Thursday, December 24, 2020

Ohio's Minimum Wage To Increase on January 1, 2021 and DOL amends FLSA's Tip Pooling Rules

At the end of September, the Ohio Department of Commerce announced that Ohio's minimum wage would increase again on January 1, 2021.  Ohio employers will also need to update the mandatory poster conveying the new wage and employee rights under Ohio's wage laws.  The new minimum wage has increased by a dime to $8.80/hour and a nickel for tipped employees to $4.40/hour plus tips.  With respect to tipped employees, the federal Department of Labor on Tuesday announced that it had issued a final regulation governing tip pools that will take effect in 60 days after publication in the Federal Register (assuming that the incoming administration does not rescind or postpone it before then).   As in prior drafts, employers who take the tip credit must promptly pay the tips and cannot require them to be shared with back-of-the-house workers or managers.  However, if the employer pays everyone at least the minimum wage and does not take the tip credit, then the employer may require that tips be shared with back-of-the-house employees (like cooks and dishwashers), but not with management.    Happily, managers may keep tips that are given to them directly by customers for services provided directly by them.  

The new FLSA regulation more explicitly regulates the meaning of "keeping" tips to restrict the delay in paying employees who participate in a tip pool. 

 (2) Full and prompt distribution of tips. An employer that facilitates tip pooling by collecting and redistributing employees’ tips does not violate section 3(m)(2)(B)’s prohibition against keeping tips if it fully distributes any tips the employer collects no later than the regular payday for the workweek in which the tips were collected, or when the pay period covers more than a single workweek, the regular payday for the period in which the workweek ends. To the extent that it is not possible for an employer to ascertain the amount of tips that have been received or how tips should be distributed prior to processing payroll, tips must be distributed to employees as soon as practicable after the regular payday.

The new regulation also governs and provides examples of when a tip credit can be taken for an employee who dual roles (as a tipped server and a non-tipped regular employee).

(e) Dual jobs. (1) In some situations an employee is employed in a dual job, as for example, where a maintenance person in a hotel also works as a server. In such a situation the employee, if he or she customarily and regularly receives more than $30 a month in tips for his or her work as a server, is a tipped employee only with respect to his or her employment as a server. The employee is employed in two occupations, and no tip credit can be taken for his or her hours of employment in the occupation of maintenance person.  

(2) Such a situation is distinguishable from that of an employee who spends time performing duties that are related to his or her tip-producing occupation but are not themselves directed toward producing tips. For example, a server may spend part of his or her time cleaning and setting tables, toasting bread, making coffee and occasionally washing dishes or glasses. Likewise, a counter attendant may also prepare his or her own short orders or may, as part of a group of counter attendants, take a turn as a short order cook for the group. An employer may take a tip credit for any hours that an employee performs related, non-tipped duties contemporaneously with his or her tipped duties, or for a reasonable time immediately before or after performing the tipped duties.  

The new regulation also modifies rules for calculating tip credits and overtime compensation for tipped employees.

531.59 The tip wage credit. (a) In determining compliance with the wage payment requirements of the Act, under the provisions of section 3(m)(2)(A) the amount paid to a tipped employee by an employer is increased on account of tips by an amount equal to the formula set forth in the statute (minimum wage required by section 6(a)(1) of the Act minus cash wage paid (at least $2.13)), provided that the employer satisfies all the requirements of section 3(m)(2)(A). This tip credit is in addition to any credit for board, lodging, or other facilities which may be allowable under section 3(m). (b) As indicated in § 531.51, the tip credit may be taken only for hours worked by the employee in an occupation in which the employee qualifies as a “tipped employee.” Pursuant to section 3(m)(2)(A), an employer is not eligible to take the tip credit unless it has informed its tipped employees in advance of the employer’s use of the tip credit of the provisions of section 3(m)(2)(A) of the Act, i.e.: The amount of the cash wage that is to be paid to the tipped employee by the employer; the additional amount by which the wages of the tipped employee are increased on account of the tip credit claimed by the employer, which amount may not exceed the value of the tips actually received by the employee; that all tips received by the tipped employee must be retained by the employee except for a tip pooling arrangement limited to employees who customarily and regularly receive tips; and that the tip credit shall not apply to any employee who has not been informed of these requirements in this section. The credit allowed on account of tips may 141 be less than that permitted by statute (minimum wage required by section 6(a)(1) minus the cash wage paid (at least $2.13)); it cannot be more. In order for the employer to claim the maximum tip credit, the employer must demonstrate that the employee received at least that amount in actual tips. If the employee received less than the maximum tip credit amount in tips, the employer is required to pay the balance so that the employee receives at least the minimum wage with the defined combination of wages and tips. With the exception of tips contributed to a tip pool limited to employees who customarily and regularly receive tips as described in § 531.54, section 3(m)(2)(A) also requires employers that take a tip credit to permit employees to retain all tips received by the employee.

 

§ 531.60 Overtime payments. When overtime is worked by a tipped employee who is subject to the overtime pay provisions of the Act, the employee’s regular rate of pay is determined by dividing the employee’s total remuneration for employment (except statutory exclusions) in any workweek by the total number of hours actually worked by the employee in that workweek for which such compensation was paid. (See part 778 of this chapter for a detailed discussion of overtime compensation under the Act.) In accordance with section 3(m)(2)(A), a tipped employee’s regular rate of pay includes the amount of tip credit taken by the employer per hour (not in excess of the minimum wage required by section 6(a)(1) minus the cash wage paid (at least $2.13)), the reasonable cost or fair value of any facilities furnished to the employee by the employer, as authorized under section 3(m) and this part 531, and the cash wages including commissions and certain bonuses paid by 142 the employer. Any tips received by the employee in excess of the tip credit need not be included in the regular rate. Such tips are not payments made by the employer to the employee as remuneration for employment within the meaning of the Act. 


NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

Tuesday, December 22, 2020

Sixth Circuit Remands Students' FLSA Claim Against Vocational School

 

Last week, a divided Sixth Circuit reversed the plaintiffs’ partial summary judgment and remanded a FLSA minimum wage case brought by cosmetology students against a for-profit vocational school based on janitorial services that the students were required to provide when the educational salons were not serving customers.   Eberline v. Douglas J. Holdings, Inc., No. 19-1781 (6th Cir. 2020).   The court’s majority held that “when a plaintiff asserts an entitlement to compensation based only on a portion of the work performed in the course of an educational relationship, courts should apply the primary-beneficiary test we laid out in Laurelbrook only to that part of the relationship, not to the broader relationship as a whole.”  In re-evaluating the claims, the trial court was directed to consider many factors, including “the plaintiffs’ lack of expectation of payment; the educational value, both tangible and intangible, of the tasks under scrutiny; and the displacement of paid employees to the school’s competitive benefit in the commercial marketplace, . . . . as well as any other considerations that may “shed light on which party primarily benefits from the relationship.”  The “additional considerations might include: the mandatory or voluntary nature of the tasks; the relationship of the work at issue to the school curriculum, state regulations, and the school’s stated mission and educational philosophy; the type of work performed in the corresponding real-world commercial setting; and the academic credit received by the plaintiffs for the work.”  Finally, “before concluding any portion of plaintiffs’ work for [the school’ is compensable, the district court should determine whether the work at issue is for de minimis amounts of time or is practically speaking too difficult to record.”

According to the Court’s opinion, the students were required by state law to obtain a certain number of hours in classroom and practical instruction before graduating and becoming licensed.  The defendant salon operated a salon where only the students provided services to paying customers under the supervision of licensed instructors and were graded on the services provided and guest experience.   The salon also employed (for wages) a janitorial staff and other employees who also maintained the salon.  When there were few or no customers in the salon, the students were required to clean the service stations, and classrooms, etc.  “Students could also be asked to do laundry, restock shelves with products sold to customers, clean various stations where customer services are performed, and clean and replace coffee mugs, among other tasks.”  Students could even come in on weekends to perform cleaning work.  The students’ enrollment agreement with the school does not promise any compensation for the services rendered in the salon and the students did not expect any compensation for attending the school or to be hired by the school following graduation.

Students could attribute the hours spent performing these tasks towards their practical hours graduation requirements and were sent home from school for the day (delaying their graduation) if they refused to perform them.  They received academic credit for performing these tasks.  The time spent performing these tasks varied widely, from 30 minutes to four hours per day.  These tasks were not required by the state and are not mentioned in the school’s curriculum (other than general sanitation).   The students are never graded on how they perform these cleaning tasks.

In the litigation, the plaintiffs sought summary judgment on their entitlement to compensation for the time spent performing general cleaning and janitorial tasks.  The trial court found that the school was taking advantage of the students and held that they were entitled to be compensated for the time spent performing the cleaning and janitorial tasks.  The Sixth Circuit, while agreeing that the trial court should focus on the particular tasks being challenged instead of the parties’ entire relationship, reversed on the grounds that the trial court applied the incorrect analysis and failed to consider a number of factors which could affect the conclusion.

When analyzing FLSA claims brought by students of vocational schools, the Court had previously held that ” “the proper approach for determining whether an employment relationship exists in the context of a training or learning situation is to ascertain which party derives the primary benefit from the relationship.” Solis v. Laurelbrook Sanitarium & Sch., Inc., 642 F.3d 518, 529 (6th Cir. 2011).

But before reaching the primary-beneficiary analysis in this case, we must answer two questions. First, do we apply the primary-beneficiary test at all when the work at issue is not part of the school’s educational curriculum? Second, given that the students claim an entitlement to compensation for some, but not all, of the work they performed during the course of the vocational program, do we apply the primary-beneficiary test to only that targeted segment of the program at issue or to the educational program as a whole? As we explain below, the Laurelbrook test governs this case and applies only to the activities at issue in the claim for compensation.

The trial court had determined that the cleaning and janitorial activities were not sufficiently related to the classroom instruction and therefore were not exempt from the FLSA.  The Sixth Circuit disagreed.

Its error stems from its central premise for departing from Laurelbrook’s test: that the activities at issue are “not within the training or learning situation.” Id. at 645. To be sure, the janitorial tasks assigned to the plaintiffs were not a part of [the school’s] written curriculum, not required by the state regulations governing cosmetology education, and not directly supervised by instructors. But other aspects of the relationship between [the school] and its students lead us to conclude that the janitorial work took place within the educational context, regardless of its ultimate educational benefit. The students were in the salons as part of the educational program, were assigned the tasks at issue by the same instructors who oversaw their practical training, received academic credit for the time spent on the tasks, and were told that they would be sent home—potentially delaying their graduation from the school—if they failed to complete the assigned tasks. We therefore conclude that the tasks spring from the students’ relationship with [the school], meaning that we must analyze this FLSA claim related to those tasks under the primary-beneficiary test as laid out in Laurelbrook.

The Court then concluded that the primary-beneficiary test should be applied only to the discrete tasks being challenged instead of to the parties’ entire relationship.  In Laurelbrook, the court had previously only examined the challenged tasks instead of the entire relationship of the parties.  Similarly, in other context, the FLSA has utilized analyses which separate tasks performed by an employee in determined whether they are exempt.  For instance, employees may volunteer for their non-profit employer  in a different context from their regular job.  Similarly, paid firefighters may volunteer as firefighters and EMS for different units. 

The Court found that its approach

rejects claims for compensation where the school receives an incidental benefit from a student’s work as part of the educational program. But it allows for the possibility of compensation for labor that—although related to the educational relationship in an attenuated way—does not actually provide a benefit to students that exceeds the benefit of free labor received by the school.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Thursday, December 17, 2020

EEOC Issues Updated Guidelines about Employer COVID-19 Vaccination Requirements

 

Yesterday, the EEOC posted a new section to its pandemic guidance to address employment issues implicated by the new COVID-19 vaccines.  Whether to make vaccinations mandatory in order to maintain employment, whether employees can refuse to be vaccinated because of disabilities or religious objections and what questions employers may require about family medical histories all implicate various employment laws under the ADA, Title VII and GINA, etc.  Here are some of the highlights:

  1. A COVID vaccine is not considered to be a medical examination, but the pre-screening interview could be a disability-related inquiry that is governed by the ADA and must be job-related and consistent with business necessity.
  2. Even if the employer’s retained medical professionals only make inquiries recommended by the CDC, the questions could still implicate the ADA.  To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others. “  However, this issue could be avoided if the employer’s administered vaccine is offered on a voluntary basis (making the responses to the questions voluntary), the employees are not retaliated against for refusing to answer the questions or accept the vaccine OR the employee is permitted to obtain the vaccine from a medical professional of his or her own choosing with no contractual relationship with the employer.
  3. It does not implicate the ADA to require proof of COVID vaccination, but it could if the employer were to inquire further about why the employee did not obtain the vaccine, etc.
  4. The COVID vaccines have not been formally licensed by the FDA and are currently permitted only under an Emergency Use Authorization.  
  5. “[I]f a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to 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.” The EEOC discussion provides an extension discussion of how to evaluate whether the unvaccinated employee poses a direct threat and whether that can be accommodated, etc.
  6. Employers may have to engage in a different reasonable accommodation process if the employee raises a religious objection to getting vaccinated.  “[T]he employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.  Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer.”
  7. If no reasonable accommodations are possible, the employer may exclude unvaccinated employees from the workplace.  This does not necessarily mean that they are fired, but it could be.
  8. Requiring employees to be vaccinated does not implicate GINA, although pre-vaccine inquiries and medical histories could do so.  The CDC has apparently denied that the mRNA technology used in some of the vaccines will modify an individual’s DNA or genetic makeup.
  9. It is unclear what pre-vaccine inquiries will be made.  Employers and their own physicians are prohibited by GINA from requesting information about an employee’s genetic tests and family medical histories.  If such inquiries are to be routinely made, employers would be advised to seek only proof of vaccination from independent medical providers chosen by the employee and to warn the employee against sharing genetic information when disclosing proof of vaccination.  The EEOC provides a more extensive discussion of this issue in its guidance.

 

The full new guidance is provided below (with some highlighting).

ADA and Vaccinations

K.1. For any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (FDA), is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) a “medical examination” for purposes of the ADA? (12/16/20)

No.  The vaccination itself is not a medical examination.  As the Commission explained in guidance on disability-related inquiries and medical examinations, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”  Examples include “vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.”  If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.

Although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.  If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.”  See Question K.2.

K.2. According to the CDC, health care providers should ask certain questions before administering a vaccine to ensure that there is no medical reason that would prevent the person from receiving the vaccination. If the employer requires an employee to receive the vaccination from the employer (or a third party with whom the employer contracts to administer a vaccine) and asks these screening questions, are these questions subject to the ADA standards for disability-related inquiries? (12/16/20)

Yes.  Pre-vaccination medical screening questions are likely to elicit information about a disability.  This means that such questions, if asked by the employer or a contractor on the employer’s behalf, are “disability-related” under the ADA.  Thus, if the employer requires an employee to receive the vaccination, administered by the employer, the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.”  To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.  See Question K.5. below for a discussion of direct threat.

By contrast, there are two circumstances in which disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement.  First, if an employer has offered a vaccination to employees on a voluntary basis (i.e. employees choose whether to be vaccinated), the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary.  42 U.S.C. 12112(d)(4)(B)29 C.F.R. 1630.14(d).  If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions.  Second, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.  

The ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential.

K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)

No.  There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.  Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

ADA and Title VII Issues Regarding Mandatory Vaccinations

K.4. Where can employers learn more about Emergency Use Authorizations (EUA) of COVID-19 vaccines? (12/16/20)

Some COVID-19 vaccines may only be available to the public for the foreseeable future under EUA granted by the FDA, which is different than approval under FDA vaccine licensure. The FDA has an obligation to:

[E]nsure that recipients of the vaccine under an EUA are informed, to the extent practicable under the applicable circumstances, that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.

The FDA says that this information is typically conveyed in a patient fact sheet that is provided at the time of the vaccine administration and that it posts the fact sheets on its website.  More information about EUA vaccines is available on the FDA’s EUA page

K.5. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability? (12/16/20)

The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”  However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to 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.”  29 C.F.R. 1630.2(r).  Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.  A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.  If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.  For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies. See also Section J, EEO rights relating to pregnancy.

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration.  Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense).  This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.  The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.  In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, www.askjan.org.  JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.  

Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but as explained further in Question K.7., there may be situations where an accommodation is not possible.  When an employer makes this decision, the facts about particular job duties and workplaces may be relevant.  Employers also should consult applicable Occupational Safety and Health Administration standards and guidance.  Employers can find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/.

Managers and supervisors are reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation.

K.6. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? (12/16/20)

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.  Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.  If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

K.7. What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief? (12/16/20)

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.  This does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

Title II of the Genetic Information Nondiscrimination Act (GINA) and Vaccinations

K.8. Is Title II of GINA implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination? (12/16/20)

No. Administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute. This includes vaccinations that use messenger RNA (mRNA) technology, which will be discussed more below.  As noted in Question K.9. however, if administration of the vaccine requires pre-screening questions that ask about genetic information, the inquiries seeking genetic information, such as family members’ medical histories, may violate GINA.

Under Title II of GINA, employers may not (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment, (2) acquire genetic information except in six narrow circumstances, or (3) disclose genetic information except in six narrow circumstances. 

Certain COVID-19 vaccines use mRNA technology. This raises questions about genetics and, specifically, about whether such vaccines modify a recipient’s genetic makeup and, therefore, whether requiring an employee to get the vaccine as a condition of employment is an unlawful use of genetic information.  The CDC has explained that the mRNA COVID-19 vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus of the cell, which is where our DNA (genetic material) is kept.” (See https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/mrna.html for a detailed discussion about how mRNA vaccines work).  Thus, requiring employees to get the vaccine, whether it uses mRNA technology or not, does not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information.

K.9. Does asking an employee the pre-vaccination screening questions before administering a COVID-19 vaccine implicate Title II of GINA? (12/16/20)

Pre-vaccination medical screening questions are likely to elicit information about disability, as discussed in Question K.2., and may elicit information about genetic information, such as questions regarding the immune systems of family members.  It is not yet clear what screening checklists for contraindications will be provided with COVID-19 vaccinations.

GINA defines “genetic information” to mean: 

Information about an individual’s genetic tests;

Information about the genetic tests of a family member;

Information about the manifestation of disease or disorder in a family member (i.e., family medical history);

Information about requests for, or receipt of, genetic services or the participation in clinical research that includes genetic services by the an individual or a family member of the individual; and

Genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology.

29 C.F.R. § 1635.3(c).  If the pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA.  However, if the pre-vaccination questions do include questions about genetic information, then employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves. 

GINA does not prohibit an individual employee’s own health care provider from asking questions about genetic information, but it does prohibit an employer or a doctor working for the employer from asking questions about genetic information.  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from their own health care provider, the employer may want to warn the employee not to provide genetic information as part of the proof.  As long as this warning is provided, any genetic information the employer receives in response to its request for proof of vaccination will be considered inadvertent and therefore not unlawful under GINA.  See 29 CFR 1635.8(b)(1)(i) for model language that can be used for this warning.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Tuesday, December 8, 2020

Ohio Supreme Court: Negligent Hiring and Supervision Claims Are Not Dependent on Underlying Civil or Criminal Judgment and Are Subject to Two Year Limitations Period.

This morning, the Ohio Supreme Court unanimously addressed the evidence necessary to prove a claim that the defendant employer negligently hired and supervised an employee who the plaintiff had never sued, had never been held civilly liable for the alleged wrongdoing and had never been found guilty of any crime. Evans v. Akron Gen. Med. Ctr., Slip Opinion No. 2020-Ohio-5535.   While refusing to address all of the necessary elements of a negligent supervision or hiring claim, the Court held that “a plaintiff need not show that an employee has been adjudicated civilly liable or has been found guilty of a crime by a court in order for the plaintiff to maintain a negligent hiring, retention, or supervision claim against an employer.”  In other words, “a plaintiff must establish that an employee committed a wrong recognized as a tort or crime in the state of Ohio, and not that the wrong has been proven to be tortious or criminal in a court proceeding.” Furthermore, the plaintiff also need not file the negligent hiring/supervision claim within the limitations period for the underlying wrongful action.   The two-year limitations period for negligent hiring and supervision does not shift based on the underlying wrongful act.

According to the Court’s opinion, the plaintiff brought suit against the defendant employer alleging that one of its physicians had sexually assaulted her after she had been administered a narcotic.  She had never sued the physician and the criminal investigation did not result in any charges being brought.    She did not file suit until the one-year intentional tort limitations had run against the physician.  The trial court granted the employer summary judgment based on the plaintiff’s failure to establish criminal or civil liability against the employee physician.   While the appellate court disagreed that a civil or criminal judgment on the underlying misconduct was necessary, it still held that the plaintiff must file the action within the limitations period for the underlying wrongful act.

The Court found that its prior precedent had focused on whether the underlying alleged misconduct was even unlawful and whether the employer owed an independent duty.  “A negligent hiring, retention, or supervision action is a direct claim against an employer, based on an employee’s conduct that the law regards as wrongful that would not have occurred but for the employer’s failure to properly hire, supervise, or retain the employee.”  Because there were disputed questions of fact as to whether the employee physician in this case had engaged in the alleged misconduct and the plaintiff was not required to first prove that the physician employee had been found either civilly or criminally liable, summary judgment was inappropriate on that basis. 

The Court also rejected the alternative appellate holding: that the plaintiff’s lawsuit was untimely because she filed suit within the two-years required for negligence, but not within the one-year limitations period for the underlying intentional tort of sexual assault.  “The employee must be shown to have committed an act that is legally wrongful, irrespective of whether he or she has been or can be held legally accountable. We see no reason to conclude that the statute of limitations for a negligent hiring, supervision, or retention claim is affected by the statute of limitations governing the underlying legally wrongful conduct of the employee.” 

Moreover, in the trial court, neither AGMC nor Evans disputed the term of the statute of limitations for a negligent hiring, supervision, or retention claim. The court of appeals relied on R.C. 2305.10 in determining that the applicable statute of limitations is two years. 2018-Ohio-3031 at ¶ 9. Because Evans’s claim is directly against AGMC for its negligent hiring, supervision, or retention, it makes little sense for us to establish a statute of limitations that shifts depending on the facts of the employee’s underlying tort or crime instead of deferring to R.C. 2305.10(A).

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Monday, December 7, 2020

Ohio Appeals Court Permits Limitations Periods for R.C. 4112 Claims to Be Shortened in Job Application

 Last week, the Ohio Court of Appeals enforced a shortened limitations period of six months contained in a job application to bar state law claims for hostile work environment, sex discrimination and invasion of privacy brought against the plaintiff’s former employer and co-workers.  Fayak v. Univ. Hosps., 2020-Ohio-5512. The Court found that parties may shorten the limitations periods of state law claims, including those under R.C. 4112.  While the Sixth Circuit last year in Logan v. MGM Grand Detroit Casino, 939 F.3d 824 (6th Cir. 2019) had found such contractually shortened limitations periods outside arbitration agreements to be barred by Title VII and federal law is typically applied to similar R.C. 4112 claims, the  Logan Court also noted that the limitations periods for other federal claims, like Section 1981 and ERISA, could be shortened by contract because those claims borrow from state law.  Accordingly, because the plaintiff had not filed suit for more than six months after the last allegedly discriminatory or harassing act, all of her claims were barred by the contractual limitations period. 

According to the Court’s opinion, the plaintiff began working in December 2013 and began an extended medical leave of absence in April 2015.  She claimed to have suffered from sex discrimination and harassment from her hire until she began the extended medical leave and this caused her great anxiety and panic attacks, etc.   Her physician’s statement only covered her absence until July 2015, but she never returned to work or provided medical support for a continued medical leave.  She did not allege any discriminatory or harassing conduct after April 2015.  In June 2016, she was finally terminated based on an unapproved absence after failing to satisfy requests for updated medical information supporting her continued need to be off work.  She initially filed suit against just her employer in September 2016, but voluntarily dismissed it and refiled again in February 2017, this time adding several co-workers as defendants.   Her job application contained the following waiver:

“I agree that any claim or lawsuits relating to my service with University Hospitals or any of its subsidiaries or affiliates must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.” The employment application was submitted with her typewritten name, which represented her electronic signature according to the application.

The Court rejected the plaintiff’s argument that the shortened limitation was unenforceable under the Logan decision because Ohio courts generally follow federal precedent interpreting Title VII.

Under Ohio law, it has been held that “[g]enerally, in the absence of a controlling statute to the contrary, a provision in a contract may validly limit, as between the parties, the time for bringing an action on such contract to a period less than that prescribed in a general statute of limitations provided that the shorter period shall be a reasonable one.” . . . Further, a shortened limitations period contained in an application for employment can bar claims that are untimely filed. . . . As the defendants argue, courts have held that a six month contractual limitations period is enforceable for employment-related claims and is not inherently unreasonable.

The Court found that the Logan court only rejected the shortened limitations period for Title VII claims based on a nationwide policy favoring uniform federal limitations periods that are self-contained within the Title VII statute and this issue did not apply to state law claims or to federal claims which borrow state-law limitations periods, such as with claims brought under Section 1981, or ERISA.  “As stated in Logan, i[i]n situations where only a general limitation period applied, such as ERISA and § 1981, we have allowed the limitation period to be contractually altered.’”  The Logan court also was influenced by the fact that the limitations period for Title VII claims was contained within the statute and was essentially a substantive right that could not be prospectively waived.  This made it more similar to the FLSA and less like other federal rights which borrowed from state law.  Finally, the Logan Court limited to arbitration clauses the Morrison v. Circuit City Stores, Inc., 317 F.3d 646 (6th Cir. 2003) (en banc) case which had tacitly approved a one-year shortened limitations period.

The Court also refused to consider whether the plaintiff in fact accepted the shortened limitations period in her job application because she did not raise that argument before the trial court.  In any event, the Court found that other courts had found 6- months to be reasonable and to have enforced similar provisions in other job applications.

The plaintiff failed to allege any unlawful conduct occurred after she began her extended medical leave of absence in April 2015.  She produced no evidence disputing the lawful reason for her termination for being on an unapproved leave of absence.  Accordingly, the Court found that the limitations period began to run no later than her April 2015 medical leave even though she never filed suit for 14 months.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.