As employers begin recalling their workers, the topic of mandatory vaccinations has seemingly taken center stage. Of course, employers have a duty to provide a safe working environment to their employees. However, employers also have a countervailing duty to engage in a good-faith interactive process to accommodate the disabilities or sincerely held religious beliefs of their employees.
There are certain persons who suffer from disabilities that do not permit them to be vaccinated. While the ADA permits employers to have a “qualification standard” that employees do not pose a direct threat to the health or safety of individuals in the workplace, if this standard tends to screen out disabled employees, the employer must show that there is a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” In order to make this showing, the employer must first engage in a good-faith interactive process with the employee to accommodate the disability. Because the use of teleworking became more prevalent during the pandemic, continued telework is likely to be considered a reasonable accommodation for office workers. On the factory floor, the continued use of masks may also serve as a reasonable accommodation under the ADA for these disabled workers.
Because Title VII protects workers from religious discrimination in the workplace, employers should also take care to properly address requests for religious accommodation made by employees who wish to decline the vaccine on the basis of a sincerely held religious belief. The accommodation process here is similar to the process followed under the ADA.
To better assess the risk that unvaccinated members of the workforce may pose in the workplace, an employer is permitted to ask its employees whether they have received the vaccine, as such a question is not considered a “disability-related inquiry.” However, employers should be wary of adopting this route, as the information gleaned must be stored in a file separate from the employee’s regular personnel file, and further inquiries into the reason for receiving or not receiving the vaccine may not be permitted.
The topic of employers requiring vaccines as a condition of employment presents numerous pitfalls. And as with most aspects of the law, navigating it will not be subject to a one-size-fits-all approach. Employers and employees should consult experienced legal counsel to be fully advised of their rights and obligations under the law. If you need assistance with these matters, feel free to consult Stephen E. Imm (513.943.5678) or Matthew S. Okiishi (513.943.6659).
In order to best serve our clients, the Finney Law Firm’s Employment Law team closely tracks proposed Ohio, Kentucky, and federal employment legislation. The Ohio General Assembly and Kentucky Legislature are currently debating small, yet significant, changes to their employment laws.
Ohio
In Ohio, Senate Bill 47 would amend Ohio’s wage and hour statute, O.R.C. 4111.01, et seq., to incorporate the federal “Portal to Portal Act” into Ohio law. Should the bill pass, the proposed O.R.C. 4111.031 Ohio would explicitly eliminate employees from being compensated for time travelling to and from the place of performance, activities that are preliminary to or postliminary to the principal activities, and activities requiring insignificant or de minimis time. The rule would not apply where the activities are preformed either during the regular work day or during prescribed hours, or at the direction of the employer.
As S.B. 47 merely harmonizes Ohio law with the federal Fair Labor Standards Act, most Ohio employers should be unaffected by the changes. However, all employers should have a knowledgeable employment attorney review their policies and procedures for the handling of out of office work, especially in regards to emails. While a simple review of an email outside of work hours is likely de minimis time, an email requiring a substantive response or directing to an immediate task would likely not be exempt time under the proposed O.R.C 4111.031.
Kentucky
Kentucky is currently one of 26 states with laws that prohibit discriminating against smokers who otherwise comply with workplace rules. Senate Bill 258 would eliminate protections for smokers from K.R.S. 344.040, allowing employers to, among other things, require an employee or job applicant to abstain from smoking or using tobacco during or outside of the course of employment. Should the bill pass, Kentucky employers would be permitted to modify their handbook and hiring policies to exclude smokers and create a generally healthier work environment.
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Please contact Stephen E. Imm (513.943.5678) of Matthew Okiishi (513.943.6659) for help with an employment law issue.
After years of lobbying from employers and defense counsel seeking to overhaul Ohio’s workplace discrimination laws, Governor DeWine signed House Bill 352 into law on January 12, 2021. The new law tips the scales in favor of employers in workplace discrimination cases. The changes will impact the way employment law attorneys practice and their clients pursue, or defend, workplace discrimination claims. Let’s take a look at some of the most significant changes to the law:
Limits Liability for Individual Supervisors
The new law excludes persons acting directly or indirectly in an employer’s interest from the definition of an “employer” under the Ohio Civil Rights Law. This change means that individual supervisors cannot be held personally liable for workplace discrimination claims if they were acting in the interest of an employer except in limited circumstances. Individual supervisors can be held personally liable if it is determined they acted outside of the scope of their employment, retaliated against the complainant, or obstructed the complainant from pursuing a claim with the Ohio Civil Rights Commission (OCRC).
Establishes a Specific Procedure for Employment Discrimination Claims
Under the current law, plaintiffs can file workplace discrimination claims with the OCRC or in a county court. The new law removes this choice and requires that an individual first file a charge with the OCRC before she may file a civil lawsuit. Once a charge is opened with the OCRC, the agency will begin an investigation. After sixty days, the complainant may request a notice of right to sue from the OCRC. After the complainant receives a notice of right to sue from the OCRC (or more than 45 days have passed without a response to the request) the complainant may file a civil lawsuit. An individual may also file a lawsuit if she obtains a notice of right to sue from the Equal Employment Opportunity Commission (the agency that enforces federal employment discrimination laws).
If the OCRC finds it probable that workplace discrimination has occurred, the complainant will have the choice of allowing the OCRC to prosecute the claim (including attempting to resolve the claim through alternative dispute resolution) or to withdraw from the administrative process and file a civil lawsuit in the county courts.
Statute of Limitations for Workplace Discrimination Claims
For most claims, the current law allows a person to bring a lawsuit alleging violation of the Ohio Civil Rights Law within six years after the alleged discriminatory act occurred. The new law requires a plaintiff to file suit based on workplace discrimination within two years. The statute of limitations is tolled while a charge based on the same allegations is pending with the OCRC.
Affirmative Defenses for Employers in Sexual Harassment Cases
The new law affords employers an affirmative defense to a claim for vicarious liability in which an employee alleges that a supervisor created a hostile work environment through sexually harassing behavior. In the typical sexual harassment case, an employee alleges that a specific boss or supervisor subjected the employee to a hostile work environment, and the employee seeks to hold both the supervisor and the company/employer liable. Under the new law, the employer can raise an affirmative defense to these claims if it can prove: (1) that it had an effective harassment policy; (2) that it properly educated employees about the policy and complaint procedures; (3) that it exercised reasonable care to prevent or promptly correct the harassing behavior; and (4) that the complainant failed to take advantage of any preventative or corrective opportunities. This is basically a re-statement of current federal law governing sexual harassment claims.
Age Discrimination Claims
Plaintiffs have previously pursued employment-based age discrimination claims through a variety of statutory mechanisms. The new law clarifies that age discrimination claims must be pursued through the same avenues in which all other workplace discrimination claims are pursued – i.e. – the process discussed above.
Takeaways
In order to pursue a workplace discrimination claim at the federal or state level, a plaintiff must have an understanding of the administrative procedures required by the EEOC and the OCRC. An individual subjected to workplace discrimination risks losing her claim if she fails to timely pursue an action or fails to adhere to the administrative procedures required to lodge a claim. The Finney Law Firm has experienced employment attorneys dedicated to protecting the rights of employers and employees in the workplace. We can help you navigate these claims at both the federal and state level.
For more information on this new statute, contact Brad Gibson (513.643.6661). Read more about our Employment Law practice here.
Those of us old enough to remember the Watergate scandal from the early 1970s will remember that what brought down Richard Nixon’s presidency was not the burglary of the Democratic National Headquarters in the Watergate Hotel, but rather the cover-up that followed the burglary. A similar principle can be seen in employment law. Often, it is not original act of alleged discrimination or harassment that brings down an employer, but rather a subsequent act of retaliation the employer engages in against the employee who accuses it of discrimination or harassment.
Let’s say you are an employer, and one of your employees claims that they are being paid less than their co-workers because of their sex or race. You, as the employer, happen to know that is not true. You have legitimate, non-discriminatory reasons for paying this particular worker less. Perhaps he is less productive than his co-workers, or perhaps he has less experience. Nevertheless, you find yourself being falsely accused of race or sex discrimination.
You understandably are angry, right? You have been falsely accused of a really bad act. Essentially, you have been accused of being a racist or sexist. Can’t you fire the employee who has made this false accusation against you?
No, you can’t. At least not legally.
Retaliation is a normal human response. That is why it happens so often. When any of us is attacked, regardless of whether the attack is physical or verbal or otherwise, our immediate impulse is to retaliate. It is almost a reflex. We instinctively act to defend ourselves from the attacker. That is why retaliation claims are so common, and why they get so many employers into trouble. When we retaliate, we are just doing what comes naturally.
Despite retaliation being a normal and natural human response, in this context the law says the employer CANNOT legally do it. As long as the employee has a reasonable belief that his allegation is true – even if he turns out to be completely wrong – the employer is prohibited from retaliating against him in any form for making the accusation. This principle not only applies when the accusation is made as part of a formal legal action, such as filing a charge with a government agency, but also when an accusation is made informally, such as in a conversation with a supervisor or human resources employee.
The prohibition against retaliation is very broad. Prohibited retaliation includes not just obvious actions like firing the employee, but also more subtle actions, such as harassment, excluding the employee from opportunities for overtime, or denying the employee a promotion.
If you have questions about your rights as an employer or an employee when it comes to retaliation, it is wise to seek the advice of an experienced employment attorney before you act. Just remember what happened to Richard Nixon!
On June 15, 2020, the Supreme Court of the United States, in Bostock v. Clayton County, Georgia, held that gay and transgender employees may not be fired merely for being gay or transgender. In a 6-3 decision, the Court held that termination on the basis of gender identity or sexual orientation violates Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of sex, race, color national origin, or religion.
The Court only addressed the issue of whether termination on the basis of gender identity or sexual orientation is prohibited under Title VII. However, employees and small businesses should be aware that it is a near certainty that all forms of discrimination on the basis of sexual orientation or gender identity, including harassment, pay disparity, and discrimination in hiring and promotion decisions, are now prohibited under Title VII.
Title VII only applies to employers with more than 15 employees, and current Ohio and Kentucky jurisprudence has held that their respective antidiscrimination laws (Revised Code 4112.02, et seq. and Kentucky Revised Statutes 344, et seq.) do not prohibit discrimination on the basis of sexual orientation or gender identity. As a result, it is possible that businesses with less than 15 employees will not be affected byBostock. However, Ohio and Kentucky courts normally interpret their states’ antidiscrimination laws in a manner consistent with the interpretation of Title VII. Therefore, there is a very good chance that the protections now afforded to gay and transgender persons by Title VII will also be applied to smaller employers in Ohio and Kentucky.
The employment attorneys at the Finney Law Firm take pride in staying up-to-date with recent developments in employment law, including the recent Covid-19 leave requirements and expansion of Title VII protection. Employers and employees should consult experienced legal counsel to be fully advised of their rights and obligations under the law. For assistance with these matters, consult Matthew S. Okiishi (513.943.6659) and Stephen E. Imm (513.943.5678).
Today, Finney Law Firm attorney Matt Okiishiparticipated in a panel discussion for the public sponsored by the Cincinnati Bar Associationon employment law issues presented by the COVID-19 crisis.
That discussion is now on line. You may watch it here.
Matt Okiishi devotes his practice to the employment law arena, representing both employers and employees in disputes, which include wage and hour issues, Family and Medical Leave Act issues, and illegal discrimination based upon age, race, gender, handicap, national origin, and other protected classifications. He has written extensively on COVID-19-related employment legislation on this blog.
Please contact Matt (513.943-6659) for help with your employment law issues.
Today at 3 PM Finney Law Firm attorney Matt Okiishi co-presents to the public (not just CBA members) at the Cincinnati Bar Association with attorney Kelly Mulloy Myers on “legal issues in the wake of COVID-19.”
It is simply a 30-minute program of pre-selected questions submitted by the public on the noted topic.
A link to the Facebook announcement about the program is here and you can sign up for the program thru that link.
According to Lieutenant Governor John Husted, Ohio is working to process a massive increase in applications for Ohio unemployment benefits. More people have applied for Ohio unemployment benefits over the last month than had applied for such benefits in the last two years.
Expanded unemployment benefits
Additionally, the CARES Act expanded unemployment benefits to cover self-employed and independent contractors and promised an additional $600 per week on top of what the state pays. This has all resulted in slow processing times and numerous questions.
Answers to FAQs
The State is working to answer those questions and decrease processing times. Here are some updates:
Claim number: If you are filing a claim due to COVID 19, use the mass layoff number 2000108 on applications.
Self-employed and independent contractors: The State will start taking your information but anticipates it will not be able to process or pay benefits until May 15 of this year. Once processed and approved, however, benefits will be retroactive.
Additional $600 per week: These additional payments should be starting now.
Efforts to alleviate slow processing time: Ohio Department of Job and Family services is adding 337 new employees, text-to-speech capabilities, and adding a virtual call center.
Funding challenges: According to Husted, without federal assistance Ohio’s unemployment system is on track to run out of funds in June, but, he says, that doesn’t mean Ohioans will lose their benefits. State legislators are working to resolve this issue.
If you have questions on this or other relief available for small businesses, self-employed, and independent contractors during the COVID 19 crisis, please contact Rebecca L. Simpson at 513.797.2856.
As a result of the current pandemic, millions more Americans are working from home than there were just a month ago. This significant change in circumstances presents a good opportunity for employers to review their policies when it comes to recording the hours worked by their employees, and the payment of overtime.
Remember that employees who earn at least $684 a week, and who are otherwise “exempt” from the overtime requirements of federal and state law, do not have to be paid additional wages or salary when they work more than 40 hours in a week. Keeping track of the hours these exempt employees work when they are working at home, therefore, is not important from a legal point of view.
Exempt or non-exempt?
This is a good time, however, for employers to make sure that they are correctly classifying their employees as exempt or non-exempt. If an employee is misclassified as “exempt” when he or she is not truly exempt from the overtime laws, the employer can be exposed to significant liabilities for unpaid overtime compensation and additional amounts.
For non-exempt employees, working from home creates some definite challenges when it comes to keeping track of hours worked, and making sure they are paid appropriately. All employers are required to keep accurate records of the hours worked by their non-exempt employees. Note that it is the employer’s responsibility – not the employee’s responsibility – to make sure that these accurate records are kept and maintained. For obvious reasons, it can be harder to keep track of an employee’s hours worked when he or she is working remotely, as opposed to when he or she is working on the employer’s premises.
Time-tracking policies
To make sure that employers comply with their duty to keep accurate time records, they should either have a software solution in place that keeps track of when an employee clocks in and out, or require employees to submit daily timesheets. Employees should also be reminded to clock in and out for lunch, and should be refreshed on the employer’s policies regarding authorization for overtime work.
It is also a good idea to tell employees, when working from home, that they are expected to maintain the same work schedule that they had when working at the employer’s physical location.
Conclusion
Whether you are an employer or an employee, if you have questions or need clarification about this complicated area of the law, please feel free to reach out to one of our employment attorneys. And stay safe!
On April 6, 2020, the Department of Labor published its temporary rules for the Families First Coronavirus Response Act (“FFCRA”). Our firm has written prior entries regarding the FFCRA and Covid-19’s impact on the workplace, and I previously noted that a significant portion of the FFCRA would require additional federal guidance to understand. The rules define qualifying reasons for leave, employer and employee notice obligations, and the small business exemption.
Key Definitions
Under the new rules, a “Child Care Provider” is a provider who receives compensation for providing child care services on a regular basis and is licensed under state law. However, a Child Care Provider does not need to be compensated or licensed if they are a family member or friend who “regularly cares for the employee’s child.”
“Place of Care” means the physical location where care is provided for the Employee’s child while the employee works for the employer.
“Son or Daughter” includes biological, adopted, and foster children. It also includes stepchildren, legal wards, or the child of a person standing in loco parentis. Son or Daughter can also include persons over the age of 18 when that person is incapable of self-care because of a mental or physical disability.
“Subject to a quarantine or isolation order” includes the “shelter in place” or other general orders issued by states and municipalities in response to the Covid-19 epidemic, and includes when a governmental authority has advised certain categories of citizens to shelter in place.
Application to Emergency FMLA Leave
The qualifying reason for Emergency FMLA leave is narrow, applying only to employees who are unable to work or telework due to the need to care for a Son or Daughter if the child’s school or Place of Care is closed or the Child Care Provider is unavailable due to the Covid-19 pandemic. But as stated previously, the definition of a “Child Care Provider” is quite broad, including family members and other persons who regularly care for a child out of a neighborly or familial bond. Similarly, a “Son or Daughter” includes the full spectrum of children and persons who are regularly under the care of a parent. As such, it would be improper for an employer to deny EFMLA leave to an employee because the child is not necessarily a biological relative or the Child Care Provider is not a licensed day care.
Paid Sick Leave Implications
The six reasons for paid sick leave have also been impacted by the new regulations:
1. Subject to a federal, state or local quarantine or isolation order related to COVID-19.
Employees are only considered to be “subject to a quarantine or isolation order” when, but for being subject to the order, they would be able to perform work that is otherwise allowed by their employer. When the order shuts down the employer’s operations, an employee is not entitled to paid sick leave.
2. Advised by a health care provider to self-quarantine due to COVID-19 concerns.
A health care provider has advised self-quarantine only when the advice is based on a belief that the employee (1) has Covid-19; may have Covid-19, or the employee is particularly vulnerable to Covid-19 and (2) this advice prevents the employee from being able to work at the employer’s workplace or through telework.
3. Experiencing COVID-19 symptoms and seeking medical diagnosis.
The employee must be experiencing a fever, dry cough, shortness of breath, or any other recognized Covid-19 symptom from the CDC, and must be seeking a medical diagnosis. Paid sick leave under this reason is limited to the time the employee is unable to work because of their affirmative steps to obtain the diagnosis.
4. Caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns.
“Individual” is an immediate family member, person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for them. Employees may only take leave under this reason if, but for a need to care for the individual, the Employee would be able to perform work for their employer at the workplace or through telework.
5. Caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
Subject to the same EFMLA definitions, an employee may only utilize this reason if no other suitable person is available to care for the Son or Daughter during the period of such leave.
6. Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services (“HHS”) in consultation with the Secretary of the Treasury and the Secretary of Labor.
At the time of this posting, it does not appear that HHS has provided other “substantially similar conditions.”
Intermittent leave and Notice
Employees may only take intermittent leave under the FFRCA’s Emergency FMLA or paid sick leave provisions when the employer agrees. However, an employer may be required to grant “intermittent” leave when an employee is actively seeking a medical diagnosis, as doctor’s visits typically require employees to leave their worksite or telework desk.
Because of the rapid development of Covid-19 symptoms and an employee’s need for leave, the Department of Labor is not requiring employees to notify employers about their need for emergency FMLA or paid sick leave as soon as practicable. Instead, the Department generally advises employers to be proactive in notifying employees of the failure to give notice and an opportunity to provide documentation prior to denying the request for leave. Notice may only be required after the first workday where the employee takes EFMLA or paid sick leave.
From a content perspective, it is reasonable for an employer to require enough information to determine whether the requested leave is covered. This documentation is generally limited to: (1) the employee’s name; (2) dates for which leave is requested; (3) qualifying reason; and (4) a statement (oral or written) that the employee is unable to work because of the qualified reason for leave. For specific reasons, such as quarantine, doctor’s orders, or care for a child, additional documentation may be required. Employers are also permitted to seek information that is needed to support tax credits pursuant to the FFCRA.
Small Business Exemption
Employers with less than 50 employees may be exempt from providing paid sick leave or emergency FMLA leave when the imposition of such requirements would “jeopardize the viability of the business as a going concern.” An employer is entitled to this exemption when an authorized officer has determined that:
The leave requested would result in the business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
The absence of the employee or employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business or responsibilities; or
There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services by the employee or employees requesting leave and these labor or services are needed for the small business to operate at a minimal capacity.
Small businesses must document an exemption determination internally and maintain the records in its files.
Conclusion
The FFRCA has changed the way business is done in this country, albeit on a temporary basis (The FFRCA sunsets on December 31, 2020). In approaching requests for leave, the law and regulations contemplate that employers will engage in a thoughtful and well-documented manner and avoid knee-jerk reactions or blanket assertions of “business viability.” Employers of all sizes would be well-served to engage competent legal counsel to assist in navigating the FFRCA’s new requirements.
The Finney Law Firm’s labor and employment attorneys are well-versed in the rights and obligations of both employers and employees, including the rapidly evolving COVID-19 changes. For assistance with these matters, consult Matthew S. Okiishi (513.943.6659) and Stephen E. Imm (513.943.5678).
