In the post on Sunday 6/6/21 we saw that HHS to enforce Section 1557 of the ACA to prohibit discrimination based on sexual orientation and gender identity. This reverses what the prior administration was trying to do. OCR (Office of Civil Rights), which is under HHS, will be the enforcing agency/entity. What will the enforcement include (and not include)? See the post. Section 1557 prohibits many health care providers and certain health plans from discriminating against individuals on the basis of race, color, national origin, age, sex, or disability. The Section references other statutes as noted in the post. This enforcement reverses revised Regulations that preceded the Bostock decision – see the post for some history and how we got to where we are now. The enforcement also presages potential future litigation surrounding a District Court injunction from some sex discrimination provisions in the pre-2020 regulations and more – see the post for details.
TAKEAWAY: Know what law or regulation applies – stay on top of things or, better yet, consult an employment lawyer.
The post on Monday 6/7/21 asked about segregating unvaccinated workers? Think twice, attorneys warn. Yes Employer, you can legally segregate vaccinated from unvaccinated employees. But should you? Restrictions related to COVID-19 are loosening as vaccination rates increase, leaving workplace with a combination of vaccinated and unvaccinated employees. Why or how might an employer get in hot water by segregating employees based upon vaccination status? Well, that alone is not protected, but the reason why someone might not be vaccinated could well put them in a protected category. For example, if an employee is unable to get the COVID vaccine for medical reasons, then the employer now knows there might be some type of disability. Any adverse action against that person might then be subject to scrutiny as potentially discriminatory based on the disability (real or regarded as being real). And then there’s the reality oof segregation – see the post for more on that. And if an employer chooses to go the vaccine-segregated route, how is it to legally find out who is vaccinated? The post gives some ideas on that (including the possible effect of state laws).
TAKEAWAY: Just as with a mandatory vaccine policy, know how to legally handle unvaccinated employees in a workplace segregated by vaccine status.
The post on Tuesday 6/8/21 noted that postal mail service was restored to owner in a homeowner association after 5 months (and asked how your association would handle this situation)? This was a community mailbox, essentially a bank of mailboxes for residents of the neighborhood. It got knocked over in October. So, what have the residents done in the meantime? See the post. The Post Office said it was the obligation of the Association to repair the mail-box. The Association said it was the responsibility of the Post Office to repair the mailbox. One owner got a TV channel involved. They looked into the matter. Then … see the post.
TAKEAWAY: Know who has what repair and maintenance obligations in a condo or homeowners’ association – and make sure that division of labor is enforced.
Based on the post on Wednesday 6/9/21 we asked: How can employers respond to CDC mask guidance in the workplace? The starting point is of course knowing what CDC guidelines provide – and that can and has changed periodically. The latest change was issued May 10th when CDC said that fully vaccinated persons need not wear masks indoors. Great, right? Well … OSHA, the federal agency that oversees workplace safety, is not there yet. See the post. The EEOC, which oversees discrimination in the workplace, has not updated its COVID-19 guidance (since Dec. 2020 – see the post). So as employers try to walk the tightrope between vaccinated and unvaccinated employees in the workplace, there are issues to be considered. First, what do state or local law say on the issue? Next, how will you verify the vaccination status of an employee? The post gives a general roadmap. And what about enforceability and other issues as identified in the post?
TAKEAWAY: Know the law and guidelines – local, state and federal – and how to legally enforce whatever you decide is appropriate for your workplace. Get assistance from an employment lawyer.
In the post on Thursday 6/10/21 we saw that American Addiction Centers settled an EEOC pregnancy discrimination suit. Why did the EEOC bring suit? The employer, through its Dallas-based Greenhouse Outpatient Center, had granted the pregnant employee (who was a behavioral health technician) a 30-day leave of absence for childbirth. Great, right? Well, keep reading. After a C-section, the employee’s doctor said she needed 8 weeks to recover before returning to work. But the employer’s HR Department did not agree to hold the job for more than 30 days. She was terminated. The EEOC sued (for back pay and more as noted I the post, all as allowed by Title VII as amended by the Pregnancy Discrimination Act). The employer might have had some legal justification but for the key thing noted in the post (which would have felled them had they not settled). So, the employer settled. It pays monetary damages (how much is noted in the post) as well as requiring annual training of employees regarding pregnancy and other forms of discrimination, imposing discipline on any manager who discriminates on the basis of pregnancy or permits the conduct to occur under his/her supervision, and more as noted in the post.
TAKEAWAY: treat all employees the same, especially those in a protected category/class. Just do it.
The post on Friday 6/11/21 noted that before fatal attack on dog in an association, the same neighbors’ dogs were involved in 2 attacks (and asked what would or should your Association do in this situation?) In April, one of Gayle Benson’s little Yorkies was killed in an attack by 2 dogs and the other was injured. Benson is the owner of the New Orleans Saints and Pelicans. The 2 larger dogs belonged to one of Benson’s neighbors. Benson was out walking her dogs when one barked at a bird; the neighbors’ 2 dogs took notice. The larger dogs weighed about 60 pounds each. What did they then do that caused Benson to pick up her 5-pound dogs? See the post. Apparently there was known prior bad action by the dogs – see the post. And the melee that ensued? Also described in the post. Two children on bicycles who might have been with the larger dogs were nearby during the attack. The owners of the larger dogs were charged with various counts (noted in the post).
TAKEAWAY: If your association has any restrictions on pets and does not enforce them, there might be liability – consult a community association lawyer.
Finally, in the post yesterday 6/12/21, we learned about employee drug testing: defending false positive allegations. This goes beyond COVID and encompasses marijuana, opiates and more. Employers ae increasingly testing for drugs, and the positivity rate is likewise increasing. Is there actually a higher use or are the false positives increasing? The testing itself, and the results, could make employers face disability and discrimination issues (as well as state legal protections for some of the drugs like marijuana). Positive tests followed by adverse action often result in the filing of suit. So, what is an employer to do? First, determine if the employee or applicant claims to have been exposed to drugs in the work environment. Examples of the basis for this type of claim are in the post. It can make a difference to the employer’s defense as explained in the post. And what if the result of a second test differs from the results of the first test? That does not necessarily mean the first test result was incorrect – see the test for an explanation. But what if the claim is instead that another substance caused the false positive test result? That’s where the employer’s medical review officer comes into the picture. The skillset that person should have and what s/he should do are discussed in the post. These alternative substances might bring the employer face to fact with disability or discrimination issues, often under the ADA (and how it applies if marijuana is the substance at issue). See the post for all this and more.
TAKEAWAY: Drugs may be legal or illegal; both turn up in drug tests. Knowing what if any action may be taken against an applicant or employee as a result of the positive test result can be a legal minefield, so get advice from an employment lawyer.