What is an employer’s risk in terminating an employee who has suffered an injury or becomes disabled and no longer can perform the essential functions of the position?  How can that risk be lowered?

The Seventh Circuit Court of Appeals recently addressed this issue in Conners v. Wilkie, a lawsuit brought by a licensed practical nurse who had worked at a healthcare center operated by the U.S. Department of Veterans Affairs.  Unfortunately, five years after she was hired, Ms. Conners was hit by a car and suffered severe injuries that seriously impeded her ability to perform most of her nursing duties.  Her supervisor initially permitted her to retain her LPN position but radically reduced her responsibilities.  After more than two years in that status, the VA concluded that she could not perform the essential duties of an LPN even with reasonable accommodations.  The VA attempted to work with Ms. Conners on an acceptable reassignment, but those efforts failed.  Over two years after her accident, the VA terminated Ms. Conners’ employment.  She sued and lost on summary judgment.  On appeal, she alleged that the agency violated her rights under the Rehabilitation Act by failing to accommodate her disability.

The Rehabilitation Act borrows the definition of a qualified individual definition from the Americans With Disabilities Act, which has a two-step inquiry:  (1) does the plaintiff have the basic qualifications required for the position, such as educational prerequisites, employment experience, skills or licenses; and (2) can the plaintiff perform the essential functions of the job with or without reasonable accommodations.  To determine whether a job duty is an essential function of the position, courts consider the employer’s judgment, the employee’s written job description, the amount of time the employee spends performing the function, and the experiences of past and current workers.

Ms. Conners claimed that she was able to perform a reduced set of duties after the accident, which demonstrated that she was capable of performing the essential functions of her position.  However, an employer need not create a new job or strip a current job of its principal duties to accommodate a disabled employee.  Ms. Conners alleged that the VA failed to engage in the interactive process to identify reasonable accommodations for her disability.  Because Ms. Conners was unable to prove that she was qualified to perform her LPN job with accommodations, any failure to engage in the interactive process was irrelevant.

While the VA prevailed in this lawsuit, the cost was considerable:  extensive discovery, preparing and responding to cross-motions for summary judgment, and briefing an appeal.  It is unfortunate and sad when an employee, because of an accident or disability, can no longer perform the essential functions of their position.  It is fair to both the employee and the employer to address the employee’s new limitations as early as practicable to determine whether the employee can perform the essential functions of the position with reasonable accommodations.  Allowing an employee to self-limit duties and not perform an essential function of a position for an extended period of time may give the employee the expectation that they are performing the essential functions of the position.  Setting employee expectations is often key to avoiding litigation.

The Centers for Disease Control and Prevention’s (CDC) latest guidance that fully vaccinated people no longer need to wear masks or social distance in many settings raises questions for businesses in retail, hospitality and other settings open to the public. Last week, we discussed considerations for businesses considering relaxing their mask and social distancing policies for employees. Business open to the public may have questions on how the CDC recommendations impact face covering policies they have established during the pandemic.

Businesses who are interested in relaxing mask requirements for customers should consider the following:

  1. Check if state/local emergency orders require customers to wear face coverings in the establishment. If so, then the order controls.
  2. If there are no such applicable requirements, the CDC’s recommendation does not prohibit a business from continuing a policy requiring customers to have face coverings in the establishment, subject to reasonable accommodation obligations and/or the obligation to modify a policy for disabled individuals.
  3. The business may contemplate modifying a policy requiring customers to wear face coverings to only require unvaccinated customers to wear face coverings. Putting aside the practical challenges of reliably identifying vaccination status under these circumstances, such a policy is consistent with the CDC recommendation that unvaccinated people should still wear face coverings.
  4. Where businesses establish such a policy as described above, they may ask a customer who is not wearing a face covering whether they have been vaccinated, so long as there are no state or local laws prohibiting businesses from inquiring about vaccination status or treating individuals differently based on vaccination status. While the Department of Justice (DOJ) has not provided guidance on whether this would be a medical inquiry under Title III of the ADA, the Equal Employment Opportunity Commission (EEOC) has issued guidance that such an inquiry is not prohibited under Title I of the ADA. However, requiring proof of vaccination is not recommended due to legal uncertainties on whether such documentation is permitted under Title III of the ADA.

If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team.

 

In a surprise move today, CDC followed the lead of the various states that have lifted their masking and physical distancing recommendations. However, CDC’s new recommendations come with a twist. The CDC’s recommendations only apply to fully vaccinated people in non-healthcare settings.  Here’s what your business should consider as it decides whether to “unmask.”

The May 13, 2021 CDC Interim Public Health Recommendations for Fully Vaccinated People states that fully vaccinated people no longer need to wear a mask or physically distance in any non-health care setting (except prisons and homeless shelters and public transportation), except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. According to the CDC, prevention measures (including masks and physical distancing) are still recommended for unvaccinated people.

Employers who are interested in relaxing mask requirements in the workplace should first consider the following.

  • Check state and local laws and orders.  If a state executive order or local order requires employers to have employees wear masks or impose physical distancing requirements, employers should follow those rules.  In addition, keep in mind that some states have their own OSHA rules (e.g., VA, MI, CA, OR) or recently enacted laws such as New York’s Hero Act which we discussed here.  Employers must follow all applicable state and local laws and standards regardless of CDC’s relaxed recommendations.
  • OSHA has yet to come out with new guidance and currently recommends that all employees must continue to follow protective measures such as wearing a face mask and remaining physically distant regardless of vaccination status.  However, this guidance was issued on January 29, 2021, so it is now several months old.  It is unclear whether OSHA will change this guidance given the CDC’s position.
  • Determine whether removing mask and physical distancing requirements makes sense given your employee populations and preferences.  Many employees may be reluctant to return to work without masking and physical distancing rules in place.  Assess whether removing such requirements is likely to help or hurt the effort to return employees to work.  Generally, employers can choose to continue to require masks and physical distancing regardless of vaccination status.
  • Consider how removing mask and physical distancing requirements will impact your customers.  You may also want to maintain a consistent practice across all your locations so that you are not dealing with a patchwork of state and local COVID-19 requirements.  To the extent you decide not to relax your requirements, you may need to accommodate customers who have medical conditions that make wearing a mask unsafe.
  • Consider whether it makes sense to continue to require or encourage physical distancing (regardless of masking) until more is learned, for everyone’s comfort and to avoid isolating unvaccinated individuals who may have protected reasons for being unvaccinated or who may fall into a protected classification, or where any isolation or exclusion may set back diversity efforts.  And, of course, if an individual needs an accommodation in connection with masking for religious or medical reasons, engage in the interactive process.
  • Clarify that fully vaccinated employees and customers are permitted to wear masks or face-coverings.
  • Reinforce that employees must respect employee and customer decisions to wear masks and engage in physical distancing regardless of their vaccination status.
  • Avoid actions that would suggest a correlation between vaccination status and mask wearing and/or employee observance of other COVID-19 safety practices.
  • Consider whether and how the company will monitor whether unvaccinated employees are properly wearing masks and engaging in physical distancing practices.  It is lawful to ask employees if they are vaccinated, however, asking employees why they are not vaccinated may implicate the Americans With Disabilities Act.  To enforce such a rule, employers will need to know who is vaccinated. If such information is gathered, the best practice is to treat this information as confidential. Make sure it is securely maintained with limited access.  Employers may also consider having all employees certify that if they are not fully vaccinated they will continue to wear masks and physical distance.
  • If you choose to relax your mask and physical distancing requirements, make clear that fully vaccinated employees should make their own personal decision regarding whether to wear a mask and physically distance at work.  In this manner, if an employee chooses not to wear a mask, it will be the employee who is disclosing his or her vaccinated status.
  • Consider adopting a formal policy or issuing a communication clarifying the company’s policy and position on these issues so that everyone knows your expectations.
  • If you have a union, consider whether you need to bargain with the union over changes to your COVID-19 policy and practices.

 

Employers are sure to have many questions regarding how this new guidance should impact their COVID-19 policies and practices. Jackson Lewis attorneys look forward to helping you make these decisions.

With COVID-19 infection rates and hospitalizations decreasing, states are slowly loosening restrictions on businesses. For example, Connecticut, New York, and New Jersey announced plans to fully reopen by May 19th  with some constraints remaining in place, including mandatory wearing of masks and social distancing.  All three states have announced significant capacity rollbacks for indoor and outdoor activities.  The capacity rollbacks in these states will affect many businesses as operational needs will increase in the coming months.

What operational challenges should employers anticipate as they fully reopen?

Employers, particularly those who have allowed their employees to work remotely for the duration of the pandemic, can expect to face some resistance from employees as they begin to require those employees to return to the office. Some employees may be protected by local, state, or federal law, depending on the reason for their refusal to return, and others may be entitled to leave and/or certain accommodations.

As such, employers need to be strategic in their application of their reversion to ‘pre-pandemic’ operations.  In addition to ensuring that the workplace is compliant with CDC and OSHA guidelines,  employers may need to utilize the interactive process and analyze each situation on a case by case basis to ensure that they meet compliance obligations. Employers should coordinate their operational approach in such a way to ensure continuity of business while mitigating the risk of potential operational issues.

Jackson Lewis attorneys are available to guide businesses as they transition to pre-pandemic operations or their new normal.

Employee question of the day for HR: “I need time off because I’m donating a kidney.”  You’re probably wondering: “How do I respond to this request? Is this incredibly generous employee entitled to protected leave?”

Whether organ donation qualifies for federal Family Medical Leave Act (“FMLA”) leave is typically dependent on whether there is continuing treatment or an overnight stay in the hospital.  But effective on or about June 26, 2021, if you are a covered employer under the FMLA, the employee is eligible for FMLA, and the employee works in Pennsylvania, then the answer is yes! Last week, Pennsylvania Governor Tom Wolf signed the Living Donor Protection Act (“LDPA”) into law, adding Pennsylvania to a growing list of states providing statutory leave to employees who donate all or part of an organ or tissue.

Specifically, the LDPA requires FMLA employers to afford FMLA-eligible employees who are living organ donors with FMLA leave and protections so they can take time off work to undergo preparation for and donation of an organ or tissue, and to recover from the surgery.  The LDPA also requires employers to provide similar leave for an eligible employee to care for a spouse, child, or parent with a serious medical condition for the preparation and recovery necessary for surgery related to organ or tissue donation, or if the spouse, child, or parent is the donor.

For questions regarding this new form of leave in Pennsylvania, please contact your JL attorney or a member of the DLHM practice group.

Last week, President Biden encouraged employers to pay employees for time off to get vaccinated against COVID-19 and highlighted the tax credits available for employers with less than 500 employees. The American Rescue Plan Act of 2021 (ARPA) signed by the President on March 11, 2021 continued the tax credits available under the Families First Coronavirus Response Act (FFCRA) for covered employers who voluntarily decide to provide “qualified” paid sick leave or paid family leave wages to their employees through September 30, 2021.  As discussed in our March article, employers can receive the tax credit for providing leave for certain qualifying reasons.  Those reasons include, among other COVID-related reasons: (1) obtaining a COVID-19 immunization and (2) recovering from an injury, disability, illness or condition related to COVID-19 immunization.

On the same day as President Biden’s statement, the IRS issued this Fact Sheet providing further details about the tax credits available under the ARPA including information about how employers may claim the credit for paid leave if they choose to provide it for the reasons covered under the ARPA including for employees to obtain or recover from COVID-19 vaccinations.

While paid time off under the federal ARPA is optional for employers, some states including New York, require employers to provide employees with paid time off for COVID-19 vaccinations. Last week, Chicago joined the list of jurisdictions legislating vaccination pay requirements. Chicago’s ordinance includes pay obligations for employers who mandate vaccinations and requires other employers to allow employees to use accrued paid time off to obtain vaccinations. Employers considering pay obligations for time off from work for COVID-19 vaccination should also consider state and local paid sick leave laws which may cover time off for preventative care that would include vaccinations.  Finally, state and federal wage and hour laws may impact whether pay is required for time spent receiving a vaccine depending on the employee’s exempt/non-exempt status, the timing of the vaccination, and whether the vaccine is required for the employee’s job.

Jackson Lewis attorneys are closely monitoring updates and guidance in this area and are available to assist employers in preparing policies and procedures related to COVID-19 paid time off.

 

The COVID-19 Supplemental Paid Sick Leave statute was signed into law a month ago and, despite a FAQ issued by the California Labor Commissioner, employers were faced with uncertainty as to whether their employees’ leave requests qualified under the statute.  Fortunately, the Labor Commissioner has updated its FAQs to provide further clarity to employers. Read more here.

The Washington State Legislature has temporarily amended the state’s Paid Family and Medical Leave (PFML) Act to create pandemic leave assistance grants for certain employees and employers. Employees and employers cannot apply for these grants until August 1, 2021. This amendment expires on June 30, 2023. Read more about these grants.

The new year brought several important changes to the California Family Rights Act (CFRA). One key change that employers should be aware of is the expansion of the scope of individuals who qualify as “family members” under the law.

The CFRA allows eligible employees to take up to twelve weeks of protected leave for reasons that include caring for a family member with a serious health condition.  Until this year, the only family members for whom an employee could take CFRA leave were a spouse, registered domestic partner, parent, and minor or dependent adult child.

Read the full article at Jackson Lewis California Workplace Law Blog.