Workplace Policies and Processes

By John P. Phillips

Seyfarth Synopsis: Complying with the ADA, particularly when an employee has a mental health-related disability, can be challenging. Fortunately, a recent decision out of the Seventh Circuit provides helpful guidance for employers struggling to accommodate employees with mental health issues while at the same time maintaining safe and productive workplaces. The decision makes clear that in the appropriate circumstances, employers can require an employee to undergo a mental health examination as part of a fitness-for-duty test. The decision—and the New Year—also provides a good excuse for employers to evaluate their ADA policies and procedures.

Every year, employers and HR Departments around the country struggle to comply with the requirements of the ADA. At the same time, ADA-related issues continue to become more complicated, and the individualized nature of disability claims mean that even the most accommodating employers can find themselves making tough decisions—and then having to defend those decisions.

On top of this, there has been a steady rise in employees taking prescription drugs or receiving some form of psychiatric or other mental health treatment. In many cases, these employees have no problem performing their jobs, and no issues arise. However, when these employees begin to struggle in their jobs or, even worse, when they engage in problematic and sometimes aggressive behavior toward co-workers, employers must balance ADA compliance with maintaining safe and professional workplaces. This will continue to be difficult, but a recent decision from the U.S. Court of Appeals for the Seventh Circuit provides some helpful guidance.

Background on the Case

In Painter v. Illinois Department of Transportation, the Seventh Circuit recently considered when an employer can required an employee to undergo a mental health examination. In that case, Painter, the plaintiff, was a problematic employee, who snapped and screamed at co-workers, gave them blank stares, constantly mumbled to herself, repeatedly banged drawers in her office, was confrontational and argumentative, and began keeping a detailed log of interactions with co-workers during working time, often drafting more than one entry per hour. Painter even sent a concerning email to her union representative, in which she referenced “something” being “dead” and which prompted her union representative to contact the police.

Faced with numerous employee concerns and continued difficulties with Painter, her employer, the Illinois Department of Transportation (“IDOT”), asked that she undergo a fitness-for-duty exam. Initially, IDOT referred Painter to an occupational-medicine specialist, who in turn referred her to a psychiatrist because he noted that Painter could be bipolar. Eventually, after several doctor visits, administrative leave, and continued co-worker and supervisor complaints, IDOT asked Painter to undergo two fitness-for-duty exams with a psychiatrist. At first the psychiatrist cleared Painter to return to work, but when the complaints and concerning behavior continued (and after Painter sent the threatening email to her union representative), the psychiatrist found that Painter was unfit for duty because of her “paranoid thinking and the highly disruptive behavior which results from her paranoia.” Painter then brought suit, alleging that IDOT’s requirement that she see a psychiatrist violated the ADA.

The Seventh Circuit’s Reasoning

Under the ADA, employers are prohibited from requiring their workers to undergo medical exams, unless the exams are “job-related and consistent with business necessity.” Courts across the country have held that the job-related and business necessity test is a difficult burden for employers to meet. Luckily, the Seventh Circuit took a pragmatic view of IDOT’s decision to require psychiatric exams. The Court stated that when the employer “has a reasonable belief based on objective evidence that a medical condition will impair an employee’s ability to perform essential job functions or that the employee will pose a threat due to a medical condition,” the employer may require a medical exam. The Court also noted that preventing employers from endangering their co-workers is a business necessity, and the Court found that “[e]mployers need not retain workers who, because of a disability, might harm someone; such a rule would force an employer to risk a negligence suit to avoid violating the ADA.”

Applying this legal framework to the facts of the case, the Seventh Circuit ruled that, as a matter of law, the psychiatrist examinations were job-related and consistent with business necessity because IDOT reasonably believed that Painter might be a danger to herself and co-workers. Thus, IDOT did not violate the ADA.

Takeaways and Best Practices

The Seventh Circuit’s decision is welcome news for employers, and it injects much needed common sense into the ADA case law. In particular, employers and HR Departments can consider asking employees to see a psychiatrist for a fitness-for-duty exam in the right circumstances. However, employers must still be careful that any medical examination they require an employee to undergo is directly related to a reasonable belief that the employee cannot perform the essential functions of his or her job.

In addition, there are a number of other proactive steps employers can consider to help ensure that disability-related issues are handled appropriately, such as (1) providing ADA and disability training to supervisors and managers, (2) referring all disability claims to HR, (3) implementing a written procedure for dealing with disability claims, (4) going through the interactive process in all instances, (5) ensuring all job descriptions are up-to-date and accurate, (6) documenting everything, and (7) working with a competent physician or medical professional, as appropriate.

ADA and disability-related issues will only continue to proliferate in today’s workplace. Fortunately, at least one court has recognized the practical necessities employers face when complying with the ADA. By knowing the requirements of the ADA and taking proactive steps to ensure compliance, employers can put themselves in the best possible position to handle all disability-related issues appropriately and minimize any legal risk.

 

By Samantha L. Brooks

Seyfarth Synopsis: Mandatory vaccines and flu shots present challenges to employers attempting to accommodate the sincerely held religious beliefs of employees.  In this case, a hospital worker claimed that he was terminated for failing to get a flu shot due to his religious beliefs.  In affirming the District Court’s decision granting the employer’s motion to dismiss, the Third Circuit held that the worker’s anti-vaccination beliefs were not religious and that, as a result, he was not entitled to the protections of Title VII.  Fallon v. Mercy Catholic Med. Ctr. of S. Pa., No. 16-3573 (3rd Cir. Dec. 14, 2017).

The plaintiff, Paul Fallon, was a Psychiatric Crisis Intake Worker.  In 2012, Fallon’s employer, defendant Mercy Catholic Medical Center of Southeastern Pennsylvania, began requiring employees to obtain a yearly flu vaccine, or submit an exemption form to obtain a medical or religious exemption.  Any employee granted an exemption was required to wear a mask as an accommodation.

Although Fallon did not belong to any organized religious organization, he held strong personal and medical beliefs opposing the flu vaccine.  As alleged in his complaint, Fallon believed that he “should not harm” his own body and that the flu vaccine “may do more harm than good.”  In 2012 and 2013, Fallon sought and obtained exemptions based on his personal beliefs, which he explained in a lengthy essay attached to his requests for exemption.  In 2014, Fallon again requested an exemption and again attached the essay to his request; however, his request was denied, and his employer explained that its standards for granting exemptions had changed.  His employer requested a letter from a clergy member to support his request.  Fallon could not provide one.  He was suspended and ultimately terminated for failure to comply with the flu vaccine requirements.

Fallon filed a complaint in federal District Court in Pennsylvania wherein he alleged disparate-treatment religious discrimination and failure to accommodate his religion in violation of Title VII.  The District Court granted the employer’s motion to dismiss because Fallon’s beliefs, while sincere and strongly held, were not religious in nature and, therefore, were not protected by Title VII.  The dismissal was with prejudice because the District Court concluded that an amendment to Fallon’s complaint would be futile.  Fallon appealed.

In its opinion affirming the judgment of the District Court, the Third Circuit analyzed whether Fallon’s beliefs were, in fact, religious.  Specifically, pursuant to Supreme Court and Third Circuit precedent, the Court analyzed:

  • Whether Fallon’s beliefs were, in the context of Fallon’s life, religious;
  • Whether Fallon’s beliefs occupied a place in Fallon’s life parallel to that filled by God in a traditionally religious person;
  • Whether Fallon’s beliefs addressed “fundamental and ultimate questions having to do with deep and imponderable matters”;
  • Whether Fallon’s beliefs were a “belief-system”; and
  • Whether there were any formal and external signs of Fallon’s beliefs.

After identifying and analyzing these factors, the Court held that Fallon’s beliefs were not religious because they did not “address fundamental and ultimate questions having to do with deep and imponderable matters.”  Rather, Fallon “simply worr[ied] about the health effects of the flu vaccine, disbelieve[d] the scientifically accepted view that it is harmless to most people, and wish[ed] to avoid this vaccine.”  In sum, the Court held that Fallon’s belief–although sincerely held–was medical, rather than religious, and did not occupy a place in Fallon’s life similar to that of a more traditional religion or faith.

Since Fallon’s objection to the flu vaccine was not religious, it was not protected by Title VII.  Importantly, the Court noted that anti-vaccination beliefs can be part of a broader religious faith and that, in those circumstances, they are protected.  In fact, in a footnote, the Court pointed out that Christian Scientists regularly qualify for exemptions from mandatory vaccination requirements.

Employer Takeaways Regarding Religious Accommodation Generally

For employers, and especially healthcare employers, this case reiterates the well-established standards for what constitutes a sincerely held religious belief–rather than a secular personal or medical belief — to warrant an accommodation.

Once an employer determines that an employee has a “sincerely held” religious belief, Title VII requires the employer to reasonably accommodate the employee’s religious belief, unless the employer can demonstrate that it is unable to reasonably accommodate “without undue hardship on the conduct of the employer’s business.”  Importantly, if the employer denies the requested religious accommodation, the employer has the burden to prove the hardship.

The Fallon case also serves to remind employers that what is “religious” is a situational, case-by-case inquiry, especially when considering that one person may engage in a practice for religious reasons, but another person may engage in the very same practice for purely secular, non-religious reasons.

It is good practice for employers, in the interactive process, to ask the employee about the nature of the beliefs, in a sensitive, non-prying manner that respects the employee’s beliefs and privacy.  In doing so, the employer may help elicit what is religious versus what is personal preference.  Before doing so, employers should seek advice of counsel with expertise in this area because the distinction between religious and non-religious beliefs is tricky and highly fact-specific.

It is, however, not a best practice for an employer to request a letter from a clergy member to support an employee’s claim of a religious belief.  It is well-established that an employee’s belief need not be part of an organized, established religion, and it need not be approved by a clergy member.  The Court in Fallon, in a footnote, reiterated that “[a] letter from a clergy member is not the only way to demonstrate that one holds a religious belief.”  The Court further stated that Fallon’s employer mistakenly believed that it could not discriminate on the basis of religion if it terminated an employee who could not produce a letter from a clergy member.  (Nevertheless, the Court held that because Fallon’s beliefs were not religious, terminating him for acting on his beliefs did not constitute religious discrimination.)

The Legal Landscape Regarding Mandatory Vaccines and Religious Accommodation

Employers should be mindful that mandatory flu vaccine policies, particularly for healthcare employers, is a hotly contested issue that can be very jurisdictionally dependent.  Healthcare employers are in the unique position of balancing two equally important priorities: employee requests for religious accommodations, and patient health and safety.

Since 2016, the EEOC has brought several lawsuits against hospitals and healthcare providers in connection with mandatory flu vaccine programs.

In the recent case of EEOC v. Baystate Medical Center, Inc., No. 16-30086 (D. Ma.), the EEOC claimed the employer violated Title VII when it suspended and later terminated an employee after she refused to get the flu vaccine.  The EEOC claimed the employer violated Title VII when the only accommodation it allegedly offered to the employee who sought a religious exemption to the flu vaccine–wearing a face mask at all times while at work–did not allow the employee to effectively perform her job.  Although Baystate Medical Center, Inc. is still pending, both that case and Fallon reiterate the duty of healthcare employers to consider accommodations under Title VII based on the specific facts and circumstances of the situation.

Particularly in light of the EEOC’s recent activity on this issue, an employer must explore what reasonable accommodations can be offered to an employee (preferably with advice of counsel with expertise in this area) and, if the employer is going to deny the request for accommodation, it must document the justifications for the denial.

Employers, their human resources departments and counsel must also be aware of developments in federal, state, and local discrimination laws, which can vary from jurisdiction to jurisdiction.

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

By Philippe Weiss and Erin Dougherty Foley

Seyfarth Synopsis: In the last in a three-part series addressing sexual harassment in the workplace, we asked Philippe Weiss, Esq., Managing Director of Seyfarth Shaw at Work, to share insights from the front lines, that can help organizations credibly and effectively ensure their company culture is respectful and not tolerant of discrimination, harassing behavior or other inappropriate workplace conduct.

Q.  Based on your client and agency interactions, how have leadership and organizational mindsets changed since the rash of harassment scandals started to make national news?

A.  Daily headlines detailing high-profile harassment scandals clearly have many company executives and compliance professionals talking and worried. (Our call volume at SSAW has spiked and, notably, a significant number of callers are C-Suite members, themselves.) High-level executives have sought out our attorney-trainers and asked about strategies to avoid becoming an unwitting enabler.  We sense a wake-up call among many of those in key positions of power.

In-house legal and HR teams are reporting to us that they are now more fully appreciating how uncomfortable it can be for employees to confront those who cross a respect line and to report misconduct by higher-ups.  Organizations realize that they need real solutions that will be impactful and help reinforce a culture of non-tolerance for harassment in the workplace.

Q.  What kind of an opportunity has this created for compliance professionals? Do you and your group view the current momentum as sustainable?

A.  We see a significant opportunity for compliance professionals, as organizations are now willing to invest and prioritize harassment prevention and EEO – with longer term, comprehensive, and more strategically designed initiatives.   We have seen line items suddenly open-up in many annual budgets for compliance and conduct programming. Organizations are also increasingly investing in climate and employee surveys/focus groups, which (of course) must be handled delicately and skillfully – but which can also powerfully inform training and communications.

It is certainly challenging to predict the future and determine whether the current momentum is sustainable.  But given the depth and breadth of the publicity and #MeToo movement and related issues being raised, we see a clear shift that shows no signs of abating.

Q.  Given the apparent failure of passive and cookie-cutter training programs, what training solutions have you and others in the field found actually achieve buy-in and create meaningful behavioral change?

A.  There are a number of different things companies should be considering:

From a training planning standpoint:

  • Consider your claims history, internal complaint records, climate surveys, questions and concerns raised by employees, and organizational environment industry factors in program development.
  • Ensure that policies, codes of conduct and statement of values are just where you want them, in terms of content, core messaging and design.

From a training content perspective:

  • Focus on encouraging and simplifying internal reporting; in this regard many clients are asking for more extensive skill-building around “Responding to and In-taking Complaints and Concerns” to be added into their programs;
  • Focus on “Gateway Conduct” – such as leaders dressing down subordinates, which many have seen devolving into more egregious behavior, over time;
  • Focus on encouraging and creating a “step-up” culture of bystander intervention. Clients we work with report real value in referring to bystanders in the positive – as in “Accountable Allies” or “First Responders.” They have also found critical value in both championing and equipping bystanders with credible skills and simple scripts. “Accountable Allies” must be trained to:

** Spot colleagues’ discomfort;

** Support colleagues, using a safe, step-up, speak-up model;

** Employ distraction and extraction strategies, as appropriate;

** Know when and how to call in reinforcements.

We have known for some time that this is all about surmounting barriers of unease and reluctance to appropriately, safely and collectively “check” those starting to cross a line of conduct/norms (including peers at the C-Suite level). That is why the simplest, most user-friendly and tailored scripts can prove surprisingly effective, when built into a larger and cohesive culture strategy.

From a training design and delivery methodology standpoint:

  • Deliver training in everyday language that emphasizes real-world skill-building and avoids “legalese;”
  • Utilize organizational policies, corporate value statements, and best practices as core aspects of the messaging;
  • Wherever possible, arrange content around a set of practical thematic core elements. Choose central concepts and mantras so that delivery is not perceived as a litany of do’s and don’ts;
  • Sessions should all be engaging and fully interactive. This feature is essential. While always calibrating for an audience, the rule is: the more true interactivity, the better. (Having said that, individuals should not be singled out and “compelled” to answer questions.) Post-training surveys show that participants learn little from a “talking head” instructor. They learn and buy-in from collaborating and seeing how their colleagues respond to relevant situationals – and by building a consensus.
  • Ensure that best practices answers come from the group.
  • Keep to a minimum the use of PPTs, videos, and other relatively passive tools.
  • Because the credibility and impact of the presenter is critical for effective training, facilitators should be qualified attorney-trainers with practice and business leadership experience, who are also (importantly) entertaining and professional presenters with a recognized facility for high-energy delivery and an ability to draw-out individuals and powerfully connect their answers.

An added forward-looking defense bonus is deploying a course that has been evaluated and cited as a credible “culture changer” by federal agency-designated monitors in consent decrees. (Editor’s Note – SSAW has such programs! SSAW has participated in numerous EEOC and DOJ consent decrees where the long-term impacts of various communication and training strategies targeting harassment were comprehensively – and positively – evaluated.)

Q.  What additional top-down communications solutions are most effective in the current climate?

A.  One common approach is an all-employee memo re-articulating the organization’s commitment to respect – a “dignity-declaration” of sorts.

Beyond that, many forward-thinking organizations are employing a “wrap around” training communication cascade/approach. Like the training program itself, communication cascades should use simple terms, statements and values – the simpler, the more memorable.  Communications should be delivered through as many valuable and resonant mediums as possible – from team meetings, to emails, to postings on portals, to delivery of hard copies – and should be presented in differing and creative ways, whether virtually, visually or verbally.  With some forethought, organizations can calibrate the timing and variety of such communications so they impact without becoming redundant.

Of course, the most effective communication strategy is one where management at every level consistently refers to your harassment prevention and conduct training mantras and take-aways.

If you have questions about training or how to work toward a more respectful culture within your organization, please contact the authors, your Seyfarth attorney or Seyfarth Shaw at Work directly.

By Kyla Miller, Megan P. Toth, and Erin Dougherty Foley

Seyfarth Synopsis: Gone are the days where sexual harassment training will be enough. It’s time to shift the workplace focus from just ticking a box (i.e., training complete) to creating a culture where harassment (or discrimination) of any kind is truly not tolerated.  Promptly and effectively responding to such allegations is one step in the right direction.  This is the second article in a three-part series addressing sexual harassment in the workplace, which looks closely at corporate culture and provides tips on how companies might avoid being the next sexual harassment headline.

#MeToo In the Workplace and How to Address It

It’s been more than 30 years since the Supreme Court ruled that sexual harassment is a form of sex discrimination under Title VII, and it’s been nearly 20 years since it mandated that complaints of sexual harassment (and discrimination) be investigated. Yet, in reality, as made clear in recent media reports, most violations go unreported and uninvestigated. The EEOC estimates that, of the 30,000 harassment complaints they receive each year, only 6% to 13% of individuals who experience harassment actually file a formal complaint with the EEOC.  However, the #MeToo campaign may be on its way to changing that statistic.

One key to preventing #MeToo in the workplace is fostering a corporate culture that not only says behavior matters, but also shows behavior matters.  But how do employers both walk the walk and talk the talk?  The following are some helpful tips:

  1. Understand what sexual harassment is … the obvious and the not-so-obvious.

The #MeToo campaign has revealed that the vast majority of people have questions or doubts about whether conduct really is sexual harassment.  Let’s take a little quiz:

Could the following acts be considered sexual harassment? Answer Yes or No.

Requests for sexual favors?

Physical Touching?

Comments relating to a person’s sex generally?

A woman asking out another woman?

A man favoring another man (over a woman)?

A co-worker repeatedly teasing another co-worker about sex?

A client or customer sending gifts to an employee?

Could you definitively answer yes or no to each of these examples?  Or did you need more context?  Your answer should be the latter, because yes, each of those examples could be sexual harassment, but each of them could also NOT be sexual harassment.  It depends on the nature, severity and pervasiveness of the conduct.  Whether or not conduct legally rises to the level of actionable “sexual harassment” cannot be analyzed in a vacuum.

Confused?  Here’s why: The question is (legally) whether the conduct at issue was “severe or pervasive,” such that it affected the terms and conditions of the employee’s workplace, objectively and subjectively.

The point –– Not all physical touching, bawdy conversations or allegations of sexual harassment are legally actionable — even if the person reporting it was offended.  Each inquiry is unique and must be investigated thoroughly to determine if sexual harassment actually occurred and what corrective action, if any, should be taken.

  1. Foster an inclusive culture through training and positive reinforcement by managers.

Companies that continue to tolerate bad behavior are placing themselves at risk.  Even conduct that does not cross the line but is disrespectful or rude takes a toll on employee morale.  Attitudes and culture can change.  Employers can provide training to set behavior expectations, and lead by example to create a culture that does not encourage or tolerate such conduct.  However, training simply to prevent legal liability (i.e., because it is required by law) will fall short.  Companies must work from the top down to incite change, which may include a whole-company approach to create and maintain a culture of tolerance, compliance and respect.  In thinking about how to deploy that type of training, keep in mind that training should be:

  1. Tailored. Mirror training to realistic situations that are specific to your work environment.
  2. Frequent. Once a year or more. Anything less is not enough to highlight it as a high priority.
  3. Interesting. Vary the dynamic, style, form and content each time it is presented. (Keep it fresh!)

To create a systemic culture of inclusion, one place to start is with your Human Resources department.  Your HR department should be diverse and accurately reflect your workforce so that they are able understand and respond to its unique demands.  In addition to HR, the actions and integrity of your corporate leaders are crucial. Your company’s leaders must demonstrate a sense of urgency and commitment to your employees, and particularly to preventing discrimination and harassment. How, you ask? Commit the time and resources towards mindful training and continued support to top-level managers to ensure those who have the power and authority to effect change have the support and resources to do it.  It bears repeating: a culture of tolerance and inclusion starts from the top down.

  1. Allow multiple avenues for reporting harassment.

Most employers have an anti-harassment policy. But simply stating that it is not tolerated is not enough. Make it clear that there are multiple avenues for reporting misconduct. For example, allow employees to notify human resources, contact a higher level executive, or call a third-party hotline.  Giving employees multiple ways of getting the complaints heard further encourages such reporting.

  1. Identify situational risk factors.

Being proactive and identifying risks before they turn into problems (or even worse, lawsuits) is half the battle. One place to start is identifying and addressing circumstances, unique to your company, that may increase the risk for sexual harassment claims. For example, the following situations may increase the risk of sexual harassment claims:

  • Workforces with significant cultural and language differences in the workplace;
  • Workforces with significant age or gender imbalances;
  • Workplaces that value customer satisfaction over employee well-being;
  • Isolated workspaces;
  • Workplace cultures that tolerate or encourage alcohol consumption.
  1. Understand the corporate role.

Even in the wake of heightened media on this issue, protecting your workforce and the company is not impossible.  Employers’ legal responsibilities are to: (1) take reasonable efforts to prevent sexual harassment and (2) to promptly and effectively investigate, respond to, and address complaints. By doing both of these things, employers lessen their chances of being found liable for their employees’ behavior in the wake of a lawsuit.

As recent headlines suggest, “good enough” is “not enough.”  Doing just the bare minimum will not suffice. Strive to do more. Over-train. Over-inform. Over-discuss. If employers can accomplish this, they are on the right path to preventing #MeToo in the workplace.

Next up – We will present insights from Seyfarth Shaw at Work’s Managing Director to share his insights from the front lines and provide his thoughts on how organizations can credibly and effectively combat workplace sexual harassment.

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

Seyfarth Synopsis:  Over the next few weeks, we’re going to weigh in on the growing national debate around the recent wave of sexual harassment allegations.  To date, no one seems immune from the allegations: celebrities, politicians, presidents. See for instance Time Magazine’s Person of the Year 2017 issue. We hope this dialogue will empower employees and employers, alike, to speak up before inappropriate, but previously unmentioned conduct, festers.  This conversation also creates an opportunity for a company to look hard at its corporate culture and how it can strive to make it welcoming and inclusive. Welcome to our three part series. 

The First in a Three Part Series Addressing Sexual Harassment in the Workplace.  (Part 1)

By Erin Dougherty Foley

A Blog in Three Parts:  Kicking off our three part series – this week’s installment will look at how to avoid some of the landmines that can accompany holiday parties; Part 2 will look at the role corporate culture plays in establishing that feeling of mutual respect and shared courtesy; and then in Part 3 we will invite Philippe Weiss, Esq., Managing Director of Seyfarth Shaw at Work, to share his insights from the front lines and his thoughts on how organizations can credibly and effectively combat workplace sexual harassment.

’Tis the Season: Perhaps more than any other time, lawyers and laypeople alike are talking about sexual harassment.  Indeed, the country is in the midst of an important national conversation about such abuses of power and is trying to come to terms with what the despicable “me too” allegations say about our workplaces and our values.  We hope this conversation, the national headlines, social media campaigns, and watercooler conversations, shine a light on genuine misconduct that should be addressed.  But with the holiday season — and the holiday party season — upon us, this adds an extra layer of anxiety to the already wide range of “what could possibly go wrong” scenarios.

We recognize that this year, perhaps more than others, people may be on heightened alert for misconduct or have a lower threshold for what may be considered inappropriate work place conduct.  But Holiday parties also provide an important opportunity to build comradery, give thanks, show appreciation for your employees’ hard work throughout the year, and recognize past achievements. We don’t think you should scuttle these good intentions, but we do think a little advance planning can ease the process.  So, this week, we’re decking the halls with some blogs from the Ghost of Holiday Party’s past (such as Don’t Let Too Much Eggnog Ruin Your Office Holiday Party: Tips to Limit Employer Liability at Company Parties and Don’t Be Scrooged: Wage & Hour Tips To Help Employers Avoid Holiday Party Humbug) , in which our colleagues have sagely opined on how to spread holiday cheer without getting run over by a reindeer (or a charge of harassment).

Party Planning Tips to Consider:

  • Prior to the party, circulate a memo (or an email to all employees) reiterating your company’s policy against sexual and other forms of harassment.
  • Remind employees in that communication that the policy applies to their conduct at company parties and other social events, and they should act in a professional manner at all times.
  • Make attendance at the holiday party entirely voluntary and convey that message to employees with unwavering clarity.
  • Set a tone of moderation by reminding employees of the company’s policy against the abuse of alcohol and zero tolerance with respect to the possession, use, or sale of illegal drugs.
  • Consider limiting the amount of alcohol served and/or stop serving well before the party ends (and have lots of non-alcoholic alternatives).-
  • Have plenty of food, (and curb the concern that someone may be drinking on an empty stomach).
  • No mistletoe, no scantily clad elves, and no “bad Santa” (for all the obvious reasons)!
  • Remind managers to set a professional example, and designate several managers to be on the lookout for anyone who appears to be impaired or intoxicated.
  • Anticipate the need for alternative transportation and don’t allow employees who have been drinking heavily to drive home.

Post-Party Wrap-Up: Of course, if post-party concerns are raised, they should be addressed promptly (investigated if necessary), and, where applicable, dealt with consistent with other incidents of inappropriate conduct.  Remember, just because something happened “off campus” does not make it “off limits” from the Company’s standpoint.  Ensuring that your employees know you are going to respond to any allegation of misconduct sends a powerful message.

Once you’ve gotten past the holidays, and as you face 2018 with a clear head and renewed hope for the new year, it’s a good time to start thinking about whether your company needs to change its ways (like Scrooge after meeting the Ghost of Christmas Future) or to improve its employee communications (like Walter the Dad in Elf) or to be more inclusive (like Santa stopping at the Island of MisFit Toys).  And while making such changes can be challenging, think of the good that can come from them.

Next week, we’ll look at the importance of corporate culture in these times of heightened awareness.  Stay tuned.

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

By James L. CurtisDaniel Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: NIOSH reiterated last week that healthcare workers are exposed to a wide range of hazards on the job and healthcare employers may not be following best practices to protect against these hazards.

Healthcare is the fastest-growing sector of the U.S. economy, employing over 18 million workers, 80% of which are women.  These healthcare workers face numerous hazards on the job, including sharps injuries, exposures to chemicals and hazardous drugs, musculoskeletal disorders (MSDs), latex allergy, violence, and stress.

Significantly, there are more cases of healthcare workers suffering nonfatal occupational injury and illnesses than any other industry sector.  In a recent healthcare study, NIOSH found that as to administering aerosolized pentamidine to patients “22% of respondents did not always wear protective gloves, 69% did not always wear protective gowns, and 49% did not always wear respiratory protection….”  NIOSH concluded that there was “a belief that employers do not fully appreciate the potential adverse health effects associated with exposure to these drugs and therefore do not prioritize adherence.”

As to high-level disinfectants, the survey findings showed that best practices to minimize exposure have not been universally implemented.  NIOSH’s survey found that “17% of respondents said they never received training and, of those who received training, 42% said that it was more than 12 months ago.  19% of respondents said that employer safe handling procedures were unavailable.”  “44% of respondents did not always wear a protective gown and 9% did not always wear protective gloves.”

Critically, NIOSH concluded that employers and employees did not always follow best practices.

For healthcare employers this conclusion should be a red-flag as to the overall quality of their safety and health policies.  Healthcare employers should consult with safety professionals who are well versed in the areas where the employers may be out of touch with best practices.  Such consultations can enhance employee safety and help avoid liabilities associated with OSHA violations.

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 or the Workplace Counseling & Solutions Team.

By Christopher W. Kelleher, Rashal G. Baz, James L. Curtis, and Brent I. Clark,

Seyfarth Synopsis: On October 11, 2017, the Chicago City Council passed an ordinance that will require Chicago hotels to provide certain staff with “panic buttons” and develop enhanced anti-sexual harassment policies.

In an effort to protect hotel employees from sexual harassment and other guest-misconduct, Chicago has passed the Hotel Workers Sexual Harassment Ordinance, which requires Chicago hotels to provide employees who work alone in guest rooms or bathrooms with “a panic button or notification device” which can be used to call for help if the employee “reasonably believes that an ongoing crime, sexual harassment, sexual assault or other emergency is occurring in the employee’s presence.”

According to the Ordinance, “a panic button or notification device” is a portable device designed to be used in emergency situations to summon hotel security or other appropriate hotel staff to the employee’s location. The Ordinance does not require hotels to use a specific type of device, as long as it warns proper hotel personnel and it comes at no cost to the employee.

The Ordinance also requires hotels to develop and distribute a written policy to protect employees against sexual harassment. Specifically, the policy must: (1) encourage employees to promptly report sexual misconduct by guests; (2) describe procedures for handling the reported misconduct; (3) instruct the complaining employee to stop work and leave the dangerous area; (4) offer the employee temporary work assignments; (5) provide the employee with paid time off to make a complaint or testify as a witness; (6) inform employees of additional protections; and (7) include an anti-retaliation provision. The policy must be conspicuously posted in English, Spanish, and Polish.

The Ordinance authorizes fines of $250 – $500 for each day a violation continues, and two or more violations within any 12-month period may result in license suspension or revocation. Hotels will have until July 1, 2018 to implement “panic button” systems, but must comply with the Ordinance’s other provisions (i.e. develop and distribute an updated anti-sexual harassment policy) within 60 days of the law’s publication, which we can expect any day now.

Notably, the Occupational Safety and Health Administration (OSHA) uses the General Duty Clause  to enforce workplace issues against employers.  OSHA can rely on industry practices to support a claim that a “recognized hazard” exists. It is possible that OSHA will use the new Ordinance and employer compliance in Chicago as a basis to require that other hotel employers should also have “panic buttons.”

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

By Erin Dougherty Foley and Craig B. Simonsen

Seyfarth Synopsis: In this case a home-care nurse complained about the quality of care her patient received from the patient’s family members. Subsequent review and inspections by the company found some “serious problems” with the employee’s care-giving — and ultimately led to her termination. The Sixth Circuit Court agreed with the employer’s analysis. Blair v. Maxim Healthcare Services, Inc., No. 17-5025 (6th Cir. Oct. 6, 2017).

The plaintiff, Teresa Blair, was a home-care nurse that provided medical care for a patient with cerebral palsy and mental retardation. Over the course of several years the plaintiff, as directed by her employer, reported numerous incidences of neglect of the home-care patient at the hands of the patient’s family. Blair complained that the patient’s mother was not mentally capable of caring for him.

Blair, though, exhibited her own employment issues on the job. According to the Court, Blair had shown up at a patient’s house when not scheduled to work; made errors on medical charts; failed to take a patient’s vital signs for the doctor; falsely reported that the doctor had ordered a patient quarantined and that Blair alone should care for the patient while he had the flu; and attempted to change her schedule without her supervisor’s permission.

Subsequently, Blair reported upon arriving at her home-care position, finding her patient in distress. After alerting authorities, Blair was told to call an ambulance. After arriving at the hospital, a doctor evaluated the patient and noted “normal vital signs and no clinical signs of illness or distress.” Blair’s supervisor told her to turn her patient’s care over to the hospital staff. Blair however continued to shadow hospital staff until that evening. The patient was released from the hospital the next day.

About a week later, the employer gave Blair a written warning indicating that she had failed to follow her supervisor’s instructions to let the hospital staff take over, among other things.

Then, after Blair’s patient’s release from the hospital, one of Blair’s supervisors and a registered nurse, visited the patient’s home and noted some “serious problems” with Blair’s care-giving. For instance, Blair had not placed a pulse-oximeter probe on the patient’s finger, which was a problem because “the doctor (and Blair’s supervisor) had ordered continuous use of the probe to measure [the patient’s] blood-oxygen saturation level.” Blair had also failed to place an ambu-bag at the patient’s bedside. “This device was supposed to be within arm’s reach so that, in an emergency, Blair could use it to help [the patient] breathe. The device was found in a closet on an upper shelf and the closet door was blocked by a large piece of equipment. “A month before, Blair had been reprimanded for the same mistake.” Blair was fired the next day.

Blair then sued the employer in Kentucky state court, asserting wrongful-discharge claims. The employer then removed the case to federal court under diversity jurisdiction. Blair amended her claims to assert that the healthcare employer had discharged her in violation of Kentucky’s Patient Safety Act. The district court granted summary judgment to the employer on all claims.

In discussion of the law in this case, the Court explained that the Kentucky Patient Safety Act requires that any “employee of a health care facility . . . who knows or has reasonable cause to believe that the quality of care of a patient, patient safety, or the health care facility’s or service’s safety is in jeopardy” to “make an oral or written report of the problem to the health care facility[.]” Citing Ky. Rev. Stat. § 216B.165(1). In addition, the Act also prohibits any “health care facility or service” from retaliating “against any agent or employee who in good faith reports[.]” Citing Ky. Rev. Stat. § 216B.165(3). To prevail on her claim under the Act, Blair needed to show (i) that she engaged in a protected activity under the Act, (ii) that the employer knew about her protected activity, and (iii) that the employer took an adverse employment action against her because of it.

Blair contended that a jury could find causation because in her view the employer falsely accused her of interfering with the Kentucky Protective Services investigation of the December 2013 incident that sent her patient to the hospital. The Court, though, concluded that Blair failed to present a genuine issue as to causation. “The 18 days between her complaint and termination are not enough to allow a reasonable jury to find that one caused the other.”

For employers, and especially healthcare employers, this case illuminates the need for constant vigilance in the company’s oversight of its staff, and the preparation of documentation relating to employee supervision and discipline.

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

 

By Karla Grossenbacher and Christopher W. Kelleher

Seyfarth Synopsis:  A string of recent class action lawsuits regarding businesses’ use of employees’ biometric data should put employers on heightened alert regarding compliance with various state biometric privacy laws.

As biometric technology has become more advanced and affordable, more employers have begun implementing procedures and systems that rely on employees’ biometric data. “Biometrics” are measurements of individual biological patterns or characteristics such as fingerprints, voiceprints, and eye scans that can be used to quickly and easily identify employees.  However, unlike social security numbers or other personal identifiers, biometrics are biologically unique and, generally speaking, immutable.  Thus, unlike a bank account or a social security number, which can be changed if it is stolen, biometric data, when compromised, cannot be changed or replaced, leaving an affected individual without recourse and at a heightened risk for identity theft.  Given the serious repercussions of compromised biometric data, a number of states have proposed or passed laws regulating the collection and storage of biometric data.  And plaintiffs’ attorneys are taking notice, as the number of class action lawsuits in this area has surged in recent months.

Currently, there are three states that have statutes regulating the collection and storage of biometric data: Illinois, Texas, and Washington.  In 2008, Illinois passed the Biometric Information Privacy Act (“BIPA”).  Texas followed suit in 2009, and Washington passed its biometric privacy law in 2017.

Covered Biometric Data. All three laws place restrictions on the collection and storage of “biometric identifiers,” such as eye scans, fingerprints, and voiceprints. However, BIPA and the Washington law also cover data that is converted into some type of code or template.  In addition to biometric identifiers, BIPA applies to “biometric information” which is “any information, regardless of how it is captured, converted, stored, or shared,” that is “based on an individual’s biometric identifier” and is “used to identify an individual.”  The Washington law places restrictions on the “enrollment” of biometric identifiers, which is defined as “capturing” a biometric identifier or “convert[ing] it into a reference template.”  Therefore, in Illinois and Washington, if an employer converts an employee’s biometric identifier into a mathematical code or other template and retains only the code or template and not the underlying biometric data, the employer must still meet the laws’ requirements with respect to the collection and storage of that information.  The Texas law only protects biometric identifiers and does not contain a broader “biometric information” provision.

Notice and Consent. All three laws require employers to provide notice and obtain consent before collecting and storing biometric data. BIPA requires the employer to obtain a “written release,” but the Texas and Washington laws do not specify that consent must be given in writing.  BIPA further specifies that, in the employment context, a written release is one  “executed by an employee as a condition of employment.”  This language is significant for employers who routinely collect and store biometric information of employees and are struggling with what to do if an employee refuses to provide consent.

Washington’s law also contains an exception the others do not: The law’s notice and consent provisions do not apply to biometric data collected and stored by an employer for “security purposes,” which is defined in the statute as biometric data that is stored for “the purpose of preventing shoplifting, fraud, or any other misappropriation or theft of a thing of value.”

Standard of Care. All three laws require that employers exercise reasonable care to protect biometric data: BIPA specifies that employers should use a “reasonable standard of care within the industry, and in a manner that is the same as or more protective than the manner in which the business stores, transmits, and protects other confidential and sensitive information.”  The Texas law similarly requires employers to store, transmit, and protect the data from disclosure using reasonable care and in the same way the company treats other confidential information. Washington’s law requires employers to take reasonable care to guard against unauthorized access to and acquisition of biometric data.

Retention. Each of the laws has requirements concerning when, and in some cases how, the biometric data must be destroyed: BIPA’s requirements are the strictest, dictating that employers must establish a written, publicly available policy that contains a retention schedule for biometric data and guidelines for “permanently” destroying the data.  BIPA has the most stringent retention requirements in that it states the information must be destroyed when the purpose for obtaining such data has been satisfied or within three years of the individual’s last interaction with the employer, whichever occurs first.  The Texas law requires only that employers destroy biometric data “within a reasonable time,” but not later than one year after the biometric data is no longer needed.  In Texas, if biometric data was collected for “security purposes,” the purpose for collecting the data is presumed to expire on termination of the employment relationship.  Finally, Washington’s law requires employers to retain biometric data “no longer than is reasonably necessary” to comply with certain legal requirements and to provide the services for which the biometric data was collected.

Cause of Action. All three laws provide civil penalties for violations, but BIPA is the only one of the three laws that provides a private right of action that allows for plaintiffs to recover liquidated damages and attorneys’ fees. In Texas and Washington, only the state attorney general may bring suit to enforce those laws.  It is this distinction that accounts for the fact that lawsuits filed under the Illinois law have been grabbing headlines as of late.

Biometric Data in the Other 47 States. Several other states (including Alaska, Massachusetts, Montana, and New Hampshire) have introduced similar legislation with varying levels of success. But even in states where no law governing the collection and storage of biometric data exists, employers should still take caution when collecting and storing biometric data because the practice could lead to invasion of privacy or negligence claims.

Best Practices. In addition to obtaining prior written consent from employees for the collection and storage of biometric data, employers should consider doing the following:

  1. Have a written policy in Illinois and distribute to employees along with the written release form. BIPA requires a business in possession of biometric data to have a publicly available, written policy stating the business’s retention schedule for the data and rules governing its destruc­tion — and the business must adhere to such policy. Thus, employers in Illinois need to make sure they have such a policy.
  2. Ensure biometric data is not sold or disclosed. All three laws generally prohibit a business from selling, leasing, or otherwise disclosing biometric data it collects or possesses. Companies should ensure that neither the company nor any vendor storing biometric data on the company’s behalf sells or discloses the data in violation of these laws. The laws contain exceptions to this prohibition on disclosure where the individual consents to the disclosure, the disclosure completes a financial transaction requested by the individual, or the disclosure is permitted by law, order or warrant. Again, outside of Texas, Washington, and Illinois, reasonableness would dictate that an employer should not disclose an employee’s biometric data to others without consent under an invasion of privacy or negligence analysis.
  3. Have protocols for protecting biometric data. Employers should protect biometric data in the same manner as they do with other confidential and sensitive information in their possession. Protocols for protecting biometric data can be covered in a general information security policy or in a specific biometric data policy.
  4. Have appropriate provisions in vendor contracts to protect biometric data. In contracts with vendors who store or collect biometric data on behalf of an employer, employers should require that the vendor comply with applicable laws governing the collection and storage of biometric data and provide the same level or higher level of protection to the data that the employer does. The employer should also retain the right to request information on the vendor’s information security protocols, conduct periodic audits of the vendor’s security protocols, and to be notified in the event of any breach or suspected breach of the biometric data the vendor holds for the company (regardless of whether such notification is required by a breach notification statute).
  5. Comply with applicable data breach notification statutes in the event biometric data is compromised. Biometric data is considered “personal information” under a number of state data breach notification laws, including Illinois, Iowa, Nebraska, New Mexico, North Carolina, Wisconsin and Wyoming. Employers storing biometric data (and their vendors) must follow the requirements of these laws with regard to informing affected individuals of breaches/suspected breaches.

With biometric privacy legislation pending in Massachusetts and New Hampshire, and the passing of a biometric privacy law in Montana in 2018 a virtual certainty, we have only just begun to see the impact of this type of privacy legislation. Stay tuned.

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

By Gena B. Usenheimer and Kaitlyn F. Whiteside

Seyfarth Synopsis: The Supreme Court of the State of New York, Appellate Division, Second Judicial Department (“Second Department”) joined the First Department in finding that home healthcare employees who work 24-hour shifts are entitled to pay for all hours present in a client’s home, including sleeping and meal periods.  With this holding, the Second Department became the second appellate court in New York to reject the previously accepted interpretation of New York law, consistent with federal law, that allowed employers to pay home health care employees for 13 hours out of a 24-hour shift, so long as specified meal and sleep periods were provided. 

We previously wrote about the New York appeals court decision in Tokhtaman v. Human Care, LLC, in which the New York State Supreme Court, Appellate Division, First Judicial Department (Manhattan and the Bronx), held that a “non-residential” home healthcare employee must be paid for all hours present at a client’s home, including meal periods and time spent sleeping. The First Department opined that “non-residential” employees are those employees who, like the plaintiff in Tokhtaman, “maintain[] [thei]r own residence, and d[o] not live in the homes of [] client’s.”

On September 13, 2017, the Second Judicial Department (Dutchess, Kings, Nassau, Orange, Putnam, Richmond, Rockland, Suffolk, and Westchester) issued two decisions in line with Tokhtaman, holding that non-residential home healthcare employees must be paid for all 24 hours in a 24-hour shift, regardless of meal and sleep periods.  The Second Department did not provide any further clarity as to what constitutes a “residential” home healthcare employee.

These decisions reflect a departure from the rationale set forth in a 2010 New York Department of Labor (“DOL”) Opinion Letter, which interpreted the DOL Regulation 12 NYCRR § 142-2.1(b) to allow “live-in employees” — whether or not they are residential employees — to be paid for 13 hours for a 24-hour shift so long as the employee was afforded at least 8 hours for sleep (and actually received 5 hours of uninterrupted sleep), and 3 hours for meals.

With both the First and Second Departments in agreement on the issue, however, employers in New York should be aware of these changing and increasingly onerous pay obligations for employees working 24-hour shifts.

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