In the post on Sunday 10/3/21 we learned about the next wave: legal and practical considerations for employers regarding COVID-19 vaccinations. As you probably know, some people refusing to get vaccinated did so on the basis that the vaccine was only EUA; that argument went by the wayside (in part) in August 2021 when the FDA approved the Pfizer-BioNTech vaccine. Together with the Delta variant surge and continuing dis-ruptions to the workplace, more employees are mandating vaccination for in-office workers. But there are still many who have not, and will not, get vaccinated. Employers need to know the various laws and other guidance that are out there, including the July 2021 DOJ Memorandum of Opinion (discussed in the post), EEOC Guidance under the ADA, Title VI and other federal employment on-discrimination laws (also discussed in the post) which is frequently updated, CDC Guidance issued in August 2021 and which includes recommendations that unvaccinated persons wear masks in indoor public settings and ALL persons wear masks indoors in areas of substantial or high trans-mission (a link to continually-updated maps showing transmission rates and additional discussion are in the post), and OSHA Guidance (also discussed in the post). You should also be aware of past and possible future litigation involving COVID-19 vaccination mandates. So far, all challenges have been unsuccessful. Several are noted in the post (including the Supreme Court’s denial of cert in a case brought by Indiana University students to enjoin the school from enforcing its COVID-19 vaccine mandate). Some states and localities have also enacted statutes dealing with mandatory vaccination policies, vaccine passports, and whether employment decisions can be based on vaccination status (those and more are discussed in the post). So, what is an employer to do: mandate or encourage (or nothing)? “Nothing” is not the answer given an employer’s duty to keep safe all those who enter on its property. “Encouragement” may work; “mandate” too may work, but in either case there must be a plan that allows for accommodation of those unable on the basis of medical/disability or religious reasons to get the vaccine.
TAKEAWAY: Develop a COVID-19 vaccination plan in conjunction with a well-versed employment lawyer and follow it to the T.
The post on Monday 10/4/21 asked: can associational discrimination be extended to distant relatives? The U.S. Court of Appeals for the Third Circuit, which govern PA cases, recently decided this issue. The quick answer is that Title VII does allow claims of retaliation even when the plaintiff is not the target of the original discrimination, but let’s look at how the Court arrived at that answer. A white jail captain complained to the warden that a white female employee had made racially offensive comments when the captain had discussed the possibility of taking a biracial grandniece under their care. Further details on the details of the complaint and texts messages appended to it are in the post. The employee was put on leave after the complaint. But a short time later the captain was fired. The basis for termination is in the post. Yep, the captain then filed suit against both the warden and employer, alleging racial discrimination and retaliation under Title VII. The trial court granted the defendants’ motion for summary judgment because the captain was not the subject of any negative comment. The captain appealed to the Third Circuit which held that Title VII provides all employees protection from retaliation when there is a reasonable reason to believe that behavior in the workplace violates the statute. How the Court then applied that holding to the subject (and hypothetical) facts is in the post.
TAKEAWAY: It bears repeating that retaliation claims can stand on their own and do not need a successful underlying discrimination claim to go forward.
The post on Tuesday 10/5/21 showed us that the EEOC claimed Applebee’s told a black line cook to “ignore” co-workers wearing Confederate flag gear. The cook’s co-workers frequently wore clothing with a Confederate flag on it and did more as noted in the post. He complained about being mistreated on the basis of sexuality and race – and was told to ignore it! But that’s not all; what else Applebee’s did, and how it affected him, is in the post. Following its earlier position and the Supreme Court’s Bostock opinion, the EEOC has now sued.
TAKEAWAY: This case is another reminder that discrimination on the basis of sexual orientation is illegal – and again that a complaint of retaliation often accompanies one of discrimination.
The post on Wednesday 10/6/21 told us that one of New York City’s poshest (condo) buildings is facing a $250M lawsuit over builder defects. Just goes to show this can happen anywhere, to anyone. There are about 1500 alleged defects in the building at 432 Park Avenue that “endangered and inconvenienced” residents and guests. Some of the buyers of units in the building include Jennifer Lopez and A-Rod, a member of the family that owns the Jose Cuervo Tequila brand, and more as noted in the post. The costs of just one unit? Tens of millions of dollars. The suit was filed in late September and notes issues including an electrical explosion in June and “horrible” inexplicable noises and vibrations. The condo association’s board hired engineers to prepare a report of construction and design flaws. Some of what they found, and residents identified, is in the post. Some things are safety issues.
TAKEAWAY: When any community (condominium or homeowner) association transitions from the developer to the owners, a transition report should be commissioned by the association to include a structural analysis of any buildings for which the association will be responsible. Consult a community association lawyer for assistance.
In the post on Thursday 10/7/21 we read about if you are planning to buy in a condo or homeowners’ association, some useful tips. There are many similarities to life in a condominium or homeowners association, so these tips apply equally to both. First, maintenance responsibilities and dues or assessments. Depending on the maintenance and repair responsi-bilities of the association, periodic assessments (or dues) may be lower or higher. Also, there are still things that the owner must maintain or replace; you need to know the difference before buying. Next, financials are important. Not only the dues/assess-ments, but the other things noted in the post. Also look at the association itself and how it operates and its future plans, all as discussed in the post.
TAKEAWAY: Before you sign documents to buy in a community (condo or homeowners) association, review those documents with a lawyer so you know who has what rights and obligations.
The post on Friday 10/8/21 told us that the EEOC issued updated Guidance regarding COVID-19 vaccinations and the workplace. Everyone needs to know what’s included. The Guidance was issued in May but is still relevant. It included that employer vaccine mandates are permissible (with exemptions for those with medical/disability and religions reasons). The post discusses some of the ways to accommodate people. The post also notes that an employer can require vaccination if the employee would pose a direct threat in the workplace and there is no reasonable accommodation to reduce or eliminate the threat and details what the employer must consider in these circumstances. The post (and Guidance) also reaffirm that employers can provide incentives for vaccinations and only under limited circumstances (noted in the post) may ask for additional documentation if an employee requests a religious accommodation in the face of mandatory vaccination.
TAKEAWAY: We feel like a broken record: know the law, follow your vaccination plan, and make sure you know how to deal with requests for accommodation.
Finally, in the post yesterday 10/9/21, we saw that the EEOC says a McDonald’s operator fired a worker due to his autism. This happened in South Jersey. Anthony Cardone spent 37 years as a grill cook at various McDonald’s locations and received various awards during his tenure. Anthony has autism and it is obvious from how he communicates. He can have difficulty modulating his voice, especially when agitated, as noted in the post. His autism manifested this way during the entirety of his employment. In March 2018 a new (Swedish) company bought the location where he had been working since 2008. A few months later, his autism caused him to become agitated and raise his voice. He was fired. After filing a charge with the EEOC, it tried to conciliate but failed. Suit was then filed on September 2, 2021, requesting not only backpay with interest, but the other things noted in the post.
TAKEAWAY: Know the law; make sure not to take adverse action against a protected person (or person with a protected characteristic) unless it is proven to be job-related and does not otherwise violate a law.