Workplace Policies and Processes

By Mark A. Lies, II,  Brent I. ClarkAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has just issued a Standard Interpretation clarifying the Obama-era guidance that prohibited incentive programs and circumscribed post-incident drug testing; “Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. §1904.35(b)(1)(iv).”

We previously blogged about OSHA’s 2016 retaliation regulation and associated guidance, which had explained examples of post-accident drug-testing and safety incentive as instances of unlawful retaliation.  OSHA’s 2016 retaliation rule left employers uncertain about what programs were permissible and whether they would face citations for long-standing safety programs aimed at encouraging safe behaviors and reducing injury rates.

  1. OSHA’s Revised Perspective is Apparent in the New Standard Interpretation

OSHA’s new Standard Interpretation intends to “to clarify the Department’s position that [the rule] does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health.” The Interpretation explains that “evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates.”

Post-incident drug testing policies and safety incentive programs will be considered retaliatory and unlawful only where they seek “to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.” Properly formulated and lawful post-incident drug testing policies and safety incentive programs will be permitted and will not result in OSHA citations.

  1. OSHA Permits Consistent Post-Incident Drug Testing Policies

For years, OSHA’s position on post-incident drug testing confounded employers, and employers faced complicated questions in the hours following workplace safety incidents. The Standard Interpretation clarifies that “most instances of workplace drug testing are permissible,” including:

  • “Random drug testing”;
  • “Drug testing unrelated to the reporting of a work-related injury or illness”;
  • “Drug testing under a state workers’ compensation law”;
  • “Drug testing under other federal law, such as a U.S. Department of Transportation rule”; and
  • “Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”

Accordingly, employers may lawfully implement, random drug testing programs, DOT drug testing programs, drug testing programs under a Collective Bargaining Agreement, and post-incident (also “post-accident”) drug-testing programs. Post-incident drug testing should be conducted consistently on any employee whose conduct may have contributed to the accident, and not merely the employee who was injured in an accident. For example, if a forklift operator collides with a pedestrian and injures the pedestrian, both the operator and pedestrian should be drug tested. OSHA reiterates that employers may not use a post-injury drug testing program, which the Agency views as retaliatory and also exposes employers to worker’s compensation retaliation tort claims.

3.         OSHA Permits Safety Incentive Programs

The Standard Interpretation reverses course on the 2016 retaliation regulation’s prohibition of safety programs. With limited adjustments, OSHA now permits employers to bring back reporting-based safety programs, which the Standard Interpretation lauds as an “important tool to promote workplace safety and health.” The Standard Interpretation permits a program which offers a prize or bonus at the end of an injury-free month. OSHA’s new position thus permits employers to bring back cash bonuses or the much-maligned monthly pizza party. The Standard Interpretation also permits programs that evaluate managers based on their work unit’s lack of injuries.

However, to lawfully implement such a safety program, the employer must implement “adequate precautions” to ensure that employees feel free to report an injury or illness and are not discouraged from reporting. According to OSHA, a mere statement that employees are encouraged to report and will not face retaliation is insufficient. Employers need to undertake their choice of additional “adequate precautions,” such as:

  • “An incentive program that rewards employees for identifying unsafe conditions in the workplace;”
  • “A training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;” or
  • “A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.”

The Standard Interpretation thus permits and encourages safety incentive programs that reward employees for identifying unsafe conditions in the workplace. A second precaution, a brief training on reporting illnesses and injuries, would be simple for employers to conduct and add to onboarding for new hires. The “mechanism for accurately evaluating employees willingness to report” could be a regularly scheduled, random questionnaire on employee willingness to report injuries and illnesses. Accordingly, if employers adopt these low-burden precautionary measures, they may bring back or now adopt safety programs that are popular and effective at reducing workplace injury rates.

For related information on drug testing requirements, we had blogged on the recent Department of Transportation (DOT) final rule amending its drug testing program for DOT-regulated employers.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation TeamLabor & Employment, or the Workplace Policies and Handbooks Teams.

 

By Brent I. Clark, Kristin G. McGurn, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Department of Health and Human Services (HHS), Office of the Surgeon General, has just released a Report on “Facing Addiction in America: The Surgeon General’s Spotlight on Opioids,” (Washington, DC: HHS, September 2018).

In the Report, Alex M. Azar, II, Secretary of the HHS, notes that “the opioid misuse and overdose crisis touches everyone in the United States.  In 2016, we lost more than 115 Americans to opioid overdose deaths each day, devastating families and communities across the country. Preliminary numbers in 2017 show that this number continues to increase with more than 131 opioid overdose deaths each day.  The effects of the opioid crisis are cumulative and costly for our society—an estimated $504 billion a year in 2015—placing burdens on families, workplaces, the health care system, states, and communities.”

The “evidence-based public health approach” described in the Report offers a way forward.  Its goal is to reduce the impact of the opioid crisis by addressing factors that contribute to opioid misuse and its consequences.  The Report offers that by adopting this approach—which seeks to improve the health, safety, and well-being of the entire population—the nation will have an opportunity to take effective steps to prevent and treat opioid misuse and opioid use disorder and reduce opioid overdose.  The evidence-based public health approach to the opioid crisis complements the broader healthcare ecosystem’s focus on social determinants of health and consumers’ behavioral conditions, which are widely viewed as critical to improving individual and national health outcomes over the long term.

Specifically, the Report offers suggestions for various key stakeholders, including, the healthcare profession and other employers generally:

Health Care Professionals and Professional Associations – As Employer and Provider:

  • Address substance use-related health issues with the same sensitivity and care as any other chronic health condition.
  • Support high-quality care for substance use disorders.
  • Follow the gold standard for opioid addiction treatment.
  • Follow the CDC Guideline for Prescribing Opioids for Chronic Pain.
  • When opioids are prescribed, assess for behavioral health risk factors to help inform treatment decisions, and collaborate with mental health providers.
  • Check the PDMP before prescribing opioids.
  • Refer patients to opioid treatment providers when necessary.
  • Become qualified to prescribe buprenorphine for the treatment of opioid use disorder.

Industry and Commerce:

  • Support youth substance use prevention.
  • Continue to collaborate with the federal initiative to reduce prescription opioid-and heroin-related overdose, death, and dependence.
  • Reduce work-related injury risks and other working conditions that may increase the risk for substance misuse.
  • Offer education, support and treatment benefits for workers affected by the opioid crisis.

As a resource for employers, the HHS also offers the Surgeon General Postcard “What Can You Do To Prevent Opioid Misuse?”  The card encourages employers to open up to conversations about the impact of addiction, to learn how to read the signs of struggle within the workforce, to ensure safe workplaces designed to minimize the need for pain prescriptions, and to be prepared to deal with a crisis.  Specifically, HHS counsels:

TALK ABOUT IT:  Opioids can be addictive and dangerous. We all should have a conversation about preventing drug misuse and overdose.

BE SAFE:  Only take opioid medications as prescribed. Always store in a secure place. Dispose of unused medication properly.

UNDERSTAND PAIN:  Treatments other than opioids are effective in managing pain and may have less risk for harm.  Talk with your healthcare provider about an individualized plan that is right for your pain.

KNOW ADDICTION:  Addiction is a chronic disease that changes the brain and alters decision-making. With the right treatment and supports, people do recover. There is hope.

BE PREPARED: Many opioid overdose deaths occur at home. Having naloxone, an opioid overdose reversing drug, could mean saving a life. Know where to get it and how to use it.

HHS also provides help resources and information and a hotline (1-800-662-HELP (4357).

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Health Law Group, Workplace Safety and Health (OSHA/MSHA) TeamWorkplace Counseling & Solutions Team, or the Workplace Policies and Handbooks Team.

By Honore Hishamunda and Alex S. Drummond

Seyfarth Synopsis: Employers face a tough challenge in trying to balance their obligations under the ADA with efforts to enforce workplace rules. A recent decision out of the United States Court of Appeals for the Sixth Circuit, however, highlighted how employers can get that balance right.

The Americans with Disabilities Act (ADA), among other things, requires employers to provide reasonable accommodations to employees qualified to perform the essential functions of their jobs and prohibits employers from retaliating against employees for exercising their rights under the ADA. But what if, in the midst of attempting to comply with these obligations, employers have to enforce workplace rules against someone requesting a reasonable accommodation? A recent Sixth Circuit Court of Appeals decision – McDonald v. UAW-GM Center for Human Resources – highlighted how, with care, employers can balance these seemingly competing goals.

The plaintiff in the case was a receptionist, a union member, and suffered from a genetic disorder which, with the employer’s permission, she took time off from work to treat. During plaintiff’s time with the employer, the operative CBA required employees to take lunch breaks no earlier than 11:00 a.m., and to, once a year, select either a half-hour lunchbreak with separate additional 15-minute breaks or an hour long lunch break. Plaintiff, despite these policies and despite choosing a half hour break, began leaving for the gym at 10:30 a.m. and tacking on her 15-minute breaks to essentially take an hour long break. In addition, plaintiff was accused of sexually harassing another co-worker.

In the midst of the employer’s sexual harassment investigation, plaintiff asked if she could either switch to an hour long break or tack on breaks in order to continue to work out as it helped with the pain from her previous surgeries. Her supervisor rejected this request citing the CBA’s rules, and offered plaintiff the option of arriving early in the mornings to work out. In addition plaintiff’s supervisor warned plaintiff that continued violation of the early or extend lunch break policy could result in disciplinary action.

Plaintiff rejected her supervisor’s compromise, and contacted the company’s personnel manager regarding her requests, this time providing a doctor’s note stating that plaintiff needed to exercise daily for 30 to 60 minutes. The personnel manager stated that the request would need approval from other members of management. However, while plaintiff’s request was being processed and on the same day she received an update regarding the same, plaintiff left early to go to the gym without authorization. Plaintiff was caught and eventually suspended for violating workplace rules. Plaintiff never returned to work and instead took personal leave before submitting her voluntary resignation. The time between her initial accommodation request and her resignation was less than 2 months.

Plaintiff sued claiming a failure to accommodate. Further, plaintiff alleged that her employer suspended her in retaliation for requesting a reasonable accommodation, or, alternatively, that she was constructively discharged. The Sixth Circuit, affirming the District Court, granted employer’s motion for summary judgment on each of plaintiff’s claims.

The Sixth Circuit held that the employer met its obligations to reasonably accommodate plaintiff. Specifically, the court found that the employer listened to plaintiff’s initial request for an accommodation, provided alternatives, again listened to plaintiff’s second request for an accommodation, and was unable to process the request because plaintiff resigned. In doing so, the court noted that, in the ADA context, (i) an employer’s minimal delay due to internal processing or events outside of its control does not an ADA violation; (ii) an employer is not required to provide a specific accommodation if it identify other reasonable accommodations; and (iii) when an employee quits before their accommodation request is resolved, the employee, and not the employer, is typically at fault for the interactive process breaking down.

In addition, the Sixth Circuit held that the employer did not retaliate against plaintiff for asserting her ADA rights. Specifically, the court found that plaintiff was not retaliated against because she was suspended for violating workplace rules, not for requesting reasonable accommodations. In doing so, the court noted that an employee must show that their protected activity was the “but-for” cause of any adverse action. Further, the court found that plaintiff, and other employees, cannot make such a showing where “an intervening legitimate reason to take an adverse employment action [like insubordination] dispels an inference of retaliation based on temporal proximity.”

The Sixth Circuit also held that the employer did not constructively discharge plaintiff. Specifically, the court found that plaintiff’s complained of treatment – the employer investigating her for alleged sexual harassment, declining her preferred accommodation, and suspending her for insubordination – did not support her constructive discharge claim. In doing so, the court noted that a constructive discharge claim “is hard to prove” and requires a showing that “working conditions were objectively intolerable and that [the] employer deliberately created those conditions in hopes that they would force [the employee] to quit.” Further, the court noted that, in the instant case, plaintiff’s suspension was related to her “deliberate insubordination” and her investigation was “management simply… responding to a workplace complaint” such that “no reasonable jury could find that [employer] hoped [plaintiff] would quit because of these preferred reasons.”

This decision highlights that, even when wrestling with their obligations under the ADA context, employers may and should enforce workplace rules.

If you have any questions regarding this area or need assistance evaluating whether to grant or deny long-term or indefinite leave requests, please contact the authors, your Seyfarth Attorney, or a member of the Firm’s Absence Management and Accommodations or Workplace Policies and Handbooks Teams.

By Jennifer L. Mora and Anthony S. Califano

Synopsis: On September 5, 2018, a federal district court in Connecticut granted summary judgment to a job applicant after an employer refused to hire her because she tested positive for marijuana in a pre-employment drug test. The decision, Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Nursing & Rehab. Ctr., should serve as a reminder to employers operating in states with medical marijuana laws to evaluate their policies and practices concerning employee use of marijuana outside the workplace.

Background

The plaintiff claimed that her doctors recommended she use medical marijuana (specifically, a synthetic form of marijuana, Marinol) for her post-traumatic stress disorder (PTSD).

The employer, which was a government contractor, extended to the plaintiff a job offer contingent on her passing a pre-employment drug test. The plaintiff notified the employer that she was a registered medical marijuana user who took Marinol, but only at night before bed so she would not be impaired at work. The employer withdrew the job offer after the plaintiff’s pre-employment drug test revealed a positive result for THC, a chemical component of marijuana.

The plaintiff sued, alleging the employer violated the Palliative Use of Marijuana Act (PUMA)’s anti-discrimination provision, which states:

[U]nless required by federal law or required to obtain funding: … No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient.

The District Court Rejects the Employer’s Preemption Arguments

In its first attempt to end the litigation, the employer moved to dismiss, primarily asserting plaintiff’s PUMA claim was preempted by three federal statutes: the Controlled Substances Act (CSA), the Americans with Disabilities Act (ADA), and the Food, Drug, and Cosmetic Act (FDCA).

On August 8, 2017, the federal district court denied the employer’s motion and held that these laws do not preempt PUMA. The court also held that PUMA has an implied right of action under its employment anti-discrimination provisions. This decision marked the third time in 2017 that a court ruled in favor of a medical marijuana user, with separate decisions in Rhode Island and Massachusetts. These decisions stand in contrast to rulings from other courts–including courts in California, Colorado, Montana, New Mexico, and Oregon–ruling in favor of employers in cases involving employee or applicant use of marijuana.

The parties then conducted discovery and filed cross motions for summary judgment.

The District Court Grants the Plaintiff’s Summary Judgment Motion

One year later, the court denied the employer’s second request to dismiss the case, and instead granted the plaintiff’s motion for summary judgment.

The employer argued, among other things, that as a federal contractor, it was allowed to make the employment decision because it is exempt from PUMA’s anti-discrimination provision. The employer relied on PUMA’s provision allowing employers to refuse to hire or employ state-qualified medical marijuana users if “required by federal law or required to obtain funding.” According to the employer, as a government contractor, it was required to comply with the federal Drug-Free Workplace Act (DFWA) which, the employer argued, makes it unlawful for an employer to allow employees to use illegal drugs. Marijuana remains a Schedule I drug under the CSA and, thus, its use violates federal law. The court disagreed, holding that the DFWA neither requires drug testing nor regulates an employee’s off-duty cannabis use, “much less an employee who uses medical marijuana outside the workplace in accordance with a program approved by state law.”

The court also rejected the employer’s argument that it did not “discriminate” against the plaintiff because it relied solely on her failed drug test rather than on her status as a medical marijuana user. To accept the employer’s argument, according to the court, “would render the statute’s protection against PUMA-based discrimination a nullity, because there would be no reason for a patient to seek PUMA status if not to use medical marijuana as permitted under PUMA.” The court also found it important that PUMA allows an employer to discipline employees for on-duty use of cannabis. The court said that this statutory provision, “by negative implication . . . makes clear that PUMA protects a qualifying patient for the use of medical marijuana outside working hours and in the absence of any influence during working hours.”

Notably, despite the ruling in favor of the plaintiff, the court held that she will not be entitled to her attorney’s fees or punitive damages on the basis that PUMA doesn’t expressly allow for this type of relief.

What the Decision Means for Employers

The decision is from one federal district court analyzing the medical marijuana law in Connecticut. Thus, it is not binding on other courts and the employer may appeal the decision. Regardless, this is a developing area of the law and, thus, employers should consider reviewing their drug-related policies. More states are enacting medical marijuana laws and courts have issued employee-friendly decisions addressing existing laws, which makes it particularly important for employers to stay ahead of this evolving area of the law.

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

By James L. Curtis, Erin Dougherty Foley, Adam R. YoungMegan P. Toth, and Craig B. Simonsen

Seyfarth Synopsis: Employers must evaluate their safety protections for pregnant women and engage in the interactive process with employees to find reasonable accommodations.

Reproductive Health Hazards in the Workplace

Pregnant women work in hazardous jobs across the United States and in every sector of the economy.  While employers have a general duty to protect their employees from a condition known to cause harm, pregnant women may face unique risks and may be more susceptible to a range of serious workplace hazards.

The Occupational Safety and Health Administration (OSHA) notes that “exposure to reproductive hazards in the workplace is an increasing health concern.”  The National Institute for Occupational Safety and Health (NIOSH) has information resources on pregnancy and reproductive health hazards.  Ionizing radiation and lead, for instance, are known hazards to pregnant women and reproductive health.  A fetus might be more vulnerable to certain chemicals, particularly in the early stages of pregnancy when it is rapidly growing and the baby’s organs are developing.  Further, changes in a pregnant employee’s immune system, lung capacity, and even ligaments can increase their risk of injury or illness due to certain workplace hazards.  Employers must protect their employees (including more susceptible pregnant employees) and prevent exposures to these known hazards.

Involuntary Reassignments of Pregnant Women

This does not mean that employers should be reactive and involuntarily remove pregnant women from positions or duties in which they may be exposed to hazards, either to themselves or their developing baby, without the employee’s request and/or agreement. There are both federal and state laws that protect pregnant employees in the workplace, including Title VII to the Civil Rights Act of 1964, which prohibits discrimination based on sex and the federal Pregnancy Discrimination Act prohibits discrimination against employees “on the basis of pregnancy, childbirth, or related medical conditions.”  Moreover, the Americans with Disability Act (ADA), as well as state pregnancy accommodation laws, prohibit discrimination based on qualifying pregnancy related disabilities, and, under certain circumstances, prohibit employers from requiring employees to take accommodations to which they do not agree (i.e., a forced reassignment or relinquishment in job duties).

To the extent that an employer changes a job assignment or removes a woman from a desirable position because she is pregnant or may become pregnant, without a specific accommodation request, and in some cases, agreement from the employee, the employer could face a claim of gender and/or pregnancy discrimination.

Where there is no medically-documented basis (e.g. chemical or radiation hazard) that exposure might injure a fetus, a pregnant or potentially pregnant employee’s perceived susceptibility to a hazard probably would not be a legitimate reason to involuntarily demote, take away opportunities, or discharge a female employee. This, however, does not mean that employers should not offer pregnant workers the opportunity to avoid exposure that may be more harmful to them based on their pregnancy or that it should not be consider as an accommodation.  It simply means job assignment and removal of desirable duty should not be assumed or forced upon a worker because she is pregnant.

However, some potential chemical and radiation exposures may force an employer to make involuntary reassignments.  For example, low levels of lead or radiation may be safe for most employees, but may not be safe for women who are pregnant or may become pregnant.  Employers should inform employees of these hazards and their potential effects on reproductive health and fetal health, and request that the employee notify the employer if the employee is pregnant or is potentially pregnant.  Where there is a potential chemical or radiation hazard that might injure a fetus, an employer may need to propose a reassignment and overrule an employee if she rejects the accommodation. Specific regulations address some of these hazards with regard to pregnant women and mandate actions by the employer.  See https://www.osha.gov/SLTC/reproductivehazards/standards.html; and https://www.osha.gov/SLTC/radiationionizing/pregnantworkers.html.

Changes to Protective Equipment

Because of physical changes to the body during pregnancy which may necessitate new safety protections, employers must consider some workplace safety equipment changes to protect and accommodate pregnant employees.  Personal Protective Equipment, such as a harness for a personal fall arrest system, may no longer fit a pregnant employee or may have the potential to cause unnecessary harm to a worker or their developing baby.  Similarly, gloves, sleeves, helmets, or specialized boots may need to be replaced by the employer, with the assistance of the employee to ensure a proper fit.

Respirators present a trickier question.  If an employee passed a medical evaluation and fit test before becoming pregnant, she may present different medical issues with using a respirator and the respirator may no longer fit properly.  Employers should contact their medical professional to help coordinate any respirator use by pregnant employees.

Disclosure and Voluntary Accommodations

NIOSH recommends that a pregnant employee discuss possible job hazards with the employer and their doctor as soon as possible after learning about the pregnancy.  NIOSH suggests that many pregnant women adjust their job duties temporarily, or take extra steps to protect themselves.

The ADA, as well as various state laws, also requires employers provide accommodations to employees with qualifying pregnancy-related disabilities, upon becoming aware that employees are in need of such an accommodation.  Although employees should be expected to notify their employers of their need for a pregnancy-related accommodation, there are no “magic words” that trigger an employer’s obligation under the ADA. Therefore,  managers should be well trained to identify and properly inquire when a pregnancy-related accommodation may be needed, and how to appropriately engage in the interactive process, both under the ADA and any applicable state laws.

For example, if employers are concerned about exposures to pregnant employees, and the employee has reported that she is pregnant, the employer may ask the employee whether she needs any accommodations.  If the employee is interested in an accommodation, the employer should engage in the interactive process, including a robust dialogue with the employee to determine what reasonable accommodations may be agreeable.  If the employee can no longer perform the essential functions of their position, and there are no other reasonable accommodations available, reassignment to an open position, or if no open positions, a leave of absence, may be the only potential reasonable accommodations possible. However, it is important to be aware, an employee may not be forced to take a different position or a leave of absence as a reasonable accommodation, if there are other reasonable accommodations available.

More Information About Pregnancy In the Workplace

Pregnancy in the workplace presents a range of employment issues that confound human resources managers, in-house counsels, and safety managers.

Seyfarth Shaw has frequently blogged on other pregnancy and employment related issues and topics, like Governor Baker Signs Into Law the Massachusetts Pregnant Workers Fairness Act, Rescind that Job Offer After Her Notice of Pregnancy? Maybe Not, SCOTUS Rules on Pregnancy Accommodation Case, “A Telecommute Dispute” – What is a Reasonable Accommodation Under the ADA?, Supreme Court Debates Reach of Pregnancy Law, New Guidance From The EEOC Requires Employers To Provide Reasonable Accommodations Under The Pregnancy Discrimination Act, New York City and Philadelphia Pass New Pregnancy Accommodation Laws, Not Without Warning: The EEOC Continues To File Barrages Of Pregnancy Discrimination Lawsuits, Pregnancy Discrimination Update: Young v. United Parcel Service, Inc., and Retail Detail: Pregnancy Discrimination, Accommodations and Issues For Retailers.

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), Absence Management and Accommodations, or Workplace Policies and Handbooks Teams.

By Megan P. Toth and Erin Dougherty Foley

Seyfarth Synopsis: The Washington State Office of the Attorney General has recently published a Guide outlining pregnant employees’ civil rights under the Washington “Healthy Starts Act,” a law which became effective July 23, 2017.

Under the Healthy Starts Act, employers with at least 15 employees in the state of Washington must provide certain accommodations to pregnant works, regardless of a disability, and the Act provides a list of nine accommodations to be considered, including:

  1. Providing more frequent, longer, or flexible restroom breaks;
  2. Modifying a no food or drink policy;
  3. Providing seating or allowing the employee to sit more frequently if her job requires her to stand;  and
  4. Limiting lifting to 17 pounds or less.
  5. Job restructuring, including a part-time or modified work schedule, job reassignment to a vacant position, or providing or modifying equipment, devices, or an employee’s work station;
  6. Providing for a temporary transfer to a less strenuous or less hazardous position;
  7. Providing assistance with manual labor;
  8. Scheduling flexibility for prenatal visits; and
  9. Any further accommodations the employee may request, which an employer must give reasonable consideration, taking into account any Department of Labor & Industries or other medical documents provided by the employee.

The rececently issued Guide outlines employers’ obligations with regard to the above suggested accommodations, and sets forth employer prohibited acts with regard to pregnancy accommodations under the Act. Specifically, the Guide clarifies that employers must provide accommodations 1-4 above and cannot request medical certification from a health care professional for those accommodations, and employers may request written certification from a health care professional regarding the need for the accommodations in 5–8 above, or for restrictions on lifting less than 17 pounds.

The Guide also outlines “prohibited practices” under the Act, which include: (1) Failing or refusing to accommodate a pregnant employee, unless doing so would impose an “undue hardship,” which is defined as “an action requiring significant difficulty or expense.” (2) Retaliating against a pregnant employee who requests a change to their work environment (3) Denying employment opportunities to an otherwise qualified employee because of their needs, or (4) Requiring a pregnant employee to take leave if an alternative solution could be provided.

Finally, the Guide provides information for employees regarding how to report a violation of their rights under the Act.

So what now? The Guide does not actually change or alter employers’ obligations under the Act with regard to pregnancy accommodations, but rather clarifies and outlines what employers should be doing (since the law was enacted in July 2017). Therefore, employers should review their pregnancy accommodation policies and practices in Washington, and ensure they comply with the Act, as outlined in the Guide.

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

By Condon McGlothlen and Colton D. Long

Seyfarth Synopsis: Since 2001, Illinois has required that employers provide unpaid nursing or lactation breaks for working mothers. Effective last week, at least some of those breaks must now be paid.

On August 21, 2018, Governor Rauner signed a bill amending the Illinois Nursing Mothers in the Workplace Act. The amendment took effect immediately, and requires that Illinois employers provide paid breaks to mothers who breastfeed or express milk at work. The Act previously required that Illinois employers provide “reasonable unpaid break time” to nursing/expressing employees. It also said that breaks provided to nursing/expressing employees “must, if possible, run concurrently with any break time already provided to the employee.”  As amended, nursing breaks “may” still run concurrently with other breaks. However, as to the “reasonable” number of additional breaks beyond those regularly provided to all employees, an employer “may not reduce an employee’s compensation for the time used for the purpose of expressing milk or nursing a baby.” In short, nursing employees must now be paid for those extra breaks.

To understand how this works, first determine what the law (or your lawful policy) already provides as regards breaks. The federal Fair Labor Standards Act doesn’t require any rest or meal breaks, but mandates that employees be paid for short breaks ranging from between 5 and 20 minutes. It also says employers can provide an unpaid meal break of at least 30 minutes, so long as the employee is not required to perform any work during that time. Separately, Illinois law mandates that employees who work 7.5 continuous hours or more receive an unpaid meal break of at least 20 minutes. Thus, in order to comply with both federal and state law, many Illinois employers provide an unpaid meal break of at least 30 minutes.

Under the Illinois Nursing Mothers Law as amended, nursing employees can still be required to use that unpaid meal break for nursing or expressing milk (along with any other breaks the employer chooses to provide employees generally). Also like before, nursing mothers are entitled to a “reasonable” number of additional nursing/expressing breaks. Unlike before, however, those extra breaks must now be paid.

In addition, the amendment specifies that the reasonable – now paid – breaks requirement runs only for “for one year after the child’s birth.” Previously, the Act did not limit the time during which working mothers were entitled to additional nursing breaks. Lastly, the original Act excused employers from providing additional break time for nursing/expressing employees “if to do so would unduly disrupt the employer’s operation.” The amendment changed that affirmative defense language; now, in order to be to be excused from the additional paid breaks requirement, Illinois employers must establish “undue hardship”, a demanding standard borrowed from the Americans with Disabilities Act and the Illinois Human Rights Act. The amendment thus makes it harder for an employer to argue that business demands or other reasons should relieve it from compliance.

Since the amendment is now in effect, Illinois employers must promptly review their current nursing/lactation policy and see if it complies with the recent amendment. If not, revise it as soon as possible. In the meantime, follow the new law. If a working new mother requests additional breaks for nursing, don’t be afraid to discuss with her appropriate details regarding the number and frequency of those breaks. The Act, both before and as amended, envisions a joint, interactive determination of how many additional breaks are needed. And don’t count on having an affirmative defense for not providing paid nursing breaks, especially if you are a large employer; that uphill climb got even steeper last week.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of the Firm’s Absence Management and Accommodations or Workplace Policies and Handbooks Teams.

By Jade M. Gilstrap and Alex S. Drummond

Seyfarth Synopsis: The D.C. Circuit recently revived a single-leg amputee’s claim that his former employer failed to accommodate his disability by refusing his request for a classroom aide. In reversing the lower court’s decision in part, the two-member panel found triable issues of fact existed regarding whether forcing the plaintiff to work with pain, when that pain could have been alleviated by his requested accommodation, violated The Americans with Disabilities Act (ADA).

Case Background

In Hill v. Associates for Renewal in Education, Inc., No. 15-7064 (D.C. Cir. 2018), the plaintiff, who wore a leg prosthesis, worked as a teacher and program aide for Associates for Renewal in Education, Inc. (“ARE”). Throughout his employment, Hill worked in a three-story building with no elevator and was responsible for instructing participants in the classroom, on field trips, and during outside activities; overall classroom management; counseling participants on academic and behavioral challenges; and providing administrative and/or clerical support to administrative personnel.

A year and a half before his termination, Hill injured his amputated leg and damaged his prosthesis while walking across ARE’s playground, which resulted in him experiencing severe pain and bruising after standing for long periods of time. As an accommodation, he requested and was assigned a classroom aide and was permitted to hold his classes on the second floor of the building.

A couple of months later, ARE reassigned Hill to a classroom on the third floor. Unlike the other teachers in his program, Hill was not assigned a classroom aide, despite having the largest classroom size among his peers. According to Hill, he contested the reassignment and requested to be moved back to a lower floor and with a teacher aide, but to no avail. Around the same time, Hill began to have disciplinary issues at work and was subsequently terminated.

Hill subsequently filed a pro se complaint against ARE alleging, inter alia, claims for disability discrimination and hostile work environment based on the non-profit’s denial of his requests for a classroom aide and to be reassigned to a classroom on a lower floor. The D.C. District Court denied summary judgment on Hill’s claim for failure to accommodate based on ARE’s refusal to assign him to a lower floor, but granted summary judgment on his claims for hostile work environment and failure to accommodate his request to be assigned a classroom aide. Specifically, with respect to his request for a classroom aide, the district court concluded that Hill “had not adduced any evidence to show that an [a]ide would have been an effective means of addressing the limitations imposed by his amputated leg,” despite Hill’s insistence that the aide was necessary because his disability substantially limited his ability the perform the essential functions of his job “without pain and bruises,” which required walking long distances, standing for long periods of time, and climbing consecutive flights of stairs.

Hill appealed. The Circuit court affirmed in part and denied in part.

The D.C. Circuit Court’s Reasoning

The D.C. Circuit Court concluded that the district court was right to grant summary judgment on Hill’s hostile work environment claim (agreeing that even if ARE had denied Hill a classroom aide and failed to assign him to a lower floor, such behavior did not amount to the type of “extreme” conditions sufficient to constitute a hostile work environment), but wrong to say that Hill had not proffered sufficient evidence for a reasonable jury to conclude that ARE violated the ADA when it refused his request for a classroom aide.

To prevail on a failure-to-accommodate claim brought under the ADA, a plaintiff is required to show that: 1) he suffered a qualifying disability, 2) his employer knew about the disability, 3) he could perform the essential functions of his job, with or without a reasonable accommodation, and 4) his employer refused to make the accommodation. An accommodation is only reasonable under the ADA if it “relate[s] to the disability that creates the employment barrier and, in fact, “address[es] that barrier.”

The Court found that Hill—who alleged he experienced “a hazard of pain and bruising” while standing for long periods of time, pain that resulted from him having to supervise his class without assistance from a classroom aide— had satisfied his burden of sufficiently connecting his disability with his request for a classroom aide and the assistance the aide could provide him in performing the essential functions of his job. The Court, however, found unpersuasive ARE’s argument that Hill did not need the accommodation of a classroom aide because he could perform the essential functions of his job without accommodation, albeit with a lot of pain, and, instead, held that “[a] reasonable jury could conclude that forcing Hill to work with pain when that pain could be alleviated by his requested accommodation violates the ADA” and that “if ARE [had] provided Hill a classroom aide as it did for his colleagues, that aide could help Hill supervise students in the classroom and during outdoor activities, reducing his need for prolonged standing and mitigating the alleged ‘hazard of pain and bruising.’”

While the Court expressed no opinion about whether the classroom aide would have, in fact, constituted a reasonable accommodation for Hill’s disability—leaving that for the jury to decide—it reminded employers and employees, alike, that while “the ADA does not make employers responsible for alleviating any and all challenges presented by an employee’s disability… an employer may be required to accommodate an employee’s disability by ‘reallocating or redistributing nonessential, marginal job functions,’ or by providing an aide to enable the employee to perform an essential function without replacing the employee in performing that function.”

Takeaways for Employers

The ADA continues to be a significant area of liability for employers, as disability-related issues continue permeating today’s workplace. The D.C. Circuit’s decision stands as a reminder to employers to carefully assess the reasonableness of an employee’s request for an accommodation and to strongly consider such requests in the absence of undue hardship. Employers should take care to remember that the “reasonableness” of any request for an accommodation will necessarily depend on the specific circumstances which must be evaluated on a case by case basis. The mere fact that a disabled employee can perform the essential functions of his or her job, albeit with pain or discomfort, may not, by itself, be sufficient to deny that employee a reasonable accommodation.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of the Firm’s Absence Management and Accommodations or Workplace Policies and Handbooks Teams.

 

By Annette Tyman, Lawrence Z. Lorber, and Michael L. Childers

Seyfarth Synopsis: The Office of Federal Contract Compliance Programs (“OFCCP”) is closing the summer by issuing two new enforcement directives. The first, Directive 2018-03, clarifies the OFCCP’s enforcement of religious non-discrimination in light of recent court decisions and executive orders. The second, Directive 2018-04, creates focused reviews for Executive Order 11246 (“EO 11246”), Section 503 of the Rehabilitation Act (“Section 503”), and the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”). These two directives come just a week after the OFCCP released its much anticipated publication outlining what federal contractors can expect from the agency.

“What Contractors Can Expect”

On August 2nd, the OFCCP published the “What Contractors Can Expect” guidance which lays out the agency’s enforcement plans and echoes the message of transparency that the OFCCP announced when the new leadership took over and that Acting OFCCP Director Craig Leen recently reiterated to the contractor community during his opening address at the 2018 National Industry Liaison Group. In it the OFCCP assures contractors that they can expect:

  • Access to Accurate Compliance Assistance Material;
  • Timely Responses to Compliance Assistance Questions;
  • Opportunities to Provide Meaningful Feedback and Collaborate;
  • Professional Conduct by OFCCP’s Compliance Staff;
  • Neutral Scheduling of Compliance Evaluations;
  • Reasonable Opportunity to Discuss Compliance Evaluation Concerns;
  • Timely and Efficient Progress of Compliance Evaluations; and
  • Confidentiality

These expectations are consistent with the message of collaboration that the OFCCP has promised under the current administration. References to the neutral scheduling of compliance reviews and the opportunity to discuss concerns contained in the guidance echo previous actions taken by the agency in 2018.

The agency followed up on August 10th by issuing two new directives.

Directive 2018-03: Executive Order 11246 § 204(c), religious exemption

Directive 2018-03 clarifies the agency’s position on religious non-discrimination under EO 11246 in light of recent cases involving the relationship between federal regulation and the Free Exercise Clause, including Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, Trinity Lutheran Church of Columbia, Inc. v. Comer, and Burwell v. Hobby Lobby Stores, Inc. In its press release, the OFCCP noted that this Directive also serves to align the agency’s enforcement actions with recent executive orders issued by the White House protecting religious freedom and the ability of faith-based and community organizations to compete fairly for government contracts and grants. The Directive instructs OFCCP staff to take these policies into consideration when providing compliance assistance, processing complaints, and reviewing compliance with EO 11246.

In practical terms, this Directive may not impact the vast majority of interactions that occur between the agency and the contractor community, as it is directed to OFCCP staff. However, it does signal a change in the way that the agency reviews religious accommodations during compliance evaluations. It may also impact complaint investigations against certain employers which allege discrimination on the basis of religion or sexual orientation and gender identity. The Directive specifically notes that “[t]his Directive supersedes any previous guidance that does not reflect these legal developments, for example, the section in OFCCP’s Frequently Asked Questions: Sexual Orientation and Gender Identity regarding “Religious Employers and Religious Exemption.” See https://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html.”

Directive 2018-04: Focused reviews of contractor compliance with Executive Order 11246 (E.O.), as amended; Section 503 of the Rehabilitation Act of 1973 (Section 503), as amended; and Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), as amended

While the impact of Directive 2018-03 appears to be fairly limited, Directive 2018-04 represents a major change in the way that the OFCCP enforces affirmative action and non-discrimination requirements, particularly under Section 503 and VEVRAA. The Directive calls for the agency to direct a portion of future scheduling lists to “focused reviews” of EO 11246, Section 503 and VEVRAA. The Directive further notes that in these focused reviews, “OFCCP would go onsite and conduct a comprehensive review of the particular authority at issue.” The reviews would include “interviews with managers…as well as employees affected” by the particular regulation and also evaluations of “hiring and compensation data.” The Directive instructs the OFCCP staff to develop a standard protocol for conducting the focused reviews as well as staff training, contractor education and compliance assistance materials. This policy suggests that the agency will be increasing its focus on the enforcement of Section 503 and VEVRAA which have historically received less attention than EO 11246 during compliance reviews.

What This Means for Employers?

Neither the “What Contractors Can Expect” policy, nor the directive clarifying the religious exemption signal any significant change for contractors. The creation of the focused reviews, however, puts contractors on notice that the OFCCP will be scrutinizing policies and practices that relate to disability and protected veteran status much more closely. In anticipation of the first round of focused reviews, contractors should ensure that their current policies and practices comply with the 2014 updates to the Section 503 and VEVRAA regulations. Contractors should specifically focus on the following:

  • Implementing an audit and reporting system to measure the effectiveness of their affirmative action efforts and take any necessary remedial measures;
  • Documenting requests for accommodations;
  • Ensuring that an interactive process for requesting accommodations during the hiring process is in place;
  • Soliciting protected veteran and disability status from applicants and new hires;
  • Listing all job openings with state employment delivery services; and
  • Reviewing job descriptions and qualifications to ensure that they do not screen out protected veterans or individuals with disabilities.

Contractors should also remember that in connection with both current compliance reviews and the new focused reviews, they may be asked to provide their most recent VETS-4212 Report. The deadline for filing the 2018 VETS-4212 Report is fast approaching on September 30, 2018.

It is unclear how the introduction of the focused reviews may impact desk audit submissions or whether these reviews will necessitate additional analyses for hiring or compensation. We anticipate further announcements from the OFCCP given its promise to provide contractor education and compliance assistance materials. We will continue to monitor these changes and will alert you as more develops.

In the meantime, if you have questions about best practices for OFCCP compliance and audit defense, please contact a member of Seyfarth’s Organizational Strategy & Analytics Team or your Seyfarth relationship partner.

By Sara Eber Fowler and Lynn Kappelman

Seyfarth Synopsis: Oregon’s new employee scheduling law – impacting hourly employees at large retail, food service, and hospitality employers – goes into effect after the end of this week, on July 1. Affected employers must now be aware of the potential consequences in changing employees’ schedules.

Friendly Reminder! At the end of this week, on July 1, Oregon will become the first state with a predictable scheduling law in effect. You may recall that predictable scheduling laws – sometimes referred to as fair or flexible scheduling laws – are laws that impose certain financial penalties on covered employers who make changes to employees’ schedules, and may restrict specific scheduling practices (like scheduling on-call shifts) altogether. While stemming from admirable goals, these laws can have the effect of making employee scheduling – already head-splitting! – an even more complicated, and costly, process. Until Oregon’s legislature passed its scheduling law last summer, other predictable scheduling laws had been limited to cities and municipalities (e.g., San Francisco, Emeryville, Seattle, New York City).

Hopefully, if you are a covered employer (retail, hospitality or food service employers with 500 or more employees) with operations in Oregon, you have already developed a plan for compliance with this new scheduling law. (And if you have not – do not panic! – the law will not be enforced until at least January 2019.) Below are some key takeaways and reminders for complying with Oregon’s employee scheduling law:

  1. The law does not apply to salaried employees. Given the law’s purpose to cure inflexible, unpredictable schedules that plague hourly workers, that makes sense. Sorry exempt workers, no predictability pay for you!
  2. The law requires advance notice of schedules at least 7 days before the first day on the schedule – not 7 days’ before a shift. So, if you schedule two weeks at a time, your work schedule covering July 15-28 needs to be posted no later than July 8. And yes, it means that, subject to some exceptions (see below), any changes made to an employee’s schedule after July 8 will require predictability pay – even if the change is made with far more than 7 days’ notice before the actual shift. Plan carefully, if you can!
  3. Premium pay comes in all shapes and sizes. It is not just about changing work schedules after the 7-day notice period – any alterations to employees’ hours worked within that notice period may require additional compensation. That includes adding and subtracting shifts, sending employees home early, asking employees to stay late, and changing start or end times (with or without a loss of hours). The amount of premium pay depends on the degree of schedule change. The law also requires premium pay for any employee scheduled to work without 10 hours’ rest, regardless of whether an employee receives sufficient notice (except split shifts).
  4. But, keep in mind – not every schedule change comes with financial penalties. There are many ways for employers to avoid financial penalties for schedule changes. A few notable exceptions include:
  • Schedule changes of 30 minutes or less;
  • Employees voluntarily trading shifts;
  • Employees who request a schedule change (in writing);
  • Schedule changes for legitimate disciplinary reasons; and
  • Employees on a company’s Voluntary Standby List, who agree to work a shift with less than the required notice.

5.  Speaking of which – use a Voluntary Standby List! It is hard to think of a reason not to have a Voluntary Standby List (“VSL”) if you are covered by Oregon’s scheduling law. Employees may choose to include their names on a VSL, and if additional shifts become available (e.g., unanticipated employee call-offs or customer needs), employers can ask employees on the VSL to fill-in without being required to pay additional compensation. Keep in mind, however, that employees on the VSL can still decline to work any shifts offered, and can take their names off of the list at any time. The law also has specific requirements about the kind of notice employees must receive about the VSL, if employers elect to use one.

With these tips in mind, hopefully navigating Oregon’s employee scheduling law will be a more “predictable” endeavor.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.