Category Archives: employers

BREAKING NEWS: Illinois Recreational Cannabis Law Protections for Employers & the Workplace Clarified!

Contributed by Jeffrey A. Risch, November 15, 2019As Illinois set out to become the first state to legalize recreational cannabis through statutory authority, the legislative intent for protections for employers and the workplace were intended to include some of the strongest in the nation. However, when the dust settled and the statutory framework was analyzed, there appeared to be room for reasonable minds to have differing opinions on what the law actually meant for the workplace.

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On one hand, could employers lawfully implement reasonable, non-discriminatory drug testing policies aimed at prohibiting applicants and employees from lawfully using recreational cannabis and gaining or maintaining employment? On the other hand, would employers be violating the law if they did not hire someone who tested positive for THC or if they could not ultimately demonstrate that an employee was actually impaired while on the job? These sorts of questions lingered. A quick online search trying to find answers would only frustrate HR professionals, safety managers, and business owners further. Clarity was needed.Therefore, through the efforts of several business groups and trade associations (including the Illinois Chamber of Commerce) working across both political aisles, SB1557 passed the Illinois General Assembly on November 14, 2019. While SB1557 includes wrinkles for the licensing, manufacturing and distribution of recreational cannabis in Illinois, it also contains language found below designed to protect employers from litigation.In essence, the language attempts to clear up concern that an employer may have been required to show actual impairment in the workplace vs. simply being able to implement and follow a reasonable, non-discriminatory drug testing policy.   Specifically, Section 10-50 of the law will now read as follows (changes in bold):

(410 ILCS 705/10-50) Sec. 10-50. Employment; employer liability.(a) Nothing in this Act shall prohibit an employer from adopting reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call provided that the policy is applied in a nondiscriminatory manner.(b) Nothing in this Act shall require an employer to permit an employee to be under the influence of or use cannabis in the employer’s workplace or while performing the employee’s job duties or while on call.(c) Nothing in this Act shall limit or prevent an employer from disciplining an employee or terminating employment of an employee for violating an employer’s employment policies or workplace drug policy.(d) An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others. If an employer elects to discipline an employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.(e) Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for:

  1. actions taken pursuant to an employer’s reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test; , including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing under the employer’s workplace drug policy, including an employee’s refusal to be tested or to cooperate in testing procedures or disciplining or termination of employment;actions based on the employer’s good faith belief that an employee used or possessed cannabis in the employer’s workplace or while performing the employee’s job duties or while on call in violation of the employer’s employment policies;actions, including discipline or termination of employment, based on the employer’s good faith belief that an employee was impaired as a result of the use of cannabis, or under the influence of cannabis, while at the employer’s workplace or while performing the employee’s job duties or while on call in violation of the employer’s workplace drug policy; orinjury, loss, or liability to a third party if the employer neither knew nor had reason to know that the employee was impaired.

(f) Nothing in this Act shall be construed to enhance or diminish protections afforded by any other law, including but not limited to the Compassionate Use of Medical Cannabis Pilot Program Act or the Opioid Alternative Pilot Program.(g) Nothing in this Act shall be construed to interfere with any federal, state, or local restrictions on employment including, but not limited to, the United States Department of Transportation regulation 49 CFR 40.151(e) or impact an employer’s ability to comply with federal or state law or cause it to lose a federal or state contract or funding.(h) As used in this Section, “workplace” means the employer’s premises, including any building, real property, and parking area under the control of the employer or area used by an employee while in the performance of the employee’s job duties, and vehicles, whether leased, rented, or owned. “Workplace” may be further defined by the employer’s written employment policy, provided that the policy is consistent with this Section.(i) For purposes of this Section, an employee is deemed “on call” when such employee is scheduled with at least 24 hours’ notice by his or her employer to be on standby or otherwise responsible for performing tasks related to his or her employment either at the employer’s premises or other previously designated location by his or her employer or supervisor to perform a work-related task.

Additionally, much needed clarification for public employers was also included concerning how off duty use of cannabis by certain emergency personnel should be administered. The following was added to Section 10-35. Limitations and penalties:

(410 ILCS 705/10-35)(8) the use of cannabis by a law enforcement officer, corrections officer, probation officer, or firefighter while on duty; nothing in this Act prevents a public employer of law enforcement officers, corrections officers, probation officers, paramedics, or firefighters from prohibiting or taking disciplinary action for the consumption, possession, sales, purchase, or delivery of cannabis or cannabis-infused substances while on or off duty, unless provided for in the employer’s policies. However, an employer may not take adverse employment action against an employee based solely on the lawful possession or consumption of cannabis or cannabis-infused substances by members of the employee’s household. To the extent that this Section conflicts with any applicable collective bargaining agreement, the provisions of the collective bargaining agreement shall prevail. Further, nothing in this Act shall be construed to limit in any way the right to collectively bargain over the subject matters contained in this Act;

These changes help to better assure employers that they have the ability to implement fair, reasonable drug testing policies designed to protect their employees and the public. Recreational consumers will certainly have the legal right to use cannabis, but the employer should have the legal right to say “you better not have THC in your system to become or remain employed here.” Of course, any drug testing policy must be carefully vetted, designed, and implemented. After all, lawyers will be lawyers. 

While many questions still remain and medicinal usage requires a different analysis (for now) it appears employers can take better comfort and be more confident in creating policy designed to maintain a safe and healthy workplace through reasonable drug testing policies. However, employers must continue to carefully examine their own unique industry, risks and risk tolerances, together with their geographic footprint and applicant pool. The drug testing policy and drug-free workplace program for the “widget manufacturer” in Peoria is likely to be vastly different than that of the “accounting firm” in Schaumburg.

Navigating the Legal Risks of a Mandatory Vaccine Program for Employees

Contributed by Allison P. Sues, November 12, 2019

yellow triangle warning sign, Caution – Flu Season Ahead

Flu season is here and that likely means employers can hear sneezing and sniffling up and down the hallways at work.  Sick employees are less productive and their absences can disrupt an employer’s operations.  Worse still, sick employees may come into work and spread an illness to coworkers, exacerbating the problem.  According to the U.S. Center for Disease Control (CDC), recent studies show that flu vaccinations reduce the risk of flu by between 40 and 60 percent.  Given this, employers may wish they could mandate that all employees receive a flu vaccination.  But can they?

For those employers outside the healthcare field, the answer is probably not.  The Americans with Disabilities Act (ADA) allows employers to submit their employees to certain health screenings and inquiries depending on what point in the stage of employment the screening or inquiry takes place.  Per the federal regulations supplementing the ADA, employers are generally prohibited from asking any disability-related questions or requesting any medical exams before a conditional offer of employment is extended to the applicant.  Once an offer of employment is made, an employer may require a medical examination if the same examination is used for all entering employees in that job category.  If an employer uses certain criteria from these examinations to screen out employees, those criteria must be job-related and consistent with business necessity. 

As for current employees, the ADA generally prohibits employers from mandating that employees receive any medical testing or vaccinations unless they are job-related, consistent with business necessity, and no more intrusive than necessary.  This is a very difficult standard to meet unless the employer is part of the healthcare field or otherwise requires employees to regularly interact with immune-compromised clients, patients, or customers.

But there are several practices that employers can take to encourage employees to receive vaccines short of job-contingent mandates.  Employees are more likely to get vaccinated if it is easy and affordable to do so.  Employers may want to subsidize the cost of vaccines, allow paid time off to go get vaccines, or offer vaccines at the workplace to reduce any inconvenience. 

As for employers in the healthcare field, courts have repeatedly upheld an employer’s right to require that employees receive vaccinations if they work directly with patients – such as a nurse, doctor, or patient care assistant – or if they handle materials that could spread infection – such as a lab technician. The CDC recommends that these healthcare workers receive vaccinations for hepatitis B, flu, measles, mumps, rubella, chickenpox, tetanus, diphtheria, pertussis, and meningococcal diseases. 

Mandating vaccines, even in the healthcare field, is not without legal risks of which employers should be aware. The U.S. Equal Employment Opportunity Commission takes the position that healthcare employers must consider exemptions for those employees who cannot receive vaccines for reasons related to disability, pregnancy, or religion. Employers should analyze each request for exemption on a case-by-case basis, including review of the employee’s job position, as well as the employee’s particular religious belief or medical documentation corroborating the disability at issue. 

For employees who object to vaccines based on religious grounds, employers should first determine if the employee sincerely holds the religious belief.  Courts do not overly scrutinize this question.  While the belief cannot be social, political, or personal to qualify as a sincerely-held religious belief, courts cast a fairly wide net as to what religious-based beliefs will provide protection under Title VII.  The religious belief may be newly adopted, inconsistently observed, not part of a formal church or sect’s religious practice, or different from the commonly followed tenants of the individual’s religion.  As an example of the broad interpretation of sincerely-held religious beliefs, courts have determined that veganism may constitute a religion where an employee protests receiving a vaccine containing animal products, such as eggs.

For employees who seek an exemption from mandatory vaccines based on their disabilities, the employer may ask for medical documentation corroborating the disability. Some examples of disabilities that may preclude employees from receiving certain vaccinations include life-threatening allergies, diseases that compromise the employee’s immune system, or – in the case of a recent Third Circuit Court of Appeals case – a severe and well-documented anxiety associated with the side effects of receiving vaccines.

Once an employer determines that an employee is objecting to a mandatory vaccine based on a sincerely-held religious belief or documented disability, the employer must determine whether allowing the employee an exemption from the vaccine creates an undue burden on the organization.  For exemptions based on disabilities, the employer may also similarly consider if the exemption would create a direct threat to the employee, his or her coworkers, or the organization’s patients.  This inquiry is often directly related to the employee’s position.  While it may be feasible to exempt a hospital billing clerk from mandatory vaccines, the same is likely not true for a pediatric nurse working with young patients who are particularly vulnerable in the NICU. 

The employer should also consider if there are alternatives that could sufficiently protect the employee and patients short of requiring the vaccine, whether it be requiring the employee to wear a mask or transferring the employee to a position with less patient contact.  If the employer determines that exempting the employee will create an undue burden, it can require the vaccine as a condition of further employment, but this decision should be documented with a clear explanation as to why the vaccine is job-related, no more intrusive than necessary and consistent with business necessity.  The employer must also monitor and ensure that it conducts the exemption consideration and decision process consistently for all employees.

The key to handling requests for exemptions is to ensure that the consideration focuses on the specific concerns of the particular employee and encompasses an open and back-and-forth dialogue with the employee.  Sometimes learning more about the employee’s specific concerns will lead to a solution.  For example, an employee objecting to a vaccine on religious grounds because the vaccine contains animal cells may be willing to accept an alternative version of the vaccination that does not contain the offending material. 

Avoiding Holiday Pitfalls in the Workplace: Religious Accommodations

Contributed by Brian Wacker, October 23, 2019

The holiday season is fast approaching. What should be a joyful time filled with family, friends and festivities is all too often the opposite for employers: a season filled with legal and logistical challenges with their employees. 

Vacation, holiday and leave on paper note stick on the calendar of December for year end holidays concept

One of these potential challenges is the employer’s legal obligation to accommodate employees’ sincerely-held religious beliefs. Title VII of the Civil Rights Act of 1964, as well as various state legislation such as the Illinois Human Rights Act and the Missouri Human Rights Act, prohibits employment discrimination based on religion. Generally speaking, this means that employers must reasonably accommodate an employee’s sincerely held religious beliefs unless doing so would impose an undue hardship on the employer. 

So what is a “sincerely held belief” and what constitutes a “reasonable accommodation?”  Unfortunately, the answer can often be as clear as eggnog.

For purposes of Title VII and state legislation, the term “religion” is defined broadly.  It includes “all aspects of religious observance and practice, as well as belief,” which courts and the EEOC have interpreted to include not only traditional religions like Christianity, Judaism or Islam, but also religions that are “new, uncommon, nor part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical and unreasonable to others.”  In other words, so long as the employee has articulated a belief in a religion concerning “ultimate ideas” about “life, purpose and death,” courts will find that the belief is religious meriting protection.  And employers should note that this does not only apply to traditional practices of religion; rather, it can also extend to religious dress or grooming based on religious beliefs or practices.

So that employee who seeks an accommodation based on her practice of Satanism?  If she has a sincerely held belief in it, she must be reasonably accommodated. Whether a belief is “sincerely held” can be a tough question to resolve, especially when an employer has suspicion that the request for accommodation is not made in good faith, or when the employee has behaved in the past in a manner markedly different from the professed belief. However, employers should be cautious in making such a determination and not assume that a belief is insincere just because some of the employee’s practices deviate from commonly followed tenets of the religion.

What makes a hardship for an employer “undue?” 

Basically, a hardship is undue if it can be shown that the accommodation would impose “more than a de minimis cost” on the operation of the employer’s business. While this will necessarily be a case-by-case determination, employers should consider the type of workplace involved, the nature of the employee’s duties, the identifiable costs of the accommodation in relation to the employer’s size and the effect the accommodation will have on other employees. If a religious practice will conflict with security or safety requirements, it likely will not need to be accommodated, unless the security or safety requirement is a unilaterally-imposed requirement by the employer and it could be reasonably modified or eliminated.

For far too many employers these days, the holidays bring about more headaches than anything.  Staying up to date on issues, such as religious accommodation requirements, can help you avoid the holiday blues. 

Separate Franchise or Joint Employer? – The Ninth Circuit rules in favor of McDonald’s NOT being a Joint Employer of its Franchisee’s Employees

Contributed by Mike Wong, October 3, 2019

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The Ninth Circuit U.S. Court of Appeals ruled in a California lawsuit that one of the most recognized franchises, McDonald’s, does not exert sufficient direction or control over its franchisees’ employees to be considered a joint employer under California statutory or common law and therefore is not liable for how the franchisee treats its employees.

In doing so, the Ninth Circuit affirmed the District Court’s ruling that McDonald’s was not an employer under California’s Labor Code definition under the “control” definition, the “suffer or permit” definition or under California common law. The court also rejected the Plaintiffs’ claims that McDonald’s could be held liable under an ostensible-agency theory or that McDonald’s owed the employees a duty of care.

In this case, Plaintiffs argued that McDonald’s requirements of the franchisee made it a joint employer. Specifically, Plaintiffs argued that McDonald’s exerted control through the franchise agreement that required the franchisee to use its point of sale (POS) system and in-store process (ISP) computer systems every day to open and close each location, managers received training at McDonald’s Hamburger University and then trained employees on meal and rest break policies, required franchisee employees to wear uniforms, and the franchisee voluntarily used McDonald’s computer system for scheduling, timekeeping and determining overtime pay.

The court followed the California Supreme Court’s rational in Martinez v. Combs 231 P.3d 259 (Cal. 2010) and held that a franchisor “becomes potentially liable for actions of the franchisee’s employees, only if it has retained or assumed a general right of control over factors such as hiring, direction, supervision, discipline, discharge and relevant day-to-day aspects of the workplace behavior of franchisee’s employees.” Patterson v. Domino’s Pizza, LLC, 333 P.3d 723, 725 (Cal. 2014). It further held that McDonald’s is not an employer under the “control” definition, as it did not have “control over the wages, hours or working conditions.” Martinez, 231 P.3d at 277. Much like in Martinez, the court found that directing control over workers geared towards quality control, does not rise to the level of controlling the day-to-day work at the franchise. Id. In essence, branding does not represent control over wages, hours or working conditions.

The court also held that McDonald’s was not an employer under the “suffer or permit” definition because it did not have any power to prevent the employees from working by hiring or firing them, directing them where to work, or setting their wages and hours.

The court further found that although there was evidence suggesting that McDonald’s was aware that the franchisee was violating California’s wage and hour laws, there was no evidence that McDonald’s had the requisite level of control over the employees’ employment to render it a joint employer. 

This is a major win for franchisors and employers, considering the influx of cases alleging franchisors are “joint employers” of their franchisees’ employees. It should be noted that this win may be short lived as the U.S. Department of Labor is working to modify or update its definition of when a franchisor is considered a joint or partial employer of its franchisee’s employees.

Additionally, this case must be viewed in context of the U.S. District Court of New Jersey’s recent decision in Michalak v. ServPro Industries, Inc., where the court held that the Plaintiff’s allegations that ServPro “issued manuals, training materials and other writings” specifying policies and procedures for hiring, training, disciplining and firing employees were sufficient to establish an agency relationship and avoid dismissal at the motion to dismiss stage. The court further held that the Plaintiff’s allegations that she informed ServPro and that ServPro tipped off the franchisee and buried the complaint, was sufficient to support a claim that ServPro had aided and abetted discriminatory conduct in violation of New Jersey law. 

When making the leap to becoming a franchisor or selling franchisees it is important to understand how much direction or control is too much and what actions or requirements could open you up to liability for the actions of your franchisee. As such, it is vitally important that franchisors team with knowledgeable labor and employment counsel that can keep them up to date on the evolving risk of being a joint employer or having an agency relationship with their franchisees.

Does Your Attendance Policy Violate the FMLA?

Contributed by Steven Jados, September 5, 2019

The recent decision in Dyer v. Ventra Sandusky, LLC, issued by the U.S. Sixth Circuit Court of Appeals (which has jurisdiction over Kentucky, Michigan, Ohio, and Tennessee), should motivate employers to take another look at whether their attendance policies run afoul of the Family and Medical Leave Act (FMLA).

There are plenty of gray areas in the law, but it is generally clear that employees are not to be disciplined because they are absent for FMLA-covered reasons. That also means that employees should not accumulate attendance “points,” e.g., under a no-fault attendance policy, for FMLA-covered absences when such points can contribute to discipline up to and including termination of employment.

Clocking In

To its credit, the employer in Dyer did not assign attendance points for FMLA-covered absences.  But unfortunately for the employer, that is not the end of the story.

Under the employer’s attendance policy, employees were eligible for a one-point “reduction” of their attendance point balance for every 30-day period in which the employee had “perfect attendance.” The employer’s definition of perfect attendance was not self-explanatory.  For instance, an employee could be absent for several different reasons — including vacation, bereavement, jury duty, military duty, holidays, and union leave — and still have “perfect attendance” and eligibility for attendance point reductions.

However, FMLA-covered absences were not included among the types of absences that preserved perfect attendance status and point-reduction eligibility. And if an employee had a FMLA-covered absence, his progress toward the 30-day point reduction goal was reset to zero.

The Sixth Circuit noted that the FMLA’s regulations generally require that an employee not lose benefits while on FMLA leave. Because attendance point reductions (and progress toward such reductions) are benefits, the Sixth Circuit noted that, at the very least, progress toward the 30-day goal should be frozen while employees are on FMLA leave, rather than being reset to zero. The court also indicated that if other “equivalent,” but non-FMLA forms of leave were counted toward the 30-day goal, then FMLA-covered absences should also be counted toward the 30-day goal.

The bottom line is that the Dyer decision instructs employers that disciplinary and benefit policies must be closely scrutinized to determine whether they might dissuade employees from taking FMLA leave — or otherwise harm employees who take FMLA leave. If harm results, or if employees are faced with the decision of taking FMLA leave or forgoing benefits, potential exposure to liability under the FMLA may exist.

Recent Decision Highlights Risk of Post-Employment Retaliation Claims

Contributed by Suzanne Newcomb, July 30, 2019

3d illustration of scales of justice and gavel on orange background

A federal court in Pennsylvania recently ruled that a former employee presented sufficient evidence to warrant a jury trial on a claim she was retaliated against after she resigned. The decision serves as a good reminder that anti-retaliation protections extend beyond the end of the employment relationship to protect former employees.

Cherie Leese complained of sexual harassment while employed by a state agency. She later filed a charge alleging she was issued discipline in retaliation for her report. The parties eventually settled. As part of that settlement, Leese resigned and agreed not to apply for or accept employment within a subset of state agencies. Leese expressly retained the right to seek employment in other areas of state government. When her numerous attempts to secure another position failed, Leese filed a new charge, this time claiming her former employer retaliated against her after she resigned by hindering her attempts to get a new job.

The state, like many large employers, coded former employees based on the circumstances of their separation. Leese was assigned an unusual code, “voluntary resignation contact former agency.” Inquiries regarding Leese were directed to the agency’s general counsel, who responded by stating, “I can make no comment regarding Ms. Leese’s separation.” Leese presented evidence to suggest the code and response were atypical and that they “raised a red flag” which took her out of the running for various positions. 

A well-drafted release protects against claims stemming from conduct occurring before the agreement is signed, but individuals generally cannot waive their rights with respect to future events. As some courts have put it, “an employer cannot purchase a license to discriminate.”

So what steps can an employer take to protect against post-employment retaliation claims?

First, establish a protocol for responding to requests for information regarding former employees, train all supervisors on the protocol, and insist they follow it, regardless of the circumstances underlying an employee’s departure. To better control what information is released, consider directing all requests to a designated individual or department (usually HR). To prove retaliation – whether post-employment or otherwise – a plaintiff must link her protected activity to an adverse action. Leese’s claim was bolstered by evidence that the agency deviated from its usual practice when responding to requests for information about her. The ability to prove that the plaintiff was treated in exactly the same manner as everyone else often allows an employer to avoid trial by defeating a retaliation claim on summary judgment. 

Second, when negotiating severance or a settlement, expressly discuss whether the individual is eligible for rehire and what information the employer will provide in response to reference requests and other inquiries about the individual (** be mindful of restrictions in your local jurisdiction and/or industry – in Vermont, for example, including a no-rehire provision may invalidate a sexual harassment settlement). Incorporating the parties’ agreement on these items into the formal agreement provides certainty for both parties and avoids surprises down the road.

United States Supreme Court Confirms and Limits Court’s Deference to Agency Guidance

Contributed by Allison P. Sues, July 11, 2019

Judge’s Supreme Court gavel with law books

On June 26, 2019, the U.S. Supreme Court confirmed the continued viability of Auer deference, an interpretive doctrine that requires courts to defer to an agency’s reasonable reading of a genuinely ambiguous regulation. In confirming the use of Auer deference, the Supreme Court also narrowed its scope, setting out clear limits to courts’ use of this doctrine. This decision came in the case Kisor v. Wilkie, which involved an ambiguous regulation of a Department of Veteran Affairs rule.  

In affirming Auer deference as a viable interpretive tool for courts to employ when deciding on two readings of a genuinely ambiguous rule, the Court reasoned that Congress generally wants agencies to play the primary role in resolving these questions. As the body that promulgated the rule at issue, the agency is in the best position to know the regulation’s original meaning and possess the expertise needed to interpret rules on specific subject matters. Determining the meaning of an ambiguous rule often requires policy-based judgment calls – a job more appropriate for politically accountable agencies than appointed judges. Finally, deferring to an agency’s interpretation of a rule promotes consistent application of those rules as an agency’s guidance has greater cover than a single district court. 

In confirming the use of Auer deference, the Court was also insistent on its limits. There are several instances in which Auer deference is not warranted. First, the regulation in question must be genuinely ambiguous even after a court has exhausted all of its traditional tools of construction. Second, the agency’s interpretation must be reasonable. Third, the agency’s interpretation must be an “official” or “authoritative” position taken by the agency rather than an ad hoc statement by an agency employee that does not necessarily reflect the agency’s official views. Fourth, the agency’s interpretation must rely on its specific expertise. Finally, the agency’s interpretation must reflect fair, considered, and consistent judgment. 

The Court’s decision in Kisor is a significant one for employers because the DOL and EEOC have issued detailed regulations bearing on various employment statutes, and Courts often look to these regulations in deciphering employment law claims. When the regulation itself does not answer the question, parties may ask the Court to defer to the agency’s guidance on its regulations, be it in the form of a regulatory appendix, compliance manual, or other policy guidance documents or statements. The Supreme Court’s decision in Kisor allows this – but with clear limits. 

Take the Seventh Circuit’s recent decision in Richardson v. Chicago Transit Authority (decided just prior to Kisor but consistent with Kisor’s holdings), which held that obesity is not a disability under the ADA if there is no evidence of an underlying physiological condition. In arguing that his obesity should constitute a disability, the plaintiff pointed to EEOC interpretive guidance that, he contended, indicated that a person has an ADA impairment if his weight is outside of a normal range. The Seventh Circuit held that even if the EEOC guidance did state this, the Court would not defer to the agency’s guidance because it was inconsistent with the text of the regulation. The regulation defined impairment as a “physiological disorder or condition.”  Determining that this regulation was not truly ambiguous, Auer deference was not justified.

So what should employers take away for the Kisor case? Agency guidance, appendixes, and other policy statements should not be ignored. While there are strict limits to the application of Auer deference, courts will continue to defer to an agency’s interpretations of its own rules in certain situations.