In a decision of interest to New York State employers subject to federal safety regulations, the Second Circuit Court of Appeals recently answered that question in the negative. In Bey v. City of New York1, the Court concluded that where a federal safety regulation expressly prohibits a requested medical accommodation, that regulation trumps the requirements imposed by the Americans with Disabilities Act (the ADA) and Title VII and shields the employer from liability under those statutes.
Our previous information memo discussed several issues that employers should be aware of when considering whether to provide an incentive to employees to encourage them to receive the COVID-19 vaccine. On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued updated guidance to employers on workplace COVID-19 vaccination policies, including guidance on employer-offered COVID-19 vaccine incentives.
Many employers are grappling with the decision of whether to provide an incentive (e.g., a cash payment, other form of financial incentive or increased time off) to employees to encourage them to receive the COVID-19 vaccine. Employers wishing to implement a COVID-19 vaccine incentive program should be aware that such a program will likely be considered a “wellness program” which implicates a myriad of legal issues, including issues under the Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act (GINA), and Health Insurance Portability and Accountability Act (HIPAA).
On Wednesday, December 16, the Equal Employment Opportunity Commission (EEOC) released new guidance (the Guidance) for employers regarding COVID-19 vaccinations. While the Guidance offers some insight for employers who are considering offering vaccinations to employees or requiring that employees get the COVID-19 vaccination, a number of questions still remain unanswered. The following are some key takeaways from the Guidance.
The COVID-19 pandemic has placed employers in a difficult position when it comes to complying with the Americans with Disabilities Act (ADA) and the Rehabilitation Act. New protocols for maintaining workplace safety necessitate inquiries about employees’ health that present privacy pitfalls. Moreover, widespread teleworking early in the pandemic has created new questions about reasonable accommodations as workplaces have reopened. On September 8, 2020, the Equal Employment Opportunity Commission (EEOC) supplemented its existing FAQs to provide additional guidance on some of these issues. The full guidance, including the recent additions, is available here. The most notable points from the September 8 additional guidance are summarized below.
On July 8, 2020, the Supreme Court analyzed the ministerial exception for employees who allege employment discrimination claims for the first time in nearly a decade when it issued its decision in Our Lady of Guadalupe School v. Morrissey-Berru. The decision, which was issued in two combined cases on appeal before the Court, confirms the general principle under the First Amendment to the U.S. Constitution that religious institutions must retain the right to select, supervise, and, if necessary, remove an employee who qualifies as a "minister" without interference by secular authorities. The Court construed the definition of “minister” broadly in holding that the ministerial exception applied to two teachers at religious schools who had filed employment discrimination claims pursuant to the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA) respectively.
On April 17, 2020, the Equal Employment Opportunity Commission (EEOC) issued updated guidance on COVID-19 in the workplace. The EEOC has been releasing information on the pandemic for employers since mid-March, and the most recent updates to the guidance primarily focus on how employers should accommodate employees during the pandemic as well as how to return individuals to work once the pandemic subsides.
There is a lot of information available on the internet regarding an employer’s obligations in preparing for and dealing with the COVID-19 pandemic. As a responsible employer, your organization has likely taken many steps to prepare for some of the work-related fall-out from this pandemic.
Still, if and when the first confirmed case of a COVID-19 infection in one of your employees occurs, it is normal to experience a momentary “panic freeze” about what to do. This blog post lays out the basic rules to follow and resources to check.
There has been a very recent wave of class action lawsuits against restaurants, retail merchants, and other businesses claiming discrimination against the visually impaired and blind for failure to print braille information upon gift cards. We provide a quick update below.
If you’ve had occasion to converse with a management-side employment lawyer (and somehow survived it), it seems the edict of documenting performance issues is tattooed on his/her forehead. I must confess in my own supervisor training I have warned that, in essence, “if it’s not in writing, it did not happen” (at least for purposes of trying to get a case dismissed on a motion for summary judgment). I still believe that documentation is always the safest course, but can an employer still fire an employee for a series of undocumented incidents and avoid having to go to trial when the employee disputes them? The Seventh Circuit has answered this question in the affirmative.
It just became a bit more difficult for plaintiffs within the jurisdiction of the Second Circuit Court of Appeals (which includes New York) to succeed on disability discrimination claims brought against their employers under the Americans with Disabilities Act (“ADA”).
The ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees.” An employer also may face liability if it refuses to provide a reasonable accommodation to an employee with a disability and that employee can demonstrate that he or she can perform the essential functions of his or her job if provided with such an accommodation. A plaintiff advancing either type of claim is required to demonstrate a causal connection between his or her disability and the adverse employment action. Until now, the employee litigating his or her claim within the Second Circuit had that causal connection examined under a “mixed motive” analysis.
However, that recently changed in Natofsky v. City of New York, decided on April 18, 2019. In that case, the Second Circuit Court of Appeals held that the same standard should be used to analyze disability discrimination claims brought under the Rehabilitation Act of 1973 (which applies to federal employers and employers operating programs or activities that receive federal financial assistance) and disability discrimination claims brought under the ADA. The Court determined that, under both statutes, a plaintiff must prove “that discrimination was the but-for cause of any adverse employment action."
The Court’s adoption of the “but-for” standard means that ADA plaintiffs now face the same hurdle that employees advancing ADEA claims and Title VII retaliation claims face.
Employers must remember that an employee’s exhaustion of his or her Family and Medical Leave Act (“FMLA”) entitlement is not necessarily the “end of the road” for that worker.
