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 “outbreakat 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

 

By Benjamin D. BriggsBrent I. ClarkMark A. Lies, IIAdam R. YoungIlana R. Morady, and Craig B. Simonsen

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.”

According to the Agency, the employers did not take “any steps to install barriers or implement procedures to have employees work at least six feet away from each other and they did not investigate any of their employees’ COVID-19 infections.” In addition, the employers did not “adequately communicate the COVID-19 hazards” to its employees and in at least one case did not report a COVID-19 fatality to Cal/OSHA.

The Agency noted that the citations also allege that the “employer did not notify employees about their potential exposure to other employees who had been diagnosed as infected with the virus so that such employees would be able to take appropriate protective measures.”

Cal/OSHA’s Chief, Doug Parker, indicated that “if a COVID-19 illness occurs, employers must investigate the case to determine if additional protective measures should be taken and report the serious illnesses and deaths to Cal/OSHA. Employers should also notify workers of possible exposure and report outbreaks to county public health officials.”

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

By Loren Gesinsky and Samuel I. Rubinstein

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.

Six months into the pandemic, with many employees still working from home, teleworking is far more common than ever. Some employers are encouraging or permitting many employees to work remotely for the rest of 2020 (and beyond). Today’s situation is far different from five years ago when the EEOC lost in its attempt at the Sixth Circuit to expand telecommuting as a reasonable accommodation under the ADA, a case we blogged previously here.

Nowadays, employers are preparing for a potential tidal wave of reasonable accommodation requests for telework after they resume requiring onsite work. Employees may wonder whether the employer has to continue the telework arrangement after the worksite reopens, and other employees may seek to renew previously denied, pre-COVID-19 telework reasonable accommodation requests. Finally, the EEOC has stepped in to address this issue in its September 8, 2020 updates to its “Technical Assistance Questions and Answers” on issues dealing with COVID-19 and the ADA and other equal employment opportunity laws.

The EEOC’s answers provide useful guidance for employers. As a baseline, the EEOC notes that any across-the-board treatment like a presumption is inconsistent with the EEOC’s oft-repeated maxim that reasonable-accommodation inquiries must be addressed on an individualized basis. Instead, “[a]ny time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation” and then proceed through the interactive process accordingly regarding a potential reasonable accommodation.

The EEOC also reiterates another fundamental precept that “[t]he ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.” Relying on this precept, the EEOC makes a common-sense determination that employee advocates may tend to ignore or de-emphasize: “The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions ….” In other words, temporarily making the best out of telework out of necessity and compassion does not tie an employer to forever deeming this a successful means for fulfilling all of the long-term essential functions.

Nevertheless, the EEOC recognizes a scenario under which the pandemic telework experience of an employee could be relevant to telework as a reasonable accommodation post-pandemic. If an employee renews a pre-COVID-19 request for teleworking as a reasonable accommodation, the EEOC suggests that this prior teleworking experience could be relevant in considering the renewed request. The pandemic telework “could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information.”

Another consideration for employers is how the November elections may impact the EEOC moving forward. EEOC appointees under a new administration might be more inclined to resume the efforts of Obama-era appointees to expand the circumstances under which telework is required as a reasonable accommodation.

In light of these factors, employers may benefit from beginning to reevaluate now the positions for which they believe onsite work will be an essential function post-pandemic and ensuring documentation of these designations and related justifications. For more information on this or any related topic please contact the authors or your Seyfarth attorney.

By Vanessa Rogers and Dani A.Sanchez

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.

Attorneys from Seyfarth’s Houston Labor and Employment group, on Thursday, September 17, 2020, from 1:00 p.m. to 2:00 p.m. Central, will be joined by Dr. Creshema Murray (Special Assistant to the President and Associate Professor of Corporate Communication) and Victor Wright (Director of Global Labor & Employment Law) to discuss business-critical topics for employers navigating these issues.

The program will also feature live polling as a way to benchmark with peers. The panel will address:

  • First Amendment protections in the workplace
  • Anti-discrimination laws and their nexus with political speech
  • How the National Labor Relations Act applies to politically charged conduct
  • Practical tips for managing political speech in the workplace and on social media
  • Internal protocols and policies related to political speech
  • Handling and defusing political conflicts at work

While there is no cost to attend, registration is required. REGISTER HERE.

If you have any questions, please contact Roya Shahnazari at rshahnazari@seyfarth.com and reference this event.

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

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.  

Latest EEOC COVID-19 Guidance On COVID-19 Screening And Testing

While much of the EEOC’s latest guidance was adapted from the Commission’s March 27, 2020 webinar (a summary of which we provided here in an earlier blog post), the EEOC’s latest guidance provides some additional clarification as to the intersection of the ADA and the CDC’s guidance on COVID-19 screening. Specifically, the ADA requires that any mandatory testing of employees be “job related and consistent with business necessity.” In light of the COVID-19 pandemic, the EEOC has clarified that an employer may administer COVID-19 testing to employees before permitting them to enter the workplace to determine if they pose a direct threat to others in the workplace.

Consistent with the EEOC’s previous guidance in the pandemic, the Commission has reiterated that the ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate, and that testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard.

Additionally, the updated guidance states that employers may screen or test a particular employee only if the employer has a reasonable belief based on objective evidence that the individual may have COVID-19. Further, the guidance reminds employers that they cannot ask employees whether they have family members with COVID-19 or who are suffering symptoms of COVID-19, as such questions are prohibited by the Genetic Information Nondiscrimination Act (“GINA”).

Confidentiality Considerations Of COVID-19

The Commission’s newest guidance also addresses questions regarding the confidentiality obligations of employers under the ADA while addressing COVID issues in the workplace. Notably, the guidance provides that while the ADA requires that an employer keep all medical information about employees confidential, including whether an employee has symptoms of, or a diagnosis of, COVID-19, managers are not prevented from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC. However, the EEOC’s guidance emphasizes that employers should take as many steps as possible to limit the disclosure of the name of the employee who has been diagnosed or who has symptoms of COVID.

Reasonable Accommodations In Light Of COVID-19

The EEOC’s guidance further addresses issues related to reasonable accommodations, particularly whether an employer providing work from home arrangements to some employees due to state or local shutdown orders must provide similar accommodations for those employees that the employer provides to those still in the workplace. The updated guidance provides that if such a request is made, the employer and employee should discuss the accommodation and whether a different accommodation could be warranted in the home environment. Further, the guidance states that the undue hardship considerations might be different relative to a home environment as opposed to the workplace, as a reasonable accommodation that does not pose an undue hardship in the workplace could pose one when considering circumstances such as teleworking.

Implications For Employers

The EEOC’s new guidance is the latest installment in the EEOC’s ongoing effort to provide clarity for employers on the application of the ADA, the Rehabilitation Act, and other EEO laws to COVID-19-related issues. Employers dealing with these issues should carefully read the newest guidance as well as details on the EEOC’s other recent changes, all of which have been tracked here.

 

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

In the meantime, we want to wish all of our readers, contributors, and editors a safe and happy Labor day holiday. Spend quality time social distancing and wearing face coverings with family, friends, and loved ones to keep all safe. Also, rest assured knowing that we’ll be on the lookout for more management insights to bring you as we move into the year end and into 2021.

Thank you and Happy Holiday.

By Honore N. Hishamunda and Brett C. Bartlett

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.

Title VII and Section 1981 prohibit employers from retaliating against employees because they have engaged in statutorily protected activity, including – among other things – opposing unlawful practices or filing a charge of discrimination with the EEOC. Employers remain free to take adverse employment actions, including discipline up to and including termination, against employees who have engaged in protected activity but only when there is a legitimate, non-retaliatory reason for taking the adverse action.

What happens when employee engages in misconduct and statutorily protected activity at the same time?  Does the employee’s activity lose the benefit of statutory protection because they engaged in misconduct?  To the extent the activity is still protected, can the employer discipline or fire the employee for the underlying misconduct?

These were the very questions presented to the United States Court of Appeals for the Eleventh Circuit in its recent decision – Gogel v. Kia Motors Manufacturing of Georgia, Inc.. The court’s answers provided clarity on (a) how employers may take legitimate, non-retaliatory employment actions against employees engaged in workplace misconduct even though such misconduct touches on protected activity; and (b) when otherwise protected activity may lose statutory protection.

Andrea Gogel previously worked in Kia’s human resources department as a Team Relations Department Manager. In her role, she was responsible for overseeing workplace investigations, notifying the HR department’s manager about the results of the investigations, and making recommendations about what to do next. While still employed with Kia, Ms. Gogel filed a charge of discrimination with the EEOC alleging that Kia discriminated against her because of her gender and national origin by not naming her as head of department. Straightforward so far, but the plot thickens.

After learning from the EEOC of her charge, Kia received reports from multiple employees that Ms. Gogel not only encouraged a co-worker to sue Kia for alleged workplace discrimination and harassment but also recommended that her co-worker use her lawyer to do so. Despite Ms. Gogel’s efforts to deny her co-workers’ reports, Kia was understandably distressed that an HR professional on its team might have been encouraging employees to make employment law claims against it. This was certainly not something appearing in her job description, and undoubtedly not only impacted her ability to perform her job but also denied anyone else in the organization – whether that be employees in the HR team or the legal team – to do their jobs in mitigating legal risk. Accordingly, having lost confidence in her ability to do her job and no doubt feeling betrayed, the company, unsurprisingly, bid her farewell, terminating her employment for her dereliction of critical job duties.

Ms. Gogel filed a lawsuit in the United States District Court for the Northern District of Georgia alleging, among other things, that Kia unlawfully retaliated against her because she had filed her charge of discrimination with the EEOC. The District Court granted Kia’s motion for summary judgment, finding that the company terminated the HR professional for a legitimate, non-retaliatory reason – soliciting a coworker to file a charge against Kia, an act that was in direct conflict with the responsibilities of her important role.

Ms. Gogel appealed to the Eleventh Circuit arguing that Kia’s stated reason for firing her was actually pre-text for retaliation, and that soliciting a coworker to sue the company was, in addition to filing a charge, in and of itself protected activity. The Eleventh Circuit rejected Ms. Gogel’s arguments and affirmed the District Court’s order granting summary judgment for her employer.

The Eleventh Circuit held that though Ms. Gogel engaged in protected activity by filing her charge, Kia had a legitimate, non-retaliatory reason for terminating her employment that she could not establish was pretext for unlawful retaliation. The Court found that:

  • Despite Ms. Gogel denying that she recruited another employee to sue Kia, the company had a good-faith belief that she did so given the multiple reports from co-workers;
  • Kia had a legitimate reason, non-retaliatory reason for firing Ms. Gogel – recruiting another employee to sue the company;
  • Though Kia exited her within a few months of her charge, Ms. Gogel failed to show that the company’s reason for doing so was pretext for unlawful retaliation because Kia (i) had given her a discretionary bonus and commended her for her good work after she filed her charge but before learning about her workplace misconduct; and (ii) only fired her after learning about her possible workplace misconduct.

The appellate court also held that though Ms. Gogel’s decision to recruit another employee to sue Kia may be characterized as opposition to potentially unlawful conduct, it did not constitute protected activity. The court highlighted several key legal principles (noted below) that should help guide employers as they navigate the limits of protected activity:

  • An employee’s statutory protections are not absolute;
  • An employee must express protected activity in a reasonable manner, and reasonableness is determined by balancing the need to protect individuals asserting their statutory rights with “an employer’s legitimate demands for loyalty, cooperation, and a generally productive work environment”;
  • An employee’s otherwise protected activity loses statutory protection when it so interferes with the performance of their job duties that it renders the employee ineffective in their job – something the EEOC’s own Enforcement Guidance on Retaliation and Related Issues recognizes in providing that:
  1. “[T]he protection of the opposition clause only applies where the manner of opposition is reasonable”
  2. “Opposition to perceived discrimination also does not serve as license for the employee to neglect job duties”
  3. “If an employee’s protests render the employee ineffective in the job, the retaliation provisions do not immunize the employee from appropriate discipline or discharge”
  • An employee’s otherwise protected activity also loses statutory protection even where it doesn’t interfere with an employee’s job duties if the activity “is expressed in a manner that unreasonably disrupts other employees or the workplace in generally”

The Eleventh Circuit then found that Ms. Gogel’s decision to recruit an employee to sue Kia was “in direct conflict with her [HR] job responsibilities.”  Further, the court noted that the company “could no longer trust” her to do her job given that she was “expected to interact with complaining employees in an effort to internalize the resolution of any complaint and thereby avoid, if possible, the external resolution of that [internal] complaint, such as the filing of an EEOC charge and a subsequent lawsuit.”

This decision confirms the fundamental axiom that employers may take appropriate disciplinary action against employees engaged in protected activity so long as they have a legitimate, non-retaliatory reason for doing so. It also highlights a more nuanced, but no less important, principle: an employee’s right to engage in protected activity is not absolute and, instead, an employee can lose statutory protection when engaging in otherwise protected activity in an unreasonable manner.

If you have any questions regarding this area of law, need assistance in evaluating whether an employee has engaged in protected activity or in assessing the legal risks associated with disciplining or terminating an employee who has engaged in possible protected activity, or require representation in defending a charge of discrimination or lawsuit, do not hesitate to contact either of the authors, your Seyfarth attorney, or a member of the Firm’s Workplace Policies and Handbooks or the Labor & Employment Teams.

By Brent I. Clark, Mark A. Lies, IIAdam R. Young, Patrick D. Joyce, and Craig B. Simonsen

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.

On March 30, 2020, the United States Centers for Disease Control and Prevention (CDC) modified its guidance to recommend that all Americans who are able wear face masks in public places should do so to reduce the likelihood of disease transmission. Shortly thereafter, federal OSHA issued its COVID-19 Guidance for Retail Workers, in which the agency recommends that retailers “allow workers to wear masks over their nose and mouth to prevent them from spreading the virus.”  Since that time, the majority of state and local jurisdictions have recommended or mandated face masks for individuals in retail stores, including both employee and customers. Many state agencies have begun patrolling retailers and threatening enforcement based on customers and employees observed flouting face mask and social distancing requirements.

Masks are not the only COVID-19 protections that state and local jurisdictions have mandated or recommended in retail settings. Other protections include: required social distancing, cleaning and disinfecting protocols, capacity requirements, and others. All of these are aimed at allowing retailers to remain operational while attempting to protect both employees and customers from infection.

Retailer policies mandating the use of face masks and other requirements set forth by state and local jurisdictions, and attempts to enforce those policies, have resulted in workplace violence incidents against retail employees. According to media reports, customers refusing to wear masks have wiped their nose on an employee’s clothing, coughed or sneezed on employees or other customers, broken an employee’s arm, and fatally shot an employee, among other incidents. See, e.g., https://abcnews.go.com/US/incomprehensible-confrontations-masks-erupt-amid-covid-19-crisis/story?id=70494577; https://www.cnn.com/videos/us/2020/05/12/target-store-mask-fight-orig-mg.cnn; https://www.nytimes.com/2020/05/08/us/coronavirus-masks-dollar-store-shooting-flint-Michigan.html.

Under the Occupational Safety and Health Act’s General Duty Clause, employers have a duty to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). State-plan OSH agencies have similar provisions in their state-specific OSH Act. Type II workplace violence, directed at employees by a customer or client, is a recognized hazard in the retail industry. See https://www.osha.gov/workplace-violence. Further, the Occupational Safety and Health Administration enforces employers’ duty to protect employees against workplace violence, through citations and litigation before the Occupational Safety and Health Review Commission.

The CDC issued non-mandatory guidance with strategies to limit violence towards workers that may occur when businesses put in place policies and practices to help minimize the spread of COVID-19 among employees and customers. Specifically the CDC references its Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19) for general business guidance on preventing COVID-19.

The guidance offers Resources and Trainings on Workplace Violence, including:

The guidance also recommends employee training for warning signs and response. It suggests that “employee training on workplace violence [] cover[] definitions and types of violence, risk factors and warning signs for violence, prevention strategies, and ways to respond to threatening, potentially violent, or violent situations.” The guidance specifically recommends de-escalation training for employees.

The guidance also provides several illustrations, with one related to action that can be taken to prevent workplace violence, and the other regarding basic dos and don’ts for employees to prevent workplace violence:

Image from CDC

This guidance is non-mandatory, but may be helpful for employers addressing the issue of face-mask mandates, other COVID-19 prevention measures, and aggressive enforcement positions from state agencies.

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 Nolan R. Theurer and Andrew M. McNaught

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..

Plaintiff/Appellant Frank Pierri (Pierri) began working as a chemist for Defendant/Appellee Medline Industries, Inc. (Medline), in 2011. In his first four years Pierri performed well and advanced his position in the company. In 2015, Pierri’s grandfather fell ill with cancer, resulting in Pierri’s request to his supervisor to modify his schedule to four ten-hour shifts per week to care for Pierri’s grandfather. After six months of Pierri working the modified schedule, his supervisor ordered him to return to his normal schedule as a result of poor work performance. Pierri argued he needed at least one week-day off per week in order to care for his grandfather, and his supervisor offered him a modified Tuesday-Saturday schedule in order to accommodate Pierri’s needs. Pierri declined the accommodation because he wanted to attend school on Saturdays, and reported the dispute to Human Resources. As a result, Pierri applied for and received leave under the Family Medical Leave Act (FMLA), permitting him one day of leave per week to care for his grandfather.

According to Pierri, his supervisor began a pattern of harassment when he began his alternate schedule. His supervisor began belittling and micromanaging Pierri’s work, and refused to assign him research and development projects, on which Pierri’s bonus primarily depended. As a result of stress and anxiety from the alleged harassment, Pierri sought and received full-time FMLA leave on March 30, 2016. Pierri also filed an EEOC charge, alleging that Medline discriminated against him based on his grandfather’s disability, and retaliated against him for reporting the alleged harassment  to Human Resources.

After allowing Pierri to remain on FMLA leave for nearly one year, Medline contacted his attorney on March 28, 2017 to find out whether Pierri planned on returning. Medline warned that if it did not hear from Pierri by the end of the week, he would lose his job. Pierri did not contact the company, and Medline terminated his employment.

On September 27, 2017, Pierri received a right-to-sue letter from the EEOC, and subsequently filed his complaint in the Northern District of Illinois. Pierri alleged two claims in his complaint: (1) that Medline had discriminated against him in violation of the Americans with Disabilities Act (ADA) for his association with his ill grandfather; and (2) that his supervisor retaliated against him for complaining to Human Resources and filing a charge with the EEOC.

The District Court granted summary judgment to Medline on both claims, and the Seventh Circuit affirmed. According the Seventh Circuit, Pierri failed to establish a prima facie case of associational discrimination. Citing Larimer v. Int’l Bus. Mach. Corp., 370 F.3d 698 (7th Cir. 2004), the Court identified three situations in which a plaintiff may bring a claim of associational discrimination: (1) the “expense” variant, where an employee’s relative has an expensive disability which is covered under the employer’s plan; (2) “disability by association,” where an employer fears that an employee may have become infected with a disease because of the known disease of an associate of the employee; and (3) “distraction,” where an employee’s family member’s disability causes him to become inattentive to his own work.

Pierri cited the “distraction” prong, and argued that the “distraction” caused his poor work performance. But he failed to produce any evidence in support of that assertion.. Pierri did not present any evidence that he was distracted, that Medline regarded him as distracted, or that Medline took any action against him due to his distractedness. Indeed, Pierri failed to produce any evidence at all to support any theory of associational discrimination. The record instead demonstrated that Medline made sincere efforts to accommodate Pierri’s need to care for his grandfather, permitting him first to adjust his work schedule, and asking him to return to his former schedule after it became clear that his work performance had deteriorated. At that point, Medline offered a Tuesday-Sunday schedule to accommodate Pierri’s needs, but Pierri declined for a reason unrelated to his grandfather’s disability (his desire to go to school on Saturdays).

Even more damaging to Pierri’s claim of associational discrimination, he never demonstrated that any adverse employment action occurred. Pierri’s supervisor general rudeness and attitude towards Pierri do not constitute an adverse employment action, nor did Pierri’s subsequent “average” rating on his performance review. Further, any reduction in Pierri’s bonus occurred primarily as a result of Pierri’s decision to stop working and take long-term FMLA leave. Finally, a simple shift in the balance of job responsibilities, where plaintiff remained at the same position, and performed tasks which had always been a part of his job, did not constitute the “wholesale change of duties” reflecting a de facto demotion for purposes of the ADA.

The apparent lack of any adverse employment action was also fatal to Pierri’s retaliation claim. The critical point in a retaliation claim is to “offer evidence that would allow the factfinder to conclude that the employer took the adverse action because of the protected activity.”  After Pierri had already taken a full year of FMLA leave, Medline informed him that it would fire him if he did not provide notice of his intent to return to work within two weeks, and Pierri never responded. The only reasonable conclusion is that it was Pierri’s failure to respond, not retaliation by Medline, that led to his termination.

This case presents several key takeaways. First, the holding demonstrates the critical importance of supporting arguments with sufficient evidence. Specifically, a plaintiff cannot sustain a claim for associational discrimination under the ADA based solely on his allegation that his poor work performance resulted from “distraction” due to his need to care for a disabled family member. Such allegations must be supported by evidence sufficient for the court to determine that the poor work performance was indeed caused by the alleged distraction. Employers should also take special note of the Seventh Circuit’s assertion that the three situations described in Latimer are not meant to be exhaustive of the potential justifications for an associational discrimination claim. Employers should be prepared to defend against any well-supported allegations of associational discrimination, even if those allegations do not fall into the categories recognized by Latimer.

With respect to Plaintiff’s retaliation claim the case reinforces that employers can protect their lawful employment decisions through good documentation.  Where employers thoroughly and appropriately document their legitimate, non-retaliatory reasons supporting employment decisions, they have a stronger chance of successfully defending those decisions in litigation.

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.