APPLIES TO All Employers with 15+ Employees

EFFECTIVE June 21, 2022

QUESTIONS? Contact HR On-Call (888) 378-2456

In Rice-Smith v. Misericordia Convalescent Home, a federal court in Pennsylvania stated that a nurse’s disability discrimination claim under the Americans with Disabilities Act (ADA) could proceed in litigation even though the employer had no actual evidence of her alleged medical condition. Verbal notice from the employee was enough to be possibly regarded as having a disability, which is a protected status even if the individual does not in fact have a disability. 

 

In this case, an employee told her employer’s director of nursing during the interview process that she had multiple sclerosis and needed to use a cane while working. After her hire, the employee had a number of behavioral issues including using her phone while working, insubordination, and instigating confrontations. Ultimately, the employee was discharged for her ongoing disciplinary issues following a confrontation with a co-worker, which she blamed on medication she was taking for her multiple sclerosis. The employee also claimed the director of nursing made comments about her multiple sclerosis during the termination meeting, which he denied.  

 

The court stated that the ADA disability discrimination claim could proceed because simply disclosing her medical condition in her interview and requesting the use of a cane was enough information to establish that the employer may have regarded her as having a disability, despite the fact that the employee did not provide any evidence that she actually had multiple sclerosis. Also, the director of nursing’s text message coupled with his alleged statements at the termination meeting were enough to cast doubt that the disciplinary issues were the true reason for the discharge. This case should serve as a further warning that merely regarding someone as having a medical condition or disability is enough to advance claims of ADA discrimination.  

 

Action Items 

1. Have appropriate personnel trained on managing discipline for employees in protected categories. 
2. Consult with legal counsel before making adverse employment decisions against an employee who is perceived to be or regarded as having a disability or medical condition. 
3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance. 

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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase

Arizona: Unemployment Benefits Eligibility Without a COVID-19 Vaccine or Booster 

Effective July 6, 2022, SB 1494 makes Arizona employees eligible to receive unemployment benefits even if the reason for their separation was due to not receiving a COVID-19 vaccine or booster in accordance with the employer’s policy. If the employer’s vaccine mandate was due to a lawful requirement, then the unemployment benefits paid will not be charged against that employer’s account. Employers requiring COVID-19 vaccinations and boosters due to specific laws should review and revise their policies to make sure the legal requirements are clear. 

 

Glendale, CA: New Hotel Worker Protections 

As of July 27, 2022, the Glendale Hotel Workers Protection Ordinance implements a required minimum wage, limits mandatory overtime, creates maximum square footage requirements for housekeepers, and requires “panic buttons” for workers assigned to clean rooms alone. There are also notice requirements for guest rooms. Training on the Ordinance is required for new hires and annually for all employees. 

 

Los Angeles, CA: New Hotel Worker Protections 

Effective July 7, 2022, the Regarding Workplace Security, Workload, Wage, and Retention Measure for Hotel Workers Ordinance provides a number of safety, workload, and wage and hour protections for hotel workers. Mostly notably, hotels must provide personal security devices or personal alarms to hotel workers, post notices in hotel rooms, and provide training on the Ordinance to all employees and new hires. Hotel workers who report violent or threatening conduct are protected from adverse action and paid time off to report incidents to law enforcement and to consult with a counselor. The Ordinance also contains new workload limitations which limit the number of rooms and maximum square footage cleaned in a specific time frame as well as some changes in the calculation for overtime. Overtime is now voluntary, and hotel workers must consent in writing to work more than 10 hours in a workday.  

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APPLIES TO All Employers

EFFECTIVE July 12, 2022

QUESTIONS? Contact HR On-Call (888) 378-2456

The Equal Employment Opportunity Commission (EEOC) recently updated its “What You Should Know” guidelines for employers conducting COVID-19 screening in the workplace in compliance with the Americans with Disabilities Act (ADA). There are six important areas employers should reevaluate and revise in their COVID-19 screening policies in connection with the recent update.

 

A COVID-19 viral test is a medical examination under the ADA, so employers must show the testing is job-related and consistent with business necessity. Employers should consider the following factors in their determination: community transmission levels and transmissibility of current variants, accuracy and processing speed of different viral tests, vaccination status, working conditions, and potential impact of positive cases on operations. It is the burden of the employer to regularly check CDC, FDA, and other public health authority guidance before implementing testing procedures.

Antibody tests should not be used to permit reentry of the workplace. CDC guidelines state that antibody tests do not show whether an employee is immune to infection.

Screening questionnaires continue to be broadly permitted. Keep in mind that employers generally cannot screen remote employees or those who do not have in-person contact with co-workers, customers, or business partners.

Employers may choose to require a healthcare provider note certifying the eligibility of an employee to safely return to work after testing positive for COVID-19. In the event an employer requests a doctor’s note, they should prepare themselves for the possibility that local healthcare professionals unwilling to provide documentation at all.

Screening job applicants for COVID-19 symptoms before starting work is permissible. The screening should be consistent with the type of screening everyone receives for the same type of job and for anyone who enters the worksite. Screening may only occur after making a conditional job offer, unless the employer screens all persons entering the facility (e.g., workers, visitors, customers, general public).

Revoking a job offer after a positive COVID-19 test, symptoms, or exposure should only be done in limited circumstances. If the new hire cannot telework or a short isolation or quarantine period is not an option, you can revoke the job offer if the following conditions are met: a) the job requires an immediate start date; b) CDC guidance recommends the person not be in proximity to others; and c) the job requires proximity to others in the workplace or elsewhere.

Remember the EEOC also enforces other anti-discrimination laws. Employers should also make sure their testing requirements comply with the Rehabilitation Act, Title VII of the Civil Rights Act, and the Age Discrimination in Employment Act.

 

Action Items

1. Review the updated guidelines here.
2. Review and revise policies for compliance.
3. Have appropriate personnel trained on screening procedures.
4. Review with legal counsel before revoking a job offer due to COVID-19 status.
5. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase

APPLIES TO FMLA Employers with IL, IN, and WI Employees

EFFECTIVE June 1, 2022

QUESTIONS? Contact HR On-Call (888) 378-2456

In Ziccarelli v. Dart, the Seventh Circuit Court of Appeals stated that an employer discouraging an employee from taking FMLA leave without an actual denial of FMLA leave is sufficient to violate FMLA. FMLA states it is unlawful for a covered employer to “interfere with, restrain, or deny” an employee’s right to FMLA leave. The “attempt to exercise” FMLA is included among the protected activities named in the statute. Further, Department of Labor regulations implementing FMLA also define interference to include discouraging an eligible employee from using FMLA leave.

 

There, a corrections officer with the Cook County Sheriff’s Office informed his FMLA manager of his intent to use both FMLA and sick leave to enter into a doctor-recommended post-traumatic stress disorder treatment program. Despite having FMLA hours available for the remainder of the year, the FMLA manager warned the corrections officer that he would be disciplined for taking any more FMLA leave since he had already taken a significant amount. The corrections officer chose to retire rather than face potential discipline. In reaching its decision, the Seventh Circuit noted FMLA rights would be significantly diminished if employers could actively discourage employees from accessing FMLA benefits.

 

Action Items

1. Have appropriate personnel trained on FMLA requirements and employee rights.
2. Review employee process to request FMLA leave to ensure compliance.
3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase