By Bailey K. Bifoss and Andrew M. McNaught

Seyfarth Synopsis: Qualified immunity did not supply a Pennsylvania judge with a get out of jail free card, the Third Circuit concluded, holding that sexual harassment and retaliation in the workplace violate clearly established constitutional rights. However, the judge’s appeal was not a total wash, as the court refused to adopt a rule that would have denied him immunity on the claim that he violated an employee’s First Amendment rights by interfering with her freedom to associate with her unmarried, romantic partner.

At a 2004 Christmas party, Crystal Starnes, a Probation Officer, met Judge Thomas Doerr, a judge in a neighboring county. They exchanged phone numbers, and Doerr suggested they stay in touch.

According to Starnes’ lawsuit, Doerr repeatedly called her after the Christmas party to ask her to meet him in his chambers. Starnes initially declined but, in early 2005, she relented. Doerr discussed hiring Starnes for a job she wanted, and the two began a sexual relationship that Doerr allegedly said would be a “business relationship.” By summer 2005, Doerr allegedly helped Starnes get the job she wanted in the county where he was President Judge.

After the sexual relationship between Doerr and Starnes ended in 2009, Doerr allegedly continued to attempt to influence Starnes by flirting with her from the bench, making sexual gestures, holding her hand, interrupting her conversations with male colleagues, and asking her to film herself performing sexual acts.

Starnes says Doerr’s behavior grew increasingly hostile after she began dating the man that she would later marry. Doerr initially refused to permit Starnes a transfer to which she was entitled. Then, when she eventually secured the transfer, she was denied her own office, overtime, training opportunities, and other benefits. Starnes told her supervisors, including Doerr, that she intended to file a claim with the Equal Employment Opportunity Commission. Days later, she was placed on a performance improvement plan to resolve supposed deficiencies that were not mentioned in her performance review only a month earlier.

Starnes sued and, after several attempts, her third amended complaint survived Doerr’s motion to dismiss. Doerr appealed. However, the Third Circuit affirmed the District Court’s decision on all but one count.

The Third Circuit concluded the District Court correctly denied Doerr qualified immunity as to Starnes’ 14th Amendment equal protection clause claim. Indeed, immunity does not attach when a constitutional right is at issue and the right was “clearly established” at the time of the violation. The Equal Protection Clause prohibits sex-based discrimination and, according to the Third Circuit, hostile work environment harassment. Thus, Doerr should have known he was violating a clearly established constitutional right by enticing Starnes into a sexual relationship in exchange for a job.

Nor did qualified immunity insulate Doerr from Starnes’ retaliation claim.. Starnes spoke as a citizen about a matter of public concern—alleged sexual harassment by a member of the bench—in filing her EEOC complaint, bringing her conduct within the ambit of the First Amendment. By allegedly retaliating against Starnes within days of her protected First Amendment conduct, Doerr, the court concluded, should have known he was violating a well-established constitutional right.

But the Third Circuit disagreed with the District Court on whether Doerr knowingly violated Starnes’ First Amendment right to associate with her then boyfriend (now husband) and her right not to associate with Doerr. The District Court understood Starnes to allege Doerr unconstitutionally interfered with her relationship with her boyfriend when Doerr said he “hoped they were off the clock” when he ran into them outside work. However, in the Third Circuit’s view, Doerr could not have known he was violating Starnes’ First Amendment rights by his alleged comment because neither “the Supreme Court nor this court has held that unmarried, romantic partners have a fundamental right to intimate association. Nor is there a robust consensus of persuasive authority recognizing such a right.”

Thus, qualified immunity remains a powerful defense for government employers.. However, it is no get out of jail free card. The Third Circuit’s decision reinforces the degree to which it is constrained by rights that are clearly established at the time of the alleged conduct.

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

By Brent I. Clark, Benjamin D. Briggs, Adam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The CDC continues to expand its guidance on the potential routes of COVID-19 transmission, changing its definition of “close contact” of 15 minutes or more within 6 feet, to now mean 15 minutes aggregated across an entire day, and not just a single continuous 15 minute period.

For the last several months, the CDC has advised that COVID-19 can be transmitted via multiple routes.  Of those routes, household members, intimate partners, and “close contacts” are at highest risk of transmission. Formerly, the CDC defined “close contact” to be a contact within six feet, for 15 consecutive minutes or more.  These 15 consecutive minutes were based on an understanding of sufficient viral load to transmit the disease.  The former guidance was released before CDC’s mask guidance and made no mention of facemasks. As a result, employers and contact tracers could infer that “close contact” meant unmasked contact.

However, on October 21, 2020, the CDC updated its definition of “close contact” to mean “someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.”  Now, “cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation.”

This is a large shift for employers and contact tracers, and will require increased resources to help identify contacts over 15 minutes cumulatively in a 24-hour period and will significantly reduce the workforce available to employers. For example, CDC’s new definition could mean that a person who had thirty separate 30-second interactions with a COVID-19 positive contact through a day would be considered a “close contact,” requiring them to quarantine.

The CDC has also removed the contacts’ use of facemasks as a consideration in the analysis, explaining that “because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE.  At this time, differential determination of close contact for those using fabric face coverings is not recommended.”  Accordingly, close contacts come from 15 or more cumulative minutes of exposure, regardless of facemask use.

To support this change in definition, the CDC provided evidence from an exposure in a correctional setting, indicating that an employee “had multiple brief encounters with six incarcerated or detained persons while their SARS-CoV-2 test results were pending.”  Subsequently, all six detained persons received positive COVID-19 test results. The employer then conducted a contact tracing investigation, using video surveillance footage to determine that the employee never spent 15 consecutive minutes within 6 feet of the detained persons. Subsequently, in the next few days, the employee became ill and also tested positive for COVID-19. During all interactions, the correctional officer wore a microfiber cloth mask, gown, and eye protection. In addition, the employee reported no other known close contact exposures to persons with COVID-19 outside work and no travel outside the state during the 14 days preceding the illness onset.

As recently blogged, the CDC has also expressed concerns about airborne transmission, where transmission can occur from virus particles suspended in the air.

Employers may need to revise their policies, procedures, and record-keeping analyses to be consistent with the CDC’s new guidelines. 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 Minh Vu and Julia Sarnoff

Seyfarth Synopsis: Congressmen Budd and Correa try to address website and mobile app accessibility in a new bill called the “Online Accessibility Act.”  

On October 2, 2020, Representatives Lou Correa (D-CA) and Ted Budd (R-NC) introduced a bill called the “Online Accessibility Act” (H.R. 8478) (the “OAA”) which would amend the ADA to add a new Title VI prohibiting discrimination by “any private owner or operator of a consumer facing website or mobile application” against individuals with disabilities. The OAA would also establish web accessibility compliance standards for consumer facing websites and mobile apps and create a mandatory administrative process that persons injured by allegedly inaccessible websites and mobile apps must use before they can file a lawsuit.

Here is a summary of the bill and our initial thoughts on the matter.

Key Provisions of the OAA

Compliance Standard. Under the bill, covered entities — defined as “any private owner or operator of a consumer facing website or mobile application” — can comply with the ADA with respect to their consumer facing websites and mobile applications by one of the two following ways:

(1) Substantial Conformance” with WCAG 2.0, Level A and AA. A website or mobile application would be considered compliant with the ADA if it is in “substantial compliance” with the Web Content Accessibility Guidelines (WCAG) 2.0, Level A and AA, or any subsequent update, revision, or replacement published by the World Wide Web Consortium (the international organization that develops the WCAG technical guidelines).

(2) “Alternative Means of Access” Acceptable. A private entity that owns or operates a consumer facing website or mobile app that is not in “substantial compliance” with WCAG 2.0 A and AA could comply with the ADA by providing “alternative means of access to individuals with disabilities that is equivalent to access the content available on such website or mobile application.”

The bill tasks the Architectural and Transportation Barriers Compliance Board (the “Access Board”) with the job of defining the terms “substantial compliance” with WCAG 2.0, Level A and AA, “alternative means of access,” and “consumer facing website or mobile application.”  The Access Board would also develop regulations for the implementation of the OAA’s compliance standard. The bill also directs the Access Board to “include flexibility for small business concerns.”

Exhaustion of Administrative Remedies Required Prior to Filing a Civil Lawsuit. As drafted, the bill would require aggrieved persons with a disability to exhaust their administrative remedies before bringing a civil action.

To do so, the individual must first provide notice to the owner or operator of the consumer facing website or mobile app of the fact that its website or mobile application does not comply with the WCAG 2.0 AA (or later version) (“accessibility standard”). The owner or operator would then have 90 days to bring its website or mobile app into compliance with the accessibility standard.

If the owner or operator fails to bring its website or mobile app into compliance with the accessibility requirements described above within the 90 day notice period, the individual may then file an administrative complaint with the Department of Justice (“DOJ”) within 90 days after the notice period expires. The DOJ would have 180 days to complete its investigation, at which point DOJ could initiate a civil enforcement action against the business in “any appropriate United States district court.”

The individual may only bring a lawsuit after the end of the 180-day period if the DOJ chooses not to do so. In a lawsuit brought by DOJ, the court may order compliance with law and, monetary damages (but not punitive damages), and assess a civil penalty not exceeding $20,000 for a first violation, or $50,000 for any subsequent violation. In considering civil penalties, the court would be required to consider “any good faith effort or attempt to comply” with the bill’s requirements.

Only if DOJ does not complete its investigation within 180 days, or if DOJ finds that there is a violation but decides not to initiate its own enforcement action, may an individual file a private civil lawsuit against the owner or operator for non-compliance with the ADA. The bill explicitly states that this civil action is “the sole and exclusive remedy for any person aggrieved by the failure of any consumer facing website or mobile application to meet the requirements” of the Act.

Our Initial Observations.

  • The definition of a “consumer facing website” as “any website that is purposefully made available to the public for commercial purposes” is rather vague. Would it apply to a website or mobile app that sells goods or services only to other businesses, for example?
  • The bill would apply to a private entity that is an “owner or operator of a consumer facing website.”   This language would seem to cover companies that host or maintain websites on their platforms for private businesses. Thus, the OAA, if enacted, could cover more entities than just public accommodations that are currently the targets of website and mobile app accessibility lawsuits.
  • Although the DOJ can obtain injunctive relief, damages, and a civil penalty in an enforcement action, the bill does not say what relief would be available to a private litigant. In addition, the maximum civil penalty that can be obtained by the DOJ under this new Title VI would be significantly less than the maximum for other types of discrimination under Title III of the ADA (e.$96,384.00 for a first violation and $192,768 for a subsequent violation).
  • The administrative process contemplated by the OAA would put a new and significant burden on the DOJ, which would have to investigate all complaints.
  • The bill’s statement that its remedies are the “sole and exclusive remedy” for aggrieved persons raises questions as to whether individuals would be prohibited from filing lawsuits to enforce state and local laws concerning the accessibility of websites and mobile applications.
  • The bill leaves open the question of how long a “grace period” covered entities will have to come into compliance with its requirements following the issuance of regulations by the Access Board.
  • The bill contains no defenses for covered entities, such as technical infeasibility, undue burden, and/or fundamental alteration.

Response to Bill by Disability Rights Advocates.

Disability rights advocates do not seem enthusiastic about the bill.

Some advocates say that the more recent WCAG 2.1 should be the standard for compliance, not WCAG 2.0. They also oppose an allowance for alternative means of access to online content. Advocates have also expressed concern that the requirement to exhaust administrative remedies would limit the right of disabled people to enforce the ADA through private lawsuits. Furthermore, the Act could prohibit individuals from enforcing state and local disability access rights laws. Additionally, advocates believe that limiting the Act to websites and mobile apps puts at risk their efforts to use the ADA to increase accessibility of other technologies such as kiosks and employee software.

What’s Ahead?  

Past attempts to amend the ADA to address the concerns of private entities faced with a deluge of lawsuits (e.g. the ADA Education and Reform Act and the ADA Notification Act) have not gained much traction because they did not receive support from disability rights advocates. However, we think both businesses and advocates would like to see clear legal requirements on this issue rather than the confusing and constantly evolving patchwork of court decisions that exists today. Thus, the bill is certainly a step in the right direction.

By John Ayers-Mann and Daniel B. Klein,

Seyfarth Synopsis: On September 29, Massachusetts Governor Charlie Baker issued an Executive Order outlining the process for “lower risk communities” to advance to Step Two of Phase Three of the Commonwealth’s reopening plan. On September 30 and October 1, Massachusetts published updated guidance for businesses in several sectors across the State in accordance with the Governor’s Order. 

On September 29, Massachusetts Governor Charlie Baker  issued Executive Order 51, outlining the process for “lower risk communities” to advance to Step Two of Phase Three of the Commonwealth’s reopening plan. Under the Governor’s Order, communities with an average daily COVID-19 incidence rate of 8 or fewer per 100,000 residents will be classified as “lower risk communities.”

In accordance with the Governor’s Order, on September 30 and October 1, the Commonwealth issued updated sector-specific reopening guidance for businesses moving into Step Two of Phase Three, effective October 5. The Commonwealth issued updated guidelines for the following sectors: retailers, lodging operators, arcades and other outdoor recreational facilities, fitness centers, indoor and outdoor events, golf facilities, and close contact personal services. Notable changes to the sector specific guidelines include:

  • Retailers in lower risk communities are permitted to open fitting rooms in all retail stores within such lower risk communities. Under prior guidance, retailers were only permitted to open fitting rooms if the fitting rooms were necessary for their operations.
  • The new guidance allows lodging providers to resume providing non-essential amenities such as coffee, guest-facing water, and coat rooms. Valets must also provide hand sanitizer and must use hand sanitizer before and after parking vehicles.
  • Fitness centers in lower risk communities are permitted to operate with increased capacity. Fitness center customers are no longer required to wear face masks while engaging in strenuous activity, provided that they can remain 14 feet apart from other customers during exercise. Attendees of group exercise classes must also maintain 14 feet of social distance during exercise, unless physical barriers are installed, in which case 6 feet of social distance must be maintained.
  • The updated guidance for arcades and other outdoor recreation businesses permits businesses in lower risk communities to operate certain activities with greater capacity, including batting cages, driving ranges, bowling alleys and others. In addition, businesses in lower risk communities that operate roller skating rinks, trampolines, obstacle courses, laser tag arenas, and escape rooms are permitted to resume operations.
  • Outdoor events in public settings within lower risk communities are permitted to take place with up to 100 attendees. For outdoor gatherings involving more than 50 attendees, the event organizers must notify the local Board of Health one week prior to the event. Notice to the local Board of Health must include the location and time of the planned event, the name and contact information of the event organizer, and the number of anticipated attendees. Attendees of any indoor or outdoor event must maintain 6 feet of physical distance between other attendees not within the same household.

We will continue to keep you apprised of any other significant developments in or changes to the Commonwealth’s sector-specific guidance.

Those with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Pamela Q. Devata and Jennifer L. Mora

Seyfarth Synopsis: On September 15, 2020, Hawaii Governor David Y. Ige signed Senate Bill 051, which narrows the scope of convictions that employers can use for hiring and other employment-related decisions. The new law is effective immediately.

In 1998, Hawaii became the first state to “ban the box,” prohibiting a private employer from inquiring about a job applicant’s criminal history until the employer has made a conditional offer of employment. Up until now, the state also made it unlawful for an employer to consider an applicant or employee’s conviction record unless the record was less than 10 years old, excluding periods of incarceration. And, those records can only disqualify a person from employment if the employer can show the record has a “rational relationship” to the duties and responsibilities of the position in question.

This year, however, the state legislature noted that this 10-year lookback period “may continue to facilitate employment discrimination against individuals who have a criminal history, but who have long since paid their debt to society and pose little to no risk to an employer or the public.” Thus, the legislature determined it appropriate to shorten the 10-year lookback period to “reduce unnecessary employment discrimination against individuals with old and relatively minor conviction records, in furtherance of economic self-sufficiency, and to reduce crime and recidivism rates.”

To this end, effective September 15, 2020, employers in Hawaii now may only consider felony convictions that occurred in the most recent seven years and misdemeanor convictions that occurred in the most recent five years (both excluding any periods of incarceration). The law still requires employers to allow applicants or employees to present documentary evidence of their date of release from incarceration if they disagree with the period of incarceration reported to the employer. Importantly, the record still must bear a “rational relationship” to the job in question in order to be disqualifying.

The law contains numerous exceptions, including for certain schools, healthcare institutions, financial institutions, insurance institutions, and many others.

Employers located in Hawaii should ensure that their screening and other hiring practices comply with the amended law immediately. Employers also should continue to be mindful of other laws regulating criminal records checks and screening policies, including state and local employment and ban-the-box laws and the growing body of laws restricting employer use of credit reports and other credit history information in hiring and other employment decisions. Moreover, given that we continue to see class actions filed against employers over the Fair Credit Reporting Act’s hyper-technical requirements, employers also would be well-advised to review and adit their disclosure and authorization forms and stay abreast of legal updates in this area of the law.

By Leon Rodriguez and Emily J. Miller

Seyfarth Synopsis: Consistent with Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972, the U.S. Department of Health and Human Services (HHS) recently published recommendations for preventing and responding to sexual harassment for entities that receive federal financial assistance from HHS. In its “Effective Practices for Preventing Sexual Harassment” document, HHS makes specific recommendations for those working in university health and medical settings related to performing patient medical examinations.

On Friday, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services published a document containing “voluntary standards” and “suggested practices” geared toward preventing sexual harassment in entities that receive federal financial assistance from HHS. (The document opens with a clear disclaimer that it is “not guidance and is not a final agency action…”) The document, “Effective Practices for Preventing Sexual Harassment,” outlines steps that HHS funding recipients could take to ensure compliance with Title IX of the Education Amendments of 1972 (Title IX).

Title IX prohibits sex discrimination, including sexual harassment, in education programs and activities that receive federal financial assistance. Although most commonly discussed in the context of enforcement by the OCR Department of Education (DOE), all federal agencies that fund education programs or activities are required to enforce Title IX – including HHS.

Additionally, under Section 1557 of the Affordable Care Act (Section 1557), health programs and activities that receive federal financial assistance cannot discriminate on the basis of race, color, national origin, disability, age, or sex. Section 1557 takes its prohibition against sex discrimination from Title IX. Typically, entities found in violation of Title IX or Section 1557 are invited to take corrective action either pursuant to a closure or, in more serious cases, pursuant to resolution agreements with the enforcing federal agency. Absent voluntary corrective action, the affected entity may face withdrawal of all its federal financial assistance.

For instance, a little over a year ago, HHS entered into a public, voluntary resolution agreement with Michigan State University (MSU), the MSU HealthTeam, and MSU Health Care, Inc. stemming from its own investigation following the criminal investigation and convictions of Lawrence “Larry” Nassar.

Some entities, like universities or academic medical centers, may receive funding from both the DOE and HHS, and those entities are responsible for complying with the Title IX Regulations from each agency – though in the Effective Practices document, HHS specifically states that its Regulations do not supersede the DOE Regulations when both apply. (And there is some interplay between the two. For instance, HHS specifically states in its Effective Practices document that it applies the DOE’s definition of sexual harassment from its May 2020 final rule.)

The Effective Practices document explains that, under HHS Title IX Regulations, recipients of HHS funding must publish contact information for the individual(s) responsible for coordinating the entity’s compliance with Title IX. In addition, recipients must “adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging sexual harassment in a recipient’s education and student health programs.”  The document further recommends that recipients evaluate their programs and activities to ensure that they “do not deny or limit an individual’s ability to participate in or benefit from the program at issue on the basis of sex.”

Beyond synthesizing some responsibilities under the HHS Title IX Regulations, the Effective Practices document splits its recommendations into three parts: (1) Effective Practices in HHS-Funded Programs Generally; (2) Effective Practices Specific to University Health and Medical Settings; and (3) Effective Practices Specific to Research Settings.

On the whole, the general section offers broad considerations for recipients to make regarding implementation of effective policies and procedures geared toward sexual harassment prevention and response, dissemination of information about policies, procedures, resources, and responsibilities, prevention and response education, and evaluation of these sexual harassment prevention and response efforts. For example, HHS suggests that recipients implement policies that define sexual harassment using “clear language” and provide “easy to understand relevant examples.” The section on Research Settings is similarly general – making recommendations as to training and notifying individuals of prohibited conduct and options for filing a complaint.

In the University Health and Medical Settings section, HHS is more specific. First, HHS reminds recipients that student health facilities, whether located on or off campus, are covered by Title IX. Here, HHS offers three concrete examples of protective protocols for recipients to consider taking in these environments. The first recommendation is that patients bring a support person into the exam room – or have a same-sex member of the health care team present – for the patient’s examination. This recommendation is similar to one of the key terms of the Michigan State University resolution agreement, and is likely to become a de facto requirements for Title-IX covered health care entities.

The second suggestion is that, before undertaking an examination, providers share detailed information about what the patient can expect during the examination – and that providers obtain the patient’s informed consent to perform the examination. Finally, HHS recommends that providers ask patients to remove as little clothing as necessary – for the least amount of time necessary – to perform the examination.

HHS’s publication of this document, taken together with the MSU resolution agreement, means that we can anticipate further OCR enforcement activity in this space. Education programs and activities that receive funding from HHS, particularly those operating in University Health and Medical Settings, should review the document and consider the recommendations in light of their own current policies and practices. In the event of an OCR investigation, covered entities are likely to find that these are seen as requirements rather than recommendations.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team or the Workplace Policies and Handbooks Team.

Seyfarth Synopsis: Here is quick review and summary of our employment law blogs posted over the last two months, as a way to keep you connected and aware of our latest thought leadership. As always, readers are encouraged to reach out to our authors with any comments or questions raised from the blog.

Mental Health Awareness and Innovation – A Silver Lining?

Seyfarth Synopsis: The novel coronavirus pandemic has put a spotlight on the mental health of workers. This blog was originally posted in Seyfarth Australia’s Workplace Law & Strategy blog.

Rare First Circuit Decision Invalidating NDA and Overturning Misappropriation Verdict Serves as a Cautionary Tale

Seyfarth Synopsis: In a rare appellate decision on enforceability of non-disclosure agreements and a plaintiff’s burden to establish the existence of trade secrets, the First Circuit recently overturned a district court summary judgment order and trial verdict. This decision serves as an important reminder for both those who litigate trade secrets claims and those who draft restrictive covenants agreements.

7th Circuit has Spoken: Two Pound Lifting Limit, and Other Restrictions Can be an Unreasonable Accommodation under the ADA

Seyfarth Synopsis: Athleisure company is rightfully able to terminate the employment of individual with physical limitations, despite that individual’s ability to delegate such functions of her position. See Tonyan v. Dunham’s Athleisure Corp., No. 19-2939 (7th Cir. 2020).

Not a Typo: Georgia Enacts a Stringent Employment Law

Seyfarth Synopsis: Some states are known for setting high legislative bars with respect to employment rights and protections (looking at you, California). The State of Georgia isn’t one of them. Earlier this month, however, the Peach State broke its mold by enacting one of the most stringent lactation break laws in the country.

7th Circuit Focuses On Evidence To Avoid Distraction In Associational Discrimination Case

Seyfarth Synopsis: On August 18, 2020, the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment on a plaintiff’s associational disability discrimination and retaliation claims, finding the plaintiff failed to support his allegations with sufficient evidence. The decision prevents plaintiffs with associational discrimination claims from relying on unsupported allegations of “distraction” to explain their poor performance, and reinforces  a plaintiff’s obligation to present evidence establishing adverse employment actions in support of their discrimination and retaliation claims.

CDC Guidance on Workplace Violence in Retail Associated with COVID-19, Customer Face Mask Enforcement

Seyfarth Synopsis: The CDC published guidance aimed at assisting retail and service companies in limiting workplace violence against or involving their employees that may be associated with enforcing face mask mandates and other COVID-19 precautions.

Title VII, Section 1981, and the Limits of Protected Activity

Seyfarth Synopsis: Managing employees engaged in potentially protected activity can be tricky when disciplinary and other normal employment actions might be misconstrued as unlawful retaliation. A recent decision from the United States Court of Appeals for the Eleventh Circuit, however, makes clear that employers may manage employees engaged in protected activity, and that an employee can lose statutory protection when engaging in otherwise protected activity in an unreasonable manner.

EEOC Update: The Commission Offers Updated COVID-19 Guidance To Address Additional ADA Considerations

Seyfarth Synopsis: On September 8, 2020, the EEOC updated its Technical Assistance Q&A webpage to address 18 new questions regarding the application of the Americans With Disabilities Act (“ADA”), the Rehabilitation Act, and other EEO laws to employers continuing to face the struggles of the COVID-19 pandemic. The latest guidance addresses issues such as COVID-19 testing and screening, confidentiality, and reasonable accommodations. The latest guidance is a critical “must read” for all employers with employees in the workplace or providing alternative work arrangements.

Virtual Panel Discussion – Employee Political Speech at Work and on Social Media: Legal & Practical Considerations

Seyfarth Synopsis: Because of the current political and social climate, employers are seeing increased political activity by employees at work and on social media—from wearing masks with political and social messages to posting on Facebook about protests and elections. Across the country, employers face unique challenges in managing political expression. Our panel of experts will discuss the key practical and legal considerations, and broader social implications, as employers attempt to navigate this era of polarized political opinions and look ahead towards the November elections.

Pandemic Telework Does Not Create Presumptive Right to Telework Post-Pandemic According to EEOC

Seyfarth Synopsis: With telework seeming like the new normal for many, employers and employees have been wondering whether pandemic telework will be seen as creating a presumptive right to post-pandemic telework as a reasonable accommodation for employees with disabilities. On September 8, 2020, the EEOC answered “no” to this burning question in its updated “Technical Assistance Questions and Answers” on issues dealing with COVID-19 and the ADA and other equal employment opportunity laws.

Cal/OSHA Cites Food Manufacturer and its Staffing Firm for Failing to Protect Hundreds of Workers from COVID-19 Exposure

Seyfarth Synopsis: Cal/OSHA, in a press release, noted that it recently issued citations to a food manufacturer and its temporary employment agency, with over $200,000 in proposed penalties to each employer for “failing to protect hundreds of employees from COVID-19 at two plants.”

CalPecs – COVID-19 Exposure Notification Requirements Coming To A Workplace Near You

Seyfarth Synopsis: As California’s legislative session comes to an end, a wave of new COVID-19 related laws that impact employers are being signed into law. On September 17, 2020, Governor Newsom signed AB 685, which will require employers to provide specific notices to employees exposed to COVID-19 within one business day of becoming aware of the exposure, and impacts COVID-19 related alleged Cal/OSHA violations.

Workers’ Compensation Liability Is Catching In California

Seyfarth Synopsis: Senate Bill 1159 was signed into law by Governor Newsom on September 17, 2020, and went into effect immediately. Under the new law, if employees test positive for COVID-19 under specific circumstances, there is a rebuttable presumption that their exposure occurred at the workplace. Unless rebutted, this presumption creates a compensable injury for purposes of qualifying for workers’ compensation benefits. SB 1159 also creates reporting requirements for employers through January 1, 2023.

By Matthew Graffigna and Robert E. Buch

Seyfarth Synopsis: Senate Bill 1159 was signed into law by Governor Newsom on September 17, 2020, and went into effect immediately. Under the new law, if employees test positive for COVID-19 under specific circumstances, there is a rebuttable presumption that their exposure occurred at the workplace. Unless rebutted, this presumption creates a compensable injury for purposes of qualifying for workers’ compensation benefits. SB 1159 also creates reporting requirements for employers through January 1, 2023.

Who Is Eligible For The New Workers’ Compensation Presumption?

As we previously reported, Executive Order N-62-20 created a rebuttable presumption surrounding certain COVID-19 workplace exposures. SB 1159 codifies Executive Order N-62-20 in new Labor Code section 3212.86. Under this section, there is now a statutory rebuttable presumption of industrial exposure (i.e., the assumption that someone got sick at work) for workers who tested positive or were diagnosed with COVID-19 within 14 days after performing services at their place of employment at their employer’s direction between March 19, 2020, and July 5, 2020. To be entitled to the presumption, an employee diagnosed with COVID-19 must have had the diagnosis confirmed by testing within 30 days of the diagnosis.

Since Governor Newsom’s Executive Order sunset on July 5, 2020, employers have been left in the dark as to whether and how its requirements might be extended. Now, the answer is clear—SB 1159 created a new framework for this rebuttable presumption that went into effect immediately on September 17, 2020.

Under the new Labor Code section 3212.88, there is a rebuttable presumption of workers’ compensation coverage when an employee tests positive for COVID-19 within 14 days after performing services at their place of employment at the employer’s direction if the positive test occurs on or after July 6, 2020, and the positive test occurred during a period of an “outbreak” at the workplace.

However, there is a slightly different avenue for people working in healthcare or in public safety positions. For these employees to qualify for the presumption, they must only test positive for COVID-19 within 14 days of performing services at their place of employment on or after July 6, 2020 (regardless of whether there has been an “outbreak”).

Also note that across the board, employees must exhaust all available supplemental COVID-19 sick leave pay, such as the new CA COVID supplemental sick pay, before receiving temporary disability benefits from the worker’s compensation carrier.

What Does It Mean To Have An “Outbreak”?

For purposes of this new law, an “outbreak” is when, within 14 days, any of the following occurs at a place of employment:

  1. The employer has 100 employees or fewer at a specific place of employment, and four employees test positive for COVID-19.
  2. The employer has more than 100 employees at a specific place of employment, and 4% of the workforce at that place test positive for COVID-19.
  3. A specific place of employment is ordered to closed because of COVID-19.

(Note that this definition of “outbreak” is specific to this workers’ compensation presumption. The California Department of Health and other state and local laws use different definitions of “outbreak” for different purposes.)

But I Have A Huge Facility—What Does “Specific Place Of Employment” Mean?

Many employers have sites that cover several acres, encompassing multiple buildings, fields, and processing floors and departments. In these instances, the workers’ compensation liability presumption might not apply if someone works in a different or distinct part of a facility from any other employees who may have contracted COVID-19, because it may not be considered the “specific place of employment” under the new statute.

For purposes of the new law, a “specific place of employment” is defined as “the building, store, facility, or agricultural field where an employee performs work at the employer’s direction.” The employee’s home or residence is excluded unless the employee provides home health care services to another individual at the employee’s home or residence. (And, if that is the case, the home office must be the exclusive location where the employee performs their work.)

So, if an employer has one employee test positive in Building A, and another test positive in Building B on the opposite side of campus (and they don’t otherwise share facilities, like a break room or restroom), the employer may have a good argument the presumption does not apply.

If My Employee Tests Positive For COVID-19, What Do I Have To Do?

In addition to other requirements that may be in place under state or local laws, SB 1159 creates employer reporting requirements. An employer that “knows or reasonably should know” that an employee has tested positive for COVID-19 must report to the workers’ claims administrator in writing—via email or fax—all of the following within three business days:

  1. An employee has tested positive. But the employer must not reveal any personally identifiable information about the employee unless the employee has asserted the infection is work-related or has filed a claim form pursuant to Section 5401.
  2. The date that the employee tested positive, which is the date the specimen was collected for testing.
  3. The specific address of the specific place of employment during the 14-day period preceding the date of the positive test.
  4. The highest number of employees who reported to work at the specific place of employment during the 45-day period preceding the last day the employee worked at each specific place of employment.”

Employers also must retroactively report to their carriers any employees who tested positive on or after July 6, 2020, and prior to September 17, 2020.

Following these reporting requirements is of paramount importance—employers that intentionally submit false or misleading information or fail to submit information when reporting can trigger civil penalties in amounts up to $10,000.

Workplace Solutions

The laws surrounding workers’ compensation and COVID-19 infections have been changing rapidly. If you have questions about the current state of reporting requirements or what to do if you have employees that test positive, then please contact your favorite Seyfarth attorney.

Edited by Coby Turner and Elizabeth Levy

By Ilana R. Morady and Elizabeth M. Levy

Seyfarth Synopsis: As California’s legislative session comes to an end, a wave of new COVID-19 related laws that impact employers are being signed into law. On September 17, 2020, Governor Newsom signed AB 685, which will require employers to provide specific notices to employees exposed to COVID-19 within one business day of becoming aware of the exposure, and impacts COVID-19 related alleged Cal/OSHA violations.

When we last we blogged about Assembly Bill 685, it was awaiting Governor Newsom’s approval, but it was signed into law on September 17, 2020. Under the new law, which will be in effect from January 1, 2021, until January 1, 2023, employers must comply with specific notification requirements any time there has been a potential COVID-19 exposure in the workplace. AB 685 also enhances Cal/OSHA’s enforcement abilities in the COVID-19 realm.

COVID-19 Exposure Notification Requirements

  • Who Do I Need To Notify?

Any time an employer is put on notice that a “qualifying individual” (someone who tested positive for or was diagnosed with COVID-19, or is subjected to an isolation order) was in the workplace while they were considered potentially infectious, the employer is subject to notice requirements.  First, notice must be provided to individuals who “may have been exposed” in the workplace within one business day.  This notice must be sent to employees, subcontractors, and union representatives.

Employers with multiple buildings or floors do not necessarily need to provide notice of potential exposure throughout the entire company— the notice requirement is limited to the specific “worksite” the qualifying individual entered, such as “Building A” or “Field 1,” and not necessarily the entire company or facility site.

Employers are also required to notify the local public health department within 48 hours of becoming aware of a COVID-19 workplace “outbreak,” as defined by the California Department of Public Health. (Note that the California Department of Public Health currently defines an outbreak as three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households. However, as with all things COVID-19 related, local definitions may vary and guidance may be subject to change, so employers should continue to regularly check on the most up to date applicable information.)

When notifying the local health department, employers should be prepared to report the number of COVID-19 cases at the worksite, as well as names, occupations and worksites of qualifying individuals. Employers required to report an outbreak must also notify the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.

  • What Information Does The Notification Need To Include?

The notice must inform individuals who were at the workplace during the qualifying individual’s infectious period that they “may have been exposed to COVID-19.” This notice also needs to provide information to all employees “who may have been exposed” about benefits to which employees may be entitled under federal, state, or local law, including workers’ compensation, paid sick leave, negotiated leave, and anti-retaliation and anti-discrimination protections.

In addition, all employees must be notified about the disinfection and safety plans that the employer plans to implement and complete per CDC guidelines.

  • How Do I Need To Distribute The Notice?

The written notification of potential exposure must be sent in a manner normally used by the employer to communicate employment-related information (including personal service, email, or text), must be in both English and the language understood by the majority of the employees, and must protect employee privacy (i.e., not disclose the names of qualifying individuals). Non-employee individuals entitled to this notice may be notified in a similar manner.

Also note employers are required to maintain records of the written notification for at least three years.

  • Are There Any Exceptions?

The “outbreak” reporting requirement will not apply to “health facilities” as defined in the Health and Safety Code. In addition, neither the “outbreak” reporting nor the notification-of potential-exposure requirement will apply to employees who, as part of their duties, conduct COVID-19 testing or provide direct care to individuals known to have tested positive for COVID-19, or are in quarantine or isolation—unless the qualifying individual is an employee at the same worksite.

Cal/OSHA Enforcement

Cal/OSHA has long had the authority to shut down a worksite if it determines the worksite presents an “imminent hazard.” However, AB 685 adds Section 6325(b) to the Labor Code, which reiterates that the Division of Occupational Safety and Health can close down a business if it deems there is an “imminent hazard” related to potential COVID-19 transmission.

AB 685 also exempts the Division from sending notices of intent to issue serious citations (as is normally required) when the alleged hazard is COVID-19 related. Normally, if Cal/OSHA plans to issue a serious citation, it first sends a notice of intent, and employers have the option of responding with evidence. But now, if Cal/OSHA intends to issue a serious citation for an alleged COVID-19 hazard, it need not issue a notice of intent or consider the employer’s evidence.

Workplace Solutions

Navigating ever-changing COVID-19 related laws remains a significant challenge, particularly in California. Seyfarth continues to keep employers updated in its COVID-19 Resource Center. If you have questions or concerns regarding which types of regulations may apply to your workforce, and how to implement them, reach out to your favorite Seyfarth attorney.

Edited by Coby Turner