Co-Editors, Scott A. Witty, firstname.lastname@example.org and Richard R. Burns, email@example.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 UPDATES AT-RISK WORKER GUIDANCE
- DOL CLARIFIES HOW CLOSURE OF SUMMER CAMPS/PROGRAMS AFFECTS PAID LEAVE UNDER THE FFCRA
- UNITED STATES SUPREME COURT UPHOLDS EXPANSIVE RELIGIOUS AND MORAL EXEMPTIONS TO THE AFFORDABLE CARE ACT’S (“ACA”) CONTRACEPTION MANDATE
- Is Mandatory Severance Pay Coming?
- Tip Of The Month
EEOC UPDATES AT-RISK WORKER GUIDANCE
In mid-June the EEOC updated guidance in regard to employers’ response to the novel coronavirus pandemic. This is part of an ongoing effort to answer questions in the areas covered by the EEOC. www.eeoc.gov/coronavirus
In the mid-June update, the EEOC made it clear that employers cannot “involuntarily” exclude workers simply because they are over age 65, and therefore in a group with increased risk issues. It does not matter that the employer believes it is providing protection to these employees as under the Age Discrimination Employment Act (ADEA) businesses cannot exclude anyone from the workplace solely because of their age. On the other hand, it is permissible to provide greater flexibility to employees in the over age 65 group, noting in the guidance that the ADEA “does not prohibit this even if it results in younger workers age 40 to 64 being treated less favorably based on an age in comparison.” Under the Americans With Disabilities Act (ADA), pregnant employees cannot be involuntarily barred from coming back to work, and further it may be required that the employer provide reasonable accommodations to such persons under the ADA or the Pregnancy Discrimination Act. Another important area addressed was whether an employee can ask for a reasonable accommodation due to the fact that an at-risk person, such as a parent, resides with the employee. In this regard, the guidance says workers are not entitled to such an accommodation. It provides an example of a person who does not have a disability, but asks for one during the pandemic as an accommodation in order to safeguard the health of an at-risk family member who has a disability. In this regard, the ADA does not require the employer accommodate an employee without a disability based on the disability-related needs of a family member or other person. Finally, the guidance warned that harassment via email by an employee who is teleworking is to be treated the same as if the alleged misconduct occurred on site. It was suggested employers may want to provide a reminder on this topic.
In another update of the guidance, the EEOC affirmed that employers are free to test employees for the virus, however, they may not require antibody tests. The EEOC determined an antibody test was a medical examination under the ADA and “does not meet the ADA’s job related and consistent with business necessity” standard for medical examinations.
The Department of Labor (“DOL”) recently issued guidance regarding the impact of closure of summer camps and programs on employees’ entitlement to Expanded Paid Sick Leave (“EPSL”) and Expanded FMLA (“EFMLA”) under the Families First Coronavirus Act (“FFCRA”).
According to the DOL, if an eligible employee is unable to work because their child’s place of care is closed due to COVID-19, the FFCRA requires employers to provide the employee with paid leave. Summer camps and summer enrichment programs are specifically included in the definition of “place of care.” An employee who requests paid leave under the FFCRA because their child’s summer camp/program closed must submit the same information they would for closure of a school or daycare, including the name of the school. The requirement to name a specific summer camp/program may be satisfied if the child, for example, applied to or was enrolled in the summer camp or program before it closed, or if the child attended the camp/program in the prior summers and was eligible to attend again, or if there are other circumstances that show an employee’s child’s enrollment or planned enrollment in a camp/program.
The guidance further states that when Wage & Hour Division investigators evaluate whether an employee was improperly denied FFCRA leave based on the closure of a summer camp/program, they “should consider whether there is evidence of a plan for the child to attend the camp or program or, short of a “plan,” whether it is still more likely than not the child would have attended the camp or program had it not closed due to COVID-19. But a parent’s mere interest in a camp or program is generally not enough.”
Accordingly, employers should obtain and evaluate the necessary information regarding the camp/program when determining whether to approve an employee’s request for EPSL/EFMLA leave based on the closure of a summer camp/program.
On July 8, 2020, the Supreme Court handed down its hotly anticipated ruling in Little Sisters of the Poor v. Pennsylvania, No. 19-431 (2020), which concerned long running challenges to the ACA’s contraception mandate. Specifically, Little Sisters addressed whether the Trump administration’s expansion of the religious and moral exemptions from the ACA’s contraception mandate should be upheld. Under the Trump administration, the definition of exempt religious employers was greatly expanded to include employers that object to the contraception mandate “based on sincerely held religious beliefs” or “sincerely held moral” objections. As a result, any company that is not publicly traded is permitted to opt out of the contraception mandate by simply citing a “sincerely held religious or moral objection.” The Supreme Court concluded that under the terms of the ACA the Trump administration was within its discretion to define and expand the contours of the exemptions. Therefore, it upheld the new regulations. While the ruling was a victory for religious employers, the scope of the ruling was relatively narrow because it was based on a regulatory analysis and not the broader religious liberty arguments that have been hotly litigated over the last decade. Thus, the broader dispute over an employer’s ability to opt out of legal requirements based on sincerely held religious or moral beliefs is far from over.
Many states, particularly in the era of paid sick leave and a much higher minimum wage have gone beyond what the federal government has provided. A new twist has now come forward from New Jersey, which has a paid severance provision. It is somewhat limited as it only covers companies with more than 100 employees and who suffer “mass layoffs”, which is more than 50 people. In those situations, however, an employee must be paid at least a week’s wages for every year of employment. Moreover, if an employee is not provided a required 90 day notice, they receive an additional four weeks of pay. For New Jersey employers, this law becomes effective July 2020. Other worker friendly state legislatures may adopt a similar provision or even broader coverage.
TIP OF THE MONTH:
With many business sectors continuing to re-open while COVID-19 infection rates simultaneously increase across the country, it is important to remind businesses to continuously assess the workplace to identify potential exposure hazards and consider the need and use of personal protective equipment to avoid such hazards. The City of Duluth just adopted an Ordinance requiring employees and customers to wear face coverings in publicly accessible areas in any building open to the public. While there are exceptions to the mandate, including areas in the workplace where customers or the public are not permitted, employers are obligated to provide a safe working environment for all employees, which may mean reminding employees of social distancing rules and that employees experiencing COVID-19 symptoms to remain at home.
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.
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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.