In Exby-Stolley v. Bd. of Cty. Comm’rs, the Tenth Circuit Court of Appeal stated that failing to accommodate a disability under the Americans with Disabilities Act (ADA) is in and of itself grounds for a cause of action and does not require an “adverse employment action.” This is distinguishable from a disparate treatment claim under the ADA requiring that an employer take adverse employment action because of an individual’s disability.

There, an employee broke her arm while on the job and claimed she was not appropriately accommodated in order to do her job. As a result, her performance suffered which led to her separation of employment. However, the focus of the claim was the failure to accommodate her disability, which the ADA states is unlawful discrimination.

This case reinforces employer requirements to engage in the interactive process with employees in good faith to accommodate qualifying disabilities in accordance with the ADA. This ruling further widens the split among the circuit courts on this topic, which may eventually lead to U.S. Supreme Court review.

Action Items

The California Department of Public Health (CDPH) released additional guidance documents containing instructions on how employers should report outbreaks to local public health agencies.  The guidance documents supplement AB 685, a recent bill that implements COVID-19 reporting requirements effective January 1, 2021.  The new guidance documents provide information on how outbreaks should be reported right now, which closely follows the requirements of AB 685.

The first document, AB 685 Definitions, clarifies some ambiguities in the bill. It defines “outbreak” in a non-healthcare workplace as at least three COVID-19 cases among workers, not customers, at the same worksite within a 14-day period. It also sets forth definitions of the infectious period and laboratory-confirmed case of COVID-19.

The second document, Employer Questions About AB 685, contains an FAQ. It provides further details on what information employers must give to employees who have been potentially exposed to COVID-19, when to report COVID-19 cases to a local health department, and which employers must follow AB 685, among other things.  While AB 685 does not go into effect until January 1, 2021, it is important to note that the current CDPH guidance already requires employers to report outbreaks to local health departments.

Action Items

Montgomery County recently revised the standard necessary for employees to prove they suffered harassment in the workplace. Specifically, the Human Rights Law no longer uses the “severe or pervasive” standard required under federal law to show that behavior rises to the level of harassment. Rather, harassment has occurred if, in part, “a reasonable victim of discrimination would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance.”

Bill 14-20 further requires one of the following factors be met: (1) submission to the conduct is made either explicitly or implicitly a term or condition of an individual’s employment; (2) submission to or rejection of the conduct is used as a basis for employment decisions affecting the individual; or (3) the conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating a working environment that is perceived by the victim to be abusive or hostile. The same standards and protections were applied to sexual harassment.

Action Items

Recently, Michigan governor’s executive orders for responding to COVID-19 were invalidated in court. In the wake of that ruling, the state and local governments have been striving to put measures in place to manage the pandemic.

The Michigan Department of Health and Human Services (MDHHS) issued an October 29, 2020 Gatherings and Face Mask Order updating a previous order issued on October 9, 2020. The Order cites in part to its increased positive COVID-19 infection rate, 172 cases per million people, and positive tests have increased from about 2% to 5.5%. The Order adds limits on venue gatherings (50 people). It also limits in-person dining to six people per table, and the dining establishment must keep track of the names and phone numbers of the individuals dining in, as well as the date and time that they dined. Originally, this order was set to expire October 30^th; the full order has been amended to remain in place until rescinded, including the mask requirements.

Several bills were also recently passed to protect Michigan employers and went into immediate effect on October 22, 2020 and are retroactive to March 1, 2020.

• HB 6030 – Businesses in compliance with all COVID-19 laws are immune from liability for tort claims related to exposure to COVID-19. Notably, isolated, de minimis deviations from compliance with COVID-19 laws will not affect immunity as long as the violations are not related to an individual’s injuries.
• HB 6031 – Employers in compliance with all COVID-19 laws are immune from liability related to exposure to COVID-19. Notably, isolated, de minimis deviations from compliance with COVID-19 laws will not affect immunity as long as the violations are not related to an individual’s injuries.
• HB 6032 – Employees who have COVID-19 symptoms or have tested positive for COVID-19 must stay home until 24 hours have passed since fever has stopped without the use of fever-reducing drugs, 10 days have passed since onset of symptoms or positive test, and symptoms have overall improved. With exception for certain workers, employees who have been in close contact with someone who exhibits symptoms or tests positive must stay home either until 14 days have passed since last contact with the individual or there is a medical determination that the individual did not have COVID-19 at the time of the close contact. Symptomatic employees must get tested for COVID-19 within three days of receiving a request from their employer to do so. Employers cannot retaliate against employees who comply with the bill or oppose violations of the bill, as well as reporting health violations related to COVID-19.

Employers should continue to look for updates to the rules and guidance being issued in Michigan implementing further protections during the pandemic.

Action Items

1. Florida: Voters Approve Measure to Increase Hourly Minimum Wage to $15
2. New York: Guidance Issued on Statewide Paid Sick Leave
3. Wisconsin: New Notice Requirements for Employee Separations

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