Below is a review of the posts on Facebook and LinkedIn from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 6/30/2024 contained ten steps employers should follow to comply with the Pregnant Workers Fairness Act’s (PWFA) new regulations. In April 2024, the EEOC issued regulations interpreting the PWFA (which went into effect on June 27, 2023; the regulations were effective June 18, 2024). The post describes the purpose of the PWFA and how it fits into the statutory scheme with other employment-related laws. The PWFA prohibits discrimination against employees and applicants who need reasonable accommodation for known limitations related to pregnancy, childbirth or related medical conditions; it also requires US private sector employers and state or local governments with 15 or more employees to provide reasonable accommodation to qualified employees and applicants with known limitations that are arising out of or affected by pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer undue hardship, and prohibits an employer from requiring an employee or applicant to accept an accommodation that is not a reasonable accommodation arrived at through the interactive process. This might sound like the ADA accommodation process, but the PWFA accommodation process (relative to known limitations arising out of or affected by pregnancy, childbirth, or related medical conditions) is different. The post deals with 10 steps employers should consider when analyzing an accommodation under the PWFA and the Regulations.
Step 1 – Is there a “known limitation”? This is the threshold inquiry that triggers an employer’s duty to accommodate under the PWFA. To whom and how the employee’s or applicant’s request must be made is noted in the post. The person’s limitation must be a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. How substantial the limitation must be, and some examples, are noted in the post. As with other statutes, there are no magic words that must be used to request accommodation under the PWFA, so employers must ensure that their managers, supervisors, HR staff, and anyone else identified in an accommodation policy are aware that once they “know”: of a “limitation,” there is a duty to engage in the interactive process.
Step 2 – Is the known limitation related to, affected by, or arising out of pregnancy, childbirth, or a related medical condition of the employee or applicant themself? Once it is determined there is a known limitation, this is the next step; there must be a connection between the known limitation and the employee or applicant’s pregnancy, childbirth, or related medical condition. But keep in mind that there is no requirement that the pregnancy, childbirth, or related medical condition be the sole, original or substantial reason for the physical or mental condition (why that is so is in the post), such that the existence of the condition separate and apart from the pregnancy or childbirth is not disqualifying. The regulations do note that the limitation must be of the employee or applicant in question and not their partner, spouse or family member. Also important is that the WPFA uses the Title VII definition of pregnancy, childbirth, or related medical conditions.” The regulations include a non-exhaustive list of covered conditions which is copied in the post.
Step 3 – Is the employee or applicant “qualified”? Ok, you have a known limitation that is related to, affected by or arising out of pregnancy, childbirth, or related medical conditions. Now the question is whether that person is covered by the PWFA. Unlike the ADA, there are 2 ways an employee can be qualified under the PWFA. First, similar to the ADA, the person can perform the essential functions of the position with or without a reasonable accommodation. An example of this is in the post. But unlike the ADA, the other way an employee or applicant can be qualified under the PWFA is that they cannot perform the essential functions currently, but (1) the inability is only “temporary” (how that is defined in sin the post), (2) they can perform the essential function “in the near future”, and (3) the inability to perform the essential functions can be reasonably accommodated. How the 2nd criteria is looked at under the PWFA is detailed in the post.
The other 7 steps in the PWFA accommodation process are detailed in the post. The last step is a good reminder that employers must continually be cognizant of ALL statutes that affect their workplace. Whichever one provides the greatest protection for the employee or applicant will take precedence. Also keep in mind that the regulations are subject to pending litigation, so keeping up with the status is mandatory.
TAKEAWAY: Know the law as it applies to your workplace. Contact an employment lawyer to be sure you stay within the legal lines.
The post on Monday 7/1/2024 was about the intersection between workers comp and employment law. Yes, the alphabet soup of laws to know that might relate to your workplace. In 2016, Noorjahan Ramji worked as a cleaner for Hospital Housekeeping Systems LLC (HHS). One day, she tripped while cleaning, injuring her knee. She received a cortisone shot less than a week later and began physical therapy. Her doctor approved her for light duty eight days after the accident. But before she could start that light duty assignment, HHS wanted her to complete its essential skills test. During the test, Ramji complained that her knee was hurting and asked to use accumulated sick leave to continue recovering. She promised to take the test at a later date. Instead, HHS fired her based on her failure of the test and several older infractions. Ramji consulted a workers’ comp attorney and eventually settled for costs of medical treatment and reinstatement. So that’s it, right? Not quite. After the workers’ comp case settled, Ramji filed another suit for interference with her FMLA rights. She was an eligible employee under the FMLA and had not used any prior FMLA leave, but HHS did not tell her about her right to take FMLA leave. Yes, this is an example of the crossroads of workers’ comp and employment law, a knotty intersection that opens. Employers often do not understand the difference or overlap and open themselves to legal liability.
Workers’ comp cases revolve around a workplace injury. Some of the issues that might arise in a WC case are noted in the post. TO the contrary, employment law might include a range of issues, including wrongful termination, ADA and FMLA violations, discrimination and wage and overtime violations. But there can be an overlap between the WC issues and other employment law issues. That arises often when it comes to termination. The difference between WC and employment law when it comes to termination is discussed in the post. Other common areas of overlap have to do with the ADA and FMLA. An injured worker might be considered disabled under the ADA or qualify for FMLA (as Ramji did). The employment law issues must be dealt with properly so as not to open up the employer to legal liability. Entities that help employers manage compliance, HR and workers’ comp administrative tasks must also be careful; where they will be placed in litigation is noted in the post.
TAKEAWAY: a good, conscientious employer should work with both WC and employment law attorneys, early and often; it could save money in the long run.
The post on Tuesday 7/2/2024 told us Pacific Culinary and CB Foods to pay $245,000 in EEOC sexual harassment and retaliation lawsuit. Asian food companies Pacific Culinary Group, Inc. and CB Foods, Inc. have settled a suit brought by the EEOC for sexual harassment, retaliation, and constructive discharge on behalf of a class of female and male food production workers, some of whom have limited English proficiency. The suit alleges that Pacific Culinary and CB Foods subjected male and female to ongoing verbal and physical harassment and also sexual harassment by the companies’ chief operating officer. What the harassment included is listed in the post. The EEOC also alleged that despite multiple complaints of sexual harassment, the companies failed to take prompt and effective action, such that the harassment continued. The complaint also talked of retaliation; the details are in the post. The EEOC alleged violation of Title VII and filed suit in federal court after conciliation failed.
In addition to the monetary relief, the settlement requires the companies and their successor, JRC Culinary Group, to institute injunctive relief, including reviewing and revising policies and procedures to come into compliance with Title VII and the other things listed in the post. Under the settlement, JRC Culinary will remain under the court’s jurisdiction for 3-1/2 years.
TAKEAWAY: Make sure all employees – even the top of the pyramid – know what to say and do, and what NOT to say and do. Charges and suits, and judgments or settlements arising from them, will be very costly.
The post on Wednesday 7/3/2024 told us entire homeowners association (HOA) board resigns after $60K special assessment dispute. Imagine this: you get an email telling you that your entire HOA board resigned, effective immediately. What would you do? It happened to residents of the Villas of Carillon townhome community after they caused a postponement of a board vote on how they would be allowed to pay a $60,000 special assessment stemming from a structural integrity reserve study. The postponement was due to confusion about new statutory funding requirements and whether they applied here – more on that is in the post. The board wanted increased reserves (for the reasons noted in the post), but the result of that was also financially problematic (again, see the post). Reserve funding, and the method used, can lead to huge differences; details are in the post. An example was given relating to an AC condenser unit with a normal useful life of 10 years and (for easy math) a cost of $10,000.
But again, here the Villas of Carillon HOA is subject to different statutes and different reserve funding requirements. So owners packed the meeting room and got their wish to hold off on any decisions about the assessment, at least for now. That followed a letter sent to all residents explaining that the HOA had underfunded its reserves for years and now everyone needed to pay up to $60,000. The payments options in the letter are listed int eh post. Owners wanted more information and when they found out about the quick vote, packed the room to demand a postponement. What is interesting is the basis of the postponement – see the post. And then the board meeting was adjourned.
TAKEAWAY: Condominium and homeowner associations need to know which laws apply to them – having a community association lawyer on speed dial is a good start.
In the posts on Thursday 7/4/2024 here and here (Independence Day), we asked: Can (or should) a condo or homeowners’ association ban fireworks? Homeowners’ associations are responsible for maintaining curb appeal and property values; one way they do it is imposing various rules that residents must follow. The question that always comes up this time of year is whether an HOA (or condo association) can ban fireworks within the community. When surveying the country, it appears normal for associations to ban or restrict fireworks, especially in areas with a higher risk of wildfires. But there is not uniform agreement – see the post. There might also be municipal restrictions or prohibitions that apply regardless of what the association allows or prohibits. And there might be state laws that touch on an association’s authority to restrict or ban fireworks. An example is in the post.
Why should an association ban fireworks? In addition to the possible safety risk, they tend to be very loud and can startle residents with dogs or veterans who are suffering from PTSD. The National Fire Protection Association (NFPA) keeps statistics on fires that resulted from fireworks – see the post.Those fires caused five deaths and 46 civilian injuries, not to mention $105 million worth of direct property damage. There might be a difference in the type of fireworks when it comes to a ban – see the post for some differences and their effect/impact.
If an association does have a restriction (or ban) on fireworks, it must then enforce that restriction/ban. One thing that makes enforcement difficult is noted in the post. And as part of the enforcement, there should be a fine schedule (see the post for suggestions as to this too).
But what if a community wants fireworks, safely? A suggestion as to how that can happen is in the post. And if the association decides to do its own fireworks show, it must ensure adequate insurance coverage. Things to consider for that are noted in the post.
TAKEAWAY: This is always a hot button subject, not the least in the lead-up to July 4th and planned celebrations. Boards must be ready to legally support any restrictions. A community association lawyer should be consulted prior to adoption of such restrictions.
The post on Friday 7/5/2024 noted that a rose by any other name still stinks: intentional misgendering isn’t harmless. Ridicule and harassment in the workplace of one who notes a preferred identity might lead to investigations and lawsuits. The EEOC recently announced that it settled a claim made by an employee (a supervisor) who alleged that after disclosing their gender identity and pronouns to their employer, other managers and staff continued to intentionally refer to them using their old pronouns (that did not align with their gender identity). The EEOC claims that the alleged sex-based harassment continued for more than six months while the employer, a nursing facility, failed to take appropriate actions despite multiple complaints about the alleged harassment. And now that employer will literally pay the price.
The post contains a link to the EEOC’s recently issued final guidance on intentional, incessant misgendering that constitutes sex-based harassment. A one-time slip up is not covered; it must be repeated and intentional. Courts are now starting to weigh in. One recent case (referenced in the post) came from a federal appellate court in 2024. The court vacated a summary judgment decision in favor of the employer, noting that while an occasional mistake using the incorrect name or pronouns will not create liability, misgendering an employee can be sufficiently severe or pervasive so as to support a claim of hostile work environment under Title VII.
None of this is new. Before the EEOC’s 2024 guidance, and before the U.S. Supreme Court’s decision in Bostock v. Clayton County, illegal harassment included conduct based on sexual orientation and gender identity. An EEOC decision from 2015 is but one example (and is covered in the post).
Title VII requires an employer to exercise reasonable care to prevent and to promptly correct any harassment. But when does employer liability attach? See the post. And what does corrective action mean? Again, see the post. Some things an employer can do to comply with Title VII and the EEOC’s guidance include having clear, detailed anti-harassment and anti-retaliation policies that include examples including some based on gender identity and sexual orientation (such as those noted in the post), disseminating the polices, and more as in the list in the post.
TAKEAWAY: treating someone differently because of sexual orientation or identity can lead to legal liability – make sure it doesn’t happen in your workplace.
Finally, in the post yesterday 7/6/2024, we circled back and noted the EEOC Final Rule regarding pregnancy discrimination became effective June 18, 2024 (and asked if you are in compliance). On April 19, 2024, The EEOC’s final rule and interpretive guidance to implement the PWF were published in April 2024 and became effective June 18, 2024. As we noted in our post on June 30, 2024, the PWFA requires a covered entity to provide reasonable accommodations to a qualified employee for known limitations related to, affected by, or arising out of pregnancy; childbirth; or a related medical condition, with certain exceptions. Who is covered by the PWFA is in this post and our post on June 30, 2024. This post includes some background, starting with the Pregnancy Discrimination Act (“PDA”) and its interaction with Title VII and the gaps. The PWFA is intended to fill those gaps.
The Rule was not adopted in a vacuum. Thousands of comments were made – their content is noted in the post. The Rue addresses the comments and relies on definitions in other federal statutes (as listed in the post). But there are some differences, such as the definition of “known limitation” and standard to be met as discussed in our post on June 30, 2024. Part of the Rule did engender MUCH controversy – see the post. How and why the EEOC responded to those comments, and what it did in the Rule, are also in the post. Despite this, a suit was filed by some state attorneys general on April 25, 2024 (yep, a mere 6 days after the Rule was published) alleging that the Rule is unconstitutional. The thrust of the suit is noted in the post. That suit remains pending.
The PWFA – and this Rule – are not the only statutes dealing with women experiencing pregnancy, childbirth, or a related medical condition. Some others are listed in the post with a description of what protection they offer.
TAKEAWAY: Employers must be careful of how they respond to employees or applicants who might fall under the authority of the PWFA or other statutes – have a knowledgeable employment lawyer on speed dial.
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