In the post on Sunday 8/8/21 we saw a court issues a decision favorable to employer on ADA accommodation. And why should you care? Well, as you know, the ADA generally prohibits covered employers from discrimi-nating against employees and applicants on the basis of disability. One form of prohibited discrimination is failing to provide reasonable accommodation to a qualified individual with a disability unless the requested accommodation would pose an undue hardship for the employer. Possible forms of accommodation include job restructuring and others mentioned in the post. On June 8, 2021, the Fourth Circuit Court of Appeals held that the ADA does not require employers to create a job-sharing position for a disabled employee as an accommodation. Perdue v. Sanofi-Aventis U.S., LLC. Let’s dissect the case and opinion a bit. Perdue was a pharmaceutical sales rep. She developed an auto-immune disease and had to undergo surgery. The employer granted Perdue a ten-month leave of absence to recover; then the employer approved a return to work in a job-sharing arrangement with another coworker. After the coworker resigned, Perdue went to a regular full-time position. However, she experienced additional medical issues and was granted another leave of absence. She was eventually released to return to work with a maximum 30-hour per week work restriction. Perdue requested another job-sharing position. The employer denied Perdue’s requested accommo-dation – the stated basis is in the post. When Perdue exhausted short-term disability leave benefits, her employment was terminated. Perdue filed suit, claiming a failure to accommodate under the ADA. The federal district (trial) court dismissed the case on summary judgment and Perdue appealed. Perdue argued on appeal that the employer had a duty to provide the job-sharing arrangement because that would have been a transfer to a “vacant” position, a required form of accommodation under the ADA. The appeals court didn’t buy the argument; the court’s rationale and analysis are in the post.
TAKEAWAY: While the ADA has broad application; it is not limitless; the employer retains the right not to create a job position or to provide other accommodation which would result in an undue burden, but this is fact specific so consultation with an employment lawyer is recommended.
The post on Monday 8/9/21 was about 3 employment law trends to watch for in the last half of 2021. First, the questions Bostock left unanswered. Remember that in Bostock the Supreme Court held that LGBTQ persons have workplace protection under Title VII, but questions remain. Lower courts have been dealing with those questions, including whether there was discrimination by a union when it refused to enroll a same-sex spouse in health insurance coverage granted to opposite-sex couples (Jimenez v. Laborer’s Welfare Fund, discussed in the post), if a public university violated the right to free speech when it required faculty to refer to students by their pronouns of choice (Meriwether v. Hartop, also discussed in the post), and if gender misidentification is covered by Title VII (Doe v. Triangle Doughnuts, a case from the Eastern District of PA discussed in the post). The second trend deals with what is a proper accommodation. Again, courts are grappling with this, including on the basis of pregnancy (LaBarbera v. NYU Winthrop Hosp. on 3/21/2021, discussed in the post) and religion (EEOC v. Walmart Stores E., Small v. Memphis Power Co., and Dalberiste v. GLE Assoc. Inc., all discussed in the post). The latter 2 cases almost gained a grant of cert to the Supreme Court. There is also a third trend – it is identified and discussed in the post.
TAKEAWAY: Statutes may not change, but their interpretation and application may indeed change; employers need to stay on top of all of this (with the assistance of employment counsel).
The post on Tuesday 8/20/2021 told us that Engie Services is to pay $125,000 to settle an EEOC same-sex and race harassment lawsuit. Engie is a Canadian company that provides baggage handling and maintenance services at airports across the US. The EEOC charged that Engie subjected two African American male employees to sexual harassment and one also to racial harassment. On what were the allegations based? See the post. Conciliation failed, so the EEOC filed suit in November 2020. In addition to the $125,000 monetary relief, the settlement includes several other (non-monetary) provisions described in the post.
TAKEAWAY: We keep saying the same thing, but yes, train your managers what they can and cannot say and do – it can only help to keep you out of legal hot water.
The post on Wednesday 8/11/21 asked: Got compliance? If not, here are some best practices on handling condo/HOA violations. Residents of planned communities (in PA, condominium and homeowner associations) have to abide by the Association’s Governing Documents: Declaration/ Covenants, Bylaws, and Rules & Regulations. But what if they don’t? The Board must then enforce the Governing Documents. But there is a degree of reasonableness that goes along with that enforce-ment. So, what does that mean in the context of enforcement that has reached the courts? Courts will often favor unrestricted use of one’s property, but that depends (at least in part) on the reasonableness of the restriction being enforced. And how to Boards do that? See the post. Violations are another area where compliance can be difficult at times. The purpose of issuing violations should never be to punish, collect money for the association, set an example, embarrass someone, or exact revenge. Rather, it is simply compliance. As we said, Board members are fiduciaries and charged with compliance. So how should violations be handled? First, adopt policies as a standard – and stick to them. Some things to be addressed in policies are noted in the post. The process for compliance is also noted in the post. And finally, a Board may look to precedent, but carefully and (yes, here it is again) reasonably. Using precedent should be within the parameters noted in the post.
TAKEAWAY: Sometimes it is difficult for Board members to enforce the Governing Documents as against their neighbors; having a trusted community association lawyer to help can be key.
In the post on Thursday 8/12/21, we queried if a condo/HOA Board is not operating by the book, what do you do? This often comes up in the context of whether or not a quorum is present at a meeting in order that business may be conducted. Assuming the Governing Documents (usually the Bylaws) contain a quorum requirement, then it should be followed, right? But what if it’s not? An unpublished case from a state appellate court (noted in the post) found that an HOA quorum requirement that had been consistently ignored over many years could not be enforced by a long-time member who suddenly decided to object to the practice. Would that hold true in PA? Hmmm. And quorums are not the only time non-compliance may be an issue. What if an election was not conducted pursuant to the Governing Documents? Some possible ramifications are discussed in the post. Non-compliance with the Governing Documents may also lead to a move to amend the procedures to be followed – but that too requires initial adherence to the existing procedures! A good tip for Board members and residents of planned communities is at the end of the post.
TAKEAWAY: To ensure full, proper and legal compliance with the Governing Documents (and applicable state law), have an experienced community association lawyer at your side.
The post on Friday 8/13/21 noted British vegans are having a row over COVID vaccine ‘jab’ rules – and the issue could come to America. What issue you ask? Whether ethical veganism will be a recognized exception to mandatory vaccination? The objections centers on the animal testing of vaccines, not that any vaccine includes animal products. This is, or could be, deemed (akin to) a religious objection to vaccination. And lest you think to the contrary, veganism as a sincerely held religious belief is not new. The post discusses a federal court case from 2012 in the context of a flu shot; it is easy to see how that could be analogized and applied in the context of COVID (or other) vaccination. And if veganism is accepted as a valid basis on which to object to a mandatory COVID vaccine, what an employer must do is noted in the post.
TAKEAWAY: Remember that sincerely held religious beliefs need not be that of a major or other accepted religion but can be fact dependent as to the employee at issue. Make sure you know the oft-fluid interpretation of the law and proceed as required.
Finally, in the post yesterday 8/14/21, we saw that the EEOC (again) sues UPS for disability discrimination. So, what’s the background? The employee suffers from erratic or brittle diabetes and wears an insulin pump with a continuous glucose monitor. The employee requested the accommodation of an occasional short break of less than five minutes in between unloading trailers to check his blood sugar and eat or drink something if necessary. Sound reasonable, right? Well … a UPS HR supervisor at a warehouse location thought differently. What the HR person said is noted in the post. In fact, though, the employee was able to perform the essential functions of the job – and did so without problem for two days. However, after the employee’s second shift ended, the HR Supervisor left the employee a voicemail message (yep, not even in person!) advising that was his last day of work. When conciliation failed, the EEOC filed suit. What does the EEOC seek on behalf of the employee? See the post.
TAKEAWAY: It has been a few days (4 to be exact) since we last said this: train your managers as to what they can and cannot say and do to keep you out of legal hot water. And keep an employment lawyer on standby.