Employers & alternative ADA accommodation; advantages for in-office workers; Sheetz “smile policy” gone; solar panels in condo & HOA; and more in Our Social Media Posts This Week, Feb. 5-11, 2023.

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

employer not obligated to immediately inform employee of possible alternative ada accommodation

The post on Sunday 2/5/2023 explained employer not obligated to immediately inform employee of possible alternative ADA accom-modations. We all (should) know that an employer has an obligation to participate in the interactive accommodation process. But this case raises the issue of timing for part of that process. The plaintiff here, Norwood, was a division manager with UPS; she started to have memory issues and was put on a PIP. She told UPS her problems stemmed from mental disabilities and requested an accommodation (that is noted in the post). UPS started the accommodation process and decided that her request was not reasonable (for the reasons noted in the post). UPS’s internal accommodation committee discussed alternative accommodation but did not mention them to Norwood. She resigned and filed suit (including for failure to accommodate under the ADA). The suit included an allegation that UPS breached its obligation by not telling her about potential alterna-tive accommodations. The trial court dismissed the suit. On appeal, the appellate court (which does not govern cases in PA but is instructive) affirmed that an employer need not immediately disclose all potential alternative accommodations during the early stages of the interactive process. The factual analysis the court engaged in is noted in the post.

        TAKEAWAY: While this decision can be limited in some ways, it is instructive as to what is NOT required of employers at a certain point in the ADA interactive accommodation process.

employees say in-office workers have a “competitive advantage”

The post on Monday 2/6/2023 told us employees say in-office workers have a “competitive advantage”. Have you heard of the immediacy (or recency) effect? This seems to be related to it (and is referred to as ‘workplace proximity bias”) – it is that those in front of the boss have an advantage over those who work fully remotely. The date comes from a recent survey, about half of the respon-dents of whom are working in the office full time, about ¼ in a hybrid arrangement and about ¼ as fully remote. But despite thinking those who work in the office have an advantage, what did almost half of those surveyed say about the ability to work remotely? See the post. Employers must ensure that all employees, no matter where or how they work, are treated equally when it comes to promotions, raises and other development opportunities. How to do that? see the post.

TAKEAWAY: The world will never go back to the time when all workers were in the workplace, so employers must adjust and evaluate based on performance, not necessarily where the performance occurred. Consult an employment lawyer if there are questions or issues.

condo owner denied insurance coverage for unit damage

The post on Tuesday 2/7/2023 told us condo owner denied insurance coverage for unit damage. The background is that a sewer pipe burst in the condo building between units and there was a substantial amount of damage to one owner’s kitchen and floors. The association is repairing the pipe and walls but not the kitchen or floors in the unit. The owner filed a claim with their insurance carrier but was denied (on the basis in the post). This leads to the recurring issue in both condo and homeowners’ associations: who is responsible for the repair/replacement/damage, the owner or the association? The answer depends on how the unit (what is owned solely by the owner) is defined. Relative to a condominium, it is usually inside the walls/ceiling/floor, but that can vary. In a homeowner association, single-family detached units often define the unit as the entire house and some land, but again that can vary. It is imperative that owners look at the declaration to see what they own and who is responsible for what. And then buy appropriate insurance (see the post for some details on this) including sump pump failure which is not uncommon but can be costly.

TAKEAWAY: Know what repair or replace responsibility lies on the owner and what on the condo or homeowners’ association. Get advice from a community association lawyer so that proper insurance can be put in place and costs properly apportioned.

labor shortage, remote work boosted employment of people with disabilities

The post on Wednesday 2/8/2023 told us that the labor shortage, remote work boosted employment of people with disabilities. That’s good news, right? It is if it continues. The numbers of employed disabled persons have risen to exceed pre-pandemic levels in contrast to employment numbers for persons without disabilities (which are as noted in the post). The reasons for this disparity might be that the labor shortage forced those in positions to hire to look to new segments of workers that they might not have otherwise considered and the other reasons noted in the post.  So how can HR maintain this workforce? DEI in recruiting, hiring and elsewhere, including accommodations. And more as noted in the post.

        TAKEAWAY: persons with disabilities can be top performers if allowed to perform – sometimes all it takes is a simple accommodation, and remote work has opened many doors previously closed to those with disabilities.  

sheetz ends “smile policy” that drove employees to quit

In the post on Thursday 2/9/2023 we saw Sheetz ends “smile policy” that drove employees to quit. What is this policy, you ask? It prohibited stores from hiring appli-cants with “obvious missing, broken or badly discolored teeth (unrelated to a disability)”. Yep, you read that right. In early January 2023 a former employee posted a video of herself and a manager discussing this prior to her quitting. The manager asks the employee for a timeline of when she will have her dentures replaced. The employee responds (as noted in the post – which contains a link to her socmedia and the recorded conversation). Even though Sheetz said it provides accommodation to its personal appearance policy for medical, cultural and religious reasons, it has now apparently discontinued this policy. Why did this reverberate through socmedia? Probably because  the employee is a domestic violence survivor and her dental health issues were the result of abuse she suffered at the hands of a former spouse. It doesn’t’ help that she was hired with her current dental condition … Sheetz offered to continue her employment. What did she say? See the post.

TAKEAWAY: Many employers have appearance policies. But that doesn’t make them good when publicly known. And some may be illegal, especially with hairstyle bills and laws becoming more common. Be careful and know the applicable law.

hoa regulation of solar panels – common limitations and provisions

The post on Friday 2/10/2023 was about HOA regulation of solar panels – common limitations and provisions. It also raised the questions of whether your community association has any restrictions relative to solar panels and whether it should. Because of the normal boundaries of units in condominium associations (see our post from this past Tuesday, Feb. 7, 2023), the issue of solar normally only comes up in homeowner associations where owners own the entire home and thus have use of the roof (and yard).  But the mere fact of owner-ship does not necessarily entitle owners to install solar panels on their roof; associations can regulate what can be installed, where, and how. And it all goes into maintaining community aesthetics and property values while letting owners do what they want (to a certain degree). There are 2 categories of limitations that association should consider relative to owners’ use of solar power: solar access laws and solar easements. The former are normally in state law; what they do – and do not do – is in the post. Examples of reasonable limitations that an HOA might put in place are in the post. In contrast, solar easements are regulated by a governmental body. They are voluntary contractual agreements between eh owner and HOA to privately regulate solar panels. An example of what they might deal with is noted in the post. Common types of solar access restrictions are listed in the post.

TAKEAWAY: both owners seeking to install solar panels and associations seeking to enforce existing or enact new solar access restrictions should consult a community association lawyer to ensure legal compliance.

class action suit claims astrazeneca engaged in discrimination against older unvaccinated workers with religious objections

Finally, in the post yesterday 2/11/2023, we saw a class action suit claims AstraZeneca engaged in discrimination against older unvaccinated workers with religious objections. The suit alleges intentional age discrimination as a result of termination of several employees over age 40 who objected to the company’s COVID-19 vaccine mandate on religious reasons. The complaint was filed in federal court in Delaware on behalf of 7 who were fired after refusing to comply with the vax policy. The several laws of which violations were claimed are noted in the post. While noting that AstraZeneca says it embraces diversity, the suit alleges “In Astra-Zeneca’s workplace, all employees were equal, but some were more equal than others.” There are also complaints about age discrimination as noted in the post (including a sales presentation from the US Director of Sales). Several of the plaintiffs had bene employed there for a few years, and two for over 20 years. The suit alleges that the vax mandate went into effect in September 2021, these employees requested religious exemptions, and they were fired without the company individually assessing same. More background on that is in the post. AstraZeneca did not comment for the post.

TAKEAWAY: While COVID-19 may be endemic now, it has left a lasting and continuing legacy of employment-related issues that are still entering and winding their way through the legal system. Consultation with an employment lawyer is suggested as so many things come to bear on potential claims and defenses related to vax mandates.

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