A jury in Kentucky recently awarded $450,000 to a worker who was fired when he experienced a panic attack after his employer threw him a workplace birthday party against his wishes. The jury rejected the employer’s assertion that the man did not alert the employer to his anxiety disorder and that his firing was based on intimidation of co-workers, not his disability.

Kevin Berling told his manager at Gravity Diagnostics that he did not want his birthday celebrated at work because it would cause him significant stress.  His manager did not relay the information to the on-site Human Resources department, which kept a list of employees’ birthdays and was responsible for planning the parties.

When the company threw Berling a surprise party a few days later, he suffered a prolonged panic attack.  The next day, he met with his managers to discuss the situation and had another panic attack.  Shortly thereafter, Gravity Diagnostics fired him over concerns that he posed a threat to his co-workers’ safety, even though at no time during either panic attack did he exhibit hostility toward his colleagues.  Berling never received a negative performance review nor had he been disciplined by the company prior to his termination.

Berling sued Gravity for disability discrimination and retaliation under the Kentucky Civil Rights Act, which mirrors the language of the federal law.  A jury concluded that Gravity failed to grant Berling a reasonable accommodation for his disability and took adverse employment action against him because of his anxiety disorder.  It awarded him $150,000 in lost wages and benefits plus $300,000 for suffering and embarrassment.

While employers often think about discrimination in terms of negative acts, it is important to realize that even benign acts can violate state and federal anti-discrimination laws.  In addition to claims for disability discrimination, birthday celebrations may give rise to claims for age discrimination or religious discrimination by workers whose religious faiths ban secular celebrations.

Best practice is to check with an employee before organizing any sort of celebration where the employee will be the focal point.  It is also crucial that supervisors are trained to communicate an employee’s request for accommodations to include exclusion from workplace events with management or human resources, if applicable.  Employees should make their concerns regarding such workplace events clear to management and should state clearly that they live with a recognized disability or believe it violates their religious beliefs.  Please reach out to us if you need guidance on this or other employment issues.

 

 

On March 3, 2022 the President signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.  This new law – which went into effect upon signing – permits an employee to forgo arbitration for claims of sexual harassment or assault, even if the employee agreed to binding arbitration of those claims in his or her employment contract.  Employees are still free to choose to arbitrate sexual harassment or assault claims after a dispute arises, but they are no longer bound by pre-dispute arbitration clauses.

The law applies only to claims that arose on or after March 3, 2022.  The law also voids any clause requiring mandatory arbitration of sexual harassment or assault claims in contracts executed on or after March 3rd.  Keep in mind that this applies only to claims of sexual harassment and assault; assuming the rest of the arbitration clause is valid, any other claims must be resolved through arbitration.  The law further applies to consumer contracts, giving those harassed or assaulted on cruise ships, in hotels, or during a trip booked through a ridesharing company an alternative path of recourse.

Employers can no longer rely on an arbitration clause to shield them from jury verdicts for workplace sexual harassment and assault.  Employees should review their contracts and handbooks to ascertain whether mandatory arbitration is part of their employment.  Whether you are an employer seeking to revise your standard contracts or policies or an employee who has experienced sexual harassment or assault in the workplace or as a passenger or guest, we can help.  Feel free to reach out to us for a consultation or call our office at (757) 995-5606.

 

 

In a recent case, an Illinois federal jury sided with the employer in a retrial over a U.S. Army reservist/employee’s claim that the employer, Volvo Group North America LLC, had wrongfully fired her because of her military service in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA).

The employee had taken 900 days of military leave in connection with multiple deployments to the Middle East over six years.  After returning to work, she ultimately was fired due to what Volvo claimed was her repeated violation of its attendance policy with excessive tardiness.  The employee claimed that Volvo subjected her to heightened scrutiny at work because it was looking for reasons to terminate her due to her service.  The employee presented evidence of supervisors complaining of her service and a lack of updates from the employee when she was deployed, despite  there being  no such obligation under USERRA.   A jury was persuaded of the violation and responded with a substantial verdict of $2.6 million in compensatory damages and $5.2 million in punitive damages.  Volvo appealed the verdict.  The Court of Appeals ordered a new trial on the ground that the verdict was “grossly excessive.”  On retrial, a jury sided with Volvo after it introduced evidence that it had enforced its attendance policy, however strict, the same way against all employees and had not singled the servicemember out.

It is clear that under USERRA, employees are protected from discipline or termination because of their protected service.  However, upon returning to work, employees must comply with all workplace policies, and may be terminated for violating them.  Employers must ensure that all company policies are enforced neutrally and that all employees are treated the same.

Due to the large population of servicemembers in the Tidewater area, it is not uncommon for employers and employees to face issues related to USERRA If you are an employer looking for advice on complying with USERRA or similar laws, or if you are a servicemember who has been subjected to an adverse employment action,  WE CAN HELP.  Please reach out to us for a consultation.

 

The Bipartisan Infrastructure Law, signed by the President on November 15, 2021, creates a historic investment in our nation’s aging infrastructure. The Bipartisan Infrastructure Law will create an estimated 800,000 good-paying jobs that will expand the middle class, revitalize our nation’s transportation, communications and utilities systems and build a more resilient, reliable, and environmentally sound future.

To read more visit: Protections for Workers in Construction under the Bipartisan Infrastructure Law | U.S. Department of Labor (dol.gov)

Recent changes in Virginia marijuana laws impact job applicants, employees, and employers.  Virginia has decriminalized simple marijuana possession and is seeking to ensure workers are not harmed by past convictions.  To that end and under new laws, employers are forbidden from asking applicants or employees about arrests, charges, or convictions for simple possession of marijuana and cannot take any adverse employment action based on such information. Employers who willfully violate the prohibition can be found guilty of a Class I misdemeanor. Third-party background check services are also forbidden from disclosing these criminal records. Applicants and employees have the right to exclude arrests, criminal charges, and convictions for simple possession when an employer asks about their criminal history. Note that the law does not apply to convictions for distribution of or intent to distribute marijuana.

In a further effort to protect job seekers, the Commonwealth sealed all records related to simple possession in 2020 and began the process of sealing all records related to misdemeanor possession with intent to distribute marijuana in July of 2021. All records of Virginia arrests, charges, and convictions for simple possession and misdemeanor possession with intent will be sealed across all state and private databases by a statutory deadline of July 1, 2025. In addition, the Commonwealth has adopted a process for the automatic expungement of past criminal records for certain marijuana offenses. Meanwhile, people with criminal records involving all other marijuana-related misdemeanors and most marijuana-related felonies may petition a court to seal those records.

In light of these changes, it is important for employers to review their hiring policies to ensure they are in line with the law.  Avoid asking applicants about simple possession offenses in interviews and on applications and adjust more general application and interview questions about criminal convictions to explicitly allow the exclusion of such information. Persons with Virginia marijuana convictions should be aware of their rights, including the right to petition a court to seal records of certain marijuana offenses.  If you are an employer looking to refine your workplace policies, or if you or a family member have been denied employment or educational opportunities because of a marijuana charge, we can help.

Recent developments at the federal level impact how employers and businesses deal with the ongoing pandemic.  Last week, the Supreme Court blocked the federal mandate requiring workers employed by private businesses with 100 or more employees to receive the COVID-19 vaccination series or submit weekly negative COVID tests to enter the workplace.  However, the Court did uphold the federal rule requiring workers at private facilities that accept Medicare and Medicaid—including non-medical personnel like janitors and volunteers—to be fully vaccinated unless they qualify for a medical or religious exemption.  As a large majority of healthcare facilities accept Medicare and Medicaid, most healthcare workers—regardless of the size of their employer—will need to be vaccinated in order to work.

The Supreme Court decision overturning the federal mandate does not prevent private employers from imposing vaccine mandates of their own. Employers of any size may still require their workforce to be vaccinated as long as medical and religious accommodations are made when legally required.

In other COVID-related news, the Biden administration directed private insurance companies to reimburse their insureds for up to eight at-home COVID tests a month beginning January 15, 2022.  Yesterday, it also launched covidtests.gov, a website through which every U.S. household may order up to 4 free at-home COVID tests per month.  According to the site, the tests will ship within 7 to 12 days after an order is placed.

As these test reimbursement and ordering initiatives are brand new, it is not yet clear how either will operate in practice, or what impact they may have on testing in the workplace.  The Employment Group at Babcock & Moore will continue to monitor these and other pandemic-related legal developments closely and keep our clients up to date on any changes that may affect your workforce.

The CDC issued new guidance regarding quarantine times after a confirmed exposure or positive test for COVID.  The guidance is based on research that shows an infected person is most contagious 1 to 2 days prior to the onset of symptoms and 2 to 3 days after.  The guidance varies based on vaccination status.

Anyone, vaccinated or unvaccinated, who tests positive for COVID should isolate for 5 days after testing positive.  This means that someone who tests positive should stay in a designated room in their home and avoid all contact with others in their household.  Those who are asymptomatic or whose symptoms resolve after 5 days may leave isolation and their homes but should wear a well-fitting mask while around others for another 5 days.

In the instance of a known exposure to COVID, those who are boosted or were fully vaccinated within the last 6 months (2 months if they received the Johnson and Johnson vaccine) do not need to isolate or quarantine but should wear masks around others for 10 days.  People who have yet to receive their booster, were fully vaccinated over 6 months ago (2 months for J&J) or are unvaccinated should quarantine at home for 5 days and wear a fitted mask around others for another 5 days.  Regardless of vaccination status, anyone with a known exposure to COVID should get tested on day 5, and anyone who develops symptoms should get a test and stay home until their symptoms resolve.

CoVA BIZ magazine named Ann K. Sullivan as one of Coastal Virginia’s “Top Lawyers” for 2022.  Recognized for her expertise in employment law, Ms. Sullivan was interviewed for the magazine’s cover article about COVID’s impact on the workplace and shared best practices for employers.

As 2021 draws to a close, employers are wading through a sea of headlines and contradictions when it comes to implementing vaccine mandates. Here’s what you need to know now:

OSHA Large Employer Mandate – Nationwide Stay LIFTED — Vaccine Mandate In Effect Starting January 4, 2022 (For Now):

  • On November 5, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) rolled out mandatory COVID vaccination policies for employers with 100 or more employees, called an “emergency temporary standard,” or ETS. The ETS gives employers a choice of imposing an across-the-board vaccine mandate on employees or in the alternative implementing regular testing.  The ETS set two deadlines:
    • By December 5, employers must have written vaccine policies developed and implemented
    • By January 4, employees must either be vaccinated or begin regular testing
  • The ETS does NOT apply to employees who work remotely, work in a location where others are not present, or work exclusively outdoors.
  • The OSHA ETS was halted by a nationwide stay issued on November 12, 2021 by the Fifth Circuit Court of Appeals, after dozens of legal challenges to the ETS were filed across the country. Those suits were consolidated into a single case before the Sixth Circuit Court of Appeals, which just last Friday lifted the stay of, and reinstated, the ETS. The Court noted that OSHA has satisfactorily “demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.” The issue will likely be immediately appealed to the Supreme Court.
  • Unless OSHA moves the deadline back, or the Supreme Court takes up the issue and rules promptly, the vaccine-or-test requirements are set to take effect on January 4, 2022. If they have not done so already, employers should go ahead and develop the policies and plans they will need to implement if the ETS takes effect on schedule.

Federal Contractor Mandate – Nationwide Stay:

  • Executive Order 14042, mandating employee vaccinations for covered federal contractors, was also halted on December 7, 2021, when a Georgie federal judge issued a nationwide preliminary injunction.
  • EO 14042 set a deadline of January 4, 2022 for all employees of federal contractors to be vaccinated, but it is unlikely the pending litigation will be resolved by then.
  • Federal Contractors should continue to work with their procurement officers to develop a vaccination plan in the event the EO moves forward.

Healthcare Worker Mandate – Nationwide Stay:

  • Implementation and enforcement of the CMS Interim Final Rule, requiring COVID-19 vaccinations for all staff at Medicare and Medicaid certified facilities, is currently on hold in all 50 states due to a federal injunction.
  • The Rule, issued November 4, had set January 4, 2022 as the deadline for such employees to be fully vaccinated.

Private Mandates Still a Go:

Despite the above holds placed on federal mandates, it is important to note that employers of all sizes are perfectly within their legal rights to move ahead with their own private vaccine mandates and to terminate employees who do not comply, absent narrow exceptions.  None of the above court challenges affect the right of employers to enforce their own mandates.

Medical and Religious Exemptions:

Whether implementing their own private mandate or complying with one of the above federal mandates, employers must provide employees with the opportunity to seek medical and religious exemptions from the mandate.  However, keep in mind that there are very few valid medical or religious justifications for refusing the vaccine, and even if the medical or religious reason is valid or sincere, employers still do not have to provide accommodations for employees if accommodating creates an “undue burden.” This means that the employer is not required to accommodate if doing so would impose more than a de minimis cost. Such costs may include direct money expenditures but may also include an increased burden on other workers, increased inefficiencies, and an increased risk of spreading COVID-19 to the public and/or co-workers.  Employers are nevertheless encouraged to seek legal counsel before denying an accommodation request.

 

Babcock & Moore and Sullivan Law Group are excited to announce that they have merged their talents, experience, and creativity into one law firm. This alliance continues both firm’s tradition of being women-owned and women-led. Under the name of Babcock & Moore, they are dedicated to providing excellence in employment law, personnel management, contract disputes, insurance defense, civil litigation, personal injury, estate planning, and more.

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