Sixth Circuit Rejects First Amendment Retaliation Claim Based On Employee's Firing for Single Use of Racial Slur on Facebook

 Earlier this month, the Sixth Circuit Court of Appeals reversed a trial verdict of $25K which found that a Trump-supporting employee was unlawfully retaliated against in violation of the First Amendment when she had been fired for using racist slang a single time on a Facebook post on election night 2016 even though she had deleted the entire post the next day.   Bennett v. Metro. Gov’t of Nashville, No. 19-5818 (Oct. 6, 2020).  The Court found that the plaintiff’s use of the racist term in responding to the exact same language posted by a stranger was not constitutionally protected and justified her termination.  While her comment did reflect on a matter of public concern, it was not entitled to the highest level of protection as other comments might have been and was outweighed by the disruption created by her comment within her workplace and in the public’s trust of her department.  It was particularly problematic that her Facebook posts were public, that she identified her employer and department, that she failed to disclaim that her personal opinions were her own and not that of her employer, that she had direct contact with the public in her job, that she failed to consistently express remorse or accountability, and that many of her co-workers were deeply offended and upset by her use of the word.  The Court also rejected the plaintiff’s defense asserting that the City had caved to a single heckler’s veto.  While the decision was unanimous and there was a majority court opinion, each judge wrote a separate opinion explaining the outcome.

According to the Court’s opinion, the plaintiff employee stayed up until 3 a.m. on election night and posted an image of the electoral map when Trump had been declared the winner.  A stranger quickly posted a comment on her public page indicating that Trump had been elected by “rednecks” while “niggaz and latinos states vot[ed] for hillary.”  She responded using his same language, ““Thank god we have more America loving rednecks.  . . . Even niggaz and latinos voted for trump too!”  Several friends notified her the next morning that they were offended by her language and she deleted the entire post that afternoon.   In the meantime, the City’s HR Department, the union and the Mayor’s office received a few complaints about her Facebook comments.  One person  (allegedly a disgruntled former employee) who had viewed her post had then made screen shots of it and may have been sharing it on his Facebook page while accusing the City of being racist.   The City became especially concerned because the plaintiff had identified herself as both an employee of the City and its police department.   However, by the time they telephoned her to request that she remove the post, she had already done so.

When she met with the City before her shift the following morning, she initially showed no remorse or understanding of how inappropriate her comment had been.  She felt that she had simply made a sarcastic response to the initial comment and that objectors were not really all that offended.  When she realized that this was becoming a disciplinary issue, she offered to apologize to the offended employees, but objected to apologizing to the entire staff at roll call.  Accordingly, she was sent home on administrative leave pending further investigation.  The union reported increasing tension within the department where the plaintiff worked as a result of her Facebook comment.  The City also decided that diversity training in that department would be appropriate and to have a counsellor come in and speak with employees who were offended.

Following the investigation, the City

determined that [the plaintiff’s] conduct violated three policies of the Metropolitan Government Civil Service Commission: (1) her behavior “reflect[ed] discredit upon [her]self, the department, and/or the Metropolitan Government,” (2) her conduct was “unbecoming of an employee of the Metropolitan Government,” and (3) her Facebook profile disclosed that she was a Metro employee but failed to include a disclaimer that her “expressed views are [hers] alone and do not reflect the views of the Metropolitan Government.”

A letter was sent to the plaintiff explaining

that “[t]o advance the mission [of ECC], it is vitally important that all department employees conduct themselves in a manner free of bias, demonstrate unquestionable integrity, reliability and honesty,” and that “[t]he success of [the] agency can be measured by the perception and confidence the public has in the employees representing the agency.”

The City felt that

the charges were appropriate, first, because she felt that inclusion of a particularly offensive racial slur in a public social-media post was objectionable because it did not reflect Metro policy or the beliefs of people who worked there. Further, she thought such racially charged language would bring discredit to the office and testified that “the public that we serve is very diverse, and it’s my expectation that when someone calls[,] regardless of who they are or where they’re from, that they’re going to receive the appropriate service.” Donegan also concluded that Bennett’s behavior warranted discipline because of the disruption it caused: employees were upset at work, counselors needed to be involved, and stress levels increased for the agency as a whole.

At some point, the plaintiff took FMLA leave and was notified of her pre-disciplinary hearing upon her return and was placed back on administrative leave pending the hearing.  In the meantime, she had written a letter of apology expressing her embarrassment and humility, but she did not express any of those sentiments at the hearing, where she instead defended and explained her conduct. 

[S]he did not exhibit concern for her colleagues’ feelings, called them hypocrites, and indicated that she would not apologize because someone else took something the wrong way—indeed, she believed her colleagues should instead apologize to her.

Concerned with the lack of remorse, accountability or acknowledgement of poor judgment, the decision was made to terminate her employment in order to avoid a repeat of the incident and promote healing within her department.

The plaintiff sued under §1983 and the First Amendment retaliation claim was tried to a jury, which indicated in the jury interrogatories that it found that her Facebook post “was not reasonably likely to impair discipline by superiors at ECC, to interfere with the orderly operation of ECC, or to impede performance of” her duties.  However, the jury also found that her Facebook post was “reasonably likely to have a detrimental impact on close working relationships [within her department] and undermine the agency’s mission, that [the City] terminated Plaintiff ‘[f]or using the term ‘niggaz’ when expressing her views regarding the outcome of a national election on Facebook,’ and that doing so violated the three charges outlined in Bennett’s termination letter.”  Upon receiving these jury interrogatory responses, the trial court ruled that the balancing factors weighed in the plaintiff’s favor and the jury awarded her $25K in damages.

In reversing, the Court of Appeals concluded that the trial court erred in balancing the factors in determining whether the plaintiff’s speech was constitutionally protected.

To establish a claim for First Amendment retaliation, a public employee must show that: (1) he engaged in constitutionally protected speech or conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness from continuing to engage in that conduct; [and] (3) there is a causal connection between elements one and two—that is, the adverse action was motivated at least in part by his protected conduct.

In order to find that a government employee’s speech is constitutionally protected, a court must first determine whether the employee was speaking as a private citizen or public employee in the course of employment (which was not an issue in this case) and then,

determine whether the statement in question constitutes speech on a matter of public concern.   . . .  Then, if it does, we apply the Pickering balancing test to determine whether the Plaintiff’s “interest in commenting upon matters of public concern . . . outweigh[s] the interest of [Metro], as an employer, in promoting the efficiency of the public services it performs through its employees.”

The Court began its analysis by determining the degree of protection to give the plaintiff’s comments based on “the level of importance the speech has in the community” and its context.  The City conceded that the plaintiff’s comments were political in nature, but argued that her comments were not “purely political” and thus, not entitled to a heightened level of constitutional protection.  While the plaintiff asserted that her comments had been purely political, the Court rejected the plaintiff’s argument that she had been terminated in response for supporting Trump.  She had admittedly posted prior comments supporting Trump and suffered no adverse employment action.    Further, the jury had been given multiple choice options for answering the jury interrogatories and had not selected the option that she was terminated for expressing her opinion about the results of the election.  It also rejected the options about workplace disruptions or lack of accountability.   Instead, it selected the only option which quoted the language that she used on Facebook.

The Court reasoned that the First Amendment does not merely focus on the speaker’s interest, “but also with the public’s interest in receiving information.”  Her comments on a matter of public interest on which she had no special insight was not entitled to the same level of protection of, for instance, discussing the lawful operation of the city government.  Clearly, the public would be more interested in the latter than the former.

It is true that the speech in question was couched in terms of political debate, made in response to and repeating back the words of another person, and used a more casual version of an offensive slur.  Still, Bennett’s speech does not garner the high level of protection that the district court assigned to it, and the balancing test requires less of a showing of disruption and other factors than the district court would require.  . . . In any event, the evidence of disruption caused by the language in Bennett’s Facebook post was substantial.

We apply the Pickering test “‘to determine [whether] the employee’s free speech interests outweigh the efficiency interests of the government as employer.’”  . . . . The test considers “the manner, time, and place of the employee’s expression.” . . . . The “pertinent considerations” for the balancing test are “whether the statement [(a)] impairs discipline by superiors or harmony among co-workers, [(b)] has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, [(c)] impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise,” id., or (d) undermines the mission of the employer.  . . . The consideration of the employee’s performance, impaired discipline by superiors, harmony among co-workers, and undermining of the office’s mission is “focuse[d] on the effective functioning of the public employer’s enterprise.”  . . .

Consideration of the first factor of the Pickering test, whether the speech impaired discipline by superiors or harmony among co-workers, weighs heavily in favor of Metro. The record makes clear that the harmony of the office was disrupted, and the district court erred in discounting the importance of harmonious relationships at ECC. Employees testified that Bennett’s post prompted a “nonstop conversation” in the office that lasted for days, and for as much as three weeks to a month after Bennett’s comment, there was a need for a counselor to address the office.

While nothing about the plaintiff’s comment impaired discipline among management, “it is possible that any inaction on [management’s] part in the face of Bennett’s derogatory speech could have been seen as an endorsement of the speech and impaired future discipline of similar derogatory statements.”

The Court also found that the second Pickering factor weighed heavily in favor of the City because the jury had found that the speech had a detrimental impact on the close working relationships for which personal loyalty and confidence are necessary.  Employees had expressed concern about whether they could work again harmoniously with the plaintiff in an already stressful environment.

“The third factor, whether Bennett’s speech “impede[d] the performance of the speaker’s duties or interfere[d] with the regular operation of the enterprise,” is a close call.”  The jury found that there was no evidence that the plaintiff’s ability to perform her duties would be impacted, but the Court noted that it was also possible that her damaged relationships with her colleagues could adversely affect her work and job performance.

“Finally, Bennett’s comment detracted from the mission of ECC, weighing again in favor of” the City. “When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her.”  The jury concluded that her comments had undermined her department’s mission, but the trial court had discounted this finding in error.

Had Bennett’s profile been private, or had it not indicated that she worked for Metro, Metro’s argument for terminating Bennett would not be as strong. But the relevant Civil Service Rules support the idea that public perception is central to ECC’s mission. Bennett’s public comments discredited ECC because they displayed racial bias without a disclaimer that the views were hers alone. This court and several others “have recognized the interest of a governmental entity in preserving the appearance of impartiality.”

In rejecting the trial court’s weighting of this factor, the Court stated that “we consider the role and responsibilities of the employee and, when the role is public-facing, whether the danger to successful functioning of the office may increase.”

In Rankin, the employee was not in a public contact role, and thus, concerns about public perception were too attenuated to limit the free speech rights of the employee.  . . .. Here, however, Bennett was in a public-facing role and used the slur in a public forum from a profile that implicated not only Metro Government but also the Metro Police Department. This situation is exactly the type that Rankin warned could warrant a higher level of caution for public employees’ choice of words. Id. at 390 (stating that if the employee is in a “confidential, policymaking, or public contact role,” the danger to the agency’s successful functioning may be greater).

Second, the district court determined that because the record contained evidence of only one member of the public expressing concern, the fear of the post “going viral” was not a sufficiently substantial justification. But, although we have not addressed the issue directly, other circuits have held that a reasonable prediction that the public perception will impact the government’s operations is sufficient. . . . Grutzmacher acknowledges that speech on social media “amplifies the distribution of the speaker’s message.”  . . . . Although this situation, in some respects, “favors the employee’s free speech interests,” it also “increases the potential, in some cases exponentially, for departmental disruption, thereby favoring the employer’s interest in efficiency.”

Third, the district court “view[ed] it as highly speculative that even if an African American were familiar with Plaintiff’s Facebook comment and was offended by it, such African American would be deterred from calling in an emergency.” The concern, however, was not that African Americans will no longer call for emergency service, but rather—as Metro explains— that “damaged public perception can lead to many ills” for an agency that serves the public directly. The Second Circuit has effectively captured the importance of public trust in such relationships:

The effectiveness of a city’s police department depends importantly on the respect and trust of the community and on the perception in the community that it enforces the law fairly, even-handedly, and without bias. If the police department treats a segment of the population . . . with contempt, so that the particular minority comes to regard the police as oppressor rather than protector, respect for law enforcement is eroded and the ability of the police to do its work in that community is impaired. Members of the minority will be less likely to report crimes, to offer testimony as witnesses, and to rely on the police for their protection. When the police make arrests in that community, its members are likely to assume that the arrests are a product of bias, rather than well-founded, protective law enforcement. And the department’s ability to recruit and train personnel from that community will be damaged. . . . .

The district court’s reference to Bennett’s use of “niggaz” as “the mere use of a single word” demonstrates its failure to acknowledge the centuries of history that make the use of the term more than just “a single word.” The use of the term “evok[es] a history of racial violence, brutality, and subordination.” . . . . It “may appear innocent or only mildly offensive to one who is not a member of the targeted group, but be intolerably abusive or threatening when understood from the perspective of a [person] who is a member of the targeted group.” Id. “The use of this word, even in jest, could be evidence of racial apathy.”

The Court also rejected the plaintiff’s argument about a “heckler’s veto” by giving a hostile mob control over determining what political speech is protected when, up to the time that she had been terminated, only one member of the public had complained about her Facebook post.   

A heckler’s veto involves burdening or punishing speech “simply because it might offend a hostile mob.”  . . . We have not addressed a heckler’s veto in this context, but the Ninth Circuit has held that those concerns are not applicable to the “wholly separate area of employee activities that affect the public’s view of a governmental agency in a negative fashion, and thereby, affect the agency’s mission.”  . . . The Second Circuit has taken a similar view, finding that “members of the African American . . . communities whose reaction . . . the defendants legitimately took into account . . . cannot properly be characterized as ‘outsiders seeking to heckle [the plaintiffs] into silence.’”  . . . Because effective emergency service “presupposes respect for the members of those communities,” such agencies are permitted to account for the possible reaction of the public when disciplining their employees. Id. The public—as the consumers of ECC’s services—and Bennett’s colleagues with whom she must work collaboratively can hardly be said to be “a hostile mob.”

Finally, the Court rejected the plaintiff’s argument that the employer’s workplace investigation was superficial because she had the opportunity to present additional evidence and witnesses at her pre-disciplinary hearing.  “The question in this case is not whether members of the judiciary would have made the decision to terminate Bennett for using a racial slur in this instance. The question is whether Bennett’s language was sufficiently protected for the court to interfere in our proclivity for ‘affording government employers sufficient discretion to manage their operations.’”

Because Bennett’s speech does not occupy “the highest rung” of public concern, less of a showing of disruption is required.  Several factors weigh heavily in favor of Metro. Although there are factors weighing in favor of Bennett, sufficient disruption was shown to tip the Pickering balance towards Metro. Based on the above analysis and in light of the discretion we must grant leadership at Metro, its interest in maintaining an effective workplace with employee harmony that serves the public efficiently outweighs Bennett’s interest in incidentally using racially offensive language in a Facebook comment.

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.

New EO on Diversity Training Could Potentially Impact Most Employers

[Editor's Note:  As expected, President Biden rescinded this EO on his first day.]

On September 22, 2020, President Trump issued Executive Order 13950 which bars federal agencies, federal grant recipients and federal contractors from engaging in employee training which utilizes racial or sexual stereotyping or scapegoating.   It does not ban all training about implicit or unconscious bias, but only that employees may not be instructed that they hold such implicit bias by virtue of their sex or race.    The Office of Federal Contract Compliance Programs (OFCCP) has been tasked with enforcement.  OFCCP has issued FAQ and on September 28, 2020 opened a hotline to receive employee complaints about the banned stereotyping and scapegoating and about employment discrimination in general (which is covered by Executive Order 11246).  The EO also directs the Attorney General to examine Title VII ramifications and with the EEOC to "issue publicly available guidance to assist employers in better promoting diversity and inclusive workplaces consistent with Title VII." While certain provisions and applications of the new Executive Order are likely to be challenged under the First Amendment, most of it would be relatively uncontroversial if this were not an election year.

“While the order is effective immediately, its specific requirements for Federal contractors apply only to those with Federal contracts entered into 60 days after the date of the order, or Nov. 21, 2020. However, training programs prohibited by the new Executive Order may also violate a contractor’s obligations under the existing Executive Order 11246, which prohibits discrimination based on race, color, religion, sex, sexual orientation, gender identity, national origin, and for inquiring about, discussing, or disclosing your compensation or the compensation of others.  An employee may file a complaint regarding training programs that they believe to be in violation via OFCCP’s website at https://www.dol.gov/agencies/ofccp/contact/file-complaint or OFCCP can send them a copy of the complaint form by email or regular mail.

The stated policy of the new EO is "is “not to promote race or sex stereotyping or scapegoating in the Federal workforce or in the Uniformed Services, and not to allow grant funds to be used for these purposes. In addition, Federal contractors will not be permitted to inculcate such views in their employees.”

The type of messages which the EO seeks to prohibit include the following:

(a) “Divisive concepts” means the concepts that (1) one race or sex is inherently superior to another race or sex; (2) the United States is fundamentally racist or sexist; (3) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (4) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (5) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (6) an individual’s moral character is necessarily determined by his or her race or sex; (7) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (8) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (9) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. The term “divisive concepts” also includes any other form of race or sex stereotyping or any other form of race or sex scapegoating.

(b) “Race or sex stereotyping” means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.

(c) “Race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.

With respect to federal contractors covered by affirmative action requirements, the EO provides that future government contracts shall contain the following requirement of contractors:

1. The contractor shall not use any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating, including the concepts that (a) one race or sex is inherently superior to another race or sex; (b) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (c) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (d) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (e) an individual’s moral character is necessarily determined by his or her race or sex; (f) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (g) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (h) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. The term “race or sex stereotyping” means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex, and the term “race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.

2. The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers’ representative of the contractor’s commitments under the Executive Order of September 22, 2020, entitled Combating Race and Sex Stereotyping, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

3. In the event of the contractor’s noncompliance with the requirements of paragraphs (1), (2), and (4), or with any rules, regulations, or orders that may be promulgated in accordance with the Executive Order of September 22, 2020, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246, and such other sanctions may be imposed and remedies invoked as provided by any rules, regulations, or orders the Secretary of Labor has issued or adopted pursuant to Executive Order 11246, including subpart D of that order.

4. The contractor will include the provisions of paragraphs (1) through (4) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.”

By the end of this month, OFCCP is also directed to request through the Federal Register information about diversity training offered to employees by federal contractors.  It is unclear whether this is past training or future training materials.

Within 30 days of the date of this order, the Director of OFCCP shall publish in the Federal Register a request for information seeking information from Federal contractors, Federal subcontractors, and employees of Federal contractors and subcontractors regarding the training, workshops, or similar programming provided to employees. The request for information should request copies of any training, workshop, or similar programing having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities.

It is unclear what the purpose of the Request for Information is or how this information will be utilized.  OFCCP indicates that its Request for Information will seek the following:

The Request for Information will seek information from federal contractors, federal subcontractors, and employees of federal contractors and subcontractors regarding their training, workshops, or similar programming provided to employees that may be in violation of Executive Orders 11246 or 13950.

The EO also directs action involving the applicability of Title VII.

Sec. 8. Title VII Guidance. The Attorney General should continue to assess the extent to which workplace training that teaches the divisive concepts set forth in section 2(a) of this order may contribute to a hostile work environment and give rise to potential liability under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. If appropriate, the Attorney General and the Equal Employment Opportunity Commission shall issue publicly available guidance to assist employers in better promoting diversity and inclusive workplaces consistent with Title VII.

The EO specifically does not ban “as part of a larger course of academic instruction, the divisive concepts listed in section 2(a) of this order in an objective manner and without endorsement.”

Recipients of federal grants will be prohibited from using federal funds to promote the “divisive concepts.”

OFCCP’s FAQ make clear that implicit bias training is not prohibited by the EO.

Unconscious or implicit bias training is prohibited to the extent it teaches or implies that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously.

Training is not prohibited if it is designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people—regardless of their race or sex—may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.

OFCCP’s FAQ also gives examples of the type of training concepts which are banned:

·       One race or sex is inherently superior to another race or sex;

·       An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;

·       An individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;

·       Members of one race or sex cannot and should not attempt to treat others without respect to race or sex;

·       An individual’s moral character is necessarily determined by his or her race or sex;

·       An individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;

·       Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or

·       Meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

The Office of Management and Budget has also directed federal agencies to search through procurement and financial records for certain terms in order to identify potentially problematic diversity training materials that might violate the Order, but such a keyword review, by itself, would be insufficient to satisfy the directive and must be accompanied by a more detailed review of the particular training materials.  Those key words include "critical race theory," "white privilege," "intersectionality," "systemic racism," "positionality," "racial humility," and "unconscious bias."

I do not make editorial comments here very often, but when I have provided training in the past, it would never have occurred to me to suggest that a person has implicit bias by virtue of a race or sex.  I still have discussed implicit bias as humans and attribution errors where we – as humans – assume a motivation for someone else’s actions.   Nonetheless, I attended a training recently that made a compelling argument for why it is a mistake to be color blind when trying to be sensitive to others and think that this is a concept worth discussing.  Perhaps it will still be permitted as an academic discussion without endorsement.  But did I just endorse it?  Yikes.  I will add that I understand the importance of making color-blind decisions in employment.  Or I have I dug a deeper hole for myself?   In any event, we are likely to have an idea within the next month of how much of this EO – if any of it – survives into 2021.

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.

DOL Modifies FFCRA Regulations

 

This morning, the Department of Labor formally amended its Temporary Rule governing the Families First Cornavirus Relief Act (FFCRA) in response to a federal court decision from New York last month.  In particular, the DOL narrowed the definition of “health care provider” to treatment, diagnostic and prevention professionals as provided in the FMLA, instead of any employee working for a health care employer, but expanded it beyond the typical FMLA context to include other medical professionals, such as nurses and those whose services are integrated with medical care.   Accordingly, the FFCRA leave exemptions for health care providers will no longer cover administrative and service employees of hospitals and medical practices.   The rule will focus on the care provided instead of the type of employer.  The DOL reaffirmed that paid FFCRA leave is not available to employees who are furloughed or laid off and explicitly expanded that concept to all qualifying reasons for FFCRA leave.  The DOL also re-affirmed that employer approval is required before employees may take intermittent FFCRA leave.  Finally, the DOL clarified the notice and documentation requirement so that the written request for FFCRA leave need not necessarily be given prior to the leave, but as soon as practicable.  The modified rule becomes effective immediately and the FFCRA leave rights expire at the end of this year.

As explained by the DOL:

On August 3, 2020, the District Court ruled that four parts of the temporary rule are invalid: (1) The requirement under § 826.20 that paid sick leave and expanded family and medical leave are available only if an employee has work from which to take leave; (2) the requirement under § 826.50 that an employee may take FFCRA leave intermittently only with employer approval; (3) the definition of an employee who is a ‘‘health care provider,’’ set forth in § 826.30(c)(1), whom an employer may exclude from being eligible for FFCRA leave; and (4) the statement in § 826.100 that employees who take FFCRA leave must provide their employers with certain documentation before taking leave. New York v. U.S. Dep’t of Labor, No. 20–CV– 3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020).

               . . . .

           1. The Department reaffirms that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave and explains further why this requirement is appropriate. This temporary rule clarifies that this requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave.

2. The Department reaffirms that, where intermittent FFCRA leave is permitted by the Department’s regulations, an employee must obtain his or her employer’s approval to take paid sick leave or expanded family and medical leave intermittently under § 825.50 and explains further the basis for this requirement.

3. The Department revises the definition of ‘‘health care provider’’ under § 825.30(c)(1) to mean employees who are health care providers under 29 CFR 825.102 and 825.125,3 and other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.

4. The Department revises § 826.100 to clarify that the information the employee must give the employer to support the need for his or her leave should be provided to the employer as soon as practicable.

5. The Department revises § 826.90 to correct an inconsistency regarding when an employee may be required to give notice of expanded family and medical leave to his or her employer.

Notice of Need for Leave.  The DOL has modified

§ 826.100 to clarify that the documentation required under § 826.100 need not be given ‘‘prior to’’ taking paid sick leave or expanded family and medical leave, but rather may be given as soon as practicable, which in most cases will be when the employee provides notice under § 826.90. The Department is also revising § 826.90(b) to correct an inconsistency regarding the timing of notice for employees who take expanded family and medical leave.

. . .

 . . . , the Department is revising § 826.100(a) to require the employee to furnish the listed information as soon as practicable, which in most cases will be when notice is provided under § 826.90. That is to say, an employer may require an employee to furnish as soon as practicable: (1) The employee’s name; (2) the dates for which leave is requested; (3) the qualifying reason for leave; and (4) an oral or written statement that the employee is unable to work. The employer may also require the employee to furnish the information set forth in § 826.100(b)–(f) at the same time.

The modified regulations are as follows:

§ 826.90 Employee notice of need for leave. * * * * * (b) Timing and delivery of notice. Notice may not be required in advance, and may only be required after the first workday (or portion thereof) for which an Employee takes Paid Sick Leave. After the first workday, it will be reasonable for an Employer to require notice as soon as practicable under the facts and circumstances of the particular case. Generally, it will be reasonable for notice to be given by the Employee’s spokesperson (e.g., spouse, adult family member, or other responsible party) if the Employee is unable to do so personally. Notice for taking Expanded Family and Medical Leave is required as soon as practicable. If the reason for this leave is foreseeable, it will generally be practicable to provide notice prior to the need to take leave. * * * * *

§ 826.100 Documentation of need for leave. (a) An Employee is required to provide the Employer documentation containing the following information as soon as practicable, which in most cases will be when the Employee provides notice under § 826.90: (1) Employee’s name; (2) Date(s) for which leave is requested; (3) Qualifying reason for the leave; and (4) Oral or written statement that the Employee is unable to work because of the qualified reason for leave.

Intermittent Leave.  The FFCRA did not create a right to take intermittent leave, but the DOL regulation permits such leave if the employer permits it when the employee is teleworking or for childcare purposes.   Unlike the FMLA, the employer may not condition FFCRA (or emergency paid sick leave) on a medical certification of a need for intermittent leave.   Moreover, as discussed by the DOL, none of the reasons for FFCRA leave lend themselves to a medical need for intermittent leave:

. . . Rather than justifying intermittent leave, these medical considerations militate against intermittent FFCRA leave where the employee may have an elevated risk of being infected with COVID–19 or is caring for someone who may have such elevated risk. Permitting such an employee to return to work intermittently when he or she is at an elevated risk of transmitting the virus would be incompatible with Congress’ goal to slow the spread of COVID–19. . . . Employees who take paid sick leave for these reasons, however, may telework on an intermittent basis without posing the risk of spreading the contagion at the worksite or being infected themselves.

The Department believes the employer-approval condition for intermittent leave under its FMLA regulation is appropriate in the context of FFCRA intermittent leave for qualifying reasons that do not exacerbate risk of COVID–19 contagion. It is a longstanding principle of FMLA intermittent leave that such leave should, where foreseeable, avoid ‘‘unduly disrupting the employer’s operations.’’ 29 CFR 825.302(f). It best meets the needs of businesses that this general principle is carried through to the COVID–19 context, by requiring employer approval for such leave. In the context of intermittent leave being required for medical reasons, the FMLA long has recognized certified medical needs for intermittent leave as paramount, unless the leave is for planned medical treatment, in which case the employee must make reasonable efforts to schedule the leave in a manner that does not unduly disrupt operations. 29 U.S.C. 2612(e)(2)(A); 29 CFR 825.302(e). However, when intermittent leave is not required for medical reasons, the FMLA balances the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave. 29 CFR 825.120(b); .121(b). The Department’s FFCRA regulations already provide that employees may telework only where the employer permits or allows. See § 826.10(a). Since employer permission is a precondition under the FFCRA for telework, the Department believes it is also an appropriate condition for teleworking intermittently due to a need to take FFCRA leave. On the other hand, the Department does not believe that an employee should be required to obtain certification of medical need in order to telework intermittently because it may be unduly burdensome in this context for an employee to obtain such certification. Medical certification would also be redundant because the employee must already obtain employer permission to telework in the first place.  . . .

Employer approval is also an appropriate condition for taking FFCRA leave intermittently to care for a child, whether the employee is reporting to the worksite or teleworking. This condition already applies where an employee takes FMLA leave to care for his or her healthy newborn or adopted child, which is similar to where an employee takes FFCRA leave to care for his or her child because the child’s school, place of care, or child care provider is closed or unavailable.

Health Care Provider.  The FFCRA exempted certain employees from the right to take paid FFCRA leave, including health care providers.  The DOL initially gave this a very broad interpretation to include all employees of a health care organization.  The NY court found this to be overly broad.  Accordingly, the DOL has narrowed that definition.   The definition was revised first to be consistent with the FMLA. 

Second, revised § 826.30(c)(1)(i)(B) . . .. identifies additional employees who are health care providers by focusing on the role and duties of those employees rather than their employers. It expressly states that an employee is a health care provider if he or she is ‘‘capable of providing health care services.’’ The definition then further limits the universe of relevant ‘‘health care services’’ that the employee must be capable of providing to qualify as a ‘‘health care provider’’—i.e., the duties or role of the employee. Specifically, a health care provider must be ‘‘employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.’’

Revised § 826.30(c)(1)(ii) lists the three types of employees who may qualify as ‘‘health care providers’’ under § 826.30(c)(1)(i)(B). First, § 826.30(c)(1)(ii)(A) explains that included within the definition are nurses, nurse assistants, medical technicians, and any other persons who directly provide the services described in § 826.30(c)(1)(i)(B), i.e., diagnostic, preventive, treatment services, or other services that are integrated with and necessary to the provision of patient care are health care providers.

Second, § 826.30(c)(1)(ii)(B) explains that, included within the definition, are employees providing services described in paragraph (c)(1)(i)(B) under the supervision, order, or direction of, or providing direct assistance to, a person described in paragraphs (c)(1)(i)(A) (that is, employees who are health care providers under the usual FMLA definition) or (c)(1)(ii)(A) (that is, nurses or nurse assistants and other persons who directly provide services described in paragraph (c)(1)(i)(B)). Finally, under § 826.30(c)(1)(ii)(C), ‘‘health care providers’’ include employees who may not directly interact with patients and/or who might not report to another health care provider or directly assist another health care provider, but nonetheless provide services that are integrated with and necessary components to the provision of patient care. Health care services reasonably may include services that are not provided immediately, physically to a patient; the term health care services may reasonably be understood to be broader than the term health care. For example, a laboratory technician who processes test results would be providing diagnostic health care services because, although the technician does not work directly with the patient, his or her services are nonetheless an integrated and necessary part of diagnosing the patient and thereby determining the proper course of treatment.26 Processing that test is integrated into the diagnostic process, like performing an x-ray is integrated into diagnosing a broken bone.

Individuals who provide services that affect, but are not integrated into, the provision of patient care are not covered by the definition, because employees who do not provide health care services as defined in paragraph (c)(1)(i)(B) are not health care providers. Accordingly, revised § 826.30(c)(1)(iii) provides examples of employees who are not health care providers. The Department identifies information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers. While the services provided by these employees may be related to patient care—e.g., an IT professional may enable a hospital to maintain accurate patient records—they are too attenuated to be integrated and necessary components of patient care. This list is illustrative, not exhaustive.

               . . .

           Under this revised definition, § 826.30(c)(1)(v) provides specific examples of services that may be considered ‘‘diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care’’ under § 826.30(c)(1)(i). These examples are non-exhaustive and are meant to be illustrative.

Diagnostic services include, for example, taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results. These services are integrated and necessary because without their provision, patient diagnosis would be undermined and individuals would not get the needed care. To illustrate, a technician or nurse who physically performs an x-ray is providing a diagnostic service and therefore is a health care provider.

Preventative services include, for example, screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems. As with diagnostic services, preventative services are integrated and necessary because they are an essential component of health care. For example, a nurse providing counseling on diabetes prevention or on managing stress would be providing preventative services and therefore would be a health care provider.

Treatment services are the third category of services which make up health care services. Treatment services include, for example, performing surgery or other invasive or physical interventions, administering or providing prescribed medication, and providing or assisting in breathing treatments.

The last category of health care services are those services that are integrated with and necessary to diagnostic, preventive, or treatment services and, if not provided, would adversely impact patient care. This final category is intended to cover other integrated and necessary services that, if not provided, would adversely affect the patient’s care. Such services include, for example, bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples. These tasks must be integrated and necessary to the provision of patient care, which significantly limits this category.

For example, bathing, dressing, or hand feeding a patient who cannot do that herself is integrated into to the patient’s care. In another example, an individual whose role is to transport tissue or blood samples from a patient to the laboratory for analysis for the purpose of facilitating a diagnosis would be providing health care services because timely and secure transportation of the samples is integrated with and necessary to provide care to that patient. These tasks also must be something that, if not performed, would adversely affect the patient’s care, and they also must be integrated into that patient’s care. Thus, tasks that may be merely indirectly related to patient care and are not necessary to providing care are not health care services. Further, the Department notes that some of the exemplar services listed in § 826.30(c)(1)(v)(D) may fit into more than one category.

The new FFCRA definition for healthcare provider:

§ 826.30 Employee eligibility for leave. * * * * * (c) * * * (1) Health care provider—

(i)              Basic definition. For the purposes of Employees who may be exempted from Paid Sick Leave or Expanded Family and Medical Leave by their Employer under the FFCRA, a health care provider is (A) Any Employee who is a health care provider under 29 CFR 825.102 and 825.125, or; (B) Any other Employee who is capable of providing health care services, meaning he or she is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.

(ii)             Types of Employees. Employees described in paragraph (c)(1)(i)(B) include only: (A) Nurses, nurse assistants, medical technicians, and any other persons who directly provide services described in (c)(1)(i)(B); (B) Employees providing services described in (c)(1)(i)(B) of this section under the supervision, order, or direction of, or providing direct assistance to, a person described in paragraphs (c)(1)(i)(A) or (c)(1)(ii)(A) of this section; and (C) Employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary to diagnoses and treatment.

(iii)           Employees who do not provide health care services as described above are not health care providers even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.

(iv)           Typical work locations. Employees described in paragraph (c)(1)(i) of this section may include Employees who work at, for example, a doctor’s office, hospital, health care center, clinic, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar permanent or temporary institution, facility, location, or site where medical services are provided. This list is illustrative. An Employee does not need to work at one of these facilities to be a health care provider, and working at one of these facilities does not necessarily mean an Employee is a health care provider.

(v)             Further clarifications. (A) Diagnostic services include taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.

(B) Preventive services include screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.

(C) Treatment services include performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments.

(D) Services that are integrated with and necessary to diagnostic, preventive, or treatment services and, if not provided, would adversely impact patient care, include bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.

(vi)     The definition of health care provider contained in this section applies only for the purpose of determining whether an Employer may elect to exclude an Employee from taking leave under the EPSLA and/or the EFMLEA, and does not otherwise apply for purposes of the FMLA or section 5102(a)(2) of the EPSLA.

Work Availability Requirement.  The NY case challenged the requirement that the employee have work to perform before s/he could qualify for paid FFCRA leave.   The Court found that the DOL rule was inconsistent and inadequately explained. The DOL explained that there is no “leave” unless there is work to take “leave” from.  The DOL further explained its position:

an employee is entitled to FFCRA leave only if the qualifying reason is a but-for cause of the employee’s inability to work. 85 FR 19329. In other words, the qualifying reason must be the actual reason the employee is unable to work, as opposed to a situation in which the employee would have been unable to work regardless of whether he or she had a FFCRA qualifying reason. This means an employee cannot take FFCRA paid leave if the employer would not have had work for the employee to perform, even if the qualifying reason did not apply. Id. This work-availability requirement was explicit in the regulatory text as to three of the six qualifying reasons for leave. As explained below, the Department’s intent, despite not explicitly including the work-availability requirement in the regulatory text regarding the other three qualifying reasons, was to apply the requirement to all reasons.

 . . .

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.

Ohio Enacts Limited Immunity for Individuals, Companies, Non-Profits and Government Entities for COVID Liabilities

 

Yesterday, Governor DeWine signed Ohio House Bill 606 which provides limited immunity to individuals, companies, schools, governments and non-profits for spreading the MERS, SARS or COVID virus through September 30, 2021, bars class action lawsuits for these type of cases, and excludes the admission of evidence of government orders, guidelines and recommendations to establish a mandatory standard of care.  The immunity is lost if “it is established that the exposure to, or the transmission or contraction of, any of those viruses or mutations was by reckless conduct or intentional misconduct or willful or wanton misconduct on the part of the person against whom the action is brought.”   One of the key reasons for the statute is to enable entities and people to re-open without fear of being bankrupted based on frequently changing government recommendations if an employee, customer, student or guest catch a virus.    I have included key provisions of the statute below.

Section 1 applies to healthcare entities.  Section 2 applies generally.  Section 3 relates to reasons for the statute, including the changing, contradictory and poorly formed government recommendations, etc.  A specific example is the early government recommendations against the general public wearing masks.

SECTION 1. (A) As used in this section:

(42) "Reckless disregard" means, as it applies to a given health care provider rendering health care services, emergency medical services, first-aid treatment, or other emergency professional care, conduct by which, with heedless indifference to the consequences, the health care provider disregards a substantial and unjustifiable risk that the health care provider's conduct is likely to cause, at the time those services or that treatment or care were rendered, an unreasonable risk of injury, death, or loss to person or property.

(46) "Tort action" means a civil action for damages for injury, death, or loss to person or property and includes claims arising under resident or patient bills of rights and contractual claims arising out of statutory or regulatory requirements applicable to health care providers. "Tort action" includes an action on a medical claim.

(B)(1) Subject to division (C)(3) of this section, a health care provider that provides health care services, emergency medical services, first-aid treatment, or other emergency professional care, including the provision of any medication or other medical equipment or product, as a result of or in response to a disaster or emergency is not subject to professional disciplinary action and is not liable in damages to any person or government agency in a tort action for injury, death, or loss to person or property that allegedly arises from any of the following:

(a) An act or omission of the health care provider in the health care provider's provision, withholding, or withdrawal of those services;

 (b) Any decision related to the provision, withholding, or withdrawal of those services;

 (c) Compliance with an executive order or director's order issued during and in response to the disaster or emergency.

(2) Division (B)(1) of this section does not apply in a tort action if the health care provider's action, omission, decision, or compliance constitutes a reckless disregard for the consequences so as to affect the life or health of the patient or intentional misconduct or willful or wanton misconduct on the part of the person against whom the action is brought.

(3) Division (B)(1) of this section does not apply in a professional disciplinary action if the health care provider's action, omission, decision, or compliance constitutes gross negligence. (4) A health care provider is not subject to professional disciplinary action and is not liable in damages to any person or government agency in a tort action for injury, death, or loss to person or property that allegedly arises because the provider was unable to treat, diagnose, or test the person for any illness, disease, or condition, including the inability to perform any elective procedure, due to an executive or director's order or an order of a board of health of a city or general health district issued in relation to an epidemic or pandemic disease or other public health emergency.

(C)(1) This section does not create a new cause of action or substantive legal right against a health care provider.

(2) This section does not affect any immunities from civil liability or defenses established by another section of the Revised Code or available at common law to which a health care provider maybe entitled in connection with the provision of health care services, emergency medical services, first-aid treatment, or other emergency professional care, including the provision of medication, medical equipment, or other medical product.

(3) This section does not grant an immunity from tort or other civil liability or a professional disciplinary action to a health care provider for actions that are outside the skills, education, and training of the health care provider, unless the health care provider undertakes the action in good faith and in response to a lack of resources caused by a disaster or emergency.

(4) This section does not affect any legal responsibility of a health care provider to comply with any applicable law of this state or rule of an agency of this state.

 (5) Division (B) of this section applies only to the provision, withholding, or withdrawal of health care services, emergency medical services, first-aid treatment, or other emergency professional care, including the provision of any medication or other medical equipment or product, decisions related to such services or care, or compliance with an executive order or director's order by a health care provider as a result of or in response to a disaster or emergency and through the duration of the disaster or emergency.

(D) If the immunity described in division (B) of this section does not apply, no class action shall be brought against any health care provider alleging liability for damages for injury, death, or loss to person or property on a cause of action specified in that division.

(E) This section applies from the date of the Governor's Executive Order 2020-01D, issued on March 9, 2020, declaring a state of emergency due to COVID-19, through September 30, 2021, and supersedes section 2305.2311 of the Revised Code during that period.

SECTION 2. (A) No civil action for damages for injury, death, or loss to person or property shall be brought against any person if the cause of action on which the civil action is based, in whole or in part, is that the injury, death, or loss to person or property is caused by the exposure to, or the transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof, unless it is established that the exposure to, or the transmission or contraction of, any of those viruses or mutations was by reckless conduct or intentional misconduct or willful or wanton misconduct on the part of the person against whom the action is brought.

(B) A government order, recommendation, or guideline shall neither create nor be construed as creating a duty of care upon any person that may be enforced in a cause of action or that may create a new cause of action or substantive legal right against any person with respect to the matters contained in the government order, recommendation, or guideline. A presumption exists that any such government order, recommendation, or guideline is not admissible as evidence that a duty of care, a new cause of action, or a substantive legal right has been established.

(C) If the immunity described in division (A) of this section does not apply, no class action shall be brought against any person alleging liability for damages for injury, death, or loss to person or property on a cause of action specified in that division.

(D) As used in this section:

 (1) "MERS-CoV" means the coronavirus that causes middle east respiratory syndrome.

(2) "Person" has the same meaning as in section 1.59 of the Revised Code and includes a school, a for-profit or nonprofit entity, a governmental entity, a religious entity, or a state institution of higher education.

(3) "Reckless conduct" means conduct by which, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person's conduct is likely to cause an exposure to, or a transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof, or is likely to be of a nature that results in an exposure to, or a transmission or contraction of, any of those viruses or mutations. A person is reckless with respect to circumstances in relation to causing an exposure to, or a transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof, when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.

(4) "SARS-CoV" means the coronavirus that causes severe acute respiratory syndrome.

(5) "SARS-CoV-2" means the novel coronavirus that causes coronavirus disease 2019 (COVID-19).

(6) "State institution of higher education" has the same meaning as in section 3345.011 of the Revised Code.

(E) This section applies from the date of the Governor's Executive Order 2020-01D, issued on March 9, 2020, declaring a state of emergency due to COVID-19, through September 30, 2021.

SECTION 4. This act applies to acts, omissions, conduct, decisions, or compliance from the date of the Governor's Executive Order 2020-01D, issued on March 9, 2020, declaring a state of emergency due to COVID-19 through September 30, 2021.

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.

EEOC Updates COVID FAQ Concerning Privacy and Testing Issues

 

On Tuesday, the EEOC posted new FAQs concerning COVID issues facing employers.  One interesting wrinkle to remember is that an employer may ask if the employee has been exposed to anyone with COVID, but may not ask particularly about family members because of the GINA prohibitions on family medical histories.  Another reminds employers to not confirm the identities of employees who have tested positive, even when alerting that employee’s co-workers that they have been exposed.  These are some of the new FAQs:

A.6.  May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace? (4/23/20; updated 9/8/20 to address stakeholder questions about updates to CDC guidance)

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. The ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard.

Consistent with the ADA standard, employers should ensure that the tests are considered accurate and reliable. For example, employers may review information from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities. Because the CDC and FDA may revise their recommendations based on new information, it may be helpful to check these agency websites for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Note that a positive test result reveals that an individual most likely has a current infection and may be able to transmit the virus to others. A negative test result means that the individual did not have detectable COVID-19 at the time of testing.   

A negative test does not mean the employee will not acquire the virus later. Based on guidance from medical and public health authorities, employers should still require–to the greatest extent possible–that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

A.8.  May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 1)

Yes. Employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and ask if they have been tested for COVID-19. Symptoms associated with COVID-19 include, for example, fever, chills, cough, and shortness of breath. The CDC has identified a current list of symptoms.

An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because, as EEOC has stated, their presence would pose a direct threat to the health or safety of others. However, for those employees who are teleworking and are not physically interacting with coworkers or others (for example, customers), the employer would generally not be permitted to ask these questions.

A.9.  May a manager ask only one employee—as opposed to asking all employees—questions designed to determine if she has COVID-19, or require that this employee alone have her temperature taken or undergo other screening or testing? (9/8/20; adapted from 3/27/20 Webinar Question 3)

If an employer wishes to ask only a particular employee to answer such questions, or to have her temperature taken or undergo other screening or testing, the ADA requires the employer to have a reasonable belief based on objective evidence that this person might have the disease. So, it is important for the employer to consider why it wishes to take these actions regarding this particular employee, such as a display of COVID-19 symptoms. In addition, the ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate.

A.10.  May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 4)

No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease. Moreover, from a public health perspective, only asking an employee about his contact with family members would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19.

A.11.  What may an employer do under the ADA if an employee refuses to permit the employer to take his temperature or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 2)

Under the circumstances existing currently, the ADA allows an employer to bar an employee from physical presence in the workplace if he refuses to have his temperature taken or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19. To gain the cooperation of employees, however, employers may wish to ask the reasons for the employee’s refusal. The employer may be able to provide information or reassurance that they are taking these steps to ensure the safety of everyone in the workplace, and that these steps are consistent with health screening recommendations from CDC. Sometimes, employees are reluctant to provide medical information because they fear an employer may widely spread such personal medical information throughout the workplace. The ADA prohibits such broad disclosures. Alternatively, if an employee requests reasonable accommodation with respect to screening, the usual accommodation process should be followed; this is discussed in Question G.7.

A.12.  During the COVID-19 pandemic, may an employer request information from employees who work on-site, whether regularly or occasionally, who report feeling ill or who call in sick? (9/8/20; adapted from Pandemic Preparedness Question 6)

Due to the COVID-19 pandemic, at this time employers may ask employees who work on-site, whether regularly or occasionally, and report feeling ill or who call in sick, questions about their symptoms as part of workplace screening for COVID-19.

A.13.  May an employer ask an employee why he or she has been absent from work? (9/8/20; adapted from Pandemic Preparedness Question 15)

Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.

A.14.  When an employee returns from travel during a pandemic, must an employer wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled? (9/8/20; adapted from Pandemic Preparedness Question 8)

No. Questions about where a person traveled would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for a certain period of time, an employer may ask whether employees are returning from these locations, even if the travel was personal.

B.5.  Suppose a manager learns that an employee has COVID-19, or has symptoms associated with the disease. The manager knows she must report it but is worried about violating ADA confidentiality. What should she do?  (9/8/20; adapted from 3/27/20 Webinar Question 5)

The ADA requires that an employer keep all medical information about employees confidential, even if that information is not about a disability. Clearly, the information that an employee has symptoms of, or a diagnosis of, COVID-19, is medical information. But the fact that this is medical information does not prevent the manager from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities.

The question is really what information to report: is it the fact that an employee—unnamed—has symptoms of COVID-19 or a diagnosis, or is it the identity of that employee? Who in the organization needs to know the identity of the employee will depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people who get to know the name of the employee.

The ADA does not interfere with a designated representative of the employer interviewing the employee to get a list of people with whom the employee possibly had contact through the workplace, so that the employer can then take action to notify those who may have come into contact with the employee, without revealing the employee’s identity. For example, using a generic descriptor, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information. For small employers, coworkers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity. Also, all employer officials who are designated as needing to know the identity of an employee should be specifically instructed that they must maintain the confidentiality of this information. Employers may want to plan in advance what supervisors and managers should do if this situation arises and determine who will be responsible for receiving information and taking next steps.

B.6.  An employee who must report to the workplace knows that a coworker who reports to the same workplace has symptoms associated with COVID-19. Does ADA confidentiality prevent the first employee from disclosing the coworker's symptoms to a supervisor? (9/8/20; adapted from 3/27/20 Webinar Question 6)

No. ADA confidentiality does not prevent this employee from communicating to his supervisor about a coworker’s symptoms. In other words, it is not an ADA confidentiality violation for this employee to inform his supervisor about a coworker’s symptoms. After learning about this situation, the supervisor should contact appropriate management officials to report this information and discuss next steps.

B.7.  An employer knows that an employee is teleworking because the person has COVID-19 or symptoms associated with the disease, and that he is in self-quarantine. May the employer tell staff that this particular employee is teleworking without saying why? (9/8/20; adapted from 3/27/20 Webinar Question 7)

Yes. If staff need to know how to contact the employee, and that the employee is working even if not present in the workplace, then disclosure that the employee is teleworking without saying why is permissible. Also, if the employee was on leave rather than teleworking because he has COVID-19 or symptoms associated with the disease, or any other medical condition, then an employer cannot disclose the reason for the leave, just the fact that the individual is on leave.

B.8.  Many employees, including managers and supervisors, are now teleworking as a result of COVID-19. How are they supposed to keep medical information of employees confidential while working remotely? (9/8/20; adapted from 3/27/20 Webinar Question 9)

The ADA requirement that medical information be kept confidential includes a requirement that it be stored separately from regular personnel files. If a manager or supervisor receives medical information involving COVID-19, or any other medical information, while teleworking, and is able to follow an employer’s existing confidentiality protocols while working remotely, the supervisor has to do so. But to the extent that is not feasible, the supervisor still must safeguard this information to the greatest extent possible until the supervisor can properly store it. This means that paper notepads, laptops, or other devices should not be left where others can access the protected information.

Similarly, documentation must not be stored electronically where others would have access. A manager may even wish to use initials or another code to further ensure confidentiality of the name of an employee.

D.8.  May an employer invite employees now to ask for reasonable accommodations they may need in the future when they are permitted to return to the workplace? (4/17/20; updated 9/8/20 to address stakeholder questions)

Yes. Employers may inform the workforce that employees with disabilities may request accommodations in advance that they believe they may need when the workplace re-opens. This is discussed in greater detail in Question G.6. If advance requests are received, employers may begin the "interactive process" – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. If an employee chooses not to request accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time.

D.14.  When an employer requires some or all of its employees to telework because of COVID-19 or government officials require employers to shut down their facilities and have workers telework, is the employer required to provide a teleworking employee with the same reasonable accommodations for disability under the ADA or the Rehabilitation Act that it provides to this individual in the workplace?  (9/8/20; adapted from 3/27/20 Webinar Question 20)

If such a request is made, the employer and employee should discuss what the employee needs and why, and whether the same or a different accommodation could suffice in the home setting. For example, an employee may already have certain things in their home to enable them to do their job so that they do not need to have all of the accommodations that are provided in the workplace.

Also, the undue hardship considerations might be different when evaluating a request for accommodation when teleworking rather than working in the workplace. A reasonable accommodation that is feasible and does not pose an undue hardship in the workplace might pose one when considering circumstances, such as the place where it is needed and the reason for telework. For example, the fact that the period of telework may be of a temporary or unknown duration may render certain accommodations either not feasible or an undue hardship. There may also be constraints on the normal availability of items or on the ability of an employer to conduct a necessary assessment.

As a practical matter, and in light of the circumstances that led to the need for telework, employers and employees should both be creative and flexible about what can be done when an employee needs a reasonable accommodation for telework at home. If possible, providing interim accommodations might be appropriate while an employer discusses a request with the employee or is waiting for additional information.

D.15.  Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation?  (9/8/20; adapted from 3/27/20 Webinar Question 21)

No. Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.

To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability. 

The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.

D.16.  Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request? (9/8/20; adapted from 3/27/20 Webinar Question 22)

Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.

D.17.  Might the pandemic result in excusable delays during the interactive process? (9/8/20; adapted from 3/27/20 Webinar Question 19)

Yes. The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation. Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.

 

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.