EEOC Proposes New Workplace Anti-Harassment Guidance

December 26, 2023

The Equal Employment Opportunity Commission has issued proposed language to update its guidance on harassment in the workplace.

The proposed guidance “reflects notable changes in law, including the Supreme Court’s 2020 decision in Bostock vs. Clayton County (which held that LGBTQ individuals are protected from workplace discrimination under Title VII), the #MeToo movement and emerging issues, such as virtual or online harassment,” the EEOC wrote in its introduction to the proposed guidance.

The agency polices discrimination in American workplaces, and harassment falls under that banner. Between 2018 and 2022, 35% of the charges of employment discrimination filed included an allegation of harassment based on race, color, national origin, religion, sex (including pregnancy, sexual orientation and transgender status), age, disability or genetic information.

Employers should read the guidance to understand the many forms of harassment — and in particular harassment against any LGBTQ workers, since they are the most recent group to receive protected status.

LGBTQ harassment

The Bostock ruling found that harassment based on sexual orientation and gender identity, including how identity is expressed, constitutes sex-based discrimination. According to the EEOC, guidance this type of harassment can manifest in the workplace via:

Physical assault;
Epithets regarding sexual orientation or gender identity;
The denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity;
Intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (which is known as “misgendering”); or
Harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender.

The guidance provides examples that illustrate the many nuances of harassment.

In its guidance, the EEOC cites the following example of indirect LGBTQ harassment:

“Keith and his colleagues work in an open-cubicle style office environment, and they frequently make derogatory comments about gay men and lesbians.

“Horatio, who is gay, overhears the comments on a regular basis and is offended by them, even though they are not directed at him.

“Based on these facts, the conduct is facially discriminatory and subjects Horatio to harassment based on sexual orientation (which is a form of sex-based harassment), even though he was not specifically targeted by the comments.”

It also offered this example of harassment based on gender identity from a case in Philadelphia:

“Jennifer, a cashier at a fast food restaurant who identifies as female, alleges that supervisors, coworkers, and customers regularly and intentionally misgender her.

“One of her supervisors, Allison, frequently uses Jennifer’s prior male name, male pronouns, and “dude” when referring to Jennifer, despite Jennifer’s request for Allison to use her correct name and pronouns; other managers also intentionally refer to Jennifer as “he.”

“Coworkers have asked Jennifer questions about her sexual orientation … and asserted that she was not female. Customers also have intentionally misgendered Jennifer and made threatening statements to her, but her supervisors did not address the harassment and instead reassigned her to duties outside of the view of customers.

“Based on these facts, Jennifer has alleged harassment based on her gender identity.“

What you can do

The EEOC recommends that employers create an effective anti-harassment policy, which is widely disseminated, and that:

Defines what conduct is prohibited.
Requires that supervisors report harassment when they become aware of it.
Offers multiple reporting avenues for an employee, during both work hours and other times (weekends or evenings).
Identifies accessible points of contact to report harassment (complete with contact information).
Explains the employer’s complaint process, including the ability to bypass a supervisor, along with anti-retaliation and confidentiality protections.

For an employer’s complaint process to be effective, at a minimum, it should provide:

For prompt and effective investigations and corrective action;
Adequate confidentiality protections; and
Adequate anti-retaliation protections.

The final step in it all is training your employees and supervisors on your anti-discrimination and harassment policy. You can use the EEOC guidance to provide examples of harassment and provide information about your employees’ rights if they experience workplace harassment.

Supervisors and managers should receive additional training, including the importance of taking complaints seriously and not retaliating against anyone who makes a complaint.

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Dealing with COVID Vaccination Status Friction Points with Employees

by Inoventive Solutions

November 23, 2021

The controversy over COVID-19 vaccine mandates in the workplace continues growing and human resources are sounding the alarm on how employers should approach the matter.

While the Equal Employment Opportunity Commission and impending OSHA regulations will provide some cover to employers who want their employees to get vaccinated, they need to make sure that they follow certain steps in dealing with those who refuse to have a jab, won’t say if they are vaccinated or are claiming a religious or medical exemption from getting inoculated.

The California employment law firm of Shaw Law Group LLC. recently held a webinar on a number of friction points that could get employers in hot water. Here are some tips to avoid getting sued:

If you require your staff to disclose their vaccination status, treat those who refuse to divulge their status as unvaccinated. There is no point in continuing to hound someone about giving the information if they don’t want to. Just assume they are unvaccinated for the purposes of your office rules.
If you have set rules requiring your workers to be vaccinated, do not automatically put someone who won’t get vaccinated on a leave of absence if that is your policy. Instead, treat it like an Americans with Disabilities Act request and enter into a meaningful discussion if they request accommodation.
During this time, you have to consider alternative accommodations, such as requiring them to always wear a mask at work and submit to weekly testing.
If you are going to accommodate workers who don’t get vaccinated, you as the employer are obligated to cover the costs of such accommodations (like those in the above bullet point). That also applies to employees who refused to get vaccinated on religious or medical grounds.
Have a process in place for handling requests for accommodations. A request for religious accommodation can put the employer in a quandary since they don’t want to require proof of what part of the person’s religion requires them not to get vaccinated. Shaw Law Group warns: “And, do not question the sincerity of an employee’s stated religious belief, unless you have an ‘objective’ reason to do so.”
There are no laws or regulations requiring employers to provide a “reasonable accommodation” for political, social or secular personal beliefs that may affect why an employee refuses to get vaccinated.
If you have an employee who refuses to participate in the accommodation process and provide documentation backing up their religious or medical exemption request, deny the request.

HIPAA Privacy Rule considerations

Meanwhile, the Department of Health and Human Services’ Office for Civil Rights has issued guidance regarding how the HIPAA Privacy Rule affects employees’ disclosures of their COVID-19 vaccination status.

Employers can require employees to disclose whether they have received the COVID-19 vaccine, according to the guidance. That includes requiring them to disclose their status to a client or another third party like a vendor.

Why is this? HIPAA’s Privacy Rule does not regulate the health information an employer can request from its employees as part of the terms and conditions of employment.

Employers who require staff to provide proof of vaccination status are required to keep all documentation or confirmation of vaccination status confidential, under this rule. Any such documentation must not be stored in the employees’ personnel files and must be kept separately.

Finally, your employees are free to disclose their vaccination status to other employees, customers, vendors or trade partners, as the Privacy Rule does not apply to such circumstances.

The takeaway

As more Americans get vaccinated, there is also a significant portion of them that will continue refusing to get inoculated for a number of reasons.

To avoid being sued for overstepping your authority as an employer, if you are requiring vaccinations, make sure you put in place procedures for handling requests for religious or medical accommodation.

You’ll also need to decide how to handle employees who won’t divulge their vaccination status or are refusing vaccination on grounds other than religious or medical reasons.

Finally, if you decide not to require staff to get vaccinated, decide how you will accommodate unvaccinated workers in the workplace, such as requiring full-time masking and weekly COVID-19 testing.

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EEOC Issues New COVID-19 Vaccination Guidelines for Employers

by Inoventive Solutions

February 16, 2021

The Equal Employment Opportunity Commission has affirmed that employers can mandate COVID-19 vaccines for employees, subject to some limitations.

The EEOC’s updated guidance offers direction regarding employer-mandated vaccinations, accommodations for employees who cannot be vaccinated due to a disability or sincerely held religious belief, and certain implications of pre-vaccination medical screening questions under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act.

Asking a patient pre-screening questions is a routine part of a vaccination. These questions may constitute a “medical examination” as defined by the ADA. An employer must be able to show that the inquiries are “job-related and consistent with business necessity” and that an unvaccinated employee could pose a direct threat to the health of others in the workplace.

The guidance does make clear that administration of a COVID-19 vaccination to an employee itself does not constitute a medical examination for the purposes of the ADA.

Urging employees to get the vaccine voluntarily or requiring them to submit proof that a non-contracted third party (physician, pharmacist or public health center) administered it may be a better alternative with fewer legal complications.

Reasonable accommodations

Some employees may be unable to get the vaccine for health or disability reasons. Other employees may have sincere religious objections to getting inoculated. In both cases, employers must make reasonable accommodations for the employees. The law permits them to exclude these employees from the workplace only if no reasonable accommodation is possible.

Employers and employees might not agree on what “reasonable accommodation” means. For this reason, employers should consult with human resources experts and carry employment practices liability insurance. Expert advice will help avoid these kinds of conflicts, and the insurance will pay for legal defense and settlement of resulting employee lawsuits.

Requiring employees to get vaccinated will also have implications for the employer’s obligations under state workers’ compensation laws. On the positive side, a vaccinated workforce should reduce the employer’s exposure to claims that an employee got the virus on the job.

On the negative side, some employees may experience adverse side effects. Since the vaccine would be a job requirement, the employee could make a claim for workers’ comp benefits due to the adverse reaction. In addition, the employer may have to pay the worker for the time spent getting vaccinated and for the cost of the injection.

What you can do

Employers can protect themselves by following these guidelines:

Follow federal and local health guidelines for the vaccine.
Vary the requirements depending on work conditions and locations, such as requiring vaccines for those who regularly interact with the public but making them optional for remote workers.
Accommodate employees unable to get the vaccine or resistant to it, to the extent you reasonably can without endangering other employees or the public.
Apply the requirements consistently to all employees.

No one wants to catch or spread this virus. Employers can help halt the spread by thoughtfully addressing the issue of vaccinating employees.

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The Big Question: Can Employers Require Workers to Vaccinate?

by Inoventive Solutions

November 24, 2020

As the COVID-19 pandemic rages on and more employers bring staff back to the workplace, many businesses are considering implementing mandatory vaccination policies for seasonal flus as well as the coronavirus.

A safe and widely accessible vaccine would allow businesses to open their workplaces again and start returning to a semblance of normalcy. But employers are caught in the difficult position of having to protect their workers and customers from infection in their facilities as well as respecting the wishes of individual employees who may object to being required to be vaccinated.

The issue spans Equal Opportunity Employment Commission regulations and guidance, as well as OSHA workplace safety rules and guidance. With that in mind, employers mulling mandatory vaccination policies need to consider:

How to decide if such a policy right for the company,
How they will enforce the policy,
The legal risks of enforcing the policy, and
Employer responsibilities in administering the policy.

Proceed with caution

A number of law firms have written blogs and alerts on the subject of mandatory vaccinations, and the overriding consensus recommendation is to proceed with caution.

In 2009 pandemic guidance issued during the H1N1 influenza outbreak, the EEOC stated that both the Americans with Disabilities Act and Title VII bar an employer from compelling its workers to be vaccinated for influenza regardless of their medical condition or religious beliefs – even during a pandemic.

The guidance stated that under the ADA, an employee with underlying medical conditions should be entitled to an exemption from mandatory vaccination (if one was requested) for medical reasons. And Title VII would protect an employee who objects due to religious beliefs against undergoing vaccination.

In these cases, the employer could be required to provide accommodation for these individuals (such as working from home).

Additionally, the employer would have to enter into an interactive process with the worker to determine whether a reasonable accommodation would enable them to perform essential job functions without compromising workplace safety. This could include:

The use of personal protective equipment,
Moving their workstation to a more secluded area,
Temporary reassignment,
Working from home, or
Taking a leave of absence.

One issue that employment law attorneys say may not have any legal standing is if an employee objects to inoculation based on being an “anti-vaxxer,” or someone who objects to vaccines believing that they are dangerous. In this case, depending on which state your business is located, you may or may not be able to compel an anti-vaxxer to get a vaccine shot.

Protecting your firm

To mount a successful defense of a vaccination policy if sued, you would need to be able to show that the policy is job-related and consistent with business necessity. And that the rationale is based on facts, tied to each employee’s job description and that you enforce the policy consistently without prejudice or favoritism.

Also, you must ensure that any employee who requests accommodation due to their health status or religious beliefs does not suffer any adverse consequences. In other words, you cannot punish someone that is covered by the ADA or Title VII for refusing a vaccine.

Also, you will need to project and safeguard your employees’ medical information, under the law.

The takeaway

A number of employment law experts say that once a vaccine is widely available, most employers will likely have the right to require that workers get it, as long as they heed the advice above about the ADA and Title VII. Until then, you may want to consider following the 2009 guidance.

If you do implement a policy requiring vaccination, consider:

Fully covering vaccine costs if they are not fully covered by your employees’ health insurance.
Allowing employees to opt out entirely if they have medical or religious objections.
In the event of a medical or religious objection, you must engage in an interactive process to determine whether the individual’s objections can be accommodated.
Including safeguards for keeping your employees’ medical information confidential.
Not abandoning your other efforts to keep your workplace safe, such as the use of social distancing, regular cleaning and disinfecting, and the use of personal protective equipment.

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How to Open Shop and Bring Staff Back to Work

by Inoventive Solutions

June 11, 2020

If your business is preparing to open due to a relaxation of shelter-at-home orders, you should proceed with caution and make sure you have safeguards in place to protect your workers, as well as customers if they are entering your premises.

How can you take that first step back to a semblance of normalcy?

Here are some recommendations from the Los Angeles Department of Public Health and other sources that can apply to any municipality anywhere in the country. The advice mainly applies to establishments that will have customers, but most of the recommendations are relevant across a wide swath of sectors.

Measures to protect employees

If someone can continue working from home, let them do so.
Tell employees not to come to work if sick.
If any employee tests positive for, or has symptoms consistent with COVID-19, you should:

– Ask that they isolate themselves at home, and

– Ask all employees who have come in contact with that colleague to immediately self-quarantine at home.

Check employees for symptoms or a fever before they enter the workspace. This must include a check-in concerning cough, shortness of breath or fever and any other symptoms the employee may be experiencing.
These checks can be done remotely or in person upon the employee’s arrival. A temperature check should be done at the worksite, if feasible.
Offer at no cost to your employees cloth face coverings if they are going to have contact with the public during their shift. If they are disposable, masks should be thrown away at the end of every shift. If they are reusable, they should be washed after every shift in hot water.
Instruct employees not to touch the exterior of their mask when removing and handling it.
Disinfect break rooms, restrooms and other common areas frequently.
Place hand sanitizer in strategic locations.
Allow employees to take frequent breaks to wash their hands.

Signage

Place signs at each public entrance of your facility to inform all employees and customers that they should:

Avoid entering the facility if they have a cough or fever.
Maintain a minimum 6-foot distance from one another.
Wear a mask for their own protection, as well as for the safety of others.

Controlling crowds, lines

Limit the number of customers in the store at any one time, to allow customers and employees to easily maintain at least 6-foot distance from one another at all practicable times.

Post an employee at the door to ensure the maximum number of customers in the facility is not exceeded. If people are queueing up, mark the ground outside the store to ensure proper social distancing.

If you have a restaurant, encourage people not to crowd and wait outside. Set up a system to alert people by cellphone when they are next.

Spacing between employees

Require employees to work at least 6 feet apart. You may need to reorganize your office or workstations to ensure proper spacing.
In jobs where workers are on their feet, you can mark spots on the floor where they should stand to ensure social distancing between your staff.
Social distancing in break rooms and supply areas (such as device charging stations and packaging supplies) may be addressed temporarily by spacing out tables, chairs and microwaves.
Another option is to use partitions made of plexiglass so workers can communicate and make eye contact.
In addition, you may want to abandon the popular open workspace concept and revert to using cubicles, which gained popularity in the 1980s and 1990s as a way to increase productivity by putting barriers between office workers. Having that divider will make your staff feel safer and can offer some protection.
Reconfigure furniture placement in offices, public seating areas and other non-warehouse or production areas to support physical distancing.

Cleaning and circulation

A recent research study that analyzed superspreading events showed that closed environments with minimal ventilation strongly contributed to a characteristically high number of secondary infections.

If you have fans or air conditioning units blowing, take steps to minimize air from fans blowing from one worker directly at another. Also consider opening windows to improve circulation.

Also important are:

Disinfecting frequently touched surfaces in workspaces, as well as doorknobs, buttons and controls. More frequent cleaning and disinfection may be required based on level of use.
Providing workers and customers with tissues and trash receptacles.
Employees who are cleaning and disinfecting should wear disposable gloves.
Cleaning surfaces using soap and water, then using disinfectant.
Sanitizing any other personal protective equipment such as hardhats after every shift.

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10 Potential Causes of Employee COVID-19 Lawsuits

by Inoventive Solutions

May 12, 2020

The novel coronavirus that broke out in the winter has caused immeasurable suffering, both physical and economic.

For employers struggling to stay in business, this is a fraught time where mistakes in managing their workforces could lead to employee lawsuits. Here are 10 potential trouble spots to watch for.

Workplace safety – Businesses that still have employees working on-site run the risk that a single infected worker may send the virus ripping through the entire workforce.

While workers’ compensation laws may prevent employees from suing, their family members who become ill or suffer through a worker’s illness face no such constraints.

Sick time and paid leave – Congress enacted the Families First Coronavirus Response Act in March, guaranteeing full-time employees of small businesses 80 hours of sick leave (part-timers get a prorated amount.)

State and local laws may entitle workers to additional leave. Mistakes in administering these benefits could prompt lawsuits.

Workplace discrimination – Because the coronavirus originated in China, there have been reports of Asian-Americans being targets of racist actions. Employers must take care to avoid the appearance of making workplace decisions based even partly on employees’ race.

Americans with Disabilities Act – The ADA prohibits discrimination against disabled individuals and requires employers to make reasonable accommodations for these workers.

Employees who become ill from COVID-19 (the illness caused by the virus) may suffer after-effects that include trouble breathing, speaking and working at their former pace. Employers must accommodate these workers to the extent that is practical.

Wage and hour violations – Non-exempt employees working remotely may be working more than their regular hours, missing rest and meal breaks, and using their own equipment.

Employers must keep careful records, reimburse employees for their use of personal equipment where warranted, and remind employees to take mandatory breaks.

Battered retirement plans – Stock markets have cratered since the beginning of the year, taking retirement account balances down with them.

Questions may be asked about whether fund managers did enough to limit the damage. Employees who are not satisfied with the answers may go to court.

Health information privacy – Employee health information privacy is protected by law. Employers must secure the records of infected employees from unauthorized access by individuals within and outside the company.

Union contracts – Collective bargaining agreements may contain provisions that go beyond federal requirements for breaks, paid leave, layoff notices, and workplace safety.

Employers must keep their CBAs in mind and work with their unions to avoid contract violations.

Disparate impact from layoffs – If layoffs are necessary, employers must take a thoughtful approach when deciding which employees to part company with.

An appearance of singling out older workers or other protected classes under discrimination laws could invite lawsuits.

WARN Act – The Workers Adjustment and Retraining Notification Act requires some employers to provide at least 60 days’ notice before layoffs. Many businesses’ revenues fell off the cliff so quickly that they were unable to provide that much notice.

A final thought

The pandemic is a crisis that few businesses foresaw. The effects, including the litigation, may haunt them for a long time to come.

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Employer Guide for Dealing with the Coronavirus

by Inoventive Solutions

March 4, 2020

As the outbreak of the 2019 novel coronavirus gains momentum and potentially begins to spread in North America, employers will have to start considering what steps they can take to protect their workers while fulfilling their legal obligations.

Employers are in a difficult position because it is likely that the workplace would be a significant source of transmission among people. And if you have employees in occupations that may be of higher risk of contracting the virus, you could be required to take certain measures to comply with OSHA’s General Duty Clause.

On top of that, if you have workers who come down with the virus, you will need to consider how you’re going to deal with sick leave issues. Additionally, workers who are sick or have a family member who is stricken may ask to take time off under the Family Medical Leave Act.

Coronavirus explained

According to the Centers for Disease Control, the virus is transmitted between humans from coughing, sneezing and touching, and it enters through the eyes, nose and mouth.

Symptoms include a runny nose, a cough, a sore throat, and high temperature. After two to 14 days, patients will develop a dry cough and mild breathing difficulty. Victims also can experience body aching, gastrointestinal distress and diarrhea.

Severe symptoms include a temperature of at least 100.4ºF, pneumonia, and kidney failure.

Employer concerns

OSHA — OSHA’s General Duty Clause requires an employer to protect its employees against “recognized hazards” to safety or health which may cause serious injury or death.

According to an analysis by the law firm Seyfarth Shaw: If OSHA can establish that employees at a worksite are reasonably likely to be “exposed” to the virus (likely workers such as health care providers, emergency responders, transportation workers), OSHA could require the employer to develop a plan with procedures to protects its employees.

Protected activity — If you have an employee who refuses to work if they believe they are at risk of contracting the coronavirus in the workplace due to the actual presence or probability that it is present there, what do you do?

Under OSHA’s whistleblower statutes, the employee’s refusal to work could be construed as “protected activity,” which prohibits employers from taking adverse action against them for their refusal to work.

Family and Medical Leave Act — Under the FMLA, an employee working for an employer with 50 or more workers is eligible for up to 12 weeks of unpaid leave if they have a serious health condition. The same applies if an employee has a family member who has been stricken by coronavirus and they need to care for them.

The virus would likely qualify as a serious health condition under the FMLA, which would warrant unpaid leave.

What to do

Here’s what health and safety experts are recommending you do now:

Consider restricting foreign business trips to affected areas for your employees.
Perform medical inquiries to the extent legally permitted.
Impose potential quarantines for employees who have traveled to affected areas. Ask them to get a fitness-for-duty note from their doctor before returning to work.
Educate your staff about how to reduce the chances of them contracting the virus, as well as what to do if they suspect they have caught it.

If you have an employee you suspect has caught the virus, experts recommend that you:

Advise them to stay home until symptoms have run their course.
Advise them to seek out medical care.
Make sure they avoid contact with others.
Contact the CDC and local health department immediately.
Contact a hazmat company to clean and disinfect the workplace.
Grant leaves of absence and work from home options for anyone who has come down with the coronavirus.

If there is a massive outbreak in society, consider whether or not to continue operating. If you plan to continue, put a plan in place. You may want to:

Set a plan ahead of time for how to continue operations.
Assess your staffing needs in case of a pandemic.
Consider alternative work sites or allowing staff to work from home.
Stay in touch with vendors and suppliers to see how they are coping.
Consider seeking out alternative vendors should yours suddenly be unable to work.

EEOC Proposes New Workplace Anti-Harassment Guidance

Dealing with COVID Vaccination Status Friction Points with Employees

HIPAA Privacy Rule considerations

The takeaway