By John Ayers-Mann and Daniel B. Klein,

Seyfarth Synopsis: On September 29, Massachusetts Governor Charlie Baker issued an Executive Order outlining the process for “lower risk communities” to advance to Step Two of Phase Three of the Commonwealth’s reopening plan. On September 30 and October 1, Massachusetts published updated guidance for businesses in several sectors across the State in accordance with the Governor’s Order. 

On September 29, Massachusetts Governor Charlie Baker  issued Executive Order 51, outlining the process for “lower risk communities” to advance to Step Two of Phase Three of the Commonwealth’s reopening plan. Under the Governor’s Order, communities with an average daily COVID-19 incidence rate of 8 or fewer per 100,000 residents will be classified as “lower risk communities.”

In accordance with the Governor’s Order, on September 30 and October 1, the Commonwealth issued updated sector-specific reopening guidance for businesses moving into Step Two of Phase Three, effective October 5. The Commonwealth issued updated guidelines for the following sectors: retailers, lodging operators, arcades and other outdoor recreational facilities, fitness centers, indoor and outdoor events, golf facilities, and close contact personal services. Notable changes to the sector specific guidelines include:

  • Retailers in lower risk communities are permitted to open fitting rooms in all retail stores within such lower risk communities. Under prior guidance, retailers were only permitted to open fitting rooms if the fitting rooms were necessary for their operations.
  • The new guidance allows lodging providers to resume providing non-essential amenities such as coffee, guest-facing water, and coat rooms. Valets must also provide hand sanitizer and must use hand sanitizer before and after parking vehicles.
  • Fitness centers in lower risk communities are permitted to operate with increased capacity. Fitness center customers are no longer required to wear face masks while engaging in strenuous activity, provided that they can remain 14 feet apart from other customers during exercise. Attendees of group exercise classes must also maintain 14 feet of social distance during exercise, unless physical barriers are installed, in which case 6 feet of social distance must be maintained.
  • The updated guidance for arcades and other outdoor recreation businesses permits businesses in lower risk communities to operate certain activities with greater capacity, including batting cages, driving ranges, bowling alleys and others. In addition, businesses in lower risk communities that operate roller skating rinks, trampolines, obstacle courses, laser tag arenas, and escape rooms are permitted to resume operations.
  • Outdoor events in public settings within lower risk communities are permitted to take place with up to 100 attendees. For outdoor gatherings involving more than 50 attendees, the event organizers must notify the local Board of Health one week prior to the event. Notice to the local Board of Health must include the location and time of the planned event, the name and contact information of the event organizer, and the number of anticipated attendees. Attendees of any indoor or outdoor event must maintain 6 feet of physical distance between other attendees not within the same household.

We will continue to keep you apprised of any other significant developments in or changes to the Commonwealth’s sector-specific guidance.

Those with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Pamela Q. Devata and Jennifer L. Mora

Seyfarth Synopsis: On September 15, 2020, Hawaii Governor David Y. Ige signed Senate Bill 051, which narrows the scope of convictions that employers can use for hiring and other employment-related decisions. The new law is effective immediately.

In 1998, Hawaii became the first state to “ban the box,” prohibiting a private employer from inquiring about a job applicant’s criminal history until the employer has made a conditional offer of employment. Up until now, the state also made it unlawful for an employer to consider an applicant or employee’s conviction record unless the record was less than 10 years old, excluding periods of incarceration. And, those records can only disqualify a person from employment if the employer can show the record has a “rational relationship” to the duties and responsibilities of the position in question.

This year, however, the state legislature noted that this 10-year lookback period “may continue to facilitate employment discrimination against individuals who have a criminal history, but who have long since paid their debt to society and pose little to no risk to an employer or the public.” Thus, the legislature determined it appropriate to shorten the 10-year lookback period to “reduce unnecessary employment discrimination against individuals with old and relatively minor conviction records, in furtherance of economic self-sufficiency, and to reduce crime and recidivism rates.”

To this end, effective September 15, 2020, employers in Hawaii now may only consider felony convictions that occurred in the most recent seven years and misdemeanor convictions that occurred in the most recent five years (both excluding any periods of incarceration). The law still requires employers to allow applicants or employees to present documentary evidence of their date of release from incarceration if they disagree with the period of incarceration reported to the employer. Importantly, the record still must bear a “rational relationship” to the job in question in order to be disqualifying.

The law contains numerous exceptions, including for certain schools, healthcare institutions, financial institutions, insurance institutions, and many others.

Employers located in Hawaii should ensure that their screening and other hiring practices comply with the amended law immediately. Employers also should continue to be mindful of other laws regulating criminal records checks and screening policies, including state and local employment and ban-the-box laws and the growing body of laws restricting employer use of credit reports and other credit history information in hiring and other employment decisions. Moreover, given that we continue to see class actions filed against employers over the Fair Credit Reporting Act’s hyper-technical requirements, employers also would be well-advised to review and adit their disclosure and authorization forms and stay abreast of legal updates in this area of the law.

By Leon Rodriguez and Emily J. Miller

Seyfarth Synopsis: Consistent with Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972, the U.S. Department of Health and Human Services (HHS) recently published recommendations for preventing and responding to sexual harassment for entities that receive federal financial assistance from HHS. In its “Effective Practices for Preventing Sexual Harassment” document, HHS makes specific recommendations for those working in university health and medical settings related to performing patient medical examinations.

On Friday, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services published a document containing “voluntary standards” and “suggested practices” geared toward preventing sexual harassment in entities that receive federal financial assistance from HHS. (The document opens with a clear disclaimer that it is “not guidance and is not a final agency action…”) The document, “Effective Practices for Preventing Sexual Harassment,” outlines steps that HHS funding recipients could take to ensure compliance with Title IX of the Education Amendments of 1972 (Title IX).

Title IX prohibits sex discrimination, including sexual harassment, in education programs and activities that receive federal financial assistance. Although most commonly discussed in the context of enforcement by the OCR Department of Education (DOE), all federal agencies that fund education programs or activities are required to enforce Title IX – including HHS.

Additionally, under Section 1557 of the Affordable Care Act (Section 1557), health programs and activities that receive federal financial assistance cannot discriminate on the basis of race, color, national origin, disability, age, or sex. Section 1557 takes its prohibition against sex discrimination from Title IX. Typically, entities found in violation of Title IX or Section 1557 are invited to take corrective action either pursuant to a closure or, in more serious cases, pursuant to resolution agreements with the enforcing federal agency. Absent voluntary corrective action, the affected entity may face withdrawal of all its federal financial assistance.

For instance, a little over a year ago, HHS entered into a public, voluntary resolution agreement with Michigan State University (MSU), the MSU HealthTeam, and MSU Health Care, Inc. stemming from its own investigation following the criminal investigation and convictions of Lawrence “Larry” Nassar.

Some entities, like universities or academic medical centers, may receive funding from both the DOE and HHS, and those entities are responsible for complying with the Title IX Regulations from each agency – though in the Effective Practices document, HHS specifically states that its Regulations do not supersede the DOE Regulations when both apply. (And there is some interplay between the two. For instance, HHS specifically states in its Effective Practices document that it applies the DOE’s definition of sexual harassment from its May 2020 final rule.)

The Effective Practices document explains that, under HHS Title IX Regulations, recipients of HHS funding must publish contact information for the individual(s) responsible for coordinating the entity’s compliance with Title IX. In addition, recipients must “adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging sexual harassment in a recipient’s education and student health programs.”  The document further recommends that recipients evaluate their programs and activities to ensure that they “do not deny or limit an individual’s ability to participate in or benefit from the program at issue on the basis of sex.”

Beyond synthesizing some responsibilities under the HHS Title IX Regulations, the Effective Practices document splits its recommendations into three parts: (1) Effective Practices in HHS-Funded Programs Generally; (2) Effective Practices Specific to University Health and Medical Settings; and (3) Effective Practices Specific to Research Settings.

On the whole, the general section offers broad considerations for recipients to make regarding implementation of effective policies and procedures geared toward sexual harassment prevention and response, dissemination of information about policies, procedures, resources, and responsibilities, prevention and response education, and evaluation of these sexual harassment prevention and response efforts. For example, HHS suggests that recipients implement policies that define sexual harassment using “clear language” and provide “easy to understand relevant examples.” The section on Research Settings is similarly general – making recommendations as to training and notifying individuals of prohibited conduct and options for filing a complaint.

In the University Health and Medical Settings section, HHS is more specific. First, HHS reminds recipients that student health facilities, whether located on or off campus, are covered by Title IX. Here, HHS offers three concrete examples of protective protocols for recipients to consider taking in these environments. The first recommendation is that patients bring a support person into the exam room – or have a same-sex member of the health care team present – for the patient’s examination. This recommendation is similar to one of the key terms of the Michigan State University resolution agreement, and is likely to become a de facto requirements for Title-IX covered health care entities.

The second suggestion is that, before undertaking an examination, providers share detailed information about what the patient can expect during the examination – and that providers obtain the patient’s informed consent to perform the examination. Finally, HHS recommends that providers ask patients to remove as little clothing as necessary – for the least amount of time necessary – to perform the examination.

HHS’s publication of this document, taken together with the MSU resolution agreement, means that we can anticipate further OCR enforcement activity in this space. Education programs and activities that receive funding from HHS, particularly those operating in University Health and Medical Settings, should review the document and consider the recommendations in light of their own current policies and practices. In the event of an OCR investigation, covered entities are likely to find that these are seen as requirements rather than recommendations.

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.

Seyfarth Synopsis: Here is quick review and summary of our employment law blogs posted over the last two months, as a way to keep you connected and aware of our latest thought leadership. As always, readers are encouraged to reach out to our authors with any comments or questions raised from the blog.

Mental Health Awareness and Innovation – A Silver Lining?

Seyfarth Synopsis: The novel coronavirus pandemic has put a spotlight on the mental health of workers. This blog was originally posted in Seyfarth Australia’s Workplace Law & Strategy blog.

Rare First Circuit Decision Invalidating NDA and Overturning Misappropriation Verdict Serves as a Cautionary Tale

Seyfarth Synopsis: In a rare appellate decision on enforceability of non-disclosure agreements and a plaintiff’s burden to establish the existence of trade secrets, the First Circuit recently overturned a district court summary judgment order and trial verdict. This decision serves as an important reminder for both those who litigate trade secrets claims and those who draft restrictive covenants agreements.

7th Circuit has Spoken: Two Pound Lifting Limit, and Other Restrictions Can be an Unreasonable Accommodation under the ADA

Seyfarth Synopsis: Athleisure company is rightfully able to terminate the employment of individual with physical limitations, despite that individual’s ability to delegate such functions of her position. See Tonyan v. Dunham’s Athleisure Corp., No. 19-2939 (7th Cir. 2020).

Not a Typo: Georgia Enacts a Stringent Employment Law

Seyfarth Synopsis: Some states are known for setting high legislative bars with respect to employment rights and protections (looking at you, California). The State of Georgia isn’t one of them. Earlier this month, however, the Peach State broke its mold by enacting one of the most stringent lactation break laws in the country.

7th Circuit Focuses On Evidence To Avoid Distraction In Associational Discrimination Case

Seyfarth Synopsis: On August 18, 2020, the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment on a plaintiff’s associational disability discrimination and retaliation claims, finding the plaintiff failed to support his allegations with sufficient evidence. The decision prevents plaintiffs with associational discrimination claims from relying on unsupported allegations of “distraction” to explain their poor performance, and reinforces  a plaintiff’s obligation to present evidence establishing adverse employment actions in support of their discrimination and retaliation claims.

CDC Guidance on Workplace Violence in Retail Associated with COVID-19, Customer Face Mask Enforcement

Seyfarth Synopsis: The CDC published guidance aimed at assisting retail and service companies in limiting workplace violence against or involving their employees that may be associated with enforcing face mask mandates and other COVID-19 precautions.

Title VII, Section 1981, and the Limits of Protected Activity

Seyfarth Synopsis: Managing employees engaged in potentially protected activity can be tricky when disciplinary and other normal employment actions might be misconstrued as unlawful retaliation. A recent decision from the United States Court of Appeals for the Eleventh Circuit, however, makes clear that employers may manage employees engaged in protected activity, and that an employee can lose statutory protection when engaging in otherwise protected activity in an unreasonable manner.

EEOC Update: The Commission Offers Updated COVID-19 Guidance To Address Additional ADA Considerations

Seyfarth Synopsis: On September 8, 2020, the EEOC updated its Technical Assistance Q&A webpage to address 18 new questions regarding the application of the Americans With Disabilities Act (“ADA”), the Rehabilitation Act, and other EEO laws to employers continuing to face the struggles of the COVID-19 pandemic. The latest guidance addresses issues such as COVID-19 testing and screening, confidentiality, and reasonable accommodations. The latest guidance is a critical “must read” for all employers with employees in the workplace or providing alternative work arrangements.

Virtual Panel Discussion – Employee Political Speech at Work and on Social Media: Legal & Practical Considerations

Seyfarth Synopsis: Because of the current political and social climate, employers are seeing increased political activity by employees at work and on social media—from wearing masks with political and social messages to posting on Facebook about protests and elections. Across the country, employers face unique challenges in managing political expression. Our panel of experts will discuss the key practical and legal considerations, and broader social implications, as employers attempt to navigate this era of polarized political opinions and look ahead towards the November elections.

Pandemic Telework Does Not Create Presumptive Right to Telework Post-Pandemic According to EEOC

Seyfarth Synopsis: With telework seeming like the new normal for many, employers and employees have been wondering whether pandemic telework will be seen as creating a presumptive right to post-pandemic telework as a reasonable accommodation for employees with disabilities. On September 8, 2020, the EEOC answered “no” to this burning question in its updated “Technical Assistance Questions and Answers” on issues dealing with COVID-19 and the ADA and other equal employment opportunity laws.

Cal/OSHA Cites Food Manufacturer and its Staffing Firm for Failing to Protect Hundreds of Workers from COVID-19 Exposure

Seyfarth Synopsis: Cal/OSHA, in a press release, noted that it recently issued citations to a food manufacturer and its temporary employment agency, with over $200,000 in proposed penalties to each employer for “failing to protect hundreds of employees from COVID-19 at two plants.”

CalPecs – COVID-19 Exposure Notification Requirements Coming To A Workplace Near You

Seyfarth Synopsis: As California’s legislative session comes to an end, a wave of new COVID-19 related laws that impact employers are being signed into law. On September 17, 2020, Governor Newsom signed AB 685, which will require employers to provide specific notices to employees exposed to COVID-19 within one business day of becoming aware of the exposure, and impacts COVID-19 related alleged Cal/OSHA violations.

Workers’ Compensation Liability Is Catching In California

Seyfarth Synopsis: Senate Bill 1159 was signed into law by Governor Newsom on September 17, 2020, and went into effect immediately. Under the new law, if employees test positive for COVID-19 under specific circumstances, there is a rebuttable presumption that their exposure occurred at the workplace. Unless rebutted, this presumption creates a compensable injury for purposes of qualifying for workers’ compensation benefits. SB 1159 also creates reporting requirements for employers through January 1, 2023.

By Matthew Graffigna and Robert E. Buch

Seyfarth Synopsis: Senate Bill 1159 was signed into law by Governor Newsom on September 17, 2020, and went into effect immediately. Under the new law, if employees test positive for COVID-19 under specific circumstances, there is a rebuttable presumption that their exposure occurred at the workplace. Unless rebutted, this presumption creates a compensable injury for purposes of qualifying for workers’ compensation benefits. SB 1159 also creates reporting requirements for employers through January 1, 2023.

Who Is Eligible For The New Workers’ Compensation Presumption?

As we previously reported, Executive Order N-62-20 created a rebuttable presumption surrounding certain COVID-19 workplace exposures. SB 1159 codifies Executive Order N-62-20 in new Labor Code section 3212.86. Under this section, there is now a statutory rebuttable presumption of industrial exposure (i.e., the assumption that someone got sick at work) for workers who tested positive or were diagnosed with COVID-19 within 14 days after performing services at their place of employment at their employer’s direction between March 19, 2020, and July 5, 2020. To be entitled to the presumption, an employee diagnosed with COVID-19 must have had the diagnosis confirmed by testing within 30 days of the diagnosis.

Since Governor Newsom’s Executive Order sunset on July 5, 2020, employers have been left in the dark as to whether and how its requirements might be extended. Now, the answer is clear—SB 1159 created a new framework for this rebuttable presumption that went into effect immediately on September 17, 2020.

Under the new Labor Code section 3212.88, there is a rebuttable presumption of workers’ compensation coverage when an employee tests positive for COVID-19 within 14 days after performing services at their place of employment at the employer’s direction if the positive test occurs on or after July 6, 2020, and the positive test occurred during a period of an “outbreakat the workplace.

However, there is a slightly different avenue for people working in healthcare or in public safety positions. For these employees to qualify for the presumption, they must only test positive for COVID-19 within 14 days of performing services at their place of employment on or after July 6, 2020 (regardless of whether there has been an “outbreak”).

Also note that across the board, employees must exhaust all available supplemental COVID-19 sick leave pay, such as the new CA COVID supplemental sick pay, before receiving temporary disability benefits from the worker’s compensation carrier.

What Does It Mean To Have An “Outbreak”?

For purposes of this new law, an “outbreak” is when, within 14 days, any of the following occurs at a place of employment:

  1. The employer has 100 employees or fewer at a specific place of employment, and four employees test positive for COVID-19.
  2. The employer has more than 100 employees at a specific place of employment, and 4% of the workforce at that place test positive for COVID-19.
  3. A specific place of employment is ordered to closed because of COVID-19.

(Note that this definition of “outbreak” is specific to this workers’ compensation presumption. The California Department of Health and other state and local laws use different definitions of “outbreak” for different purposes.)

But I Have A Huge Facility—What Does “Specific Place Of Employment” Mean?

Many employers have sites that cover several acres, encompassing multiple buildings, fields, and processing floors and departments. In these instances, the workers’ compensation liability presumption might not apply if someone works in a different or distinct part of a facility from any other employees who may have contracted COVID-19, because it may not be considered the “specific place of employment” under the new statute.

For purposes of the new law, a “specific place of employment” is defined as “the building, store, facility, or agricultural field where an employee performs work at the employer’s direction.” The employee’s home or residence is excluded unless the employee provides home health care services to another individual at the employee’s home or residence. (And, if that is the case, the home office must be the exclusive location where the employee performs their work.)

So, if an employer has one employee test positive in Building A, and another test positive in Building B on the opposite side of campus (and they don’t otherwise share facilities, like a break room or restroom), the employer may have a good argument the presumption does not apply.

If My Employee Tests Positive For COVID-19, What Do I Have To Do?

In addition to other requirements that may be in place under state or local laws, SB 1159 creates employer reporting requirements. An employer that “knows or reasonably should know” that an employee has tested positive for COVID-19 must report to the workers’ claims administrator in writing—via email or fax—all of the following within three business days:

  1. An employee has tested positive. But the employer must not reveal any personally identifiable information about the employee unless the employee has asserted the infection is work-related or has filed a claim form pursuant to Section 5401.
  2. The date that the employee tested positive, which is the date the specimen was collected for testing.
  3. The specific address of the specific place of employment during the 14-day period preceding the date of the positive test.
  4. The highest number of employees who reported to work at the specific place of employment during the 45-day period preceding the last day the employee worked at each specific place of employment.”

Employers also must retroactively report to their carriers any employees who tested positive on or after July 6, 2020, and prior to September 17, 2020.

Following these reporting requirements is of paramount importance—employers that intentionally submit false or misleading information or fail to submit information when reporting can trigger civil penalties in amounts up to $10,000.

Workplace Solutions

The laws surrounding workers’ compensation and COVID-19 infections have been changing rapidly. If you have questions about the current state of reporting requirements or what to do if you have employees that test positive, then please contact your favorite Seyfarth attorney.

Edited by Coby Turner and Elizabeth Levy

By Ilana R. Morady and Elizabeth M. Levy

Seyfarth Synopsis: As California’s legislative session comes to an end, a wave of new COVID-19 related laws that impact employers are being signed into law. On September 17, 2020, Governor Newsom signed AB 685, which will require employers to provide specific notices to employees exposed to COVID-19 within one business day of becoming aware of the exposure, and impacts COVID-19 related alleged Cal/OSHA violations.

When we last we blogged about Assembly Bill 685, it was awaiting Governor Newsom’s approval, but it was signed into law on September 17, 2020. Under the new law, which will be in effect from January 1, 2021, until January 1, 2023, employers must comply with specific notification requirements any time there has been a potential COVID-19 exposure in the workplace. AB 685 also enhances Cal/OSHA’s enforcement abilities in the COVID-19 realm.

COVID-19 Exposure Notification Requirements

  • Who Do I Need To Notify?

Any time an employer is put on notice that a “qualifying individual” (someone who tested positive for or was diagnosed with COVID-19, or is subjected to an isolation order) was in the workplace while they were considered potentially infectious, the employer is subject to notice requirements.  First, notice must be provided to individuals who “may have been exposed” in the workplace within one business day.  This notice must be sent to employees, subcontractors, and union representatives.

Employers with multiple buildings or floors do not necessarily need to provide notice of potential exposure throughout the entire company— the notice requirement is limited to the specific “worksite” the qualifying individual entered, such as “Building A” or “Field 1,” and not necessarily the entire company or facility site.

Employers are also required to notify the local public health department within 48 hours of becoming aware of a COVID-19 workplace “outbreak,” as defined by the California Department of Public Health. (Note that the California Department of Public Health currently defines an outbreak as three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households. However, as with all things COVID-19 related, local definitions may vary and guidance may be subject to change, so employers should continue to regularly check on the most up to date applicable information.)

When notifying the local health department, employers should be prepared to report the number of COVID-19 cases at the worksite, as well as names, occupations and worksites of qualifying individuals. Employers required to report an outbreak must also notify the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.

  • What Information Does The Notification Need To Include?

The notice must inform individuals who were at the workplace during the qualifying individual’s infectious period that they “may have been exposed to COVID-19.” This notice also needs to provide information to all employees “who may have been exposed” about benefits to which employees may be entitled under federal, state, or local law, including workers’ compensation, paid sick leave, negotiated leave, and anti-retaliation and anti-discrimination protections.

In addition, all employees must be notified about the disinfection and safety plans that the employer plans to implement and complete per CDC guidelines.

  • How Do I Need To Distribute The Notice?

The written notification of potential exposure must be sent in a manner normally used by the employer to communicate employment-related information (including personal service, email, or text), must be in both English and the language understood by the majority of the employees, and must protect employee privacy (i.e., not disclose the names of qualifying individuals). Non-employee individuals entitled to this notice may be notified in a similar manner.

Also note employers are required to maintain records of the written notification for at least three years.

  • Are There Any Exceptions?

The “outbreak” reporting requirement will not apply to “health facilities” as defined in the Health and Safety Code. In addition, neither the “outbreak” reporting nor the notification-of potential-exposure requirement will apply to employees who, as part of their duties, conduct COVID-19 testing or provide direct care to individuals known to have tested positive for COVID-19, or are in quarantine or isolation—unless the qualifying individual is an employee at the same worksite.

Cal/OSHA Enforcement

Cal/OSHA has long had the authority to shut down a worksite if it determines the worksite presents an “imminent hazard.” However, AB 685 adds Section 6325(b) to the Labor Code, which reiterates that the Division of Occupational Safety and Health can close down a business if it deems there is an “imminent hazard” related to potential COVID-19 transmission.

AB 685 also exempts the Division from sending notices of intent to issue serious citations (as is normally required) when the alleged hazard is COVID-19 related. Normally, if Cal/OSHA plans to issue a serious citation, it first sends a notice of intent, and employers have the option of responding with evidence. But now, if Cal/OSHA intends to issue a serious citation for an alleged COVID-19 hazard, it need not issue a notice of intent or consider the employer’s evidence.

Workplace Solutions

Navigating ever-changing COVID-19 related laws remains a significant challenge, particularly in California. Seyfarth continues to keep employers updated in its COVID-19 Resource Center. If you have questions or concerns regarding which types of regulations may apply to your workforce, and how to implement them, reach out to your favorite Seyfarth attorney.

Edited by Coby Turner

 

By Benjamin D. BriggsBrent I. ClarkMark A. Lies, IIAdam R. YoungIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: Cal/OSHA, in a press release, noted that it recently issued citations to a food manufacturer and its temporary employment agency, with over $200,000 in proposed penalties to each employer for “failing to protect hundreds of employees from COVID-19 at two plants.”

According to the Agency, the employers did not take “any steps to install barriers or implement procedures to have employees work at least six feet away from each other and they did not investigate any of their employees’ COVID-19 infections.” In addition, the employers did not “adequately communicate the COVID-19 hazards” to its employees and in at least one case did not report a COVID-19 fatality to Cal/OSHA.

The Agency noted that the citations also allege that the “employer did not notify employees about their potential exposure to other employees who had been diagnosed as infected with the virus so that such employees would be able to take appropriate protective measures.”

Cal/OSHA’s Chief, Doug Parker, indicated that “if a COVID-19 illness occurs, employers must investigate the case to determine if additional protective measures should be taken and report the serious illnesses and deaths to Cal/OSHA. Employers should also notify workers of possible exposure and report outbreaks to county public health officials.”

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

By Loren Gesinsky and Samuel I. Rubinstein

Seyfarth Synopsis: With telework seeming like the new normal for many, employers and employees have been wondering whether pandemic telework will be seen as creating a presumptive right to post-pandemic telework as a reasonable accommodation for employees with disabilities. On September 8, 2020, the EEOC answered “no” to this burning question in its updated “Technical Assistance Questions and Answers” on issues dealing with COVID-19 and the ADA and other equal employment opportunity laws.

Six months into the pandemic, with many employees still working from home, teleworking is far more common than ever. Some employers are encouraging or permitting many employees to work remotely for the rest of 2020 (and beyond). Today’s situation is far different from five years ago when the EEOC lost in its attempt at the Sixth Circuit to expand telecommuting as a reasonable accommodation under the ADA, a case we blogged previously here.

Nowadays, employers are preparing for a potential tidal wave of reasonable accommodation requests for telework after they resume requiring onsite work. Employees may wonder whether the employer has to continue the telework arrangement after the worksite reopens, and other employees may seek to renew previously denied, pre-COVID-19 telework reasonable accommodation requests. Finally, the EEOC has stepped in to address this issue in its September 8, 2020 updates to its “Technical Assistance Questions and Answers” on issues dealing with COVID-19 and the ADA and other equal employment opportunity laws.

The EEOC’s answers provide useful guidance for employers. As a baseline, the EEOC notes that any across-the-board treatment like a presumption is inconsistent with the EEOC’s oft-repeated maxim that reasonable-accommodation inquiries must be addressed on an individualized basis. Instead, “[a]ny time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation” and then proceed through the interactive process accordingly regarding a potential reasonable accommodation.

The EEOC also reiterates another fundamental precept that “[t]he ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.” Relying on this precept, the EEOC makes a common-sense determination that employee advocates may tend to ignore or de-emphasize: “The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions ….” In other words, temporarily making the best out of telework out of necessity and compassion does not tie an employer to forever deeming this a successful means for fulfilling all of the long-term essential functions.

Nevertheless, the EEOC recognizes a scenario under which the pandemic telework experience of an employee could be relevant to telework as a reasonable accommodation post-pandemic. If an employee renews a pre-COVID-19 request for teleworking as a reasonable accommodation, the EEOC suggests that this prior teleworking experience could be relevant in considering the renewed request. The pandemic telework “could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information.”

Another consideration for employers is how the November elections may impact the EEOC moving forward. EEOC appointees under a new administration might be more inclined to resume the efforts of Obama-era appointees to expand the circumstances under which telework is required as a reasonable accommodation.

In light of these factors, employers may benefit from beginning to reevaluate now the positions for which they believe onsite work will be an essential function post-pandemic and ensuring documentation of these designations and related justifications. For more information on this or any related topic please contact the authors or your Seyfarth attorney.

By Vanessa Rogers and Dani A.Sanchez

Seyfarth Synopsis: Because of the current political and social climate, employers are seeing increased political activity by employees at work and on social media—from wearing masks with political and social messages to posting on Facebook about protests and elections. Across the country, employers face unique challenges in managing political expression. Our panel of experts will discuss the key practical and legal considerations, and broader social implications, as employers attempt to navigate this era of polarized political opinions and look ahead towards the November elections.

Attorneys from Seyfarth’s Houston Labor and Employment group, on Thursday, September 17, 2020, from 1:00 p.m. to 2:00 p.m. Central, will be joined by Dr. Creshema Murray (Special Assistant to the President and Associate Professor of Corporate Communication) and Victor Wright (Director of Global Labor & Employment Law) to discuss business-critical topics for employers navigating these issues.

The program will also feature live polling as a way to benchmark with peers. The panel will address:

  • First Amendment protections in the workplace
  • Anti-discrimination laws and their nexus with political speech
  • How the National Labor Relations Act applies to politically charged conduct
  • Practical tips for managing political speech in the workplace and on social media
  • Internal protocols and policies related to political speech
  • Handling and defusing political conflicts at work

While there is no cost to attend, registration is required. REGISTER HERE.

If you have any questions, please contact Roya Shahnazari at rshahnazari@seyfarth.com and reference this event.