By Thomas M. Horan and Erin Dougherty Foley

Seyfarth Synopsis: Effective January 1, 2020, the Illinois Workplace Transparency Act (WTA) amended the Illinois Human Rights Act (IHRA) to, among other items, require all employers in Illinois to provide annual sexual harassment prevention training to all employees, and further require additional, industry-specific sexual harassment prevention training for restaurants and bars. The law left many employers with questions as to what was actual required to satisfy their new obligations. On January 31, 2020, the Illinois Department of Human Rights (IDHR) took the first step to address those questions by launching a website with guidance and FAQs intended to elaborate on the law’s requirements.

On January 31, 2020, IDHR issued guidance for employers on the requirements created by the WTA, announcing the “minimum” standards required in connection with (i) Sexual Harassment Prevention Training Standards for All Employers; (ii) Sexual Harassment Prevention Training Standards for Restaurants and Bars; and (iii) Policy on Sexual Harassment Prevention for Restaurants and Bars, and providing responses to a set of “Frequently Asked Questions.” These documents are all available on the IDHR’s website.

The “minimum” standards documents largely re-state the requirements already contained in the WTA, though each does provide some clarity on the deadline by which covered employers must satisfy their obligations under the new law.

In the responses to “Frequently Asked Questions,” IDHR provided more clarifying information not specifically addressed in the statutory text, including:

  • Employers who have one or more employees are required to train all employees who work or will work in Illinois, including short-term and part-time employees, and interns;
  • Employers are not required to train employees who work outside of Illinois, but should do so for employees physically located in other states who regularly interact with other employees located in Illinois;
  • Employers are not required to train independent contractors, but are “strongly advised” to train independent contractors who (a) work on-site at the employer’s workplace, or (b) interact with the employer’s employees;
  • If employees are required to undergo training outside of working hours, they must be paid for their time; and
  • If employees work at multiple jobs or multiple locations, they do not need to be trained at each one, but employers are responsible for obtaining information demonstrating that each employee received training, and that the training satisfied the law’s requirements.

Although referenced at several places in the newly-issued guidance, IDHR has yet to issue the model harassment training called for in the WTA, stating only that the model training will be available in February of 2020. Once issued, employers may use the model training, develop their own training, or contract with a third party to provide training. To the extent employers do not use the model training, however, they remain responsible for ensuring that the training provided to their employees satisfies the minimum standards established by the model training. IDHR does not plan to certify compliance of trainings developed by third parties.

If you have any questions regarding this information, please contact the authors, your Seyfarth attorney, or any member of the Firm’s Handbook’s and Policy Development Team.

By Michael L. Childers and Annette Tyman

Seyfarth Synopsis: As companies face increasing competition for the best talent within the marketplace, a growing number of businesses are turning to artificial intelligence and data driven strategies to more effectively identify and evaluate potential employees. The first installment of our artificial intelligence series will focus on some of the ways that employers are using these technologies in the area of talent acquisition.

Business has always been in a search for “the next big thing.” Something to give them an edge over competitors or allow them to anticipate shifts in the marketplace before they happen. Companies who moved from hand production to large-scale manufacturing were able to dominate nascent markets around the turn of the 20th Century. And since the 1990s, businesses have been in a fierce competition to harness the power of computers and the internet. The next iteration of that competition is the use of Big Data and Artificial Intelligence.

Just as individuals today engage with the world differently in terms of how they produce and consume information, there has been a shift in how employers and particularly recruiters think about the employment landscape. Many employers are moving away from traditional hiring methods that included posting jobs online and interviewing the candidates that apply. Companies have started utilizing search algorithms to passively source candidates based on their digital footprint and artificial intelligence programs to help more efficiently evaluate the increased applicant pools that this type of sourcing generates.

As an illustrative example, let’s say that a company has an opening for a computer programmer. Previously, a recruiter would post to job aggregation sites like Monster.com or Indeed, review the resumes of the candidates that applied, bring the top candidates in for an interview and then make the desired candidate an offer. Nearly everything about that pre-offer process is changing. Today, in addition to the posting on aggregation sites,  recruiters also post to Twitter, Snapchat, and Instagram. They use the built in search functionality tools on each of these platforms to look for profiles that use industry related terms and hashtags. Still more companies are using AI automation tools to crawl through LinkedIn profiles and Facebook news feeds to try to identify additional candidates. Today, recruiters can gather a list of potential candidates well before those potential candidates would even know they are a potential candidate, and without even knowing the job opening even exists. Rather than waiting for potential candidates to apply, recruiters can reach out to potential candidates across a variety of different social media platforms and email addresses to encourage them to apply for the opening.

Once the applications and resumes get in the door, they are increasingly likely to be reviewed by AI algorithms rather than employees in HR. These algorithms may search for particular experience or keywords in the resumes to identify high potential candidates based on profiles built by looking at current high performing employees. Some companies have even shifted away from traditional applications and resumes and instead are having candidates play games designed by industrial and organizational psychologists to identify certain character traits that are likely to make someone a high or low performer within the job. Other companies have started to introduce AI tools into the interview process as well and instead of having candidates come in to talk with a recruiter or hiring manager, they will instead provide recorded answers to pre-loaded interview questions. These recordings are then analyzed by AI algorithms which analyze the words spoken, and may even attempt to glean the context in which words are spoken by analyzing facial movements, eye contact, and other physical features.

Most of these technologies are still in the very early stages of implementation, however, lawmakers have expressed clear concerns with the current lack of guidance around artificial intelligence and its potential impact on job candidates. Several states like Illinois and California have introduced or passed legislation to curb the unencumbered use of artificial intelligence in the hiring process. The Federal government also waded into the discussion with the April 2019 introduction of the Algorithmic Accountability Act which aims to create a regulatory framework for the use of AI. While we have yet to see large scale litigation in this area, there are already serious questions about bias, fairness, and whether all of the metrics being used to assess candidates are truly job related.

We are continuing to monitor the new uses of artificial intelligence in the workplace. Stay tuned!

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the People Analytics Group or Workplace Counseling & Solutions Team.

By Jennifer L. Mora

Seyfarth Synopsis: As we reported here, the CBD (cannabidiol) craze is sweeping the nation. By 2022, it is expected to be a $22 billion per year industry. That said, if a CBD product has a concentration of more than 0.3% of tetrahydrocannabinol (THC), an amount generally viewed to be sufficient to produce a psychoactive effect, then it is an unlawful Schedule I controlled substance under federal law. Problems arise when employees test positive for THC but then claim to be using a “THC-free” or “pure CBD” product. If the product has less than 0.3% of THC, and the employee isn’t smoking or using other marijuana products, we generally would expect the employee’s drug test to return a negative test result. This quagmire has resulted in employers struggling to determine the impact of these products on their workplaces. Fortunately, some employers subject to certain regulatory requirements as they relate to drug and alcohol testing sometimes benefit from clear agency guidance.

Indeed, on February 18, 2020, the United States Department of Transportation published a bulletin addressing “DOT Office of Drug and Alcohol Policy and Compliance Notice,” which follows a previous notice it had released regarding its position on medical marijuana. With respect to medical marijuana, DOT wrote in a previous bulletin:

Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use “medical marijuana.” Please note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.

In the new bulletin focusing on CBD, DOT wrote that it does not require testing for CBD but also recognized the problem with some CBD products having enough THC for an employee’s drug test to report a positive marijuana test result. The bulletin states:

The Agricultural Improvement Act of 2018, Pub. L. 115-334, (Farm Bill) removed hemp from the definition of marijuana under the Controlled Substances Act. Under the Farm Bill, hemp-derived products containing a concentration of up to 0.3% tetrahydrocannabinol (THC) are not controlled substances. THC is the primary psychoactive component of marijuana. Any product, including “Cannabidiol” (CBD) products, with a concentration of more than 0.3% THC remains classified as marijuana, a Schedule I drug under the Controlled Substances Act.

We have had inquiries about whether the Department of Transportation-regulated safety-sensitive employees can use CBD products. Safety-sensitive employees who are subject to drug testing specified under 49 CFR part 40 (Part 40) include:  pilots, school bus drivers, truck drivers, train engineers, transit vehicle operators, aircraft maintenance personnel, fire-armed transit security personnel, ship captains, and pipeline emergency response personnel, among others.

It is important for all employers and safety-sensitive employees to know:

  1. The Department of Transportation requires testing for marijuana and not CBD.
  2. The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.” The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.” Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label.
  3. The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana. Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.

DOT-regulated employers should consider reviewing their current policies and practices to ensure compliance with DOT regulations, including the drug and alcohol testing rules in Part 40 and the bulletins that specifically address medical marijuana and CBD. In addition, employers in all industries may need to consider:

  • revising their policies to address CBD use;
  • training their managers and supervisors on how to address situations where an employee defends a positive drug test by claiming use of CBD;
  • educating employees about CBD; and
  • having a conversation with their drug testing providers about CBD and the lab’s drug testing and reporting processes.

Seyfarth Shaw will continue to monitor legal developments in this dynamic area of the law.

By Katherine F. MendezSamantha L. Brooks, and Anastacia E. Topaltzas

Seyfarth Synopsis: In our third installment in where the potential Presidential candidates stand on key labor and future of work issues, we focus on the candidates’ positions on minimum wage.

Since our last post, and on the heels of the New Hampshire primary, Michael Bennet, Deval Patrick, and Andrew Yang dropped out of the 2020 Democratic Presidential race.  While Bennet and Patrick both supported raising the minimum wage to $15 per hour, Yang believed the issue should be left to the states and instead campaigned on his plan to institute a $1,000 per month universal basic income (his so-called “freedom dividend”).  While some raise in minimum wage is certainly not the most controversial of the potential candidates’ ideas, some commentators believe that a raise in minimum wage will add to increased labor costs and will eventually cause employers to choose to invest in technology (robots, perhaps) rather than human capital.  Think: drug store or supermarket cashiers being replaced by self-service check-out machines; or assembly line workers being replaced by a robotic assembly line.  (Yang himself believed that the robot apocalypse is coming.)

Former Vice President Joe Biden, who helped some state and local governments implement higher minimum wages (including New York), has continued to advocate for a $15 federal minimum wage and for eliminating the tipped minimum wage. Pete Buttigieg, like Biden, supports raising the federal minimum wage to $15 per hour and eliminating the tipped minimum wage.

Michael Bloomberg similarly plans to raise the federal minimum wage to $15 per hour.  Interestingly, in December 2019, while in Stockton, California (a city that implemented a universal basic income pilot program), Bloomberg commented that he supports a universal basic income, but he mentioned that New York City had attempted a similar plan but that it was “very unsuccessful.”

Rep. Tulsi Gabbard similarly supports raising the federal minimum wage to $15, and has expressed that universal basic income is a “good idea.”

Sen. Amy Klobuchar strongly supports raising the federal minimum wage to $15, and in January of 2019, she and Sen. Sanders co-sponsored the Raise the Wage Act, which would have gradually raised the minimum wage to $15 per hour. (This is also supported by Buttigieg, Gabbard, Sanders, and Warren.)  While the Raise the Wage Act passed the House in July 2019, it died in the Senate shortly thereafter.  It is expected to be resurrected in a Democrat-controlled Senate or if a Democrat is elected President in November.

Sen. Bernie Sanders is among the most vocal leaders when it comes to raising minimum wage. He co-sponsored the Raise the Wage Act in 2019.

Tom Steyer supports raising the federal minimum wage to $15, but has also stated that he supports raising it to $22.

Sen. Elizabeth Warren is a staunch supporter of the Raise the Wage Act, and has said that on the first day of her administration she would sign an executive order requiring all federal contractors to pay a $15 hour minimum wage.

President Donald Trump has occasionally expressed that the current $7.25 federal minimum wage is too low, but his administration has not endeavored to raise the minimum wage.  In fact, in July 2019, the Raise the Wage Act did not make it to the Senate, and in November 2019, the Office of Personnel Management (OPM) issued guidance confirming that the $7.25 federal minimum wage supersedes any higher wage established by a state or local government.

The next installment of our campaign coverage will address the candidates’ positions on training and preparing employees for the future of work.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team.

By Stan Hill and Cary Reid Burke

Seyfarth Synopsis: Recently, when affirming summary judgment to the employer in a disability discrimination case, the Fifth Circuit Court of Appeals issued two welcome reminders. First, to pursue a disability accommodation, an employee must actually ask for an accommodation (although not necessarily using any magic words). Second, and just as fundamentally, employees must be awake at work to do their job.

In Clark v. Champion Nat’l Sec., Inc., Case 18-11613 (5th Cir. Jan. 14, 2020), Plaintiff was a personnel manager for Champion National Security, Inc., which provides uniformed security services to other companies. Among other duties, Plaintiff trained the security guards and provided employees with guidance regarding Champion’s policies, including its “alertness policy.”

Plaintiff purportedly suffered from a variety of ailments, including Type-II diabetes. During his employment, Plaintiff requested — and Champion granted — two separate accommodations regarding his diabetes. First, he asked for a refrigerator in his office to store insulin. Second, Plaintiff asked for “flexibility” to be able to leave work to go to doctor’s appointments. Plaintiff did not ask for any other accommodations related to his diabetes during his employment.

Additionally, Plaintiff twice asked to be excused from Champion’s grooming policy, which required all employees to be clean-shaven. The first time he asked to be excused, Plaintiff stated only that he wanted to “grow [a] small beard,” and his request was denied. Three months later, Plaintiff asked again, and submitted a doctor’s note in support of his request that provided he should be excused from the grooming requirement because he “has eczema and dry skin.” Champion granted Plaintiff’s request based on the doctor’s note.

In April 2016 Plaintiff filed a complaint with Champion’s human resources department alleging that he had been harassed based on his purported skin condition. The complaint was investigated, and it was determined that Plaintiff was not harassed.

In August 2016, an employee told Plaintiff’s manager that Plaintiff was closing his office door for long periods of time and could be heard snoring. Not long thereafter, Plaintiff’s manager received an anonymous message that contained a picture purporting to show Plaintiff asleep at his desk. Critically, “lack of alertness at work,” which includes sleeping or appearing to sleep, is an immediately terminable offense. Even so, Plaintiff was not terminated at the time because terminating an employee based solely on an anonymous picture would have deviated from Champion’s practices, which included collecting at least two witness statements.

On December 7, 2017, an employee reported to Plaintiff’s manager that Plaintiff was asleep at his desk. Plaintiff’s manager went into Plaintiff’s office, found him asleep, and took a picture of him. Then, Plaintiff’s manager sent the picture, as well as two employee statements, to human resources. Not long thereafter, Plaintiff woke up — on his own — and did not seem to be in any distress.

Later that same day, Plaintiff received a call from human resources, and was told he was terminated. Thereafter, Plaintiff filed suit, alleging violations of the Americans with Disabilities Act and corresponding state law. The District Court granted Champion’s motion for summary judgment regarding all of Plaintiff’s claims, and Plaintiff appealed.

The Fifth Circuit affirmed. The Court began its ruling with an extended discussion of what constitutes direct evidence of discrimination, which the Court emphasized was “rare.” Direct evidence is a statement or document that shows “on its face that an improper criterion served as a basis . . . for the adverse employment action.” To be considered direct evidence of discrimination, a given statement must be 1) related to the protected class of persons of which plaintiff is a member; 2) proximate in time to the terminations; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.

Plaintiff set forth two instances of purported direct evidence to support his allegations. Plaintiff’s first argument was that Champion had a generalized knowledge of his diabetes, which the Court held was not direct evidence because it was not a statement at all. Plaintiff also pointed to a statement made by Mays, Champion’s vice president, which presented the Court with a closer question. Specifically, when informed that Plaintiff had been asleep at his desk, Mays responded, “Perfect . . . let him go.” Yet this was not direct evidence either because Mays was not the final decision maker regarding Plaintiff’s termination (which Plaintiff conceded).

Plaintiff’s disability discrimination claim also failed on a McDonnell Douglas indirect evidence theory because he was not a qualified individual with a disability. Specifically, Plaintiff could not perform the essential functions of his job, with or without a reasonable accommodation. As the Court explained, “maintaining consciousness is a basic element of any job.” Accordingly, and given Plaintiff conceded he could not do his job if he was not awake, Plaintiff’s discrimination claim failed.

The Court next turned to Plaintiff’s accommodation claim, which failed because Plaintiff did not set out a reasonable accommodation that would have allowed him to do his job. Even more fundamentally, Plaintiff never requested an accommodation for “loss of consciousness due to diabetes.” Rather, the only accommodation he sought during his employment was to be excused from the grooming policy (which was granted).

Additionally, Plaintiff’s hostile work environment claim failed because Plaintiff could not show that any purported harassing conduct was based on his disability. Instead, his harassment claim was based on his request to grow a beard in contravention of Champion’s grooming policy because he had sensitive skin. Yet Plaintiff’s harassment claim failed because he did not allege that his dry skin constituted a disabling condition, and as a result, any discussions about the same (if such could even be considered harassing), were not based on his alleged disability (diabetes).

Plaintiff’s final claim, retaliation, also failed because Plaintiff could not connect any protected activity with the decision to terminate his employment. To make out the necessary “causal link” between protected activity and an adverse action, Plaintiff had to “show that the employer’s decision to terminate was based in part on knowledge of the employee’s protected activity.” He did not. The only protected activity Plaintiff arguably engaged in when employed was his internal complaint that he had been “harassed” for asking to be excused from the grooming policy. Fatal to Plaintiff’s claim, he did not produce any evidence that his termination was connected to this internal complaint in any way.

Employer Takeaways

The Court’s decision comes as welcome news to employers. Foremost, the Fifth Circuit reaffirms that — except in exceedingly rare circumstances — being awake is an essential job function. Additionally, the onus is on the employee, not the employer, to ask for a job-related accommodation. Of course, once the employee asks for an accommodation, the employer is obligated to engage in the interactive process in good faith. But critically, the employee must still start the process by making the ask.

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

By Katherine F. Mendez, Samantha L. Brooks, Susan Ryan, and Anastacia E. Topaltzas

Seyfarth Synopsis: The Iowa Democratic Presidential Caucus historically signals who the likely Democratic Presidential Candidate will be. As we dive in to the 2020 election season, we explore the potential candidates’ positions on key labor issues. Here, in our second installment, we focus on the candidates’ positions on collective bargaining rights of gig economy workers.

Although the bargaining rights of gig workers has not received much coverage at the televised Democratic debates, the issue has received a lot of attention on the campaign trail and the candidates seem to be competing to win votes from unions.  The issue is also on the minds of employers (particularly in light of a wave of gig worker initiated lawsuits over misclassification) and the minds of the House (the Education and Labor Committee held another hearing in the Future of Work series on February 5, with the topic of “Protecting Workers’ Civil Rights in the Digital Age”). Here is our run-down on where the candidates and President Trump stand.

Michael Bloomberg, Pete Buttigieg, Sen. Amy Klobuchar, Sen. Bernie Sanders, Sen. Elizabeth Warren, and Andrew Yang support the collective bargaining rights of gig economy workers.

Former Vice President Joe Biden, who has referred to himself as a “union man,” supports a crack-down on employee misclassification, but has been vague as to his support of gig workers’ right to bargain.

Sen. Michael Bennet is generally in favor of increasing support for unions and collective bargaining rights, though he has not explicitly stated his opinion on this issue. However, in 2018, when Sen. Sanders introduced a bill that would have codified the “ABC test” to determine whether a worker is an employee (and presumably would have made it easier for gig workers to be considered employees and exercise collective bargaining rights), Sen. Bennet did not sign on (neither did Sen. Klobuchar or Sen. Gabbard).

Rep. Tulsi Gabbard and Tom Steyer have neither campaigned on nor publicized their positions on labor issues, and their positions on the rights of gig workers to unionize are not clear, though Steyer supports an increase in union jobs generally.

Former Gov. Deval Patrick, like Biden, supports increased enforcement to prevent worker misclassification, but has not expressed a position on this issue.

President Donald Trump has not explicitly stated his opinion on this issue, either. However, on April 29, 2019, the U.S. Department of Labor’s Wage and Hour Division issued an opinion letter finding that gig workers were independent contractors and not employees. This – combined with the Trump administration’s perceived roll-back of union and bargaining rights – likely signals that President Trump and his administration would not support the collective bargaining rights of gig workers.

The next installment of our campaign coverage will address the candidates’ positions on minimum wage.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team.

By Nicholas De Baun and Tara Ellis

Seyfarth Synopsis: On December 23, 2019, District Judge Rosemary Marquez ruled, in connection with a motion to dismiss, that Title VII does protect discrimination based on a person’s transgender status, and that a health insurance plan’s exclusion for gender reassignment surgery may not be “rationally related to a legitimate government interest.”

As we previously blogged, Plaintiff Russell Toomey, a transgendered male, filed suit in early 2019 against his employer, the State of Arizona, after the self-funded health plan provided by the State of Arizona denied Toomey’s request for medical preauthorization for a total hysterectomy. The Plan generally provides coverage for “medically necessary care”, and Toomey’s doctors contended that the hysterectomy was medically necessary, but the Plan denied authorization under an exclusion for “gender reassignment surgery.”

Toomey’s complaint contends that the Plan’s denial of authorization for a hysterectomy was sex discrimination under Title VII and a violation of the Equal Protection Clause. In March 2019, the State of Arizona and two individually named defendants employed by the State of Arizona filed a motion to dismiss Toomey’s complaint.

Magistrate Judge Bowman issued her Report and Recommendation on the motion to dismiss on June 24, 2019. Judge Bowman determined that Title VII does not prohibit discrimination based on a person’s transgender status. However, she decided that Toomey had adequately alleged that the health plan exclusion for gender reassignment surgery disadvantaged a “suspect class”, justifying a heightened level of scrutiny, and that defendants had failed to argue that the exclusion would survive this level of scrutiny.

The parties filed Objections to the Report and Recommendation and District Judge Rosemary Vasquez held oral argument on October 2, 2019. After consideration of the Report and Recommendation, and the parties’ objections and oral argument, Judge Vazquez issued an order denying the motion to dismiss on December 23, 2019.

Judge Vazquez disagreed with Judge Bowman’s recommendation concerning Toomey’s Title VII claim, reasoning that “[d]iscrimination based on transgender status or identity is discrimination based on sex because, but for the individual’s sex, the employer’s treatment of the individual would be different.” Judge Vazquez further highlighted the fact that the health plan’s exclusion of “gender reassignment surgery” “is directly connected to the incongruence between [Toomey’s] natal sex and his gender identity”, thereby “implicat[ing] the gender stereotyping prohibited by Title VII.” Judge Vazquez thus denied the motion to dismiss Toomey’s Title VII claim.

Judge Vazquez agreed with Judge Bowman’s recommendation regarding the non-dismissal of Toomey’s Equal Protection Clause claim. She reasoned that Toomey had alleged facts which could justify a heightened level of scrutiny. Judge Vazquez also noted that even if the Court were to apply rational basis review to Toomey’s Equal Protection claim, Toomey had “alleged facts plausibly showing that the Plan’s exclusion of gender reassignment surgery is not rationally related to a legitimate government interest.”

The question of whether the protections of Title VII apply to transgender individuals is currently before the Supreme Court for consideration, after oral argument on October 8, 2019. However, Judge Bowman denied the Defendants’ Motion to Stay Proceedings Pending the Supreme Court’s decision – thus, it is unclear whether the Supreme Court’s decision on this issue will have any impact in this particular case.

We will continue to watch this case, and will keep you posted of any developments.

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

 

By Mark A.Lies, II and Daniel R. Birnbaum

Seyfarth Synopsis: By now, the worldwide health authorities and media have publicized the 2019 Novel Coronavirus (2019-nCoV) (sometimes called Coronavirus) (the “virus” or “disease”) that has been first identified in Wuhan, Hubei Province, China. Although the United States has only experienced several cases of the virus, it is only a matter of time before the disease surfaces in more cases throughout the country. Given high density areas of human contact such as mass transportation systems, schools, hospitals and the workplace, the potential is great for this widely circulating virus to spread from human-to-human in a short period of time.

During this webinar program we will inform employers about current information on Coronavirus available from the CDC, WHO, and other health organizations. In addition, attendees will be provided with an overview of the potential legal liabilities associated with employees who may contract the disease. Finally, the program will provide practical recommendations to avoid potential employee exposure from the disease and actions to be taken in the event that an employee actually contracts the disease.

The webinar will take place on Thursday, February 6, 2020, from:

1:00 p.m. to 2:00 p.m. Eastern
12:00 p.m. to 1:00 p.m. Central
11:00 a.m. to 12:00 p.m. Mountain
10:00 a.m. to 11:00 a.m. Pacific

Please Register Here.

If you have any questions, please contact Cassie Peterson at clpeterson@seyfarth.com and reference this event.

Learn more about our Workplace Safety & Environmental practice.

*CLE Credit for this webinar has been awarded in the following states: CA, IL, NJ and NY. CLE Credit is pending for GA, TX and VA. Please note that in order to receive full credit for attending this webinar, the registrant must be present for the entire session.

By Linda C. Schoonmaker and Vanessa Rogers

Seyfarth Synopsis: Vaccinations have been widely debated over the past few years, leaving employers unclear about their obligations to accommodate employees whose religious beliefs conflict with them. Recently the U.S. Court of Appeals for the Fifth Circuit issued a decision providing insight into vaccination accommodations and establishing favorable precedent for employers.

Specifically, the Fifth Circuit held that where an employee refused an employer-mandated vaccination and the employer offered a position transfer, the employer had reasonably accommodated the employee, despite the fact that the position had less desirable duties and hours and resulted in a loss in income for the employee. Additionally, the Court held that the employer’s decision to terminate the employee was not retaliatory and the accommodation proposal did not violate the employee’s right to freely exercise his religion, but instead offered him a way to freely exercise it.

Summary of the Case:

In Horvath v. City of Leander, Texas et. al, the plaintiff, an ordained Baptist minister and employee of the City of Leander, Texas (the “City”), objected to vaccinations mandated by the City as a tenet of his religion. Over the years, the City granted the plaintiff flu vaccination exemptions, but his request for an exemption to the TDAP vaccine, which immunizes from tetanus, diphtheria, and pertussis or whopping cough, was denied, and culminated with his employment termination. The Fifth Circuit determined that the City had provided the plaintiff with a reasonable accommodation for his religious beliefs. Specifically, offering to reassign the plaintiff to the positon of code enforcement officer, a position which offered the same pay and benefits and did not require a vaccine, was a reasonable accommodation. The Court was unpersuaded by the plaintiff’s argument that the code enforcement officer position was “the least desirable position” in the department because of its duties and hours (which had normal business hours of Monday to Friday and occasional overtime on Saturdays, compared to the 24-hour shifts of his current position, driver/pump operators) or that the position was unreasonable because the schedule would prevent him from continuing his secondary employment, which would reduce his total income by half.

Relying upon Bruff v. North Mississippi Health Services. Inc., 244 F.3d 495 (5th Cir. 2001), a decision holding that a medical center had offered a reasonable accommodation to a counselor who sought to be excused from counseling on subjects that conflicted with her religious beliefs by allowing her 30 days and employment counselor assistance to find another position that did not conflict with her religious beliefs, the Fifth Circuit in Horvath found that while the plaintiff may prefer the hours and duties of traditional firefighting jobs, “Title VII does not restrict an employer to those means of accommodation that are preferred by employees” nor does the indirect loss of outside income.

Similarly, the Fifth Circuit found in favor of the City on the plaintiff’s retaliation claim, holding that the City had a legitimate, non-retaliatory reason for terminating the plaintiff’s employment, his defiance of a direct order — failure to select an accommodation in lieu of the TDAP vaccine.

Finally, the Fifth Circuit ruled in favor of the City on the plaintiff’ claim of violations of 42 U.S.C. § 1983 premised on violation of his First Amendment Free Exercise rights, finding that the second accommodation offered by the City — that the plaintiff “could remain in his current position if he agreed to wear personal protective equipment, including a respirator, at all times while on duty, submit to testing for possible disease when his health condition justified, and keep a log of his temperature” — did not violate his right to freely exercise his religion. Specifically, the Court found that the respirator requirement was not an official governmental policy as necessary to hold the City liable under § 1983, but one of two accommodations offered to him. Even if the requirement was a policy, the plaintiff’s right to freely exercise his religious beliefs was not burdened by the requirement, instead it provided a means by which the plaintiff could freely exercise his religion while maintaining his current job.

Employer Takeaways

The Fifth Circuit’s decision here is useful for employers navigating the murky waters of employee vaccinations and accommodations. Employers may accommodate religious beliefs which conflict with employer mandated vaccinations by offering employees positions that do not require vaccinations even if the offered position presents “less desirable” duties and hours and even if it results in a loss of outside income. Additionally, an employee’s deliberate refusal to accept a reasonable accommodation, may in fact constitute a legitimate non-discriminatory reason for an adverse action. Last, accommodations which provide options that would enable an employee to freely exercise his religion, such as the one in Horvath, do not violate an employee’s right to freely exercise his religion.

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

 

By Katherine F. Mendez and Samantha L. Brooks

Seyfarth Synopsis: As the 2020 presidential election approaches, both Congress and the presidential candidates are taking notice of future of work issues. A newly formed Congressional caucus aims to address future of work issues with legislation and education.

Employers are keenly aware of the impact that future of work technologies and concepts — including artificial intelligence, the gig economy and worker classification, and other automation technologies — may have on the workplace in the coming years and decades.

Although Congress has not introduced any specific legislation to address potential future of work challenges, on January 15, one month after a Congressional Hearing on the future of work, a bipartisan group of lawmakers launched the Congressional Future of Work Caucus, co-chaired by Congressman Bryan Steil (R-WI) and Congresswoman Lisa Blunt Rochester (D-DE).

According to Congresswoman Blunt Rochester, the Caucus plans to: “develop a clearinghouse of legislation relating the future of work in Congress, get continued participation and education of our members on the various aspects of the future of work, and finally, produce a national strategy that includes legislative wins for our country.”  Blunt Rochester also said that the Caucus “was created to educate Members and their staff, stakeholders, and the public on the challenges and opportunities prevalent in U.S. economy,” including “the growing effects of automation on the workforce, the emerging impact of artificial intelligence on society, the changing nature of the social contract, and the possible disruption & opportunities presented by technology in the U.S. economy.”

Of course, any plans for the Future of Work Caucus could be helped or impeded by the results of the 2020 presidential election. In the coming weeks, we will be reviewing and reporting on the candidates’ positions on future of work issues, including the gig economy and worker classification, gig workers’ collective bargaining rights, worker training and artificial intelligence, and minimum wage and employee benefits. Stay tuned!

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team.