By A. Scott Hecker, Brent I. Clark, James L. Curtis, Mark A. Lies, Adam R. Young, Patrick D. Joyce, Daniel R. Birnbaum and Craig B. Simonsen

Seyfarth Synopsis: OSHA has withdrawn its private employer COVID-19 Vaccination and Testing ETS, effective Tuesday, January 25, 2022.

On Tuesday, January 25, 2022, the federal Occupational Safety and Health Administration (“OSHA”) announced the withdrawal of its COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”). The Federal Register posted an advanced copy of the notice for public inspection ahead of its official publication on January 26, 2022.

OSHA’s ETS had a long and winding road to withdrawal, having been stayed almost immediately by the U.S. Court of Appeals for the Fifth Circuit ­­– the rule, published on November 5, 2021, was enjoined the next day. The U.S. Court of Appeals for the Sixth Circuit lifted that stay, which led petitioners to file emergency applications with the U.S. Supreme Court to re-stay the ETS. After hearing argument on those applications on January 7, 2022, the U.S. Supreme Court re-stayed the ETS in an opinion issued on January 13.

No longer able to enforce the ETS, OSHA needed to decide whether to continue to pursue a decision on the merits before the Sixth Circuit. Even if OSHA received a favorable ruling before the Sixth Circuit, long-term success seemed unlikely, given the Supreme Court’s denunciation of the ETS’s overbroad scope. By law, the ETS expires on May 5, 2022, leaving little time to conclude merits proceedings before both the Sixth Circuit and the Supreme Court. Further, OSHA may be concerned about the Supreme Court issuing a merits decision that may limit OSHA’s ability to issue new ETSs in the future.

In the end, OSHA determined to pursue alternative avenues to address alleged COVID-related hazards. OSHA explicitly advised that it “is not withdrawing the ETS as a proposed rule,” meaning it could continue to pursue a broad, permanent COVID-19 or infectious disease standard. A permanent COVID-19 or infectious disease standard would entail a lengthy and contentious notice and comment period, and likely more litigation. But, for now, it appears “[t]he agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard,” so the likelihood of any COVID-19 standard based on the withdrawn ETS is unclear.

We expect OSHA to continue inspecting workplaces for COVID-19 hazards and citing employers for violations of existing OSHA standards that could implicate COVID (e.g., PPE, respiratory protection, sanitation, bloodborne pathogens, employee access to medical and exposure records, and recordkeeping/reporting) or use the OSH Act’s General Duty Clause, all while continuing to execute on its COVID-19 National Emphasis Program. OSHA may also pursue a new, more targeted emergency standard, which the Supreme Court seemed to sanction in its January 13, 2022 opinion.

The COVID-19 landscape continues to shift, so please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team for more information on this or any related topic. You can also receive additional insights from Seyfarth subject matter experts by registering for the Firm’s January 27, 2022 webinar, “What Now? COVID-19 Vaccination’s Ever-Shifting Compliance Landscape.”

By Ronald S. Gart and Christopher A. Sickles

Seyfarth Synopsis: Pursuant to the Mayor’s Order 2021-148 (the “Order”), beginning on January 15, 2022, the District of Columbia has required certain businesses to verify that all patrons aged 12 and over have received at least one dose of the COVID-19 vaccine. Beginning on February 15, 2022, all patrons must show proof that they have received at least two doses of the COVID-19 vaccine.

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Businesses subject to the Order are required to (i) display signage alerting patrons of the vaccination requirement (sample signage is available at vaxdc.dc.gov) and (ii) verify its patrons’ vaccination status before allowing entry. Patrons may furnish the following information to verify vaccination status: (i) a CDC issued vaccination card (or a photocopy or digital copy thereof); (ii) a record of immunization from a health care provider or public health authority; (iii) a report from a COVID-19 verification mobile application (e.g., VaxYes, Clear, Excelsior, MyIR); or (iv) a World Health Organization Vaccination Record. Per the Order, businesses do not need to retain a patron’s record of vaccine status or a record of the verification process.

Covered Establishments

Pursuant to the Order, the following types of businesses must adhere to the aforementioned requirements:

  • Indoor food and drink establishments (such as restaurants, nightclubs, taverns, food halls/courts, breweries, wineries, and distillery tasting rooms, seated dining halls, restaurants, and cafes located in museums, libraries, hotels, and other public venues);
  • Indoor cultural and entertainment establishments (such as concert/live entertainment venues, sporting venues, movie theaters, pool and billiard halls, bowling alleys, cigar and hookah bars, and adult entertainment venues);
  • Indoor exercise and recreational facilities (such as gyms and fitness studios); and
  • Indoor event and meeting establishments (such as hotel meeting rooms, banquet halls, conference center meeting facilities, event/banquet halls located in museums and libraries, convention centers, auditoriums, and shared work facilities when hosting events).

Establishments Excluded from the Order

There are several ambiguities with respect to the types of establishments that are subject to the Order. For example, non-public fitness centers can typically be found in hotels, office buildings, and apartments. As such, are these uses–which could be considered gyms or fitness studios– subject to the vaccine entry mandate? In an effort to answer such questions and provide the public with further clarity on the vaccination entry requirement, DC Health has created and published the Guidance and a FAQ (the “FAQ”). According to the FAQ, gyms and fitness facilities operating for the sole use of individuals residing or working in that specific building are exempt from the vaccine entry mandate. The FAQ lists several other types of establishments which are deemed to be exempt from the vaccine verification requirement (many of which are explicitly included in the Order), including the following:

  • Retail establishments;
  • Grocery stores, farmer’s markets, and food establishments that provide charitable food services;
  • Houses of worship;
  • Hotels, except meeting rooms, ballrooms and hotel restaurants and bars;
  • Homeless shelters and other human services facilities;
  • Health care facilities and pharmacies;
  • Private meeting spaces in office buildings or residential buildings;
  • Gyms and Fitness Facilities operating for the sole use of individuals residing or working in that specific building; and
  • Law enforcement buildings and government offices such as the Department of Motor Vehicles.

The Order is intended to cover venues and establishments where people typically gather, and the guiding principle for determining whether the mandate applies to a particular establishment is whether that establishment is open to the general public or whether outsiders who typically would not be present at the venue are invited in (e.g., an event held within a company’s conference space that is open to outside registrants).

It is important to note that if an establishment that is otherwise exempt from the vaccine entry mandate conducts a non-exempt activity, the vaccine requirement will apply. For example, if a house of worship is rented for a non-religious purpose, a museum hosts a gala, or a public library or a retail bookstore hosts an indoor event, proof of vaccination will be required for entrants.

Individuals Excluded from the Order

Expressly excluded from the mandate are individuals that only briefly enter an establishment (for example, to use the restroom or collect a carry-out order) and individuals who are either medically exempt or unable to receive the vaccine out of a sincerely held religious belief. Furthermore, the vaccine requirement does not apply to employees of covered establishments, just the patrons thereof.

Penalties for Non-Compliance

As set forth in the FAQ, relevant District agencies, such as DC Health, DC Alcoholic Beverage Regulation Administration, and DC Department of Consumer and Regulatory Affairs, will conduct spot checks to ensure that businesses are appropriately complying with the Order. Businesses that fail to make good faith efforts to comply will be subject to enforcement actions, including civil fines of not more than $1,000 and/or suspension or revocation of business licenses.

In accordance with the above, DC Alcoholic Beverage Regulation Administration recently released a citation schedule for violations of the Order by alcohol-licensed establishments (such as bars and restaurants), which are front and center in terms of establishments affected by the vaccine entry mandate. Consequences for violations of the Order for these establishments are as follows:

  • First offense: Verbal Warning
  • Second offense: Written Warning
  • Third offense: $1,000 fine
  • Fourth offense: $2,000 fine
  • Fifth or Subsequent offense: Investigative Report submitted to DC liquor board and subsequent hearing (the board has the power to suspend or revoke licenses)

As of today’s date, one establishment has already been cited for not following the requirements set forth in the Order. A list of establishments that have been issued warnings or citations for failure to comply with the Order will be published by DC Alcoholic Beverage Regulation Administration every Tuesday on an ongoing basis.

By Jennifer L. Mora

Seyfarth Synopsis: On January 14, 2022, the Supreme Court of New Hampshire reversed a trial court decision that dismissed a former employee’s complaint alleging his employer failed to consider whether it could reasonably accommodate his use of marijuana for medicinal purposes. New Hampshire joins a growing number of other jurisdictions that have found an employer might have to consider medical marijuana use as a reasonable accommodation.

The former employee alleged that he suffered from Post-Traumatic Stress Disorder and that his physician had recommended that he use marijuana to treat his PTSD. He enrolled in the state’s therapeutic marijuana program and submitted to his employer a written request for an exception from its drug testing policy as a reasonable accommodation for his disability. The former employee advised that he had no intention of using or possessing during work hours or on the company’s premises. The employer denied the request and ultimately terminated him.

The former employee brought an employment discrimination claim alleging a failure to make a reasonable accommodation for his disability. The employer moved to dismiss, arguing that because marijuana is both illegal and criminalized under federal law, the requested accommodation was facially unreasonable. The trial court agreed with the employer and granted its motion. The former employee argued on appeal that the trial court erred in ruling that as a matter of law, an employer cannot be required to accommodate an employee’s use of medical marijuana to treat a disability under state law.

The Supreme Court of New Hampshire agreed with the former employee and reversed. Focusing on the text of the statute, the court agreed with the former employee that the New Hampshire disability and accommodation statute does not contain any language categorically excluding the use of medical marijuana as an accommodation. Rather, whether an accommodation for a medical marijuana user is reasonable is “intrinsically a factual determination” that “should be decided on a case-by-case basis depending on the facts of the case.” As a result, the court reversed and remanded.

New Hampshire is not alone in providing employment protections to applicants and employees using medical marijuana. In recent years, more states are passing laws, or their courts are interpreting existing laws, to protect medical marijuana users, including in Arizona, Connecticut, Delaware, Massachusetts, New Jersey, New York, and Rhode Island, among others. It is likely that list will grow.

Employers in all jurisdictions should exercise caution when dealing with applicants and employees using medical marijuana. Before taking any action against medical marijuana users, employers should review the laws of the states in which they operate and work with employment counsel to help navigate this complex and rapidly evolving area of the law.

By Ashley S. Jenkins and Minh N. Vu

Seyfarth Synopsis: Hotels have been fighting a tsunami of hotel reservations website lawsuits with good results so far.

In the past few years, a dozen or so plaintiffs represented by a handful of law firms have sued many hundreds of hotels for allegedly not providing enough accessibility information about their accessible rooms and common areas on their reservations websites, as required by ADA regulations. While some hotels have resolved these claims early, many have chosen to fight these suits, with some excellent results. Below are some highlights.

Center for Disability Access Lawsuits. As we’ve reported, a southern California firm named the Center for Disability Access a/k/a Potter Handy (CDA), has now filed over 565 of these cases with nine different plaintiffs. These plaintiffs insist that the ADA regulations require the disclosure of very specific details, down to detailed measurements, for some accessibility features in accessible rooms. Most hotels do not currently provide this degree of detailed information, based on guidance the U.S. Department of Justice (DOJ) issued when these regulations were first adopted.

So far there have been nearly ninety district court decisions rejecting these demands for detailed disclosures and dismissing these lawsuits. These courts have found that — based on the DOJ’s guidance — such a detailed list of disclosures is not required. The CDA has appealed four adverse decisions to the Ninth Circuit Court of Appeals, two of which are scheduled for oral argument on February 14, 2022.

Two recent decisions in these CDA lawsuits are noteworthy because they were dismissed on the ground of mootness rather on the merits like the others. In Langer v. Music City Hotel LP , U.S. District Judge Phyllis Hamilton of the Northern District of California held that a hotel’s voluntary modification of the accessibility information on its hotel reservations website successfully mooted the ADA Title III claim. The court dismissed the case and declined to exercise supplemental jurisdiction over plaintiff’s state law claims under California’s Unruh Act. Similarly, in Whitaker v. Montes, U.S. District Judge Edward Chen held that while defendants must prove that “the allegedly wrongful behavior could not reasonably be expected to recur” to establish that a case is moot, the hotel had met that heavy burden by taking prompt action to update the accessibility information on its website. “Although websites can easily be changed, it still took time, effort, and money for the Hotel to make that change, and now that the website information is up, there is little incentive for the Hotel to take it down,” the court reasoned.

Tenth Circuit Finds No Standing for Repeat Plaintiff Deborah Laufer. Plaintiff Deborah Laufer has filed at least 300 lawsuits in the past five years against hotels all over the U.S. alleging that they have not provided sufficient accessibility about their hotels on their reservations websites. The Tenth Circuit recently issued a very detailed decision in Laufer v. Looper holding that Ms. Laufer did not have standing to sue a hotel for insufficient accessibility information because she had no concrete plans to visit the town in which the inn was located or to book a room at the inn. Thus, the alleged lack of accessibility information on the website did not result in the “concrete injury” that is necessary for her to have standing to sue. The court explained: “[A] violation of a legal entitlement alone is insufficient under Spokeo and TransUnion to establish that Ms. Laufer suffered a concrete injury. Article III standing requires a concrete injury even in the context of a statutory violation. And that concrete injury must affect the plaintiff in a personal and individual way.” (citations and internal quotations omitted).

The Tenth Circuit’s analysis in Laufer reminded us of the California Court of Appeal’s decision in Thurston v.Omni in which it found that a plaintiff must demonstrate an intent to use a defendant’s services to have standing to bring a claim under the Unruh Act. The plaintiff there claimed that she had standing because she encountered a barrier on the defendant’s website that prevented her from using it. The Court of Appeals found this injury to be of no consequence for standing purposes because a jury had found that she had no intent to do business with the hotel.

***

There will be more decisions in cases alleging deficient accessibility information on reservations websites coming out this year. Decisions in the pending Ninth Circuit appeals – depending on what they say – will either put an end to hundreds of pending suits or encourage more lawsuits. Stay tuned for more developments.

By Adam R. Young, Patrick D. Joyce, A. Scott Hecker, Brent I. Clark, James L. Curtis, Benjamin D. Briggs, Mark A. Lies, Bradley D. Doucette, and Ilana R. Morady

Seyfarth Synopsis: On January 13, 2022, the Supreme Court stayed enforcement of OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”), pending further litigation in the U.S. Court of Appeals for the Sixth Circuit.  The Court asserted that OSHA has failed to show evidence of “grave danger” in many industries, and absolves employers of the requirement to ensure that unvaccinated employees engage in weekly testing. Separately, the Court voted to uphold the CMS mandate.

We previously published a legal update regarding the Supreme Court’s extraordinary Special Session where it held oral arguments addressing the Sixth Circuit’s decision to overturn the Fifth Circuit’s temporary stay of the ETS, pending a resolution on the merits.

In a 6-to-3 decision, the Supreme Court blocked the Biden Administration’s vaccine-or-testing rule for private businesses, a rule which requires virtually all employers with at least 100 employees to mandate workers be vaccinated or obtain a medical test at their own expense and time, as well as wear a mask in the workplace. The mandate applies to 84 million workers and, as the majority opinion asserts, is unlike anything Congress and OSHA have ever imposed.  The issue of the stay was before the Court, but not a final determination on the merits.  In reinstituting the stay, the Supreme Court called into question not only OSHA’s authority to issue a general standard, but rather to issue regulations affecting overall public health.

The majority’s decision turned on the reach of OSHA’s occupational jurisdiction versus a broader public health measure.  “Administrative agencies are creatures of statute,” and the Court found that OSHA possesses only the limited workplace-related authority that Congress provided, not the authority to oversee and control overall public health.  The Court held that the authority to order nearly 84 million Americans to either obtain a COVID-19 vaccine, or undergo weekly testing at their own expense was not within the everyday exercise of OSHA’s power.  The majority’s opinion recognized the risk posed by COVID-19 but argued that COVID-19 is a universal risk and not specific or consistent across all covered workplaces.  Therefore, even though COVID-19 presents a risk within the workplace, the Court refused to extend the Agency’s power to allow it to regulate overall public health of employees.

Justices Gorsuch, Alito, and Thomas issued a concurring opinion finding that the ETS was unlawful as a Major Question that the constitution left to Congress to decide. The concurrence thereby focuses on the constitutionality of the ETS, rather than its permissibility under the OSH Act.  If this reasoning makes its way into the decision on the merits, it may be used to invalidate other OSHA standards and federal agency decisions.

Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented, arguing OSHA does have authority to deal with emergency conditions, and that the stay limits the Agency’s response to protect worker safety from a disease that continues to mount.

Separately, in a 5-to-4 decision, the mandate for the Centers for Medicare & Medicaid Services was allowed to take effect.  This mandate requires vaccines for health care workers at hospitals and other medical facilities that participate in certain Federal programs.  Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett dissented.

What Does This Mean for Employers?

The ETS remains stayed and returns to the Sixth Circuit for the decision on the merits.  The end of the per curiam opinion details the upcoming process:

OSHA’s COVID–19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402, is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the Sixth Circuit and disposition of the applicants’ petitions for writs of certiorari, if such writs are timely sought. Should the petitions for writs of certiorari be denied, this order shall terminate automatically. In the event the petitions for writs of certiorari are granted, the order shall terminate upon the sending down of the judgment of this Court.

With the ETS set to expire in May, it is unclear whether it will ever become law and again be enforced.  The government will need to determine whether to continue to press its merits case at the Sixth Circuit before a possible return engagement with the Supreme Court.  But the OSH Act’s General Duty Clause still regulates employers and requires them to address COVID-19 hazards in the workplace.  OSHA has cited many employers for COVID-19 hazards under the General Duty Clause, respiratory protection standard, and record-keeping regulations.  Employers should be mindful that they are still required to abate COVID-19 hazards, and can look to CDC and OSHA guidance.

To assist, we remind employers that Seyfarth has prepared an ETS Checklist, as well as a Chart comparing the ETS, the Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, and the Centers for Medicare & Medicaid Services, Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination Regulation. These materials are available for download under the “Additional Resources” section of this page.

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 Benjamin J.Conley and Adam R. Young

Seyfarth Synopsis: The OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) will require unvaccinated employees to submit weekly COVID-19 testing results by February 9, 2022. New guidance from the Biden Administration could require employer health plans to reimburse the cost of at-home COVID testing in certain circumstances, creating confusion for employers on how the two mandates interact.

The ETS is current law, but the testing requirements may be stayed or blocked by current litigation in the Supreme Court. Assuming the ETS stays current law and is not blocked by the Court, the ETS deliberately permitted employers to require employees handle the cost of testing. The stated reason for that choice was to incentivize vaccination over testing. Many employers intend to comply with the ETS and weekly testing requirements by having employees do off-site testing: in-home antigen testing, free off-site testing from government agencies (while supplies last), or testing at paid third party providers.

Employers are now struggling to reconcile the payment terms of the ETS (allowing employers to make employees pay for the off-site testing), state laws requiring payment for medical examination, and the January 10, 2022 DOL, HHS and IRS announcement requiring employer health plans to pay for the cost of at-home testing (the “Health Plan Mandate”). The Health Plan Mandate requires health plans to pay for up to eight at-home antigen tests per month. This builds on an existing mandate under the CARES Act/FFCRA that required health plans to cover testing by third-party healthcare providers, which has been in effect since March of 2020.

For employers who plan to address the ETS’s weekly surveillance test requirement for unvaccinated employees with offsite testing, the Health Plan Mandate has a less direct impact on employers who sponsor fully-insured plans.  In those plans, the employer is only responsible for the plan premium and the insurance carrier must pay the cost for any at-home tests. While the availability of free at-home tests may (a) make employees less likely to get vaccinated, and (b) ultimately drive up insurance premiums, those impacts are less direct and immediate.

For self-funded employers, the Health Plan Mandate has a more immediate impact in that employers are responsible for paying any claims for benefits (including the cost of reimbursing employees for at-home tests). Even so, we believe there are several mitigating factors (and some additional steps employers can take to further blunt the impact). Specifically:

  1. Health Plan Mandate Only Extends to Health Plan Participants. The Health Plan Mandate is a not an employer mandate. So, the mandate only extends to persons enrolled in the employer’s health plan.  While this may still include a sizeable portion of the employer’s workforce, it would exclude persons who are covered under a spouse’s plan, for example. (Although the counter-argument here is that spouses enrolled in your employer group plan are eligible for free at-home tests, which may offset those employees not enrolled in your plan.)
  2. Plans May Require Attestation that Test is Not for Employment Purposes. The Health Plan Mandate permits plans to seek an attestation from participants that the test is intended for personal use and not for employment purposes. This provides some modicum of a deterrent against employees relying on the free at-home tests to satisfy their ETS weekly testing obligation, although it may be somewhat illusory. Specifically, it would be very difficult for a plan to determine whether an employee is in violation of the attestation. And even if the plan could make such a determination (e.g., because the employee admits openly that they are using the free, plan-paid tests for employment purposes), the attestation would be covered under HIPAA privacy protections. This means the plan would be prohibited from sharing the data with the employer, and the employer would be unable to take any adverse employment actions against the employee. The employee could face adverse consequences under the plan, however, up to and including termination of coverage.
  3. Individualized Clinical Assessment Still Necessary for Other Forms of Testing. The Health Plan Mandate makes clear that outside of at-home tests, health plans can still limit coverage for other forms of tests to situations where the participant has received an individualized clinical assessment by a health care provider that a test is appropriate. Employers may require third-party-administered antigen or molecular (e.g. PCR) tests to satisfy the weekly requirement. While this restriction would address the issue of employees relying on at-home tests to satisfy the weekly testing mandate, it is feasible that employees would be able to obtain a doctor’s order for other forms of testing, and the health plan would still be obligated to cover those costs under the pre-existing CARES Act/FFCRA requirements. Given the ubiquity of the Omicron variant at present, most doctors can plausibly order a test on the basis of individuals being in a high-transmission area.
  4. Employers Could Consider Implementing a Vaccine Surcharge. Before the announcement of the ETS, many employers were considering implementing a health plan premium surcharge on unvaccinated workers (and while interest waned in the wake of the ETS announcement, many moved forward with their plans). The new Health Plan Mandate may cause a resurgence of interest though, given the risk that unvaccinated workers will the health plan (properly or otherwise) to offset the cost of their weekly testing obligation. For more information on the legal parameters surrounding such a vaccination surcharge, check out our legal alerts here and here.

We will continue to monitor developments in this space, including any updates based on the Supreme Court’s ruling on the ETS.

By Pamela Q. Devata and Jennifer L. Mora

Seyfarth Synopsis: Each year, employers revisit and possibly modify their background screening policies and practices to account for newly enacted ban-the-box and other laws impacting background screening. Last year, we saw some major developments, which are highlighted in this blog.

Illinois

Illinois amended the Illinois Human Rights Act to make it more difficult for employers to reject applicants or terminate employees based on their conviction history. Specifically, employers may only take an adverse employment action against an individual based on a conviction if it bears a “substantial relationship” to the job at issue or presents an “unreasonable risk” to property or the safety of others. In making this determination, Illinois employers must consider: (1) the length of time since the conviction; (2) the number of convictions on the individual’s record; (3) the nature and severity of the conviction and its relationship to the safety and security of others; (4) the facts or circumstances surrounding the conviction; (5) the age of the individual at the time of the conviction; and (6) evidence of rehabilitation efforts.

If, after undertaking this evaluation, the employer makes a preliminary decision that the individual’s conviction record is disqualifying, the employer must provide a written notice that contains: (1) the disqualifying conviction(s) and the employer’s reasoning for the disqualification; (2) a copy of the conviction history report, if any; and (3) an explanation of the applicant or employee’s right to respond before the employer’s decision becomes final, including the right to submit evidence challenging the accuracy of the conviction record(s) or evidence of mitigation, such as rehabilitation. The employer must wait five business days before making a final decision to allow the individual an opportunity to respond to the notice and submit information for the employer’s consideration.

If the employer decides to move forward with the adverse action, it must provide the individual a final written notice, which must (again) identify the conviction at issue, explain the basis for the decision (even if not changed from the preliminary notice), advise of any existing internal procedures for requesting reconsideration, and advise the individual of the right to file a charge of discrimination with the Illinois Department of Human Rights.

Louisiana

On June 16, 2021, Louisiana passed a “Fair Chance” law, which prohibits employers (those with 20 or more employees in the state) from considering an arrest record or a charge that did not result in a conviction if the information was “received in the course of a background check.” In terms of considering convictions, the law adopts as a requirement the Equal Employment Opportunity Commission’s (EEOC) framework for determining whether a conviction is job-related as set out in its 2012 Enforcement Guidance on the Consideration of Arrests and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act. Applicants also now have the right to make a written request for “any background check information used during the hiring process.” Thus, if an applicant makes such a request, the employer must provide a copy of the report and any other information the employer considered in making its decision (e.g., online searches, public record court searches, etc.).

New York City

New York City’s amendments to and guidance regarding its Fair Chance Act (FCA) received the most attention from employers. Among other things, employers may not consider non-convictions, must follow a specific process when considering a pending record, and may only reject an applicant for failing to disclose their criminal history if the applicant’s misrepresentation was “intentional.”

Most importantly, the New York City Commission on Human Rights now takes the position that a conditional offer of employment is one that can be revoked based only on the results of a criminal background check (including sex offender registry and driving records), a medical examination as permitted by the Americans with Disabilities Act, or “[o]ther information the employer could not have reasonably known before making the conditional offer….” The Commission explains in its Guidance that to comply with the FCA, employers should utilize a two-step background check process.

  • First, the employer should obtain and evaluate all non-criminal information before making a conditional offer (e.g., employment or education verifications, drug tests, reference checks, credit checks, etc.) (not including criminal, sex offender registry and motor vehicle records).
  • After this is complete and the conditional offer has been extended, the employer may ask applicants to self-disclose their criminal history and request a criminal background check, which includes motor vehicle records.

If an employer cannot perform a two-step background check, it must establish a system to internally segregate criminal history information to ensure that it is available to decision-makers only after a conditional offer has been made. Employers that opt to follow such process will bear the burden of proving that the criminal information was inaccessible to decision-makers until after a conditional offer. This may create a challenge for employers.

An employer seeking to disqualify an applicant post-conditional offer based on non-criminal information will have to prove that: (1) it could not have reasonably known the information before the conditional offer; and (2) regardless of the results of the criminal background check, the employer would not have made the offer if it had known the non-criminal information before the offer was extended. Any non-criminal information could reasonably have been known before a conditional offer if the information existed prior to the conditional offer and could have been obtained by the employer exercising reasonable due diligence.

The Commission recommends that employers omit mention of a criminal background check when seeking an applicant’s consent for a background check prior to a conditional offer, and instead use terms such as “consumer report” or “investigative consumer report” rather than “background check” in their disclosure and authorization forms, if used prior to a conditional offer. Of course, employers still have to comply with the Fair Credit Reporting Act (FCRA), so they may want to consider using two sets of forms to advise applicants of the scope of the background check inquiry during this two-step process.

Philadelphia

Early in 2021, Philadelphia expanded its existing ban-the-box ordinance, which already required that employers, among other things, defer inquiries into criminal history until after a conditional offer, not consider convictions older than seven years, perform an individualized assessment of any potentially disqualifying conviction, and provide certain notices if action is taken based on a criminal record. Now, the ordinance makes clear that it covers independent contractors, gig workers, and current employees. Moreover, the ordinance expressly allows employers to inquire about an employee’s pending criminal charge if it is job-related, the employer’s written policy details the pending charges that must be reported, and the employer “reasonably” concludes that the employee’s continued employment would present an “unacceptable risk to the operation of the business or to co-workers or customers” and that terminating the employee is “compelled by business necessity.” The ordinance also expanded the remedies available to aggrieved individuals.

Also, in 2021, Philadelphia amended its ordinance relating to employer use of credit history information. Since 2016, it has been unlawful for an employer to use credit information regarding an employee or applicant for employment purposes, subject to limited exceptions. Under the amended ordinance, however, law enforcement agencies and financial institutions are no longer automatically exempt (as they were under the previous version of the ordinance). Instead, they may use credit history information for employment purposes if one of the other exemptions in the ordinance applies, including if the information “must be obtained pursuant to state or federal law” or the job has a bonding requirement under city, state, or federal law.

Takeaways for Employers

All employers should consider a privileged review of their background screening practices by experienced counsel. Beyond the laws discussed above, some jurisdictions do not permit employers to inquire about criminal history on a job application or before a conditional offer, including ordering a criminal history report from a background check provider, subject to narrow exceptions. Also, several jurisdictions also have their own laws concerning “job relatedness” requirements for an employer’s use of criminal history information, including California, New York, and Wisconsin, among others. And several have enhanced notice requirements that go beyond what the FCRA requires.

In addition, employers continue to be targeted in hyper-technical FCRA class action lawsuits over the forms and process they use to obtain background checks As a result, employers are well advised to consider evaluating background check processes to ensure compliance with the FCRA, similar state fair credit reporting statutes and substantive employment laws.

By Minh N. Vu

Seyfarth Synopsis:  We predict 2022 will look a lot like 2021 with roughly the same number of lawsuits and DOJ pushing the boundaries of the ADA.

Like 2020, 2021 was a tough year for businesses.  Still dealing with the constantly-changing COVID-19 landscape, businesses were also bombarded with what may be another record number of ADA Title III federal lawsuits as well as rejuvenated U.S. Department of Justice (DOJ) enforcement activities.  Here are our predictions for 2022.

DOJ Enforcement Activities.  After little activity in the Trump era (except for the significant withdrawal of the web accessibility rulemaking effort), as we predicted, the new Biden Administration DOJ ramped up enforcement activity in 2021 and is pushing the law’s boundaries.  For example, in two recent settlements concerning vaccine websites of two retailers, the DOJ required conformance with WCAG 2.1 AA, even though the legal standard for the accessibility of its own websites and those of other federal agencies (under Section 508 of the Rehabilitation Act) is WCAG 2.0 AA. (DOJ has yet to issue regulations adopting any version of the WCAG for public accommodations websites and there is no pending rulemaking to do so.)  As another example, at the end of 2021, DOJ sued a chain of 23 medical eye centers that provide eye care and outpatient surgery for not having personnel to lift patients who cannot independently transfer onto exam chairs or surgery tables.  The Biden DOJ also filed four Statements of Interest in pending lawsuits in support of ADA plaintiffs within twelve months – a dramatic change from the Trump DOJ which rarely weighed in on any ADA issues.  We expect in 2022 and beyond that the DOJ will continue to be more aggressive in its enforcement of Title III of the ADA, try to expand the reach of the ADA, and be more supportive of plaintiffs in their private lawsuits.

Important Appellate Decisions.  In April 2021, the Eleventh Circuit Court of Appeals overturned a Florida district court decision that grocery retailer Winn-Dixie had violated the ADA by having an inaccessible website. The Eleventh Circuit found that the website barriers in question did not prevent the plaintiff from accessing the goods and services offered at the retailer’s stores.  In May 2021, the plaintiff filed a petition for rehearing en banc, which the Court granted on December 28; however the Court dismissed the appeal as moot and remanded the case to the district court to dismiss as moot as well.

On the opposite side of the country, the lodging industry is awaiting decisions from the Ninth Circuit Court of Appeals in four cases concerning an ADA Title III regulation that requires hotels to disclose information about the accessibility of the hotel on their reservations websites.  As we previously reported, one law firm in southern California filed over 565 lawsuits on behalf of a handful of plaintiffs alleging that the defendant hotels did not provide enough information about their accessible rooms and/or common areas on their reservations websites.  Nearly 90 district courts have rejected the plaintiffs’ demands for more information, and four of those decisions are on appeal.  How the Ninth Circuit decides these cases will impact hundreds of lawsuits that are stayed pending these appeals.  Oral argument in two of the cases is scheduled for February 15, 2022.

Federal Lawsuit Filings.  We are still crunching the numbers but the number of ADA Title III lawsuits filed in federal courts in 2021 will certainly top 11,000, and likely will continue that upward trajectory in 2022.

Website Accessibility Lawsuits.  As we reported at the end of 2021, lawsuits concerning allegedly inaccessible websites – usually by blind plaintiffs who use screen-readers to access websites –  continue to be filed at a rapid pace.  The Southern District of New York is now a favored venue for the plaintiff’s bar, along with California state and federal courts.   Website accessibility lawsuit activity in Florida quieted down after the Eleventh Circuit’s pro-business Winn-Dixie decision, discussed above.  Perhaps as a result of this ruling, some plaintiff’s lawyers in Florida have now taken to filing their website accessibility discrimination complaints with Florida county human rights commissions instead of in federal court.  The benefit of filing under state and local non-discrimination laws is that plaintiffs can recover damages, unlike under the ADA which only provides for injunctive relief.

COVID-19 Related Litigation.  The pandemic and mask-wearing requirements imposed by businesses resulted in a relatively small number of lawsuits by plaintiffs alleging that they should be exempt from mask requirements because of a disability.  A number of these lawsuits were dismissed early without meaningful legal analysis, but some continue to be litigated.  Thus, we may see some substantive decisions this year on whether businesses have an obligation to modify their mask (and/or in some cases mandatory vaccination) policies for people with legitimate disabilities and what those modifications look like.

Revived Rulemaking for Equipment and Furniture.  The Obama DOJ repeatedly stated it would propose regulations for non-fixed equipment and furniture (including hotel beds) but issued no proposed regulations during the entire eight years of the Administration.  In 2017, consistent with its anti-regulation agenda, the Trump Administration pulled the plug on this rulemaking effort altogether.  In December 2021, the DOJ announced that it would issue an Advanced Notice of Proposed Rulemaking (ANPRM) in the Fall of 2022 on equipment and furniture.  While clear rules for beds in accessible hotel rooms would be very helpful for the hotel industry, we are not going to be holding our breath given DOJ’s prior inaction on this issue.

Meanwhile, the U.S. Access Board announced that it will issue an ANPRM for fixed self-service transaction machines, self-service kiosks, information transaction machines, and point-of-sale devices by April 2022.  Since an ANPRM precedes the issuance of a proposed rule, it will be many years before there will be regulations on these self-service technologies that apply to public accommodations.  Regulations issued by the Access Board are not binding on public accommodations until the DOJ (or any other federal agency) adopts them in a rulemaking of its own.  It’s a two-step process that will take years.  That said, the absence of regulations does not necessarily mean that self-service machines do not need to be accessible, as the DOJ previously stated in 2014.

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In sum, it’s going to be a busy year for businesses on the ADA Title III front. Businesses are well-advised to review their current accessibility policies, procedures, practices, and training programs to ensure compliance with the ADA and equivalent state laws.

Edited by Kristina Launey

By Jennifer L. Mora

Seyfarth Synopsis: Every year, employers find themselves revisiting their marijuana and drug testing policies to account for newly enacted laws at the state and local level. Now is no different. Below are some highlights of what happened in 2021.

Connecticut

On June 22, 2021, Connecticut legalized recreational marijuana use by adults 21 years and older. Although provisions relating to possession are effective now, the employment-related provisions are not effective until July 1, 2022. At that time, many employers will be prohibited from taking certain actions in the absence of clear policies addressing marijuana use or evidence of impairment. With a clear and compliant policy, employers can, among other things, prohibit employees from being under the influence of, using or possessing marijuana while they are working and while performing their job duties or on company premises. If an employer has in place or implements a policy that prohibits employee use or possession of marijuana and, such policy is made available to employees in advance, the employer can take action against an employee who uses recreational marijuana or tests positive for it as part of reasonable suspicion and random drug testing.  In the case of a job applicant, an employer can rescind a job offer if an applicant tests positive for recreational marijuana so long as the employer makes the policy available to the applicant at the time of offer.

There are numerous positions and industries exempt from the law. And of course, employers still must be mindful of the state law protections currently available to medical marijuana users.

New Mexico

On April 12, 2021, New Mexico saw the legalization of recreational marijuana. While the law does not provide employment protections to recreational users and, in fact, expressly affords several protections to employers, medical marijuana users have certain protections under existing state law.

New Jersey

The “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act,” which was signed on February 22, 2021, received quite a bit of attention from employers largely because it arguably prohibits employers from rejecting a job applicant who tests positive for marijuana (unless a narrow exception exists, such as positions subject to Part 40 DOT-mandated drug testing).

While the new law, among other things, allows employers to test current employees for marijuana, the law limits an employer’s ability to rely on a positive marijuana test result in making employment decisions. Specifically, subject to very narrow exceptions, New Jersey employers may not refuse to employ or otherwise discriminate against an employee who uses marijuana or based solely on a positive test result for marijuana metabolites, which effectively means that an employer can take action only if the employee is impaired by marijuana at work. On this point, employers must develop certain processes before relying on a reasonable suspicion drug test, including conducting physical evaluations and designating a “Workplace Impairment Recognition Expert” (WIRE) who must be trained to detect and identify an employee’s use or impairment from drugs and to assist in the investigation of workplace accidents. As we previously wrote, the Cannabis Regulatory Commission has not released regulations relating to the WIRE (but is expected to) and has suspended the requirement for the physical examination.

New York

New York’s recreational marijuana law, approved on March 30, 2021, also received a lot of attention because it prohibits employers from taking any action against someone for using recreational marijuana when not working and, thus, arguably restricts the ability of an employer to consider a positive pre-employment marijuana test result (absent an exception).

Employers can still maintain drug-free workplaces, are not required to accommodate the use, possession, sale, or transfer of marijuana in the workplace, and may prohibit employees from being impaired during work hours. However, the law prohibits employers from refusing to hire, employ, or license, or to discharge from employment or otherwise discriminate against an individual because of an individual’s legal use of consumable products or legal recreational activities, which now includes marijuana in accordance with state law. The law revised New York Labor Law to prohibit employers from discharging or discriminating against an employee for the use of marijuana outside of work.

Employers can only take employment actions based on contrary federal and state legal requirements (e.g., Part 40 DOT) and federal contracts. Employers also can terminate an employee based on “specific articulable symptoms” of marijuana impairment that “interfere(s) with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards.” The New York Department of Labor recently reminded employers in its “Frequently Asked Questions” that a positive marijuana test does not prove impairment at work and, thus, stressed the importance of defensible reasonable suspicion testing policies and practices.

Philadelphia

Most Philadelphia employers are now prohibited from requiring prospective employees to undergo testing for the presence of marijuana as a condition of employment. Currently, only New York City and Nevada have similar marijuana testing restrictions.

Exceptions apply to, among others, any position requiring a commercial driver’s license, positions requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals, or safety sensitive positions, as determined by the enforcement agency and set forth in regulations pursuant to the ordinance. It also does not apply to: any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; any contract between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant; or any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.

Virginia

Virginia addressed both recreational marijuana and cannabis oil. With respect to recreational marijuana, a new law allows those 21 years of age or older to possess or use recreationally. Retail sales will not begin until January 1, 2024. The law does not directly address drug-free workplaces, though it acknowledges that marijuana causes impairment and prohibits driving while under the influence of marijuana.

Virginia also amended the state’s medical marijuana law to prohibit discrimination against lawful users of medical cannabis oil (as defined in the law). Employers may not discharge, discipline, or discriminate against an employee for their lawful use of cannabis oil pursuant to a valid written certification issued by a practitioner for the treatment or to eliminate the symptoms of the employee’s diagnosed condition or disease pursuant to the state’s cannabis oil law. There are a handful of narrow exceptions.

Takeaways for Employers

Many states are considering enacting new or amending existing laws to provide employment protections to marijuana users, which could result in 2022 also being another busy year in this area. With public and legislative support for marijuana growing, employers with drug testing policies may elect to revisit their views about marijuana, especially if they find it difficult to recruit and hire talented workers or they do not employ safety-sensitive or other regulated positions.

Regardless, all employers with drug and alcohol testing programs should consider a fresh review of their policies to decide whether they will continue to test for marijuana and, if so, the circumstances under which tests will occur and the consequences for failed drug tests. Notably, some states, including Connecticut, Maine, Iowa, and Minnesota (among others) have drug testing statutes with policy requirements. Employers also should consider training their managers and supervisors to make and document reasonable suspicion determinations so they can defend any actions taken based on positive marijuana tests.

Finally, relying on state disability discrimination laws, medical marijuana users are filing lawsuits against employers for failure to accommodate and disability discrimination, which appear to be gaining traction. Thus, employers should consider having in place a clear policy and procedure for addressing accommodation requests from applicants and employees using medicinally.

We will continue to monitor new developments in this evolving area of law and blog about them in The Blunt Truth.

The Employment Law Lookout Team is taking the holidays off to recharge and reflect on the year that was.  We look forward to bringing you more interesting and thought provoking content as we enter into 2022.

We wish all of you a joyous and peace-filled new year.  (Stay healthy and stay warm!)