December 2020 – Vol. 22, No. 12The Employer E-Letter: Labor and Employment Law News
from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association
Happy Holidays Edition
December 2020 – Vol. 22, No. 12
The Employer E-Letter: Labor and Employment Law News
from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association.
Co-Editors, Scott A. Witty, saw@hanftlaw.com and Richard R. Burns, rrb@hanftlaw.com, or 218.722.4766. Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
This Month’s Topics:
- EEOC ISSUES GUIDANCE ON EMPLOYER-MANDATED VACCINATION
- AFTER THE PANDEMIC, EMPLOYERS NOT REQUIRED TO ALLOW REMOTE WORK
- NLRB DECLINES JURISDICTION OVER FACULTY AT RELIGIOUS COLLEGES
- ACCOMMODATIONS FOR OPIOID USE AND ADDICTION IN THE WORKPLACE
- Tip Of The Month
EEOC ISSUES GUIDANCE ON EMPLOYER-MANDATED VACCINATION
COVID-19 vaccines are coming to a community near you. This is welcome news as we all look forward to returning to some form of normal life. It does raise a number of questions for employers, however, such as “can employers require employees to get a vaccine as a condition of continued employment?” The Equal Employment Opportunities Commission recently issued guidance on this question. The guidance stated employers can mandate that employees receive the COVID-19 vaccine as long as the vaccine is fully authorized by the FDA and is available to employees. “Emergency use authorization,” under which the currently approved vaccines are being distributed is not “full authorization” under the EEOC guidance. Thus, employers are not yet recommended to adopt a mandatory vaccination policy. The EEOC also stated in its guidance that employers can inquire whether an employee received the vaccine, but should not ask “why” an employee chose not to get the vaccine and should avoid “pre-screening inquiries,” as they risk falling outside the scope of “job-related and business necessity,” and thus violate ADA protections. If an employee defies the employer’s vaccine mandate based on alleged disability basis, the employer must determine whether the employee would constitute a direct threat due to a “significant risk of substantial harm to the health or safety of the individual and others that cannot be eliminated or reduced by reasonable accommodation.” If yes, the employer is required under the ADA to go through the interactive process to determine whether a reasonable accommodation exists. If an employee refuses an employer-imposed vaccine mandate based on religious practices or beliefs, the employer must consider whether there is an accommodation, but the threshold is much lower than in the disability context. Namely, an accommodation need not be provided where the employer can show “undue hardship,” which requires the employer only show the accommodation would be more than a de minimis cost or burden. At this time, employers should consider whether a vaccination mandate is necessary and appropriate for their workplaces. Such mandates are not permitted yet, but may be soon.
AFTER THE PANDEMIC, EMPLOYERS NOT REQUIRED TO ALLOW REMOTE WORK
On September 8, 2020, the Equal Employment Opportunity Commission (EEOC) provided guidance stating that employers who utilized teleworking during the COVID-19 pandemic are not automatically required to give disabled workers that same accommodation once the pandemic subsides.
The Americans with Disabilities Act (ADA) directs employees to provide workers “reasonable accommodations” to do their job. In certain situations, telework may be considered an appropriate accommodation. But the EEOC indicated that employers who allowed telework during the health crisis are not required to accept all remote work requests once the virus becomes less of a threat.
“The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules,” the EEOC’s guidance stated. Though an employer may have “temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, [that] does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not post an undue hardship.” Whether remote work is a viable accommodation is a fact-specific determination.
The EEOC also noted, however, that the temporary telework experience could be relevant to situations where an employee requested telework as a reasonable accommodation prior to the pandemic but was denied. If the employee renews the request, the employee’s ability to handle a remote work environment could factor into the ultimate decision.
NLRB DECLINES JURISDICTION OVER FACULTY AT RELIGIOUS COLLEGES
The National Labor Relations Board (NLRB) recently overturned a rule which gave the Board jurisdiction to allow faculty members at religious institutions of higher education to unionize through the NLRB. The Board’s previous jurisdictional standard—set forth in Pacific Lutheran University, 361 NLRB 1404 (2014)—required the Board to assess whether faculty members perform specific religious functions. The NLRB also adopted the Great Falls Test which requires the Board to decline jurisdiction over faculty members at religious institutions if the institution: (a) “holds itself out to students, faculty, and community as providing a religious educational environment”; (b) is “organized as a nonprofit”; and (c) is “affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.” University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002). Now, the NLRB will decline jurisdiction over faculty members at religiously affiliated colleges and universities that satisfy the Great Falls test. The Board reasoned that as a government entity, its assessment of specific religious job functions intrudes an area safeguarded by First Amendment’s religion clauses and such determinations should be made by the religious institutions themselves. Bethany College, 369 NLRB No. 98 (June 10, 2020).
ACCOMMODATIONS FOR OPIOID USE AND ADDICTION IN THE WORKPLACE
The U.S. Equal Employment Opportunity Commission (EEOC) recently issued guidance in relation to opioid use and the antidiscrimination and reasonable accommodation provisions of the Americans with Disabilities Act (ADA). Illegal drug use is not a covered disability, and employers may terminate or disqualify an employee based on current illegal opioid use. However, an individual’s lawful use of opioid treatment medications and recovered opioid addicts are protected from disability discrimination and may have a right to reasonable accommodation under the ADA. Reasonable accommodations typically include break time flexibility, changes to work schedule, and position transfers–employers do not have to lower performance standards, eliminate essential functions of the job, or allow illegal drug use on the job. Regarding drug testing, the EEOC recommends employers give employees an opportunity to provide information about possible lawful opioid use and inquire about positive test results. The guidance also explains health care providers play a pivotal role in assessing appropriate workplace accommodations. Upon an employee’s request, medical providers should document opioid-related conditions and describe relevant medical concerns and behaviors as it relates to employee’s workplace and job functions. Specifically, the guidance recommends medical documentation include the following: 1) the provider’s qualifications and length of relationship with patient; 2) the nature of patient’s medical condition; 3)patient’s functional limitations in the absence of treatment, including description of condition limits activities when symptoms are at their worst; 4) the need for reasonable accommodation, describing how the patient’s condition makes a change at work necessary; and 5) suggested accommodation. Employers may use documentation provided by employees to evaluate a reasonable accommodation request. If employers inquire regarding safety risks, providers should provide information to assess the level of risk posed by the disability. While EEOC guidance does not change existing law, employers should take note of the EEOC’s expectations regarding reasonable accommodations.
TIP OF THE MONTH:
Employers should pay close attention to state and federal government actions with respect to numerous COVID-19-related restrictions, rules and aid/benefits that are currently set to expire at the close of 2020. This includes FFCRA leave and benefits and unemployment assistance. There is, of course, the possibility that federal legislation could be passed that extends such deadlines, but that remains to be seen at this time. We will continue to provide updates through the Employment E-Letter as new information is released.
2021 EMPLOYMENT AND LABOR LAW SEMINAR:
Due to COVID-19, we will not be holding the Annual Employment and Labor Law Seminar in March 2021. We expect the seminar to resume in 2022.
Hanft Fride’s business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth, Minnesota. Visit our website at www.hanftlaw.com for general information on the firm and our attorneys. Our employment lawyers include Tom Torgerson, Rob Merritt and Scott Witty. Richard Burns is now of Counsel.
The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E‑letter.
To subscribe or unsubscribe to Employer E-Letter, e-mail your request to jaw@hanftlaw.com or call Scott Witty at 218.722.4766.
Copyright 2020 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; Fax 218.529.2401.