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DOL Issues Opinion Letters on Attending Educational Programs and Traveling to Remote Work Sites

posted Nov 3, 2020, 2:13 PM by Adam Chandler   [ updated Nov 3, 2020, 2:13 PM ]

While much of the country was heading to the polls on November 3, the United States Department of Labor issued two new Opinion Letters.  In these letters, the DOL provides opinions on when employee time traveling to remote work sites and at voluntary training programs is compensable under the Fair Labor Standards Act.

The Compensability of Voluntary Educational Programs Depends Largely on When an Employee Attends the Program

In Opinion Letter FLSA2020-15, the DOL responded to an inquiry from a healthcare provider whose clinical staff have ongoing continuing education requirements mandated by the employees' professional licensing requirements.  The employer also has a number of non-clinical staff who do not have such requirements, but might still engage in educational programing for a variety of reasons.  The employer provides funds for employees to attend these programs, attendance is entirely voluntary, and there is no benefit or penalty for attending the programs.

Whenever the employer mandates training, it counts such training as work time, and pays the employees at their normal rates.  If an employee attends a voluntary educational program during work hours, he or she is required to use PTO to cover the time.  The employer represented to the DOL that attendance at voluntary educational programs is often, but not always, motivated by a desire to maintain a professional license, and is sometimes directly related to the employees work.

The DOL then recited the general standards for determining whether attendance at educational programing is compensable work time, before providing its opinion on different scenarios provided by the employer.

Under FLSA regulations, attendance at lectures, meetings, and training programs generally need not be counted as work time if all for of the following criteria are met:

  1. Attendance is outside the employee's regular working hours;
  2. Attendance is in fact voluntary;
  3. The course, lecture, or meeting is not directly related to the employee's job; and
  4. The employee does not perform any productive work during such attendance.
In addition to this general rule, there are "special situations" where training time may be excluded from a employee's work time even though it relates to the employee's job.  One such situation exists where the employer establishes for the benefit of its employees a program of instruction that corresponds to courses offered by independent bona fide institutions of learning.  Voluntary attendance at such a program outside of working hours does not count as hours worked even if the program is directly related to the job.  Another exception exists where an employee, of his or her own initiative attends an independent program outside of work hours, even if the courses directly relate to the job.

With these principles in mind, the DOL analyzed the following six scenarios:
  1. A nurse attends a webinar outside work hours that provides continuing education credits and relates to the job.  The DOL opined that the time spent at this webinar could be unpaid because it was outside of work hours and satisfied the first "special situation" above. Because the program satisfied licensing requirements for the nurse, the DOL determined that it likely corresponded to a course offered by an independent bona fide institution of learning.
  2. An accounting clerk attends a webinar outside work hours that DOES NOT provide continuing education credits and relates to the job.  The DOL could not provide an opinion on this scenario, because, unlike Scenario 1, there was no basis to conclude that it corresponded to a course offered by an independent bona fide institution of learning.
  3. An accounting clerk attends a webinar DURING work hours that does not provide continuing education credits and relates to the job.  Because the webinar related to the employee's job and was attended during work hours, the time was compensable.  The DOL's solution, if the employer did not want to pay for such time, was to institute a policy requiring that such educational programs be attended outside work hours.
  4. An accounting clerk attends a webinar during work hours that does not provide continuing education credits and DOES NOT relate to the job.  Even though the webinar did not directly relate to the employee's job, because it was during work hours, the time was compensable.
  5. A nurse attends a webinar DURING work hours that provides continuing education credits and DOES NOT directly relate to the job.  Because the webinar is during work hours, the time is compensable.
  6. A nurse attends a weekend educational conference which provides continuing education credits, and some of which directly relates to her job; travel and non-educational portions of the conference occur during normal work hours.  Time spent at the conference is not compensable, assuming it was truly voluntary and no actual work was performed, because it was outside of work hours and appears to correspond to courses offered by a bona fide institution of learning.  Travel time would also be excludable, even though during the employee's normal workday, because it would be considered personal travel time for the employee's own convenience.
Based on the above analysis by the DOL, it appears that the dominant factor in determining whether hourly employees must be paid for voluntary training time is when the training takes place.  If it takes place during the normal workday, it will surely be compensable.  If an employee attends a training program outside normal working hours, it may still be compensable time if the program directly relates to the employee's job and the program is not considered comparable to a course offered by an independent bona fide institution of learning.

Travel to Remote Work Sites is Compensable in a Number of Situations

In Opinion Letter FLSA2020-16, the DOL responded to an inquiry from a construction company that sends foremen and laborers to remote job sites under different scenarios.  In all cases, the foremen are required to drive a company truck from the employer's place of business to the job site to transport tools and materials around the site and return the truck to the employer's place of business to secure it.

There were three different scenarios presented by the employer.
  1. There are local sites where the foreman picks up the truck in the morning, drives to the site, and returns it at night.  Laborers can choose to either drive directly to the site or drive the employer's place of business in the morning and ride with the foreman.
  2. There are remote sites between 1.5 and 4 hours away.  The employer pays for hotel accommodations and a per diem.  The foremen pick up a truck at the beginning of the job, drive it to the site, and return it at the end of the job.  Laborers can choose to either drive their personal vehicle to the site or ride with the foreman.
  3. In some cases with remote sites, the laborers choose to travel between the remote site and home each day rather than stay in a hotel.
The DOL applied the Portal-to-Portal Act to the employer's questions about the compensability of travel time.  Under the Portal-to-Portal Act, travel to and from home or a place of lodging at either end of the workday is ordinary home to work travel that is incidental to employment and not compensable.

Travel to a designated place of work, however, must be counted as hours worked where an employee is first required to report to a meeting place to receive instructions or perform other work there, or to pick up and carry tools.  In order to meet this test, however, the activity for the employer must be both an intrinsic element of the employee's principal activities and one that the employee cannot dispense with if he is to perform his principal duties.

Under DOL regulations, travel to another city on a special one-day assignment is compensable worktime from which the employer may deduct the time that an employee would travel to his or her normal work site.  Travel that keeps an employee away from home overnight is travel away from home.  Whether travel is compensable depends on when and how the employee travels.  Travel away from home during normal work hours, even on a nonwork day, is compensable.  The DOL, however, does not consider travel away from home outside of regular work hours to be compensable.  If the employer offers a public transportation option, the employer can determine compensable time as if public transportation was used, even if the employee decides to drive.

Applying these standards to the above scenarios, the DOL determined that, in each scenario, the foreman's time driving a truck to or from the employer's place of business to or from the job site was compensable.  This opinion resulted from the fact that the trucks were necessary to transport tools and materials around large job sites and had to be returned to the place of business to be secured after use at the job sites.  For these reasons, the DOL determined that retrieving the trucks, driving them to the sites, and returning them were integral and indispensable to the duties the foremen were hired to perform.

The issues presented by the laborers were more complex.  For local job sites, because they had the option to drive directly to the sites or ride with the foremen, this time was not compensable.  For remote job sites, travel to and from the hotel was similarly not compensable.  Travel from home to the remote site at the beginning and end of the job, however, may be compensable, depending on a number of factors.  If the laborer drives to the site, and the travel cuts across normal work hours, even if not on normal work days, the time is compensable.  Similarly, if the laborer rides to the site as a passenger, the time is compensable if travel occurs during normal work hours, even if not on a normal work day.  Although the regulations only speak to a public transportation alternative, the DOL's opinion would allow an employer to provide its own transportation to employees (in this case, the foreman's truck), and count that time as compensable time, rather than the employee's own drive time.  Finally, when an employee decides to return home every night from a remote work site, only the first drive to the work site and the last return home at the end of the job are potentially compensable, as it was the employee's sole decision to return home every night for his or her own, personal reasons.


Have a System to Track Remote Work and Pay for All Hours says U.S. DOL in New Field Assistance Bulletin on Telework

posted Sep 22, 2020, 7:03 AM by Allison Ayer

The U.S. Department of Labor recently issued new guidance regarding an employer’s obligation to track hours of employees who are teleworking.  Briefly, the new guidance clarifies that an employer has an obligation to exercise reasonable diligence to track the actual hours worked of employees who are working remotely away from a physical worksite.  While the guidance is timely because of the increase in remote work caused by COVID-19, employers must keep in mind that these rules apply equally whether an employee is working from home because of coronavirus for some other reasons. 

As background, the Fair Labor Standards Act (“FLSA”) is a federal law and it requires employers to pay employees for all hours worked.  This includes not only the hours that the employee is scheduled to work, but also hours that the employee is “suffered or permitted to work.”  This language of the FLSA has been interpreted to mean that an employer MUST pay an employee his/her wage for all hours that the employee is allowed to work on behalf of the employer, and for hours that the employee works when specifically advised not to, including all hours worked remotely.  Importantly, the right to be paid for all hours worked cannot be waived by an employee. 

Now, obviously an employer can only pay for those hours which it knows that the employee is working.  In the context of remote work, including teleworking, the employer has actual knowledge of the employees’ regularly scheduled hours, as well as the hours the employee reports or otherwise notifies the employers.   But when an employee works remotely, it can be difficult to know the unscheduled or unreported hours an employee works. 

The new DOL guidance makes clear that an employer’s lack of knowledge of actual teleworking hours will not necessarily excuse non-payment of wages.  An employer must pay not only for hours that it actually knows have been worked, but also hours that it SHOULD HAVE KNOWN the employee worked in the exercise of reasonable diligence.

Generally, reasonable diligence does not require an employer to take affirmative steps investigate non-payroll records (e.g. electronic access logs) to figure out when an employee is working on employer-issued electronic devices.  With that said, if a manager happens to notice from time stamps on emails that an employee is working hours that he/she is not reporting, the employer cannot turn a blind eye toward this issue. The employer is well-advised to take steps to make sure that the employee gets paid for those hours, and maybe also advise the employee of the importance of accurate time reporting. 

The  DOL’s new guidance also identifies some specific steps employers can take to show that they exercised the required reasonable diligence to ensure compliance with DOL rules for tracking actual hours worked remotely:

·        Establish and utilize a reasonable reporting procedure system for employees to notify the employer of scheduled AND non-scheduled work time, including hours worked remotely;

·        Avoid preventing or impliedly discouraging employees from accurately reporting the time he/she has worked, i.e. employees should clearly understand from their employer that they need to be reporting all time that they work;

·        Always pay employees for all time worked, including overtime) regardless of whether it was scheduled or unscheduled;

·        If an employee works hours they were prohibited from working, pay the employee for those hours worked, and counsel the employee not to do so in the future.  If they continue, consider issuing a warning to the employee, but NEVER refuse to pay for any hours actually worked, even if the employee was specifically advised not to do so. 

        Employers who take these steps will put themselves on solid ground to say that they complied with their obligations to track all hours worked, including those performed remotely.  The full DOL field bulletin assistance guidance on tracking teleworking hours can be found here.  

EEOC Issues Guidance Regarding Accommodating Opioid-Related Disabilities

posted Sep 16, 2020, 4:10 PM by Allison Ayer

    Opioid use has been on the rise in recent years.  Many people became addicted after doctors prescribed opioid medications like oxycodone for pain control after a surgery or for a chronic injury.  But because of their addictive nature, people began abusing these drugs, in many cases substituting illegal heroin (also an opioid) in their place.  The problem eventually impacted the workplace, and employers were faced with the challenge of dealing with employees who were using or addicted to opioids.      

    Recognizing this problem, the U.S. Equal Employment Opportunity Commission just recently issued new technical assistance concerning opioid use in the workplace.  Generally, these documents explain how the Americans with Disabilities Act (“ADA”) applies to opioid use or abuse.  One document, found here, is targeted at health care providers.  The other, found here, is a Q&A directed to employees.  While neither document is legally binding, they offer important practical advice for employers to deal with employees who may have a problem with opioids.  Here are some of the highlights:

·                Illegal Drug Use or Showing up to Work High Not Allowed.  New EEOC publications clarify that the ADA does not does not protect against the current illegal use of drugs (heroin or opioid medications without a prescription), and also does not allow an employee to show up to work under the influence.  BUT, the ADA does protect employees who are legally using opioids, or face opioid addiction, from being discriminated against on the basis of a drug-related disability and these employees may have a right to reasonable accommodation to allow them to keep a job. 

·            Reasonable Accommodations for Opioid Treatment, Addiction, and Conditions Related to Addiction.  There are a variety of circumstances where the use of opioids may trigger an employer’s duty to accommodate under the ADA.  An employee who is prescribed opioids for a medical condition that is a disability (e.g. oxycodone for cancer), those with opioid addiction or diagnosed with opioid use disorder (“OUD”), or a recovered opioid addict, may all be entitled to a reasonable accommodation according to the EEOC new technical assistance.  Mental health conditions such as depression, post-traumatic stress disorder (“PTSD”) or generalized anxiety, which are often associated with opioid addiction, are disabilities for which employees may well be entitled to a reasonable accommodation.  

·            Engage in the Interactive Process.  Employees using, addicted to, or recovering from addiction to opioids need to notify the employer of the need for an accommodation.  But there are no magic words the employee has to use.  If an employee provides enough information that the employer should have reason to know the employee has an opioid-related disability, the employer must engage in the interactive process to try to identify whether there exists a reasonable accommodation that allows the employee to do his/her job.  The employer does not have to give the specific accommodation requested by the employee, but it must collaborate with the employee to try to identify some job accommodation that allows the employee to perform the essential functions of the job.  If there is more than one effective accommodation, the employer gets to choose which one to grant.  

·            Medical Documentation.  An employer is permitted to ask for a note or other documentation from a medical provider that helps it determine if the employee has a qualifying disability and the appropriate accommodation for a disability-related condition.  To that end, a doctor’s note to support an opioid-related accommodation request should explain 1) the provider’s qualifications, 2) the nature and length of the relationship to the patient/employee, 3) the nature of the patient’s medical condition, 4) the employee’s functional limitations in the absence of treatment (i.e. what major life activities are limited), 5) how the medical condition makes changes at work necessary and 6) the suggested accommodation. 

·            Drug Testing.  Given that opioid use may well support a disability, an employer should give anyone who they drug test an opportunity to provide information showing a lawful use of the drug.  Ask before a drug test whether the employee is on any medication that might cause a positive result, or ask all people who test positive for an explanation of the positive result.  If it stems from legal opioid use, discipline is probably not the right action. 

·            Safety Concerns.  To remove an employee from the job for safety reasons, the employer must have evidence that the employee poses a significant risk of substantial harm to him/herself, other employees or the public.  This is a relatively high standard and cannot be based on mere speculation.  Employers are permitted to seek information from a medical provider to help it determine whether an employee poses a safety risk.  To that end, the EEOC suggests that medical providers provide information about the level of risk posed by the disability, taking into account the probability and imminence of the harm, as well as the duration and severity of the risk.  

·            Leave and Job Restoration.  Taking a leave of absence for opioid treatment/recovery (e.g. to attend rehabilitation) may well be a reasonable accommodation.  Opioid users may be entitled to use accrued sick leave, FMLA, or vacation time.  An employer may also be required to return the employee to the same or equivalent position if the employee uses FMLA or other job-protected leave. 

·            Reassignment.  If an employee believes he/she is permanently unable to do his/her job because of an opioid related disability, the employee may ask for reassignment to a different job as a reasonable accommodation.  If one is available, and reassigning the employee is not unduly burdensome, then the employer may well need to take that step as an accommodation.      

·            No Retaliation.  Opioid use or addiction disorders do not excuse employees from meeting legitimate, non-discriminatory performance expectations.  But employers must NEVER terminate or take any other adverse employment action against an employee because he/she asks for a reasonable accommodation for a disability, whether it concerns opioid use or otherwise. 

    In sum, the new EEOC guidance clarifies that an employer cannot automatically disqualify employees from a job because of opioid use/addiction without considering if there is a way for the employee to do the job.  If an employer becomes aware that an employee is using opioids or suffers from addiction issues, it is well-advised to work with the employee and his or her medical provider to determine if there is a reasonable accommodation that would allow the employee to do his/her job.  

DOL Says Declining Job Because of COVID Safety Concerns Does not Disqualify for Federal Unemployment but Not Being Able to Get a Job Because Businesses are Not Hiring Due to COVID Does

posted Jul 30, 2020, 3:29 PM by Allison Ayer

After months of being closed under applicable state orders, many businesses have identified enhanced Federal unemployment benefits as one of the obstacles to reopening during the pandemic.  Some businesses say that their employees do not want to return because they are earning more in unemployment benefits than they would if they were working.  On July 21, 2020, the Employment and Training Administration office of the United States Department of Labor (“DOL”) issued new guidance answering two dozen questions about when employees may or may not be eligible for COVID-related Federal unemployment benefits.  Unfortunately, some of the answers may not be encouraging news for employers trying to get people back to work. 

Briefly, the new DOL guidance provides that individuals who became unemployed for reasons unrelated to COVID, but cannot find work now because businesses are not hiring because of the pandemic are NOT eligible for Federal unemployment benefits.  But individuals who refuse an offer of work due to legitimate COVID-related health and safety concerns MAY still be eligible for Federal unemployment benefits, depending on the particular facts and state law. 

               As background, the CARES Act was signed into law on March 27, 2020.  Part of the CARES Act created the temporary “pandemic unemployment assistance” (or PUA as it is sometimes referred) for people who were ineligible for regular unemployment compensation benefits and unemployed due to the COVID-19 reasons set forth in the CARES Act.  This Federal unemployment program was a critical lifeline for employees out of work during government shut downs.  But the program has also created great confusion about when people are eligible for the benefits as businesses try to reopen.  The DOL has already issued other advisories answering questions about eligibility and administration of the Federal unemployment program.  Here are some of the highlights of its recent July 21, 2020 guidance: 

               The DOL answered “No” to the question whether an individual is eligible for Federal unemployment benefits if he/she originally became unemployed for reasons unrelated to COVID-19, but is now unable to find work because of the pandemic.  The DOL said that an individual is only eligible for Federal unemployment benefits if the individual is otherwise able and available to work by reason of the COVID related reason listed in the CARES Act.   Not being able to find a job because some businesses have closed and/or may not be hiring due to coronavirus is not an identified reason. 

               On the other hand, the DOL said that individuals who refuse an offer to return to work because of legitimate safety concerns caused by COVID may continue to be eligible for Federal unemployment benefits under the CARES Act. 

Again, the DOL explained that to be eligible for Federal unemployment benefits, an individual must be otherwise able and available to work within the meaning of state law except that he/she is unemployed, unable or unavailable because of specific COVID-19 related reason in the CARES Act.  The DOL noted, however, that many states consider work that unreasonably exposes an individual to safety risks to be unsuitable.  Under these state law provisions, if an individual is offered and refuses work that unreasonably exposes him or her to COVID-19, the state may conclude that the work is not suitable. In that scenario, the individual may still be eligible for Federal unemployment benefits, if all other eligibility requirements are met.

The DOL also said in its recent guidance that an individual who is disqualified from regular unemployment compensation because of a prior resignation or termination may be eligible for CARES unemployment if the individual is currently unable or unavailable to work for a COVID-19 related reason listed in the CARES Act. 

               The DOL’s guidance also clarified that the CARES Act does not contain an age requirement for unemployment benefits.  That means that even minors are eligible for Federal unemployment.  The DOL noted that the CARES Act requires individuals to self-certify that they are otherwise able to work and available for work within the meaning of applicable state law, except to the extent unemployed or unable or available because of COVID-19 related reasons.  Most states, including New Hampshire, have restrictions on the hours, days and types of work minors may perform.  If these laws do not make it illegal to employ the individual, and the minor meets otherwise meets the state’s “able and available” for work requirements, the minor is eligible for Federal unemployment. 

               In sum, the availability of Federal unemployment benefits continues to create confusion and consternation for employers and states alike.  Many individuals are eligible for these benefits if they are legitimately not working because of COVID-19 or even if they refuse to return to work because of safety concerns related to COVID-19.  The current $600 Federal unemployment benefits are scheduled to end July 31, 2020.  However, Congress is expected to pass additional coronavirus relief, and all indications are that it will include Federal unemployment benefits.  The amount of the final benefit will undoubtedly be a source of considerable negotiation.  But, early proposals suggest Federal unemployment benefits of less than $600 in the next round of coronavirus legislation.  For businesses having trouble getting employees to return because the current benefits provide better pay than working, this may be much needed good news.    

U.S. DOL Publishes OSHA-Related COVID FAQ's and Recommends Cloth Masks

posted Jul 10, 2020, 12:45 PM by Allison Ayer   [ updated Jul 10, 2020, 12:49 PM ]

        This week, the DOL issued new COVID-19 specific FAQ’s intended to guide employers about the steps they can take during the pandemic to comply with the Occupational Health and Safety Act (“OSHA”).  The FAQ’s address a variety of important topics, including cleaning and disinfecting protocols, training, and handwashing facilities.  The FAQ’s also address dealing with a COVID positive test and the controversial topics of cloth face coverings.  

        On the issue of testing, the FAQ’s note that OSHA does not require employers to notify other employees if one of their coworkers gets COVID-19, but such notification may nevertheless be an advisable step to protect other workers from exposure to the virus that causes COVID-19.  To that end, the FAQ’s recommend that workers tell their supervisors if they have tested positive for COVID-19 so that employers can take steps to protect other workers. Citing to the CDC Guidance for Business and Employers, the FAQ’s also suggest that after a confirmed positive case, employers determine which employees may have been exposed to the virus and inform employees of their possible exposure to COVID-19 in the workplace.   The FAQ’s also note that in deciding exactly what and how they tell their workers about the potential exposure, they must maintain confidentiality of medical information.  Additional safety steps in the case of a confirmed COVID case might also include cleaning and disinfecting, notifying other workers to monitor themselves for signs/symptoms of COVID-19, or implementing a screening program in the workplace (e.g., for signs/symptoms of COVID-19 among workers), and following CDC recommendations for when employees can return to work after having COVID-19.

        On the issue of cloth face coverings, the DOL has taken the position again that employers are not specifically required to provide cloth face coverings to their workers.  However, the FAQ’s note that employers may choose to require face coverings nonetheless.  The strong implication is that cloth face coverages offer an effective way to protect employees from the “hazards” of COVID-19 and for the employer to fulfill the general duty under OSHA to provide a safe workplace.  The FAQ’s also make a point to distinguish between cloth face coverings, which are not considered PPE, and surgical masks, respirators, and other face protection that are considered PPE required for certain industries under OSHA.  As noted by the DOL, whether or not cloth face coverings are required by employers, they are NOT appropriate substitutes for PPE such as N95 respirators or medical face masks in workplaces where such respirators or face masks are recommended or required to protect the wearer.

        What is clear from the FAQ’s is that the virus that causes COVID-19 is among the workplace hazards from which employers must protect their workers in accordance with OSHA, and while OSHA may not specifically require employers to screen employees, clean and disinfect, isolate sick employers, contact tracing for workplace exposure, and mandate cloth face coverings), these protocols are nevertheless useful steps to minimize transmission of the virus and keep the workplace safe in fulfillment of an employer’s OSHA obligations.  The full set of FAQ’s can be found here.  

Supreme Court Green Lights Expansion of Exemption to Affordable Care Act's Contraceptive Coverage

posted Jul 8, 2020, 1:57 PM by Allison Ayer

Today, in Little Sisters of the Poor Saints Peter and Paul Home, et al. v. Pennsylvania, et al., the United States Supreme Court upheld the expansion of the religious exemption to the contraceptive mandate set forth in the regulations to the Affordable Care Act (“ACA”).  Briefly, the Court said that the administrative agency tasked with establishing ACA guidelines had the authority to promulgated a broader religious exemption and add a moral exemption, as well.  

As background, the ACA itself does NOT contain a mandate that employers provide health insurance plans that cover contraception.  The ACA requires covered employers to provide women with “preventative care and screenings” without “any cost sharing requirements.”  But the ACA places the responsibility of deciding what such care and screenings include on the Health Resources and Services Administration (“HRSA”), the executive agency responsible for administering the ACA.  Pursuant to that authority, in 2010, the HRSA issued guidelines which required health plans to provide coverage for all FDA-approved contraceptive methods and sterilization procedures.  This is what is often referred to as the ACA’s “contraceptive mandate”. 

Importantly, HRSA guidelines also have all along contained a religious exemption that allowed religious employers to opt out of the contraceptive mandate.  The HRSA’s 2013 final rule provided an accommodation whereby eligible religious organizations who opposed providing contraceptive coverage could provide a self-certification to the health insurer that it was a non-profit entity that held itself out as a religious organization, and opposed providing contraceptive services on account of religious objections.  In that case, the group health plan would exclude contraception from insurance coverage, and the insurer would make payments for contraceptive services to beneficiaries separate from the employer-provided health plan. 

This accommodation was not adequate for some religious employers, and they challenged the self-certification as violating the Religious Freedom Restoration Act of 1993 (“RFRA”).  Under the RFRA, a law that substantially burdens the exercise of religion must serve “a compelling governmental interests” and be the “least restrictive means of furthering the compelling governmental interest.”  The Supreme Court never decided these challenges because the religious organizations and the government reached agreement that the exercise of their religious rights would NOT be violated if contraceptive coverage was provided to employees without any notice from the religious employers.  In essence, they agreed there was a way to ensure religious freedom AND contraceptive coverage. 

Despite this agreement, other religious organizations raised a different challenge, claiming that the mandate itself (verses the self-certification piece) violated the RFRA.  In the 2014 decision Burwell, et al. v. Hobby Lobby Stores, Inc., the Supreme Court agreed, holding that the contraceptive mandate, standing alone, violated the RFRA as applied to religious organizations (including closely held corporation with sincerely held religious objections to providing employees with certain methods of contraception).

Expanding on Hobby Lobby, the HRSA of the Trump administration promulgated two additional exemptions to the contraceptive mandate.  The first exemption expanded the definition of who constitutes a religious employer and what they must cover, and the second added a moral exemption to the contraceptive coverage.   The broader religious exemption provides that employers (including for-profit and publicly traded entities) who “object…based on…sincerely held religious beliefs…to…establishing, maintaining, providing, offering or arranging [for] coverage or payments for some or all contraceptive services” need not comply with the contraceptive mandate.  The new “moral exemption” provides that employers (including non-profits and for-profits with no publicly traded components) with “sincerely held moral” objections to providing some or all forms of contraception, also do not have to comply. 

The Supreme Court ruled today that these two exemptions were properly promulgated by the HRSA.  The Court reasoned that the broad language of the ACA which gives exclusive discretion to the HRSA to define what constitutes “preventative care and screenings” also gave the agency broad discretion to create religious and moral exemptions.  Given that authority, the Supreme Court said that broader religious exemption and new moral exemption were valid.  The Supreme Court also said that the failure of HRSA to follow certain procedures when promulgating the new exemptions was not a basis to strike them down because there was no prejudicial error to the extent all interested parties had proper notice and time to comment. 

As the law currently stands, therefore, exempt from the contraceptive mandate of the ACA are not just religious employers with complicity-based objections, but for-profit and publicly traded entities who have sincerely held religious objections to providing, offering or arranging for contraceptive coverage or payments, as well as non-profit and private, for-profit, employers with “sincerely held moral” objections to providing contraception.  But it is important to note that because these exemptions were established by an administrative agency verses by statute, they could be expanded further or eliminated altogether with a different Presidential administration.  The Supreme Court also noted that it was not ruling on the constitutionality of the exemptions as they had not been challenged on that basis.  This too remains another area where the law might develop in future cases.  So as always, stay tuned!

DOL Clarifies when Closed Summer Camps Trigger COVID Leave Rights

posted Jun 29, 2020, 9:40 AM by Allison Ayer   [ updated Jul 10, 2020, 12:51 PM ]

       Late last week, the U.S. Department of Labor (“DOL”) issued a new Opinion Letter No. 2020-4, clarifying that the inability to send one’s child to a summer camp closed because of COVID-19 may well entitle that employee to leave under the Family First Coronavirus Act (“FFCRA”).  This clarification is important because, unlike schools or day cares where attendance is likely regular and consistent, it can be more difficult for an employer to determine if a summer camp is truly a child’s “place of care” (i.e. the physical location where child care is provided while the employee works), so as to entitle an employee to FFCRA.   

        As a refresher, the FFCRA is a Federal law passed in March 2020 which requires covered employers to provide eligible employees with up to 12 weeks (up to 10 of which may be paid) of expanded family and medical leave if the employee is unable to work or telework in order to care for his/her child whose “place of care” is closed due to COVID-19.  Because coronavirus took hold in the middle of the the school year, this expanded family leave entitlement has largely been used to provide paid leave for parents caring for children whose schools or day care centers closed because of coronavirus while children were already attending.  But as summer has progressed, some employers have struggled with determining whether or not they have to provide FFCRA leave to employees who claim they have to care for children who cannot attend closed summer camps. 

        As the DOL makes clear in its new opinion letter, the FFCRA leave entitlement is broader than just closed schools or day cares that were already in session at the time of closure.  The FFCRA leave entitlement certainly extends to summer camps that closed in response to COVID-19 before any children actually began to attend or enrolled. The proper question to determine leave eligibility in these circumstances, according to the DOL, is “whether a specific summer camp or program would have been the place of care of an employee’s child had it not closed for COVID-19 related reasons.” 

        Mere interest in a summer camp that closed because of COVID is generally not enough to render an employee eligible for FFCRA leave.  But, where there is evidence that the employee had a plan for the child to attend summer camp, or short of a plan, if the facts evidence that it is more likely than not that the child would have attended the camp had it not closed due to COVID-19, the employee will likely be entitled to FFCRA leave. 

        Applying this standard, the DOL has said that an employee will likely be entitled to FFCRA leave as a result of a camp closure if the child was already enrolled at the time the closure is announced (i.e. Pre-Closure Enrollment). 

       But affirmative steps short of enrollment may also entitle an employee to FFCRA leave to care for a child over the summer. 

        For example, if an application or deposit was submitted before the camp’s closure (Deposit/Application Submission) this likely establishes that the summer program was the child’s “place of care” so as to entitle the employee to FFCRA leave if he/she has to care for the child and cannot work or telework because of the closure. 

        Similarly, prior attendance and current eligibility at a summer camp that has closed because of COVID-19 (Prior Attendance/Current Eligibility) is another example of a situation where an employee will be eligible for FFCRA leave.  In this example, a child’s attendance at a camp during the summer of 2018 or 2019 offers strong support that the camp would have been the child’s “place of care” for summer 2020 if not for COVID closure, as long as the child continues to satisfy other qualifications for attendance (for example age eligibility).  An employee who cannot work or telework, and instead must care for the child because of this closure, is eligible for FFCRA leave.      

        Being accepted to a waitlist pending the camp reopening (Wait List Status) is another circumstance that will create eligibility for FFCRA for an employee who cannot work because of the closure, assuming the employee meets the other requirements for leave.    

        The DOL also notes that a summer camp may be “closed” for purposes of FFCRA leave it is partially closed, i.e. operating at reduced capacity such that some children who could have attended cannot, because of COVID.   

        While these examples are helpful, the DOL also pointed out that there is no one-size fits-all rule.  There are a “multitude of possible circumstances” where an employee will be able to establish a plan to send his/her child to summer camp or, in the absence of a specific plan at the time of closure, that the child would nevertheless have attended the summer camp had it not closed, so as to entitle the employee to FFCRA leave.  While it remains true that an employee cannot take FFCRA leave based on a summer camp closure that the child has never attended, if there is some indication that the child would have attended the camp if not for the COVID closure, then the employee may well be entitled to FFCRA leave. 

        Employers are well advised to understand all relevant facts before making a decision on an employee’s request for FFCRA leave.  To that end, an employee who requests FFCRA leave must provide its employer, either orally or in writing, an explanation of the reason for the leave and a statement that the employee is unable to work.  Just as when they request FFCRA for school or day care closures, employees who make a FFCRA leave request related to a camp closure must provide the name of the child, the name of the summer camp, and a statement that no suitable person is available to care for the child.  Even with this information, in circumstances where the right to leave may be a close call, Employers may also wish seek advice of legal counsel to help avoid potential a claim that leave has been wrongfully denied under the FFCRA.  Such claims are only likely to increase as coronavirus continues to plague the United States and businesses struggle with how to deal with getting back to business during this unprecedented time.  

EEOC Clarifies that Employers Should Not Screen for COVID19 Antibodies

posted Jun 17, 2020, 1:42 PM by Christopher Vrountas

The EEOC clarified today that while employers may screen employees for active cases of COVID19, employer may not screen employee for COVID19 antibodies as a precondition for returning to the workplace.  The EEOC’s position in part relies on the CDC’s recent guidance providing that antibody test results should not be used in making decisions in the workplace.  Bottom line, the EEOC takes the position that an antibody screen constitutes a medical examination under the ADA and that such a test would not be job related or consistent with business necessity given the CDC’s position on the issue. 

Here’s the new EEOC guidance on the issue: 

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A.7.  CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace? (6/17/20)

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.  Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test).  The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.

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Here's the link to the entire EEOC guidance: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=


USSC Says Title VII Protects Against Sexual Orientation and Transgender Discrimination

posted Jun 15, 2020, 4:17 PM by Allison Ayer   [ updated Jun 29, 2020, 7:57 AM ]

In a historic 6-3 decision entitled Bostock v. Clayton County, the United States Supreme Court finally answered the much-debated question whether Title VII prohibits an employer from discriminating against an employee because of sexual orientation and/or gender identity - the answer is a resounding "yes."    


In ruling that an employer cannot fire an employee for being gay or transgender, the Court reasoned that Title VII's prohibition against sex discrimination also necessarily prohibits discrimination on the basis of sexual orientation or gender identity.  In essence, the Court concluded that by definition an employer commits sex discrimination in violation of Title VII when it fires an employee because he/she is gay or transgender.  In other words, "it is impossible to discriminate against a person for being homosexual or transgender without [also] discriminating against an individual based on sex." 


Notably, the majority opinion was written by Neil Gorsuch, a Donald Trump appointee.  Justice Gorsuch was joined by Chief Justice Roberts, as well as Justices Ginsburg, Breyer, Sotomayor and Kagan. 


In making its ruling, the Court reasoned that the explicit, unambiguous language of Title VII prohibits discrimination because of sex.  And "homosexuality and transgender status are inextricably bound up with sex." Not because homosexuality or transgender status in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individually employees differently because of their sex.


The Court rejected the argument that Title VII's prohibition against sex discrimination should be read narrowly, to exclude sexual orientation or gender identity claims.  Citing its own precedent, the Court pointed out that it had in the past broadly interpreted Title VII's prohibition against sex discrimination to prevent an employer from 1) refusing to hire women but not men with young children (Philips v. Martin Marietta Corp., 400 U.S. 542 (1971)), 2) requiring women to make larger pension contributions than men because they were more likely to receive more from the fund (Los Angeles Dept. of Water and Power Manhart, 435 U.S. 702 (1978)), and 3) allowing sexual harassment in the workplace, including same-sex harassment by other male co-workers (Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)).    


But even more compelling, the Court laid out in painstaking detail why logically the legal standard applied to discrimination claims could result in only one conclusion - that discrimination based on gender identity or sexual orientation by definition also constitutes sex discrimination that is unlawful and not allowed under Title VII.  


The Court noted that under the applicable "but-for" causation standard, an employer violates Title VII when it intentionally terminates an employee based in part on the individual's sex.  This is so even if additional factors other than sex contributed to the employment decision.  The decisive question for assessing this standard, according to the Court, is whether changing the employee's sex would yield a different employment result.  If it would, then sex is a but-for cause of the employment decision supporting a claim of sex discrimination in violation of Title VII.


The Court used the firing of a Yankees fan as an example of this principle.  To the consternation of many Red Sox fans, it turns out that the USSC believes that firing an employee for her allegiance to the Yankees would be unlawful discrimination but only if the employee's sex was also a reason for the termination.  As the Court explained, firing a woman because she was a Yankee's fan and a woman is still a firing "because of sex" (and violates Title VII) if the employer would have retained a man Yankees fan. 


This example likely seems obvious to most people.  But the Court also went on to explain that an employer who fires a female employee because she is a lesbian similarly commits sex discrimination even though another factor - namely the sex of the person to which the employee is attracted - also contributed to the decision.  Just like in the Yankees example, if this employee were male and similarly attracted to women, the employee would not be fired.  In either example, then, changing the employee's sex would yield a different employment result.  Title VII's causation standard is therefore met, and there may be liability, even though there exists another contributing factor to the decision. 


Just as sex is necessarily a but-for cause when an employer discriminates against a homosexual or transgender employee, an employer also "inescapably" intends to discriminate because of sex when it bases its employment decisions on sexual orientation or gender identity, according to the decision.  For this point, the Court used the hypothetical of an employer with a policy of firing homosexuals.  A model employee arrives at an annual outing and introduces a manager to the employee's wife, Susan.  Whether the policy triggers the firing of this employees depends entirely on whether the model employee is a man or a woman.  Applying the employer's anti-gay policy, the man would not be fired, while the woman would.  While the employer's ultimate goal might actually be to discriminate on the basis of sexual orientation, not sex, "to achieve that purpose the employer MUST along the way, intentionally treat an employee worse based in part on that individual’s sex."  This constitutes sex discrimination that violates Title VII, according to the Court. 


In concluding that Title VII prohibits discrimination because of sexual orientation or gender identity, the Court also rejected the argument that the fact that men and women might be treated equally would change the result.  In other words, the fact that men and women both could be the subject of equal firings if sexual orientation not sex drove the decision, does not save the employer from a discrimination claim.  Sex discrimination does not exist only when the class of men collectively are treated differently than the class of women, according to the Court.  Rather, Title VII protects and creates an independent violation for each instance that an employer discriminates against an individual employee because of that individual's sex, irrelevant of the fact that an employer might fire both males and females if they are transgender or gay.  In other words, Title VII focuses on eliminating discrimination against individuals, not groups.  As a result, just as "an employer who fires both [female and male employee] for failing to fulfill traditional sex stereotypes doubles rather than eliminates VII liability, an employer who fires both [female and male employee] for being gay or transgender does the same." 


In sum, the Supreme Court has now decided that discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex because "the first cannot happen without the second." "For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex.  That has always been prohibited by Title VII's plain terms - and that 'should be the end of the analysis.'"  As far as the USSC's is concerned, it now is. 


This decision will have little impact on employers operating in states where sexual orientation and/or gender identity are already protected by applicable anti-discrimination statutes, like New Hampshire and Massachusetts for example.  But employers who operate elsewhere and are subject to Title VII must change any policies or practices of discriminating against employees because they are gay or transgender.if they want to avoid a Title VII claim.     

The EEOC Provides Useful New Guidance for Employers Returning People to Work

posted Jun 12, 2020, 1:18 PM by Christopher Vrountas

Just yesterday, the EEOC updated its guidance for employers on their duties and obligations when returning their employees to work. We now have new, much more specific answers to some frequently asked questions on how to manage “high risk” people and how to manage employees working remotely.  Here’s some of the most notable new stuff:

HIGH RISK PEOPLE:

In this category, the EEOC discusses employees over 65, pregnant workers, and people living with high risk family members.  The keys here are not to exclude and not to favor high risk employees.  

How about those employees over 65? Are they entitled to accommodations with respect to COVID19 and new procedures based on their age status? NO! But, do not let that easy answer fool you.  It is true that the ADEA does not require accommodations, but the ADA does.  If the request for accommodation involves a disability of any sort, including those may stem from the aging process, then the employer must proceed with the interactive process under the ADA.  If not, while the employer is free to provide accommodations to meet employee’s requests, it need not do so.  

Importantly, however, the employer cannot exclude from returning to work or other opportunities those employees over the age of 65 merely because of their statistically high risk status. Doing so for that reason alone would certainly amount to age discrimination and a violation of the ADEA.

What about pregnant employees? Are they entitled to accommodations?  Potentially.  First, if there is a pregnancy complication then the ADA would require a reasonable accommodation due to such condition. Second, even if no ADA issue exists, a pregnant employee is always entitled to be treated the same as other employees with the same limitations or abilities.  They should not be favored or excluded or treated differently at work than those others similarly situated. 

Also, just like employees over 65, employers cannot exclude pregnant workers solely on the grounds that such workers are statistically high risk with respect to COVID19.  Such exclusion would amount to sex discrimination in violation of Title VII. 

What about that employee who lives with a high risk family member? Does that employee have a right to a reasonable accommodation on that basis alone? NO! Of course, while that status may not be legally relevant, any discrimination may fall within a category of unlawfulness due to its potential impact against a protected class.  In short, always be fair and reasonable, but know that this category alone does not constitute a protected class. 

WORKING FROM HOME:

Employers who have people working from home remain responsible for the conduct of those teleworking employees on the job.  For example, to the extent any teleworking employee harasses from home, the employer must respond in the same manner as if such employee was in the employer’s physical workspace. 

Are there sex discrimination considerations for allowing accommodations for child care reasons? Yes. Employers must be sure not to provide benefits on the basis of sex. Here, on the issue of childcare, the EEOC has noted that employers may favor women over men. The short answer here? Don’t. 

OTHER ACCOMMODATION ISSUES:

What about a request for accommodation with respect to screening procedures? Do you need to hear them? YES! Same standards apply under the ADA for accommodation requests about screening as for accommodation requests regarding any other aspect of the employment relationship. 

How do you deal with an accommodation request? Listen. Conduct the interactive process. Work to develop a reasonable accommodation. Know that flat out failing to conduct an equally effective COVID19 screening might not be reasonable given the current pandemic and a request to simply be exempted from the screening while also working in the employer’s workspace may constitute an undue burden.  

What information do you gather during the interactive process?  Determine if there is a disability. Understand the limitations it poses. Request medical documentation to support accommodation request if necessary. Suggest alternative accommodation if appropriate. 

Can employers be proactive and invite employees to explore flexible work arrangements? Yes. But do so for all employees. As part of that invitation, you can include with your invitation a list of CDC list of high risk conditions to help people understand whether they may wish to ask for an accommodation. You can also have different contact people to take differing requests for accommodation based on the differing reasons for such requests.  So, you may have one person to manage pregnancy requests, another for child care, another for disabilities, another for other high risk categories.  Whatever you do, just ensure that decision makers are knowledgeable and coordinated so that they make consistent and appropriate decisions for your employees. 

OTHER TITLE VII ISSUES:

It is truly maddening that the EEOC would ever need to state this last point, but it nevertheless is sadly a point that must be stated. Harassment and/or discrimination against people who are or who simply perceived as Asians is illegal. It is also obviously wrong and illogical, as are race discrimination and national origin discrimination generally.  Given the current pandemic, however, and the fact that the conventionally accepted likely origination of the virus was from Wuhan, China, the EEOC suggests sending reminders to employees that harassment on the basis of national origin is wrong and unlawful. You may also want to point out that discrimination against Asian people is wrong and unlawful. Additionally, you might want to remind employees of the process generally for reporting harassment concerns internally and/or to the EEOC.  Knowledge can give potential targets more confidence and comfort in the workplace.

CONCLUSION:

In short, accommodate disabilities, do not exclude the high risk, and do not tolerate discrimination or even mistakenly allow it to occur from unfounded assumptions. Law, like business, is easier said than done.  Contact counsel for any specific guidance you may need.  In the meantime, the EEOC’s publication can be found in the following link à

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

 

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