Author Archives: smithamundsen

DOL Clarifies that Not All Travel Time is Compensable in the Era of Telework

Contributed by Carlos Arévalo, January 18, 2021

A guy looks at his watch with a train going away in the background.

On the last day of 2020, the US Department of Labor (DOL) issued an opinion letter impacting employers using telework arrangements in light of the COVID-19 pandemic.  While a vaccine is now rolling out and we will hopefully get the pandemic under control in 2021, this opinion letter provides guidance to employers that have had to institute remote and hybrid work policies and/or arrangements with their workforce. 

Specifically, the opinion letter addressed two general scenarios: 

  1. Employee has a parent-teacher conference in the middle of the day and works from the office, attends the conference and then goes home to finish her workday in her “home office”; and
  2. Employee has doctor’s appointment scheduled for mid-morning.  She works a couple of hours from home, goes to her appointment and then travels to her office for the rest of the day.  At the end of the day, she returns home.

So is the employee’s travel time compensable?  The opinion letter concludes it is not.  Travel time under either scenario is deemed “off duty” or normal commuting time.  Even if travel time occurs during the regular work or “office hours,” the employee is interrupting her work time to attend to personal matters.  The time is off-duty and the employee “is free to use her time effectively and for her own purposes before resuming work.” 

The opinion letter also finds that the travel time at issue is not compensable pursuant to the worksite-to-worksite travel or continuous workday doctrine.  First, for the worksite-to-worksite travel analysis to apply travel must be part of the employee’s principal activity – here the employee is not being required to travel as part of her job so it is not compensable. Second, while regulations “contemplate that the period between an employee’s first and last principal activities will ‘in general’ be compensable,” this will not be the case when the employee uses the time for her own purposes.  To support its opinion, the DOL examines a number of court decisions that emphasize the employee’s flexibility and freedom to use time for their own purposes.  As may be appropriate, employers should consult with competent counsel to ensure that these policies and arrangements comply with relevant law.

In light of the “new normal” that has emerged in response to the COVID-19 pandemic, employers are encouraged to examine policies and/or telework arrangement to make sure that despite the flexibility such documents are intended to provide, it is clear to employees that time “effectively used for their own purposes” during their workday will not be compensable. 

Telemedicine Appointments Can Be Used To Establish Serious Health Conditions Under the FMLA

Contributed by Steven Jados, January 14, 2021

FMLA family medical leave act ,FMLA

Recent guidance from the U.S. Department of Labor (DOL) reiterates that the DOL will allow telemedicine visits—generally speaking, health care appointments held via video conference—to qualify as in-person visits to a health care provider under certain circumstances.

As our readers know, the FMLA provides certain employees up to 12 workweeks of leave for, among other things, a “serious health condition.”  An employee can show the existence of a serious health condition by several methods that include establishing that the employee has an illness or injury that involves “continuing treatment by a health care provider.”  Under federal regulations, “treatment by a health care provider” means actually visiting a health care provider in-person.  That regulation was added in 2008 to make clear that phone calls, letters, emails, and text messages exchanged with a doctor are not “treatment.”

However, in response to the COVID-19 pandemic, the DOL issued guidance in July 2020 that was confirmed and extended by a more recent DOL Wage and Hour Division Field Assistance Bulletin, which states that telemedicine, which “typically involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices” will be considered an “in-person” visit, provided the visit meets these three criteria:

  • It is an examination, evaluation, or treatment by a health care provider;
  • it is permitted and accepted by state licensing authorities; and,
  • it generally should be performed by video conference.

That said, the Field Assistance Bulletin also made clear that “a simple telephone call, letter, email, or text message” remains “insufficient, by themselves” to satisfy the in-person requirement.

Bearing all of that in mind, employers evaluating the adequacy of FMLA certification documents must, at least for the duration of the ongoing pandemic, consider telemedicine appointments to be “treatment” for purposes of the FMLA provided the three criteria above are satisfied.  And as always, questions regarding the application of this and any other COVID-19-related employment law issues should be directed to experienced counsel.

What Will the Biden Administration Bring for Employers?

Contributed by Beverly Alfon, January 12, 2021

They say that the only constant in life is change.  Here is a quick overview of the shift that we expect to see in the realm of labor and employment after President-elect Joe Biden takes office.  

National Labor Relations Board (NLRB)

The NLRB is expected to have a Democratic majority as early as August 2021.  The five-member Board currently has three Republican members, one Democrat, and one vacancy.  The expectation is that the Biden administration will move quickly to fill the vacancy.  In addition, the term of William Emmanuel, a Trump appointee, will expire in August 2021 – opening the door to a third Democrat.

The current NLRB General Counsel, Peter Robb – who has pushed a strong pro-employer stance in his role as prosecutor of unfair labor practice charges – will see his term expire in November 2021.  There is some speculation that due to pressures from organized labor, President-elect Biden will find a way to terminate Robb’s terms prior to that.

As with prior administration changes, the expectation is that a Democratic Board majority and new General Counsel will lead the Board’s policy and enforcement priorities will go back to a pro-labor agenda. With this expected change will likely come easier roads to organizing, broadening of joint-employer liability, a return to post-contract continuation of union dues, and stricter restrictions on an employer’s ability to exercise discretion even when contract language provides for it. Not all changes will be immediate, of course, as case precedents established by President Trump’s appointees are not subject to reversal until cases presenting the relevant issues come before the Board.

We will be keeping an eye out for components of (or the entirety of) the Protecting the Right to Organize Act (PRO Act), which passed in the House in early 2020 with a vote of 224 to 194, largely along party lines.  The legislation went nowhere in the Senate in 2020, but it is 2021. The results of the Georgia runoff elections have changed the political landscape.  Among other things, the PRO Act was aimed at giving workers more equal footing during disputes at work, prohibiting employers from permanently replacing economic strikers, creating a private cause of action for unfair labor practices, authorizing the NLRB to add penalties for employers who retaliate against workers who organize, and allowing for secondary boycotts.  President-elect Biden is a strong supporter of the PRO Act provisions, making clear that significant, pro-labor changes will be made through and within the NLRB.

Equal Employment Opportunity Commission (EEOC)

The EEOC enforces federal laws that prohibit employment discrimination, such as the Americans with Disabilities Act, the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964.  The EEOC will have a Republican majority until July 2022.  The EEOC’s current Strategic Enforcement Plan, which establishes the EEOC’s enforcement priorities, will also be in place until 2022.  Therefore, changes to the agency initiatives will be even less immediate than at the NLRB, but the expectation is that the EEOC will return to its aggressive enforcement of these federal employment laws against employers, likely focused on workplace harassment, equal pay, and LGBT discrimination/harassment claims (especially in light of the June 2020 U.S. Supreme Court decision in Bostock, which holds that an employer who fires an individual merely for being gay or transgender violates Title VII).

U.S. Department of Labor

President-Elect Joe Biden has formally nominated Boston Mayor, Marty Walsh for Secretary of Labor.  In response to the announcement of his nomination, Walsh tweeted, “Working people, labor unions, and those fighting every day for their shot at the middle class are the backbone of our economy and of this country. As Secretary of Labor, I’ll work just as hard for you as you do for your families and livelihoods.”  Some media outlets are reporting that Walsh, like Biden, is more moderate than meets the eye, willing to reach across the aisle in order to make things happen.  However, there is no question that unions expect robust support from Walsh due to his strong ties to organized labor, including a role as head of the Boston Building and Construction Trades Council.   If confirmed by the Senate (which is very likely in light of the results of the Georgia runoff elections), Walsh would be the first union member to serve in this role in almost 50 years.

With Walsh at the helm, we expect that federal minimum wage and paid sick leave benefits will be top priorities.  Walsh was a strong supporter of the state-wide Massachusetts law requiring paid family and medical leave benefits, and the forthcoming state minimum wage requirement of $15 an hour.  We also anticipate that the DOL will revisit overtime standards, rules dealing with pay entitlement for off-the-clock work (especially in this time of widespread remote work), and the joint employer standard. It is also very likely that the DOL’s recently issued independent contractor classification regulations will be rescinded or superseded by new regulations that would be more worker-friendly.  Enforcement will likely be aggressive, especially in industries like food manufacturing, fast food, and construction, which are priorities for organized labor, especially in terms of wages and workplace safety (especially, COVID-19-related complaints). Indeed, there is some expectation that this DOL will be even more aggressive and progressive than that of the Obama administration.

Bottom line:  Employers must be focused on compliance.  While we cannot specifically predict what will come over the next few months and years, it is imperative for employers to anticipate the pendulum swing and assume stricter enforcement of rules and regulations against employers, sooner rather than later. 

Be Cautious When Using Conviction Records to Make Employment-Related Decisions for Wisconsin Employees

Contributed by Peter Hansen, January 5, 2021

employer at desk on white background

A Wisconsin state court recently issued a helpful reminder to employers operating in Wisconsin – and employers with employees working outside of their home state:  always check local and state conviction records laws before using them in making any employment-related decision.

In Cree, Inc. v. LIRC, the employer rescinded a job offer to Derrick Palmer after discovering that he had multiple convictions for “domestic incidents,” including “2012 convictions for strangulation/suffocation, fourth-degree sexual assault, battery, and criminal damage to property related to a domestic incident with a live-in girlfriend.”  If hired, Palmer would have been an Applications Specialist working “with more than 1100 employees, including about 500 women.”  Seems reasonable to rescind the offer, right?  Well, no – not in Wisconsin, which prohibits discrimination on the basis of a conviction record, unless the employee or applicant has “been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job.”

The court held that although Palmer’s criminal record demonstrated a tendency and inclination “to be physically abusive toward women in a live-in boyfriend/girlfriend relationship,” it did not substantially relate to the Applications Specialist job that Palmer applied for – which would not require “performing his services in private homes or other isolated settings” or otherwise “meeting one-on-one with clients in private settings.”  As a result, the employer unlawfully discriminated against Palmer when it rescinded the job offer because of his prior convictions.

To summarize, all employers must check state and local laws before making any employment-related decision on the basis of a conviction record.  Many states prohibit conviction record discrimination in addition to Wisconsin, including California, Hawaii, New York, and Pennsylvania.  Local laws could also prohibit conviction record discrimination, or even provide additional protection.  For example, sticking with Wisconsin, the City of Madison prohibits employers from considering conviction records that “substantially relate to the circumstances of the particular job” if more than three years have passed since the employee was placed on probation, paroled, released from incarceration, or paid a fine relating to the conviction.

New Rules for Tipped Employees to Take Effect in February 2021

Contributed by Suzanne Newcomb, December 28, 2020

On December 22 the Federal Department of Labor (DOL) published a Final Rule changing the FLSA regulations for tipped employees. The Final Rule takes effect 60 days after publication. A caveat before we dig into the Final Rule; the change affects only federal law. As with all things wage-and-hour-related, many states, and some local governments, enforce more stringent requirements. Some jurisdictions prohibit tip credits entirely. This post focuses on the federal standard only. Employers must adhere to the requirements applicable to their particular business in each location in which they operate.

The FLSA has long allowed a “tip credit” to cover a portion of the minimum wage an employer would otherwise be required to pay certain employees who regularly receive gratuities. One requirement is that the tipped employees retain all of their tips with the exception of a qualified tip pool. The regulations surrounding tip pools have changed over the years due to a range of court rulings, legislative action, and agency rule making. The Final Rule is the latest iteration of regulations surrounding the “tip credit provision” [29 USC § 203(m)(2)(A) often referred to as simply “section 3(m)”].

Under the newly published Final Rule:

  • Employers may continue to enforce mandatory tip pooling arrangements;
  • If the tip credit is taken, the employer may not include employees who do not routinely receive tips (i.e. kitchen staff) in a mandatory tip pool;
  • Employers that do not take the tip credit (i.e. those that pay tipped employees a set hourly wage that is at or above the applicable minimum wage for non-tipped employees) may include employees who do not routinely receive tips in mandatory tip pools;
  • Managers and supervisors (as determined based on the duties portion of the test for the FLSA’s executive exemption) are prohibited from participating in tip pools (regardless of whether a tip credit is taken);
  • Tip pool funds must be paid out at least as frequently as the employer pays out base hourly wages; and
  • Finally, employers may take a tip credit for time spent performing tasks that do not generate tips (i.e. cleaning, stocking, rolling silverware, etc.) as long as the non-tip generating duties relate to the tipped occupation and are performed contemporaneously with, or immediately before or after, the duties for which the employee does receive tips. The Rule expressly rejects the 80/20 rule referenced in some opinion letters and court decisions. 

A final reminder that is particularly relevant in light of the massive sustained blow the service industry has taken of late; the tip credit cannot exceed the amount of tips the employee actually receives. Also, if an employee’s base hourly rate, plus the tips actually received, adds up to less than the applicable minimum wage for any particular shift, the employer must make up the difference.

STIMULUS 2.0: The Consolidated Appropriations Act 2021 – Key Provisions for Employers

Contributed by Rebecca Dobbs Bush, December 22, 2020

While it has not yet been fully passed and enacted into law, the full text of the Consolidated Appropriations Act, 2021 was released days ago and announced as having bipartisan support. Within the over 5,500-page Act, are several provisions designed to assist smaller businesses and those hardest hit by the economic challenges presented by the COVID-19 pandemic. As is common with legislation, the Act essentially presents only an outline of Congress’ intent and leaves relevant agencies to fill in the details of that outline. Pursuant to mandates in the Act, most agencies, such as the IRS, are directed to publish clarification within weeks of enactment.

While we await further guidance and clarification, the below list highlights those provisions, not specific to particular industries, that businesses should be aware of:

  • Paycheck Protection Program (PPP)
    • Borrowers now have the green light to claim deductions for any and all expenses paid with loan proceeds, regardless of whether or not they obtain forgiveness of their loan amount.
    • Employers are permitted to cover additional categories of non-payroll costs with PPP loan proceeds, such as:
      • “covered operations expenditures” which means “payment for any business software or cloud computing service that facilitates business operations, product or service delivery, the processing, payment, or tracking of payroll expenses, human resources, sales and billing functions, or accounting or tracking of supplies, inventory, records and expenses”
      • “covered property damage costs” which means “a cost related to property damage and vandalism or looting due to public disturbances that occurred during 2020 that was not covered by insurance or other compensation”
      • “covered supplier costs” which means payment to a supplier of goods for goods that are “essential to the operations of the entity at the time at which the expenditure is made; and is made pursuant to contract, order, or purchase order…”
      • “covered worker protection expenditures” which means an “operating or a capital expenditure to facilitate the adaptation of the business activities of an entity” to comply with guidance issued by HHS, CDC, OSHA or any equivalent requirements issued by state or local government since March 1, 2020. This may include expenses to create a drive-through window facility, an indoor, outdoor or combined air or air pressure ventilation or filtration system, a physical barrier such as a sneeze guard, an expansion of indoor or outdoor business space, or onsite or offsite health screening capability.
    • Clarification that “payroll costs” for purposes of PPP loans, includes group life, disability, vision or dental insurance benefit costs.
    • Simplified forgiveness application process for PPP loans up to $150,000.
    • “Second Draw Loans” for the Paycheck Protection Program
      • Eligible entities:
        • includes those employing less than 300 employees (now including nonprofit organizations) AND
        • Those that had “gross receipts” in a quarter during 2020 that represents a 25% reduction from gross receipts of the entity during the corresponding quarter in 2019.
      • Maximum loan amounts are 2.5 times the average monthly payroll costs up to $2 million (NAICS 72 entities can obtain 3.5 times the average monthly payroll costs up to $2 million).
      • An entity that returned all or part of a prior PPP loan has an opportunity to reapply.
      • Entities that did not obtain the maximum amount of PPP loan available to them based upon the regulations in place at the time of their initial application, may request a modification to previous loan amount.
  • Expansion of the Employee Retention Tax Credit
    • Expanded eligibility:
      • Participation in the Paycheck Protection Program does not lead to disqualification where the payroll at issue is not funded by PPP loan proceeds.
      • Gross receipts for the calendar quarter are less than 80% of the gross receipts for the employer in the same calendar quarter during 2019 (was previously required to be less than 50%).
      • Previously, those with more than 100 employees could only take the credit in regard to wages paid to an employee that was not providing services.  Those at or under 100 employees could take the credit in regard to wages paid to any employee. This threshold was increased from 100 to 500 employees.
    • Extension of the program through July 1, 2021
    • 50% credit for qualifying wages increased to 70%
    • Instead of “qualifying wages” capped at $10,000 per employee, revised to $10,000 per employee per calendar quarter.
  • Unemployment Insurance benefits
    • An additional $300 per week for all receiving unemployment benefits through March 14, 2021.

Be assured that we will be providing more insight as more developments unfold to our contacts and clients in the days and weeks to come. 

COVID-19 Relief Bill: FFCRA Leave Mandate Not Extended; Tax Credits Available for Voluntary Leave

Contributed by Kelly Haab-Tallitsch, December, 22, 2020

A $900 billion COVID-19 relief bill passed by Congress late last night is expected to be signed into law by President Trump later today. In addition to an assortment of aid for individuals and businesses, the bill extends several provisions of the CARES Act passed in March, including the tax credit for employers providing paid leave under the Families First Coronavirus Response Act (FFCRA). However, the bill does not extend the mandate for employers to provide paid leave, set to expire December 31, 2020.

What Does This Mean?

Employers are not required to provide paid sick leave or paid family leave for coronavirus-related reasons under the FFCRA after December 31, 2020. But the COVID-relief bill allows employers with less than 500 employees to voluntarily provide this leave and take the tax credit associated with the leave through March 31, 2021. Tax credits are available for qualifying wages (up to a cap) paid while an employee is on leave if (1) the leave would have been required under the FFCRA had the FFCRA been extended through March 31, 2021, and (2) all requirements related to leave under the FFCRA are met.

The bill does not change the maximum amount of paid leave subject to the tax credit for an individual employee. This means that if an employee took 80 hours of paid sick leave to quarantine in 2020, and the employer claimed the tax credit on wages paid during that leave, the employer cannot claim an additional tax credit on wages paid to that same employee for additional paid sick leave in 2021.  

Next Steps

Employers should decide as soon as possible if they will provide voluntary paid FFCRA leave during the first quarter of 2021 – and commit to that decision.  Additionally, employers should administer the leave on a consistent basis and maintain all documentation required to substantiate the leave.

Of course, local and state leave mandates (paid and unpaid), as well as disability-related accommodation and traditional FMLA leave are all still in play. Employers need to continue to carefully navigate the waters of COVID-19 related leaves regardless of the FFCRA.

Click here for a summary of the FFCRA Paid Leave Requirements.

Update: EEOC Issues Guidance Regarding COVID-19 Vaccines in the Workplace

Contributed by Suzannah Wilson Overholt, December 16, 2020

Doctor hand wears medical glove holding syringe and vial bottle with covid 19 vaccine drug multiple dose for injections.

In follow-up to our previous blog regarding mandating the COVID-19 vaccine in the workplace, the U.S. Equal Employment Opportunity Commission (EEOC) has now issued guidance addressing that very issue. According to the guidance, employers may ask employees if they have had the COVID-19 vaccine and require the vaccine pursuant to U.S. Centers for Disease Control (CDC) or other federal or state guidelines. However, any mandates must allow exemptions for employees who are unable to receive the vaccine due to disability or a sincerely held religious belief or practice.

The key takeaways from the EEOC’s guidance are as follows:

  • In order for an employer to require the COVID-19 vaccine, it must show that an unvaccinated employee would pose a direct threat due to 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.” Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists:
    • the duration of the risk;
    • the nature and severity of the potential harm;
    • the likelihood that the potential harm will occur; and
    • the imminence of the potential harm. 
  • An employer must provide reasonable accommodations to a vaccine requirement for employees who seek accommodation based on disability or a sincerely held religious belief, practice, or observance. The EEOC has consistently required such accommodations, which we described in an earlier blog.   
  • The administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) is NOT a “medical examination” for purposes of the Americans with Disabilities Act (ADA). 
  • Pre-screening questions associated with administering the vaccine may implicate the ADA’s prohibition on disability-related inquiries if the employer requires the vaccine and answering the questions is mandatory. If the employer administers the vaccine, it must show that pre-screening questions are “job-related and consistent with business necessity.” This is not a concern if the vaccine and answering the questions are voluntary.
  • Asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is NOT a disability-related inquiry. 
  • Title II of the Genetic Information Nondiscrimination Act (GINA) is NOT implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute.
  • GINA may be implicated if pre-screening questions include questions about genetic information, such as family medical history. If the pre-vaccination questions include questions about genetic information, employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves.

Due to the evolving nature of this issue, advice of qualified counsel should be sought before implementing any COVID-19 vaccine program in the workplace.

EEOC Proposes Update to its Compliance Manual on Religious Discrimination and Accommodation

Contributed by John R. Hayes, December 14, 2020

Religious Discrimination claim and pen on a table.

On November 17, 2020, the Equal Opportunity Commission (EEOC) proposed an update to its Compliance Manual’s section on Religious Discrimination. The proposed Manual is open for public comment until December 17, 2020, after which the EEOC will take those comments into consideration before publishing the finalized updated Compliance Manual. The EEOC Compliance Manual is not binding and has no force of law. Nonetheless, employers should take note of the Manual as it provides insight on how the EEOC may consider charges alleging religious discrimination claims in the future, as well as the EEOC’s best practices for employers.

The proposed changes do not change any existing obligations under Title VII. However, the proposed update reflects the EEOC Chair’s emphasis on religious discrimination and accommodation and a more expansive view of exemptions for religious employers under Title VII based upon a number of cases, including U.S. Supreme Court cases, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S.Ct. 1719 (2018), and Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S.Ct. 679 (2019). The new proposed guidance focuses on four areas:

  • Definitions and Coverage – what constitutes a religion, the religious organization exemption, and the ministerial exception;
  • Employment decisions based on religion, including recruiting, hiring, promotion, discipline, compensation, religious expression within the workplace, customer preference, security requirements, and bona fide occupational qualifications;
  • Religious Discrimination, Harassment, and hostile work environment issues; and
  • Religious reasonable accommodation issues.

While it’s impossible to condense the 114 page proposed EEOC Guidance down to a short blog, here are a few points for employers to take note:

Coverage – Religious Beliefs – The EEOC defines “religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” The Supreme Court has made it clear that it is not a court’s role to determine the reasonableness of an individual’s religious beliefs. An employee’s belief, observance, or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief, observance, or practice, or if few – or no – other people adhere to it.

The EEOC notes that courts have generally resolved doubts about particular beliefs in favor of finding that they are religious beliefs, but that social, political and economic philosophies or personal preferences are not religious beliefs under Title VII.

Exemption for Religious Organizations – Religious corporations, associations, educational institutions, and societies are exempt from Title VII and are permitted to give employment preference to members of its own religion – and discriminate against employees or applicants because of their religion. “Religious institutions” does not just cover churches, but can include religious schools, hospitals, charities and social organizations, and engaging in secular activities does not disqualify an organization. 

The EEOC and courts evaluation of whether an organization is a religious institution is a case-by-case analysis considering a number of factors, with no one factor being dispositive. Those factors include, but are not limited to:

  1. Is it organized for and primarily engaged in carrying out that religious purpose?
  2. Does it hold itself out as having a religious purpose?
  3. Is it for profit or non-profit?
  4. Does it produce a secular product?
  5. Do its articles of incorporation state a religious purpose?
  6. Is it owned, affiliated or supported by a religious entity?
  7. Does it regularly include prayer or other forms of worship in its activities?
  8. Is religious instruction in its curriculum, to the extent it is an educational institution? 

The guidance recognizes the recent court decisions that have expanded the exemption for religious institutions under Title VII and protections under the First Amendment and Religious Freedom Restoration Act.  

Reasonable Accommodations – Title VII requires employers to provide reasonable accommodations based on religion. Common reasonable accommodations include: (1) flexible scheduling for religious practices (e.g. breaks for prayers or days off for religious holidays); (2) voluntary substitutes or swaps of shifts and assignments; (3) lateral transfers or changes in job assignment (such as a restaurant server being excused from singing happy birthday, and pharmacist excused from providing contraceptives); and (4) modifying workplace practices, policies, or procedures (such as dress and grooming policies).

Undue Hardship – Whether a requested accommodation is an undue hardship is also a case-by-case analysis. The EEOC states that relevant factors may include, “the type of workplace, nature of the employee’s duties, the identifiable cost in relation to the size and operating costs of the employer and the number of individuals who will in fact need a particular accommodation.” The EEOC further goes on to state that “to prove an undue hardship, the employer will need to demonstrate how much cost or disruption” will be involved and that it is not de minimis. In addressing requested accommodations, the EEOC further states that employers cannot rely upon hypothetical hardships, rather than objective information. For example, the EEOC states that accommodating an employee by not requiring them to wear a LGBTQ shirt is reasonable, but an employer may require the employee to attend anti-discrimination and harassment training that discusses the prohibition on sexual orientation discrimination.

In discussing requests for accommodations, employers should engage in an interactive dialogue. The EEOC also provides that this may include balancing an employee’s religious practice with other employees’ religious practices or right to not have religious beliefs imposed on them.

The update signals that the EEOC proposes to apply a more stringent test for an employer to establish that an employee’s requested religious accommodation is an undue burden.

Employers should continue to monitor any ultimate changes to the EEOC guidance and consult with legal counsel to ensure compliance with the laws.

In the mean time, it is important for employers to review their policies to make sure that they cover religious discrimination and reasonable accommodations. Employers should remind supervisors and managers of the obligation to provide religious based accommodations, the process and how to avoid or limit discrimination or harassment based on religion (especially when an accommodation is provided). Finally, it is important for employers to recognize that religious accommodations are not always apparent. For example, mandatory vaccination policies can implicate religious beliefs and result in accommodation requests that employers will have to review.

California Implements New COVID-19 Emergency Temporary Standards Now in Effect

Contributed by Carlos Arévalo, December 4, 2020  

Wooden judge gavel with USA state flag on sound block – California

The California Occupational Health & Safety Standards Board adopted rules implementing Emergency Temporary Standards (ETS) that went into effect on November 30, 2020. The ETS regulations apply to all employers, employees, and to all places of employment except the following:

  • Workplaces where there is only one employee who does not have contact with other people
  • Remote employees
  • Employees covered by California’s Aerosol Transmissible Diseases regulation

In an effort to assist all impacted by the ETS regulations, California’s Department of Industrial Relations has issued a set of Frequently Asked Questions addressing the mandated prevention program requirements that include workforce communication, “outbreak” and “major outbreak” handling procedures, training and record keeping and reporting as well as all other standards in the regulations intended to further control and minimize the spread of the virus in the workplace.

The FAQs address regulation amendments that require employers to maintain written COVID-19 prevention program and training programs. The prevention and training program elements must include internal reporting policies on employee infections, potential exposures, the now familiar physical distancing, face covering and other preventive measures as well as other mitigating risk protocols (Plexiglas, cleaning procedures, PPE).

The FAQs also outline the regulation procedures applicable to COVID-19 infections and/or outbreaks. In non-outbreak situations, employers must notify employees about exposures and positive tests while preserving personal identifying information, offer testing at no cost to the employees, ensure that employees infected/exposed are excluded from work while following applicable requirements regarding benefits and pay, and investigate and address any exposure hazards. Employers are also required to maintain record keeping and reporting requirements with the local department of health.

In outbreak situations, and in addition to requirements summarized above, employers must conduct immediate COVID-19 testing at no cost to the employees and repeat a subsequent test a week later. Any positive tests or exposed employees must then be excluded from work. Employers are also required to continue testing (at least weekly) until the workplace no longer qualifies as an outbreak. An “outbreak” is defined as 3 or more cases within a 14 day period or as a local health department may so determine.

In the case of a “major outbreak”, defined as 20 or more cases within a 30-day period, additional measures are triggered.  These include twice a week testing, ventilation changes and implementation (to at least MERV-13 rating), determination for the need to implement a respiratory protection program if one is not already in place or changes/improvements to an existing program, and most significantly, consideration of a full or partial shutdown of operations.  

While not specifically addressed in the FAQs, the regulations also add new sections on employer-provided housing and transportation. As it relates to housing, which does not apply to emergency response operations such as fire, rescue and utilities, communication and medical support activities, employers are required to prioritize housing assignments, impose physical distancing and face covering requirements as well as screening, testing, isolation and cleaning procedures. Similar requirements are imposed regarding employer-provided transportation.  

Employers are encouraged to review all requirements imposed by these Emergency Temporary Standard regulations, to implement compliance programs as required therein, and to update internal policies and procedures that comply with these regulations. We will continue to monitor any FAQs expansion and new information.