The Equal Employment Opportunity Commission (EEOC) issued new technical assistance document (“TAD”), “Visual Disabilities in the Workplace and the Americans with Disabilities Act,” addressing how the Americans with Disabilities Act (ADA) applies to job applicants and employees with visual disabilities. Like the technical assistance the EEOC published earlier this year on hearing disabilities in the workplace, the EEOC provides a series of questions and answers as well as example workplace scenarios involving individuals with visual impairments. In particular the TAD addresses the following:

  • when an employer may ask an applicant or employee questions about a vision impairment and how an employer should treat voluntary disclosures;
  • what types of reasonable accommodations applicants or employees with visual disabilities may need;
  • how an employer should handle safety concerns about applicants and employees with visual disabilities; and
  • how an employer can ensure that no employee is harassed because of a visual disability.

The TAD is not binding law but reflects the EEOC’s enforcement position on topics informative for all employers navigating their obligations under the ADA.

The TAD provides insight into visual disabilities, and how they may trigger ADA obligations. For example, the EEOC explains that not everyone who wears glasses is visually disabled. For individuals who wear “ordinary eyeglasses or contact lenses,” the ADA directs the employer to assess their visual impairment as it is corrected by the lenses. In addition, the EEOC identifies potential accommodations for individuals with visual disabilities, such as use of assistive technology like text-to-speech software, braille, allowing the use of guide dogs in the work area, ambient adjustments (such as brighter office lights), larger print, or training and test modifications to accommodate the visual impairment. The TAD includes an extensive list of potential assistive or accessible technology or materials as well as other potential strategies for accommodating individuals with visual disabilities in the workplace.

The EEOC also reminds employers that in some instances algorithmic or AI tools may “screen out” individuals with vision disabilities even though they are able to do the job with or without reasonable accommodation. For example, if an AI assessment’s accuracy is reduced when an applicant has a visual disability, the employer may need to consider an alternative assessment. The EEOC discusses “promising practices” that employers can take to ensure that AI tools do not disadvantage individuals with disabilities.

The EEOC also addresses when an employer may ask an applicant or employee questions about a vision impairment. The EEOC reminds employers that the ADA’s rules about disability-related inquiries and medical exams apply to all applicants and employees regardless of whether they have an ADA disability. “An employer cannot require an individual to take a vision test with uncorrected vision or meet a vision standard with uncorrected vision unless that test or standard, as used by this employer, is shown to be job-related and consistent with business necessity.”

The TAD provides a detailed discussion of the ADA rules regarding medical inquiries and exams at the pre-offer, post-offer and employment stages with examples involving vision impairments. At the pre-offer stage, for example, the EEOC reminds employers that they cannot ask an applicant whether they have a condition that affects their vision or may have caused a vision impairment but an employer may ask an applicant questions pertaining to the ability to perform job functions with or without reasonable accommodation such as the following:

  • whether the applicant can read labels on packages that need to be stocked;
  • whether the applicant can work the night shift; or
  • whether the applicant can inspect small electronic components to determine if they have been damaged.

The EEOC’s TAD also discusses how employers can address safety concerns. The EEOC’s position is that employers may exclude individuals with visual or other disabilities from a job for safety reasons only when the individual poses a direct threat to the employee, co-workers or others. If an employer reasonably believes the employee cannot safely perform the essential functions of the job (because of a visual or other impairment), the employer may conduct an individualized assessment of that employee’s ability to safely perform the essential functions of the job. That determination must be made based on reasonable medical judgment. If an employer’s vision-related job requirement is required by safety-related federal law or regulation, however, the EEOC explains that qualification standard will be a permissible business necessity under the ADA. The EEOC reminds employer to carefully review any applicable law including any potential waivers or exceptions that may apply.

It is important to also keep in mind any state or local laws that may provide protections in addition to those available under the ADA. If you have any questions about navigating your obligations under the ADA, please reach out to a Jackson Lewis lawyer.

While students are enjoying the dog days of summer, California employers may want to review leaves available to parents and caregivers before the school year begins.

Just as there are considerations when employing minors, there are also leave entitlements employers should be aware of when employing parents and caregivers.

Under the Labor Code, “Parent” is defined as “a parent, guardian, stepparent, foster parent, or grandparent of, or a person who stands in loco parentis to, a child.”

Learn more here.

A new Louisiana law goes into effect on August 1, 2023 requiring employers to provide time off from work for genetic testing and cancer screening.

Employer Requirements

The new act requires employers in Louisiana to provide employees a one-day leave of absence from work to obtain genetic testing or for cancer screening as long as it is medically necessary.

­What Will be Considered to Be “Medically Necessary”?

  • “Medically necessary” is defined as healthcare services that are in accordance with generally accepted evidence-based medical standards by most physicians or independent licensed practitioners “within the community of their respective professional organizations to be the standard of care.” 
  • The act also states that to be “medically necessary,” services being provided must be “reasonably necessary to diagnose, correct, cure, alleviate, or prevent the worsening of a condition or conditions that endanger life, cause suffering or pain, or have resulted or will result in a handicap, physical deformity, or malfunction, and those for which no equally effective and less costly course of treatment is available or suitable for the recipient.”
  • Services that are experimental and not approved by the Federal Drug Administration are not considered medically necessary.  Nor is an investigational or cosmetic surgery.

What is Protected Information? 

“Protected genetic information” means “information about an individual’s genetic tests, the genetic tests of an individual’s family members, or the occurrence of a disease, or medical condition or disorder in family members of the individual.”

Employee Obligations

Employees should give at least fifteen days’ notice to the employer prior to the leave and to make a reasonable effort to schedule the leave so as not to cause undue disruption of the employer’s operations. Employees are also required to provide documentation confirming the performance of the genetic testing and/or cancer screening.  Of course, employees are not required to disclose the results of the screening.  Nor should an employer inquire about results of genetic or cancer testing under the federal Genetic Information Nondiscrimination Act. 

Is the Leave Paid?

Employers are not required to pay for the time off necessary for genetic testing and/or cancer screenings.  The employee may elect, however, to substitute any accrued paid time off that the employer provides.  The act is silent as to whether the employer can require an employee to use paid time off for the leave. 

When Is the Act Effective?

The Act is effective on August 1, 2023.

Don’t Forget about GINA.

Under Title II of the Genetic Information Nondiscrimination Act (GINA), it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts employers from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.

What Should Employers Do Now?

Employers will be required to post a notice that will be prepared by the Louisiana Workforce Commission that sets forth the requirements of the act.  Employers should be on the lookout for the poster from the Louisiana Workforce Commission and review their policies. 

Jackson Lewis attorneys are available to assist employers in administering their leave programs and complying with the myriad of state laws.  Please contact your Jackson Lewis lawyer with any questions.

Starting on August 7, 2023, Colorado employees will be able to use paid sick leave for additional reasons under the Healthy Families and Workplaces Act (HFWA). Governor Jared Polis signed Senate Bill 23-017 into law on June 2, 2023, and it is expected to become effective on August 7, 2023.

Previously, the HFWA permitted employees to use up to 48 hours of paid sick leave per year for reasons related to an employee’s or an employee’s family member’s illness, injury or health condition, to obtain services related to being a victim of domestic abuse, sexual assault, or harassment or if the employee’s place of business or the employee’s child’s school or place of care closed due to a public health emergency. Starting August 7, 2023, Colorado employees can use paid sick for the following additional reasons:

1. To grieve, attend funeral services or a memorial, or deal with financial and legal matters that arise after the death of a family member;

2. To care for a family member whose school or place of care has been closed due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected occurrence or event that results in the closure of the family member’s school or place of care; or

3. The employee needs to evacuate the employee’s place of residence due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected occurrence or event that results in the need to evacuate the employee’s residence.

Employers will need to notify employees of their right to use paid sick leave under these additional circumstances.  Employers should update their policies and post the Colorado Department of Labor and Employment updated poster.

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Supplemental paid leave is no longer available for COVID public health emergency reasons.

During the COVID-19 public health emergency, employees could receive up to 80 hours of supplemental paid leave for related reasons, such as the employee’s or a family member’s need to obtain medical services or isolate due to the public health emergency, or if the employee’s or a family member’s place of business closed or the employee’s child’s school or place of care closed due to the public health emergency. The federal public health emergency declaration related to COVID-19 ended on May 11, 2023, and Colorado’s COVID-19 Disaster Recovery Order expired on May 5, 2023. Since there is currently no public health emergency declaration in effect, Colorado employees are not entitled to supplemental paid leave related to a public health emergency as of June 8, 2023.

Jackson Lewis attorneys are available to assist employers in updating their leave policies and administering their leave programs to comply with the myriad of state laws.  Please contact your Jackson Lewis lawyer with any questions.

Beginning May 1, 2026, Maine’s new paid family leave law will allow Maine employees up to 12 weeks of family and medical leave benefits over a one-year period.

Benefits will be financed by a mandatory “premium” based on employee wages of up to 1%, to be split evenly between employee and employer, with each bearing a maximum burden of 0.5% of weekly wages as a premium. Maine employers with fewer than 15 employees will not be subject to the payment of the employer’s portion of the premium, though they will still be obliged to collect and remit the employee portion. While coverage is delayed until the May 1, 2026, start date, Maine employers and employees will begin paying the 1% premium beginning on January 1, 2025.

The program will be administered by the Maine Department of Labor and will cover virtually all employees in Maine, including public employees except for employees of the federal government. Self-employed Mainers will have the option of voluntarily participating in the program, as will tribal governments.

Learn more here.

Connecticut Governor Ned Lamont has signed a new law that will expand the circumstances in which service workers in Connecticut can use state-mandated paid sick leave. The new law goes into effect October 1, 2023.

Since its original passage in 2012, the Connecticut Paid Sick Leave Law has provided a defined set of “service workers” with certain leave entitlements, including paid sick leave accrual at a rate of one hour for every 40 hours worked, up to a maximum accrual of 40 hours per year. The law also required that service workers be permitted to roll over at least 40 hours of accrued, unused paid sick leave per calendar year.

Learn more here.

In a year in which we saw a record number of religious accommodation charges and lawsuits, the Supreme Court has “clarified” the religious accommodation standard that employers and the EEOC have relied upon for more than 46 years.   

In Groff v. DeJoy, a former United States Postal Service (USPS) mail carrier, Gerald Groff claimed that he was unlawfully denied his requested religious accommodation to not work Sundays.  (Some of us remember the days when there was no mail or deliveries on Sunday). The USPS tried to find other carriers to cover Groff’s Sunday shifts, but because of a shortage of rural carriers, it often failed. Groff requested that the USPS exempt him from Sunday work, but the USPS declined, stating that his requested accommodation would lead to undue hardship for the USPS. The Third Circuit majority agreed concluding that exempting Groff from working on Sundays would burden his coworkers, disrupt the workplace and workflow, diminish morale, and damage the USPS’s operations.

Under Title VII of the Civil Rights Act, employers are required to reasonably accommodate employees whose sincerely held religious beliefs or observances conflict with work requirements, unless doing so would create an undue hardship for the employer.  With no statutory definition of “undue hardship”, courts have relied on the Supreme Court’s decision in TWA v. Hardison, 432 U.S. 63 (1977), for the last 46 years to determine the parameters of the term.  In Hardison, the Court statedthat requiring an employer “to bear more than a de minimis cost in order to give [an employee] Saturdays off is an undue hardship.”  

In Groff, a unanimous opinion authored by Justice Alito, the Court changed the test.  According to the Court, it now “understands Hardison to mean that ‘undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business.”  This is a significant change from what the EEOC and courts have stated, and employers have relied upon for years. The Court declined to incorporate the undue hardship test under the Americans with Disabilities Act which requires significant difficulty and expense.   

The Court also declined to determine what facts would meet this new test and remanded the case back to the lower court to decide, setting up what will likely be years of legal battles with courts attempting to apply this new standard.  But the Court did opine that “A good deal of the EEOC’s guidance in this area is sensible and will, in all likelihood, be unaffected by the Court’s clarifying decision.”  According to the Court, “Courts must apply the test to take into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost of an employer.” 

Jackson Lewis attorneys are available to answer questions about the impact of the Court’s decision on employers and to help design and deliver effective training on the accommodation process, update accommodation, anti-harassment, and discrimination policies, and provide advice and counsel on how to navigate potential changes in internal religious accommodation policies.

In 2018, the Michigan legislature adopted, and then within the same legislative session amended, two voter-approved ballot initiatives, one to significantly raised Michigan’s minimum wage and the other to expand employer obligations to provide paid sick leave. In 2022, the Michigan Court of Claims held that the legislature’s actions violated the Michigan Constitution and ordered reinstatement of the ballot initiatives as originally presented.

However, in January 2023, prior to the ordered reinstatement date, the Michigan Court of Appeals reversed that decision, concluding that the legislature did in fact possess such authority. The Michigan Supreme Court has now agreed to hear the matter and decide which version of the law is valid and, in doing so, whether the legislature has the authority under the Michigan Constitution to adopt and amend voter-approved ballot initiatives within the same legislative session. Mothering Justice et al. v. Attorney General and State of Michigan, Appeal No. 165325 (Mich. June 21, 2023).

Find more here.

The Pregnant Workers Fairness Act (PWFA) goes into effect on June 27, 2023. The PWFA requires employers to post a notice describing the various protections under the new law.  On June 27th, employers should remove their old EEOC “Know Your Rights” posters and replace them with the updated version found here. Please reach out to the Jackson Lewis attorney with whom you regularly work if you need help training your managers and updating your policies and forms to comply with the PWFA.