IN THIS ISSUE:
POOL/PACT HR Rolls Out New
"Creating an Inclusive Work Environment" Class
Inclusive Work Celebrations
Weathering the COVID-19 Storm
Creating an Alliance Between
Human Resources and Safety
Dear POOL/PACT HR
Upcoming HR Events
POOL/PACT HR Rolls Out New
"Creating an Inclusive Work Environment" Class
During the 2021 session of the Nevada Legislature, SB 341 was passed which relates to diversity and racial training. This bill amends NRS 281 and requires public employers to provide and public officers and employees to complete diversity and racial equity training which may include, without limitation, training regarding implicit and unconscious bias and undoing organizational, institutional, structural, and systemic racism. To help members comply with this new requirement, POOL/PACT HR created a new training called, Creating an Inclusive Work Environment.

The purpose of the new class is to look at the behaviors, conduct, and biases that block the flow of inclusivity in the work environment. Creating an inclusive work environment is about valuing and promoting differences and unique characteristics of individuals and groups in the workplace. Inclusivity also means creating an environment where we can all feel valued, respected, and supported. It’s about focusing on the needs of every individual and ensuring the right conditions are in place for each person to achieve their full potential.

This new class explores what can be done to welcome diversity and create an inclusive work environment. By the end of the class, participants should have the skills and knowledge to be competent in the following objectives:
  • Identify the barriers to an inclusive workplace.
  • Understand prohibited behaviors and responsibilities regarding harassment and bullying.
  • Take actionable steps to reduce harassment and bullying behaviors in the workplace.
  • Alter personal bias to be more inclusive of others.

Please contact your POOL/PACT HR Business Partner if you would like to schedule this training for your organization or if you have questions.
Inclusive Work Celebrations
As we enter into the traditional holiday season, many employers will be hosting celebrations, parties, and other events with their employees. It’s no secret that Christmas dominates the retail and entertainment landscape in December.

It also tends to infiltrate the workplace with Christmas-themed office decorations, Secret Santa gift swaps, and employee “holiday” parties in which Christmas is often the only holiday that’s acknowledged. According to 2021 data from the PEW Research Center, 66% of Nevadans are affiliated with a Christian based faith, 5% are affiliated with non-Christian based faiths, and 28% are not affiliated with any particular religion at all. Seeing this data, it’s easy to see why holiday festivities in the workplace skew heavily toward Christmas; however, employers must not forget the sizable one-third of the population who may be celebrating completely different holidays, or no holidays at all.

Being mindful of diverse cultures and practices among your employees is important not only from a morale and inclusion perspective, but also to avoid potential claims of discrimination. Take the case of Chandler v. Infinity Insurance Group in which the employer hosted a Christmas party and made employee attendance mandatory. One of the organization’s employees who did not celebrate Christmas filed a lawsuit claiming religious discrimination and failure to make reasonable accommodations. In this case, the court sided with the employer because the employee did not request a specific accommodation related to the Christmas party. However, if the employee had made a request and it was denied by the employer, the claim likely would have prevailed. 

How does your organization make space for beliefs, traditions, and customs that are different than the majority?

To get you started, here is a list of tips to keep your holiday festivities inclusive and not susceptible to claims of discrimination:
  • Include a diverse group of people in your holiday event planning, such as individuals from different departments, age groups, genders, and cultural backgrounds.
  • Make participation optional for any holiday parties, events, or holiday-based activities (such as Secret Santa).
  • Consider basing your celebrations and parties on workplace events and achievements rather than religious or cultural holidays (e.g., employment anniversaries, the end of your “busy season,” the completion of big projects, annual team building events).
  • Choose seasonal decorations not associated with any holidays (for instance, snowflakes and winter themed decorations rather than Santa and Christmas trees). Make every effort to grant religious accommodation requests from employees as long as they are reasonable and don’t result in undue hardship.

And of course, the last tip is to call your POOL/PACT HR Business Partner if you have questions about celebrating holidays in the workplace, managing religious accommodation requests, or other ways your workplace can be more inclusive. 
Weathering the COVID-19 Storm
A little more than 20 months ago, POOL/PACT’s member organizations were rocked by the unexpected storm system of COVID-19. In response, transformation took place within workplaces to adapt to the restrictions that were put in place to ensure the safety of employees and customers. By mid-2020, there was hope that things would start getting “back to normal.” Up to that time, many had figuratively “held their breaths” and waded through the disruptions, not only at their places of work, but to their personal lives as well. Unfortunately, by summer’s end, it became clear that things weren’t getting back to normal, but instead, replaced by a “new normal” where conditions in the workplace remained unpredictable and likely to change dependent upon the latest Center for Disease Control (CDC) guidelines or issued state directives; a very fluid situation to say the least.

Throughout this period, and continuing, POOL/PACT HR has been committed to providing member organizations with the most current and relevant information and resources to help assist members in establishing policies and practices which are compliant with federal and state requirements. Member organizations have continually demonstrated commitment, flexibility, and resilience in implementing these policies and practices.

On November 4, 2021, the Federal Occupational Safety and Health Administration (OSHA) released its much-anticipated emergency temporary standard (ETS) outlining the requirements that private-sector employers with 100 or more employees must implement by January 4, 2022. (A summary of the COVID-19 Vaccination and Testing ETS is available to registered users on the POOL/PACT website in the HR Resource Library under COVID-19 (Coronavirus) Resources in the OSHA Guidance folder.)

While Federal OSHA applies to private-sector employers, Nevada has an OSHA State Plan which requires Nevada to adopt standards at least as stringent as Federal OSHA’s ETS and apply them to local government employers as well as State and private employers. The Federal OSHA’s ETS requires State Plan states to advise the Federal OSHA of what the State Plan standards will entail by November 20, 2021, and become effective as of December 4, 2021.

However, the Federal OSHA ETS has been blocked by the Fifth U.S. Circuit Court of Appeals and a “stay order” is in place pending a judicial review. Though the Fifth Circuit Court’s jurisdiction does not include Nevada nor POOL/PACT members, various groups have filed multiple petitions for review of the ETS in 11 of the 12 U.S. circuit courts of appeal. As a result, on November 16, 2021, the Judicial Panel of Multidistrict Litigation consolidated all petitions for review of the ETS (including the Fifth Circuit ruling) before the U.S. Court of Appeals for the Sixth Circuit.  

Once the Sixth Circuit has ruled (and the Nevada State Plan standards become available), POOL/PACT HR will release sample policies for impacted members’ utilization, if necessary. In addition, POOL/PACT HR will continue to provide members with the most current information and resources available, as well as any assistance needed to ensure members are successful in implementing the requirements of the State Plan.

Note for unionized employers: Per the memorandum issued on November 10, 2021, by NLRB General Counsel, impacted members with employee bargaining units need to be aware of their bargaining obligations when implementing policies based on the Nevada State Plan emergency temporary standards. Usually, employers have no obligation to bargain “changes to terms and conditions of employment” if the employer is required by law to implement the changes. However, the employer does have to bargain when the employer has certain discretion in implementing the change. For example, if the Nevada ETS allows the employer either to mandate vaccination for all employees or require employees to either become vaccinated or undergo regular testing, the employer must bargain with the bargaining unit(s) whether to implement a vaccine mandate or implement a vaccine/testing policy. Additionally, affected employers have the obligation to bargain about the effects of the ETS policy on employees, such as whether to provide paid leave for positive employees.
Creating an Alliance Between
Human Resources and Safety

In business, just like in nature, departments work together to promote alliances and collaboration to build a more vibrant, productive, and robust work environment. This article focuses on how to build partnerships between human resources (HR) and safety.

The first step in building alliances is identifying common goals, for example:
  • HR is versatile, works in all matters related to employees, and is active in employee relations, compensation, and employee benefits.
  • Safety representatives control possible workplace hazards that could cause harm to employees or others.
  • Both understand employees are one of the most crucial assets to their organizations and are each actively engaged in the well-being of the employees.

The next step is to recognize opportunities to collaborate, for example:

  • Interview Process: Include safety behavioral-based interview questions to help understand the candidate's past behavior and viewpoint on safety, such as:
  • "Tell me about a time you had to follow a specific safety procedure in your previous job"?
  • "Tell me about a time you felt unsafe at work, and what did you do to resolve the issue"?

  • New Employee Orientation: Include safety-related topics, such as the location of emergency exits, first aid kits, fire alarms/extinguishers, and Safety Data Sheet; and a review of safety guidelines and procedures. It is also a good idea to include eLearning safety trainings such as Workplace Violence Awareness and Safe and Sober Workplace.

Note: For recommended eLearning courses for new employees to complete within 30 days of hire, see POOL/PACT’s "Online Compliance Training List" available at www.poolpact.com to registered users.

  • Personnel Policies:  Incorporate safety policies within the organization's personnel policies, for example:
  • drug- and alcohol-free workplace,
  • prohibition of workplace violence,
  • workplace safety,
  • emergency conditions/disaster leave,
  • workers compensation, and
  • transitional duty.

In conclusion, like the ostrich and zebra, when HR and safety representatives work together, they achieve their common goals and enhance their vibrant HR and safety cultures. This collaboration has the added benefit of HR and safety representatives leading by example: they display departments working together as a team and supporting others' initiatives.

POOL/PACT offers a variety of resources for members to help support this collaboration between safety and HR. Contact your HR Business Partner for more information.
Dear POOL/PACT HR
Dear POOL/PACT HR,

We recently implemented a mandatory COVID-19 vaccination policy and have an employee claiming religious objections. I have never known this employee to go to church, much less seem devout. Can I just tell him either get vaccinated or face termination?

Signed,
Disbeliever in Dayton
___________________

Dear Disbeliever,

Just because someone does not openly practice their religious beliefs, practices, or observances, does not preclude the employee from having a “sincerely held religious belief.” Sincerely held religious beliefs include nontraditional religious beliefs which may be unfamiliar to employers, and thus the employer should not assume that a request is invalid simply because it is not familiar with the beliefs. In fact, the latest guidance provided by the Equal Employment Opportunity Commission (EEOC) states an employer should assume a request for religious accommodation is based on sincerely held religious beliefs and proceed with the interactive process to determine what, if any, reasonable accommodations exist. 

However, if the employer has an objective basis for questioning the employee’s credibility, the employer may make limited factual inquiries and seek additional supporting information. Objective basis may include “whether the employee has acted in a manner inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; [or] whether the timing of the request is suspect (e.g., it follows an earlier request for the same benefit for secular reasons).” It is also important to note objections to COVID-19 vaccination based on social, political, or personal preferences do not qualify as sincerely held religious beliefs under Title VII. 

In all cases, however, the employer may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement. (See POOL/PACT sample form, “Employee Request for Religious Accommodation” available on our website to registered users).

Whenever it is determined that an employee who requested an accommodation holds a sincerely held religious belief, the employer should next consider all possible reasonable accommodations, including telework and reassignment. In some cases, the employer may be able to demonstrate an undue hardship due to the risk of spreading COVID-19 to other employees or to the public. The EEOC stresses employers must make these determinations on a case-by-case basis and will need to demonstrate how much cost or disruption the accommodation would involve.

Relevant considerations include whether the employee works indoors or outdoors and/or alone or with others, and whether s/he has close contact with others (especially medically vulnerable individuals). The employer may also take into account the number of employees who are fully vaccinated, the amount of employees and non-employees who physically enter the workplace, and the number of employees who will need a particular accommodation (i.e., the cumulative cost or burden on the employer). 

So, while your employee may not seem to hold a sincerely held religious belief, you may ask him/her for an explanation of how his/her religious belief conflicts with the vaccination requirement. You would then consider reasonable accommodations. If you can demonstrate that accommodating the employee is an undue hardship, then and only then, would termination be considered (after discussing with legal counsel).

One final note: the EEOC guidance states an “…employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if it later poses an undue hardship due to changed circumstances.”  

For more information on this or other HR topics, feel free to contact your HR Business Partner.
Do you have an HR question for this newsletter?
Submit it to hrtraining@poolpact.com.
UPCOMING HR EVENTS

ESSENTIAL MANAGEMENT SKILLS IN THE PUBLIC-SECTOR (Winter 2022)




VIRTUAL PROGRAM
Eight half-day sessions
every Wednesday and Thursday
in January, 2022

This program has been developed specifically for managers and supervisors to assist them in learning to build credibility through effective communication, time management, and performance management skills. Whether in the trenches, or just starting to manage others, this program provides a wealth of ideas, techniques, and knowledge to help manage people and projects effectively. This is an invaluable opportunity for participants to learn proven techniques to make them effective leaders in their organizations.


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