Category Archives: EEOC

EEOC GUIDANCE ON HOW TO NAVIGATE THE PREGNANT WORKERS FAIRNESS ACT

By:       Alexandra (Sasha) Chepov and Oyvind Wistrom

April 24, 2024

On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) issued its final regulation to carry out the Pregnant Workers Fairness Act (PWFA), which went into effect on June 27, 2023. The regulation will go into effect on June 18, 2024.

By way of background, the PWFA requires covered employers to provide a “reasonable accommodation” to a qualified employees’ or applicants’ known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. Notably, the PWFA only applies to accommodations.

As the PWFA applies to private and public sector employers that have 15 or more employees, it is critical that employers understand how to navigate the complexities of the PWFA and the accompanying regulation.

What is a “qualified” employee or applicant under the PWFA?

Under the PWFA, employers are obligated to provide a reasonable accommodation to a “qualified” employee or applicant. A pregnant applicant or employee can be “qualified” in two ways:

  1. The employee or applicant can perform the “essential functions,” or fundamental duties, of the job with or without a reasonable accommodation.
  1. If the employee cannot perform the essential functions of the job with or without a reasonable accommodation, an employee may still be “qualified” under the PWFA so long as:
    • The inability to perform the essential function is “temporary,”
    • The employee could perform the functions “in the near future,” and
    • The inability to perform the essential functions can be reasonably accommodated.

If an employee does not satisfy the criteria above, then they are not protected by the PWFA.

What is a “known limitation” under the PWFA?

Under the PWFA, “known limitation” means the employee or their representative has communicated to the employer that they have a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” While the burden is on the employee to notify their employer of a limitation covered by the Act, they need not use any specific language to do so.

The regulation provides the following examples of a “pregnancy, childbirth, or related medical condition:” pregnancies, vaginal deliveries or cesarian sections, miscarriage, postpartum depression, edema, placenta previa, and lactation.

The regulation also provides that an employer may also need to provide reasonable accommodations for an employee’s or applicant’s known limitations relating to abortion. Further, an employee does not need to be pregnant to be covered by the PWFA’s coverage. The regulation provides that accommodations for an employee’s physical or mental conditions related to, affected by, or arising out of infertility and fertility treatments may be protected under the PWFA, absent undue hardship. However, whether a reasonable accommodation must be provided to an employee undergoing fertility treatments depends on the facts of the case, including whether the infertility treatments are sought by an employee with the capacity to become pregnant for purposes of becoming pregnant.

Similar to the mandate of the Americans with Disabilities Act (ADA), once an employer knows of a limitation covered by the PWFA, the employer should engage in an “interactive process” with the employee or applicant to determine whether a reasonable accommodation can be provided.

What is a “reasonable accommodation” under the PWFA?

As with most federal discrimination laws, a “reasonable accommodation” is a change in the work environment or the manner in which things are typically done at work. Given the evolutionary nature of a pregnancy, generally spanning 40 weeks, a qualified employee or applicant may need different accommodations at various times throughout the pregnancy or after birth.

Whether an accommodation is “reasonable” is largely a case-by-case determination. However, an employer does not have to provide a reasonable accommodation under the PWFA if doing so would cause the employer an “undue hardship.” An “undue hardship” under the PWFA means a significant difficulty or expense.

While there are many accommodations that may exist, the regulation provides the following examples of potential accommodations that may need to be provided to a qualified employee under the PWFA:

  • Providing additional, longer, or more flexible breaks to drink water, eat, rest, or use the bathroom.
  • Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing.
  • Changing a uniform or dress code or providing safety equipment that fits.
  • Changing a work schedule, such as having shorter hours, part-time work, or a later start time (likely to accommodate morning sickness).
  • Temporarily reassigning the employee to a different position.
  • Temporarily suspending one or more essential functions of a job.
  • Offering light duty work or help with lifting or other manual labor.

Notably, employers covered by the PWFA, may be required to provide an employee leave to recover from childbirth or other medical conditions related to pregnancy or childbirth, even if the employer is not covered by the federal Family Medical Leave Act.

Next Steps 

While the passage of these PWFA and the EEOC’s corresponding regulation expand the rights and protections afforded to pregnant employees or applicants, employers now bear the burden of navigating additional requirements and restrictions. The purpose of this informational notice is to provide a brief overview of that provided in the regulation. However, it is not all encompassing.

As the effective date of the regulation corresponding to the PWFA is approaching, employers should consider implementing a policy pertaining to reasonable accommodations for pregnant workers, and revising their current policies that may be affected by the PWFA.

If you have any questions regarding the PWFA or the EEOC’s corresponding regulation, please contact Alexandra (Sasha) Chepov or Oyvind Wistrom at 414-273-3910 or achepov@lindner-marsack.com and owistrom@lindner-marsack.com, or any other attorney that you have been working with here at Lindner & Marsack, S.C.

 

EEOC Issues Update Relating to Artificial Intelligence

By Alexandra “Sasha” Chepov

In recent years, employers have adopted a wide variety of algorithmic decision-making tools to assist them in making employment decisions such as recruitment, hiring, retention, promotion, transfer, performance monitoring, demotion, dismissal and referral. These tools have been increasingly utilized by employers in an attempt to save time and effort, increase objectivity, optimize employee performance and decrease bias.

On May 18, 2023, the EEOC issued guidance clarifying the potential risks employers may face if the artificial intelligence tool being used results in an adverse discriminatory impact under Title VII of the Civil Rights Act of 1964 (“Title VII”). The purpose of the EEOC’s publication is to ensure that the use of new technologies complies with federal EEO law by educating employers, employees and other stakeholders about the application of these laws to the use of software and automated systems in employment decisions.

Definitions:

  • Software: Refers to information technology programs or procedures that provide instructions to a computer on how to perform a given task or function.
    • Many different types of software and applications are used in employment, including automatic resume-screening software, hiring software, chatbot software for hiring and workflow, video interviewing software, analytics software, employee monitoring software, and worker management software.
  • Algorithm: An “algorithm” is generally a set of instructions that can be followed by a computer to accomplish some end. Human resources software and applications use algorithms to allow employers to process data to evaluate, rate, and make other decisions about job applicants and employees. Software or applications that include algorithmic decision-making tools are used at various stages of employment, including hiring, performance evaluation, promotion and termination.
  • Artificial Intelligence (“AI”): Some employers and software vendors use AI when developing algorithms that help employers evaluate, rate and make other decisions about job applicants and employees. Congress has defined “AI” to mean a “machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments.

Employers sometimes rely on various software platforms that incorporate algorithmic decision-making at a number of stages throughout the employment process. For example, resume scanners may be used to prioritize applicants using certain keywords; employee monitoring software may be used that rates employees on the basis of their keystrokes or other factors; “virtual assistant” or “chatbots” may be used to ask candidates about their qualifications and reject those who do not meet pre-defined requirements; video interviewing software may be used to evaluate candidates based on their facial expressions and speech patterns; and testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit” based on their performances on a game or on a more traditional test.

Title VII:

Title VII generally prohibits employers from using neutral tests or selection procedures that have the effect of disproportionately excluding persons based on race, color, religion, sex or national origin, if the test or selection procedures are not “job related for the position in question and consistent with business necessity.” This is called “disparate impact” or “adverse impact” discrimination.

If the use of an algorithmic decision-making tool has an adverse impact on individuals of a particular race, color, religion, sex, or national origin, or on individuals with a particular combination of such characteristics, then the use of the tool will violate Title VII unless the employer can show that such use is “job related and consistent with business necessity” pursuant to Title VII.

Employers that are deciding whether to rely on a software vendor to develop or administer an algorithmic decision-making tool should determine whether steps have been taken to evaluate whether the use of the tool causes a substantially lower selection rate of individuals with a characteristic protected by Title VII. A “selection rate” refers to the proportion of applicants or candidates who are hired, promoted or otherwise selected. A selection rate for a group of applicants or candidates is calculated by dividing the number of individuals hired, promoted or otherwise selected by the total number of candidates in the group.

As a general rule of thumb, the four-fifths rule is used to determine whether the selection rate for one group is “substantially” different than the selection rate of another group. The rule states that one rate is substantially different than another if their ratio is less than four-fifths (or 80%). However, the four-fifths rule may not be appropriate in certain circumstances. For example, smaller differences in selection rates may indicate adverse impact where a procedure is used in making a large number of selections, or where an employer’s actions have discouraged individuals from applying disproportionately on a Title VII-protected characteristic. In any event, the four-fifths rule may be used to draw an initial inference that the selection rates for two groups may be substantially different and prompt the employer to turn to additional information about the procedure or algorithm in question.

If an employer is in the process of developing a selection tool and discovers that use of the tool may result in an adverse impact on individuals of a particular protected characteristic by Title VII, an employer can take steps to reduce the discriminatory impact or select a different tool in order to avoid undertaking a practice that violates Title VII.  Failure to adopt a less discriminatory algorithm that was considered during the development process may give rise to liability.

ADA:

Although not discussed in the EEOC’s May 18, 2023 publication, the EEOC has previously issued technical guidance on the use of AI and discrimination in the workplace under the Americans with Disabilities Act (ADA). The most common ways that an employer’s use of algorithmic decision-making tools could violate the ADA are:

  • Failure to provide a “reasonable accommodation” that is necessary for a job applicant or employee to be rated fairly and accurately by the algorithm.
  • Rely on an algorithmic decision-making tool that intentionally or unintentionally “screens out” an individual with a disability, even though the individual is able to do the job with a reasonable accommodation.
  • Adopt an algorithmic decision-making tool for us with its job applicants or employees that violates the ADA’s restrictions on disability-related inquiries and medical examinations.

Why does this matter? 

Where an employer administers a pre-employment test, it may be liable for any resulting Title VII or ADA discrimination, even if the test was developed by an outside vendor. Similarly, an employer may be held liable for the actions of their agents, which may include entities such as software vendors, if the employer has given them authority to act on the employer’s behalf.

If the vendor states that the tool should be expected to result in a substantially lower selection rate of individuals of a particular characteristic protected by Title VII or the ADA, then the employer should consider whether the use of the tool is job related and consistent with business necessity and whether there are any alternatives that may be implemented that reduce the disparate impact, yet still satisfy the employer’s needs. Even where a vendor is incorrect about its own assessment, and the tool results in either disparate impact or disparate treatment discrimination, the employer could still be liable.

For that reason, employers are encouraged to conduct an ongoing self-analysis to determine if the technology they are using could result in discrimination in any way or whether their employment practices have disproportionately large negative effects on a basis prohibited under Title VII or treat protected groups differently.

EMPLOYER NOT REQUIRED TO OFFER LIGHT DUTY POSITIONS TO PREGNANT EMPLOYEES

By:  Oyvind Wistrom

The Seventh Circuit Court of Appeals in EEOC v. Wal-Mart Stores East, L.P., No 21-1690 (7th Cir. Aug. 16, 2022) recently recognized that an employer has the right to exclude pregnant workers from its light duty work program created for employees injured on the job.  While the case addressed only the exclusion of pregnant workers under the Pregnancy Discrimination Act (PDA) and Title VII of the Civil Rights Act of 1964, the decision may also have implications under the Americans with Disabilities Act (ADA).

Walmart’s light duty program provided that employees with lifting restrictions caused by a work injury could be offered temporary light duty work while they healed.  However, Walmart did not extend its light duty to workers injured off the job or to pregnant workers.  Instead, it required pregnant workers with lifting or other physical restrictions to take a medical leave of absence. The U.S. Equal Employment Opportunity Commission (EEOC) sue Walmart over the policy on behalf of a class of workers who were denied light duty positions during their pregnancy, and the U.S. District Court for the Western District of Wisconsin granted summary judgment for the employer.

On appeal, the Seventh Circuit agreed with the lower court and affirmed the grant of summary judgment.  The panel of three judges determined that Walmart provided a legitimate reason for only offering light duty to workers injured on the job.  The Court noted that “offering temporary light duty to workers injured on the job pursuant to a state worker’s compensation law is a ‘legitimate nondiscriminatory’ justification for denying accommodations … to everyone else, such as individuals not injured on the job, including pregnant women.”  Because the company acted pursuant to a neutral worker’s compensation program that benefited employees injured on the job while limiting its labor costs and exposure to worker’s comp claims, the policy did not violate the PDA or Title VII.

Notwithstanding its ruling, the Seventh Circuit noted that employers that offer light duty to employees with job-related injuries may violate the PDA when they also provide light duty work to other groups of workers, but not to pregnant employees.  For example, if an employer implements a light duty program in which it offers light duty to employees with temporary restrictions from work-related and non-work-related injuries, but specifically excludes pregnant workers from its policy, such a policy would violate the law.  There was no evidence in the record, however, that Walmart offered light duty to workers whose injuries did not occur on the job.

While the case did not expressly address the ADA, it should be noted an employer has an obligation to provide a reasonable accommodation to a worker with a disability.  In this regard, an employer must apply its policy of creating a light duty position for an employee when s/he is occupationally injured on a non-discriminatory basis.  While the Seventh Circuit’s decision only addressed a claim of pregnancy discrimination, the decision would appear to allow employers to restrict its light duty policy to employees with occupational injuries and exclude employees with non-work-related restrictions (including workers with disabilities).  This is especially so where the company’s light duty work program does not have a set number of positions, but rather positions are created, as necessary, for each worker who sustains an occupational injury.

If you have questions or need assistance, please contact the Lindner & Marsack attorney with whom you regularly work.

EEOC EXPANDS ITS COVID-19 GUIDANCE CLARIFYING WHEN COVID-19 MAY BE A DISABILITY

By: David Keating

Throughout the pandemic, the Equal Employment Opportunity Commission (“EEOC”) has continuously updated its COVID-19 Guidance to provide employers with assistance on issues arising under the antidiscrimination laws that it enforces.  Yesterday, the EEOC added a new section to clarify under what circumstances COVID-19 may be considered a disability under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973.

EEOC’s new questions and answers focus broadly on COVID-19 and the definition of disability under Title I of the ADA and Section 501 of the Rehabilitation Act which both address employment discrimination.  The updates also provide examples illustrating how an individual diagnosed with COVID-19 or a post-COVID condition could be considered to have a disability under the laws the EEOC enforces.

Workers with disabilities stemming from COVID-19 are protected from employment discrimination and may be eligible reasonable accommodations.

As the EEOC notes, the key information includes:

  • In some cases, an applicant’s or employee’s COVID-19 may cause impairments that are themselves disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability.
  • An applicant or employee whose COVID-19 results in mild symptoms that resolve in a few weeks, with no other consequences, will not have an ADA disability that could make someone eligible to receive a reasonable accommodation.
  • Applicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. They are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer.  Employers, however, can choose to do more than the ADA requires.
  • An employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition and prevents an employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.

Based on this new guidance, employers need to consider each situation on a case-by-case basis and avoid assuming that simply because the employee’s medical condition and/or need for an accommodation is caused by the COVID-19 virus that it falls outside the scope of the ADA or the Rehabilitation Act.  Please do not hesitate to contact us if you need specific guidance on a particular situation.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any questions about the recent EEOC technical assistance or any other labor or employment issue involving your business, please contact us at any time.

The EEOC Releases Updated Guidance on Mandatory COVID-19 Vaccinations and Related Employment Laws

By: Oyvind Wistrom

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) released updated guidance on the responsibilities and rights of employers and employees related to the COVID-19 vaccine, including mandatory employer vaccination programs.

The publication entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” is available here.  The new EEOC guidance provides information to employers and employees about how mandatory COVID-19 vaccinations interact with the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).

The EEOC guidance confirms that employers are allowed to implement and enforce a mandatory COVID-19 vaccination policy for employees, with certain exceptions and caveats.  Some of the key takeaways from the EEOC include the following:

  • Employers are allowed to require employees to receive an FDA approved COVID-19 vaccine (once it becomes available) as a condition of employment or continued employment.
  • Employers must attempt to accommodate employees who, due to a medical disability under the ADA or sincerely-held religious beliefs under Title VII, decline or refuse to receive the vaccine.
  • If an employer determines, based on objective evidence, that the presence of an unvaccinated employee (i.e., employee who declines or refuses to be vaccinated because of a disability or sincerely-held religious reasons), presents a direct threat to the health and safety of other persons in the workplace that cannot be reduced or eliminated through a reasonable accommodation, the employer can exclude the employee from the workplace.
  • When an employer seeks to exclude an unvaccinated employee from the workplace due to a direct threat presented by his or her presence in the workplace, the employer may not automatically terminate the employee. Rather, the employer must attempt to accommodate the employee if he or she cannot receive the vaccine due to a disability or a sincerely held religious belief. Employers must assess four factors in making this determination: 1) the duration of the risk presented by the unvaccinated employee; 2) the nature and severity of the potential harm presented by the unvaccinated employee’s presence in the workplace; 3) the likelihood that harm will occur; and 4) how imminent that harm is to others in the workplace.
  • In determining whether a reasonable accommodation exists under the ADA, the employer should consider the feasibility of possible reasonable accommodations such as working remotely, transferring the employee to another worksite where he or she can work independently, or possibly placing the employee on a leave of absence. In so doing, the employer should consider the employee’s leave rights under the FFCRA (set to expire on December 31, 2020), both state and federal FMLA, as well as under general employment policies.
  • The administration of a COVID-19 vaccine by an employer (or by a third-party with which the employer has contracted to provide vaccinations) is not a “medical examination” under the ADA because the employer is not seeking information about the employee’s current health status. Requiring a vaccination also does not implicate the Genetic Information Non-Discrimination Act (GINA) because an employee’s genetic information is not being used to make employment decisions and no genetic information is being sought.
  • Although the administration of the vaccine is not a “medical examination” under the ADA, the guidance notes that if a health care provider asks certain pre-vaccination screening questions to ensure there is no medical reason for a person not to receive the vaccine, these questions may constitute a “medical examination” under the ADA because they may solicit information about an employee’s disability. Therefore, any pre-vaccination screening questions that are disability-related must be job-related and consistent with business necessity, and responses should be maintained as confidential.
  • Employers are also permitted to require employees to provide proof that they received a COVID-19 vaccine. Such an inquiry is not a medical examination under the ADA because it is not likely to elicit information about an employee’s disability status.  However, an employer should be careful to ensure that employees do not disclose any medical information beyond proof of the vaccination and they should avoid asking why the employee did not receive the vaccination.

With the first round of COVID-19 vaccines finally becoming available, and with several other possible vaccines on the horizon, employers need to carefully consider whether the implementation of a mandatory vaccination program is the right business decision, or whether the spread of the virus can be ameliorated through other methods or precautions.  The nature of the business, and the amount of interaction that is required between employees, customers, clients, and vendors should help guide the decision-making process of whether a mandatory vaccination program is necessary or appropriate.

If you have any questions about these guidelines or any other matter, please contact  Oyvind Wistrom or your Lindner & Marsack attorney at (414) 273-3910 to seek counsel.

Addressing COVID-19 Workplace Issues: Responding to Employers’ Most Common Questions

By:  Oyvind Wistrom and Sally Piefer

The NBA has suspended play.  The NCAA tournament has been cancelled.  The World Health Organization (WHO) has now declared that the COVID-19 Coronavirus is a pandemic.  Either your business has already been directly or indirectly affected or it inevitably will be affected by COVID-19.  What can you do as an employer?  The following tips should help you navigate the novel issues created by this unprecedented situation.

  1. What if an employee reports to work with flu-like symptoms – what can we do as an employer?

If any employee presents themselves at work with a fever or difficulty breathing, employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat.  Employers must maintain all information about employee illness as a confidential medical record in compliance with the Americans with Disabilities Act (ADA).  If an employee is experiencing these symptoms, the employee should be directed to seek immediate medical evaluation.  It is also recommended that employers train supervisors on how to recognize these symptoms, while stressing the importance of not overreacting to situations in the workplace potentially related to COVID-19 in order to prevent panic among the workforce.

  1. Can we ask an employee to stay home or leave work if they exhibit symptoms of the COVID-19 coronavirus or the flu?

Yes.  The Center for Disease Control (CDC) has made it clear that employees who exhibit influenza-like symptoms at work during a pandemic should leave the workplace and be asked to stay home.  Employees who have symptoms of acute respiratory illness are recommended to stay home until they are free of a fever (100.4º F), signs of a fever, or any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom altering medicines.  Now that the COVID-19 virus has been declared a pandemic by the WHO, the Equal Employment Opportunity Commission (EEOC) has stated that advising workers to go home is not disability-related if the symptoms presented are akin to the seasonal influenza.  An employer may therefore require workers to go home if they exhibit symptoms of the COVID-19 coronavirus or the flu without running afoul of the EEOC’s interpretation of the ADA.

  1. Can an employer take an employee’s temperature at work to determine whether they might be infected?

Maybe.  The ADA places restrictions on the inquiries that an employer can make into an employee’s medical status, and the EEOC considers taking an employee’s temperature to constitute a “medical examination” under the ADA.  The ADA prohibits employers from requiring medical examinations and making disability-related inquiries unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.

The EEOC takes the position during a pandemic that employers should rely on the latest CDC and state or local public health assessments to determine whether the pandemic rises to the level of a “direct threat.”  The assessment by the CDC as to the severity of COVID-19 will likely provide the objective evidence needed for a medical examination.  If COVID-19 becomes widespread, as determined by state or local health authorities or the CDC, then employers would likely be permitted to take an employee’s temperature at work.  However, as a practical matter, an employee may be infected with COVID-19 without exhibiting any symptoms such as a fever, so temperature checks may not be the most effective method for protecting your workforce.

  1. An employee of ours has tested positive for COVID-19. What should we do?

In addition to sending the employee with the positive test home, you should send all employees who worked closely with that employee home for a 14-day period of time to ensure the infection does not spread.  Make sure the affected employee identifies all individuals who worked in close proximity (within six feet) with them in the previous 14 days to ensure you have a full list of those who should be sent home.  When sending the employees home, do not identify by name the infected employee or you could risk a violation of the ADA.  You may also want to consider asking a cleaning / remediation company to undertake a deep cleaning of your affected workspaces. If you work in a shared office building or area, you should inform building management so they can take whatever precautions they deem necessary.

  1. Can an employee refuse to come to work because of fear of COVID-19 infection?

Employees are only entitled to refuse to report to work if they believe they are in imminent danger.  Section 13(a) of the Occupational Safety and Health Act (OSH Act) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.”  This is a relatively high standard that requires a “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”

For an employee to refuse to report for work, the threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short period of time.  Requiring travel to certain areas of the world or requiring employees to work with patients in a medical setting without personal protective equipment at this time may rise to this threshold.  Most work conditions in the United States, however, would not presently meet this threshold.  Each case must be evaluated on its own merits and employers should seek to determine whether their workplace creates imminent danger to employees.

  1. May an employer require a new employee to have a post-offer medical examination to determine their general health status?

Yes, the ADA allows a medical examination of a new employee as long as it is required only after a conditional offer of employment is made.  The medical examination is permitted so long as all entering employees in the same job category are required to undergo the medical examination and the information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record.

Employers may also ask if they are experiencing any symptoms of COVID-19 – fever, cough, shortness of breath or other acute respiratory symptoms.  If the applicant or new employee answers yes, then you can ask them to delay starting for 14 days.  Be sure to maintain the confidentiality of the responses.

  1. May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic?

Yes.  Telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation.  In addition, employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.  An employer is not required to provide telework as an option to all employees, but is recommended that if the opportunity is presented to a certain classification of employees, all other employees in that job classification should similarly be permitted to telework.

8.     During a pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, in the workplace?

Yes.  Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA.  The messages you should be giving to your employees are:

  • Wash your hands often with soap and water for at least 20 seconds. If soap and water are not available, use an alcohol-based hand sanitizer.
  • Avoid touching your eyes, nose, and mouth with unwashed hands.
  • Avoid close contact with others, especially those who are sick.
  • Refrain from shaking hands with others for the time being.
  • Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
  • Clean and disinfect frequently touched objects and surfaces.
  • And, perhaps most importantly, tell employees to stay home if they are sick.

9.     Can we require employees who are sent home or who do not report for work to use accrued PTO time?

Yes.  At least under Wisconsin law, an employer may require employees to use accrued PTO time if they are unable or unwilling to report to work – this is the case even if the employer shuts down a facility and the employee is therefore unable to work.  The only exception in Wisconsin would be with respect to employees who suffer from a serious health condition under the Wisconsin FMLA.  In such cases, an employer is not permitted to mandate that employees use their personal PTO time during the pendency of the Wisconsin approved portion of the FMLA leave (two weeks).  After an employee has used up their two-week allotment of Wisconsin FMLA, an employer can then mandate that PTO be utilized.

  1. As Spring Break is approaching, what questions can I ask about employees’ personal vacations?

You can ask your employees whether they have traveled to any locations the CDC or state health officials have indicated are destinations with a risk of community-spread coronavirus—currently about 30 countries in Europe (along with China, Iran, Japan, Singapore, South Korea, Taiwan & Thailand).  Check the CDC website for a list of current countries (https://wwwnc.cdc.gov/travel).  The CDC recommends that anyone traveling to these countries should stay home for 14 days from the time the employee left the country and to practice social distancing.  Some employers have initiated mandatory time away from work if employees are returning from a country on the CDC list.

You can also ask employees whether they been on a cruise ship.  If on a cruise ship in the last 14 days, the employee should stay home for 14 days if a case of Coronavirus was reported on the ship during the cruise.  Otherwise, it does not appear the CDC is currently recommending any work-related social distancing – unless the person is exhibiting symptoms – fever, cough, trouble breathing.  However, the situation is in constant flux, so you may want to check the CDC website or contact legal counsel for up to date guidance.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any other labor or employment matter involving your business, please either contact Oyvind Wistrom at owistrom@lindner-marsack.com or Sally Piefer at spiefer@lindner-marsack.com, or any other attorney you may work with at the firm.

 

SEVENTH CIRCUIT ISSUES ADA REASSIGNMENT GUIDANCE

By: Kristofor L. Hanson & Christopher J. Saugstad

November 25, 2019

The Seventh Circuit Court of Appeals recently clarified its position concerning reassignment as an accommodation under the Americans with Disabilities Act (the “ADA”). Under the ADA, employers have an affirmative duty to reasonably accommodate an employee’s disability. While engaging in the interactive process to find a reasonable accommodation, in situations where an employee is unable to perform the essential functions of his or her job even with reasonable accommodations, employers are required to evaluate reassignment to a vacant position as an accommodation. Previously, in EEOC v. United Airlines, Inc., 693 F.3d 760, 764 (7th Cir. 2012), the Seventh Circuit explained that the ADA requires employers to appoint disabled employees to vacant positions for which the employee is minimally qualified, unless the reassignment would pose an undue hardship to the employer or there is a bona fide seniority system in place. Pursuant to this decision, employers cannot force the disabled employee to go through a competitive process to be placed into a vacant position as a reasonable accommodation.

On November 15, 2019, the Seventh Circuit revisited the issue of reassignment under the ADA in Ford v. Marion Cty. Sheriff’s Office, No. 18-3217, 2019 U.S. App. LEXIS 34072, (7th Cir. Nov. 15, 2019). Ford worked as a deputy at the county sheriff’s office until her hand was seriously injured in a car accident while on duty. Ford was reassigned to light duty for about a year until she accepted a position as a jail visitation clerk; Ford was given the option to accept the visitation position, resign, or be fired. After Ford’s reassignment, she alleged she suffered disability-based harassment by co-workers, refusals to accommodate her scheduling needs, and several discriminatory promotion denials. Ford brought an action against Marion County for violations under the ADA.

The Seventh Circuit found the district court properly granted summary judgment on Ford’s claim regarding reassignment to the visitation clerk position and explained a “demotion can be a reasonable accommodation when the employer cannot accommodate the disabled employee in her current or prior jobs or an equivalent position.” The Court pointed out EEOC guidance regarding reassignment and demotion states: “An employer may reassign an individual to a lower graded position if … there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation.”

The Court noted that if there had been a vacant position that more closely matched Ford’s previous position, under the ADA, Marion County would have been obligated to reassign her to that position.

Significantly, the Seventh Circuit suggested that Marion County, as the employer, had an obligation to “to canvass available positions and, if a vacant job existed that Ford was qualified to perform with or without reasonable accommodations, to offer it to her.” Employers should review their current process regarding reassignment as a potential reasonable accommodation. Once reassignment becomes a potential accommodation, employers should actively canvas their current vacancies in relation to the disabled employee’s qualifications. If there is a match, the employee should be offered the job. Merely inviting employees, without any employer assistance, to apply for any vacant positions for which they think they may be qualified is insufficient.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law. If you have any questions about the ADA, reasonable accommodation and the possibility of reassignment, or any other labor or employment issue involving your business, please contact us at any time.

GOVERNOR WALKER PROPOSES TO ELIMINATE THE LABOR AND INDUSTRY REVIEW COMMISSION

By:  Jonathan T. Swain

February 13, 2017

In his recently published proposed biennial budget for fiscal years 2018 and 2019, Governor Walker has proposed to eliminate the Wisconsin Labor and Industry Review Commission (LIRC).  LIRC is an independent three member commission appointed by the Governor that currently handles all appeals of Administrative Law Judge (ALJ) decisions for unemployment compensation cases, worker compensation claims, as well as state fair labor standards cases and fair employment cases in the Equal Rights Division and public accommodation cases.  LIRC would be phased out over the next three fiscal years.

Presently, LIRC has the authority to affirm, overturn and remand ALJ decision in these areas.  LIRC decisions are appealable to the State’s circuit courts.

Under Governor Walker’s proposal, Worker Compensation ALJ decisions will be reviewable by the State Department of Administration, while jobless claims and Equal Right Division decisions will be Agency administrators.  In his budget statement, Governor Walker stated that the proposed elimination of LIRC will eliminate “an unnecessary layer of government” and will make this second layer of review decisions occur much more quickly.

Of course, this is a proposed budget and, as such, is subject to negotiation with the legislature and subsequent amendment.  Further, stakeholders in the business, labor and legal community have yet to weigh-in on the Governor’s proposal.  As this issue advances, we will keep you up to date and informed.

THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CHANGES COURSE ON RELEASING EMPLOYER POSITION STATEMENTS TO CHARGING PARTIES

By: Daniel Finerty & Oyvind Wistrom

Employers that have endured the Equal Employment Opportunity Commission’s charge process concerning allegations of discrimination, harassment or retaliation know that an effective, persuasive position statement responding to a charge is critical to securing a successful outcome. For years, employers could be assured that the EEOC would not share its position statement or attachments with a charging party. In doing so, this procedure complied with Section 709(e) of Title VII, which provides:

It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information. Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of this subsection shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than $1,000, or imprisoned not more than one year.

Notwithstanding this statute, the Commission announced a reversal of course, as of January 1, 2016, and advised that it intends to release employer position statements:

EEOC has implemented nationwide procedures that provide for the release of Respondent position statements and non-confidential attachments to a Charging Party or her representative upon request during the investigation of her charge of discrimination. … These procedures apply to all EEOC requests for position statements made to Respondents on or after January 1, 2016. … The new procedures provide for a consistent approach to be followed in all of EEOC’s offices, which enhances service to the public. The procedures will also provide EEOC with better information from the parties to strengthen our investigations.

In contrast to this new practice, the Commission will not share the charging party’s position statement with the employer. While the Commission has recognized that employer EEO-1 reports are confidential under Section 709(e) (“[a]ll reports and information from individual reports will be kept confidential, as required by Section 709(e) of Title VII. Only data aggregating information by industry or area, in such a way as not to reveal any particular employers statistics, will be made public.”), it has not explained this new interpretation or how Section 709(e) permits its one-sided disclosure of employer position statements.

The protections for information and documents deemed “confidential” by an employer is limited. The Commission’s clear delineation of the information it will consider confidential is limited to sensitive medical information, social security numbers, confidential commercial or financial information, trade secrets information; non-relevant personally identifiable information of witnesses, comparators or third parties (for example, social security numbers, dates of birth in non-age cases, home addresses, personal phone numbers, personal email addresses, etc.), and any reference to charges filed against the employer by other charging parties. “Sensitive medical information” excludes the charging party’s medical information relating to the investigation. It is critical for employers to consult with labor and employment counsel to correctly categorize confidential information and justify such designation(s) to ensure confidentiality can be secured. “[T]he agency will not accept blanket or unsupported assertions of confidentiality.”

Further, upon receipt of information deemed confidential by an employer, the Commission has indicated that it will not withhold; rather, “EEOC staff may redact confidential information as necessary prior to releasing the information to a Charging Party or her representative.”

Employers need to be mindful of the Commission’s new procedure when responding to EEOC discrimination charges. Confidential information should be withheld (when permissible) or should be designated as “confidential.” Additionally, employers should keep in mind, when drafting position statements, that a charging party or his or her attorney may receive a copy of the position statement and any attachments.

If you have questions about this new practice by the EEOC, please contact Daniel Finerty, Oyvind Wistrom, or your Lindner & Marsack contact attorney at 414-273-3910.

Lindner & Marsack Successfully Represents Local School District in Federal Court

As labor and employment attorneys, we often sound like broken records in counselling our clients on the importance of documenting the performance deficiencies of poor performing employees. It cannot be overstated how compelling strong and contemporaneous documentation can be to demonstrate the actual reason an employer disciplines, demotes or terminates an employee who is not performing to the employer’s legitimate expectations. A recent lawsuit filed by a former African American principal at the Oak Creek-Franklin Joint School District provides another vivid illustration.

The plaintiff was a previous principal at one of the elementary schools within the school district. Following her removal from her position, she filed a lawsuit in U.S. Court for the Eastern District of Wisconsin claiming that her removal from the district was motivated by her race, as well as in retaliation for her opposing discrimination in the workplace and raising concerns that she claimed were protected by the free speech guarantees of the First Amendment. While the federal district judge dismissed her race discrimination claim prior to trial, her claims of unlawful retaliation under both Title VII and the First Amendment were tried to a jury earlier this week.

At trial, Oyvind Wistrom represented the school district. Using the district’s detailed and contemporaneous documentation of the performance concerns, we were able to successfully show the jury that her complaints of discrimination and protected speech were not the reasons for the principal’s removal. We showed that her removal would have occurred regardless of her complaints and protected speech. After more than two days of testimony, it took the jury less than one hour to determine that the school district was justified in taking the steps it took to remove the principal. The successful defense of this case could not have happened without the testimony of several key district employees and the presence of clear and contemporaneous performance documentation by the school district.