Sixth Circuit Rejects Discrimination Claim After Plaintiff Repeatedly Failed Testing Requirement Not Mentioned in Job Posting

The Sixth Circuit affirmed an employer’s summary judgment on an age discrimination claim brought by a disappointed employee who was denied a promotion after repeatedly failing the aptitude test passed by younger employees.  Walden v. General Electric Int’l, Inc. No. 24-5141 (6^th Cir. 10/24/24).   The plaintiff could not show that he was qualified for the promotion when he continued to fail the test.  The Court rejected his arguments that he was qualified because he satisfied the requirements of the job posting, which did not mention the established testing requirement.  The Court also found that the younger, successful employees were not similarly-situated because they passed the test and he did not.   The  Court also rejected his speculative arguments that the younger employees did not complete the test by themselves. 

According to the Court’s opinion, the plaintiff had worked tool and die maker for decades, then accepted a job as machine operator with the defendant employer.  He later applied for a tool maker position which required at least five years of experience and promised the job to the qualified applicant with the most seniority.  However, the employer had agreed with the union several years earlier to require a passing 85% score on a written test which was jointly developed.  The plaintiff failed the test with only an 80% score (which had been rounded up), while two younger applicants passed with 100% and 92%.  The next month, the union and employer agreed to have a local community college develop and administer the test, which now had written and hands-on components.   They also lowered the passing score to 70%.   However, the plaintiff only received a score of 51%, which the other, younger applicant received a score of 69.6%, which was rounded up to 70%.  The plaintiff filed an EEOC charge, Unfair Labor Practice charge and sued bother the employer and the union.

The Court also rejected each of his arguments attacking the job posting and testing requirement. 

First, he asserts that taking the test was not actually a requirement because GE’s job posting did not mention it. But the posting says that it’s not exhaustive. After the posting lists certain minimum qualifications and a job description, a disclaimer states that any “classifications and definitions are merely for purposes of identification and general description and do not purport to be all inclusive or exhaustive of the actual requirements of any job so classified or defined.”  . . . . [He] parses these terms finely, arguing that the non exhaustive “classifications,” “definitions,” and “requirements” differ from “qualifications,” and so we should not read the disclaimer to apply to the posting’s “qualifications.” This argument fails because the posting on its face does not use these divisions strictly. For example, it states outside the paragraph labeled “Qualifications” that candidates must also have “satisfactory performance on their present job.” Id. That’s clearly a minimum qualification. And in any event, we have noted that “employers are not rigidly bound by the language in a job description.” Browning v. Dep’t of Army, 436 F.3d 692, 696 (6th Cir. 2006). GE was free to implement a testing requirement, multiple witnesses described how it did so, and the company made [him] aware of that when he applied.

The Court also refused to treat the job posting as a contract, which must be construed within its four corners under the parol evidence rule:

But though the CBA was a contract, the job posting was not. The CBA required GE to hire qualified candidates based on seniority, but it did not dictate which qualifications GE could set in the first place. Contract rules do not apply to discerning GE’s intentions with the job posting.

[He] probably means to say that the posting was an offer, one that he “accepted” by applying with the most seniority. But the posting wasn’t even that. At best, it was an invitation to be considered, or in contract-law terms, an invitation to offer, since nothing would have obliged GE to take any candidates.

The Court also rejected his argument that 80% should have been a passing score because the employer is entitled to set its own standards and he could not show that the employer had ever used a lower standard.  It also rejected his argument about subjective grading since not all answers perfectly matched the grading key verbatim and it also benefitted him at times since not all of his answers perfectly matched the answer key.

Yet he fails to acknowledge that GE graded the tests for substantive accuracy, not a verbatim match. [The supervisor] stated that he used his “professional judgment based on decades of relevant employment at GE Aviation, to determine when answers were substantively correct, even if they did not exactly match the language set out in the answer key.”

Finally, it rejected his argument questioning whether the younger employees completed the first test by themselves because the photocopies of the test had different levels of darkness in the written answers, some being dark black and some being gray.   This was particularly true when the other employee authenticated his test sheet and the plaintiff did not have any expert or other evidence to contradict that authentication. 

It’s true that a few of [one employee’s] letters appear more grey while the rest appear black, but the same is true of the other tests in the record. When we look at those tests, the same slight differences in color gradation show up. Keep in mind that we can see only digital copies of the original documents on our electronic docket. To support some alternative, nefarious explanation that would account for all the tests, [the plaintiff] would have to claim (and provide evidence) that [the supervisor] rigged each one, not just [his]. This [the plaintiff] has not done. That a bit of color was lost in electronic translation does not support an inference of discrimination.

The final five answers on [that employee’s] test similarly provide no evidentiary basis for questioning the test’s integrity. Though the writing appears in grey, that alone would not permit a reasonable jury to infer that [he] did not complete the test. Perhaps if GE claimed that [he] wrote only with a black pen, and a few answers appeared in red ink, then a court could conclude from the document’s face that a jury could reject GE’s version of events. Cf. Moyer v. Gov’t Emps. Ins., 114 F.4th 563, 569 (6th Cir. 2024) (finding it an open “factual question” whether a document with multiple redlines and electronic comments could be authenticated). Not so here. GE’s position is not that [he] couldn’t have used different writing utensils, say, a pen on the first sitting and a pencil on the second. It’s merely that [he] completed the test. So nothing [the plaintiff] gives us contradicts GE’s position.

                   . . .

[The plaintiff’s] argument, at bottom, is one of authentication under Federal Rule of Evidence 901. At trial, [he] would have to prove that the document is what he claims it is—the work, in relevant part, of someone other than [that employee]. And since GE has put forth [that employee’s] testimony recognizing the handwriting, [the plaintiff] has to convince us that he would have something in response. He doesn’t. He gives us nothing concrete to work with, such as an expert analysis or another handwriting sample for comparison, that could contradict the sworn testimony of [the employee and the supervisor].

As for the second test, the Court rejected his argument that the younger employee did not meet the minimum qualifications because he had been a tool shop supervisor and not a regular employee.

The Court also rejected his claims against the union for refusing to take his losing case to arbitration. 

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.

A Tale of Two FCRA Reports

This week, the Sixth Circuit addressed the Fair Credit Reporting Act in two different opinions.  In the first, the Court found that Experian violated the FCRA when it failed to investigate or clarify a consumer report about outstanding child support obligations after the consumer provided it with evidence from the court that he owed no outstanding child support obligations.  Berry v. Experian Information Solutions, Inc., No. 23-1961 (6^th Cir. Aug 19, 2024).    In the second, the Court found that the job applicant could not sue an employer for failing to provide him with a copy of his complete consumer report after it provided him with a copy of the partial (and accurate) report when he could not identify how he would have acted differently or been able to cure his prior failure to self-disclose a conviction. Merck v. Walmart, Inc., No. 23-3698 (6^th Cir. Aug. 20, 2024). 

In Berry, the plaintiff paid his wife directly instead of through the state agency, which recorded a deficiency.  When they reconciled, he obtained a court order that abated the non-existent support debt.  However, he was denied student loans because Experian reported information from the still-inaccurate state government database.  He sent copies of the court orders to Experian, which continued to rely on the state database and did not update its report.  He sued alleging that Experian negligently or willfully continued to report inaccurate information in violation of the FCRA.  The district court granted Experian judgment on the pleadings because it was required to report the state agency’s findings.  However, the Sixth Circuit reversed “[b]ecause [the plaintiff] sufficiently pleaded that Experian did not adopt reasonable procedures to ensure maximum possible accuracy and did not reasonably reinvestigate [his] consumer report after he challenged its accuracy.”  Consumer Reporting Agencies

must “adopt reasonable procedures” for reporting, see id. at § 1681(b), that “assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C. § 1681e(b). If a consumer disputes a report’s accuracy, the CRA must “conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information, or delete the item from the [consumer’s] file.” 15 U.S.C. § 1681i(a)(1)(A). If a CRA negligently or willfully violates the accuracy mandate, the consumer may bring suit. Id. at § 1681n (allowing private right of action for willful noncompliance); § 1681o (same for negligent noncompliance). Relevant here, the FCRA states:

Notwithstanding any other provision of this subchapter, a consumer reporting agency shall include in any consumer report furnished by the agency in accordance with section 1681b of this title, any information on the failure of the consumer to pay overdue support which— (1) is provided—

(A) to the consumer reporting agency by a State or local child support enforcement agency; or

(B) to the consumer reporting agency and verified by any local, State, or Federal Government agency.

15 U.S.C. § 1681s-1.

The Court found that to prevail on a claim that the CRA failed to have reasonable procedures to assure maximum possible accuracy, the plaintiff must plead and prove that the information is inaccurate.

An inaccuracy in a consumer report occurs when “a CRA report[s] either ‘patently incorrect’ information about [the consumer] or information that was ‘misleading in such a way and to such an extent that it [could have been] expected to have an adverse effect [on the consumer].’” . . .  In other words, a consumer can demonstrate an inaccuracy where a report was materially misleading or incomplete, even if it was technically accurate. Consequently, “accuracy” under the FCRA encompasses truthfulness and completeness.

Because the FCRA is designed to promote accuracy, “false impressions can be just as damaging as false information.” . . . For example, in Twumasi, the plaintiff Uber driver was fired after the CRA reported to Uber that the plaintiff had been involved in three car accidents.  .. .  While the Ohio Bureau of Motor Vehicles (BMV) furnished information to the CRA that did demonstrate that the plaintiff had been involved in three accidents, the BMV did not include a police report and court document adjudging him not at fault for two of the accidents.  . . . Although the plaintiff submitted this counter-evidence of his lack of fault to the CRA, the CRA did not change his consumer report.

Similarly, in this case, “Experian’s [alleged] omission of the court orders and its failure to inquire further resulted in a consumer report that was “‘misleading in such a way . . . that it [could have been] expected to have an adverse effect . . .’”

That being said, a dispute ensued about whether Experian was required to remove the state report or merely supplement or clarify it with the court order.  The Court agreed that Experian need not remove the allegedly erroneous state agency report.  The dissent/concurrence indicated that the plaintiff had waived the supplement theory argument, thus losing the appeal.  However, the majority remanded the case back to the district court to consider the supplement theory.    In practice, this means that the plaintiff may still not have been able to obtain student loans with ambiguous information and he should focus his efforts on clearing his credit with the state agency.  

In Merck, the plaintiff “applied to work at Walmart, [but] he forgot to disclose an old misdemeanor conviction.”  He was given a job offer conditioned on passing a background check.  “Before an employer can take any adverse action against a prospective employee based on a negative consumer report, the Fair Credit Reporting Act requires that the employer provide him with a copy of the report.”  The plaintiff was provided with “an incomplete version of the report that listed his misdemeanor and indicated he was “not competitive” for a job at Walmart” -- because of the failure to previously disclose the conviction.   He was provided with information to dispute the accuracy of the report, but did not do so. Unlike the plaintiff, Walmart was also informed that he had not self- disclosed the conviction. He alleged that he would have at least questioned the matter if had known it was the failure to self-disclose instead of the prior conviction that caused him to lose the job.     The Court found that he lacked sufficient injury from the incomplete report to sue Walmart when he did not identify how he would have changed the result and the undisputed evidence showed that he could not change the result. 

Walmart acknowledged that if [the plaintiff] had initially disclosed the misdemeanor, he would have been scored a “Competitive” applicant. But a Walmart employee also testified that, because the background report contained accurate information about his conviction, his only option under then-effective Walmart policy was to reapply—in other words, he could not have changed the outcome by explaining the mistake. And although [the plaintiff] argues that there is “uncertainty” about Walmart’s exercise of its “final hiring authority,” see Reply Br. 22, he doesn’t point to any specific evidence in the record suggesting Walmart would have acted contrary to its policy had he been able to explain his mistake.

In fact, he applied several more times and did not even receive an interview, let alone a job offer.   Walmart only kept applications for 60 days and no local store employees knew about his failure to self-disclose, which had only been reported to corporate HR.  He also sued the CRA for disclosing an old conviction that was more than seven years old and settled with it.   

He then sued Walmart in a class action almost 4 years after he had first applied on the basis that it violated the FCRA by failing to provide him and all other job applicants a full copy of the consumer report upon which it relied.  The district court dismissed on the grounds that the alleged informational injury was not actionable because “(1) the report was not inaccurate, and (2) Walmart testified that it would not have hired Merck even if he had been able to explain that he had mistakenly omitted the misdemeanor from his paperwork.”  In short, he failed to show that he suffered an injury the statute or constitution are designed to remedy.  “Under constitutional standing doctrine, an “injury in fact” is an “invasion of a legally protected interest which is (a) concrete and particularized and (b) “actual or imminent, not conjectural or hypothetical.”  The Constitution “requires a concrete injury even in the context of a statutory violation.” In other words, “plaintiffs do not have standing to assert “bare procedural violation[s], divorced from any concrete harm.”

“[T]o have standing for an informational injury, a plaintiff must allege those two elements: (1) adverse effects that (2) result from the denial of information.”  After discussing a number of analogous cases, “this boils down to a fine line between an injury involving merely the denial of information subject to mandatory disclosure by statute—insufficient for standing—and a denial of information that causes “downstream consequences”—sufficiently concrete to establish standing.”

 . . . . The denied information must specifically relate to some negative outcome that the plaintiff suffered because he was unable to use that information to his benefit. So, to show standing at summary judgment, [the plaintiff] must point to specific evidence tending to prove that he has an interest in using the withheld information—the fact that he wasn’t hired because he failed to disclose his conviction—for some purpose beyond his statutory right to receive it.  . . .  In other words, his interest in using the withheld information must extend beyond simply suing to vindicate that interest.

In this case, the plaintiff did not and could not show that being informed about the code given to Walmart -- but not to him -- about his failure to self-disclose his prior conviction would have changed the result to his benefit.   

First, and perhaps most importantly, Walmart argues that its policy meant that it would not have reconsidered its initial decision not to hire him based on his failure to disclose the misdemeanor. And Walmart’s argument is supported by the record.  . . .  More to the point, [he] fails to carry his burden to identify any evidence in the record suggesting otherwise. On appeal, he argues there’s “uncertainty” about whether his first application could have “gone differently” had he known about the true basis for his rejection.  . . .  But that’s not enough. He needed to identify specific evidence that he could have used the denied information to create some material benefit (or avoid some adverse consequence) to himself—and, given the record, he could not have used the information about the self-disclosure code to change anything about the result of his first application.  . . .  So he fails to show he suffered any downstream consequences from Walmart withholding the “R3” code during his first application and rejection.

Similarly, [he] points to nothing in the record indicating that he would have used the withheld information to do anything differently during his second and third applications to work at Walmart. Very helpful to [his] case would have been evidence that Walmart in some way relied on [his] lack of an explanation to reject his later applications outright before allowing him to fill out a new criminal history addendum. Indeed, if there were some evidence to that effect, [he] likely would have a forceful argument that the withheld information materially affected the outcome of those applications. After all, in any later calls to Walmart, he could have attempted to correct that misimpression.

But during discovery, [he] apparently couldn’t uncover any evidence that Walmart rejected his later applications because of his failure to disclose the misdemeanor. And the evidence that we do have suggests that [his] first application had no bearing on the later ones. A Walmart employee testified that Walmart retained employment application information for only sixty days. Walmart also points to a policy indicating that the self-disclosure code was “used by” human resources “only and is not relevant to the hiring manager” at the store “or the candidate.”  . . .  Walmart argues that store employees would not have known what these codes meant. And [he] points to no record evidence refuting that. So it seems that even if [he] had known about the true basis of his first rejection, the record before us suggests he couldn’t have used that information to improve his chances for his second and third applications at Walmart. If his first application had no bearing on his later ones, we simply can’t say why he didn’t get interviewed the second and third time around. [his] burden was to show the reason related to the withheld information. He has not met that burden.

Finally, [he] argues that he has a general interest in understanding “why his job application had gone wrong at Walmart” because he was searching for other employment at the time.  . . .  Abstractly, this interest is compelling. But again, [he] fails to point to any evidence in the record that he could have used the denied information to do anything differently. He might be in a different position if he introduced proof that he declined to apply to other positions because he worried that his misdemeanor might bar him from being hired or spent more time unemployed than he otherwise would have if he had known that the true issue was merely his failure to disclose. But he cannot point to any supporting evidence in the record. Other than a passing reference to feeling like a “failure” after his rejection from Walmart,  he identifies nothing to suggest any material harm that resulted from the denial of information. Indeed, he applied for one other job after being rejected. He disclosed to the employer that he had a misdemeanor conviction. He got the job. And he timed the start of his job so that he had no gap in employment.

[He] makes no mention of anything that he could—or would—have done differently to find employment had he known the true basis of his Walmart rejections. Logically, it seems that he did exactly what he should have done, had he known about the self-disclosure code—disclose the conviction to the new employer before being hired. And he got hired. As above, [he] fails to identify any evidence in the record that he could have used the withheld information to do anything differently during his job search.  . . . So he has not suffered any downstream consequences to his broader job search, either.

The Court also rejected his argument that he was injured from denial of procedural due process. “A private employer—even in a contract with one of its employees—cannot alone create the kind of “legitimate claim of entitlement” to a property interest that the state has the power to confer.”

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.

Employee Was Not Entitled to Incentive Bonus for Prior Year Unless Still Employed in March as Provided in Contract

Near the end of August, the Ohio Court of Appeals affirmed an employer’s summary judgment on claims of “breach of contract, detrimental reliance, unjust enrichment, and fraud” arising out of the refusal of employer to pay out a $50K incentive bonus earned in the prior year because the plaintiff was not still employed at the time the bonus was payable.  Rusu v. Carter-Jones Lumber Co., 2023-Ohio-2927.  The Court agreed that the parties’ contract provided that the employee was not entitled to the incentive bonus unless he was still employed at the time the bonuses were paid out every year in March.  In short, the employee did not earn the bonus unless all of the conditions of the agreement were satisfied:  certain profit targets were achieved in the calendar year AND he was still employed at the time the bonus was paid every March. 

According to the Court’s opinion, the plaintiff was hired in 2016.  The terms of his offer letter specified that he would be eligible for an incentive bonus.  The addendum, which the plaintiff signed, provided that to receive the bonus, the plaintiff must still be employed when the bonus was paid out in March.  If his employment ended for any reason before the bonus was paid in March, he would not receive any portion of the bonus.  The plaintiff also admitted that he had been paid the incentive bonus each March that he was employed.  However, he was terminated on January 10, 2020 and was not paid any portion of the 2019 incentive bonus that he asserted he had already earned.   He then filed suit.

The plaintiff argued that it was inequitable for him to forfeit his bonus on January 10 after he had already earned it the prior year.  He argued that his situation was akin to when another employer’s bonus policy provided “the employee was entitled to a bonus based on the calendar-year profit when that year’s audit was completed.”  In that case, the court had concluded that the policy caused the employee to lose his bonus “based solely on the fortuitous timing of the completion of the audit procedures, which procedures could in no way alter the profit or bonus actually earned.”  The Court rejected the analogy because in this case agreement was specific about how long he had to remain employed and it was not a vague or uncertain date in the future:

However, here, the addendum specifically set forth that the bonus would be distributed in the following March. Thus, the timing of the bonus distribution was not “fortuitous,” but instead was a specific term of the agreement. Moreover, the Ohio Supreme Court has held that “[a] person competent to contract who, pursuant to a written agreement with another has performed services, is entitled to compensation therefor only in accordance with the terms of such bargain, in the absence of fraud, illegality or bad faith.”

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.

Temporal Proximity and Informality of Performance Coaching Is Insufficient to Show Pretext for Termination

Earlier this month, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on an Emergency Paid Sick Leave Act of 2020 retaliation claim where the employee was fired before she returned from the emergency COVID leave.   Kovacevic v. American Int’l Foods, No. 22-1675 (6^th Cir. 6-1-23).  Despite the temporal proximity between her protected conduct and her termination, the employee could not show pretext when the employer had repeatedly counselled her about her constant mistakes since when she had been hired 11 months earlier and had begun recruiting and interviewing replacement candidates before she called off sick.  The final straw had been finding many more undisclosed performance problems while the employee was on leave.  Ten other employees – over 25% of the workforce -- had taken COVID emergency leave and not been fired before or after returning to work. While “temporal proximity alone may provide ‘evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation,’ . . .  ‘temporal proximity cannot be the sole basis for finding pretext.’”  Pretext could also not be shown by the informality of her frequent coaching.

According to the Court’s opinion, the plaintiff employee was hired as an accounts payable specialist in January 2020.  While she was always exceedingly pleasant, she never mastered her job duties.  Some vendors went unpaid for months.  Some were overpaid or paid early.  She could not find basic accounting records, like invoices.  Because of her mistakes, checks needed to be re-run several times each week.  She thought that these mistakes were a “little things.”  Since she was hired, voided checks increased 952%.  In August, her boss told HR that he wanted to replace her and confidential advertisements were placed in October.  An interview was scheduled for November 10. 

On November 15, the plaintiff called off sick for COVID and wanted to remain off work until after Thanksgiving.  Her boss took over her duties in her absence and discovered over 95 blanks checks out of sequence that had been forgotten, 70 past due invoices, over $100K in vendor credits that had not been applied, and $2.5M active invoices that had not been organized or alphabetized.   He telephoned her on November 24 to inform her that her employment was being terminated (despite having not yet hired a replacement).   She filed suit.

Assuming that she could show a prima facie case of retaliation, the Court focused on whether she could show that the explanation for her termination – her ongoing poor performance – was pretextual and just a disguise for unlawful retaliation.  She argued that her poor performance did not actually motivate her termination.

While “temporal proximity alone may provide ‘evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation,’ . . .  ‘temporal proximity cannot be the sole basis for finding pretext.’”

While it was suspicious that she was fired while still on COVID emergency leave, the Court found no reasonable jury could find the timing suspicious when her documented performance issues were legion, recruitment had been underway before she called off sick and numerous and serious performance issues were discovered after she called off sick.

The Court also rejected her argument about shifting justification.  She claimed that just before she was fired, HR had mentioned that they had not yet decided what to do with employees returning with COVID.  However, she also claimed that her sole basis for believing that her performance was satisfactory was that HR also told her that she had a very positive disposition.  Granted, “when an employer expresses disapproval of an employee’s work performance only after the firing, there can be a genuine dispute of material fact about whether the employer’s reason for terminating the employee was pretextual.”  But in this case, the statement about returning employees was not evidence of retaliation when the Company had welcomed back more than 25% of its workforce from COVID sick leave.  Further, the HR employee was not the individual with personal knowledge of her work performance and there was no legitimate dispute that her supervisor was unhappy with her work performance.

The Court also rejected her argument that the supervisor had fabricated the justification for her termination by not informing HR of them before she was fired:

Nor can she show that [her supervisor’s] discoveries during her absence were fabricated justifications for terminating her. [Her] evidence of fabrication is that [he] did not document each incident or mention these issues to [HR] before she took COVID leave. Based on this, [she] argues that a reasonable jury could have found that [he] merely claimed to find evidence of poor performance while filling in for her in order to justify firing her for taking COVID leave.

[Her] argument fails here. [His] emails to [her] addressing her errors throughout her employment are contemporaneous documentation of her poor work performance. And even if [he] had not emailed [her] on each of these occasions, failure to document contemporaneously does not necessarily give rise to an inference of pretext.

The Court also rejected the plaintiff’s argument that her alleged poor performance was merely pretextual when she was not given formal performance warnings and progressive disciplinary policies were not followed and because she was not given the required performance evaluations from her offer letter and the employee handbook.  Unlike some employee handbooks which provide that progressive discipline will generally be followed, this employee handbook merely stated that it was an option when appropriate.

She alleges that [the company] failed to follow the procedure for progressive discipline outlined in the Handbook because [her supervisor] never explicitly referred to his criticisms of her work as “warnings.” True, where an employee handbook establishes a general practice of counseling employees before terminating them, a company’s failure to follow that practice may be evidence of pretext.

             . . . . . In any event, [her supervisor] repeatedly brought his concerns with [her] work performance to her attention, remarking on at least one occasion that her “errors” could not “continue to happen.” . . . So the fact that [he] did not formally tell [her] that he was warning her within the terms of the company’s progressive discipline policy simply does not demonstrate pretext.

 . . . True, an “employer’s failure to follow a policy that is related to termination or demotion can constitute relevant evidence of pretext,” . . . But even if [the company] did not strictly follow its review policies, [she] was certainly on notice that her performance was causing issues and had the opportunity to correct those problems. [Her supervisor] regularly notified [her] of problems with her performance, both via email and in person. And she still did not adjust her work performance. So [his] efforts—accomplishing the corrective objective that an annual review would—combat any finding of pretext.

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.

Sixth Circuit Rejects EFMLEA Claim Where Employer's Final Offer of Reinstatement Was Not Shown to Be a Violation and Revocation of Flexible Class Schedule Affected More Than Just the Plaintiff.

On Friday, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on claims by a medical assistant that it interfered with her EFMLEA leave by refusing to reinstate her to her former position or on the same terms and conditions by changing her job duties during the COVID pandemic and revoking her prior flexible work schedule.  Clement v. The Surgical Clinic, PLLC, No. 22-5801 (6^th Cir. 4-21-23).  The Court found that reassignment claim lacked merit because, after she objected to the change in job duties, she was offered a suitable transfer which she had accepted and which was willing to accommodate her job schedule.   While the revocation of her flexible schedule (to attend classes) constituted a prima facie violation of the statute, the employer was able to show that it revoked all prior authorizations of flexible schedules to attend classes – regardless of whether the employee had utilized EFMLEA or FMLA – because of the emergency situation created by the pandemic.  This was not only a legitimate and non-discriminatory reason, it applied regardless of whether the employee took EFMLEA or not.  Employees taking EFMLEA are not entitled to greater rights than employees who do not take such leave. 

According to the Court’s opinion, the plaintiff was hired for the clinic’s downtown (and busiest) clinic in 2018 where she would assist one physician and sometimes engage in patient triage.  She was allowed to shift her schedule by 30 minutes each day because of childcare responsibilities and to start two hours later when she had class (which required the employer to find replacement coverage for those hours).  When the pandemic began, the plaintiff utilized two months of leave under the Emergency Family and Medical Expansion Act.  When she sought to return to work, she was informed that she would be assigned to engage in triage on a full-time basis and that she could no longer report to work later than the rest of the staff.  When she objected, the employer found that one of its other offices was willing to give her a non-triage position and permit her to start work 30 minutes later each day.  However, around the same time, the employer notified all of its clinics that employees could no longer miss work in order to attend class because of the staffing shortage caused by the pandemic.  The plaintiff and at least one of the employee resigned because of the new policy of no longer accommodating class schedules and the plaintiff filed suit, claiming that these changes violated her rights under the EMFLEA.

The EFMLEA entitles qualified employees to reinstatement to the same position they held prior to taking leave—or, at least, to an “equivalent position.”  . . . An equivalent position is “one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status” and which “involve[s] the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.” 29 C.F.R. § 825.215(a). Among other things, employees are generally entitled to work the same or an equivalent work schedule upon their return from leave. Id. § 825.215(e)(2). That said, “[t]he requirement that an employee be restored to the same or equivalent job with the same or equivalent pay, benefits, and terms and conditions of employment does not extend to de minimis, intangible, or unmeasurable aspects of the job.” Id. § 825.215(f).

The Court refused to find any interference with the plaintiff’s EFMLEA right to reinstatement based on its initial condition of assigning her to full-time triage work and revoking her authorization to start and end work 30 minutes after the rest of the staff because it was not the employer’s final offer.

But we are aware of no authority suggesting that an employer’s offer that it later revises is binding for purposes of establishing interference. On the other hand, it is well-established that plaintiffs must prove they suffered harm from an employer’s interference with their statutory rights. . . . To assess harm, we must evaluate the employer’s action that prompted the employment outcome, and it would seem that early offers would be superseded by the final offer on which the plaintiff was required to act. Notably, we have also consistently held that “the FMLA is not a strict-liability statute.” . . . approach tends toward strict liability in that it would deprive even the most well-meaning employers the opportunity to course-correct from potential EFMLEA violations—for example, by returning to the table with their employees to work out acceptable terms of employment.

 . .. To be considered equivalent, an employee’s new role must be identical in pay, benefits, and working conditions. 29 C.F.R. § 825.215(a). There is no dispute that [her] compensation and benefits would have gone unchanged following a transfer to The Vein Centre. What’s more, [she] would have continued working as a medical assistant at The Vein Centre, which is located a short distance away from TSC. And although she argues that TSC’s first reinstatement offer entailed substantially altered job duties (in that TSC would have assigned her to triage full-time, for example), she makes no effort to establish how or why TSC’s final offer suffered from the same shortcomings. Nor has she developed any argument on appeal that working at The Vein Centre, in and of itself, would deprive her of an equivalent position. Thus, even viewing the facts in the light most favorable to Clement, nothing suggests that the position at The Vein Centre would have involved anything less than “the same or substantially similar duties and responsibilities” as Clement’s previous role. And TSC agreed to accommodate her preferred 8:00 a.m. start time at The Vein Centre—a fact which Clement concedes. Thus, no reasonable factfinder could determine that her pre- and post-leave positions were inequivalent in this regard.

However, the revocation of her two-hour schedule delays when she previously would have attended class presented a different issue and outcome. 

The district court held that this series of events raised a question of fact as to whether TSC restored Clement to the same or an equivalent position at the company. We agree. 29 C.F.R. § 825.215(e)(2) provides that employees are generally entitled to “the same or an equivalent work schedule” following leave. There is no dispute that TSC did not allow Clement to work the same schedule she had before her EFMLEA leave. And TSC’s proposed altered schedule, excluding time away during the workday to attend classes, made it impossible for her to balance her school and work obligations—ultimately leading to her resignation from TSC. We thus cannot say that this schedule change was de minimis as a matter of law. See id. § 825.215(f).

Nonetheless, “interference with an employee’s FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.”

The FMLA relatedly provides that it “shall [not] be construed to entitle any restored employee to . . . any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.”  . . .  Thus, employees who request FMLA or EFMLEA leave “have no greater protection against [their] employment being terminated for reasons not related to [their EFMLEA] request than [they] did before submitting that request.” . . . This means a plaintiff has no actionable interference claim if her employer can show that it would have made the same decision at issue even had the employee not exercised her EFMLEA rights.

The employer had no difficulty proving that it would have the same scheduling decision even if the plaintiff had not taken EFMLA leave:

 . . . employees testified that accommodating [her] school schedule “put a hardship on [it]” even before the pandemic. Then, after the COVID-19 outbreak in March 2020, [its] staff had to balance increased demand at their clinics with staffing shortages. Under these circumstances, [it] concluded it could no longer permit staff to leave the office during working hours for school. It therefore enacted a company-wide policy prohibiting flexible school and work schedules. This pandemic-related change was not specific to [her] and would have occurred regardless of her EFMLEA leave. Therefore, [it] proffered a legitimate justification for its decision.

The plaintiff attempted to prove that the policy change was related only to her reinstatement.  However, when the employer initially revoked her authorization to attend class during work hours, it did so in connection with the pandemic scheduling challenges – the same justification for the company-wide policy.  This was not inconsistent with the employer’s explanation for the policy.  While the pandemic cannot be a magic bullet justification for every employment decision, in this case, even the plaintiff acknowledged the challenges facing the medical profession.    It was also undisputed that the employer’s decisions affected (and motivated the resignations) of individuals besides the plaintiff.

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.

FMLA Bars Retaliation Against Employee for Requesting FMLA Leave Even if Unqualified or Ineligible

On Wednesday, a unanimous Sixth Circuit reversed an employer’s 12(b)(6) judgment on an FMLA retaliation claim where the employee was terminated shortly after requesting an unpaid leave due to her infant son’s health even though she had not alleged that she was eligible for FMLA leave or that her son suffered from a serious health condition.  Millman v. Fieger and Fieger, PC¸ No. 21-2685 (6^th Cir. 1/25/23).  The Court ultimately determined that “the FMLA protects the right of an employee to inquire about and request leave even if it turns out that she is not entitled to such leave.”

According to the Court’s opinion, shortly after the commencement of the COVID pandemic on March 13, the employer law firm directed its staff to work from home one day each week.  The plaintiff lawyer’s two-year old son recently been hospitalized with RSV, a respiratory illness, was still using a nebulizer and his day care remained closed.  The plaintiff had five vacation and 3 PTO days left in her time off bank.  The firm owner denied her March 14 request to work from home on March 16 and 17, but HR approved her request to use her PTO.  When her direct supervisor asked if she planned to return on March 19, she indicated that she planned to return, but was concerned that her son’s day care was still closed and he had developed COVID symptoms.  On  Thursday, her son’s condition worsened and she contacted HR and offered to take unpaid leave to avoid returning to the office.  HR did not respond to her offer to take unpaid leave or send her an eligibility notice or request for a medical statement and instead authorized her to work from home for the remainder of the week.  She forwarded the email to her supervisor and worked with him from home for the rest of the day.  At the end of the day, HR sent her a letter signed by the firm’s owner terminating her employment after she reported that her son had a cold and she had not returned to work as promised.  A week later, she requested her personnel file and was sent another letter indicating that her actions showed that she had no intention of returning to work, that she refused to work because her son had a cold and they believed that she had quit.  When she filed suit in August, the court granted the employer’s motion to dismiss on the grounds that she had not alleged that she was eligible for FMLA leave or that her son suffered from a serious health condition.

The Court first concluded that FMLA retaliation claims may be brought both under the interfere, restrain and deny statutory section and the retaliation statutory section, but that the burden of proof for retaliation claims did not change depending on which statutory section was cited.  (The concurring opinion clarified that only the interfere, restrain and deny section should support this type of retaliation claim).   

The plaintiff’s “core claim is that she was fired for inquiring about and making a request to take FMLA leave, which she argues is protected activity under the FMLA.”  For purposes of ruling on a motion to dismiss (when all factual allegations are deemed to be valid), the Court presumed that she had alleged sufficient causation and an adverse action.  The only question was whether she had engaged in a protected activity and that her employer knew she had engaged in a protected activity when there were no factual allegations indicating that she was entitled to or qualified for FMLA leave.

It makes sense that entitlement is a prerequisite to an FMLA retaliation claim in certain circumstances. In the more common circumstance, if an employee actually takes leave without being entitled to the leave, her action is beyond the scope of FMLA protection. Simply put, the FMLA protects leave that is taken only if it falls within the scope of entitlement; taking leave to which the employee was not entitled unambiguously falls outside the FMLA’s protections. . . .

This case presents an entirely different circumstance. [Plaintiff] never actually took leave; she only made a request for leave. . . . the question is whether the FMLA protects the right of an employee to inquire about and request leave even if it turns out that she is not entitled to such leave. . . .

 . . . the steps of the process created by the FMLA—including the first step, i.e., the employee’s initial request for leave—must be protected activity under the Act. FMLA rights and the statute’s purpose would be significantly diminished if employers could fire an employee who simply took the required initial steps to access FMLA leave.

                . . .

Suppose that an employee, intending to exercise her FMLA rights, meets with her employer and asks questions concerning her FMLA rights, then is fired for doing so. Concluding that no FMLA violation could occur if it turns out that the employee is not entitled to leave would render the employee unprotected during the step required to initiate the FMLA’s process. Without protection, employees would be discouraged from taking authorized initial steps—including preparing or formulating a request—to access FMLA benefits. We are not to impose nonsensical readings of a statute “if alternative interpretations consistent with the legislative purpose are available.”

                . . .

                . . . Starting with the regulation implementing § 2615(a), “[t]he FMLA prohibits interference with an employee’s rights under the law, and with . . . inquiries relating to an employee’s rights.”

                . . . .

Thus, the scope of protected activity under the FMLA starts with the first step contemplated under the Act’s procedures: a request made to the employer. That request, moreover, need not lead to entitlement in order to be protected. In this case, when her son began exhibiting symptoms associated with COVID-19, [Plaintiff] made a request to her employer for unpaid leave—following the first step of the FMLA’s process. The Firm, through Human Resources, then offered, and [she] accepted, a work-from-home arrangement for those two days and never responded to her request. [Her] action was grounded in a legitimate exercise of the FMLA’s procedural framework and was therefore protected under the FMLA.

Although the employer argued that the plaintiff had failed to provide notice that she was exercising her rights under the FMLA, the Court pointed out that the FMLA regulations make clear that employees do not need to use the words, FMLA, to request leave under the FMLA.   Rather, “the employee must provide enough information for the employer to know that the leave she has requested reasonably might fall under the FMLA. In addition, where leave is needed to care for a family member, the employee must so indicate.”

“In any circumstance where the employer does not have sufficient information about the reason for an employee’s use of leave, the employer should inquire further of the employee or the spokesperson to ascertain whether leave is potentially FMLA-qualifying.” 29 C.F.R. § 825.301(a). Once an employer is put on notice that an employee seeks to use her FMLA leave, moreover, “the employer bears the obligation to collect any additional information necessary to make the leave comply with the requirements of the FMLA.”

In addition, the employer was clearly on notice because it initially permitted her to work from home and its subsequent documentation cited her request to not return to the office.

The Firm indicated that it was aware of  [her] request based on its response: it offered an alternative accommodation to work from home for two days. The Firm had notice that [she] sought leave to care for her son who had recently been hospitalized with RSV, suffered continuing symptoms from that condition and, potentially, had contracted COVID-19. This knowledge gave rise to a duty for the Firm to, at minimum, engage in the communication required by the statute. The Firm neither sought to clarify [her] request nor did it attempt to obtain “a certification issued by a healthcare provider of . . . [her] son” to determine whether her request fell outside the scope of the Act. 29 U.S.C. § 2612(a). Instead, the Firm offered a work-from-home arrangement—which [she] accepted—and then terminated her after the first day for failing to “come into work,” indicating that her “child had a minor cold.” The Firm, thus, failed to exhaust any of its obligations in responding to [her] request. On these allegations, [she] provided proper notice to her employer that she sought FMLA leave and was acting pursuant to the FMLA’s prescribed procedures. The Firm was on notice of her protected activity.

Therefore, the dismissal was reversed and the case was remanded to the trial court to proceed with discovery.

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.

Just When You Thought It Was Safe To Get Back in the Water, EEOC Revises COVID/ADA Guidance

 Yesterday, the EEOC posted updated COVID guidance concerning employment issues involving the pandemic and the Americans With Disabilities Act.  The updated guidance – which is substantial and affects a wide number of issues -- is posted below.  In its announcement, the EEOC update only mentioned one of the changes, involving whether an employer can always require COVID testing at work:

 EEOC’s assessment at the outset of the pandemic was that the ADA standard for conducting medical examinations was, at that time, always met for employers to conduct worksite COVID-19 viral screening testing. With the revision of A.6, below, on July 12, 2022, EEOC makes clear that going forward employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19. A.6. offers employers possible factors to consider in making this assessment, including community transmission levels and types of contacts between employees and others in the workplace. This change is not meant to suggest that such testing is or is not warranted; rather, the revised Q&A acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted consistent with the requirements of the ADA.

These are the updated Q&As from the EEOC:

A.5. When an employee returns to the workplace after being out with COVID-19, does the ADA allow employers to require a note from a qualified medical professional explaining that it is safe for the employee to return (i.e., no risk of transmission) and that the employee is able to perform the job duties? (Updated 7/12/22)

Yes. Alternatively, employers may follow CDC guidance to determine whether it is safe to allow an employee to return to the workplace without confirmation from a medical professional.

When an employee returns to the workplace after being out with COVID-19, the ADA allows an employer to require confirmation from a qualified medical professional explaining that the individual is able to safely return. Such a request is permitted under the ADA. First, because COVID-19 is not always a disability, a request for confirmation may not be a disability-related inquiry. Alternatively, if the request is considered a disability-related inquiry, it would be justified under the ADA standard requiring that such employee inquiries be job-related and consistent with business necessity. Here, the request meets the “business necessity” standard because it is related to the possibility of transmission and/or related to an employer’s objective concern about the employee’s ability to resume working. For example, an employer may require confirmation from a medical professional addressing whether an employee may resume specific job duties requiring physical exertion.

As a practical matter, employers may wish to consider other ways to determine the safety of allowing an employee to return to work if doctors and other healthcare professionals are unable to provide such documentation either in a timely manner or at all. This might include reliance on local clinics to provide a form, a stamp, or an e-mail to confirm that an individual is no longer infectious and is able to resume working.

A.6. Under the ADA, may an employer, as a mandatory screening measure, administer a COVID-19 viral test (a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace? (Updated 7/12/22)

Yes, if the employer can show it is job-related and consistent with business necessity.

A COVID-19 viral test is a medical examination within the meaning of the ADA. Therefore, if an employer implements screening protocols that include COVID-19 viral testing, the ADA requires that any mandatory medical test of employees be “job-related and consistent with business necessity.” Employer use of a COVID-19 viral test to screen employees who are or will be in the workplace will meet the “business necessity” standard when it is consistent with guidance from Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or state/local public health authorities that is current at the time of testing. Be aware that CDC and other public health authorities periodically update and revise their recommendations about COVID-19 testing, and FDA may revise its guidance or emergency use authorizations, based on new information and changing conditions.

A positive viral test result means that the test detected SARS-CoV-2, the virus that causes COVID-19, at the time of testing, and that the individual most likely has a current infection and may be able to transmit the virus to others. A negative test result means the test did not detect SARS-CoV-2 at the time of testing. However, a negative test does not mean the employee does not have any virus, or will not later get the virus. It means only that the virus causing SARS-CoV-2 was not detected by the test.

If an employer seeks to implement screening testing for employees such testing must meet the “business necessity” standard based on relevant facts. Possible considerations in making the “business necessity” assessment may include the level of community transmission, the vaccination status of employees, the accuracy and speed of processing for different types of COVID-19 viral tests, the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations, the ease of transmissibility of the current variant(s), the possible severity of illness from the current variant, what types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and the potential impact on operations if an employee enters the workplace with COVID-19. In making these assessments, employers should check the latest CDC guidance (and any other relevant sources) to determine whether screening testing is appropriate for these employees.

Note: Question A.6. and A.8. address screening of employees generally. See Question A.9. regarding decisions to test only individual employees.

A.7. Under the ADA, may an employer require antibody testing before permitting employees to re-enter the workplace? (Updated 7/12/22)

No. An antibody test, as a medical examination under the ADA, must be job-related and consistent with business necessity. As of July 2022, CDC guidance explains that antibody testing may not show whether an employee has a current infection, nor establish that an employee is immune to infection; as a result, it should not be used to determine whether an employee may enter the workplace. Based on this CDC guidance, at this time such testing does not meet the ADA’s “business necessity” standard for medical examinations or inquiries for employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. An antibody test is different from a test to determine if someone has evidence of infection with SARS-CoV-2 or has COVID-19 (i.e., a viral test). The EEOC addresses COVID-19 viral screening tests in A.6.

C.1. If an employer is hiring, may it screen applicants for symptoms of COVID-19? (Updated 7/12/22)

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.

In addition, if an employer screens everyone (i.e., applicants, employees, contractors, visitors) for COVID-19 before permitting entry to the worksite, then an applicant in the pre-offer stage who needs to be in the workplace as part of the application process (e.g., for a job interview) may likewise be screened for COVID-19. The screening is limited to the same screening that everyone else undergoes; an employer that goes beyond that screening will have engaged in an illegal pre-offer disability-related inquiry and/or medical examination. For information on the ADA rules governing such inquiries and examination, see Section A.

C.4. May an employer withdraw a job offer when it needs an applicant to start working immediately, whether at the worksite or in the physical presence of others outside of the worksite, because the individual has tested positive for the virus that causes COVID-19, has symptoms of COVID-19, or has been exposed recently to someone with COVID-19? (Updated 7/12/22)

An employer should consult and follow current CDC guidance that explains when and how it would be safe for an individual who currently has COVID-19, symptoms of COVID-19, or has been exposed recently to someone with COVID-19, to end isolation or quarantine and thus safely enter a workplace or otherwise work in the physical presence of others. An employer who follows current CDC guidance addressing the individual’s situation may withdraw the job offer if (1) the job requires an immediate start date, (2) CDC guidance recommends the person not be in proximity to others, and (3) the job requires such proximity to others, whether at the workplace or elsewhere. Given that for some individuals there may only be a short period of time required for isolation or quarantine, employers may be able to adjust a start date or permit telework (if job duties can be performed remotely).

C.5. May an employer postpone the start date or withdraw a job offer because of the employer’s concern that the individual is older, pregnant, or has an underlying medical condition that puts the individual at increased risk from COVID-19? (Updated 7/12/22)

No. An employer’s concern for an applicant’s well-being -- an intent to protect them from what it perceives as a risk of illness from COVID-19 -- does not excuse an action that is otherwise unlawful discrimination. The fact that CDC has noted that older adults, people with certain medical conditions, or pregnant and recently pregnant people may be at greater risk of severe illness from COVID-19 does not justify unilaterally postponing the start date or withdrawing a job offer. Therefore, an employer may not discriminate based on age (40 or older) or pregnancy and related conditions. If an underlying medical condition is a disability, an employer must determine whether the individual’s disability poses a “direct threat” by starting work immediately and, if so, whether reasonable accommodation can be provided to sufficiently lessen or eliminate any risks without causing an undue hardship. For more information on assessing direct threat and reasonable accommodation in this situation, see G.4. and G.5. For more information on potential issues regarding discrimination based on age or pregnancy, see Sections H and J.

D.17. Might the pandemic result in excusable delays during the interactive process? (Updated 7/12/22)

Yes. Some of the issues initially created by the pandemic that delayed engaging in an interactive process and/or providing reasonable accommodation may no longer exist. But, as the pandemic continues to evolve and new issues arise, it is possible that an employer may face new challenges that interfere with responding expeditiously to a request for accommodation. Similarly, reopening a workplace may bring a higher number of requests for reasonable accommodation. In all these situations, an employer must show specific pandemic-related circumstances justified the delay in providing a reasonable accommodation to which the employee was legally entitled. To the extent that evolving circumstances created by the pandemic cause a justifiable delay in the interactive process–thereby delaying a decision on a request–employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.

D.18. Federal agencies are required to have timelines in their written reasonable accommodation procedures governing how quickly they will process requests and provide reasonable accommodations. What happens if circumstances created by the pandemic prevent an agency from meeting this timeline? (Updated 7/12/22)

Situations created by the current COVID-19 pandemic may constitute an “extenuating circumstance”—something beyond a federal agency’s control—that may justify exceeding the normal timeline that an agency has adopted in its internal reasonable accommodation procedures.

Some of the issues initially created by the pandemic that delayed engaging in an interactive process and/or providing reasonable accommodation may no longer exist. But, as the pandemic continues to evolve and new issues arise, it is possible that an agency may face new challenges that interfere with responding to a request for accommodation within an agency’s timeline. Similarly, reopening a workplace may bring a higher number of requests for reasonable accommodation. In all these situations, an agency must show specific pandemic-related circumstances that constitute an “extenuating circumstance.” To the extent that there is an extenuating circumstance, agencies and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.

G.1. As government restrictions are lifted or modified , how will employers know what steps they can take consistent with the ADA to screen employees for the virus that causes COVID-19 when entering the workplace? (Updated 7/12/22)

The ADA permits employers to make disability-related inquiries and conduct medical exams to screen employees for COVID-19 when entering the workplace if such screening is “job-related and consistent with business necessity.” For more information on disability-related inquiries and medical examinations, see Section A. For information on reasonable accommodation requests related to screening protocols, see G.7.

Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.

G.2. An employer requires workers to wear personal protective equipment and engage in other infection control practices. Some employees ask for accommodations due to a disability or a sincerely held religious belief, practice, or observance that affects the ability to wear personal protective equipment and/or engage in other infection control practices. How should an employer respond? (Updated 7/12/22)

In most instances, federal EEO laws permit an employer to require employees to wear personal protective equipment (PPE) (for example, masks and/or gloves) and observe other infection control practices (for example, regular hand washing or physical distancing protocols). Some employers may need to comply with regulations issued by the Occupational Safety and Health Administration (OSHA) that require the use of PPE. OSHA regulations do not prohibit the use of reasonable accommodations under the EEO laws as long as those accommodations do not violate OSHA requirements. Employers also may follow current CDC guidance about who should wear masks.

Regardless of the reason an employer requires PPE (or other infection control measures), when an employee with a disability needs a reasonable accommodation under the ADA to comply with an employer’s requirement to wear PPE (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or when an employee requires a religious accommodation under Title VII (such as modified or alternative equipment due to religious attire or grooming practices), the employer should discuss the request and provide accommodation (either what is requested by the employee or an alternative that is effective in meeting the employee’s needs) if it does not cause an undue hardship on the operation of the employer's business under the ADA or Title VII. For general information on reasonable accommodation under the ADA, see Section D.

G.3. What does an employee need to do in order to request reasonable accommodation from an employer because the employee has one of the medical conditions that CDC says may put a person at higher risk for severe illness from COVID-19? (Updated 7/12/22)

An employee—or a third party, such as an employee’s doctor—must let the employer know that the employee needs a change for a reason related to a medical condition . Individuals may request accommodation orally or in writing. While the employee (or third party) does not need to use the term “reasonable accommodation” or reference the ADA, the employee may do so.

The employee or the employee’s representative should communicate that the employee has a medical condition necessitating a change to meet a medical need. After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability—not all medical conditions meet the ADA’s definition of “disability”—and if there is a reasonable accommodation, barring undue hardship, that can be provided. For additional information on reasonable accommodation under the ADA, see Section D. For information on pregnancy-related disabilities covered under the ADA, see J.2. For general information on reasonable accommodation requests related to a sincerely held religious belief, practice, or observance, see K.12.

G.4. CDC identifies a number of medical conditions that are more likely to cause people to get severely ill if they get COVID-19. An employer knows that an employee has one of these conditions and is concerned that the employee’s health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation. How does the ADA apply to this situation? (Updated 7/12/22)

The ADA does not mandate that the employer take action in this situation if the employee has not requested reasonable accommodation. Also, an employer’s duty to provide reasonable accommodation applies only if an employee has an actual disability or a record of a disability, as defined in the ADA; this means not every individual with one of the medical conditions that might place them at higher risk of COVID-19 complications will automatically satisfy these ADA definitions of disability.

Assuming the employee has a “disability” as discussed above, if the employer is concerned that the health of an employee with a disability may be jeopardized upon returning to the workplace, the ADA generally does not allow the employer to exclude the employee—or take any other adverse action—because the employee has a disability that CDC identifies as potentially placing the employee at higher risk for severe illness if the employee gets COVID-19. Under the ADA, such an adverse action is not allowed unless the employee’s disability poses a “direct threat” to the employee’s health or safety that cannot be eliminated or reduced by reasonable accommodation.

The ADA direct threat requirement is a high standard. As an affirmative defense for the employer, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to the employee’s own health or safety, or that of others in the workplace under 29 C.F.R. section 1630.2(r) (regulation addressing direct threat to health or safety of self or others). A direct threat assessment cannot be based solely on the disability being identified in CDC’s guidance; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability—not the disability in general—using the most current medical knowledge and/or on the best available objective evidence. Thus, an employer analyzing a potential direct threat must consider 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. Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and the employee’s particular job duties. A determination of direct threat also would include whether the employee is up to date on vaccinations and the likelihood that an individual may be exposed to the virus at the worksite. Measures that an employer may be taking in general to protect all workers, such as mandatory physical distancing, also would be relevant.

Even if an employer determines that an employee’s disability poses a “significant risk of substantial harm” to the employee’s own health or safety, the employer still cannot exclude the employee from the workplace—or take any other adverse action—unless there is no way to provide a reasonable accommodation (absent undue hardship). The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or sufficiently reduce the risk so that it would be safe for the employee to return to the workplace, while still permitting the employee to perform the essential functions of the job.

An employer’s consideration of a possible reasonable accommodation should involve an interactive process with the employee. If there are no accommodations in an employee’s current position that sufficiently reduce or eliminate direct threat in the workplace, then an employer must consider accommodations such as telework, leave, or—as a last resort—reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework).

An employer may only bar an employee from working based on the direct threat analysis if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to the employee’s own health or safety that cannot be reduced or eliminated by reasonable accommodation. For general information on reasonable accommodation under the ADA (i.e., where an individual’s request for reasonable accommodation has nothing to do with potential direct threat concerns), see Section D.

G.5. What are examples of reasonable accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self or others? (Updated 7/12/22)

Reasonable accommodations that may eliminate (or reduce to an acceptable level) a direct threat to self or others may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to, or require from, employees returning to its workplace. Reasonable accommodations also may include additional or enhanced protective measures, such as High Efficiency Particulate Air (HEPA) filtration systems/units or other enhanced air filtration measures, erecting a barrier that provides separation between an employee with a disability and coworkers/the public, or increasing the space between an employee with a disability and others. Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position). In addition, accommodations may include telework, modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting), or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more physical distancing).

These are only a few ideas. Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace. An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations. As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible. For general information on reasonable accommodation under the ADA, see Section D.

G.6. As a best practice, and in advance of having some or all employees return to the workplace, are there ways for an employer to invite employees to request flexibility in work arrangements? (Updated 7/12/22)

Yes. The ADA, the Rehabilitation Act, and Title VII of the Civil Rights Act do not prohibit employers from making information available in advance to all employees about whom to contact—if they wish—to request reasonable accommodation that they may need for a disability or a sincerely held religious belief, practice or observance upon return to the workplace. Once requests are received, the employer may begin the interactive process. An employer may choose to include in such a notice all medical conditions identified in CDC guidance that may place people at higher risk of serious illness if they contract COVID-19, provide instructions about whom to contact, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions which may qualify as disabilities.

Alternatively, an employer may send a general notice explaining that the employer is willing to consider employee requests for reasonable accommodation for employees with a disability or a sincerely held religious belief, practice, or observance, or to consider flexibility on an individualized basis for employees not eligible for reasonable accommodation (e.g., employees who request flexibility due to age). The employer should specify if the point of contact is different depending on whether the request is based on disability, sincerely held religious beliefs, pregnancy, age, or child-care responsibilities.

Either approach is consistent with the Age Discrimination in Employment Act (ADEA), the ADA, the Rehabilitation Act, and Title VII.

Regardless of the approach, employers should ensure that those employees who receive, review, or process these requests are sufficiently trained in how to handle them in accordance with the federal employment nondiscrimination laws that may apply, for instance, with respect to accommodations due to a disability or a sincerely held religious belief, observance, or practice; or a request related to pregnancy. For additional information on reasonable accommodation under the ADA/Rehabilitation Act, see Section D.

H.1. CDC has explained that the risk for severe illness with COVID-19 increases with age, with older adults at the highest risk. Do older adults have protections under the federal employment discrimination laws? (Updated 7/12/22)

Yes. The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older. The ADEA would prohibit a covered employer from excluding an individual involuntarily from the workplace based on being older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19. For more information on postponing a start date or withdrawing a job offer due to older age, see C.5.

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for workers due to age. However, employers are free to provide flexibility to older workers; the ADEA does not prohibit this, even if it results in younger workers being treated less favorably based on age in comparison.

Older workers also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities. As such, they may request reasonable accommodation for their disability.

K.1. Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees to be vaccinated against COVID-19? (Updated 7/12/22)

The federal EEO laws do not prevent an employer from requiring all employees to be vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below. (See also Section L, Vaccinations – Title VII Religious Objections to COVID-19 Vaccine Requirements). If there is such an employer requirement, the EEO laws do not prevent employers from requiring documentation or other confirmation that employees are up to date on their vaccinations (see K.9.), but the EEO laws may require employers to make exceptions to a vaccination requirement for some employees.

The ADA and Title VII require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated against COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) (see K.6.) or for religion (see K.12.).

As with any employment policy, employers that have a vaccination requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act [40+]). Employers should keep in mind that because some individuals or demographic groups may face barriers to receiving a COVID-19 vaccination, some employees may be more likely to be negatively impacted by a vaccination requirement.

It would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.

K.4. Is information about an employee’s COVID-19 vaccination confidential medical information under the ADA? (Updated 7/12/22)

Yes. The ADA requires an employer to maintain the confidentiality of employee medical information. Although the EEO laws do not prevent employers from requiring employees to provide documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.

An employer may share confidential medical information, such as confirmation of employee vaccinations (or COVID-19 test results), with employees who need it to perform their job duties. However, such employees also must keep the information confidential. Some possible scenarios include:

· An administrative employee assigned to perform recordkeeping of employees’ documentation of vaccination may receive needed access to the information for this purpose but must keep this information confidential.

· An employee assigned to permit building entry only by employees who are in compliance with a work restriction, such as COVID-19 vaccinations, testing, and/or masking, should only receive a list of the individuals who may (or may not) enter, but not any confidential medical information about why they are on (or not on) the list.

· An employee tasked to ensure compliance with a testing requirement for employees would need to review testing documentation submitted by those employees but must keep that testing information confidential.

Mandatory Employer Vaccination Programs

K.5. May an employer require an employee to comply with a COVID-19 vaccination requirement applicable to all employees entering the workplace if that employee has sought an exemption based on disability? (Updated 7/12/22)

Under the ADA, an employer may require an individual with a disability to meet a qualification standard applied to all employees, such as a safety-related standard requiring COVID-19 vaccination, if the standard is job-related and consistent with business necessity as applied to that employee. An employer does not have to show that a qualification standard in general (i.e., as applied to all employees) meets the “business necessity” standard. Under the ADA it must satisfy this standard only as applied to an employee who informs the employer that a disability prevents compliance. If a particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others while performing their job. A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. 1630.2(r). This determination can be broken down into two steps: determining if there is a “significant risk of substantial harm” and, if there is, assessing whether a reasonable accommodation would reduce or eliminate the threat.

To determine if an employee who is not vaccinated due to a disability poses a “direct threat” in the workplace, an employer first must make an individualized assessment of the employee’s present ability to safely perform the essential functions of the job. The factors that make up this assessment are: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. The determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. Such medical knowledge may include, for example, the level of community spread at the time of the assessment. Statements from the CDC provide an important source of current medical knowledge about COVID-19, and the employee’s health care provider, with the employee’s consent, also may provide useful information about the employee. Additionally, the assessment of direct threat should take account of the type of work environment, such as: whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing.

If the assessment demonstrates that an employee with a disability who is not vaccinated would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat. Potential reasonable accommodations could include requiring the employee to wear a mask, work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees), permitting telework if feasible, or reassigning the employee to a vacant position in a different workspace.

As a best practice, an employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis. (See also K.12 recommending the same best practice for religious accommodations.)

K.16. Does the ADA limit the value of the incentive employers may offer to employees for voluntarily receiving a COVID-19 vaccination from a health care provider that is not affiliated with their employer (such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department)? (Updated 7/12/22)

No. The ADA does not limit the incentives (which includes both rewards and penalties) an employer may offer to encourage employees to voluntarily receive a COVID-19 vaccination, or to provide confirmation of vaccination, if the health care provider administering a COVID-19 vaccine is not the employer or its agent. By contrast, if an employer offers an incentive to employees to voluntarily receive a vaccination administered by the employer or its agent, the ADA’s rules on disability-related inquiries apply and the value of the incentive may not be so substantial as to be coercive. See K.17.

As noted in K 4., the employer is required to keep vaccination information confidential under the ADA.

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.