Workplace Policies and Processes

By Gerald L. Maatman, Timothy F. Haley, and Ashley K. Laken

Seyfarth Synopsis: True to his word, the Assistant Attorney General for the Antitrust Division of the U.S. Department of Justice has announced the first of a number of anticipated no-poach enforcement actions.  While this was a civil proceeding, the Department of Justice has said that in some cases it may treat the conduct as criminal.  Many executives and HR professionals are unaware that the antitrust laws apply to the employment marketplace.  Thus, if they have not done so already, employers should consider the implementation of compliance programs to make sure that appropriate employees are aware of these developments and risks.

In January 2018, Makan Delrahim, the Assistant Attorney General for the Antitrust Division, said that the Department Of Justice (“DOJ”) had been very active in reviewing potential antitrust violations resulting from agreements among employers not to compete for workers.  (We previously reported on this announcement here.)  He said that he was “shocked” at how many there were and that in the coming months there would be announcements of enforcement actions.  He also mentioned that if the conduct occurred or continued after issuance of the October 2016 joint DOJ and Federal Trade Commission (“FTC”) Antitrust Guidance for Human Resource Professionals (the “Joint Guidance”), the DOJ may treat those agreements as criminal.

On April 3, 2018, the first of these announcements was made.  See “Justice Department Requires Knorr and Wabtec to Terminate Unlawful Agreements Not to Compete for Employees,” available at (“News Release”).  The DOJ advised that it filed a complaint in which it alleged that Knorr-Bremse AG (“Knorr”), Westinghouse Air Brake Technologies Corporation (“Wabtec”) and Faiveley Transport S.A., before it was acquired by Wabtec, entered into agreements not to compete for each other’s employees (“no-poach” agreements).  The DOJ contends that these were naked agreements – i.e., not reasonably necessary for a separate, legitimate business transaction or collaboration – and amounted to per se violations of Section 1 of the Sherman Act.  With the Complaint DOJ also filed a Competitive Impact Statement; Explanation of Consent Decree; and Stipulation and Proposed Final Judgment.  (See News Release.)

As noted, Mr. Delrahim stated that there were a number of these investigations ongoing, and in the News Release said that this Complaint was “part of a broader investigation by the Antitrust Division into naked agreements not to compete for employees.”  So more of these announcements can be expected, and some may be announcements of criminal prosecutions.

Many Employees Are Unaware That the Antitrust Laws Apply to the Employment Market

Often some business executives and human resource professionals are unaware that the antitrust laws apply to the workplace.  Executives who would never consider discussing prices with their competitors are unaware that discussing wages or salaries could have antitrust risks.  Similarly, employee covenants not to compete are commonplace and many executives have them in their own employment contracts.  So unless they have received specific training, an executive may be unaware of the antitrust risks associated with no-poaching agreements.  And up until recently even the most elaborate and detailed antitrust compliance policies that strictly prohibited discussing prices rarely addressed the exchange of wage and salary information or prohibited no-poaching agreements.

But the DOJ and FTC have now greatly ratcheted up their enforcement efforts with respect to alleged restraints in the employment market.  And with the DOJ and FTC taking the position that naked no-poaching agreements are per se unlawful and subject to criminal prosecution, the antitrust risks have been greatly increased — not to mention the costly class actions that are likely to follow any settlement with the DOJ.

Employers Should Investigate and Implement Compliance Programs

Thus, employers can no longer ignore the risk.  If they have not already done so, employers should consider:

  1. Conducting an internal investigation to determine whether the company is engaging in the informal gathering of wage, salary or benefit information; or whether it has entered into any no-poach agreements.  The investigation should be conducted or closely supervised by counsel with steps taken to preserve the attorney-client privilege.  Also, if it is discovered that the company has engaged in any “naked” wage-fixing or no-poaching agreements on or after October 25, 2016, then criminal counsel should be consulted as DOJ may treat such conduct as criminal.
  2. Implementing an antitrust compliance program that ensures that all management and human resources personnel are aware that they cannot: (1) engage in a naked wage, salary or benefits-fixing agreement with any other unrelated employer; (2) engage in the gathering or exchange of wage, salary or benefits information without full compliance with the Joint Guidance; or (3) enter into any no-poach agreement without prior approval of counsel.  Such individuals should, on an annual basis, be required to acknowledge in writing that they are aware of these prohibitions.  Also, anyone hired or transferred into any of these positions should be made aware of these prohibitions at the time they are hired or transferred.  These employees should also be advised that the DOJ is likely to treat naked wage/salary/benefit-fixing and no-poaching agreements as criminal and employees could be sentenced to prison for engaging in such conduct.

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

By Brent I. Clark and Craig B. Simonsen

Seyfarth Synopsis: The National Institute for Occupational Safety and Health (NIOSH) recently released its results from a study conducted in 2016 and 2017 that looked at safety programs developed to prevent motor vehicle crashes.

The study included four focus groups conducted with thirty-three managers of employees that drive for work. The managers represented small businesses across four motor vehicle user groups: (1) first responders, (2) oil and gas workers, (3) light-vehicle drivers (e.g., workers who operate passenger vehicles for a variety of work purposes, such as salespeople, home health care workers, realtors, and food delivery workers), and (4) truck drivers.

NIOSH, in its Science Blog, related that vehicle crashes were a leading cause of workplace fatalities, with “1,252 deaths of vehicle drivers and passengers on public roads in 2016. In 2013, on-the-job crashes cost employers over $25 billion and led to 155,000 lost work days.”

The study found that the managers of truck and light vehicle drivers noted a range of minimal approaches to safety, such as mandatory vehicle inspections. Of particular note on the topic of the effectiveness of training is that managers indicated that safety materials needed to be designed that take into account the limited time that they and their drivers can devote to safety training. “Drivers’ varied work schedules and intense workload limit opportunities for group discussions about roadway safety. Managers said they and their drivers prefer concise, highly visual, and interactive communication products, such as short videos and simulations.”

NIOSH concluded that despite the human and financial costs of crashes, safety programs developed to prevent motor vehicle crashes are unlikely to work unless they are designed with the employers’ needs and constraints in mind. “This is particularly true among smaller and midsize employers, which need additional resources and knowledge to be successful.”

For employers, it is important to have safety programs in place that protect company employees. Employers can be sure that, given a workplace accident, agency inspectors may well be reviewing the employer’s policy documents and training materials, and will likely interview the injured employee about her training and understanding of the materials.

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 Team.

By Rashal G. Baz, Katherine Mendez, and Chelsea D. Mesa

Seyfarth Synopsis: Employers are now being presented with more options to outsource workplace complaints through third party companies and mobile apps. This may create an ease in grievance reporting for the employee, but does not necessarily shield employer liability.

Harassment in the workplace is not a novel issue, but with the rise of national and global movements such as #MeToo and Time’s Up — it has been on the forefront of our social, political and business conversations. Hollywood has cast a spotlight on sexual harassment and the sometimes imperfect protocols in place to address concerns. These issues are appearing in the headlines, TV shows, and social media platforms with the potential impacts of destroying a company’s goodwill and bottom line.

In response to this outcry and several industries’ spotting an opportunity to get involved, the technology-driven community has responded with mobile apps, anonymous grievance non-profit websites, new third-party consulting companies, and modernized hotline services. The goals of these new technologies and strategies is to heed complaints and optimize an employer’s response.

The Current State of Things

Before touching on the reporting outlets, it is critical to understand why a demand for such services exist. Historically, there have been studies that note the resistance to workplace harassment reporting. This could be attributed to a fear of employer retaliation, unwanted peer attention, distress in confronting a perpetrator or lack of trust in workplace changes following such a complaint. Sometimes employees simply do not know or recall where to find the protocol for filing harassment incidents. These are among the reasons the Equal Employment Opportunity Commission and other organizations shine a close light on the response procedures employed by a company.

Many employers use a host of different practices designed to make reporting as simple and effective as possible. These range from traditional reporting to a supervisor or HR in writing or in person, to the use of a designated ombudsman, email submissions and hotline phone numbers. The goal is to encourage the reporting of complaints, so they can be resolved.

A New Twist on Reporting

Mobile Applications: Glued to our phones, it only follows that harassment and employment complaint apps have been created for the workforce. When reporting an issue is easy and familiar, it stands to reason that more information will be transmitted to the business. One example app uses a subscription-based service employers can purchase and integrate into internal procedures. The app allows workers to identify themselves and their location or remain anonymous and pick from different pre-set messages to indicate the nature and severity of the concern. These apps also allow an employee to include documents, images or videos that are sent to their choice of two to four default managers who will receive the correspondence. These services claim to provide a safe space for raising concerns, free from external interference.

Consulting Groups: Third-party consulting groups have also responded to the need for something new by creating company-specific online environments where employees can file complaints. In turn, the consultants will assess the complaint, write an action plan on what type of investigation is needed, and provide an external “expert” to do a workplace investigation for inappropriate behavior. These companies tout experienced personnel that investigate the issue while avoiding the purported “inherent bias” human resources personnel may hold toward the complainant or accused employee.

Hotline Services: Outsourced workplace harassment and discrimination hotline services are not new, but seemed to have stepped up their game as well. Typically, hotlines provide a company-specific phone number, voicemail box and email address where employees can voice grievances. Instead of merely transmitting the collected data to employers, the third-party services are now also offering more involvement in employee complaints. Several now offer to have “experienced” human resource professionals produce a report that allows the employer to handle the issue internally, or chose an external route to be handled by a “team of experts,” similar to the aforementioned consulting process.

Will This Help My System?

While additional reporting processes can be beneficial to obtaining data and addressing complaints, using an external service does nothing to change any of the employer’s obligations. If an employer’s practices and implementation of strategy aren’t already strong, implementing the “hot new thing” would simply serve as a rearrangement of chairs on the deck of the Titanic, and not really solve much. In considering whether to add this to its arsenal, employers would have to trust that the individuals involved with their complaints are, in fact, qualified to handle them. Failures along the way will still fall on the shoulders of an employer.

An employer’s uniform response to delicate situations can help defend against retaliation claims stemming from harassment reports; however, it is difficult to remember, and thus repeat, how you responded to a previous situation without accessible and thorough documentation. Outsourcing the complaint to a third-party technology may assist in providing a platform employers can reference when handling a new grievance. However, these services can also expose employers to cybersecurity issues. This false sense of security can end in costly litigation if you do not audit these services on an annual basis. Complaints lost in the cloud will result in claims against employers, not the app.

These external systems also do not address the alleged “bias” concern plaintiffs often argue exist. These systems would still be contracted and paid for by the employer, who will have likely partnered with the third party to set up the system. And as the third party works with the employer over time and learns its business, a relationship between the parties (and a desire to keep the employer happy so the relationship continues) will likely develop. It is unclear how a third party will avoid the same arguments of bias that an internal process will face. This further rings true because the relationship’s collaborative nature still has the employer making the ultimate decision on next steps in response to a complaint.

On the flip side, employers who choose not to utilize such services may not be out of reach of their effects. There are organizations creating anonymous hotlines that allow employees from any company to submit a report that in turn is “instantly” sent to who they deem the appropriate individuals within the complainant’s organization. And Silicon Valley has created smartphone apps that allow employees to anonymously report an incident to the company’s chief executive and board. This places the burden on those who receive these complaints, who may not be the person within an organization able to respond quickly enough, to send them through the proper channels. Even though these systems may provide another means for employees to feel as though they have raised a concern, there is no guarantee it gets into the company and to someone who can address it.

The Takeaways

There have been many assessments on how to minimize incidents of harassment and create a zero-tolerance environment for such scenarios. Initially, these new systems may seem like the right solution, but if you are integrating protocols that are not followed by the head of the company to the grassroots, a palpable workplace change and a legally sound grievance procedure is unlikely.

The benefit of these outlets include the creation of additional accessible channels workers may feel safe utilizing, but does not guarantee the complaint gets in the hand of the person who has the power to address it. Using a third party to assess complaints may avoid alleged HR biases in theory, but the company’s relationship with the service and ultimate decision-making ability weakens the practicality of that benefit.

These resources may represent the future of reporting and thus require employers to proactively adopt policies and training to avoid being blindsided by their arrival. Ultimately, the release of numerous online lists pointing out sexual harassment perpetrators and the rise in anonymous direct-to-company complaints may create an ethical duty to prepare your staff on how to process the information. Should you chose to contract these grievance reporting services, it would be wise to conduct internal training on how to utilize it and what human resources/supervisors should do when they receive notice of a complaint. Finally, evaluate and update your workplace harassment and reporting policies.

Ensure your company has the internal knowledge it needs to react when the time comes. And always feel free to reach out to your favorite Seyfarth employment lawyer for guidance on how to implement and maintain the most effective and appropriate processes as we march toward the future of harassment reporting.

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 Kelsey P. Montgomery

Seyfarth Synopsis: Employee committed to taking opioids loses his job and his disability discrimination lawsuit because he refused to consider alternative pain management.

The “interactive process” required by the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act, is a two-way street between an employee and his or her employer.  Consistent with this mutual obligation, a federal court in Ohio recently dismissed a lawsuit filed by a former employee who refused to consider alternative pain management for his degenerative disc disease and arthritis in his neck and back.

In Sloan v. Repacorp, Inc., No. 3:16-cv-00161 (S.D. Ohio Feb. 27, 2018), the plaintiff worked as a production manager for Repacorp, which manufactures and prints labels using heavy machinery.  While Sloan’s job required him to spend only a small portion of his time working on heavy machinery, he always worked around this equipment and his working environment was extremely dangerous.  As a safety precaution, Repacorp maintained a policy requiring employees to notify management if they were taking nonprescription or prescription medication.

A year before his termination, Sloan began taking morphine and Vicodin while at work.  Occasionally, he took the morphine in a manner inconsistent with his prescription and he did not have a prescription for Vicodin.  He secured the Vicodin from his mother and a co-worker.  Sloan did not inform his supervisor, or anyone else at Repacorp, that he was taking these medications.  After several months of using these opioids at work, an employee reported to management that Sloan was obtaining Vicodin from his colleague.  He was immediately removed from the manufacturing floor and required to submit to a drug test.

When he tested positive for hydrocodone (an  in Vicodin), Repacorp placed Sloan on leave and referred him to its Employee Assistance Program.  While on leave, Sloan disclosed his morphine prescription.  Fearing a “huge liability,”  Repacorp asked if there were alternative, non-opioid treatments for his pain condition that would not put the company and Sloan at risk.  Although Sloan tried, he was unable to reach his physician to make this inquiry.  He then told the company president, without having consulted his doctor, that he needed to “stay on [his] medication” and that he “wouldn’t stop taking it.”  The company president believed Sloan “chose drugs over his job.”  Because Repacorp did not have any positions that would permit an employee to safely use opioids in the workplace, Repacorp terminated Sloan’s employment following this conversation.

Sloan subsequently filed a lawsuit against Repacorp, alleging disability discrimination under Ohio law and the ADA.  He claimed that Repacorp failed to accommodate his disabilities by refusing to grant his request to use prescription morphine.  Sloan argued that he could have safely performed his job while taking the medication, and that his employer should have conducted a “direct threat” analysis before denying his request.  The Court disagreed, finding that Sloan impeded Repacorp’s ability to investigate the extent of his disability and the breadth of potential accommodations that it might have reasonably afforded to him by refusing to cooperate with the company’s request for additional information.  Without this information, Repacorp could not determine whether Sloan was a qualified individual able to do his job either with or without a reasonable accommodation.  Accordingly, the Court granted Repacorp’s Motion for Summary Judgement and dismissed Sloan’s case.

Employer Take Away

An employer should conduct an individualized assessment to determine whether it can accommodate an employee’s disability.  Had Repacorp simply terminated Sloan for violating its policy against taking medications at work, the Court likely would have decided this case differently.  Thus, it serves as a good reminder for employers to always document their attempts to engage in the interactive process.  If an employee is terminated after refusing to engage with his or her employer, the employer will have a strong defense to any subsequent disability discrimination claim.

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 Anthony Califano & Timothy Buckley

Seyfarth Synopsis: A recently-filed lawsuit in the federal district court in Arizona alleges that an employee’s use of medical marijuana may be permissible under the federal Americans With Disabilities Act (ADA). Although the employee faces an uphill battle, the case presents a challenge to the commonly-held view that the ADA does not support such a claim.

In Terry v. United Parcel Services, Inc., No. 2:17-cv-04972-PHX-DJB (D. Ariz., filed Dec. 29, 2017), a former UPS sales director alleges, among other things, that UPS terminated his employment in violation of the ADA and the Arizona Medical Marijuana Act (AMMA). Terry alleges that he was a medical marijuana card holder under the AMMA, and that, at the direction of his doctor, he used medical marijuana during non-work hours to treat his nearly constant and extreme hip pain. He claims that he never possessed, used, or was impaired by marijuana, alcohol, or any other impairing substance while present on UPS’s premises or during working hours. According to the complaint, in April 2017, UPS required Terry to report immediately for a drug and alcohol screening test, and was informed that the reason for the test was “observable behavior.” At a meeting with UPS officials one week later, Terry claims that UPS terminated his employment due to his positive drug and alcohol screening results and violating the company’s drug and alcohol policy. Terry claims that he responded by notifying UPS that he has a valid medical marijuana card under the AMMA and a valid prescription for Adderall that he took to treat his ADD.

In his lawsuit, Terry alleges that he was a disabled individual within the meaning of the ADA, and that UPS failed to offer him any reasonable accommodation for his disabilities. Presumably the accommodation that he was seeking was exemption from UPS’s drug policy and the ability to use medical marijuana off-duty and outside the workplace. Terry also claims that his termination constituted unlawful discrimination under the AMMA because it was a result of the positive drug and alcohol screening test and the AMMA prohibits an employer from terminating an employee who is a valid card holder solely because of a positive drug test for marijuana.

Terry’s ADA claim faces an uphill battle. The ADA prohibits disability discrimination and requires reasonable employment accommodations for individuals with disabilities. 42 U.S.C. § 12112(a)-(b). The ADA does not consider individuals who currently use illegal drugs to be qualified disabled individuals entitled to reasonable accommodation. 42 U.S.C. § 12114(a). And marijuana is an illegal drug under the federal Controlled Substances Act, 21 U.S.C. § 812(c). Accordingly, these authors are not aware of any published case law holding that an employee’s use of medical marijuana is subject to the ADA’s protections. To the contrary, authority out of the Ninth Circuit (within which the District of Arizona resides) has held that medical marijuana use is not protected under the ADA, as the ADA does not protect illegal drug use and marijuana remains illegal under federal law. See James v. City of Costa Mesa, 700 F.3d 394, 397-98 (9th Cir. 2012).

Nevertheless, Terry is a case worth watching. Terry challenges the prevailing view and case law that the ADA does not protect medical marijuana users. It does so in the wake of a growing number of laws that legalize medical marijuana at the state level and decisions recognizing viable claims under state anti-discrimination laws.

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.

By Ariel D. Fenster

Seyfarth Synopsis: The Sixth Circuit Court of Appeals recently held that telecommuting can be a reasonable accommodation under the ADA when the employee is able to perform the essential functions of the position remotely and the request is for a finite period. Mosby-Meachem v. Memphis Light, Gas & Water Division, No 17-5483 (6th Cir. 2018).

The Facts

The Plaintiff, an in-house attorney for Memphis Light, Gas & Water Division (MLG&W), requested to work from home for ten weeks while she was on bedrest from pregnancy complications.  MLG&W denied the request.

MLG&W maintained a rather strict policy that attorneys must be in the office from 8:30 am – 5:00 pm.  “However, [it] did not maintain a formal written telecommuting policy at that time, and in practice, employees often telecommuted.”

MLG&W argued that physical presence was an essential function of Plaintiff’s position. Plaintiff stood her ground and stated she was able to perform the essential functions of her position remotely.  In fact, Plaintiff knew she could perform the job remotely.  During the dispute over whether Plaintiff could telecommute, she was also working remotely.  Plaintiff also previously worked remotely for two weeks several years prior.

At trial and in favor of Plaintiff’s disability discrimination claim, the jury awarded Plaintiff $92,000 in compensatory damages and $18,184.32 in back pay.

The Sixth Circuit affirmed.  In its finding, the Court noted that MLG&W failed to engage in an interactive process as required by the ADA to determine if working remotely was appropriate. The Court further noted that one of MLG&W’s key pieces of evidence, the job description, was significantly outdated and unreliable (20 years old outdated!).

Additional Guidance

Unfortunately for employers, there is no bright line test on the issue.  Just a handful of cases have weighed in on the “telecommute dispute.”  The two most notable cases come out of the Sixth Circuit, Williams v. AT&T Mobility Services, LLC, and EEOC v. Ford Motor CoThe cases are distinguishable from Mosby-Meachem for two reasons.  First in Williams and Ford, the employees never previously worked remotely.  Second, the requests to work remotely were for unlimited periods.

Just last month, in Morris-Huse v. Geico, the Middle District of Florida granted Defendant’s Motion for Summary Judgment holding that telecommuting was not a reasonable accommodation because Plaintiff’s physical presence was an essential function of her position.  The Court, like many other courts, reasoned that telecommute disputes are highly fact specific and require a true inquiry into the essential functions of the employee’s position.

For some additional guidance, the EEOC has issued some limited guidance on the matter.

Five Helpful Tips

While there is no hard and fast rule as to whether telecommuting is a reasonable accommodation under the ADA, here are five tips that may avoid putting you in a telecommute dispute:

  1. Evaluate each and every accommodation request on a case by case basis.
  2. Engage in the interactive process with the employee.
  3. Determine if the telecommuting is for a finite period of time.
  4. Think about whether the employee will be able to perform the essential functions of his or her position while telecommuting.
  5. Maintain up-to date job descriptions that accurately reflect the essential functions of each position.

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 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.