September Diversity, Equity, And Inclusion Update
SEPTEMBER DIVERSITY, EQUITY, AND INCLUSION UPDATE
September 3rd, 2021
Matt Glowacki, Diversity Equity & Inclusion Chair
Jefferson County HRMA & WI SHRM
The New Employee Status: Vaccinated or Unvaccinated
With the highly transmissible Delta variant surging, and vaccination rates stagnating, employers are facing new pressures to reinstate mask mandates for everyone, regardless of vaccination status, and encourage COVID-19 vaccines through workplace mandates.
On August 23, 2021, the Food and Drug Administration (FDA) fully approved the Pfizer-BioNTech COVID-19 vaccine for use in those age 16 and older. This upgrade to full approval from “emergency use” status is predicted to lead to a rise in vaccine requirements from employers, schools, and local governments. Health officials are also hopeful that the approval will lead to higher vaccination rates. Note that the Pfizer vaccine is only one of three COVID-19 vaccines to receive full approval. The Moderna and Johnson & Johnson vaccines remain in emergency use status only.
Even under the FDA’s prior emergency use approval, major companies – including Google, Facebook, BlackRock, and Morgan Stanley – initiated policies insisting that workers get vaccinated before returning to the office. Meanwhile, California and New York City became the first state and major city, respectively, to require public workers to be vaccinated. Illinois very recently joined the returning wave of COVID-19 related restrictions by enacting another statewide mask mandate and requiring all teachers and healthcare workers be vaccinated or subject to weekly testing. The Biden administration also requires all federal workers to attest to being vaccinated or face strict testing protocols.
See our prior blog post for practical considerations on whether or not to consider mandating the vaccine in your workplace. But the legal considerations surrounding workplace mandates – how to implement them and how to respond to employees who refuse – remain uncertain. Earlier this year, Montana became the first state to make vaccination status a protected class under the law. That puts an employee’s vaccination status in the same category as race, sex, and religion when it comes to employment discrimination. Under the new law, Montana employers are not allowed to discriminate against non-vaccinated employees and are not allowed to mandate vaccines. Other state legislatures – including in New York, New Jersey, Maryland, and Illinois– have also introduced similar bills. However, as discussed further below and with the exception of Montana, non-governmental employers in the 49 remaining states may still legally require employees to be vaccinated as of the date of this publication.
A slate of employment-related COVID-19 cases have already hit the courts, and more litigation is expected as workplaces reopen with varying levels of vaccination requirements and accommodations issues. How can employers protect against potentially costly lawsuits as they bring workers back to the office? Here’s what you need to know:
Can employers require vaccinations?
The EEOC and DOJ issued guidance saying that federal laws do not prevent employers from requiring all employees physically entering the workplace to be vaccinated, so long as they provide reasonable accommodations under The Civil Rights Act of 1964 and the Americans with Disabilities Act. This means that employers must accommodate those who are unvaccinated due to a disability or religious objection. It is also unlawful for an employer to enforce vaccination policies that treat employees differently based on their disability, race, color, religion, sex (including pregnancy), national origin, age, or genetic information. So, if an employee cannot be vaccinated due to one of these protected characteristics, a vaccine mandate could constitute illegal discrimination and give rise to a lawsuit if reasonable accommodations are not offered. This EEOC guidance is still valid for non-governmental employers – with the exception of those in Montana.
Federal guidance does not preempt state law. In Montana, for instance, vaccine status is now a protected class and employers would be discriminating under the state’s employment laws by making employment decisions – like hiring and firing – based on vaccination status. This will become increasingly relevant for employers as more states consider similar legislation.
In addition, several states have issued bans preventing state and local governmental entities from requiring that their employees receive COVID-19 vaccines. These states include Arkansas, New Hampshire, Texas, and Utah. Additional states have banned state employers from requiring proof of vaccination as a condition of employment, a small but relevant distinction. Most recently, the governor of Texas issued an executive order banning state and local governmental bodies from mandating COVID-19 vaccinations even after the Pfizer-BioNTech vaccine obtained full FDA approval. Notably, these bans do not have an effect on non-governmental employers who may still implement vaccination mandates. Some state governors have previously indicated that they may allow or consider vaccine mandates after full FDA approval of one or more of the vaccines.
While the full FDA approval of the Pfizer-BioNTech vaccine brings hope of increased vaccination rates and more legal protections for employers, it is, as previously noted, only one of three vaccines on the market in the U.S. While the Pfizer-BioNTech vaccine is currently the most widely available vaccine, it is far from the exclusive option and may not be the locally available option for your employees. Employers should ensure the Pfizer vaccine is readily available in your area before basing any vaccine policy changes on its full FDA approval.
Note that, without an affirmative ban on state and local governmental agencies requiring COVID-19 vaccines, it is generally considered permissible for state or local governments to even require vaccinations of all citizens (not just governmental employees), with certain religious or medical exemptions. This governmental power was recognized in a 1905 Supreme Court case arising out of a smallpox outbreak in Massachusetts and the resulting vaccine mandate for local citizens. This 115+ year-old Supreme Court precedent still forms the basis of vaccine-related judicial rulings today.
Do hospitals and universities get special treatment?
Generally, courts have allowed hospitals and universities (or other institutions of higher learning) to maintain their mandatory vaccination policies in response to legal challenges. Given the obvious high-risk status of many patients and staff, hospitals and other healthcare facilities are often explicitly exempted from state laws and executive orders prohibiting governmental employers from requiring COVID-19 vaccinations (i.e. Texas). As you may have seen, in July 2021, a federal court in Indiana upheld Indiana University’s requirement that all students returning to campus be vaccinated. This ruling was upheld in August by the U.S. Court of Appeals for the 7th Circuit (the 7th Circuit encompasses Illinois, Indiana, and Wisconsin) and the Supreme Court decided not to review the 7th Circuit’s decision, leaving the ruling in place. The 7th Circuit Court relied on the 1905 smallpox vaccine mandate case in upholding the district court’s ruling.
What would constitute “reasonable accommodations” for unvaccinated employees?
Under the ADA, employers must provide reasonable accommodations for employees unless it would pose an undue hardship, which typically means a significant difficulty or expense. EEOC guidance provides a host of examples here. This includes having unvaccinated employees wear a face mask, social distance from colleagues or clients, work a modified shift, get periodic COVID-19 tests, telework, move office locations, or accept a reassignment. It is important to note that, as with other ADA-related accommodations, the employer only needs to offer an accommodation that is reasonable under the circumstances, it does not need to be the employee’s preferred accommodation.
Can employers create separate policies for vaccinated and unvaccinated employees?
Generally, an employer can have separate policies for vaccinated and unvaccinated employees (i.e. regarding masks). However, if a person’s vaccination status is connected to a protected class (or if your state treats vaccination status as a protected class), then an unvaccinated employee is protected from both unlawful discrimination and harassment. This means employers could be violating the law by treating employees differently based on their vaccination status and by allowing unvaccinated (or vaccinated) employees to be harassed by managers, colleagues, or clients. For instance, if an employee objects to a vaccination for religious reasons or due to pregnancy, adverse employment actions against that employee could constitute religious or sex discrimination.
Can employers offer vaccine incentives rather than implement a vaccine mandate?
Under EEOC guidance, employers may incentivize vaccination so long as those incentives (both rewards and penalties) are not so substantial that they become coercive – think of offering a $10.00 gift card rather than a $1,000.00 bonus payment. Some employers are validly offering additional paid time-off to employees who get vaccinated.
In a novel twist on the idea of vaccine incentives, Delta Airlines will begin docking the pay of unvaccinated employees on the company’s healthcare insurance plan $200 per month – effectively a vaccine penalty. (You can promote this as “increased employee costs of health insurance” rather than a “penalty”). The airline justifies this approach by noting that the average COVID-related hospital stay costs the company $40,000, and all airline employees who were recently hospitalized with COVID were not fully-vaccinated. Unvaccinated Delta Airlines employees will face weekly COVID testing in addition to the unvaccinated surcharge.
What if an employee refuses to get vaccinated?
Before determining whether to discipline or terminate an employee for refusing to comply with a lawful vaccine mandate, check with your Kelley Drye attorney to make sure you are not running afoul of the applicable laws or executive orders in your area. However, unless state law provides otherwise, employers may generally be permitted to terminate an employee who refuses a COVID-19 vaccine out of personal preference and who cannot be reasonably accommodated.
What can employers do to protect against COVID-related discrimination litigation?
The legal landscape surrounding back-to-work and vaccination policies is quickly evolving. To reduce risk associated with potential vaccine discrimination claims, employers should be updating workplace policies and keeping abreast of local law. Employers will be better prepared against vaccination-related legal claims if they adhere to CDC guidelines and other safety guidelines published by state and local health agencies (e.g. mask mandates). Because nothing can prevent a current or former employee from filing a claim (meritless or not) against an employer, especially in such a novel area of the law, it is generally safest to explore possible accommodations of unvaccinated employees prior to termination.
For specific examples to promote workplace safety and, therefore, also minimize potential legal liability, the CDC has extensive guidance for employers which was last updated in March 2021. In addition, to use as a supplement or complement to CDC guidance, OSHA very recently updated its guidance for employers to consider in creating a safe work environment.
Does an employee’s refusal to get vaccinated make them a “direct threat” to coworkers?
Maybe. The concept of a “direct threat” is an exception to the general rule under the ADA that employers must accommodate persons with disabilities. Employers do not have to accommodate an employee who is a “direct threat,” defined as someone who presents “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” In the COVID-19 arena, someone who cannot get a vaccine due to a disability could potentially be a considered a direct threat, but only if there is no reasonable accommodation to eliminate the threat to the health of others or their own health. Even with the known dangers of COVID-19, an extensive, case-by-case analysis is required to establish whether an employee is a direct threat to others under the ADA.
In short, the direct threat analysis only applies in the context of someone who is not able to receive a vaccine due to a disability (potentially including pregnancy-related disabilities or complications, depending on the jurisdiction).
What is going on in Florida (as it relates to employers)?
The state of Florida has been in the news for recent COVID-19 related legislation and executive orders. Mainly such statutes and executive orders are aimed at preventing places of public accommodation (restaurants, movie theaters, retailers, etc.) from requiring documentation of vaccine status from patrons who enter into their establishment – this documentation is commonly known as a “vaccine passport.” (Florida is only one of several states to restrict the use of vaccine passports). Other restrictions are being placed on Florida public school districts and educational institutions. However, employers in Florida may still require their employees to be vaccinated at this time.
To paraphrase a line from a Florida attorney – you have to get the jab to keep the job.
Frequently Asked Questions Regarding Employer Vaccine Requirements
Now that the federal Food and Drug Administration (FDA) has issued its formal approval of the Pfizer-BioNTech COVID-19 vaccine, many employers are beginning to implement vaccine requirements for employees. This article provides answers to a number of frequently asked questions regarding employer rights and responsibilities in this area.
While the commentary below is based on federal law and will apply in most jurisdictions, employers should consult applicable state and local laws. At least one state (Montana) has prohibited private employers from mandating COVID-19 vaccination and recognizes vaccination status as a protected category, prohibiting employment discrimination based on vaccination status.
Job Applicants, New Hires, and Proof of Vaccination
Q.1: Can an employer ask job applicants if they are vaccinated?
While the U.S. Equal Employment Opportunity Commission (EEOC) has stated that asking current employees whether they have received the COVID-19 vaccine is not a disability-related inquiry under the Americans with Disabilities Act (ADA), an employer should refrain from asking prospective employees about their vaccination status until after they have received a job offer. Any follow-up questions, such as why a job applicant has not been vaccinated, will likely violate the ADA’s prohibition on asking job applicants to answer medical questions or to identify a disability before making a job offer.
Notwithstanding the foregoing, employers should make any vaccination requirements known to all prospective applicants, including via the job posting and even possibly a statement on the employment application itself.
Q.2: Can an employer mandate vaccination for new hires but not for current employees?
Yes. In addition, until the new hire shows proof of full vaccination (or provides a valid religious or disability-related basis for refusing vaccination), the employer can require the new hire to wear a mask, social distance, work remotely if possible, and undergo regular COVID-19 testing.
Note that if COVID-19 testing is done onsite for non-exempt/hourly employees, employers should be aware of potential wage-and-hour concerns. Time spent undergoing onsite COVID-19 testing should be compensated at the employee’s regular hourly rate and included for purposes of calculating non-discretionary bonuses and overtime.
Employers should also consider the potential impact on employee morale from requiring new employees to get vaccinated but not current employees. Such a policy may also cause current employees to doubt the sincerity of the employer’s belief in the importance of maintaining a vaccinated workforce if the employer does not require all employees to get vaccinated.
Q.3: Can an employer require employees to provide proof of vaccination?
Yes. The EEOC has stated that requiring proof of vaccination is not a prohibited disability-related inquiry under the ADA and is permitted under federal law. However, employers are required to keep all information about their employees’ vaccination status confidential. Additionally, all employee vaccination records must be kept separate from employee personnel records.
Hard Mandates, Soft Mandates, and Vaccination Incentives
Q.4: Can an employer have different vaccination requirements for different parts of its workforce?
Yes. An employer may impose a “hard” vaccination mandate for health and safety reasons, such as requiring those employees who interact with the public or work closely with other employees to be vaccinated, while imposing a “soft” vaccination mandate, or providing incentives to get vaccinated, for the rest of its workforce.
On August 17, 2021, the soap manufacturer, Dr. Bronner’s, announced their policy of requiring employees who interact with the public to be vaccinated and offering $1,000 bonus incentives to the remaining employees to encourage them to get vaccinated.
Q.5: Can an employer offer incentives to employees who show proof of vaccination?
Yes. EEOC guidance is clear that offering an incentive to an employee “to voluntarily provide documentation or other confirmation of a vaccination received in the community” is not a disability-related inquiry and is permitted under federal law. Employers may utilize vaccination surveys and can require employees to upload photos of their vaccination cards or other proof of vaccination. Employers may collect proof of vaccination from employees but must keep this information confidential and separate from employee’s personnel files.
However, the EEOC has issued specific guidance for employers who offer incentives to get vaccinated when the employer or its agent is the party administering the vaccine. If an employer or its agent administers the COVID-19 vaccine for employees, the employer may only offer incentives, which includes rewards and penalties, that are “not so substantial as to be coercive.” This restriction only applies when the employer or its agent administers the vaccine (as opposed to when employees are vaccinated from third parties in the community, such as pharmacies or health care facilities) because vaccinations require employees to answer pre-vaccination disability-related screening questions and a substantial incentive could make employees feel pressured to disclose protected medical information to their employer.
Reasonable Accommodations for Employees Who Will Not or Cannot Get Vaccinated
Q.6: What should an employer with a mandatory COVID-19 vaccine policy do if an employee refuses to get vaccinated based on a disability?
If an employee certifies that he or she cannot get vaccinated due to a disability, the employer must provide a reasonable accommodation such as mask wearing, enhanced cleaning, social distancing, remote work, frequent testing, and even job reassignment, so long as these accommodations do not cause an undue hardship (require significant difficulty or expense), and the unvaccinated employee does not pose a “direct threat.” An employee’s disability creates a direct threat if, even with an accommodation, the disability creates a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation.
To determine if an employee who is unable to be vaccinated due to a disability poses a direct threat, the employer must perform an individualized assessment and engage in an interactive process with the employee to determine whether any reasonable accommodations are available that will mitigate the threat. If, after going through the interactive process to determine whether a reasonable accommodation exists, the employer determines it cannot eliminate the “direct threat” from having the unvaccinated employee in the workplace, the employer may terminate the employment relationship.
Q.7: What should an employer with a mandatory COVID-19 vaccine policy do if an employee refuses to get vaccinated based on a sincerely held religious belief?
Employees may refuse to get vaccinated based on a sincerely held religious belief. “Religious belief” is defined broadly under federal law and includes beliefs of established religions as well as beliefs held by a small number of people who may not be part of any organized religion. Employers are required to accommodate an employee’s sincerely held religious beliefs, unless doing so would create an undue hardship. Under federal law, an undue hardship when accommodating a religious belief is anything that would impose more than a de minim is burden on the employer.
Under EEOC guidance, if an employee refuses to get vaccinated based on a sincerely held religious belief and the employer is aware of facts that provide an objective basis for questioning the religious nature or sincerity of the belief, the employer may ask the employee to provide additional supporting documentation.
Under Title VII, an employer should consider all possible reasonable accommodations that would not impose more than a de minim is burden on the employer if an employee refuses to get vaccinated based on a sincerely held religious belief. This “de minim is” standard is a lower threshold and is therefore easier for an employer to establish than the undue hardship standard applicable to disability-related accommodations under the ADA.
Q.8: Can an employer refuse to hire a job applicant if the employer suspects the applicant will refuse to get vaccinated and will request a reasonable accommodation or exemption from the employer’s mandatory COVID-19 vaccine policy?
No. Under federal anti-discrimination laws, an employer is prohibited from refusing to hire a job applicant based on the belief that the applicant will request a reasonable accommodation or exemption from an employer’s mandatory vaccine policy.
Q.9: Must an employer offer a reasonable accommodation to an employee who refuses to get vaccinated until the FDA issues full approval of a particular COVID-19 vaccine?
Reportedly, 30% of unvaccinated Americans are waiting for full FDA approval of COVID-19 vaccines before they will get vaccinated.
As noted above, on August 23, 2021, the FDA issued formal approval of the Pfizer-BioNTech COVID-19 vaccine. The other two COVID-19 vaccines available in the United States, produced by Moderna and Johnson & Johnson, were approved by the FDA under an Emergency Use Authorization (EUA) and are awaiting full FDA approval.
Regardless of approval status, the EEOC and the Department of Justice have stated that employers can mandate vaccines authorized under an EUA. Therefore, employers can mandate that their employees receive the COVID-19 vaccine before any of the vaccines receive full FDA approval. However, if an employee refuses to get vaccinated on the basis of a disability or sincerely held religious belief until the FDA issues full approval (claiming safety or other concerns), an employer should offer a reasonable accommodation to the employee until the employee can get vaccinated.
Q.10: Can an employer require its employees to receive a booster shot?
The federal government is now recommending that fully vaccinated individuals – particularly those with compromised immune systems – receive a “booster shot” of the COVID-19 vaccine if at least 8 months have passed since the individual was fully vaccinated. Booster shots are expected to be available in September 2021.
Employers should be aware that inquiring about an employee’s health to determine if that employee would benefit from a booster shot is prohibited under federal law. The EEOC is likely to issue guidance on whether employers can require booster shots but has not done so yet. At this point, employers should refrain from mandating booster shots or including booster shots in their vaccine policies. However, barring future guidance to the contrary, employers will likely be able to offer eligible employees incentives to receive booster shots to increase their immunity to COVID-19, thereby increasing the safety and health of the workforce.
Disparate Impact Concerns from Mandatory Vaccine Policies
Q.11: Should employers be concerned about whether their mandatory vaccination policy has a disparate impact on workers in protected categories, such as workers in a protected category who have less access to the vaccine than other workers?
Yes. Employers who implement mandatory vaccine policies should be prepared to respond to allegations that their vaccine requirement has a disparate impact on employees based on membership in a protected category such as race, color, religion, gender, age, or national origin. If an employer is aware that certain members of its workforce are likely to have restricted access to the vaccine, such as a lack of transportation, employers should consider implementing strategies, such as reimbursing employee’s travel costs to and from vaccine sites, providing employees with information on where to get vaccinated, and providing paid time off work to get vaccinated, to address these barriers.
Potential Concerns when Implementing a Mandatory Vaccine Policy
Q.12: Are there any state or local prohibitions on mandating vaccines that employers should be aware of?
Yes. At least one state (Montana) has prohibited conditioning employment or otherwise discriminating on the basis of vaccination status, and others are considering similar legislation. As state and local laws regarding vaccination are rapidly changing, employers should consult local employment counsel to determine if there are any state or local laws that prohibit them from mandating vaccination.
Q.13: Must employers implement a written vaccine policy or is it sufficient to tell employees they must get vaccinated?
Any mandatory vaccine policy 1) should be in writing; 2) must include an exemption if an employee provides a valid disability-related or religious reason for not getting vaccinated; and 3) should have a protocol in place for handling reasonable accommodation requests.
Q.14: Are there any concerns with implementing a mandatory vaccination policy that are unique to unionized workforces?
Yes. If a workforce is unionized, employers should be aware that mandatory vaccine policies may be the subject of collective bargaining. If a workforce is unionized and mandatory vaccine policies are the subject of collective bargaining, an employer should consider implementing a voluntary vaccine program coupled with incentives.
Long COVID and mental health considerations moving forward
On July 26, 2021, the Department of Justice (DOJ) and Department of Health and Human Services (DHS) issued guidance defining “long COVID” and listing the condition as a disability under the Americans with Disabilities Act (ADA) Section 504 of the Rehabilitation Act (Section 504) and Section 1557 of the Affordable Care Act (Section 1557).
The symptoms that produce long COVID may make an employee eligible for disability if it substantially limits one or more major life activities. As we continue to learn more about COVID and its impacts on long term health, physicians are witnessing more individuals experiencing COVID symptoms that last for weeks or even months after first contracting COVID. Long COVID can occur in anyone who has been infected with COVID, even if their initial case was mild. Individuals experiencing extended symptoms are sometimes called “long-haulers,” a condition now known as long COVID.
As a result of the rise of long COVID cases as a persistent and significant health issue, the Office for Civil Rights and the Civil Rights Division of the DOJ have joined together to provide new guidance. Long COVID is classified as a disability under Titles II and Titles III of the ADA, Section 504 and Section 1557.
Each of the listed laws protect individuals with disabilities from discrimination. Individuals suffering from long COVID now meet the disability definition, are eligible for workplace accommodations and are protected from discrimination within the workplace.
According to the Centers for Disease Control and Prevention (CDC), people with long COVID have a range of new or ongoing symptoms that can last weeks or months after they are infected with the virus that causes COVID and their symptoms can worsen with physical or mental activity.
Examples of common symptoms of long COVID include:
As we learn more about long COVID, this list of symptoms may expand.
- Tiredness or fatigue
- Difficulty thinking or concentrating (sometimes called “brain fog”)
- Shortness of breath or difficulty breathing
- Headache or dizziness on standing
- Fast-beating or pounding heart (known as heart palpitations)
- Chest pain
- Cough Joint or muscle pain
- Depression or anxiety
- Loss of taste or smell
An individual with a disability is defined as an individual with a physical or mental impairment that substantially limits one or more of the major life activities of the individual; a person with a record of such an impairment or a person who is regarded as having such an impairment. Long COVID may also constitute a disability under the Wisconsin Fair Employment Act (WFEA), which defines disability as an “impairment which makes achievement unusually difficult or limits the capacity to work.”
Per guidance from the ADA, long COVID may limit a major life activity in the following ways:
If an individual is classified as being disabled with a long COVID diagnosis, then he/she is provided protections under the law from discrimination. Employers are required to provide reasonable accommodations specific to the individual’s needs and current limitations.
- A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.
- A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.
- A person with long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, and/or thinking among other major life activities.
In addition to long COVID, employers are also faced with an increase in employees struggling with mental health within the COVID world. The increased mental health issues may amount to an employee qualifying as an individual with a disability. As a result, employers are receiving more ADA/WFEA disability requests and/or FMLA requests for leave related to an employee’s disability than ever before.
Employees requesting leave or accommodations must go through the interactive process, including exchanges between the employee and employer and typically a consultation with the employee’s health care provider. Potential accommodations that may be considered in the context of mental health disabilities include:
Importantly, reasonable accommodations do not excuse misconduct in the workplace. Additionally, it is possible that an accommodation proves to be an undue hardship on the employer. In making that determination, the EEOC explained it must be “significant difficulty or expense”, leaving employers to consider their own resources, the cost of accommodation, impact on operations, safety concerns and flexibility of workplace.
- Work schedule adjustments
- Break modifications
- Remote work options
- Avoiding known triggers (e.g. noise)
- Private space
- Reassignment to vacant position
- Job restructuring
Given the significant changes during the pandemic and its impact on employment, employers must remain flexible and find ways to update their practices to better handle the various issues addressed above. In anticipation of receiving accommodation requests, employers should consider reviewing their job descriptions at this time to ensure they accurately reflect essential functions and requirements for the position to avoid needing to provide unnecessary accommodations in the future.
Additionally, employers should create a consistent methodology for dealing with disability accommodation requests to avoid inconsistent rationale. Ultimately, when employees raise concerns regarding mental health or long COVID, employers should be ready to engage in the interactive process to determine the best path moving forward.
Delta (the Airline) v. Delta (the Variant): Health Plan Premium Surcharges for Unvaccinated Employees
On Wednesday, August 25, Ed Bastian, the CEO of Delta Air Lines, Inc. (“Delta”), notified employees that Delta’s self-insured health plan is facing rapidly-rising costs due to the increasing numbers of employees requiring treatment for COVID-19. Mr. Bastian disclosed the various measures the airline is taking to fight those rising costs, including COVID testing and masking policies. In addition, Delta will charge unvaccinated employees who participate in Delta’s group health plan a $200 per month premium surcharge. Delta’s measures, along with the worldwide surge in COVID-19 cases, due in large part to the coincidentally named “Delta Variant,” have caused many employers to explore the possibility of implementing a similar vaccine-status-related premium surcharge. While a premium surcharge may seem like a simple incentive, employers should be aware of the myriad of laws and regulations (some of which are in a state of flux) governing the issue.
The Health Insurance Portability and Accountability Act (“HIPAA”)
HIPAA’s nondiscrimination rules generally prohibit employer-sponsored health plans from charging higher premiums based on a health factor, such as vaccination status.1 However, under the HIPAA rules, an employer can establish a wellness program and provide awards to employees based on their participation in the wellness program. In this case, the wellness program would simply be the employer requiring proof that the employee received the vaccine, and the award would be the absence of a surcharge for vaccinated employees. To ensure that a wellness program isn’t just health-factor discrimination in disguise, the HIPAA rules provide employers with a set of wellness program requirements.
HIPAA’s wellness program requirements are different with respect to a “participatory wellness program” versus a “health-contingent wellness program.”
- Participatory Wellness Program – A “participatory wellness program” is a wellness program that bases an award on participation only; the participant is not required to satisfy a health factor to obtain the reward. The sole regulatory requirement of a participatory wellness program is that it be available to all similarly-situated employees.
There is no clear guidance (yet) with respect to whether receipt of the COVID-19 vaccine would be considered an activity related to a health factor – so it is unclear whether such a program must meet the requirements of a participatory wellness program or a health-contingent wellness program. However, because the HIPAA rules generally categorize wellness programs under which some employees may have valid health-related conditions that prevent participation as “health-contingent,” it is safer to classify a COVID vaccine surcharge as a health-contingent wellness program. Note that if a wellness program is determined to constitute a health-contingent wellness program, but the wellness program does not meet the applicable requirements, the employer could be fined up to $100 per day per participant.
- Health-Contingent Wellness Program – A health-contingent wellness program is one in which a participant must complete an activity related to a health factor to obtain the award.
The regulatory requirements with respect to a health-contingent wellness program are relatively robust:
- The program must be available to all similarly-situated employees;
- The program must be reasonably designed to promote health or prevent disease;
- Participants must be able to qualify for the award at least once per year;
- Employers must provide employees with a notice describing the wellness program;
- The award cannot exceed 30% of the total cost of coverage under the plan. In a fully-insured plan, the “total cost of coverage” is simply the premium cost. However, in a self-insured plan, the “total cost of coverage” can be more difficult to determine; and
- Reasonable accommodation must be provided if an employee is unable to receive the vaccine due to medical constraints. Employers can require proof of the medical condition, such as a medical certification, and have a wide latitude to determine reasonable accommodation. Reasonable accommodation can be anything from simply waiving the vaccine requirement to requiring an individual to attend a COVID-mediation class. However, if the employer requires a health-related reasonable accommodation (such as a COVID test), the accommodation itself is subject to the health-contingent wellness program requirements.
The Americans with Disabilities Act (the “ADA”)
The ADA governs disability-related inquiries made by employers. Asking for proof of vaccination is not a disability-related inquiry under the ADA. However, if an employer asks why an employee did not receive the vaccine, such as to determine whether the employee requires reasonable accommodation under the HIPAA rule, that inquiry is likely a disability-related inquiry subject to the ADA.
Like HIPAA, the ADA does provide for set wellness program rules under which an employer may be able to make an inquiry as to an employee’s vaccine-related status, as long as the wellness program is voluntary. However, unlike the HIPAA rules, the state of the ADA rules is less clear. In 2016, the EEOC issued final wellness program rules, which limited the incentives for voluntary wellness programs to a percentage of the cost of certain insurance coverage. These final rules were challenged in court and subsequently repealed. The EEOC then redrafted the rules to mirror the HIPAA rules in most respects. However, the most recent version of the rules, drafted under the Trump administration, will not be made final until reviewed and finalized under the Biden administration. Although the ADA rules remain proposed, they demonstrate the EEOC’s current position that, in general, a wellness program that complies with the HIPAA requirements will also comply with the ADA requirements.
The Genetic Information Non-Discrimination Act (“GINA”)
GINA prohibits employers from requesting certain health information from an employee relating to the employee’s health or the employee’s family member’s health. The EEOC has stated that GINA does not prohibit employers from incentivizing employees and their family members from getting the COVID-19 vaccine. Under proposed regulations issued by the Trump administration (but placed on hold under the Biden administration), GINA prohibits an employer from asking “why” a family member did not get immunized, even in the context of a wellness program. Therefore, an employer must be careful in structuring a program that incentivizes vaccines for employees’ health plan dependents.
Title VII of the Civil Rights Act of 1964 (“Title VII”)
Title VII provides that employer-sponsored benefits must be administered in a manner that does not create a disparate impact on employees due to their “sincerely held religious beliefs.” Under Title VII, employees who do not get the COVID-19 vaccine due to religious beliefs may have a claim that a wellness program imposing a health premium surcharge on unvaccinated employees violates Title VII. Therefore, employers should carefully structure their wellness programs to provide reasonable accommodation for employees with sincerely-held religious beliefs as well as to employees with medical conditions, such as requiring individuals who do not get the vaccine for religious reasons to watch a training video outlining actions they can take to reduce the likelihood of contracting and spreading COVID-19.
 Earlier in the pandemic, the U.S. Department of Health and Human Services, U.S. Department of Labor, and U.S. Department of the Treasury provided guidance stating that a wellness program offering COVID-19 diagnosis and testing would not be subject to the HIPAA nondiscrimination rules. However, that guidance did not explicitly extend to vaccination programs.
It’s All in the Job: Iowa Supreme Court Clarifies Employee’s Burden of Proof in Disability Discrimination Actions
The Iowa Supreme Court’s recent decision in Rumsey v. Woodgrain Millwork, Inc., et. al provides needed clarity in what the court described as the “murky” intersection between workers’ compensation and disability discrimination claims.
About the case
In Rumsey, the plaintiff had a preexisting disability, a hearing impairment, outside of his workplace injury. While rehabilitating his workplace injury, the plaintiff’s employer placed him on light-duty work. During the time plaintiff’s injury was being accommodated, the parties disagreed over the plaintiff’s alleged entitlement to a specific work restriction. Plaintiff was terminated for, according to his claims, seeking a reasonable accommodation for a disability. His employer argued the termination was the result of insubordination.
At trial, the jury found in favor of the plaintiff and awarded him $58,000 in back pay, as well as $300,000 for past and $150,000 for future emotional distress damages. On appeal, the Iowa Supreme Court reversed the district court’s denial of the employer’s motion for a directed verdict at trial, holding the employer was entitled to the dismissal of the plaintiff’s discrimination claims. The Rumsey Court then remanded the case for further proceedings on the plaintiff’s claims that the employer failed to accommodate and retaliated against him for, his request for a sign language interpreter.
In its 42-page ruling, the Iowa Supreme Court solidified that, when it comes to disability discrimination claims, the employee must demonstrate they could perform the essential functions of their job. Additionally, the court stressed that employers are not obligated to create a new job as an accommodation for a disabled employee.
Identifying an employee’s “job” and its essential functions
A key issue in Rumsey concerned what job was to be analyzed by the jury for the essential function requirement. The plaintiff argued he could perform the light-duty work he had been placed on while rehabilitating his workplace injury. His employer argued plaintiff was required to prove he could perform the essential functions of a permanent job.
To prove a disability discrimination claim under the Iowa Civil Rights Act, an employee must show that they:
Iowa law allows employees to identify a position they could perform and be reassigned to. The Iowa Supreme Court held that to meet the qualified person standard, an employee “must identify a specific available job [he] is qualified to perform,” to be entitled to recover on a disability discrimination claim. The employee has the burden to identify and prove they were qualified to perform an existing job in their workplace.
- have a disability;
- are qualified to perform the essential functions of the job, with or without reasonable accommodation; and
- the circumstances of the termination raise an inference of illegal discrimination. In Rumsey, the employer did not dispute the plaintiff’s disability. Therefore, the court’s analysis focused on what job, if any, the plaintiff could perform.
Iowa employers are not required to create a new job from tasks taken from other employees to accommodate a disability. If reassignment is at issue, the employee must be able to identify a currently available vacant position that they are qualified to perform. Finally, the Rumsey decision makes clear that employers have no obligation to turn a temporary light-duty position into a full-time permanent job to avoid a disability discrimination claim.
Employees in disability discrimination actions often rely on arguments that the employer failed to engage in an interactive process regarding accommodation before termination. The case was no different in Rumsey.
The Rumsey Court makes clear that until the employee has to prove they can perform the essential functions of a permanent, currently available position. If no reasonable accommodation is possible, the employer cannot be held liable for failing to engage in an interactive process. Employees are thus unable to save their disability discrimination claim by pushing allegations centered on the interactive process if they cannot first establish they are a qualified person.
The court’s clarifications surrounding the interactive process offer employers greater protection under the Iowa Civil Rights Act. Now, justifications as to the reasons for termination are irrelevant if the employee has failed to establish the initial burden of proving they were qualified to perform an already existing, permanent job. The act of requesting an unreasonable accommodation, such as requesting the employer to create a new job or turn a temporary position into a permanent one, is not a protected activity under Iowa law.
Individual liability under the Iowa Civil Rights Act
The plaintiff also brought his claims against two individuals, the employer’s human resources director and a production manager. These defendants argued that the Iowa Civil Rights Act should be narrowly read to create individual liability only when an individual has final decision-making authority. The court disagreed.
The Rumsey decision holds that Iowa courts should not focus on an individual’s title or the authority they have over employment decisions generally, but instead look to each individual’s “ability to effectuate the adverse employment action at issue.” Put simply, if an individual is personally involved in altering or bringing about the termination or change to the person’s employment, then they can be held individually liable under the Iowa Civil Rights Act.
The big picture
The Iowa Supreme Court’s ruling in Rumsey was based on extensive analysis of job descriptions produced by the employer during litigation. These job descriptions were crucial for the court to determine that the plaintiff was not able to perform the essential functions of the job and that no other job was available for him to be reassigned to that he could perform. Employers with outdated job descriptions, or no job descriptions of any kind, should review and update such documents regularly. Additionally, employers should provide potential and current employees these job descriptions so the essential functions of each position are not in doubt.
Employers assessing an employee’s request for accommodation are not required to create a new job that fits the employee’s needs. Nor are Iowa employers required to make a temporary light-duty position, which it may be offering an employee with temporary work restrictions, permanent as a reasonable accommodation. However, an employee can identify a vacant, permanent position as a reasonable accommodation.
Finally, despite the outcome in Rumsey, employers should continue to engage in the interactive process with employees to find a reasonable accommodation. If the employee can prove they could perform the essential functions of their job or be reassigned to a currently available vacant position already in existence, then this will become a key issue argued in a disability discrimination case.
Is Your Workplace Culture A Threat To Your Eating Disorder Recovery? You’re Not Alone.
For a decade, I’ve worked with women (primarily) of all sizes who are recovering from weight-based bigotry and disordered eating. One of the biggest surprises of my career came early on when I started asking people: what spaces pose the biggest challenge to your recovery?
I expected the answer to be dating apps, romantic relationships or family gatherings.
I was wrong.
The number one answer was consistently the same: work.
They would go on to describe what happened at work that made it so difficult to stay the course with their goals of recovery:
In fact, I saw it as a way to bond with other women.
- Questions about perceived weight-loss
- Comments about perceived weight-gain
- Lunchtime conversation about what everyone was eating
- Articulation of anxiety over a co-worker’s birthday cake
- Discussions about trending diets
- Compliments to those who “skipped” lunch
- Co-workers who pressured others to eat foods they felt were “off-limits”
It’s important to understand the domino effect that this had on the people I spoke to, and why ending the seemingly innocuous weight-related (and food-related) conversations at work is so necessary.
1. If diet culture prevails at work, it can create fear of being ostracized if someone speaks out against it
It wasn’t just that these exchanges were triggering or anxiety-inducing. Though, that is reason enough to put an end to these practices. It was that they felt they weren’t allowed to opt out. They felt fear that speaking up would lead to being ostracized, labeled “sensitive,” fired, or passed up for projects or promotions.
2. Some people in eating disorder recovery have to hire additional support services, pulling from an at-times smaller paycheck
Many of them hired therapists and coaches to help them cope with feeling triggered at work. These services are not cheap. For plus-size women, these services were pulling from an already smaller paycheck due to the income gap caused by weight discrimination.
3. Dreading work and avoiding socializing after work can feel like it’s thwarting relationship-building and networking
Further, fielding these exchanges made them dread work and interacting with colleagues. They were less inclined to do social activities with coworkers after hours; this is where deeper relationship-building and networking happen.
4. Emotional exhaustion can lead to quitting and higher work instability
Over time, they would become emotionally exhausted. They might become more brusque, boundaried or irritable at work, which led to even more anxiety about losing out on promotions or being fired. They might be more likely to quit, creating more economic and work history instability.
Understanding the totality of this glacial picture is integral to understanding the urgency of taking diet culture out of the workplace.
Though we’ve been primed through otherizing media representations of disordered eating to believe that we can tell who is in recovery, the truth is we can’t. Approximately one out of every ten Americans has an eating disorder. If you’ve worked with more than ten people in your career, you have likely worked with someone with a history of disordered eating.
When we stop thinking of people with disordered eating as strangers and begin to understand that these are absolutely our coworkers (and family members, neighbors, and ourselves), we can make room for the realization that we have the power to make our workplaces more accessible - and safer - to at least 10% of the population.
NYC lawmakers wants to end weight, height discrimination at work
Two New York City Councilmen want to make on-the-job fat-shaming a thing of the past with a new bill that aims to prohibit weight and height-based discrimination in the workplace.
The bill, which Councilmen Brad Lander (D-Brooklyn) and Danny Dromm (D-Queens) introduced Thursday, would make it illegal for employers to base hiring decisions on weight or height. Landlords and property owners leasing or selling property would be held to similar standards.
“It’s time for New York City to join the dozens of other localities that have taken action to make weight and height-based discrimination unlawful, leading to lower rates of bias and stigma and an increased ability for all New Yorkers to live safe and fulfilling lives,” Lander, the bill’s prime sponsor, said in a written statement.
Similar laws have been in effect in Michigan, San Francisco, Washington D.C. and Buffalo for years.
The new Council bill has its roots in those laws and a survey conducted by Lydia Green, who lives in Lander’s Park Slope Council district. In it, overweight respondents told Green they faced discrimination in school, doctors’ offices and on public transit.
“The idea for a weight discrimination bill came from my own experiences of being mistreated and dehumanized due to my weight and the similar stories I’ve heard my whole life from friends and family,” she said. “People of size face discrimination, harassment and bullying in almost every aspect of life.”
Two New York City Councilmen want to make on-the-job fat-shaming a thing of the past with a new bill that aims to prohibit weight and height-based discrimination in the workplace. (Shutterstock)
The fat-positive bill would also presumably protect skinny people, as well as short and tall people, if they’ve faced discrimination. It would enable them to bring their claims to the city Human Rights Commission to be investigated.
Lander, who will become the city’s next comptroller in January, suggested not all claims would necessarily be valid due to any variety of mitigating circumstances. The bill doesn’t spell out what situations may be exempt, but it does include a provision that would allow for exceptions to the prohibition.
When asked about whether certain physical labor might be exempt — like construction work on tall buildings or with heavy equipment — Lander said employers would have to demonstrate that they gave potential hires a fair shot.
“You can construct criteria for the job based on the ability to perform,” he said.
What to know about autism discrimination in the workplace
Awareness of autism and its symptoms has grown in the past decade. However, many individuals still face autism discrimination in the workplace.
Autism, also called autism spectrum disorder (ASD), may mean an individual experiences social awkwardness, difficulty communicating, or difficulties understanding people’s emotions and points of view, to name just a few symptoms.
Legally, employers in the United States cannot discriminate against an individual because they have a disability. As per this law, employers cannot refuse to hire qualified, capable job candidates because they have autism.
That said, for individuals with autism, the workplace can still be challenging to navigate. Employers must understand how to treat employees with autism, and accommodate them and their needs.
Keep reading to learn more about autism discrimination in the workplace, including the rights of autistic people, some examples of reasonable adjustments employees can make, and some tips on how to deal with autism discrimination at work.
According to the U.S. Equal Employment Opportunity Commission (EEOC), discrimination means treating someone differently or less favorably for a specific reason, such as a disability.
Discrimination can take place anywhere, including in school, public areas, or the workplace. The EEOC protects against discrimination, including autism discrimination in the workplace.
ASD Trusted Source is a developmental condition that can affect a person’s communication, behavior, and interactions with others. According to the Centers for Disease Control and Prevention (CDC), doctors in the U.S. diagnose around 1 in 54Trusted Source children with ASD. ASD is more than four times Trusted Source as common in boys than girls.
Although around 31%Trusted Source of individuals with ASD have intellectual disabilities, approximately 46% have average or above-average intelligence, with IQs above 85. Autistic people can have a range of strengths and abilities, such as logical thinking, and memorizing and learning new information quickly.
Working with someone with autism can be both an enriching and beneficial experience for employers, providing they address and overcome potential challenges, and make the correct adjustment needed for autistic people to be able to work comfortably.
ASD is a lifelong condition that affects approximately 2.21%Trusted Source of adults in the U.S. across racial, ethnic, and socioeconomic groups. Individuals with ASD may face stigma and discrimination in the workplace, as their impaired social skills affect how others view them.
People with ASD generally experience high rates of unemployment or underemployment. This could be due to several issues, including employers reacting negatively to the behavioral, social, and communication traits common in those with ASD. In a 2012 review of studies, the authors noted that after individuals with ASD left school, only 6% had competitive jobs.
In a 2014 review, the authors noted an employment rate of 18% among autistic adults in a United Kingdom, where one study took place, though this was a slightly older study. However, a study that took place in Canada indicated that 56% of people with ASD found employment.
It is challenging to find precise statistics on the number of autistic people who have faced discrimination in the workplace because of the potential for underreporting.
A 2008 study analyzed complaints filed with the EEOC by autistic individuals from 1992 to 2003. Researchers found just 98 out of 328,738 complaints, or 0.03%. This low number could be due to individuals being unaware of their rights or feeling unable to act upon them.
ASD is a complex disorder with various effects. It can affect an individual’s social interaction, communication, and behavior. However, the effects of this lifelong condition differ considerably between individuals, from mild to severe.
The effects of ASD fall into two categories.
Autistic people may face discrimination in the workplace because of their behavior which people may view as unusual. Discrimination can have adverse effects on their self-esteem, quality of life, and physical health. It can even lead to post-traumatic stress disorder (PTSD).
The Americans with Disability Act (ADA) is a federal U.S. law that provides civil rights protections to individuals with disabilities. ADA classifies autism as a disability.
- Social interaction and communication problems: People may have difficulty with everyday conversations and cannot share emotions. They may find it challenging to respond to typical social cues such as eye contact and facial expressions, and have difficulties developing and understanding relationships with others.
- Behavioral problems: Individuals with ASD may demonstrate restricted or repetitive behavioral patterns. For example, hand flapping, using strange speech patterns, needing a predictable routine, becoming intensely focused on specific activities, and experiencing sensory overload.
The ADA guarantees autistic people equal employment opportunities, government services, access to education, transport, and more.
If a business has 15 or more employees, the ADA states that it cannot discriminate against autistic people. This discrimination ruling applies to every aspect of employment, from applying, to hiring, to training, and beyond.
Under ADA guidelines, employers must provide reasonable adjustments to autistic employees. This means that employers must support autistic people by making changes in the work environment that allows the autistic person to enjoy equal employment opportunities. For example, by providing equipment and resources they need to do their job effectively. However, if the accommodations are complex and costly, employees need not provide them.
The other statute that prevents discrimination against autistic individuals is Section 503 of the Rehabilitation Act of 1973. This law prevents discrimination by federal contractors or subcontractors with contracts over $10,000.
If an employer makes reasonable adjustments for individuals with ASD, it allows them to participate fully in their job. These reasonable adjustments depend on the individual and the challenges they face.
Here are some examples of reasonable adjustments:
The law prevents employers, schools, colleges, or individuals from discriminating against someone because they have autism. Autistic people must have equal employment opportunities, government services, transportation, public accommodations, and commercial facilities.
- Allowing an individual to take short breaks throughout the day when they lose focus or become distracted. To accommodate this, the employer could increase the core hours.
- Providing one task at a time rather than expecting the individual to multitask.
- Offering a quiet working place or a “do not disturb” sign that individuals can use when they require intense concentration.
- Minimizing noise, lights, and visual disturbances by using desk partitions, low lights, and providing noise-canceling headphones.
- Permitting individuals to work from home or change their working hours to quiet times to reduce distraction and stress.
- Providing clear and specific information and instructions on completing work tasks to avoid any ambiguity or confusion. Give written rather than verbal instructions. Consider keeping operating instructions next to equipment such as photocopiers, printers, or other devices.
- Training work colleagues about the challenges of ASD and how they can help the individual communicate and navigate to their employment.
If an autistic person experiences discrimination, there are steps they can take to address the situation. These actions vary according to the type of discrimination, but may include:
Various social services programs and other resources can help individuals with ASD who have experienced autism discrimination in the workplace. These may include:
- talking with the employer or individual involved, as they may not realize they are discriminating against the autistic person
- filing an employment discrimination complaint with the EEOC or the state fair employment practices agency (if individuals believe they have experienced a violation of rights, they may have a deadline to file depending on the state, which could be as short as 180 days)
- contacting a lawyer and inquire about filing a lawsuit
Autistic people may face discrimination in the workplace because of their behavior and communication difficulties.
- local health departments and healthcare professionals
- autism advocacy groups, such as the Autism Society, also have affiliates who can help people in their local area
- the American Civil Liberties Union, which can help people take action against discrimination in their workplace
- the EEOC, which can help people file a charge against an employer
However, legally, employers in the U.S. cannot discriminate against people because they have a disability. The workplace may present challenges to those with autism, and employers must provide reasonable adjustments, so autistic individuals have equal work opportunities.
Autism must not present a barrier to employment. Every autistic person has legal rights to support them in a fair workplace, free from discrimination.
While facing discrimination may be challenging for autistic people, they should not have to stand for it. There are a number of organizations they can turn to for guidance and support.
Employers Cannot Force FMLA Leave That Is Not Medically Necessary
The U.S. District Court for the District of Kansas’ ruling in Johnson v. Norton County Hospital is an illustrative example of the complicated and often overlapping obligations employers have under the Family Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”). Specifically, employers should bear in mind that leave under the FMLA cannot be forced and that obligations under both statutes often arise simultaneously and require careful, and distinct consideration.
In Johnson, the plaintiff-employee worked as a nutritionist at Norton County Hospital (“NCH”). She was diagnosed with Crohn’s disease, which flared intermittently and caused her to be unable to work periodically. Plaintiff provided a conflicting FMLA certification form from her medical provider. The form, confusingly, indicated that the plaintiff would need up to ten days of time off when she experienced flares, that she would experience flares once a week, and that the plaintiff also needed a reduced work schedule of three days a week. NCH did not attempt to reconcile the contradictory statements with the plaintiff or her medical provider. Instead, NCH decided to interpret the form as requesting a three-day work week, and proactively picked the three days each week the plaintiff was to work, and the two days they decided plaintiff would take FMLA leave. NCH did not discuss or determine whether this arrangement would accommodate the employee’s medical-related restrictions. Upon being informed of the employer’s decision, the plaintiff voiced her dismay that she would be required to take FMLA leave on days when she felt capable of working. She explained to NCH that she only wanted to use FMLA leave when she had a doctor’s appointment or when she experienced a flare of her Crohn’s disease that prevented her from working. NCH did not budge from its position and informed the plaintiff that if she came into work on one of the days of the week the Company had preordained an FMLA day, she would be terminated for “FMLA insubordination.” After the employee came into work on such an “FMLA day,” she was terminated. She thereafter sued NCH under both the FMLA and ADA – alleging FMLA interference and retaliation as well as failure to accommodate and disability discrimination under the ADA.
In ruling on NCH’s motion for summary judgment, the Court determined that each of the plaintiff’s claims should be tried before a jury. With respect to the plaintiff’s FMLA interference claim, the Court explained that a jury could reasonably conclude that NCH was forcing plaintiff to take FMLA leave two days a week regardless of any medical necessity, and further that by terminating her employment when she was unwilling to agree to that forced leave, NCH unlawfully interfered with her FMLA rights. The Court explained that NCH’s rigid insistence on the three-day-a-week schedule could be seen as forced FMLA leave. The Court was particularly concerned that NCH had failed to seek clarity with the employee or her doctor concerning the confusing certification form. With respect to plaintiff’s FMLA retaliation claim, the Court explained that the undisputed fact that NCH terminated plaintiff’s employment within hours of what the jury might view as plaintiff’s refusal to take more FMLA leave than medically necessary was evidence suggesting pretext. Concerning the plaintiff’s ADA failure to accommodate claim, the Court noted that in light of NCH’s insistence on the three-day-a-week schedule despite obvious inconsistencies in the certification form, a reasonable jury could conclude that NCH was affirmatively avoiding having to consider other accommodations, as required under the ADA. Finally, regarding the plaintiff’s disability discrimination claim, the Court again pointed to the fact that pretext may be shown from NCH’s apparent failure to engage in the interactive process; its adherence to the inconsistent certification form without seeking clarification; and its continued insistence that the certification form required a rigid three-days-per-week schedule.
There are many lessons for employers in Johnson. First and foremost, employers should not force employees to take FMLA leave if it is not medically necessary (and should not “play doctor” to decide for themselves what is, and is not, medically necessary). If there is a question concerning the amount of leave medically required, like there was in Johnson, employers should engage in the “interactive process” required under the law and clarify with the employee and/or employee’s medical provider what is needed and/or being requested. Further, employers must remember that obligations under the FMLA and ADA often arise simultaneously and should not forget that requests for leave must be evaluated under both statutes. As many employers already know, this is a complicated area of law, and employers should consult employment law counsel to ensure compliance with legal obligations.
Young tech workers report discomfort, discrimination at work
- Two-thirds (68%) of businesses feel there's a lack of diversity in their technology workforce, but less than half (46%) are actively addressing the issue within tech teams, according to a WILEY survey of more than 2,000 early career tech workers and 270 business leaders released earlier this month.
- Half of young tech workers reported leaving or wanting to leave a tech job because the company culture made them feel uncomfortable or unwelcome. Among women of color surveyed, the number increases to 57%.
- The discomfort among underrepresented tech workers starts early in the hiring process. Six in 10 (64%) survey respondents believe the technology job recruitment process discriminates against people from minority backgrounds.
To support a diverse workforce, ingraining inclusivity into workplace culture aligns the effort to business missions to support long-term development.
"When organizations seek to provide a wide variety of minds with the right training and opportunities, they will organically increase the talent pool and attract a diverse group of candidates," Jesse Kinser, CISO at Pathwire, said in an email.
Instead of treating diversity as a box to check, leadership should work continuously to diversify and support the workforce, according to Kinser.
Lack of diversity and inclusion isn't a pipeline issue, but instead an issue that organizations and tech leaders can solve. Individual employees would have more trouble garnering systemic change than those already in leadership positions.
Terms like "lean in" and "work-life balance" set women in technology up for failure, according to Kate Nowrouzi, VP, deliverability & product strategy at Pathwire. "What both of these terms fail to account for is the fact that succeeding is not solely the responsibility of individual women and completely disregards the barriers that societal structures can place around them."
Nearly seven in 10 (68%) young technology workers say they've felt uncomfortable in a job because of their gender, ethnicity, socioeconomic background or neurodevelopmental condition, according to the WILEY report. The number increases to 77% among women of color.
"To create an inclusive environment, we have to remove the behaviors that progressively teach marginalized employees that they are not valued," by confronting problematic behaviors, Christie Struckman, research vice president at Gartner, told CIO Dive via email.
Question the implicit bias that impacts hiring and promotion decisions, Struckman said. Marginalized employees often feel they have to do more to be considered equal while leadership may gravitate toward candidates that are similar to themselves.
"If a new opportunity arises and there are no women/persons of color on the short list, ask why," Struckman said. It's a chance to give an opportunity to new candidates and leadership can help candidates develop into the role.
Diversity and inclusion is good for business, too. "The business case for diversity is very clear: Organizations have higher profit, higher revenue, higher productivity and more innovation with diverse teams," Struckman said.
Advocates Seek to Reframe Masks as a Disability Accommodation
As governors and legislatures in states such as Texas, Florida, South Carolina, and Arkansas have banned schools and other entities from implementing mask mandates, disability rights advocates have pushed back. In federal civil rights lawsuits, they argue that bans on mask mandates violate antidiscrimination laws protecting people with disabilities.
For unvaccinated and immunosuppressed individuals, masks can provide crucial protection from SARS-CoV-2.
People who are immunocompromised can harness the power of the Americans With Disabilities Act (ADA) to fight against bans on mask mandates and protect themselves in their workplaces, argues Mical Raz, MD, PhD, a professor at the University of Rochester and a physician at Strong Memorial Hospital, in Rochester, New York, in an article published in JAMA earlier this month with co-author Doron Dorfman, LLB, JSD.
Medscape Medical News talked with Raz about approaching mask requirements as disability accommodation during the COVID-19 pandemic. The following interview was lightly edited for length and clarity.
How did you come to think about mask requirements as a form of disability accommodation?
I saw a tweet from a professor at a university who said they couldn't ask students about their vaccination status or to wear a mask. All agency was removed from the professor to take care of and protect themselves. I thought, well, that can't be right. And ostensibly, that would be particularly dangerous for somebody with immunosuppression for whom the vaccine is not adequately protective. So, I called my friend, Doron Dorfman, and asked him to help me think through the legal part of this. We fleshed it out and wrote the article that same night.
How novel is it to view accommodations for people who are immunosuppressed through the lens of disability accommodation?
I think there has not been enough focus during the pandemic on individuals with disabilities or on how disability law can be mobilized during this pandemic to help supplement the public health law. This framework should be used a lot more because it's good for everybody, not just for individuals with disabilities.
For example, take what's called the "curb effect." If you expand sidewalks, yes, it helps individuals who use a wheelchair. But it also helps me as a mom with a stroller. It helps somebody with a shopping cart, or a kid with a bike. If we adopt policies that are inclusive to those who are disadvantaged, it's good for everybody. We should always strive to be an inclusive society, not just because it's the right thing to do but because it really makes our society better.
How can mask requirements be used as a form of disability accommodation, as you argue in the JAMA article?
The ADA requires employers to provide reasonable accommodations for disability. In this case, the disability is your immunosuppressive status. We have an abundance of evidence showing individuals who are immunocompromised and vaccinated are still inadequately protected from the SARS-CoV-2 virus. So, there is absolute data to show individuals with immunosuppression have a disability that requires accommodation.
The ADA has a mandate requiring employers to adjust or modify policies in order to accommodate a disability. There are certain situations in which you cannot or do not need to accommodate a disability, when it would fundamentally alter the kind of employment you offer or if it's an undue burden or hardship. But given that we've been wearing masks and working remotely for a year now, arguing that somehow these accommodations are no longer possible seems disingenuous.
In that way, allowing a person who's immunocompromised to require those around them to mask is a form of modified protective policies. And in this case, those policies line up with a public health good, masking in the face of the highly contagious Delta variant ravaging our country right now.
In your view, can this argument be used in the mask debates happening right now across the country?
This argument can and should be useful for a couple of different lawsuits that are now underway in different states. I hope our article will provide further support for those suits. And I hope in school board hearings, when parents and teachers are talking about their concerns, this could be one way to argue for why we should allow mask mandates in classes. I've received emails from parents who said they're going to bring this article to their school board hearing.
I also hope this could shift the narrative around the pandemic. Instead of focusing on individual responsibility — I got my vaccine shot so I'm fine — let's focus on how we create an inclusive environment where we protect everybody, including those who cannot be vaccinated because of age or disability, or those who are vaccinated but inadequately protected because of their underlying conditions.
In the JAMA article, you talk about how our pandemic response has focused on individual health and how that individual focus can be ableist. Can you explain that point?
I think this idea that we just make our choices — like whether to get vaccinated or wear a mask, or not — and live with it really perpetuates a highly individualistic and ableist mindset. It doesn't consider the people I admit to the hospital who are vaccinated but have a heart transplant and didn't mount the sufficient immune response. Or even the people who chose not to be vaccinated because they were exposed to hours and hours of misinformation on TV.
We like to individualize everything, focusing on personal responsibility and choices, but a pandemic is one of those moments where everybody's choices affect everybody else. Laying responsibility at the doorstep of each person, rather than thinking about what steps we as a society could be taking, is cheap and politically expedient. There is no public health rationale behind the bans on mask requirements in states like Texas, Iowa, and Florida. These choices are about politics. And the price is always borne by the most disadvantaged among us.
Alabama among 20 states suing Biden administration over LGBTQ discrimination protection
Attorneys general from 20 states sued President Joe Biden’s administration Monday seeking to halt directives that extend federal sex discrimination protections to LGBTQ people, ranging from transgender girls participating in school sports to the use of school and workplace bathrooms that align with a person’s gender identity.
Tennessee Attorney General Herbert Slatery filed the lawsuit in U.S. District Court in Knoxville, arguing that legal interpretations by the U.S. Department of Education and the Equal Employment Opportunity Commission are based on a faulty view of U.S. Supreme Court case law.
The Supreme Court ruled in June 2020 that a landmark civil rights law, under a provision called Title VII, protects gay, lesbian and transgender people from discrimination in employment.
This June, the Department of Education said discrimination based on a student’s sexual orientation or gender identity will be treated as a violation of Title IX, the 1972 federal law that protects against sex discrimination in education. A legal analysis by the department concluded there is “no persuasive or well-founded basis” to treat education differently than employment.
Also in June, the Equal Employment Opportunity Commission released guidance about what could constitute discrimination against LGBTQ people and advised the public about how to file a complaint.
With its guidance, the Biden administration in part took a stand against laws and proposals in a growing number of states that aim to forbid transgender girls from participating on female sports teams. The state attorneys general contend that the authority over such policies “properly belongs to Congress, the States, and the people.”
“The guidance purports to resolve highly controversial and localized issues such as whether employers and schools may maintain sex-separated showers and locker rooms, whether schools must allow biological males to compete on female athletic teams, and whether individuals may be compelled to use another person’s preferred pronouns,” the lawsuit states. “But the agencies have no authority to resolve those sensitive questions, let alone to do so by executive fiat without providing any opportunity for public participation.”
Joining Tennessee in the lawsuit are Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota and West Virginia.
The lawsuit asks a judge for a number of declarations about Title IX in schools and Title VII in the workplace: that they don’t prohibit schools and employers from having showers, locker rooms, bathrooms and other living facilities separated by “biological sex”; that they do not require employers, school employees or students to use a transgender person’s preferred pronouns; that they do not prohibit having school sports teams separated by “biological sex”; and that they do not prohibit workplace dress codes based on “biological sex.”
The education policy carries the possibility of federal sanctions against schools and colleges that fail to protect gay and transgender students.
The Department of Justice on Monday did not immediately respond to a request for comment on the lawsuit.
The education directive reversed President Donald Trump-era policies that removed civil rights protections for transgender students. In 2017, the Trump administration lifted President Barack Obama-era guidance allowing transgender students to use bathrooms and locker rooms that match their gender identities.
At the time, then-Education Secretary Betsy DeVos said the issue was “best solved at the state and local level” and the earlier guidance led to a spike in lawsuits seeking clarification.
The new action does not reinstate the Obama-era policy but instead clarifies that the Education Department’s Office for Civil Rights will investigate complaints of discrimination involving gay or transgender students. If the department finds evidence of discrimination based on sexual orientation or gender identity, it will pursue a resolution to “address the specific compliance concerns or violations.”
The federal agencies noted that the workplace and education guidance documents do not carry the force of law. The state attorneys general argued they are at risk of the federal government enforcing the guidance, threatening their states’ sovereign authority, causing significant liability and putting their federal education funding at risk.