Management Update

Supreme Court Rules Title VII Prohibits Discrimination Based Upon Sexual Orientation and Transgender Status

The U.S. Supreme Court had ruled that an employer who fires an employee for being gay or transgender violates Title VII. There are a few key aspects about this ruling that need to be pointed out.

This is not new law. Unlike a new statute, this ruling is actually the Supreme Court telling us how Title VII should have been interpreted all along. And, many courts have been ruling that Title VII prohibits discrimination based upon sexual orientation and transgender status for years. However, the Fifth Circuit (covering Louisiana, Mississippi and Texas) has traditionally not construed Title VII in this manner. So, although this ruling is not technically “new law”, it will change the way the courts in the Fifth Circuit construe these types of cases in the future.
This is effective immediately. When a statute is passed, it takes effect on a specific date in the future. Unlike a statute, the Supreme Court’s ruling is effective immediately.
Change your policies now. The employee handbooks and manuals used by some employers contain a list of the types of characteristics that the employer will not discriminate against (age, race, sex, color, religion….). Although the Supreme Court ruling means that sexual orientation and transgender status are subsumed in “sex” employers should consider specifically listing sexual orientation and transgender status as protected characteristics in their handbooks and employee manuals.
Train! We are all familiar with the fact that we must periodically train our employees on the application of our policies and procedures, and especially on our harassment/discrimination policies. Employers need to ensure that they revise their training to include sexual orientation and transgender status as protected classes when it comes to harassment and discrimination. We are going to see an increase in these types of cases, and our ability to prove that we provided adequate training will be a key element of our defense.
As odd as it sounds, treating men and women the same can be discriminatory. The Supreme Court stated it this way: “An employer cannot escape liability by demonstrating that it treats males and females comparably as groups….An employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.” The fact that you don’t hire either gay females or gay males is not a defense; it still amounts to discrimination based upon sex.

EEOC Updates COVID-19 Technical Assistance Q&A

In its updated Q&As, the EEOC addresses some significant and current issues such as reasonable accommodation, hiring and onboarding, pandemic-related harassment, return to work, age discrimination, pregnancy discrimination, and sex discrimination regarding employees with caretaking/family responsibilities. The entirety of the Q&As can be found here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term

Addressing an issue that has been presented to me several times in the past few weeks, the EEOC specifically addresses whether an accommodation is required for an employee who is not disabled, but whose family member may be at high risk for contracting COVID-19 due to underlying health or condition. Q&A D.13 states:

D. 13 Q: Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?

D. 13 A.: No. Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. 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 she is associated.

For example, an employee without a disability is not entitled under the ADA to telework as accommodation in order to protect a family member with a disability from potential COVID-19 exposure.

Of course, an employer is free to provide such flexibilities if it chooses to do so. An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis .

So, it is the EEOC’s position that you do not have to accommodate an employee’s concerns about returning to work because they have a family member who is at an elevated risk of a negative outcome from a COVID-19 infection. Regardless of how you respond to such a request, you should consider your previous responses to similar requests and make sure that you do not inadvertently discriminate against an employee with a disabled family member.

OSHA Issues First COVID-19 Related Citation to Nursing Home in Georgia

The Occupational Safety and Health Administration (OSHA) has issued its first COVID-19 related citations to a nursing home. OSHA claims that six nursing home employees in Georgia were hospitalized as a result of COVID-19 that they allegedly contracted while at work, and that the nursing home failed to report the hospitalizations to OSHA within the statutorily mandated time period. (Employees were hospitalized around April 19, but report was not made to OSHA until May 5.) OSHA has proposed a $6,500 fine for the “other than serious” citation.

Generally, employers must report incidents to OSHA within twenty four hours when an employee suffers a work-related in-patient hospitalization. This includes instances in which an employee is hospitalized because of COVID-19 if the employee contracted COVID-19 while at work and the hospitalization occurs within 24 hours of the employee contracting the virus. (Refer to 29 CFR 1904.39(b)(6)).

When several cases develop among workers who work closely together;
If it is contracted after lengthy, close exposure to a customer or coworker who has a confirmed case of COVID-19; or
If an employee’s job duties include having frequent, close exposure to the general public in a locality with widespread transmission.

You can find OSHA’s May 19, 2020 guidance on COVID-19 infection record keeping here: https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid- 19#:~:text=Under%20OSHA's%20recordkeeping%20requirements%2C%20COVID,Prevention%20(CDC)%3B%5B2%5D

In the case of the Georgia nursing home, OSHA stressed that the widespread transmission of COVID-19 in nursing homes in general, and the fact that six employees in this particular nursing home tested positive for COVID-19 should have been an indication to the employer that the virus was work-related.

Bottom line: Employers must make themselves aware of OSHA’s reporting and recording obligations, and consider them each time an employee tests positive for COVID-19.

U.S. DOL Issues New FFCRA Q&A's

The U.S. Department of Labor recently issued yet more FFCRA Questions and Answers. You can find the new Q&A’s here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions Numbers 89 to 93 are new.

The new Q&A’s are summarized below.

89: I hire workers to perform certain domestic tasks, such as landscaping, cleaning, and child care, at my home. Do I have to provide my domestic service workers paid sick leave or expanded family and medical leave?

Yes if they are your employees, as opposed to independent contractors. This will generally hinge on whether or not the workers are economically dependent upon you for the opportunity to work.

90. If I am employed by a temporary placement agency that has over 500 employees and am placed at a second business that has fewer than 500 employees, how does the leave requirement work? Are one or both entities required to provide me leave?

The temporary staffing agency is not covered by the FFRCA because it has more than 500 employees. The second business may be required to provide you with FFCRA leave, depending upon whether or not it is your joint employer.

91. My employees have been teleworking productively since mid-March without any issues. Now, several employees claim they need to take paid sick leave and expanded family and medical leave to care for their children, whose school is closed because of COVID-19, even though these employees have been teleworking with their children at home for four weeks. Can I ask my employees why they are now unable to work or if they have pursued alternative child care arrangements?

You can ask the employees about any changed circumstances, explaining why they are now unable to work, but “you should exercise caution in doing so, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act.” The employees may be entitled to FFCRA leave now if, for example, they have made the decision to take paid sick leave or expanded family and medical leave to care for their children so that their spouse could work or telework.

92. My employee claims to have tiredness or other symptoms of COVID-19 and is taking leave to seek a medical diagnosis. What documentation may I require from the employee to document efforts to obtain a diagnosis? When can it be required?

You can require the employee to identify his or her symptoms and a date for a test or doctor’s appointment.

93. I took paid sick leave and am now taking expanded family and medical leave to care for my children whose school is closed for a COVID-19 related reason. After completing distance learning, the children’s school closed for summer vacation. May I take paid sick leave or expanded family and medical leave to care for my children because their school is closed for summer vacation?

Not unless the child’s care provider is closed or unavailable for a COVID-19 related reason.

PPP Update: Paycheck Protection Program Flexibility Act Enacted by Congress

Late Wednesday evening (June 3, 2020), the U.S. Senate approved, by unanimous consent, major changes to the Paycheck Protection Program through the Paycheck Protection Program Flexibility Act, which was introduced and approved by the House of Representatives last week. President Trump is expected to sign the legislation immediately.

Highlights of the Paycheck Protection Program Flexibility Act:

Covered Period - Extends borrowers’ “covered period”, the time period it has to spend the PPP loan proceeds, from the original 8 weeks (56 days) from loan origination to the earlier of 24 weeks (168 days) from loan origination or December 31, 2020. For PPP loans dated prior to the effective date of the Flexibility Act, borrower may elect to keep the 8-week covered period.

Payroll Costs Percentage - Eases the requirements of how borrowers spend PPP proceeds by providing that at least 60% of the PPP loan amount must be used for payroll costs in order to receive forgiveness, and up to 40% of the PPP loan amount may be used for non-payroll costs. This expressly modifies the SBA’s guidance that at least 75% of the loan proceeds actually spent must be for payroll costs. So, the Act lowers the payroll costs percentage and frees up more PPP loan proceeds for non-payroll expenses (i.e., rent, utilities, mortgage interest), but it requires borrowers to actually spend at least 60% of the total loan amount on payroll costs, and the consequence for not doing so seems to be the forfeiture of forgiveness all together.

Rehiring Deadline - Extends until December 31, 2020 the time period for employers to rehire anyone laid off or furloughed after February 15, 2020, in order to avoid reduction in their loan forgiveness. The original CARES Act provided for a June 30, 2020 deadline.

FTE Calculation for inability to rehire - Statutorily adopts SBA guidance with respect to the full-time-equivalency (FTE) calculation in the forgiveness process by providing employers do not need to take into account in their FTE calculation during the covered period, employees that they were unable to rehire or replace, and are able to document those instances.

Maturity Date extension - Extends the maturity date for any unforgiven portion of a PPP loan from 2 years to a minimum of 5 years, but makes this provision only mandatory to loans applied for after the effective date of the Act. Existing PPP loans with a 2-year maturity date remain unchanged unless the lender and borrower mutually agree otherwise.

Interest Rate - Statutorily adopts the SBA’s determination that PPP loans accrue interest at a 1% annual rate.

Time frame to file forgiveness application - Extends the period for borrowers to seek forgiveness up to 10-months from the end of the borrower’s covered period.

While extending the covered period to 24-weeks and lowering the threshold of loan proceeds that must be spend on payroll costs to 60% should allow many participants in the program to “optimize” the amount of potential loan forgiveness, the changes do present some new challenges that borrowers should thoughtfully consider. We will continue to closely monitor how SBA guidance responds to the Paycheck Protection Program Flexibility Act and offer our analysis.