Camp’s Closed! Is FFCRA Child Care Leave Available?

By: Miriam L. Rosen, McDonald Hopkins, PLC

As the COVID-19 pandemic wages on, the U.S. Department of Labor continues to provide guidance on application of Families First Coronavirus Response Act (FFCRA).   In a Field Assistance Bulletin directed at Wage and Hour Division Investigators, the DOL explained when employees may be eligible for FFCRA child care leave when a child’s summer camp or other summertime place of care is closed.

Under the FFCRA, employees who work for covered employers are eligible for up to twelve weeks of child care leave when they are unable to work or telework due to the need to care for a child whose place of care is closed due to COVID-19.  As the school year has transitioned to summer, the DOL’s guidance makes clear that the child care leave provisions continue to apply when an employee is unable to work because they need to care for a child who would have attended a summer camp or program, but for a COVID-19 limitation.

The DOL’s guidance indicates that, as with school or child-care center closures, an employee who requests child care leave based on a summer camp/program closure or enrollment restriction must provide the employer with certain information:

      • the name of the camp or program that would have been the place of care had it not been closed
      • the name of the child, and
      • a statement that no other suitable person is available to provide care

Because summer camp, unlike school, is not required, the DOL’s guidance provides investigators some additional factors to consider in determining whether an employee is eligible for child care leave. The guidance advises WHD investigators to consider whether the child applied to or was enrolled in the summer program before it closed, whether they had attended the camp in prior summers, or other evidence suggesting that the child would have been cared for in that environment but for a COVID-19 related closure. Investigators are instructed to determine whether there is evidence that the employee planned for the child to attend the camp or program, such as enrollment prior to cancellation, or an application submitted, or a deposit paid.  At a minimum, they must determine whether it was more likely than not that the child would have attended had the facility not been closed due to COVID.

Significantly, however, the DOL states that it is not adopting a one-size-fits all rule because of “the multitude of possible circumstances under which an employee may establish (1) a plan to send his or her child to a summer camp or program, or (2) that even though the employee had no such plan at the time the summer camp or program closed due to COVID-19, his or her child would have nevertheless attended the camp or program had it not closed.”

Employers should consider the DOL’s guidance in responding to a request for FFCRA child care leave related to a summer camp closure.  A camp closure or enrollment restrictions for a camp where the child was already registered is a clear situation where leave time should be provided. Practically speaking, however, employees may not have had summer plans in place when the pandemic hit.  So, employers should proceed cautiously in evaluating and responding to leave requests even if proof of enrollment cannot be provided.  Employers should note that the DOL is aggressively enforcing the FFCRA, so understanding and following the DOL guidance is an important aspect of ensuring compliance.

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342. Additional articles addressing the many legal and operational concerns impacting businesses as a result of the coronavirus crisis can be found at: https://mcdonaldhopkins.com/Insights/March-2020/Coronavirus-Legal-and-business-concerns

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. July 2020.

Masks and Testing Under the ADA

By Claudia D. Orr, Plunkett Cooney 

What Covid-19 tests can you make employees take and what can you do with customers who come into your place of business without masks? I just want to provide some quick clarification.

Tests.  You should be screening employees every day.  And, if someone has symptoms, you will want to send them home. However, rather than lose the employee for a couple of weeks when it may just be allergies, you can require them to be tested for Covid-19. But remember, it is only a snap shot in time. I am hearing from clients that their employees are dragging out the testing for more paid time off. So, it may be best to make the appointment for them so they can be tested, found to be negative and returned to work sooner.

However, the Equal Employment Opportunity Commission (EEOC) has now issued guidance clarifying that testing for antibodies is not permitted.  First these tests are not necessarily reliable. Second, it is still not known what the presence of antibodies means.  Does the person have immunity?  If so, how long will the immunity last?  Therefore, testing for antibodies serves no purpose other than resolving a person’s curiosity.

Masks.  If your employees have interaction with the public, they must wear masks.  I was in a couple of stores lately and was appalled that none of their employees wore them. Those stores have lost a customer.

But the trickier issue is how to handle the customer who comes knocking without a mask.  The EEOC makes clear that if the individual has a medical condition that would make breathing difficult with a mask they cannot be required to wear one.  I have heard that there are disability advocate groups “testing” businesses looking for lawsuits (as they have for years with accessibility issues).

I find, however, more often than not, that the offender looks like the specimen of health and I suspect the person is just refusing to wear one. Apparently, they don’t understand that it’s not about them; it’s about protecting those around them. While such actions are inconsiderate, you can’t require a doctor’s note to excuse the mask if the person claims to have a medical issue affecting their ability to wear one.  Also, given that people have been shot for insisting on one, you may not want your employees to throw the customer out if they simply refuse.  Hopefully, public shaming by customers will convey the message.

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association.  She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html 

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. June 2020.

More EEOC Guidance on Practical Return to Work Issues

By: Miriam L. Rosen, McDonald Hopkins, PLC

The U.S. Equal Employment Opportunity Commission (EEOC) continues to update its COVID-19 Technical Assistance Q&A to provide employers with practical guidance on return to work issues.  On June 11th, the EEOC addressed questions concerning pandemic-related harassment, pregnant employees, age concerns along with other workplace issues.

Pandemic-Related Harassment

The EEOC reminds employers to be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Chinese or another Asian national origin, including remarks related to the coronavirus or its origins. Recognizing that many employees are not in the physical workplace, the EEOC notes that harassment may occur using electronic communication tools and suggests employers remind employees of policies prohibiting harassment.

Dealing with Protected Categories

In returning employees to work, employers have concerns about employees who are or are perceived to be at higher risk for contracting COVID-19 due to pregnancy or age.  Often, an employer’s instinct is to be paternalistic and make decisions that it believes are in the employees’ best interest.  Regardless of the good intentions, the EEOC warns against making employment decisions based on protected status.

  • Pregnancy

Even if motivated by benevolent concern of protecting pregnant employees from COVID-19 exposure, employers may not single out workers based on pregnancy for adverse employment actions, including involuntary leave, layoff or furlough.  Rather, as in any other situations, if a pregnant employee requests a reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual Americans with Disabilities Act (ADA) rules. In addition, pregnant employees may be entitled to job modifications – including telework, changes to work schedules or assignments, and leave – to the extent provided for other employees who are similar in their ability or inability to work.

  • Age

While acknowledging that individuals age 65 and older are at higher risk related to COVID-19 under the CDC’s guidance, the EEOC also cautions employers about making decisions based on age even if the reasons relate to protecting employees due to a higher risk of severe illness.   However, the EEOC further notes that employers are free to provide flexibility to workers age 65 and older – the Age Discrimination in Employment Act does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.

  • High-Risk Family Members

At the same time, the EEOC’s guidance confirms that employers are not required to provide accommodations under the ADA to employees to avoid exposing family members at higher risk of severe illness from COVID-19. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom the employee is associated.   While an employer is free to provide an employee flexibility, when doing so the employer should be careful not to engage in disparate treatment based on protected status.

  • Caregiver/Family Responsibilities

The guidance also addresses the concerns if an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures. The EEOC states that employers may provide any flexibility as long as they are not treating employees differently based on sex or other EEO-protected characteristics. For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption of who may have caretaking responsibilities for children.

Alternative Health Screening

Addressing another issue that employers are facing in the return to work environment, the EEOC guidance covers how to respond to employee requests for alternate forms of health screening due to medical conditions.

The EEOC indicates that employers should proceed as they would for any other request for accommodation under the ADA or the Rehabilitation Act. The EEOC recommends that if the requested change is easy to provide and inexpensive, the employer might voluntarily choose to make it available to anyone who asks, without going through an interactive process. Alternatively, if the disability is not obvious or already known, an employer may ask the employee for information to establish that the condition is a disability and what specific limitations require an accommodation. If necessary, an employer may also request medical documentation to support the employee’s request, and then determine if that accommodation, or an alternative effective accommodation, can be provided absent undue hardship. Similarly, if an employee requested an alternative method of screening as a religious accommodation, the employer should determine if accommodation is available under Title VII.

Employers should continue to watch for guidance from the EEOC and other agencies as they address return to work issues.

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342. Additional articles addressing the many legal and operational concerns impacting businesses as a result of the coronavirus crisis can be found at: https://mcdonaldhopkins.com/Insights/March-2020/Coronavirus-Legal-and-business-concerns

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. June 2020.

MIOSHA Penalties Impermissible for Executive Order Violations

By:  Melissa M. Tetreau, Bodman PLC

By now, employers know they need to have a COVID-19 Preparedness and Response Plan when they resume in-person operations. Employers understand they must provide personal protective equipment and make cleaning supplies readily available. But, after more than 100 executive orders related to the coronavirus, understandably, confusion remains. Can an employer use fans to ventilate the workplace? OSHA Guidance referenced in the executive orders recommends increasing ventilation and air flow, but CDC Guidance (also referenced in the executive order) advises against the use of personal fans in the workplace.

Employers want to do their best to provide a safe working environment for their employees. And on top of that, the Executive Orders involve a penalty for violating these reopening standards of up to $70,000 per infraction, stating these safety infractions fall “within the meaning of the Michigan Occupational Safety and Health Act.” MIOSHA also calls for jail time of up to three years when there are repeated violations.

Luckily, on June 4, 2020, Associated Builders & Contractors of Michigan received an immediate declaratory judgment against Governor Whitmer and the enforcement of the MIOSHA penalties for Executive Order violations. The Court found that penalties under Whitmer’s Executive Orders are limited to a misdemeanor, which is punishable with a $500 fine or up to 90 days in jail.

The Court stated that incorporating MIOSHA’s penalty scheme into the Executive Order was beyond Governor Whitmer’s authority and held that “[a]ny penalties or fines beyond those for misdemeanors that are incorporated into the executive order are void.” Any violation of the rules described in the executive order can be punished only as a misdemeanor.

Employers should continue to abide by the dictates of the governor’s executive orders and take all necessary steps to provide a safe workplace. But, given the ambiguities and inconsistencies in the orders and other OSHA and CDC guidance, employers should find this decision to provide some relief.[1]

This decision is likely to be appealed, so stay tuned for further developments in this area.

Melissa Tetreau is a member of the Detroit SHRM Legal Affairs Committee and an attorney with the law firm of Bodman PLC.  She can be reached at MTetreau@bodmanlaw.com.                                     

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article.  June  2020.

[1] Of course, MIOSHA still has full authority to enforce its own regulations and workplace safety standards.

COVID-19 and OSHA Reporting

By:   Miriam L. Rosen, McDonald Hopkins PLC

The Occupational Safety and Health Administration (OSHA) has recently clarified guidance on when COVID-19 is a reportable incident.   In a Memorandum effective May 26, 2020, OSHA noted that due to the prevalence of the disease and the return of employees to the workplace, employers should take action to determine whether COVID-19 cases affecting employees are work-related and thus recordable.

For purposes of recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording COVID-19 cases, if:

      1. The case is a confirmed case of COVID-19, as defined by the CDC;
      2. The case is work-related; which means under 29 CFR § 1904.5 that an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness; and
      3. The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

In the Memorandum, OSHA did acknowledge, however, that the nature of the disease may  make it difficult for employers to determine whether a COVID-19 illness is work-related, especially when an employee has had potential exposure both in and out of the workplace.

As a result of these considerations, OSHA advised that it will exercise discretion in its enforcement.  In particular, because of the difficulty in determining work-relatedness, OSHA will consider the following factors in assessing employers’ efforts in making work-related determinations.

    • The reasonableness of the employer’s investigation into work-relatedness. OSHA does not expect employers, especially small employers, to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area. OSHA notes that in most circumstances it is sufficient for the employer, to ask a COVID-19 positive employee:  (1) how the employee believes the COVID-19 illness was contracted; (2) while respecting employee privacy, discuss with the employee work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.
    • The evidence available to the employerEmployers should consider information reasonably available to it at the time its work-relatedness determination – such as an outbreak in the workplace or no other known incidences.
    • The evidence that a COVID-19 illness was contracted at workOSHA has also advised compliance officers to take into account all reasonably available evidence to determine whether an employer has complied with its recording obligation. Because these factors cannot be reduced to a ready formula, certain types of evidence may weigh in favor of or against work-relatedness. For instance:
        • COVID-19 illnesses are likely work-related when:
            • Several cases develop among workers who work closely together and no alternative explanation exists.
            • It is contracted shortly after lengthy, close exposure to a customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
            • Job duties include having frequent, close exposure to the general public in an area with ongoing community transmission and no alternative explanation exists.
        • A COVID-19 illness is likely not work-related if:
            • The employee is the only worker to contract COVID-19 in the vicinity and the job duties do not include having frequent contact with the general public.
            • Outside the workplace the employee closely and frequently associated with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.

After a reasonable and good faith inquiry, if the employer concludes that a COVID-19 case is more likely than not work-related, it should be recorded as a respiratory illness on the OSHA Form 300. If the employer cannot make such a determination, there is no recording obligation. Notably, recording of a COVID-19 incident as work-related does not, in and of itself, indicate that the employer has violated any OSHA standard.

Whether work related or not, OSHA advises employers that it is important for workers’ health and safety to take appropriate steps to protect employees. Employers should anticipate an uptick in OSHA complaints as employees return to work.  To be prepared to respond to such complaints, it will be important to conduct the inquiries noted above and document efforts to determine whether an employee COVID-19 case is work-related.

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342. Additional articles addressing the many legal and operational concerns impacting businesses as a result of the coronavirus crisis can be found at: https://mcdonaldhopkins.com/Insights/March-2020/Coronavirus-Legal-and-business-concerns

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. June 2020.

New Wage Hour Rule on Retail/Service Exemption

By:   Miriam L. Rosen, McDonald Hopkins PLC

Responding to the COVID-19 crisis has been an all consuming task for employers over the last several months.  As employers now turn their attention to re-opening, it comes with the recognition that back to business also means focusing on employment law compliance.  One  noteworthy recent development is a new Fair Labor Standard Act (FLSA) rule on the retail/service overtime exemption.

New rule of retail and service overtime exemption

The FLSA provides for an overtime exemption, under Section 7(i), for certain employees of retail and service establishments who receive the majority of their compensation on a commission basis. The FLSA defines retail and service employers as “establishments 75 percent of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.”  However, despite that definition, the DOL has long limited the scope of that retail/service exemption by maintaining a narrowly defined list of establishments recognized as “retail” or “service” within the meaning of the FLSA.

On May 8, 2020, the Wage and Hour Division issued a new rule that rescinds the lists of establishments that were previously deemed as having “no retail concept” or potentially having a retail concept as defined in Section 7(i) of the FLSA.   The DOL will now determine an establishment’s retail status by whether it:  “sells goods or services to the general public … and serves the everyday needs of the community in which it is located.”   Further, a retail or service establishment is one that operates at the very end of the stream of distribution, selling in small quantities to an end user and should ordinarily be accessible by the general consuming public.

Use of this “relaxed” standard is an opportunity for employers that provide services directly to consumers, but who were previously excluded from the list to apply the retail/ service exemption. The types of businesses that may now be able to apply this exemption include travel agencies, tax-consulting services, loan and credit agencies, dry cleaners, accountants, medical and dental offices, law firms, pharmacies, and employment agencies.

For a retail or service establishment employee to be exempt from the overtime provisions of the FLSA, the following conditions must still be met:

    1. The employee must be employed by a retail or service establishment;
    2. The employee’s regular rate of pay must exceed 1 1/2  times the applicable minimum wage for every hour worked in a workweek in which overtime hours are worked; and
    3. More than half of the employee’s total earnings in a representative period must consist of commissions.

Employers examining all aspects of their operation in response to the COVID-19 crisis should consider whether this updated approach to retail and service establishments impacts their organization and can be incorporated into their compensation strategy.  This analysis should be made in consultation with employment counsel.

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342. Additional articles addressing the many legal and operational concerns impacting businesses as a result of the coronavirus crisis can be found at: https://mcdonaldhopkins.com/Insights/March-2020/Coronavirus-Legal-and-business-concerns

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. May 2020.

COVID-19 and EEO-1 Reporting Delay

By: Miriam L. Rosen, McDonald Hopkins, PLC

As employers turn their attention to returning to work, they received news that at least one annual task will be off their plates for awhile.    On May 7, 2020, the Equal Employment Opportunity Commission (EEOC) announced in a notice filed in the Federal Register that due to the COVID-19 pandemic it is delaying collection of the 2019 EEO-1 report that was to be filed in 2020.  Further, the EEOC requested approval to collect both 2019 and 2020 EEO-1 data beginning in the first quarter of 2021. Once the expected approval is received by the Office of Management and Budget, the EEOC’s announcement means that employers will not be required to submit their 2019 EEO-1 data during 2020.

In addition, after the EEOC’s push to collect wage information in late 2019 and early 2020, on March 23, 2020, the EEOC provided notice that it will end collection of Component 2 EEO-1 pay data.  The EEOC’s notice in the Federal Register states its plan to collect only traditional EEO-1 data on sex, race and ethnicity data over the next three years.  EEOC’s decision to end the Component 2 pay data collection was based on the conclusion that the data collection burden on employers outweighed the usefulness of the data as an analytical tool.  This conclusion comes as no surprise to employers who had to complete the cumbersome form.

For federal government contractors, some reporting obligations may remain, however.  The Veterans’ Employment & Training Service has not indicated yet whether the 2020 VETS-4212 will be due on September 30, 2020. In addition, the OFCCP continues to send notices for focused Section 503 and VEVRAA reviews that will occur over the coming months.  As a result, it is important for federal government contractors to maintain affirmative action compliance efforts even during the pandemic.

As the impact of the COVID-19 crisis continues to unfold, employers should continue to watch for announcements regarding new or delayed reporting requirements.

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342. Additional articles addressing the many legal and operational concerns impacting businesses as a result of the coronavirus crisis can be found at: https://mcdonaldhopkins.com/Insights/March-2020/Coronavirus-Legal-and-business-concerns

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. May 2020.

New FFCRA Guidance Addresses Child Care and Documentation Issues

By: Miriam L. Rosen, McDonald Hopkins, PLC

As employers across the country focus on getting back to work, the U.S. Department of Labor (DOL) continues its focus on the Families First Coronavirus Response Act (FFCRA).  On May 7, 2020, the DOL updated its FAQs resource page with additional FFCRA guidance in Questions 89 – 93.

FFCRA Child Care Guidance

Two of the new questions address practical issues associated with FFCRA leave for child care.

Telework and child care leave.   In Question 91, the DOL covers whether an employer can ask employees who have been teleworking, but later request FFCRA leave for child care why they are now unable to work or if they have pursued alternative child care arrangements.

The DOL indicates that an employer may ask an employee to note any changed circumstances explaining why the employee is now unable to telework. The DOL notes, however, that just because an employee has been teleworking with children home does not mean that the employee may not later need a leave to care for children whose schools are closed for a COVID-19 related reason.  Further, the DOL cautions employers not to discourage FFCRA requests in asking such questions.

Child care leave and summer vacation.  In Question 93, the DOL touches on an issue that is on many employers’ minds:  school’s out in the summer any way, so is child care leave available under the FFCRA when school is closed for summer vacation?

The DOL notes that FFCRA leave is not available simply due to summer vacation that is not COVID-19 related. However, the significant aspect of the DOL’s response for employers planning their summer staffing is that FFCRA child care leave may be available if the child’s summer care provider —such as a camp or other summer program—is closed or unavailable for a COVID-19 related reason. So, employers will need to continue to provide FFCRA leaves over the coming months as camps and other programs make the decision not to operate this summer.

FFCRA Supporting Documentation

Documentation of COVID-19 diagnosis.  In Question 92, the DOL addresses the documentation that an employer can require from employees seeking FFCRA leave to obtain a COVID-19 diagnosis.

According to the DOL, an employer may require an employee in need of time off for a diagnosis to: 1) identify his or her symptoms, and 2)  a date for a test or doctor’s appointment.

However, in what seems to be a departure from previous guidance on documentation, the DOL states that when an employee is seeking a diagnosis the employer may not require further documentation indicating that the employee has, in fact, sought a diagnosis or treatment from a health care provider in order for the employee to use paid sick leave for COVID-19 related symptoms.

The DOL specifically notes that “the minimal documentation required to take this leave is intentional so that employees with COVID-19 symptoms may take leave and slow the spread of COVID-19.” While lowering barriers to testing is important, the DOL’s guidance does not seem to take into account the potential for abuse for FFCRA time without reasonable follow up documentation requirements.

 As practical FFCRA compliance issues emerge in the coming months, employers should expect that the DOL will continue to issue updates to the FAQs. Employers should be alert for these updates as they provide useful guidance in complying with the FFCRA.

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342. Additional articles addressing the many legal and operational concerns impacting businesses as a result of the coronavirus crisis can be found at: https://mcdonaldhopkins.com/Insights/March-2020/Coronavirus-Legal-and-business-concerns

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. May 2020.

Feds Issue New Title IX Rule Addressing Sexual Harassment/Assaults in Schools

By:  Claudia D. Orr, Plunkett Cooney

There has been a lot of news in recent years surrounding allegations of sexual assaults in sports programs, so it is probably no surprise that the U.S. Department of Education has issued its final rule and mandatory steps to prevent and address reports of sexual abuse.

The final rule, including its summary, is over 2000 pages, so this article can only highlight some of its key provisions.  There is a Department of Education webinar available that also provides guidance.

First, there is a shift in how sexual harassment and sexual assault are viewed. It is unlawful sex discrimination. As such, there are legal obligations, not just guidance, imposed on school districts (K-12), colleges and universities which require a prompt response when a report is made. There is more transparency to the process, more support for the complainant and more due process for the accused.

Complainants must be offered supportive measures (to ensure equal access to education, protection and deterrence of further harassment) even when the student decides not to initiate or participate in the formal complaint process. This may include such things as being reassigned to different classes or a different dorm and no contact orders. The complainant cannot be forced or coerced into participating in the process.

The final rule requires strong, clear, predictable and transparent grievance processes “to reach reliable outcomes.” The final rule defines all of the following conduct when based on sex as sexual harassment:

    • Conditioning an educational benefit/service on a student’s willingness to engage in sexual harassment (i.e., quid pro quo harassment);
    • Unwelcome conduct that is so severe, pervasive and objectionably offensive that it would deny a “reasonable person” equal access to the educational program/activity; and

[Note: both of these seem reflective of Title VII employment law]

    • Any sexual assault, dating violence, stalking or domestic violence (as defined under the Clery Act, 20 USC 1092(f), and the Violence Against Women Act, 34 USC 12291(a)).

The final rule follows Title IX and U.S. Supreme Court precedent and mandates that a school respond whenever it has actual knowledge of sexual harassment occurring within the education program/activity in the United States.

But the term “actual knowledge” is expanded to situations when notice is given to “any elementary or secondary school employee and can also be made to the Title IX Coordinator by the student or a third party by email, phone, mail or in person.” This is a change from the proposed rules (which required notice to a teacher in elementary or secondary schools) may create liability when a lower level employee fails to convey the information.

Significantly, a school’s education program/activity now also includes “situations over which the school exercised substantial control, and also buildings owned or controlled by student organizations officially recognized by a post secondary institution, such as many fraternity and sorority houses.” This is a significant expansion from the proposed language. Given the misconduct that sometimes occurs at such places, this may raise serious concerns for educational institutions.

A Title IX violation will be found if the school’s response is unreasonable given the known circumstances. The final rules require mandatory response obligations including the offering of supportive measures to the complainant even when there is no formal complaint. However, the final rules also require the grievance process to be followed before the imposition of any disciplinary action against the accused (with the exception of imposing “supportive measures” for the complainant).

Every formal complaint must be investigated and the grievance process must include all of the following:

    • Written notice of the allegations to both parties
    • An opportunity for each party to select an advisor (which may or may not be an attorney)
    • An opportunity for both parties to submit and review all evidence during the investigation
    • Trained Title IX personnel to evaluate the evidence objectively, free from bias and conflicts
    • Privacy protections requiring written authorization before the use of any medical, psychological or similar records during the process
    • Voluntary written consent before the use of any informal resolution process (and no informal process can be used where an employee has been accused of the sexual harassment)
    • A presumption of innocence given to the accused, with the burden of proof on the school
    • The uniform application of either a preponderance of evidence or clear and convincing evidence standard (which is a higher burden of proof) whether it is a student or an employee accused
    • Separate decision makers and investigators
    • Live hearings (which may be conducted “virtually”) with cross-exam required for postsecondary schools (K-12 may hold live hearings or may allow parties to submit written questions to be posed to the other party/witnesses)
    • Prohibition of questions to the complainant concerning prior sexual history
    • Written decision with an analysis of reasoning
    • Effective remedies for the complainant if sexual harassment is found
    • An equal opportunity to appeal the decision
    • Prohibition of retaliation against parties and participants
    • Maintenance of records of reports/investigations
    • The public disclosure of Title IX training records

In addition, the final rules provide for the affirmation of sex discrimination regulations and updates to policies, etc. There are a lot of details provided in the final rules. The above just touches upon some of the highlights.

Academic institutions are encouraged to have their policies and procedures reviewed by legal counsel to ensure compliance.

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.  

 Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. May 2020. 

As Employers Plan to Re-open, EEOC Provides More COVID-19 and ADA Guidance

By: Miriam L. Rosen, McDonald Hopkins, PLC

As employers begin to cautiously prepare for a return to the physical workplace in the coming weeks, the Equal Employment Opportunity Commission (EEOC) is continuing to update its Technical Assistance Guidance on COVID-19 and the Americans with Disabilities Act (ADA).

In a series of new questions and answers issued on April 17, 2020, the EEOC addresses some practical questions related to reasonable accommodations and adds a new section to its guidance on return to work issues.

Issues addressed in the April 17, 2020 EEOC update:

REASONABLE ACCOMMODATIONS

The EEOC’s COVID-19 technical assistance recognizes that employers will still need to identify reasonable accommodations for disabled employees during the pandemic – although the interactive process may be a bit different during the pandemic.

The interactive process during the pandemic.   The interactive process is a key aspect of identifying reasonable accommodations for an employee with a disability. The EEOC confirms that during the pandemic an employer must still engage in the interactive process and may request information from an employee, including medical documentation, why an accommodation is needed, and how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position.

Temporary accommodations during the pandemic.   Recognizing that employers’ time may be stretched during the pandemic, the EEOC notes that some employers may choose to forgo or shorten the exchange of information that is part of the interactive process.    The EEOC cautions that as government restrictions change, the need for accommodations may also change.  This may result in more requests for short-term accommodations. Practically, the EEOC further notes that employers may wish to adapt the interactive process to suit changing circumstances based on public health directives.

Employers may, for example, opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Using an alternative way to identify accommodations may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a pre-existing disability that puts the employee at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.

Employers can ask about accommodations needed on return to work.   Employers are often reluctant to ask employees directly about the need for an accommodation.  However, the EEOC notes that as the workplace begins to re-open, employers may ask employees with disabilities to communicate about what they believe they may need when they return to work.

RETURN TO WORK CONCERNS

As states begin to discuss lifting restrictions and employers make plans to return to work, the EEOC has added a new section to its guidance to address practical concerns about how employers will balance new safety precautions with ADA obligations.

Screening returning employees for COVID-19.     As stay-at-home orders give way to new workplace safety protocols, employers want to understand whether screening employees for COVID-19 when entering the workplace –through medical questions and taking temperatures  – is consistent with the ADA.

Significantly, the EEOC notes that as long as employers implement screening that is consistent with advice from the CDC and public health authorities, those employers will be acting consistent with the ADA.

The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity.  Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.

By way of  example, the EEOC states that this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace.

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

Personal protective gear and infection control practices.    New workplace safety measures will likely require returning workers to wear personal protective gear and to engage in infection control practices. Requiring employees to comply with those measures is also consistent with the ADA.

However, where an employee with a disability needs a related reasonable accommodation, such as non-latex gloves or a modified face masks for interpreters or gowns designed for individuals who use wheelchairs, or a religious accommodation under Title VII, the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII.

As new procedures and protocols develop to keep the workplace safe, employers will need to continue to balance these requirements against on-going ADA obligations.   Employers should expect the EEOC to continue to update its guidance as issues develop.

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342. Additional articles addressing the many legal and operational concerns impacting businesses as a result of the coronavirus crisis can be found at: https://mcdonaldhopkins.com/Insights/March-2020/Coronavirus-Legal-and-business-concerns

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. April 2020.