U.N. Convention has been approved by the EU in its Decision 2010/48 and as a result the provisions of the U.N. Convention are an integral part of the European Union legal order.9  This means that EU legislation, such as directives, have to be interpreted, as far as possible, in a manner that is consistent with the U.N. Convention.

According to the ECJ, this notion of disability must be understood as referring to a limitation which results, in particular, from (i) long-term (ii) physical, mental or psychological impairments (iii) which in interaction with various barriers (iv) may hinder (v) the full and effective participation of the person in professional life (vi) on an equal basis with other workers.10

As to the scope of the term “disability,” the ECJ has held that disability cannot be defined by reference to the source of the impairment, because that would run against the very aim of the Directive, which is to implement equal treatment.11  Therefore, the notion of disability does not depend on whether the disability is self-inflicted or not. Disability can also include an illness, if the illness entails a limitation as described in the foregoing paragraph.12  In this respect it should be noted that an illness requiring particular attention, continuous medication and control may be a psychological or psychosocial burden to the person concerned, but that in itself does not necessarily hinder participation on an equal basis in professional life in general.13  Moreover, the protected disability may even be that not of the employee, but of a person in the care of the employee who seeks to rely on the Directive.14  The latter situation is described as ‘associative discrimination.’

According to the AG, it is sufficient that a long term condition causes limitations in full and effective participation in professional life in general on equal terms with persons not having that condition.  No link has to be made between the specific work concerned and the disability in issue as a precondition to application of the Directive.

With regard to the Danish case at issue here, one should note that the Municipality of Billund argued that it cannot be contended that Mr. Kaltoft’s obesity entails a limitation that may hinder his full and effective participation in professional life on an equal basis with other workers because he had already worked for 15 years as a childminder with the Municipality, and had participated in professional life on an equal footing with other childminders in the Municipality’s employ.  In other words, the Municipality asserts, Mr. Kaltoft’s obesity cannot be deemed to have impeded his work as a childminder. On the other hand, in light of the AG’s position, as set forth above, an employee such as Mr. Kaltoft could assert that it does not matter whether he could carry on his work as a childminder before he asserts a claim under the Directive; rather, if the disability, here obesity, causes limitations on his ability to participate in professional life generally, he can assert a claim of disability discrimination pursuant to the Directive.  Further, the notion of disability must be understood as referring to a hindrance to the exercise of professional activity, not only the impossibility of exercising such activity.15

Does obesity amount to a disability?

In addressing the question of whether obesity amounts to a disability, the AG refers to the Body Mass Index (BMI) classification of the World Health Organization.16  According to that measurement, persons can be divided in three categories: Obese class I (BMI of 30.00-34.99), Obese class II (BMI of 35.00 to 39.99) and Obese class III (BMI over 40.00). The latter category is also called ‘morbid obesity.’17  Although obesity is classified as an illness by the WHO, as set out above, an illness does not per se amount to a ‘disability’ as described in the Directive.18  With these categories in mind, the AG is of the opinion that most probably only WHO class III obesity (referred to by the AG as severe obesity) will create limitations that amount to a disability under the Directive and only when the situation fulfils all of the criteria set out in the ECJ’s case-law on the notion of disability. It is for the national Court to verify whether this is the case with respect to Mr. Kaltoft.19

Will the outcome matter for the Netherlands and the other EU Member States?

The Netherlands

The Directive was implemented in the Netherlands via the Equal Treatment Handicapped and Chronically Ill People Act (Act). According to this Act, discrimination on the grounds of handicap or chronical illness is prohibited. The terms ‘handicap’ and ‘chronical illness’ are not defined in the Act, and review of the legislative documents suggests that this omission was intentional, so as to be consistent with the Directive, which does not provide for a definition of ‘disability.’ Having said this, a handicap is considered to be irreversible and a chronical disease a long-term affliction.

As to the Dutch legal practice, it seems that the Act and the practice developed in the Netherlands are not completely in line with the ‘notion of disability’ in the sense of the Directive. There are elements that point in the direction of a wider scope, but there are also elements that seem to be narrower. The first (that is, a more expansive view) would be, as discussed earlier, permissible, while the latter (a narrower construct) would not. As an example, there are cases that seem to take the underlying (medical) cause into the equation in assessing whether the situation falls within the scope of a handicap or a chronic disease, which would seem to provide for analysis based on the source of the impairment, which, as described above, runs counter to the aim of the Directive.

Severe obesity is being interpreted as a chronic disease under Dutch case-law, by the Netherlands Institute for Human Rights (NIHR) as well as by the few courts that have rendered rulings on this topic so far. They all (directly or indirectly) refer to the aforementioned WHO classification regarding obesity and conclude that because morbid obesity is regarded as a chronical disease by the WHO it also qualifies as a handicap or chronical disease under the Act.20  Having said this, whether the outcome of the Danish case before the ECJ will change current practice will have to be seen, and may well depend on specific wording. If the ECJ rules in line with the AG’s opinion, the Dutch practice with regard to morbid obesity will not be affected; however, if the ECJ goes further, the ruling could broaden the nature of the protection.

Elsewhere in the EU

As described above, the EU Member States all have their own national legislation and in case of ECJ developments in this area, each will need to assess whether or not they fulfil the obligations that arise from the Directive and its case-law. By way of example, in the UK ‘disability’ is one of the protected characteristics under the Equality Act. There has been case-law, which held that while obesity is not a disability in itself, it may lead to an impairment which, if it meets the ‘disability’ test, would amount to a disability. If the ECJ rules that obesity per se amounts to a disability under the Directive, the UK courts may have to interpret ‘disability’ as including obesity or consider whether any changes to legislation are required.

Practical considerations

Just to be clear, the Directive does not impose an obligation to maintain in employment an individual who is not competent to perform the essential functions of the position concerned, notwithstanding the obligation for the employer, as laid down in Article 5 of the Directive, to provide reasonable measures where needed in a particular case to enable a person with a disability to have access to, participate in, or advance in employment, unless such measures result in the imposition of a disproportionate burden on the employer.21  This also applies to impairments such as alcoholism and drug addiction where these conditions amount to an illness. An employer may expect employees suffering from obesity to take reasonable steps themselves to ensure that they carry out their work properly. If that is or might become a problem, both the employer and the employee should address this in a timely and adequate manner to improve the situation, which will be a joint responsibility. In this context, looking at EU case-law as it currently stands, it is advisable for employers to consider reasonable adjustments (e.g., ergonomics of the workplace) where obesity leads to an impairment having an impact on an individual’s ability to perform their job. Furthermore, employers may also want to ensure a safe environment, addressing (in)appropriate behaviors toward those who are obese, not only because harassment based on obesity may in the future qualify as discrimination on the grounds of a “disability,” but more importantly to ensure that the employees feel good about themselves and their working environment, which will enhance their commitment to their colleagues and their employer and hence will create better results for all involved. With the latter, and the previously cited statistics in mind, employers might want to consider creating a healthy working environment that goes further than the regular health and safety regulations by, for example providing for healthy (lunch) food, health club arrangements, awareness programs and well-being programs among their workforces.

ARTICLE BY

Jerrold F. Goldberg
Johan Nijmeijer
T.M.J. (Dorothé) Smits
OF
Greenberg Traurig, LLP

1 According to: Eurostat, Statistics Explained: Overweight and obesity – BMI statistics (data from November 2011)

2 Global, regional, and national prevalence of overweight and obesity in children and adults during 1980-2013: a systematic analysis for the Global Burden of Disease Study 2013, The Lancet, Vol. 384, Iss. 9945, pages 766 – 781 (http://dx.doi.org/10.1016/S0140-6736(14)60460-8).

3 Karsten Kaltoft v. Municipality of Billund, Opinion of Advocate General Jääskinen 17 July 2014, Case C-354/13.

4 Directive 2000/78/EC of 27 November 2000.

5 ECJ 17 July 2008, Case C-303/06 (Coleman), EU:C:2008:415, par. 38 and 47.

6 ECJ 18 March 2014, Case C-363/12 (Z), EU:C:2014:159, par. 83-85.

7 Federal district courts in Louisiana and Mississippi and the Montana Supreme Court had already held that severe obesity not based on a physiological disorder can be deemed a protected disability (see EEOC v. Resources for Human Development, Inc., 827 F. Supp. 2d 688 (E.D.La. 2011); Lowe v. American Eurocoptor, LLC, 2010 U.S. Dist. LEXIS 133345 (N.D. Miss. Dec. 16, 2010); Feit v. BNSF Ry. Co., Op. 11-0436 (Mont. July 6, 2012).

8 ECJ 11 July 2006, Case C-13/05 (Chacón Navas), EU:C2006:456, par. 56.

9 Council Decision of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities (2010/48/EC).

10 ECJ 11 April 2013, Joined Cases C-335/11 and C-337/11 (HK Danmark), EU:C:2013:222, par. 38 and 39.

11 HK Danmark, par. 41.

12 Kaltoft, par. 58.

13 Z, par 79 and 80.

14 Coleman, par. 56.

15 Z, par. 159.

16 Kaltoft, par. 50.

17 http://apps.who.int/bmi/index.

18 HK Danmark, par. 44.

19 Kaltoft, par. 56 and 60.

20 See for example NIHR 13 May 2011, 2011-78 (regarding a hiring and selection process).

21 Chacón Navas, par. 49 and 50

Employment Related Lawsuits Are on the Rise. Are You Covered?

Gilbert LLP Law FirmOn September 25, 2014, the Equal Employment Opportunity Commission (“EEOC”) filed the first two suits in its history challenging transgender discrimination under the 1964 Civil Rights Act.  As discrimination litigation evolves, it is important to know whether your insurance coverage is evolving with it.

Coverage for employee-related lawsuits has always been important, but the increase in suits brought by the EEOC over the last several years (and the last several decades) has made employment practices liability (“EPL”) insurance of particular importance to protecting your company.  Last year, the EEOC recovered a record-setting $372.1 million.

Now, the scope of EEOC suits is increasing as a result of the EEOC’s ongoing efforts to implement its Strategic Enforcement Plan (“SEP”), adopted in December of 2012.  As part of its SEP, the EEOC makes “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply” a “top commission enforcement priority.”

Comprehensive general liability (“CGL”) policies, are a type of commercial third-party liability insurance.  Most businesses in the United States purchase CGL policies in order to protect against the risk of suits by third parties.  If a patron sues you for a slip and fall in your mom-and-pop shop, your CGL policy probably covers the suit.  Likewise, if you distribute across the entire country a product that allegedly causes bodily harm to thousands of people, your CGL policy probably covers the suits.

As broad as CGL coverage is, however, it is only one piece to a balanced insurance portfolio.  CGL policies typically exclude coverage for suits brought by employees of the company.  EPL polices step in to fill one part of the gap in coverage.  Other parts of the gap are filled by workman’s compensation policies and directors and officers liability policies.

A typical EPL policy may list a number of categories of protected classes covered by insurance, and then add coverage for “other protected classes.”  A policy may also protect against claims for “Discrimination,” and define that discrimination broadly to mean “any actual or alleged violation of any employment discrimination law.”  However, some polices offer more limited coverage.  For example, some carriers may restrict coverage to only sexual harassment.

Just as you protect your company from fire by installing sprinklers in your warehouses and doing regular safety inspections, it is imperative that you keep your employment practices up to date.  Educate your employees on proper workplace behavior, and try to think about ways to get ahead of the curve to minimize your liability for alleged workplace discriminations.

Just as discrimination litigation is evolving, other areas of litigation continue to evolve and create new risks for your company.  In addition, coverage law continues to evolve across the United States, on a state-by-state basis.  As coverage law evolves, it has a direct effect on the value of your insurance portfolio.

ARTICLE BY

João Santa-Rita
OF
Gilbert LLP

Vacation Policy Pitfalls for Illinois Employers

FINAL SW logo wLLP2

The Illinois Wage Payment and Collection Act, 820 ILCS 115/1, et seq., governs the payment of wages—including vacation pay—in Illinois.  While most employers understand that they must pay their workers on a regular basis for the wages the employees have earned, many do not consider how vacation policies may create a heightened risk of a wage class action lawsuit.

Simply put, employers must pay the wages earned by an employee at least semi-monthly, or no more than 13 days after they are first earned.  Departing employees must be paid all earned wages by the next regular pay period.  The Act defines wages to include vacation pay.  This is where things can get tricky.  An employer is not obliged to provide any vacation time to its employees.  However, once it chooses to provide vacation, the vacation time becomes earned wages that must be paid under the Act to the employee, even if the employee terminates their employment.

Employees receive vacation time in one of two ways.  First, an employer can award vacation time without requiring employees to first work some period of time.  Such a policy is called an “inducement for future service” policy and immediately vests.  Hence, employees may take vacation time under an “inducement for future service” policy without meeting any length of service criteria (and with no obligation to repay the vacation time should the employment end).  Such “inducement for future service” policies are unusual.

The other alternative is where the vacation is earned based on service.  For example, the employer can award two weeks of vacation for each year of employment.  This is considered a “length-of-service” policy and the law requires that employees earn “length-of-service” vacation time on a pro rata basis, even where the employer’s policy says they do not.  In other words, the vacation time vests as the employee works.  Thus, an employee who would earn two weeks of vacation after completing a year of employment is entitled to be paid for one week of vacation wages if he/she leaves the employer six months into the year, regardless of what the employer’s policy says.  Most employers have “length-of-service” policies.

An employer with a “length-of-service” policy must pay a departing employee the vacation wages they earned on a pro rata basis.  This is where a vacation policy can become dangerous.  If the employer has a policy that an employee only gets their vacation if they are employed in the following year, the employer is at risk with regard to every employee who left or, in the future leaves, its employment without getting paid vacation pay on a pro rata basis.  Such policy flaws lend themselves to class action lawsuits because the employer’s liability to the class will usually turn on a single question, such as whether the vacation policy is legal or not.

A class action lawsuit can be filed by one departing employee on behalf of all employees who left the employment without getting vacation pay.  A class action lawsuit is dangerous because it aggregates all employees’ claims into a single lawsuit brought by just the class representative.  In 2010, the Illinois legislature amended the statute of limitations under the Act to allow a class representative to file on behalf of a class that goes back in time up to ten years.  Because of the large number of unnamed, but represented, employees that can be in a class, the situation can create potentially disastrous financial exposure for an employer.  And, if the representative employee prevails, she is entitled to recover from the employer her attorneys’ fees, which are usually substantial.  As if this were not enough, the 2010 amendment also permits employees to collect damages of two percent per month—of 24 percent per annum—on any unpaid wages.  Willful refusals to pay wages can also be criminal.

Even if the class action lawsuit settles for a set amount of money, the employer usually must also pay the class representative’s attorneys’ fees.  Under the 2010 amendment, a prevailing employee is entitled to recover her attorneys’ fees, even she did not file her case as a class action.

Recognizing the risk, some employers have tried to limit their exposure by requiring that employees sign an agreement that they will make any claims within a short period of time—for example, six months.  Importantly, the plaintiffs’ bar and the Illinois Department of Labor take the position that the Act prevents an employee from agreeing to limit any of the rights bestowed on the employee by the Act.  Thus, an employee’s written agreement that they will bring any claims for unpaid wages within six months is unenforceable as a matter of public policy.

Employers should be careful to ensure that their policies comply with each state law in which they have employees, including the 2010 amendments to the Act.  If an employer is unfortunately named in a class action lawsuit, they should promptly seek legal advice from a law firm with experience in defending against class action lawsuits.

Copyright 2014 Schopf & Weiss LLP
ARTICLE BY

Insurance Coverage Practice Group
OF
Heyl, Royster, Voelker & Allen, P.C.

Risks of Running a Brewery & How to Avoid Them

Poyner Spruill Law firm

Beware of These Risks

Underage Drinkers, Intoxicated Patrons & Employee Restrictions

Restrictions on Employees

  • Employees are prohibited from drinking while on the job.

  • Employees who sell or serve alcoholic beverages must be at least 18 years old.

  • Employees under 21 years old are not permitted to mix drinks containing liquor.

  • Minors who are 16 or 17 years old are permitted to work at the brewery only if they do   not serve or sell any alcoholic beverages.

Sales to Underage Drinkers

It is unlawful to sell or serve alcohol to persons under 21 years old.

What should you do to protect yourself?

  • Train employees to request proper identification from customers.

  • Create a written policy for checking identification and have employees acknowledge that they have read and understand the policy.

  • Diligently supervise employees and their age verification practices.

How much might it cost you?

  • There is a cap on damages of $500,000 per occurrence.

Sales to Intoxicated Patrons

It is unlawful for a brewery or an employee of the brewery to knowingly sell alcoholic beverages to an intoxicated person.

What should you do to protect yourself?

  • Train employees on warning signs that a customer may have had too much to drink.

  • Be cautious in your assessment of a customer’s condition.

How much might it cost you?

  • There is no cap on damages for sales to intoxicated persons.

  • A court may even impose punitive damages against you.

ARTICLE BY

Amanda L Sherin
Deborah E. Sperati
OF
Poyner Spruill LLP
© 2014 Poyner Spruill LLP. All rights reserved.

Employers: How Prepared Are You for Ebola?

Morgan Lewis logo

Rapidly changing circumstances raise workplace questions.

The Ebola epidemic in 2014 has already been confirmed by the U.S. Centers for Disease Control (CDC) as the worst in history. The extent of this outbreak is still unknown, as reports of Ebola transmissions continue not only in West Africa but also (for the first time in history) inside U.S. and European borders. Because of the potential risks in a globalized economy, the U.S. government, its various agencies, and employers alike are now scrambling to ensure that appropriate rules and procedures are in place to prevent any further exposure to the disease. Reactions have been swift and fluid as officials learn more about the presence of the virus in West Africa and beyond and as they develop strategies to respond. Among the federal agencies that have already taken action, the CDC has recently issued “tightened” guidance for proper personal protective equipment (PPE) in the healthcare industry, and the Occupational Safety and Health Administration (OSHA) has issued guidance covering a number of workplace safety issues. The situation is changing rapidly and further action is expected by the U.S. government, especially after the White House announced the appointment of an Ebola Response Coordinator (or Ebola Czar).

In the United States, employers are facing challenges and questions on how to best address a wide variety of issues, including workplace safety, travel policies, employee relations, leaves of absence, and refusal to work requests. Whether responding to Ebola or other emergencies, employers should use protocols that include emergency preparedness and response plans, such as assigning responsibilities, assessing the hazard, conveying effective communications, and implementing security measures to address those key issues. In the meantime, here is what you need to know right now.

OSHA’s Interim Guidance

OSHA quickly released interim guidance for workers within the United States that focuses on those in industries most likely to be affected by the Ebola crisis:

  • Healthcare workers

  • Airline and other travel industry personnel

  • Mortuary and death care workers

  • Laboratory workers

  • Border, customs, and quarantine workers

  • Emergency responders

  • Employers in critical infrastructure/key resource sectors, such as bus drivers and pharmacists

Employers in these key industries must evaluate how they currently respond to emergencies and if those preparedness and response plans are adequate or need modification, particularly when assessing hazards specific to their jobsites (OSHA lists industry-specific information on its website). These employers should explore ways to proactively combat and contain the virus, such as obtaining PPE, implementing cleaning and sanitation procedures, and evaluating whether engineering controls, such as pressurized glass, respirators, and decontamination devices, should be used. If an employer happens to be a hospital or similarly licensed accredited facility, state licensing and other laws as well as accreditation bodies may require those organizations to activate emergency preparedness plans. Employers should communicate with their workers and train them about sources of Ebola and any required precautions.

On its newly released website dedicated to Ebola, OSHA has asserted jurisdiction over potential worker exposure via several regulations already in place. Most notably, the Ebola virus has been classified as a “bloodborne pathogen” under OSHA’s Bloodborne Pathogens standard,[1] which explicitly covers pathogens like hepatitis B virus (HBV) and human immunodeficiency virus (HIV). The Bloodborne Pathogens standard imposes a range of requirements on employers whose workers can be reasonably anticipated to contact blood or other potentially infectious materials (OPIM), such as saliva and semen. Covered employers must train employees, prepare exposure control plans, and use “universal precautions,” engineering and work practice controls, PPE, and housekeeping measures to contain the virus. Employers must also offer medical evaluations, blood tests, and follow-up evaluations after any worker is exposed to blood or OPIM. The standard contains many other nuanced requirements, including carefully documenting compliance measures. Given the complexities of the regulation, employers are strongly encouraged to seek legal advice if workers could anticipate exposure and to seek emergency, medical, and legal advice if any work-related exposure to blood or OPIM occurs.

Beyond this standard, OSHA has reminded employers that—when undertaking precautions for contact-transmissible diseases and any bioaerosols containing the Ebola virus—they must comply with OSHA’s (1) Respiratory Protection standard[2] if respirators are used on the job and (2) PPE standard[3] wherever PPE is used as a precaution. Finally, OSHA reiterated that it may issue citations against employers under the General Duty Clause of the Occupational Safety and Health Act of 1970[4]—OSHA’s “catch all” provision, which is used if no other regulation applies and where an employer allegedly fails to keep its workplace free of recognized hazards that can cause death or serious bodily harm to workers.

CDC Involvement

The primary U.S. agency embroiled in the fight against Ebola is the CDC. Of the many steps taken by the CDC in this effort, highlights of the latest guidance and advice are outlined below.

“Tightened Guidance” on PPE for U.S. Healthcare Workers

Following widespread criticism after two nurses contracted Ebola while treating a patient in Dallas, Texas, the CDC released on October 20 “tightened guidance” for PPE used by healthcare workers while caring for patients with Ebola. According to the CDC, three guiding principles control: (1) Employees must receive rigorous and repeated training to fully understand how to use PPE, (2) no skin can be exposed when PPE is worn, and (3) a trained monitor must be present to supervise all workers as they put on or take off PPE. The CDC also described “different options for combining PPE to allow a facility to select PPE for their protocols based on availability, healthcare personnel familiarity, comfort and preference while continuing to provide a standardized, high level of protection for healthcare personnel.” Among the recommendations for monitoring the safe use and removal of PPE, the CDC provides advice on step-by-step PPE removal, as well as disinfection of gloved hands.

In addition to PPE, the CDC further underscored other critical prevention activities to respond to the Ebola risk, including (1) prompt screening and triage of potential patients, (2) designating site managers who have the responsibility to ensure proper implementation of precautions, (3) limiting personnel in the isolation room, and (4) effective environmental cleaning. Employers in the healthcare industry should be aware that the CDC has highlighted management responsibility “to provide resources and support for the implementation of effective prevention precautions” and that management “should maintain a culture of worker safety in which appropriate PPE is available and correctly maintained, and workers are provided with appropriate training.” For more information and advice for healthcare workers, visit the CDC’s website.

Health and Travel Advisories

Given the severity of the risk that Ebola poses, the CDC has issued health and travel alerts, which it will continue to update as the situation develops. In the wake of various governors, particularly those from New York, New Jersey, and Illinois, having announced plans to quarantine health workers traveling from West Africa who treated Ebola patients, the CDC has also updated its guidance on October 27 regarding the monitoring and movement of persons with potential Ebola exposure. The guidance applies to anyone who recently traveled to West Africa and may have been exposed to Ebola and includes newly created tiered categories of risk, ranging from high to no risk and based on exposure to Ebola. Depending on the risk category, the CDC recommends that state and local health authorities isolate travelers who are exhibiting signs of illness or conduct “active” or “direct active” monitoring of signs and symptoms of Ebola for other at-risk individuals.

Health officials will make at least daily contact with these travelers, requiring travelers to disclose (1) temperatures and any other Ebola symptoms, such as headache, diarrhea, and vomiting, and (2) intent to travel out of state. For individuals who are under direct active monitoring, the CDC recommends that discussions with the individual include plans to work, travel, take public transportation, or go to busy public places to determine whether these activities are allowed.

Employers, and particularly employers with an international presence, should closely monitor these CDC travel advisories,[5] as well as advisories published by the World Health Organization (WHO).[6] Employers should evaluate their own travel policies and alerts against those published by the CDC and the WHO.

Protecting Employees from Impacted Regions from Harassment and Protecting the Confidentiality of Medical Information

Like the CDC, employers must respect workers’ privacy—and, particularly, the confidentiality of their medical information pursuant to the Americans with Disabilities Act (ADA)—and they must also comply with rules and guidance from OSHA, the CDC, and other agencies. Employers should balance their need to ensure workplace safety with their obligation to avoid unnecessary or overbroad medical inquiries, which are prohibited by the ADA. Of course, if an employee is exhibiting symptoms of Ebola exposure, it is appropriate to urge him or her to see a doctor. However, the decision to send an employee for a medical exam or to request medical documentation should be based on objective information—not unfounded fears that may or may not be grounded in reality. As an example, without some reason to believe there has been Ebola exposure, it could be risky to request medical information simply because an employee visited an Ebola-impacted region.

Employers should also take caution and consult legal counsel before they send home an employee suspected of Ebola exposure. The decision to remove an employee from the workplace for medical reasons must based on objective belief that the employee may present a direct threat of significant, imminent harm to himself or herself or others. These decisions should not be based on rumor or unfounded concerns.

To address these issues, employers should train human resources employees about the CDC guidance so they can understand the medical and scientific realities of Ebola exposure and, therefore, be prepared to respond appropriately if employees express concern about a coworker believed to be at risk for Ebola exposure. Similarly, employers should take all necessary steps to ensure that employees who are, or who are perceived to be, from regions impacted by Ebola do not experience harassment based on race, national origin, or any perceived medical condition.

HIPAA

The Ebola situation has also introduced some Health Insurance Portability and Accountability Act (HIPAA) interpretation questions for employers that are Covered Entities—such as healthcare providers—but also for those that sponsor a Covered Entity group health plan. HIPAA protects an individual’s protected health information (PHI), which includes, for example, medical, demographic, and other identifying information. HIPAA restricts Covered Entities from disclosing PHI about a worker or plan participant, except in limited circumstances. To date, the U.S. Department of Health and Human Services has not indicated that the Ebola crisis will change its enforcement or interpretation of HIPAA. The HIPAA Privacy Rule and Security Rules, as amended by the Health Information Technology for Economic and Clinical Health Act, will still apply to Covered Entities. Although narrow exceptions exist for use or disclosure for certain public health purposes, this exception will likely only apply in limited situations for limited organizations. Covered Entities should review their policies and procedures to determine if and how infectious diseases, particularly Ebola, are addressed. They should also train their Privacy Employees—workers who act on behalf of the Covered Entity—to continue to protect an individual’s PHI. Before disclosing any PHI, Covered Entities should exercise caution and consult with legal counsel to confirm that a use or disclosure will not constitute a HIPAA violation.

Labor Relations

In light of the media furor from various healthcare and service workers’ unions regarding Ebola risks to workers, employers should also expect to receive collective bargaining demands related to training, adequate safety procedures, and protective equipment and medical services provided to exposed employees, potentially including demands for leave (whether paid or unpaid). Employers should be proactive, therefore, in reaching out to union representatives of healthcare workers to develop protocols on how best to handle these types of issues, and, given the labor laws, should not act unilaterally, even if well intentioned and even if the to-be-implemented protocols are favorable to employees. Employers should also review their current collective bargaining agreements for any clauses or language requiring the employer to implement procedures related to infectious diseases or the safety of their workers. Finally, even nonunion workers can exercise rights under the National Labor Relations Act (NLRA) to engage in concerted activity for their mutual aid and protection if workers fear their safety is not adequately protected. A refusal to work because of safety concerns related to Ebola, therefore, could be protected under the NLRA, and employers should carefully consider this issue prior to implementing discipline to employees for refusing to work.

Immigration

In coordination with the CDC, the Department of Homeland Security (DHS) implemented a set of travel restrictions[7] involving additional screening and protective measures for travelers from Ebola-affected countries at U.S. ports of entry. Travelers to the United States who are arriving directly or indirectly from Liberia, Sierra Leone, or Guinea will undergo enhanced screening that includes the following:

  • Identifying and interdicting travelers from the Ebola-affected countries.

  • Isolating these travelers from the rest of the traveling public while the individual completes a questionnaire and contact information form.

  • Medically trained personnel will take the traveler’s temperature. If the traveler has a fever or other symptoms, or may have been exposed to Ebola, U.S. Customs and Border Protection (CBP) will refer the traveler to the CDC for a public health assessment. The CDC will then determine whether the traveler can continue to travel, should be taken to a hospital for further evaluation, or should be referred to a local health department for further monitoring.

  • Encouraging the traveler to seek healthcare at the first sign of any potential illness.

If CBP discovers that a traveler has been in one of the three countries in the prior 21 days, he or she will be referred for additional screening, and, if necessary, the CDC or other medical personnel in the area will be contacted pursuant to existing protocols. The enhanced screening is in place at the five U.S. airports that account for 94% of travelers flying to the United States from Ebola-affected countries. The airports are John F. Kennedy International, Newark Liberty International, Washington Dulles International, Hartsfield-Jackson Atlanta International, and Chicago O’Hare International. DHS has authority under existing law to deny admission to individuals who represent a public health threat.

Given the rapidly changing circumstances, employers are faced with many labor and employment challenges to consider.

[1]. 29 C.F.R. § 1910.1030.

[2]. 29 C.F.R. § 1910.134.

[3]. 29 C.F.R. 1910.132.

[4]. View the act here.

[5]. View the advisories here.

[6]. View the advisories here.

[7]. View the restrictions here.

ARTICLE BY

Jonathan L. Snare
Joyce A. Cowan
Eric S. Bord
Ross H. Friedman
Michelle Seldin Silverman
Georgina L. O’Hara
OF
Morgan, Lewis & Bockius LLP

EEOC Part of Increasing Focus On LGBT Issues

Barnes Thornburg

We seem clearly to be in the midst of a shift towards greater employment protections for LGBT employees, evidenced both by discrimination legislation largely at a state and local level and less directly in the legal environment by developments such as greater acceptance of gay marriage including the Supreme Court’s recent refusal to consider lower court decisions invalidating state statutes prohibiting gay marriage.

EEOC Commissioner Chai Feldblum recently released thisinteresting summary of the EEOC’s activities and positions on LGBT issues. Highlights include:

  • Title VII prohibits discrimination on the basis of sex.  The EEOC interprets the law to provide protection on the basis of sexual orientation and gender identity.  This has not always been the case – in the 1970s the EEOC held that discrimination on the basis of gender identity (1974) and sexual orientation (1976) were not prohibited under Title VII.
  • Courts have not yet developed a clear position on this.  (And for lawyer readers, there are numerous case cites that provide a useful reference.)
  • The EEOC has accepted discrimination charges from LGBT individuals since January 2013 and reports that it is has received and resolved hundreds of them.
  • Commissioner Feldblum states that strong laws at all levels of government explicitly protecting LGBT workers are still necessary.

Anecdotally, more and more employers seem to be voluntarily extending to LGBT employees the protection they extend to employees in generally accepted protected classes.  In many cases, the employer is required to do so under the laws of some places it does business, and simply implements the protection uniformly.  Employers who choose not to do so voluntarily and are not yet required to do so in places where they do business should at least be thinking ahead on administering what seem like inevitable changes.

As always, regardless of what classes are protected in what jurisdictions, the best defense against discrimination liability are making good business decisions and being able to document that you have done so.

ARTICLE BY

William A. Nolan
OF
Barnes & Thornburg LLP