By Lisa Lehmann Nichols, Samantha L. Brooks, and Steve Shardonofsky

Seyfarth Synopsis:  The Department of Labor recently issued additional “questions and answers” (“Q&A”) relating to the Families First Coronavirus Response Act (“FFCRA”). Below are a few key takeaways as employers reassess leave requirements for this summer.

1.  COVID-Related Summer Camp Closures (Q&A Nos. 67 and 93)

For months, many employees have juggled working from home with their children engaged in distance learning, some using FFCRA or other leave benefits during this time. Now, workers and employers are faced with a new, inevitable question: “Schools are closed for the summer. Camps are also closed because of COVID. Now what?”

Microscopic view of Coronavirus, a pathogen that attacks the respiratory tract. Analysis and test, experimentation. Sars. 3d render

The Q&As now specifically clarify that a “place of care” under the FFCRA — defined as a physical location where care is provided for a child — includes summer camps and summer enrichment programs, in addition to more obvious facilities like day cares, preschools, before and after school care programs, schools, homes, and respite care programs.

The new Q&A also explains that the closure of a child’s school or other “place of care” for summer vacation (or any other reason not related to COVID-19) is not a qualifying reason for leave under the FFCRA. However, the employee may be entitled to take leave if their child’s care provider during the summer—such as a summer camp or other summer school program—is closed or unavailable because of the pandemic.

Similarly, the Q&As provide that an employee who has been working from home successfully so far while also caring for their child, without taking FFCRA leave, is entitled to request leave at any time subject to an appropriate request and necessary documentation as required. The fact that the employee had been teleworking with children at home would not disqualify him/her from requesting leave at some later point because of the child’s camp or other place of care for the summer is closed because of COVID-19.

2.  FFCRA Leave for Employees Already on Workers’ Compensation, Temporary Disability, and Other Employer-Approved Leaves of Absence (Q&A Nos. 76 and 77)

The Q&As clarify that an employee generally may not take leave under the FFCRA if they are already on leave and receiving workers’ compensation or temporary disability benefits, unless the employee was able to return to light duty before taking FFCRA leave. In other words, if the employee was able to return to light duty, but then an FFCRA qualifying reason prevents the employee from continuing to work, the employee would be eligible for FFCRA leave. Otherwise, if the employee is on workers’ compensation leave and would not be able to return because of the injury or because there is no light duty work, the employee would be eligible for FFCRA even if she experiences a qualifying event during the leave period.

On the other hand, an employee who is taking a voluntary leave of absence may end their leave and request FFCRA leave for a qualifying reason that prevents them from being able to work or telework.  However, an employee who is on a mandatory leave of absence may not take FFCRA leave even if he experiences a qualifying event during the leave period. According to the Q&A, this is because the mandatory leave of absence is preventing the employee’s ability to work, and not a FFCRA qualifying reasons. Nevertheless, depending on the circumstances, an employee on a mandatory leave of absence may be eligible for unemployment benefits, and should contact their state unemployment agency for questions about eligibility.

3.  Employers May Require Minimal Documentation from Employees Taking Leave to Seek Medical Diagnosis for COVID Symptoms (Q&A No. 92)

The Q&As have now clarified what documentation employers may require from an employee who claims to have COVID-19 symptoms and is taking leave to seek a medical diagnosis.

Employers may only require employees to identify:

  • Their symptoms; and
  • A date for a test or doctor’s appointment.

Employers may not  require employees to provide documentation or certification that they sought a diagnosis or treatment.

Of note, this rule applies only to FFCRA leave and does not change rules for documentation under other types of leave. For example, employees taking unpaid leave under the FMLA may require certification from a health care provider in support of leave.

4.  Leave Logistics and Calculations: Identifying the Correct Six-Month Period to Determine the Regular Rate and Questions About Employer-Provided Paid Sick Leave (Q&A Nos. 85 and 86)

Regular Rate. If an employee takes intermittent leave prior to requesting FFCRA leave, employers do not need to determine and review a new six-month period every time the employee takes leave. Q&A 85 states that the six-month lookback period used to calculate an employee’s regular rate under the FFCRA is based on the first day the employee takes paid sick leave or expanded family medical leave. This six-month period is used to calculate all paid sick leave and expanded medical leave under the FFCRA, even if there the employee returns to work or has other leave periods in between the FFCRA leave requests.

Interaction of Employer-Provided Paid Sick Leave. Emergency paid sick leave under the FFCRA is in addition to any form of paid or unpaid leave provided by an employer, other laws, or applicable bargaining agreement. May an employer require the employee to use other available paid leave concurrently (i.e. cover the same hours) with their FFCRA leave?

Concurrent Leave FAQ

*This paid sick leave can be under the Emergency Paid Sick Leave Act or the employer’s plan, but not both.

5.  Requirements When Only One Joint Employer is Required to Provide Leave (Q&A No. 90)

The new Q&As clarify obligations for putative joint employers when one of them has more than 500 employees (for example, a staffing agency) and the other has fewer than 500 employees (for example, the client of a staffing agency). In this context, the first employer is not required to provide leave under the FFCRA. But the second company may be required to provide leave for temporary employees placed there by the staffing agency if it is the employee’s joint employer  under the FFCRA (a difficult and fact-intensive inquiry discussed in Q&A Nos. 2 and 90).

Importantly, according to the new Q&A, a joint employer that is not required to provide leave is still prohibited from interfering with the employee’s right to take leave through the second employer and must also not retaliate against the employee for doing so (for example, by discharging, disciplining, or discriminating against the worker).

For more information, please visit some of our prior client alerts summarizing the DOL’s FFCRA  Q&As here and here.

By Minh N. Vu

Seyfarth Synopsis: Depending on the staffing and layout of the retail store, some examples of accommodations may be reasonable and not cause undue hardship.

Several weeks ago, we blogged about mask objectors presenting businesses with documents bearing the U.S. Department of Justice seal stating that they are not required to wear masks because of their disability. Last week, the DOJ issued a statement that “[t]he Department of Justice has been made aware of postings or flyers on the internet regarding the Americans with Disabilities Act (ADA) and the use of face masks due to the COVID-19 pandemic, many of which include the Department of Justice’s seal. These postings were not issued by the Department and are not endorsed by the Department.” This statement makes clear that the DOJ has not taken a position on whether businesses can lawfully deny entry to people who refuse to wear masks because of a claimed disability, but provides no guidance to business presented with this thorny issue.

To further complicate matters, jurisdictions such as New York City, Virginia, and Pennsylvania that have issued executive orders mandating the wearing of masks in public all differ slightly on how businesses should respond to people who cannot wear masks because of a disability or medical condition.

The New York City guidance suggests that a business may be able to exclude people who refuse to wear masks because of a medical condition or disability as long as the business offers alternatives to access the business’ goods and services. The NYC guidance states:

Where a customer declines to wear a face covering due to a medical condition or disability, you cannot require the individual to provide medical documentation verifying the health issue. In addition, you must discuss with the individual whether there is a way you can provide a reasonable accommodation that will not cause you an undue hardship. You should try to provide alternative arrangements that are workable for your store, your staff, and your other customers. These arrangements will vary considerably based on each store’s ability to make accommodations without creating a hardship on the business.

Depending on the staffing and layout of the retail store, some examples of accommodations that may be reasonable and not cause undue hardship to you are:

  1. Have an employee bring the individual the items they want to buy and allow the individual to pay for them at the front of the store.
  2. Have the individual leave a list of items with the store and then deliver the items to their home.
  3. Inform the individual that they may order by telephone or online and have items delivered to their home.
  4. Suggest that the individual have a friend or family member do their shopping.

The Pennsylvania guidance, on the other hand, says “individuals who cannot wear a mask due to a medical condition (including children under the age of 2 years per CDC guidance) may enter the premises and are not required to provide documentation of such medical condition.”

The Virginia guidance takes an approach similar to Pennsylvania, stating:

Nothing in this Order shall require the use of a face covering by any person for whom doing so would be contrary to his or her health or safety because of a medical condition. Any person who declines to wear a face covering because of a medical condition shall not be required to produce or carry medical documentation verifying the stated condition nor shall the person be required to identify the precise underlying medical condition.

All of these orders prohibit a business from asking a customer about his or her medical condition or disability once the customer has informed the business of the existence of the condition or disability that prevents them from wearing a mask. The orders differ as on whether a business can lawfully exclude such individuals from the premises.

The fact that a jurisdiction exempts individuals with disabilities and/or medical conditions from its mask mandate does not necessarily mean that private businesses cannot impose more stringent mask requirements to protect their employees and customers. However, such requirements may be challenged as unlawful under Title III of the ADA. In fact, just last week, nine such lawsuits were filed in federal court claiming a retailer’s mask policy violated the ADA. A business defending such a challenge would have to show that requiring masks to be worn by all individuals inside a facility is a legitimate safety requirement, and that making an exception for people with claimed disabilities is not a reasonable modification of the policy. While it is difficult to predict how courts will rule on this novel issue, businesses can better position themselves for such a challenge by documenting the reasons for the policy at the time the business enacts the policy (e.g., governmental mandate, CDC guidance, etc.), as well as the business’ inability to modify the policy (including all possibilities for modifications considered), put in place alternative measures for providing goods and services to businesses that do not require entry into a facility, and train employees on the existence and appropriate communication of those alternatives.

Of course, businesses could avoid this litigation risk by allowing people claiming a disability or medical condition to enter their premises without a mask, although this heightens the risk of COVID-19 exposure for employees and customers and other potential liability outside of Title III of the ADA. A rock and a hard place indeed.

By Christina Jaremus and Erin Dougherty Foley

Seyfarth Synopsis: When an employee violates company rules or policies, a company is within its rights to respond with appropriate corrective action. How to respond, however, can become complicated when an employee engages in legally protected activity at or around the same time as their misconduct.

On April 30, 2020, the 11th Circuit issued its opinion in Brad Knox v. Roper Pump Company, No. 18-11756, (11th Cir. 2020) reversing summary judgment on a former Roper Pump Company (Roper) employee’s race-based retaliation claim. The key takeaway from Roper is that an employer may not respond to a claim of discrimination by conditioning continued employment on a release of all claims and then firing the employee for refusing to sign the release. When stated in those terms, it is abundantly clear that such an action constitutes unlawful retaliation. When an employee violates workplace policies at or around the same time that the employee engages in protected activity, how to discipline the employee appropriately for breaking workplace rules and otherwise limiting liability for a legitimate workplace decision without being accused of retaliation for the complaint becomes much murkier. Below is a summary of the key facts and holding in Roper together with some tips to stay on the right side of the law in this context.

On September 28, 2015, Brad Knox (Knox), an African-American man and 15-year quality test technician at Roper Pump Company, got into a fight with his adult daughter Kayla Knox (Kayla) at their shared home. Knox admitted that he slapped Kayla across the face, but claimed that he did so only after she first became violent with him. Kayla worked in the same facility as Knox, but for one of Roper’s affiliated companies. Kayla went to work the next day and complained to Roper’s human resources department. Because violence against a coworker violated Roper’s workplace violence policy and subjected an employee exhibiting violent behavior to “corrective action up to and including, termination,” Roper suspended Knox after investigating the matter.

Shortly after being placed on suspension, Knox called Roper’s Ethics and Compliance Employee Hotline to complain that he believed he was being discriminated against on account of race. He claimed that white employees had violated the workplace violence policy and Roper allegedly allowed them to continue working. Roper’s Human Resources Director and President, who made applicable employment decisions related to Knox, were aware of Knox’s complaint.

Post-complaint, Roper presented Knox with three choices: (1) accept termination for violating the Company’s workplace violence policy; (2) resign and sign a release in order to receive a severance package; or (3) complete an anger management course while on unpaid leave and keep his job. Knox chose the last option. Roper informed Knox that he could return to work after he received a certificate of completion of the course. Roper then sent Knox a written Last Chance Agreement (LCA), memorializing the terms of his continued employment. The LCA also included a release of all claims against Roper — including, expressly, any Title VII claims, which encompassed his race-discrimination complaint. The release included a standard and legally required carve-out permitting him to file a charge of discrimination or participate in an investigation conducted by any federal, state or local agency, but precluded any individual relief arising out of such a claim. Knox objected to the release and asserted that he believed the release was in retaliation for him having made a hotline complaint of racial discrimination.

Roper refused to remove the release. Roper further noted that the employees Knox compared himself to were inappropriate comparators because they, unlike Knox, were immediately terminated for violent behavior and terminated by different managers. Knox ultimately offered, in writing, to sign the LCA, if the Company removed his Title VII claim from the LCA, which Roper declined to do.

Knox subsequently sued Roper for race discrimination and retaliation. The district court granted summary judgment to Roper on both claims. On appeal, the 11th Circuit affirmed dismissal of Knox’s race discrimination claim, but reversed the district court’s decision on Knox’s retaliation claim. The 11th Circuit reasoned that a jury could reasonably conclude that Roper added the release because Knox complained of discrimination, that Knox would not have been fired had he signed the release, and that the Company’s proffered reason for the firing (violating the workplace violence policy) was a pretext for unlawful retaliation. In short, although Roper offered non-retaliatory reasons for his firing, the 11th Circuit held that a jury could reasonably find that Roper fired Knox in retaliation for filing a workplace complaint and then refusing to withdraw his claim. Whether a jury will ultimately decide the case in Knox’s favor remains to be seen, but Roper did not attain its goal of having the case dismissed by the judge as a matter of law before it ever reached a jury.

Roper reminds us that every employment decision must be analyzed on its own facts.

  • Roper does not stand for the idea that all releases contained in an last chance agreement for continued employment constitute retaliation. Roper’s proposed release likely would have been analyzed very differently by the 11th Circuit if Knox hadn’t complained of race discrimination at all. Likewise, the result likely would have been very different if applicable Company personnel asked for a release of all claims before Knox complained of race discrimination or when they had no knowledge of Knox’s complaint. Such releases are thus not automatically
  • The 11th Circuit may have also reached a different decision if Roper produced comparator evidence on summary judgment demonstrating that the Company has required such a release every time it offered an employee an LCA. Instead, Roper’s representative testified that it made Knox a “special offer.” The Company would have fared far better if it could have demonstrated that the release was standard protocol — and not specific to Knox.
  • Roper could have also reconsidered its decision and eliminated Knox’s retaliation claim by simply accepting Knox’s counter-offer to sign the Company’s release with an appropriate carve out for his Title VII race discrimination complaint. In that scenario, if Knox still declined to sign the LCA after Roper removed the waiver of his race discrimination claim from the LCA and Roper discharged him in response, Knox would have a much harder time demonstrating issues of fact concerning whether Roper’s explanation for discharging Knox had anything to do with his race discrimination complaint. On those facts, it is less likely that the 11th Circuit would have found that there were issues of fact concerning whether Knox’s complaint was the “but for” cause of his subsequent termination.

In conclusion, when employee misconduct becomes entangled in a workplace complaint based on protected activity or a protected characteristic — which quite frequently occurs — employers must tread carefully to ensure that their response to the misconduct does not suggest that the complaint was a factor in the Company’s disciplinary decision. Ultimately, the evidence must show that the Company would have made the same disciplinary decision regardless of whether the employee engaged in protected activity.

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

By Kyla J. Miller and Tracy M. Billows

Seyfarth Synopsis: The 4th Circuit rejected a punitive damages award won by a male AutoZone worker who accused the Company of blatantly ignoring complaints of sexual harassment by his female co-worker, finding that managers who failed to act on his complaint, without proof of intentional conduct, did not warrant a punitive damages award against the Company in a hostile work environment case under Title VII.

Female on Male Harassment & Subsequent Complaints

Plaintiff Keith Ward, a part-time commercial driver, only worked a few months before he started being sexually harassed by his female co-worker, Christina Atkinson. Atkinson began groping him and using sexually explicit language at work. For example, once Atkinson joked to Ward that she had performed oral sex on her husband for three hours the previous evening. On other occasions, she would “drag her fingers” across Ward’s buttocks, would grab Ward’s crotch, poke him in the chest and “grabbed [Ward’s] nipple through [his] shirt and twisted it until he had a bruise.” Ward ultimately quit the company after making repeated complaints but to no avail, and sued under theories of hostile work environment on the basis of his sex, constructive discharge, and retaliation under Title VII, in addition to intentional infliction of emotional distress under North Carolina law.

AutoZone’s Sexual Harassment Policy and Training

Like most Companies, AutoZone had a written sexual harassment policy, which required managers to thoroughly investigate each reported allegation. AutoZone also administered an online test to its managers to assess their knowledge of its sexual harassment policy. Yet, the policy found little purpose at this particular store. There were no copies of the handbooks describing the policy on-site, no in-person training on the sexual harassment policy, and managers merely had to log in to a computer and click “yes” to verify they read the policy.

Not only did this store manager testify that “99 percent of employees [did] not even read the policy,” but he also admitted to illicitly logging in to AutoZone’s verification program and verifying having read the policy on other employee’s behalves. Because the online test would reveal correct answers at its end, failing managers could pass the test with little studying.

Ward’s Complaints & AutoZone’s Meagre Response

Ward repeatedly reported the sexual harassment to management to no avail. He first reported Atkinson’s behavior to his direct manager who actually had witnessed some of the sexually explicit statements and groping. When Ward stated he was “sick and tired” of Atkinson “putting her hands” on him, his direct manager replied “Well, maybe if you’ll give her what she wants, she’ll leave you alone.” Ward then turned to the store manager with his complaints. The store manager confronted Atkinson and admonished her to stop. Still, the store manager also warned Ward to “knock it off,” despite the fact that no one had accused Ward of any misconduct.

The store manager then informed a district manager of the complaints. According to the store manager, the district manager did nothing and the sexual harassment persisted. Later, that district manager told Ward that “as a man,” Ward “should have been able to prevent” his coworker’s abusive conduct.

Once, Ward’s direct manager watched and laughed while Atkinson tried to grab Ward’s hand and put it in her pants pocket after she said she was not wearing any underwear and her pocket had a hole in it. On another occasion, the store manager just “sh[ook] his head” after Ward complained about Atkinson again.

Shortly thereafter, the store manager was replaced, and Ward reported Atkinson again – this time to the new store manager. The new store manager assured Ward that Ward’s direct manager–who was present during the conversation and admitted she witnessed the conduct–would talk to Atkinson about her behavior the next day. Ward quit the next day.

According to Ward, Atkinson physically harassed him at least twenty times, and that he reported her to his direct manager as many as twenty times.

The Jury Awards $600,000 in Punitive Damages, But the 4th Circuit Strikes It

The District Court granted AutoZone summary judgment only on the constructive discharge claim, and all remaining claims went to trial. The jury found in favor of Ward on the hostile work environment and intentional infliction of emotional distress claims, for which they awarded $100,000 in compensatory and $600,000 in punitive damages for the sexual harassment claim. The punitive damages were later lowered to $200,000 along with the $60,000 in punitives for the intentional infliction of emotional distress claim.

But, the 4th Circuit panel disagreed and did not let the punitives stand. The panel found that awarding punitive damages required a closer examination of the managerial status of Ward’s supervisors, which showed that the direct manager who allegedly acted with intentional discrimination against Ward was not a manger under the “managerial capacity test.” As for the store and district managers, whom the panel determined were liable, they were not engaging in conduct that rose to the level of “intentional discrimination with reckless indifference to Ward’s rights,” but were instead merely negligent. The panel went on to explain that a punitive damages award based on two manager’s “mere knowledge” of the harassment was not enough, and would open the floodgates to liability for employers in all similar hostile work environment cases.

The panel stated: “a party seeking to hold an employer vicariously liable for punitive damages based on the theory that employees served in a managerial capacity must establish more than that manager-level employees negligently failed to adequately respond to complaints of harassment. He must show that the managerial employees engaged in an intentionally discriminatory practice themselves with malice or reckless indifference. The evidence here does not make that showing.”

Takeaways For Employers

Train, train, and train your managers to recognize and act immediately when they receive complaints of sexual harassment – and to immediately escalate those concerns to HR or a higher level manager. Even  though the Court ultimately struck a punitive damages award for the two managers who passed the managerial capacity test, any manager receiving this type of report will put the company on notice of the conduct and could put the Company on the hook for any award in the employee’s favor–punitive damages and more.

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 Eric Suits

Seyfarth Synopsis: In the popular PBS show Downton Abbey, a large staff attends to the every domestic need of the British Earl and his family. Those of us somewhat less fortunate have likely felt the additional household burdens associated with the SIP orders. And as California businesses re-open, companies and workers have yet another chore to attend: cleaning uniforms more often. We have tailored this post to examine some implications for employers.

Etiquette From A Bygone Era

Although we previously blogged on employer reimbursements for uniforms, tools, and equipment, the new realities of operating a business amidst heightened sanitation requirements make it time to suit up for a reexamination of the issues.

In general, the underlying rules regarding employer reimbursements for uniforms, tools, and equipment have not changed. Under California law, employers still must pay for or reimburse a non-exempt employee for all costs associated with uniforms, regardless of how much the employee earns. This law differs from federal law, which generally allows employers to pass those expenses off to employees so long as their pay does not drop below the minimum wage. Even in California, though, employers typically need not reimburse employees for time spent personally cleaning clothing if the cleaning requires minimal time or care and can fit within the employee’s typical laundry schedule.

The Nature Of Life Is Not Permanence, But Flux

COVID has brought a dramatic shift to our work hours and environments. Once upon a time, people shared clothing items—like aprons (or waistcoats!)—with the colleagues working before and after them. But person-to-person transmission of COVID has brought some sharing practices into question. Similarly, uniform clothing items such as vests or ties once were cleaned infrequently and yet now may require aggressive, regular cleaning to guard against COVID transmission.

For employees whose uniforms need special cleaning, California employers must provide and maintain the uniform without cost to the employee. Likewise, any uniforms that require ironing, dry cleaning, special laundering, or sewing and repairs because of the nature of employment must be maintained by the employer or covered by a uniform maintenance credit that pays for the time and costs incurred in maintaining it.

The World Is A Different Place From The Way It Was—Uniforms in the Time of COVID

Bringing this back to the present, what about uniform or work clothing items that, pre-COVID, would have required little to no maintenance or cleaning? If items like vests and aprons must now be cleaned after every shift—in excess of employees’ normal laundry habits—the new cleaning regimen may lead to claims that the employee should be reimbursed for the extra time or expenses involved.

But employers are not without options! One potential solution is to provide employees with multiples of required clothing items. Even if an employee must wear and clean a vest every day, having several on hand to rotate through family laundry cycles would reduce the burden of keeping them clean and sanitary. Another possible solution is for the employer itself to take responsibility for cleaning work garments, such as by enlisting a qualified laundering service.

Employers could also have employees wash uniform items at the worksite. But care must be taken with respect to washing soiled garments. For example, the CDC cautions against handling laundry from people who are infected, recommends wearing gloves, and warns that shaking laundry can release virus fomites into the air. Our Workplace Safety team is well-versed on the CDC’s guidance on ways to minimize the risk of virus transmission when handling clothing and other frequently handled workplace items.

It’s Not A Masquerade—What About Masks?

Currently, the CDC and others are advising employees to wear masks when performing work that puts them in contact with others. Indeed, some jurisdictions, such as Los Angeles, have required individuals to wear face masks at certain public places.

Assuming that the face masks worn by employees are generic—i.e., no company branding, logos, or special color—they likely are not a “uniform” under California law. Employers thus should not need to reimburse employees for time spent washing masks, especially if the amount of time spent cleaning masks does not significantly add to the employee’s laundry burden.

But this is California, so take care to minimize the time employees may feel required to devote to cleaning their masks. Again, providing multiple masks for employees to rotate through the workweek may help obviate any potential issue of required special cleaning.

Workplace Solutions

In our current new reality, frequent washing of often-used garments like vests and aprons may be advisable. But employees who lack a large staff of butlers, valets, and maids may feel additional burdens associated with this new requirement. Here, as with everything we do in the COVID-infused employment workplace, we must take care when implementing policies and procedures that keep both employees and the public safe while also complying with California’s often peculiar employment laws. As always, please reach out to Seyfarth with questions.

Edited by Coby Turner

By Chris DeMeo, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: CDC and OSHA issues specific guidance related to COVID-19 policies, administrative controls, engineering controls, personal protective equipment, and face masks for the nursing home industry.   

During the COVID-19 pandemic, nursing homes and care facilities have instituted significant precautions and protocols to address employee and resident safety.  The Centers for Disease Control and Prevention (CDC) and federal Occupational Safety and Health Administration (OSHA) have both recently published guidance documents to assist guide nursing home employers in their response. The CDC has issued Considerations for the Public Health Response to COVID-19 in Nursing Homes, (April 29, 2020). This guidance is intended to assist nursing homes and public health authorities with response in nursing homes. This guidance supplements but does not replace recommendations included in the CDC’s earlier Interim Additional Guidance for Infection Prevention and Control for Patients with Suspected or Confirmed COVID-19 in Nursing Homes. OSHA just issued a COVID-19 Guidance for Nursing Home and Long Term Care Facility Workers, (May 14, 2020), which employers can follow to help protect nursing home workers and long term care facility workers from exposure to the coronavirus.

The CDC advises that nursing homes should:

  • Act now to implement all COVID-19 preparedness recommendations, even before cases are identified in their community.
  • Address asymptomatic and pre-symptomatic transmission, implement source controlfor everyone entering a healthcare facility (e.g., healthcare personnel, patients, visitors), regardless of symptoms.
    • Cloth face coverings are not considered personal protective equipment (PPE) because their capability to protect healthcare personnel (HCP) is unknown. Facemasks, if available, should be reserved for HCP.
    • For visitors and residents, a cloth face covering may be appropriate. If a visitor or resident arrives to the facility without a cloth face covering, a facemask may be used for source control if supplies are available.
  • Dedicate an area of the facility to care for residents with suspected or confirmed COVID-19; consider creating a staffing plan for that specific location.

In its nursing home and long-term care facility workers news release and Alert, OSHA suggests the following measures that can help protect employees working in nursing homes and long term care facilities, including:

  • Encourage workers to stay home if they are sick;
  • Screen workers and residents regularly for signs and symptoms consistent with the coronavirus. Send sick workers home or to seek medical care;
  • Closely monitor and take additional precautions regarding employees and residents who may have been exposed to an individual with the coronavirus;
  • Follow CDC guidance on updating existing resident visitation policies;
  • Ask visitors to inform the facility if they develop a fever or symptoms consistent with the coronavirus within 14 days of their visit;
  • Maintain at least 6 feet between workers, residents, and visitors to the extent possible, including while workers perform their duties and during breaks;
  • Stagger break periods to avoid crowding in breakrooms;
  • Consider alternatives to in-person large group gatherings (e.g., staff meetings, resident activities);
  • Always follow good infection prevention and control practices. Consult OSHA’s COVID-19 guidance for healthcare workers and employers.
  • Provide handwashing facilities and alcohol-based hand sanitizer with at least 60 percent alcohol throughout facilities;
  • Regularly clean and disinfect shared equipment and frequently touched surfaces in resident rooms, staff work stations, and common areas;
  • Use hospital-grade cleaning chemicals approved by the Environmental Protection Agency (EPA) from List N or EPA-approved, hospital grade cleaning chemicals that have label claims against the coronavirus;
  • Ensure workers have and use any personal protective equipment (PPE) they need to perform their jobs safely;
  • Continually monitor personal protective equipment (PPE) stocks, burn rate, and supply chains. Develop a process to decontaminate and reuse PPE, such as face shields and goggles, as appropriate. Follow CDC recommendations for optimization of PPE supplies;
  • Train workers about how to protect themselves and residents during the pandemic; and
  • Encourage workers to report any safety and health concerns.

These recommendations are consistent with OSHA’s general guidances for employers and likely also apply to private duty aides employed by residents’ families.  By following these guidances, where feasible, employers can demonstrate compliance with OSHA’s General Duty Clause to maintain a workplace free from any recognized hazard.  Compliance will also demonstrate the employer’s adoption of the standards of care to reduce liability for state tort claims.

In addition, the Governors of New York and Texas have recently directed that nursing home workers be tested for COVID-19. While in Texas such testing is to be carried out by State agencies, in New York, preliminary indications are that the facilities will be responsible.

Implementing these guidances and directives raises a myriad of additional legal considerations.  In developing a COVID-19 workplace safety and testing program, facilities should not overlook both general and COVID-specific issues such as immunity from liability, informed consent, employee accommodations, resident rights and information privacy.

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

We are pleased to announce the release of the 2020 edition of our in-demand book, Cal-Peculiarities: How California Employment Law is Different. The book is available in a convenient, searchable eBook format. Click HERE to order your copy to be delivered via e-mail today!

We also invite you to join us for a free webinar going over some of the biggest changes in the last year! The webinar will be on Thursday, May 28, 2020 with Seyfarth attorneys Chantelle Egan, Coby Turner, and Ann Marie Zaletel. They will discuss the latest legal developments of interest to executives, managers, in-house counsel, and human resources professionals with employees or workers in California, including:

  • New! Overview of COVID-19 provisions in the state of California
  • New! Expansion of ABC test for independent contracting
  • New! Ban on no-rehire provisions in settlement agreements
  • New! Ban on mandatory arbitration agreements
  • New! Expanded lactation accommodation: impacts on return to work
  • New! Expansion of Paid Family Leave benefits
  • New! Ban on hairstyle discrimination (the CROWN Act)
  • New! Organ donation leave entitlement
  • New! Minimum wages and salary thresholds for exempt status
  • New! Sexual harassment training requirements
  • New! Extension of filing deadlines for discrimination suits
  • “Regular rate” issues for meal premium pay and sick pay
  • “Unlimited vacation” plans under new scrutiny
  • Emerging issues in the life of COVID-19

While there is no cost to attend this program, registration is required. Please click HERE to register! The webinar will be offered at the following times:

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By Funto P. Seton and Esteban Shardonofsky

Seyfarth Synopsis: The US Supreme Court has never directly decided and the federal courts of appeal have not reached a unanimous decision on whether the “but for” or “motivating factor” standard applies to retaliation claims under the Family and Medical Leave Act (FMLA). An interlocutory appeal recently taken from the federal court in the Western District of Texas may give the Fifth Circuit a chance to weigh-in directly on this issue and provide clarity for litigants and the lower courts throughout Texas, Louisiana, and Mississippi.

There is currently a circuit split on the proper standard for proving retaliation claims under the FMLA. Some circuits (including the Second and Third) require plaintiffs to prove that their protected conduct motivated the employer’s decision to take an adverse action. Under this “motivating factor” analysis, the plaintiff can still prevail even if other legitimate factors also motivated the employer’s decision (monetary damages may be disallowed if the employer demonstrates that it would have taken the same action in the absence of an impermissible motivating factor). The First Circuit, on the other hand, applies the more stringent “but-for” standard to FMLA retaliation claims. Under that test, the plaintiff must show that the employer would not have taken the adverse employment action but for an improper motive (that is, except for the employer’s bias or retaliatory animus). Other circuits, including the Fifth Circuit, have not squarely decided the issue. The Fifth Circuit’s pattern jury charge for FMLA retaliation claims uses a “but for” standard, but also recognizes that “it is unclear whether, in the Fifth Circuit, . . . whether the motivating-factor standard may be used.”

Recently, in Crankshaw v. City of Elgin, a federal jury found in favor of the plaintiff and awarded damages on her FMLA interference and retaliation claims. Following the jury trial, The Court granted the defendant’s interlocutory appeal to the Fifth Circuit to decide the correct causation standard applicable to FMLA retaliation claims. As of this writing, it remains to be seen whether the Fifth Circuit will agree to hear the case.

If the Fifth Circuit picks up the case, it will mostly likely look to the Supreme Court’s Gross v. FBL Financial Services, Inc. and University of Texas v. Nassar decisions for guidance. In Gross, the Court decided that discrimination claims under the Age Discrimination in Employment Act must be proven under the “but for” standard because the plain language of the statute prohibits discrimination “because of” age, whereas Title VII’s prohibition on discrimination explicitly refers to “motivating factor” and does not include the “because of” language. Likewise, in Nassar, the Supreme Court held that retaliation claims under Title VII of the Civil Rights Act of 1964 are governed by the “but for” standard because: (1) the plain language of the statute prohibits retaliation “because of” the employee’s protected conduct; and (2) the retaliation provision does not mention “motivating factor.”

Takeaway for Employers

Given that the FMLA provision prohibiting retaliation (29 U.S.C. § 2615(a)(2)) similarly does not mention “motivating factor” and instead uses the phrase “because of,” it is likely that the Fifth Circuit, following the reasoning in Gross and Nassar, will find that the “but for” standard applies.

A ruling from the Fifth Circuit clarifying the proper causation standard for FMLA retaliation claims will be welcomed news for litigants and lower courts. The decision will likely affect whether and how often employers obtain summary judgment on these claims and how often these cases will proceed to trial. If the Court determines that the less stringent “motivating factor” standard applies, employers will likely be less successful on summary judgment. Looking ahead, the Fifth Circuit’s ruling may also give the Supreme Court an opportunity to weigh in as well and resolve the current circuit split on this issue.

If you have any questions regarding this or any related topic please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Counseling & Solutions or Absence Management and Accommodations Teams.

 

By Minh N. Vu and John W. Egan

Seyfarth Synopsis: Reopening businesses need to carefully consider how social distancing and other Covid-19 mitigation measures will impact customers with disabilities and be prepared to make adjustments.

Covid-19 has had a profound impact on the ways in which we use (or, more accurately, avoid) public accommodations spaces in recent months.  As businesses start to reopen in various parts of the country, they are implementing social distancing and other mitigation measures aimed to curb the spread of the virus among their employees and customers.  Businesses need to consider how these new measures impact customers with disabilities and adjust them accordingly.

           1. Screening Customers for Fever

Can businesses use temperature scanners or thermometers to screen customers for Covid-19 and refuse admission if they have a fever?  Title III of the ADA does not allow public accommodations to impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations.  However, it also has a specific provision that allows public accommodations to “impose legitimate safety requirements that are necessary for safe operation. Safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.”

In cases where public accommodations have relied on the “legitimate safety requirement” defense, courts have carefully scrutinized the evidence that the businesses used to develop the eligibility criteria.  Thus, businesses that plan on screening customers for fever need to carefully document the case for the eligibility criteria and be prepared to defend them.

The ADA also does not “require a public accommodation to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of that public accommodation when that individual poses a direct threat to the health or safety of others.”  Unlike the “legitimate safety requirement” defense, the “direct threat” defense requires businesses to conduct an individualized inquiry into whether a specific person poses a direct threat.  Courts tend to be very stringent in their analysis of what constitutes a direct threat, so businesses again need to be very careful about excluding people with disabilities using this rationale.

          2. Enforcing Social Distancing Guidelines

Businesses are enforcing social distancing guidelines with a variety of measures, including changes to points of entry, creating queue lines, and requiring customers to wait outside to limit the number of people inside a facility. These measures can create a number of ADA compliance issues.

Accessible Routes.  The ADA requires the maintenance of accessible routes so that people who use wheelchairs and other mobility devices have access to public accommodations.  Thus, if a facility has two entrances, and only one is accessible, the accessible one must remain open.  If a business creates queue lines for entry, those lines must be 36” wide from the ground up, and wider if there is a U-turn.  If there is not enough space for the regular queue line to maintain a 36” width, an alternative is to provide a separate shorter accessible line for people who use mobility devices.  This line should be marked with an ISA.

Waiting Customers.  The ADA requires reasonable modifications of normal policies, practices, and procedures, where necessary to ensure access for individuals with disabilities.  Customers with physical disabilities who cannot stand for long periods may ask to go to the front of the line as a reasonable modification.  Businesses may be reluctant to allow this as the claimed disability may not be obvious and the request may be fraudulent.  Allowing those who have a disability parking placard to go to the head of the line would be one possibility, combined with the provision of small folding chairs or other seating for those who need it but don’t have a placard.

          3. Face Masks and Lip Reading

Many customers who are deaf or hard of hearing rely on lip reading to communicate.  Some have complained that they cannot do so when employees are wearing face masks or coverings.  Thus, businesses should consider alternative means of communication. This might include providing a sanitized white board and pens to both the customer or employee to exchange written communications.  The ADA allows for flexibility in providing an appropriate auxiliary aid which depends on the nature, complexity, and context of the specific communication and individual’s preferred method of communication.  For example, providing real-time captioning or an American Sign Language (ASL) interpreter is not required for simple retail or restaurant communications. However, businesses should explore other potential solutions that will not spread the virus, but are also practical and effective in their particular setting.

          4. Assisting Customers with Disabilities While Social Distancing

The ADA requires employees of public accommodations to provide assistance to customers with disabilities for a variety of tasks, such as retrieving out of reach products, reading written product or other information to those with sight disabilities, and guiding those with sight disabilities to locations within a facility.  This obligation has not changed, and most of these tasks can still be performed while maintaining a safe distance.   However, employees should be reminded of their obligation to provide assistance while maintaining distancing measures.  For example, instead of offering a blind person an arm to guide the person to a destination, verbal wayfinding directions can be used instead.

          5. Accessible Seating

The ADA requires public accommodations that offer work or dining surfaces to provide accessible work or dining surfaces.  Specifically, five percent of seats at such surfaces must have a work surface that is between 28” and 34” above the ground, with clear space underneath that is at least 27” high, 17” deep, and 30” wide.  To ensure there is enough space between tables, businesses may remove tables from their dining rooms.  In so doing, they must ensure that the required number of accessible tables remain in service.

          6. Accessible Digital Alternatives

Even as stay-at-home orders are lifted, many customers will still prefer shopping online.  This also applies to customers with visual, hearing, or physical disabilities who rely on assistive technologies like screen readers or captioning on videos to access the internet. Businesses should review the accessibility of their websites and mobile apps, and ensure they have a manner and means to provide assistance to patrons with disabilities who encounter difficulties using the website or mobile app.

*                       *                       *

Unlike the U.S. Equal Employment Opportunity Commission (EEOC) which has issued guidance to employers about how to protect employees in the workplace from Covid-19 in compliance with non-discrimination laws, the Department of Justice (DOJ) has not issued any guidance on how public accommodations should apply social distancing and safety measures while maintaining compliance with Title III of the ADA. Thus, we strongly recommend that businesses consult with experienced counsel in developing and implementing plans for reopening that address the needs and heath of their employees and customers, including those with disabilities.

Edited by Kristina Launey

By Dianne Friedl and Steve Shardonofsky

Seyfarth Synopsis: The Texas Workforce Commission (TWC) just announced new guidelines allowing workers to retain unemployment benefits if they refuse suitable work for various COVID-19 related reasons. But the new rules do not require employers to keep those jobs open or reinstate workers when unemployment benefits run out. Under other federal or state laws, depending on the circumstances, Texans who choose to return to work may be entitled to paid sick or family leave (including job-protected leave) and other workplace benefits/accommodations for COVID-19 reasons, without having to risk their jobs. Given these and other protections, employers should proceed with caution before terminating for job abandonment workers who refuse to return.  At a minimum, given workers’ understandable fears about the pandemic, employers should consider explaining in their offer letters how they intend to comply with the various safety protocols recommended by the CDC, OSHA, and other governmental agencies.

Texas Businesses Reopen While Workers Face Difficult Choices
About Whether to Return

As many Texas businesses begin to reopen, employees throughout the state are also considering returning to work after temporary furloughs, heading back to the office after working remotely, or accepting new offers of employment. Many of those workers are currently receiving unemployment benefits. According to the Texas Tribune, more than 1.3 million people in Texas alone have filed for unemployment relief in the last five weeks. But as Governor Abbott announced the first phase of the plan to reopen Texas last week (see summary here), various advocacy groups began to sound the alarm about the existential dilemma workers may face: return to work and face possible exposure (or risk exposing others), or reject the job offer/recall notice and risk losing their unemployment benefits. Numerous media outlets picked up the story, prompting a spokesman from the TWC to announce on April 28 that the TWC was “developing parameters that might allow Texans to continue qualifying for unemployment insurance if they refuse to return to work at a business reopened by Governor Abbott because they fear contracting or spreading the coronavirus.”

The TWC Provides New Guidance Allowing Claimants to Refuse Work and Retain Unemployment Benefits

Generally, the Texas Unemployment Compensation Act (TUCA) allows claimants to draw unemployment benefits if they can show they are out of work through no fault of their own. See Tex. Labor Code § 207.001. But the Act disqualifies claimants who refuse a referral to or an offer of suitable work without good cause. See § 207.047. In considering whether work is suitable, the Commission considers several factors, including “the degree of risk involved to the individual’s health, safety, and morals at the place of performance of the work.” See Tex. Labor Code § 207.008(a). Those determinations are generally made by the TWC on an individual, case by case basis.

On April 30, 2020, Governor Abbott announced new guidance issued by the TWC concerning eligibility for unemployment benefits for claimants who choose not to return to work due to COVID-19. Under the TWC’s new guidance, unemployment claimants may refuse suitable work and continue to receive unemployment benefits if the refusal is based on one or more of the following reasons:

  • At High Risk: People 65 years or older are at a higher risk for getting very sick from COVID-19.
  • Household member at high risk: People 65 years or older are at a higher risk of getting very sick from COVID-19.
  • Diagnosed with COVID: The individual has tested positive for COVID-19 by a source authorized by the State of Texas and is not recovered.
  • Family member with COVID: Anybody in the household has tested positive for COVID-19 by a source authorized by the State of Texas and is not recovered and 14 days have not yet passed.
  • Quarantined: Individual is currently in 14-day quarantine due to close contact exposure to COVID-19.
  • Child care: Child’s school or daycare closed and no alternatives are available.

According to the TWC, any other situation involving a refusal of suitable work not specifically listed above will be reviewed by the Commission “based on individual circumstances.”

The New TWC Rules do not Provide Job Protection; But Employees Who do Return to Work May Still Qualify for Paid and Job-Protected Leave

Print and television news coverage of the TWC’s new guidance has focused almost exclusively on the right to refuse work and retain unemployment benefits. Most of those reports have not addressed an equally important question: whether employers must keep those positions open or reinstate workers whenever their unemployment benefits run out or when they are ready/able to return to work. The new TWC guidance does not address these questions and does not require employers to provide job protection.

If furloughed workers refuse to return to work when recalled without communicating the reason(s) for refusal, and assuming they were not already on protected leave before or during the furlough, employers in Texas may lawfully terminate those workers for job abandonment and fill those positions with other available talent. The same is true for new job offers: if a candidate rejects a job offer without communicating the reason(s) for refusal, the employer may offer the position to the next candidate selected for the job.

In some circumstances, however, employers may be required to provide paid sick or paid family leave, and may be required to reinstate workers if they are absent or need to stay away from work for COVID-19-related reasons (including workers with childcare responsibilities as a result of school closures during the pandemic).  In fact, many of the qualifying reasons for paid sick leave (up to 80 hours) and paid extended family leave (up to 10 weeks) under the new Families First Coronavirus Response Act (see here) overlap substantially with the new TWC guidance. Under the FFCRA, workers are eligible for paid sick leave starting on their first day, and may qualify for paid extended family leave after working for at least 30 days. Depending on the circumstances, employers may also be required to provided job-protected leave or other workplace accommodations (for example, continued remote work or modifications to the workplace/schedules/work duties) under other laws, including the Americans with Disabilities Act and the Family and Medical Leave Act. Employees may also be entitled to paid sick, medical, and/or family pursuant to workplace policies.  In other words, workers who choose to return to work after a full or partial furlough, or who choose to accept new job offers, may benefit from paid sick/family leave, without having to risk their jobs.

Even then, however, many workers may be fearful of returning to work without assurances that their employers have implemented adequate health and safety  protocols, and that they will follow the recommended guidance from the CDC, OSHA, and other federal/state agencies to limit exposure and prevent the spread of COVID-19. Under existing OSHA rules, workers can refuse to work if they have a reasonable belief that they face a threat of death or serious physical harm is likely to occur.  Importantly, however, a general fear of becoming infected in the workplace is not enough to trigger protection under OSHA. For a fuller explanation of this issue, see our previous blog here.

Takeaways for Employers

Given that many workers have legitimate questions about returning to work during the pandemic, employers should consider explaining in their job offers and other return-to-work communications how they intend to provide a safe work environment and comply with protocols recommended by the CDC, OSHA, and other governmental agencies. Texas employers should also be on the lookout for returning workers who request and may be entitled to paid or unpaid leave (including potentially job-protected leave) and other workplace accommodations related to COVID-19.