By Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis:  On July 7, 2020, the EEOC announced in a press release two new six-month pilot programs aimed at increasing voluntary resolutions of discrimination charges. One of the new programs seeks to increase the effectiveness of the conciliation process at the Commission, and the other will create more opportunities to resolve matters through the EEOC’s popular mediation process. The details of the EEOC’s latest programs are a critical “must read” read for all employers dealing with EEOC charges.   

Conciliation Pilot Program

The conciliation process is an informal process at the EEOC that seeks to resolve findings of discrimination by the Commission before litigation. The EEOC’s conciliation pilot program, which reportedly began on May 29, 2020, and was first reported by us here, updates the conciliation process to “drive accountability” and “emphasize the importance of conciliation as a tool for remedying complaints of discrimination.” The Commission’s announcement of the program provides that the pilot reestablishes the commitment for full communication between the EEOC and the parties to a charge of discrimination and, notably, adds a requirement that conciliation offers be approved by the “appropriate level of management” before they are shared with respondents.

This new pilot, which has been underway for several weeks, appears focused on enhancing oversight over the conciliation decisions made by EEOC personnel in the field and materially changes how the agency conciliates discrimination and harassment allegations. However, the pilot has garnered criticism from Senator Patty Murray, Ranking Member of the Senate HELP Committee, and Representative Bobby Scott, Chair of the House Committee on Education and Labor, who wrote to EEOC Chair Janet Dhillon on June 22, 2020, to question the rollout of the program and the moderation of EEOC field personnel discretion in conciliation efforts. (In that letter, the legislators cited our recent blog post on the impact of these changes on employers.)

Mediation “ACT” Pilot Program

The EEOC first implemented an agency-wide mediation program in 1999 and, since its implementation, it has been a popular option for employers to resolve charges of discrimination. However, the mediation program has historically only been available for certain categories of charges at the beginning of the charge process. The EEOC’s new “ACT” Mediation pilot, which stands for “Access, Categories, Time,” now expands the kinds of charges eligible for the mediation process and allows for mediation throughout the entire charge investigation. This program purports to allow parties more opportunities to resolve charges, though the Commission’s announcement does not contain any additional detail on the types of charges that may now be eligible for mediation. For example, large-scale, systemic cases were historically not subject to mediation, but it is unclear if that is still the case.

The EEOC also announced that the pilot will expand the use of technology to hold virtual mediations, presumably to continue this program despite challenges posed by the COVID-19 pandemic.

Implications For Employers

While additional details about these programs have yet to be disclosed, the changes described by the EEOC in its press release are potentially positive developments for employers. The conciliation program requirements that personnel in the field must obtain approval from a higher level of management before making conciliation demands could provide more clarity and assurance on conciliation demands offered to employers, and the mediation program changes may allow for more opportunities for employers to resolve charges throughout the investigation process.

These new measures are the latest in a variety of changes made by EEOC Chair Dhillon and are consistent with the EEOC’s previously-announced strategic priorities to emphasize pre-suit conciliation and mediation. The ongoing changes at the Commission are a must-watch for employers, as they considerably expand the opportunities for pre-litigation resolution of discrimination claims.

By James L. Curtis, Mark A. Lies, II, Patrick D. Joyce, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: OSHA Administrator Loren Sweatt recently blogged related to heat illness in the work place as “forecasters are calling for above-average heat in some parts of the country and scorching temperatures in July and August.” Sweatt suggests six items to keep in mind as employers prepare for a hot summer.

We had previously blogged, Heat Illness Strikes Back: Return to Work’s Untold Story, that as we approach the heat of the summer season and as employers begin to return to work (RTW) after months of COVID-19 quarantine, workers may be out of shape, out of practice on workplace safety procedures, and may have to rebreathe hot air through face coverings. As employers focus on COVID-19 RTW efforts, they should remain aware of risks of safety rule violations, injuries, and heat illness. Loren Sweatt, OSHA’s Acting Administrator, recently blogged on this topic.

In Sweatt’s blog, she provided six tips to prepare employers and employees for a hot summer:

  1. Memorize these three words: “Water. Rest. Shade.” Ideally, workers should drink cool water as often as possible, but they may need sports beverages containing balanced electrolytes if they are sweating for several hours at a time. Employers should make sure workers can access shaded or air-conditioned rest areas to cool down as needed.
  2. New and temporary workers are most at risk. The body needs time to build a tolerance to heat, which is why more than 70% of outdoor heat fatalities occur during a worker’s first week of working in warm or hot environments. The process of building tolerance is called “acclimatization.” Learn how to create a heat illness prevention plan and be sure to supervise new employees until they are fully acclimatized.
  3. Indoor workers also can suffer from heat illness. Kitchens, laundries, warehouses, foundries, boiler rooms and many other indoor work environments can become dangerously hot. See a list of industries where OSHA considers workers to be at high risk.
  4. Use engineering controls or modify work practices to protect employees. For example, try increasing ventilation using cooling fans, schedule work at a cooler time of the day, and rotate job functions among workers to minimize heat exposure. Find additional best practices from OSHA here.
  5. Familiarize everyone at your workplace with the signs and symptoms of heat illness and make sure everyone knows what to do in an emergency.
    • Common heat exhaustion signs are: dizziness, headaches, cramps, sweaty skin, nausea and vomiting, weakness and a fast heartbeat. Heat stroke symptoms may include red, hot, dry skin; convulsions; fainting; very high temperature and confusion.
    • Pair workers with a buddy to observe each other for early signs and symptoms of heat illness.
    • Employees should call a supervisor for help if they believe someone is ill – and 911 if a supervisor is not available, or if someone shows signs of heat stroke.
  6. Download the OSHA-NIOSH Heat Safety App on your iPhone or Android device to help calculate the heat index at your worksite. The app provides specific recommendations for planning work activities and preventing heat illness based on the estimated risk level where you are working.

As workers continue to return to work after a prolonged absence due to COVID-19, employers should be extra vigilant in refreshing employee training, especially as it relates to heat illness prevention and other safety requirements that could have slipped an employee’s mind while they were in quarantine. Return to work may necessitate generalized retraining on core safety rules.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

The Employment Law Lookout is taking a holiday break this week, but will resume delivering insightful discourse and updates on the day’s most pressing workplace issues next week.

In the meantime, we want to wish all of our readers, contributors, and editors a safe and happy Fourth of July holiday.  We hope you are able to spend time with family, friends, and loved ones and rest assured knowing that we’ll be on the lookout for more management insights to bring you soon.

Thank you and Happy Fourth.

By John Ayers-Mann, Christopher W. Kelleher, Daniel B. Klein, Robert A. Fisher, and Ariel Cudkowicz

Seyfarth Synopsis: Massachusetts will move to the second step of Phase II of the State’s reopening plan beginning today, June 22. Updated COVID-19 guidance issued by the Baker Administration increases office occupancy limits to 50% of maximum capacity, permits indoor table service at restaurants, allows use of retail dressing rooms by appointment, and allows close contact personal service providers to resume operations with restrictions.

On Friday, June 19, Governor Baker announced that Massachusetts will move to the second step of Phase II of the state’s reopening plan, beginning today, Monday, June 22. Step 2 of Phase II brings significant changes for restaurants, office spaces, and retailers, and permits more close contact personal service providers to resume operations.

Businesses with office spaces are now permitted to allow more employees to return to the office. The updated guidance increases the number of people permitted in any office space from 25% to 50% of the office’s maximum occupancy, but continues to require businesses to have their employees telework to the extent feasible.

Also in Step 2, restaurants are now permitted to resume indoor table service, but must limit their indoor service in order to ensure compliance with social distancing measures applicable to restaurants under the industry-specific guidelines.

Step 2 of Phase II also allows retailers to permit customers to use dressing rooms by appointment only. Finally, several close contact personal service providers, such as personal trainers, tattoo parlors, tanning salons, makeup salons, and hair, nail and skin care businesses, are permitted to resume operations, subject to industry-specific safety standards.

We will continue to keep you apprised of any significant developments with respect to the Commonwealth’s reopening process.

By Erin Dougherty Foley and Katherine Mendez

Seyfarth Synopsis: In light of recent events, the Employment Law Lookout Blog provides some reflection and thought on returning to work in uncertain times.

In February and March we were only just preparing for, and beginning to respond to, the worldwide pandemic. Many of the issues related to returning to work have been identified and addressed for some time now (indeed, in the last month there was a small light beginning to shine at the end of the “getting back to normal” tunnel). At the beginning of May, most employers started to prepare for what all had hoped was some semblance of a “new normal.”  Then, George Floyd was killed and the country exploded — understandably — with grief, and outrage, and, unfortunately, violence. These recent weeks have created new questions and challenges for employers across the nation.

We would be remiss if we did not identify some topics for employers to consider as you navigate these return to work issues.

Respectful Workplaces — employees can’t always check their views at the door. Issues impacting them, their families, and their communities may need to discussed in the workplace. Not all employees will want to discuss these issues; others will. We think it imperative for employers to acknowledge opinions about what has occurred, attempt to understand them, and to give ourselves permission to talk about them in order to disrupt the stereotypes and challenges facing our communities.

Unfortunately, sometimes emotions get heated or conversations veer to a place that are no longer respectful. Employers walk a fine line between allowing the dialog and ensuring that those involved in the communications are not otherwise engaging in conversations that violate company policy, i.e., your code of conduct or anti-discrimination/harassment policy. As we return to work, consider reviewing your policies, training, and messaging, in an effort to ensure that your business leaders are setting the proper tone to encourage and promote respectful workplaces. Now also may be a good time to remind everyone that conduct or communications (either at work or outside of work) that otherwise violates your “zero tolerance” policies regarding discrimination/harassment or violence, your social media policy, or your rules concerning use of company internet and other electronic communication systems need to be reported, will be investigated and — if warranted — result in disciplinary action. As always, employers have the responsibility to ensure that all employees are free from all forms of harassment, discrimination and retaliation.

Also remember that some state laws specifically protect political expression. For example, California has a far reaching prohibition on employers preventing employees from engaging in political activities, which the courts have interpreted broadly. Indeed, “political activities” are not narrowly confined to partisan activity, but cover any activities involving the support of a candidate or a cause, including participating in social movements such as the gay rights movement. While California’s law is the most broad, other states have similar laws and employers should, therefore, be careful before addressing or disciplining speech in the workplace.

Employers also must consider the content of these conversations and whether they are “protected concerted activity” under the National Labor Relations Act. The NLRA gives employees at both union and nonunion workplaces the right to discuss and share information among themselves and with outsiders to try to improve their working conditions and/or to address work-related issues. It doesn’t specifically protect “political” speech, but speech and related action are protected if they are both (1) concerted (i.e., made by a group of employees or by an individual who is acting on the authority of other employees or who is trying to induce group action); and (2) related to terms and conditions of employment. Any instruction to stop certain communications, or any decision to issue discipline based on those communications, should be carefully considered in order to determine if the speech is considered protected concerted activity.

Safe Workplaces — many employers have operations located in places where protests occurred. While hopefully all future marches will remain peaceful, when violence occurs, a myriad of employment issues are impacted. First and foremost, be safe: if necessary, close operations, send employees home, take all appropriate security precautions. But also do so with an eye toward issues important to front-line workers:  reporting pay, use of PTO (or other types of excused absences), etc.

Relatedly, some employees (either because of COVID-19 or other safety concerns) may refuse to come to work even when employers are ready and able to have them back. Remember that some states and individual cities have enacted anti-retaliation laws and guidelines that prevent employers from taking adverse actions against employees who express concerns about returning to work. In those instances, if a brief leave of absence would allay the employee’s concerns about working in an impacted area, that could be a feasible option. Certainly, if an employee has suggested that the inability to return to work is caused by a health condition (compromised immune system, or anxiety related to recent events), providing leave also could be a reasonable accommodation.

As discussed below, having a well thought out return to work plan will help employees feel more comfortable returning to work and confident that their employers have considered health and safety issues before asking employees to come back to the workplace. Each employer must determine where the balance point is for the company and their workers, recognizing that short-term, temporary options may provide much needed peace of mind and better employee relations in the long-run.

Healthy Workplaces — while states are “opening up” — and some semblance of “normal” may be available down the road, the very real concern of either a “second spike” of COVID-19 or winter flu season may bring additional health concerns. Be sure that employees are trained on CDC/state/local requirements and expectations for when they return to work. Provide all recommended PPE, consider office reconfigurations to allow for social distancing, discuss staggering start times and work weeks to provide employees with the needed space and social comfort to feel safe. Talk with your benefits providers to determine if there are any additional mental health resources that can be offered to employees who may need extra support during these difficult times.

Getting to the Workplace — in certain metropolitan areas, many workers rely primarily on public transportation to get to work. However, one of the CDC recommendations to slow the spread of the virus is to avoid using public transportation. Similarly, in the past weeks, cities like Chicago have halted public transportation when spikes of violence have occurred. Employees who rely on public transportation may be adversely impacted by these issues. Under normal circumstances, how an employee gets to work is not the employer’s responsibility, as long as the employee is able to maintain regular attendance. However, in light of health and safety issues, employers may wish to consider if there are other, viable, transportation options for these employees, additional resources to work from home, parking options, etc.

There may also be solutions you have not yet considered. We recognize that none of these challenges have quick and easy solutions. Indeed, there is likely no “one size fits all” answer. Each employer, each situation, each employee issue has its own set of unique characteristics and circumstances. We encourage everyone to be flexible. Consider options outside the “norm” and work to try to attain a reasonable solution. Be safe. Be well. Take good care.

NOTE: This blog expresses the opinions of the authors and does not necessarily represent the opinions of the firm as a whole.

If you have questions or would like to discuss these or other return to work issues, please contact the authors, a member of the Firm’s “Return to Work” Team, or your Seyfarth attorney.

By Benjamin Conley, Emily Miller, Leon Rodriguez, Sam Schwartz-Fenwick, and Cameron Smith

Seyfarth Synopsis: For decades, courts and practitioners have struggled with whether federal law protects employees against discrimination on the basis of sexual orientation and gender identity. Today, in a landmark 6-3 decision authored by Justice Gorsuch, the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination against LGBT individuals. The Court explained that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

As we wrote about previously, the Court had consolidated three employment termination cases for its consideration: two based on sexual orientation (Zarda v. Altitude Express from the Second Circuit and Bostock v. Clayton County from the Eleventh Circuit) and one based on gender identity (R.G. & G.R. Funeral Homes v. EEOC from the Sixth Circuit). In each case, the employer made the termination decision because of the employees’ sexual orientation or gender identity. The Court had to decide whether Title VII protects individuals on these bases, and clearly concluded that it does.

While the majority acknowledged that sexual orientation and gender identity are “distinct concepts from sex,” it found “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court explained that if an employer fires a male employee for dating a man – but does not fire a female employee for the same conduct – the employer treats the male employee differently “for traits or actions it tolerates in his female colleague.” The majority held that treating individual employees adversely because of their sexual orientation or gender identity is inherently discrimination “because of sex.”

Justice Gorsuch rebutted the arguments advanced by Justices Alito, Thomas and Kavanaugh in two lengthy, dissenting opinions. The dissenters argued that the legislature could never have imagined, when drafting Title VII, that the term “sex” might mandate employment protections for LGBT individuals. The majority rejected that rationale, explaining that the legislature in 1964 may not have imagined same-sex sexual harassment either, which Justice Scalia recognized as violating Title VII in the Oncale decision, that scholars and litigants did advance the argument that Title VII protected LGBT people shortly after its enactment, and that the text of the statute must control. As the Court noted, “the limits of the drafters’ imagination supply no reason to ignore the law’s demand.”

The dissents characterize the majority opinion as a dramatic act of legislating by an activist Court contrary to well-established notions that “sex” means “biological sex”. The dissents caution that employers will face litigation when maintaining workplace gender distinctions and that the Court’s holding will violate employers’ First Amendment rights, by forcing them to recognize the gender identity of employees and by forcing them to provide coverage for medically necessary transgender affirming benefits under their health plan.

The Court attempts to assuage these concerns of judicial overreach by noting that the decision today was limited to the question of the reach of Title VII. The Court expressly noted that it was not addressing hot-button topics such as bathroom access or exemptions based on free exercise of religion. The Court stated that further litigation would be needed to resolve such questions. The Court especially stressed this point as it related to the intersection of an employer’s exercise of its religious beliefs and the employment protection rights of LGBT employees, noting that potential arguments for religious employers might exist under the religious exemptions in Title VII and in the Religious Freedom Restoration Act. Through this language the Court made clear that its view articulated in Hobby Lobby v. Burwell, that at least some private employers have religious rights under the First Amendment, remains very much alive.

It is important to stress that the dissents articulate a position consistent with the Trump administration’s view of LGBT rights. Indeed, this past Friday, the Trump administration issued its final rule excising transgender healthcare protections from Section 1557 of the Affordable Care Act. The Trump administration argued that Section 1557 was an impermissible over-reach by the Obama administration, contending that no civil rights law passed by Congress extended employment protections to LGBT individuals. Today’s decision puts this reasoning in doubt. Indeed, the justification for promulgating Section 1557 was that the “because of sex” language in Title IX of the 1964 Civil Rights Act extends to gender identity. Because the sex based protections in Title VII and Title IX are the same, and decades of jurisprudence under Title IX tracks the evolution of Title VII, today’s decision strongly supports the position taken by litigants who have and will file suit to challenge the repeal of Section 1557’s protections for transgender individuals. Seyfarth will be issuing a separate alert detailing the Administration’s Section 1557 rule and examining the interaction between that rule and today’s SCOTUS decision.

The Bostock decision will directly impact workplaces throughout the country. Before today, in a majority of states, discrimination on the basis of sexual orientation or gender identity was legal. In addition to existing state and municipal protections, discrimination based on sexual orientation and gender identity is now expressly prohibited in all jurisdictions under federal law. Employers should anticipate that the Bostock decision’s definition of “sex” under Title VII will lead to additional litigation and clarification that discrimination “because of sex” when prohibited by other statutes, including Title IX, includes sexual orientation and gender identity. Employers who do not already prohibit discrimination based on sexual orientation and gender identity should review their employee handbooks, policies, and benefit plans to ensure compliance with Title VII’s prohibition of discrimination based on sexual orientation and gender identity.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Occupational Safety and Health Administration (OSHA) has released a series of frequently asked questions and answers regarding the use of masks in the workplace to assist the regulated community.

Right up front, the FAQs settles once and for all the question of whether OSHA considers cloth or makeshift face coverings to be regulated PPE: they are not. The FAQs also outline the differences between cloth face coverings, surgical masks, and respirators, and notes that cloth face coverings “may be commercially produced or improvised (i.e., homemade) garments, scarves, bandanas, or items made from t-shirts or other fabrics.” The FAQs remind employers not to use surgical masks or cloth face coverings when respirators are necessary and if respirators are required, a proper respiratory protection program should be in place. In addition, the FAQs note the need for social distancing measures, even when workers are wearing cloth face coverings, and recommends following the Centers for Disease Control and Prevention’s guidance on washing face coverings.”

In the news release accompanying the FAQs, OSHA Administrator Loren Sweatt recognized that “as our economy reopens for business, millions of Americans will be wearing masks in their workplace for the first time,” and “OSHA is ready to help workers and employers understand how to properly use masks so they can stay safe and healthy in the workplace.”

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Linda C. Schoonmaker and Brian A. Wadsworth

Seyfarth Synopsis: The First Circuit recently sided with an employer in a disability discrimination suit in Trahan v. Wayfair Maine, Inc., Civil Action 19-1961.

The former employee plaintiff claimed that her employer discriminated against her when it terminated her employment and failed to honor her accommodation request after the employer made the decision to terminate her employment. In disagreeing with the plaintiff, the Court issued strong language in favor of employers, noting that employers have a right to consistently enforce their policies and that a request for an accommodation cannot be used as a mechanism to ask for forgiveness for wrongdoing.

The Plaintiff’s Troubled Work History

Plaintiff Kirstie Trahan, who was the victim of sexual assault while a member of the US Army, suffers from PTSD. She was diagnosed with this condition in 2010, approximately seven years before Defendant Wayfair Maine, LLC hired her as an employee at its call center in Bangor, Maine. Trahan did not inform Wayfair of her PTSD diagnosis at the time it hired her.

Wayfair’s call center operated on an open floor plan and employees sat in close proximity to one another. Due to this, Wayfair’s General Rules of Conduct (the Conduct Rules) require employees to treat one another professionally and cooperatively. Wayfair had discharged employees for what it deemed were unprofessional interactions.

In her complaint, Trahan claimed that she had complaints with her working environment almost immediately after she began. She believed that the other employees had created a “clique environment” and were making fun of her. Wayfair denied these allegations or that any other employees made fun of her and the Court ultimately found there was no proof of these allegations.

During her initial training, Trahan had an outburst directed at her co-workers and “threw her headset and slammed down her phone.” Trahan admitted that she remembered calling her co-workers “bitches” during this outburst.

Concerned with Trahan’s unprofessional behavior, Wayfair subsequently investigated the incident. As part of the investigation, Wayfair interviewed Trahan. Trahan did not elaborate on why she had the outburst but did reiterate that she thought her co-workers formed a “clique” and were “a bunch of bitches.” In addition to this, during the interview, Trahan “crossed her arms, faced the wall, and rolled her eyes repeatedly,” which the Wayfair investigator thought was rude and unprofessional. Trahan later testified that her behavior was a coping mechanism because she was suffering from a panic attack. However, she never informed Wayfair she had a disability or that this behavior was a result of the disability. As a result of the investigation, Wayfair placed Trahan on a leave of absence pending further investigation. When informed of this, Trahan again referred to her co-workers as “bitches.”

Wayfair subsequently determined that it would terminate Trahan’s employment for rude and unprofessional behavior. Notably, Wayfair did not believe Trahan was treating her co-workers with the professionalism and respect that it expects of its employees.

After Wayfair made the termination decision, but before it expressed that decision to Trahan, Trahan raised her PTSD diagnosis for the first time, citing it as playing a role in the incident that led to her leave of absence. Trahan also requested that her work position be moved away from the co-workers with whom she quarreled or, alternatively, that she be permitted to work remotely.

The Court’s Analysis

In affirming the trial court’s grant of summary judgment on Trahan’s disability discrimination claim, the First Circuit proceeded to the third step in the McDonnell Douglas framework, pretext. Before doing so, the Court noted that “Trahan’s misconduct was patent” and that Trahan had unambiguously committed a terminable offense. This strong language preceded the Court’s disagreement with each of Trahan’s pretext arguments.

In an effort to demonstrate pretext, Trahan argued that other, non-disabled employees had engaged in misconduct but whom Wayfair did not terminate. The Court made short work of this argument. Trahan admitted that Wayfair had terminated other employees for misconduct and had terminated all employees who had angry outburst. In other words, the Court found that Wayfair consistently ensured that its employees treated one another with professionalism and respect.

In addition, Trahan’s claim that Wayfair did not discipline employees for using the company chat system to make fun of other employees, “snapping” at employees, or using profanity was met with derision. The Court noted that Trahan was “comparing plums to pomegranates.” Trahan had no proof, and Wayfair denied, that employees had used the company chat system to make fun of other employees, much less her. Similarly, the one employee who Trahan alleged “snapped” at another employee did so, even according to Trahan’s allegations, without the use of profanity, unlike Trahan. Thus, the two types of behavior were dissimilar. Furthermore, while Trahan claimed some other employees may have used profanity, a fact Wayfair also denied, Trahan did not allege that those employees directed their profanity at another employee as Trahan did. Therefore, even under Trahan’s allegations, the two behaviors were not the same.

The Court also affirmed the trial court’s grant of summary judgment with respect to Trahan’s failure-to-accommodate claim. Ultimately, the Court found that Trahan’s post-incident request for an accommodation was, in the words of the Second Circuit in McElwee v. County of Orange, 700 F.3d 635, 641 (2d Cir. 2012), “[a] requested accommodation that simply excuses past misconduct [that] is unreasonable as a matter of law.” The Court proceeded to give a strong pronouncement for employers: “Where, as here, an accommodation request follows fireable misconduct, it ordinarily should not be viewed as an accommodation proposal at all.”

In addition to finding Trahan’s request for an accommodation disingenuous, the Court found that the requested seat transfer or ability to work remotely was unreasonable. These items were not feasible for Wayfair’s business and would not have completely assuaged the concerns about Trahan interacting with her co-workers. Also, Trahan’s PTSD triggers were unpredictable and could have occurred anywhere. Consequently, these accommodations would not have permitted her to perform her position in a professional manner.

Lastly, the Court dismissed Trahan’s claim that the record deficiencies regarding the reasonableness of her disability were due to Wayfair’s failure to engage in the interactive process. The Court noted that liability for failure to engage in an interactive process depends on a finding that the parties could have discovered and implemented a reasonable accommodation, but there was no such possibility here.

Key Learning Points

While the First Circuit does not break any new ground in Trahan, the holding reminds employers of the importance of documenting performance issues. If Wayfair had not properly documented the plaintiff’s disciplinary issues, especially in a timely manner and before Trahan sought an accommodation to cover for her misdeeds, then the Court may not have found in its favor. Similarly, employers should remain resolute in enforcing their company policies even when confronted with a request for an accommodation that comes across more of “a plea either for forgiveness or for a second chance.” Employers have the right to maintain and enforce their company policies and should not shy away from doing so due to an after-the-fact request for an accommodation. However, employers must be careful and ensure that they enforce their policies consistently.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Counseling & Solutions or Absence Management and Accommodations Teams.

By Lisa Lehmann Nichols, Samantha L. Brooks, and Steve Shardonofsky

Seyfarth Synopsis:  The Department of Labor recently issued additional “questions and answers” (“Q&A”) relating to the Families First Coronavirus Response Act (“FFCRA”). Below are a few key takeaways as employers reassess leave requirements for this summer.

1.  COVID-Related Summer Camp Closures (Q&A Nos. 67 and 93)

For months, many employees have juggled working from home with their children engaged in distance learning, some using FFCRA or other leave benefits during this time. Now, workers and employers are faced with a new, inevitable question: “Schools are closed for the summer. Camps are also closed because of COVID. Now what?”

Microscopic view of Coronavirus, a pathogen that attacks the respiratory tract. Analysis and test, experimentation. Sars. 3d render

The Q&As now specifically clarify that a “place of care” under the FFCRA — defined as a physical location where care is provided for a child — includes summer camps and summer enrichment programs, in addition to more obvious facilities like day cares, preschools, before and after school care programs, schools, homes, and respite care programs.

The new Q&A also explains that the closure of a child’s school or other “place of care” for summer vacation (or any other reason not related to COVID-19) is not a qualifying reason for leave under the FFCRA. However, the employee may be entitled to take leave if their child’s care provider during the summer—such as a summer camp or other summer school program—is closed or unavailable because of the pandemic.

Similarly, the Q&As provide that an employee who has been working from home successfully so far while also caring for their child, without taking FFCRA leave, is entitled to request leave at any time subject to an appropriate request and necessary documentation as required. The fact that the employee had been teleworking with children at home would not disqualify him/her from requesting leave at some later point because of the child’s camp or other place of care for the summer is closed because of COVID-19.

2.  FFCRA Leave for Employees Already on Workers’ Compensation, Temporary Disability, and Other Employer-Approved Leaves of Absence (Q&A Nos. 76 and 77)

The Q&As clarify that an employee generally may not take leave under the FFCRA if they are already on leave and receiving workers’ compensation or temporary disability benefits, unless the employee was able to return to light duty before taking FFCRA leave. In other words, if the employee was able to return to light duty, but then an FFCRA qualifying reason prevents the employee from continuing to work, the employee would be eligible for FFCRA leave. Otherwise, if the employee is on workers’ compensation leave and would not be able to return because of the injury or because there is no light duty work, the employee would be eligible for FFCRA even if she experiences a qualifying event during the leave period.

On the other hand, an employee who is taking a voluntary leave of absence may end their leave and request FFCRA leave for a qualifying reason that prevents them from being able to work or telework.  However, an employee who is on a mandatory leave of absence may not take FFCRA leave even if he experiences a qualifying event during the leave period. According to the Q&A, this is because the mandatory leave of absence is preventing the employee’s ability to work, and not a FFCRA qualifying reasons. Nevertheless, depending on the circumstances, an employee on a mandatory leave of absence may be eligible for unemployment benefits, and should contact their state unemployment agency for questions about eligibility.

3.  Employers May Require Minimal Documentation from Employees Taking Leave to Seek Medical Diagnosis for COVID Symptoms (Q&A No. 92)

The Q&As have now clarified what documentation employers may require from an employee who claims to have COVID-19 symptoms and is taking leave to seek a medical diagnosis.

Employers may only require employees to identify:

  • Their symptoms; and
  • A date for a test or doctor’s appointment.

Employers may not  require employees to provide documentation or certification that they sought a diagnosis or treatment.

Of note, this rule applies only to FFCRA leave and does not change rules for documentation under other types of leave. For example, employees taking unpaid leave under the FMLA may require certification from a health care provider in support of leave.

4.  Leave Logistics and Calculations: Identifying the Correct Six-Month Period to Determine the Regular Rate and Questions About Employer-Provided Paid Sick Leave (Q&A Nos. 85 and 86)

Regular Rate. If an employee takes intermittent leave prior to requesting FFCRA leave, employers do not need to determine and review a new six-month period every time the employee takes leave. Q&A 85 states that the six-month lookback period used to calculate an employee’s regular rate under the FFCRA is based on the first day the employee takes paid sick leave or expanded family medical leave. This six-month period is used to calculate all paid sick leave and expanded medical leave under the FFCRA, even if there the employee returns to work or has other leave periods in between the FFCRA leave requests.

Interaction of Employer-Provided Paid Sick Leave. Emergency paid sick leave under the FFCRA is in addition to any form of paid or unpaid leave provided by an employer, other laws, or applicable bargaining agreement. May an employer require the employee to use other available paid leave concurrently (i.e. cover the same hours) with their FFCRA leave?

Concurrent Leave FAQ

*This paid sick leave can be under the Emergency Paid Sick Leave Act or the employer’s plan, but not both.

5.  Requirements When Only One Joint Employer is Required to Provide Leave (Q&A No. 90)

The new Q&As clarify obligations for putative joint employers when one of them has more than 500 employees (for example, a staffing agency) and the other has fewer than 500 employees (for example, the client of a staffing agency). In this context, the first employer is not required to provide leave under the FFCRA. But the second company may be required to provide leave for temporary employees placed there by the staffing agency if it is the employee’s joint employer  under the FFCRA (a difficult and fact-intensive inquiry discussed in Q&A Nos. 2 and 90).

Importantly, according to the new Q&A, a joint employer that is not required to provide leave is still prohibited from interfering with the employee’s right to take leave through the second employer and must also not retaliate against the employee for doing so (for example, by discharging, disciplining, or discriminating against the worker).

For more information, please visit some of our prior client alerts summarizing the DOL’s FFCRA  Q&As here and here.

By Minh N. Vu

Seyfarth Synopsis: Depending on the staffing and layout of the retail store, some examples of accommodations may be reasonable and not cause undue hardship.

Several weeks ago, we blogged about mask objectors presenting businesses with documents bearing the U.S. Department of Justice seal stating that they are not required to wear masks because of their disability. Last week, the DOJ issued a statement that “[t]he Department of Justice has been made aware of postings or flyers on the internet regarding the Americans with Disabilities Act (ADA) and the use of face masks due to the COVID-19 pandemic, many of which include the Department of Justice’s seal. These postings were not issued by the Department and are not endorsed by the Department.” This statement makes clear that the DOJ has not taken a position on whether businesses can lawfully deny entry to people who refuse to wear masks because of a claimed disability, but provides no guidance to business presented with this thorny issue.

To further complicate matters, jurisdictions such as New York City, Virginia, and Pennsylvania that have issued executive orders mandating the wearing of masks in public all differ slightly on how businesses should respond to people who cannot wear masks because of a disability or medical condition.

The New York City guidance suggests that a business may be able to exclude people who refuse to wear masks because of a medical condition or disability as long as the business offers alternatives to access the business’ goods and services. The NYC guidance states:

Where a customer declines to wear a face covering due to a medical condition or disability, you cannot require the individual to provide medical documentation verifying the health issue. In addition, you must discuss with the individual whether there is a way you can provide a reasonable accommodation that will not cause you an undue hardship. You should try to provide alternative arrangements that are workable for your store, your staff, and your other customers. These arrangements will vary considerably based on each store’s ability to make accommodations without creating a hardship on the business.

Depending on the staffing and layout of the retail store, some examples of accommodations that may be reasonable and not cause undue hardship to you are:

  1. Have an employee bring the individual the items they want to buy and allow the individual to pay for them at the front of the store.
  2. Have the individual leave a list of items with the store and then deliver the items to their home.
  3. Inform the individual that they may order by telephone or online and have items delivered to their home.
  4. Suggest that the individual have a friend or family member do their shopping.

The Pennsylvania guidance, on the other hand, says “individuals who cannot wear a mask due to a medical condition (including children under the age of 2 years per CDC guidance) may enter the premises and are not required to provide documentation of such medical condition.”

The Virginia guidance takes an approach similar to Pennsylvania, stating:

Nothing in this Order shall require the use of a face covering by any person for whom doing so would be contrary to his or her health or safety because of a medical condition. Any person who declines to wear a face covering because of a medical condition shall not be required to produce or carry medical documentation verifying the stated condition nor shall the person be required to identify the precise underlying medical condition.

All of these orders prohibit a business from asking a customer about his or her medical condition or disability once the customer has informed the business of the existence of the condition or disability that prevents them from wearing a mask. The orders differ as on whether a business can lawfully exclude such individuals from the premises.

The fact that a jurisdiction exempts individuals with disabilities and/or medical conditions from its mask mandate does not necessarily mean that private businesses cannot impose more stringent mask requirements to protect their employees and customers. However, such requirements may be challenged as unlawful under Title III of the ADA. In fact, just last week, nine such lawsuits were filed in federal court claiming a retailer’s mask policy violated the ADA. A business defending such a challenge would have to show that requiring masks to be worn by all individuals inside a facility is a legitimate safety requirement, and that making an exception for people with claimed disabilities is not a reasonable modification of the policy. While it is difficult to predict how courts will rule on this novel issue, businesses can better position themselves for such a challenge by documenting the reasons for the policy at the time the business enacts the policy (e.g., governmental mandate, CDC guidance, etc.), as well as the business’ inability to modify the policy (including all possibilities for modifications considered), put in place alternative measures for providing goods and services to businesses that do not require entry into a facility, and train employees on the existence and appropriate communication of those alternatives.

Of course, businesses could avoid this litigation risk by allowing people claiming a disability or medical condition to enter their premises without a mask, although this heightens the risk of COVID-19 exposure for employees and customers and other potential liability outside of Title III of the ADA. A rock and a hard place indeed.