Category Archives: employment discrimination

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.

Employers Should Review their Policies Regarding Hairstyles as the CROWN Act Movement Gains Momentum

Contributed by Allison P. Sues, December 1, 2020

A law book with a gavel – Employment Law

Have you seen the 2019 viral video and articles about the young African American wrestler being told by a Caucasian referee that he either had to cut off his locs or forfeit the match? Or the resulting public outcry and negative media attention the referee and school received?

Since 2019, CROWN Act legislation has been gaining momentum. The CROWN Act stands for “Creating a Respectful and Open World for Natural Hair” and is legislation that specifically prohibits discrimination in employment based on hair texture, protective hairstyles – including braids, locs, twists, and bantu knots – and other cultural hair stylings such as extensions, hair ornaments, and head wraps.  The natural hair movement was created to counter the problem of minority employees, primarily African Americans, feeling compelled to change their natural hair styles or texture in order to abide by their workplace’s view of professional appearance.  

On October 23, 2020, Pittsburgh enacted a CROWN Act and in doing so followed several other states and cities, including California, New York, Washington State, Colorado, Maryland, Virginia, and New Jersey.  In the Midwest, Illinois, Michigan and Ohio are currently considering passing CROWN Acts. 

At the federal level, in September 2020, the U.S. House of Representatives passed a CROWN Act, which is now awaiting review by the Senate. 

Even if a CROWN Act is not enacted in your state or locale, employers should proactively review their workplace rules regarding appearance and hair styling to limit their exposure to discrimination claims, including those based on race, religion, national origin and gender. 

The U.S. Equal Employment Opportunity Commission has long taken the position that workplace rules about professional appearance that disproportionately affect employees in a protected class may give rise to Title VII discrimination claims. Employers should heed the following:

  • Eliminate workplace rules restricting hairstyles whenever possible.  Even neutral policies that require employees to keep hair neat, clean, kempt or tidy may be discriminatory if they are enforced in a way that prohibits employees who are minorities from wearing their hair naturally.
  • Where it is necessary to have hairstyle policies, ensure that any restrictions are rooted in legitimate health and safety justifications that are backed by objective evidence. The policy cannot restrict hairstyles associated with different cultures due to a “corporate image,” “customer preference,” or unfounded and stereotypical concerns about health or cleanliness. 
  • Any policies addressing hairstyles should be in writing and distributed to all employees.  The policy should expressly inform employees that they may request reasonable accommodations for hairstyles of religious significance. 
  • All policies should be enforced consistently amongst all employees.  For example, if all employees must tie their hair back if it is longer than their shoulders, this rule should be applied across the board regardless of the employees’ demographics (e.g. race, gender, national origin) and hair (e.g. locs, or fine blonde hair).
  • Employers should train managers on anti-discrimination laws and company expectations regarding hairstyles and remind them that if in doubt to immediately involve HR. 

In reviewing policies, changes to your policies and addressing any potentially problematic employee issues, make sure to work with trusted legal counsel, who is experienced in labor and employment law issues.

U.S. House of Representatives Passes Pregnant Workers Fairness Act

Contributed by Michael J. Faley, September 29, 2020

On September 17, 2020, the House voted 329-73 to pass the Pregnant Workers Fairness Act.  The bill seeks to clarify the law and require employers to make reasonable accommodations for employees impacted by a known pregnancy-related limitation.  Like the Americans with Disabilities Act, the bill calls for an interactive process between employers and pregnant workers to develop proper reasonable accommodations. The bill’s report states that such accommodations could possibly include, for example, providing seating, water, closer parking, properly sized uniforms and safety apparel, light duty, and extra break time to use the bathroom, eat and rest.

The bill comes as the number of pregnancy discrimination complaints has dramatically increased over the last two decades and many employers have faced confusion and uncertainty due to recent court rulings and inconsistent state and local laws. Most notably, in 2015, the U.S. Supreme Court held in Young v. UPS that plaintiffs who bring claims under the federal Pregnancy Discrimination Act can claim damages if they were denied accommodations that their employer granted to other workers. Since then, several major companies, including Walmart, Amazon, and Google among them, have contended with expensive pregnancy discrimination lawsuits from their employees and the negative press that comes with it. At the same time, workers’ rights groups have never been fully comfortable with the outcome of the Young decision as many argue that it imposes an unduly high burden upon an employee to prove her case.  

The Pregnant Workers Fairness Act is now being touted as a significant compromise between businesses and their workers. According to the U.S. Chamber of Commerce, who has voiced its support, the “bill would provide pregnant employees with important workplace protections while also making sure employers have clear and flexible options to ensure pregnant employees can remain at work for as long as they wish to do so.” 

The U.S. Senate will probably wait until after the election to take up the bill.

Evaluating Layoff Decision Criteria in the Wake of Bostock

Contributed by Steven Jados, July 29, 2020

Gavel and scales of justice.

Layoffs have become a reality for many businesses and employees in recent months, and this unfortunate trend seems likely to continue as we head toward the fall and winter months. The U.S. Supreme Court’s recent decision in Bostock v. Clayton County highlights additional considerations—beyond simply protecting LGBT employees—that businesses must factor into decisions regarding which employees to layoff, and which to retain.

As we previously wrote, the Supreme Court’s Bostock decision essentially held that the anti-discrimination protections of Title VII of the Civil Rights Act of 1964 extend to LGBTQ employees. But the way that decision was reached—particularly its focus on how discrimination affects individuals, as opposed to broader groups—is instructive in terms of analyzing whether termination decisions, in the context of layoffs or otherwise, are unlawfully discriminatory.  

The Court gave this hypothetical:  “Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing ‘because of sex’ if the employer would have tolerated the same allegiance in a male employee.” That example illustrates, among other things, that simple binary analyses may not be sufficient to determine whether employment decisions are discriminatory—and that combinations of protected characteristics (sex, race, religion, etc.) and non-protected characteristics (affinity for a certain sports team) can be the basis for viable claims of unlawful discrimination. 

With that in mind, employers attempting to analyze whether layoff criteria are discriminatory cannot simply compare men to women, or older employees to younger employees.  Instead, subgroups and intersections must also be considered.  Employers must ask—for example—whether layoff decisions unfairly affect women over a certain age as compared to men of that age, or whether layoff decisions unfairly affect employees of one race who are unmarried as compared to employees of a different race who are unmarried. 

Simply put, in the wake of Bostock, employers should conduct a deeper analysis than they previously might have in order to determine whether termination decisions implicate the intersection of protected and non-protected characteristics—or multiple protected characteristics. And questions regarding layoff decision criteria and concerns about potential liability should be directed to experienced legal counsel.  

U.S. Supreme Court Issues Landmark Decision Providing Discrimination Protections to LGBTQ Workers

Contributed by John Hayes, June 15, 2020

Judge’s Supreme Court gavel with law books

On June 15, 2020 the United States Supreme Court handed down a momentous decision ruling that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects gay and transgender employees from workplace discrimination. The decision consolidated three cases where the employees were terminated from their jobs: two separate cases involving the terminations of gay employees; and one case involving the termination of a transgender employee.

The vote was 6 to 3, with Justice Neil M. Gorsuch writing the majority opinion. He was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Justice Alito wrote a dissent joined by Justice Thomas, and Justice Kavanaugh wrote a separate dissent.

Title VII bars employment discrimination based on race, religion, national origin and sex. The question for the justices was whether discrimination “because of sex” applies to gay and transgender workers. While most federal appeals courts interpreted Title VII to exclude sexual orientation discrimination, both the Second Circuit Court of Appeals (in New York) and the Seventh Circuit Court of Appeals (in Chicago) had previously ruled that discrimination based on sexual orientation is a form of sex discrimination. 

Writing for the majority, Justice Gorsuch stated:

An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

… 

In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee.  We do not hesitate to recognize today a necessary consequence of that legislative choice: an employer who fires an individual merely for being gay or transgender defies the law.

Currently 22 states, including Illinois, have their own laws prohibiting job discrimination based on sexual orientation or gender identity.  While these laws remain in force, the Supreme Court’s ruling means federal law now provides similar protections for LGBTQ employees in the rest of the country.

Employers throughout the United States must now be aware that federal employment law (noting that Title VII covers only employers with 15 or more employees) prohibits discrimination against gay and transgender employees. The upside is that employers will no longer have to navigate inconsistent laws that vary from state to state and it will also likely make employee training easier and more consistent for employers operating in multiple states. Employers should update their discrimination and harassment policies to make sure gay and transgender employees are included in anti-discrimination protections.

It should also be noted that, for most employers, attempting to justify an employment action against gay or transgender employees on religious grounds will not be a successful avenue of defense.  The so-called “ministerial exemption” is very narrowly tailored to cover only churches and religious institutions, and applies only to employees performing a “ministerial” role within the institution.   

The takeaway for the vast majority of employers is that it is now crystal clear that Title VII’s prohibitions on discrimination based on sex include gay and transgender individuals. 

California Amendments on Hairstyle-Related Discrimination Will Likely Have Broader Effect

Contributed by Steven Jados, July 19, 2019

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

The state of California recently passed legislation that amends the definition of race under the California Fair Employment and Housing Act (the California State statute that prohibits employment discrimination, among other things) to include “traits historically associated with race, including but not limited to, hair texture and protective hairstyles.”  The legislation defines “protective hairstyles” to include, without limitation, hairstyles such as “braids, locks, and twists.”  In passing this legislation, California’s Legislature made clear that the amendment was directed toward addressing persistent, racist norms that certain hairstyles associated with black people are inferior or unprofessional. The amendment is effective January 1, 2020, and several other states are considering similar measures. 

Along similar lines, the New York City Commission on Human Rights issued lengthy legal enforcement guidance relating to hair grooming policies earlier this year. The NYC Commission’s guidance provides an extensive discussion of natural hair textures and hairstyles associated with black people, and the various ways in which discrimination based on hair textures and hairstyles has occurred in the past and present.   

All of this is significant to employers, nation-wide, because even though the jurisdictions that have expressly recognized hairstyle discrimination as a form of race discrimination are limited, courts and governmental agencies across the country are likely to accept hairstyle discrimination as a cognizable theory of discrimination–particularly as more and more light is shed on this issue through actions like those of the California Legislature and the NYC Commission.  

With that in mind, employers must ensure that their managers and decision-makers are aware of this issue, and trained to ensure that discrimination based on hair textures and hairstyles associated with particular races, religions, and other legally-protected categories of employees does not occur.  It is also critical for employers to examine their grooming and dress code policies that cover hairstyles to ensure that such policies are strongly rooted in non-speculative safety and health concerns.  Such policies must not have a tendency to discriminate against natural or other hairstyles commonly associated with black people or any other racial or cultural group (e.g., twists, braids, cornrows, Afros, and hair kept in an otherwise natural state). In particular, employers should not impose a “neat and orderly” hair grooming policy if such a policy prohibits, for example, twists or cornrows, under the presumption that such hairstyles are inherently messy or unkempt. 

The take-away for employers is, as the NYC Commission stated, that an “employee’s hair texture or hairstyle generally has no bearing on their ability to perform the essential functions of a job.”  

Missouri Supreme Court Opens New Door To LGBTQ Protections Under The Missouri Human Rights Act

Contributed by Brian Wacker, March 1, 2019

gavel and scales of justice

In a pair of rulings handed down on Tuesday, the Missouri Supreme Court expanded the reach of the Missouri Human Rights Act (“MHRA”) to encompass, under certain circumstances, LGBTQ individuals and additional types of evidence that can support MHRA discrimination and retaliation claims. Both cases – Lampley, et al v. Missouri Comm’n on Human Rights, et al and R.M.A., et al v. Blue Springs R-IV Sch. Dist., et al – should have a significant impact on employers in Missouri and how they evaluate the risks of employment actions against LGBTQ individuals moving forward.

By its text, the MHRA makes it unlawful for an employer to discriminate or retaliate against an employee with respect to compensation, terms of employment, or privileges of employment because of that employee’s race, color, religion, national origin, ancestry, disability, age, or sex. The MHRA does not expressly prohibit discrimination or retaliation based on an employee’s sexual orientation. Missouri courts have interpreted the MHRA accordingly.

In Lampley, the complaining employee was gay, but his sexual orientation was not the issue presented to the court. Instead, the plaintiff filed a Charge of Discrimination complaining that his employer, the Missouri Department of Social Services, subjected him to sex discrimination and retaliation, which is prohibited under the MHRA. The plaintiff asserted he was subjected to sex discrimination and harassment at work because “he does not exhibit the stereotypical attributes of how a male should appear and behave” and that other similarly-situated co-workers (i.e., non-gay co-workers who exhibited stereotypical attributes) were treated differently.  He also complained that he received lower performance evaluations at work as retaliation for his complaints about the alleged harassment. His co-worker and co-plaintiff also filed a Charge of Discrimination, complaining that she was discriminated against based on her association with him. 

The court in Lampley distinguished claims of discrimination based on sex-based characteristics from discrimination based on sexual orientation.  According to the court, the plaintiff’s sexual orientation was “merely incidental” to his sex discrimination complaint. Since the plaintiff did not actually allege he was discriminated against based on his sexual orientation, he could pursue his claims under the MHRA since “stereotyping” can give rise to an inference of discrimination against a member of a protected class, and is considered an unlawful hiring practice by the Commission’s own regulations. 

Whether intended or not, it is easy to see that the court’s ruling in Lampley now provides LGBTQ employees (and their attorneys) a clearer path to pursue discrimination and retaliation claims under state law, framing their claims as sex-based rather than sexual orientation-based. This ruling, coupled with the court’s contemporaneous ruling in R.M.A., in which the court vacated a lower court’s dismissal of a transgender student’s MHRA sex discrimination claim against his school for refusing him access to the boys’ restrooms and locker rooms, constitutes a clear victory for LGBTQ advocates.   

The Missouri Supreme Court sent a message on Tuesday with regard to LGBTQ rights. Employers in Missouri should take heed. 

EEOC Actively Enforces Equal Pay Violations

Contributed by Jonathon Hoag, November 28, 2017

The EEOC’s Strategic Enforcement Plan (SEP) for Fiscal Years 2017-2021 identified “Equal Pay” as a priority area that demands focused attention. The EEOC’s recent press releases show it is actively fulfilling this strategic mission.

gender equality

Gender equality scale

In the third scenario, the EEOC obtained a judgment against a pizza restaurant for violating the Equal Pay Act. Two high school friends-one male and one female-applied to be “pizza artists” and both were hired. However, the female applicant received $0.25 less an hour in starting pay. When she realized this discrepancy, she contacted the restaurant to complain. In response, the restaurant withdrew the offers of employment to both individuals. The EEOC’s attorney referenced the vast amount of recent news related to sexual harassment and stated unequal pay is simply another form of sex discrimination in the workplace. Further, the EEOC stressed that it will continue to thoroughly investigate and enforce equal pay requirements.

Bottom Line

The overwhelming media coverage of sexual harassment and unequal treatment in the workplace reinforces that employers must make equal treatment a top priority. Periodic review of policies and practices, with attention to pay policies, remains critical to limit employer exposure to lawsuits alleging unequal pay or treatment.

Opioids in the Workplace

Contributed by Michael Wong, November 3, 2017

One of the first questions I ask when providing drug and alcohol training to managers, supervisors and employees is “What is the most commonly used illegal drug?” Typically, the response that I get will be alcohol (albeit not illegal) or marijuana. What most do not realize until the training is that prescription drugs, in particular opioids, are the most commonly abused illegal drug. Prescription opioids include hydrocodone, oxycodone, morphine, codeine and fentanyl, while illegal opioids include heroin.

J0337282Opioid use in the United States has started to take on a whole new form and is now commonly referred to as the opioid epidemic. Illinois has not escaped the opioid epidemic; in 2016 there were 2,278 drug overdose deaths of which over 80% (1,826) were opioid related. The number of opioid related deaths in 2016 was an increase of over 30% of the opioid related deaths in 2015 and an increase of over 70% of the number of opioid related deaths in 2013.

In looking at these numbers, it is important to understand that these are only the deaths – not the actual number of individuals using or abusing opioids. In a recent study by the National Safety Counsel, over one in three Illinois residents (35%) reported being impacted by opioid/heroin use by knowing someone (self, family/friend, co-worker/co-workers’ family, or neighbor/neighbor’s family) that started using opioids/heroin, became addicted to opioid/heroin, survived an opioid/heroin overdose or had died from an opioid/heroin overdose. Indeed, one issue with the opioid epidemic is that the gateway to opioid use does not always come from illegal activities, but can start out with a legitimate legal prescription. When there is a valid use for a prescription drug, an individual can feel like they are not doing anything wrong and their use can quickly turn into a slippery slope of addiction, activities that negatively impacts their work performance and potentially illegal activities. As a result of this, the opioid epidemic does not discriminate and can be found across all demographics, industries and positions.

One of the concerns with opioids for employers is that it is more difficult to tell if someone is under the influence or using opioids or heroin than other more traditional drugs. For instance, opioids and heroin do not come with symptoms or indicators that are easy to perceive like with alcohol – a smell, shaking hands and movements, and behavior changes; or with marijuana – a smell, red eyes, delayed reaction time, anxiety, and lack of coordination. With opioids, it is often difficult for employers to make the connection between an employee appearing groggy, sleepy or forgetful in the workplace to being linked to drug use. Indeed, what employers will typically see, if anything at all, is a gradual decline in an employee’s attendance and performance, until the employee loses their job or stops coming to work altogether.

The traditional tool of employers to identify and prevent drug and alcohol use within the workplace is drug testing. Pre-hire drug testing can be effective in preventing illegal opioid users from joining the workforce. However, drug testing is not always effective where the opioid user has a legal prescription or where the individual is not yet an opioid user. Reasonable suspicion drug testing can also be effective, but first requires reasonable suspicion of opioid use which can be difficult to identify.

So what does this leave? First and foremost, employers should re-evaluate their drug policies and testing procedures and understand the potential legal implications. For example, drug testing can be modified to test for legal prescription medications, but in order to avoid a violation of the ADA the applicant or employee must be able to provide an explanation for the positive drug test, such as a prescribed medication. Additionally, employers must realize that even if the employee is using prescription medication, there may be an underlying medical condition that they need to be aware of to avoid any kind of disability discrimination claim.

Next, employers should consider questioning its health care benefit carrier and workers’ compensation carrier on what actions they are taking to address the opioid epidemic and collaborating with them on any specialized programs or options for addressing. This can include learning about whether the carrier has programs for the conservative use and risk of prescription opioids, an opioid management program and/or a prescription benefit management program, which can help in preventing prescription medication abuse and identify the abuse of prescription medications. In doing so, employers should also consider investing in an employee assistance program (EAP), which can help employees avoid or address addiction.

Another investment that can pay dividends is management and employee education. Better training and education for not only management, but also employees regarding the impacts of opioids, how to identify opioid use and how to address opioid abuse. Management training can help make management more aware of how to identify potential issues before they occur and get employees help before it escalates to more serious problems. This includes not only taking into consideration the symptoms of opioid and other drug use, but also recognizing changes in how employees are acting, their performance, their attendance, any recent injuries they have had and any other issues that could indicate drug abuse. Employee training can help employees understand the danger of opioids, how the use of legal use of prescription opioids can lead to addiction, and what steps can be taken to seek assistance. Of course, any training should be tailored to include information regarding the Company’s policies, drug testing, benefit programs and reassurances regarding the Company’s commitment to providing confidential and accessible help and treatment.

Finally, one thing to remember is that despite the high numbers of deaths in 2016 in Illinois, Illinois is still behind many states in its exposure to the opioid epidemic. Indeed, in some places manufacturing employers have found using pre-hiring drug testing was not effective. The reason for this is it significantly increased the number of applicants they have had to go through in order to hire for a position or was making it near impossible to fill their staffing needs due to applicants not returning after learning there was drug testing or applicants consistently failing the drug test.