D.C. Circuit Lessens Burden of Proof for Title VII Job Transfer Claims

On June 3, 2022, the full court of the U.S. Court of Appeals for the District of Columbia overturned long-standing precedent regarding the burden of proof a plaintiff must carry in pursuing a Title VII Claim.  In Chambers v. District of Columbia (D.C. Cir. 2022), the D. C. Circuit held in a 9-3 en banc decision that when an employer transfers an employee or denies an employee’s request for a transfer because of the employee’s race, color, religion, sex, or national origin, the employer violates Title VII by discriminating against the employee in his or her “terms, conditions, or privileges” of employment. The court’s opinion overruled a nearly 24-year old precedent that held the denial or forced acceptance of a job transfer is actionable only if an employee suffers “objectively tangible harm.”  See Brown v. Brody (D.C. Cir. 1999).  The court’s decision could have sweeping effects on Title VII litigation throughout the country, as the diminished burden of proof is significantly more plaintiff-friendly and causes concern for employers when evaluating job transfers and potentially other employment actions.

Background

The plaintiff worked in the Attorney General’s office in the District of Columbia for more than two decades as a clerk, Support Enforcement Specialist, and investigator.  She requested several transfers to other units in the Attorney General’s office after complaining that she had a much larger caseload than her comparators.  All of her transfer requests were denied, and she ultimately filed an EEOC charge and a lawsuit in 2014 alleging sex discrimination and retaliation. 

The district court relied on Brown in granting the District of Columbia’s motion for summary judgement.  On appeal, a three-judge panel of the D.C. Circuit upheld the district court’ ruling.  However, two of the three judges highlighted that Title VII does not make any reference to “objectively tangible harm” and requested the full court to further review the matter. 

The D.C. Circuit, in common with many other federal courts, has long imposed this tangible harm requirement articulated in Brown because of the view that Title VII is not a general “civility code” and that employees challenging discriminatory decisions should show more than de minimis harm lest courts be involved in supervising myriad routine business decisions. However, the en banc panel overruled Brown – holding that the refusal of a transfer request for one employee while granting similar requests to a similarly situated co-worker on the basis of a protected trait is discriminatory because it “deprives the employee of a job opportunity.”

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Maryland Joins a Number of States by Enacting a Paid Family and Medical Leave Law

Maryland recently became the tenth state to enact a paid family leave law – joining California, Colorado, Connecticut, Massachusetts, New Jersey, New York, Oregon, Rhode Island and Washington, as well as the District of Columbia and San Francisco.  Although the legislature passed the Maryland Time to Care Act of 2022 by a supermajority vote on March 31, 2022, Governor Hogan opposed the bill and vetoed it on April 8, 2022.  Just one day later, however, the legislature voted to override Governor Hogan’s veto by an overwhelming majority.  

Although the bill will be phased in over the course of the next two-and-a-half years, Maryland employers should pay close attention to the law and the regulations that the Maryland Department of Labor will be implementing within the next year.  To get ahead, employers should proactively make plans to revise their current leave policies and reach out to their HR and payroll providers to ensure that they are prepared to handle the necessary payroll tax contributions.

Effective Dates and Roll-Out of the Act

Similar to how the District of Columbia and other jurisdictions implemented their paid family leave laws, the law will be phased in over the course of several years.  Specifically, the Act establishes a Family and Medical Leave Insurance Fund that will require all employers with 15 or more employees, all employees, and all self-employed individuals that elect to participate in the program to make contributions a fund beginning October 1, 2023.  Notably, employers with less than 15 employees are not required to contribute to the fund, but employees of those small employers will still be required to contribute to the insurance fund.

The contribution rates will be set by the Maryland Secretary of Labor by June 1, 2023.  Covered employees will be eligible to claim and receive benefits approximately a year-and-a-half later on January 1, 2025.   The funding requirements and employer/employee contribution rates will also be periodically reviewed and subject to change based on bi-annual studies and recommendations by the Maryland Secretary of Labor.

Coverage and Qualifying Events under the Act

The Act defines “covered employer” broadly to any person or governmental authority that employs at least one individual in the state of Maryland.  However, there are certain limitations on who is eligible to claim benefits.  Covered individuals – i.e. employees eligible to claim benefits under the Act – are defined as employees who have worked at least 680 hours over the 12-month period immediately before the date that leave is to begin.

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Congress Bans Private Arbitration for Sexual Assault and Harassment Cases

On February 10, 2022, the Senate passed legislation ending the use of forced arbitration in lawsuits involving sexual assault and harassment claims.  The bill – the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act – passed the Senate by a voice vote just days after it passed the House by a vote of 335 to 97.  The legislation is now before President Biden, and it is expected that he will sign the bill soon. 

This law has been in dispute along partisan lines for nearly a decade, as Republican lawmakers had traditionally opposed the legislation.  However, the #MeToo movement, which included claims against some members of Congress in the past, paved the way for lawmakers to find common ground and resolve the partisan gridlock. 

The law will take effect immediately upon President Biden’s signature, and it will apply to any and all claims of sexual assault or harassment, as defined under federal, state, or tribal law, that arise or accrue after its enactment. Employers that currently use arbitration clauses to manage sexual assault and harassment claims should take steps to review and amend their practices accordingly and prepare for the potential that current and past allegations of sexual misconduct will become public.

Employers will be prohibited from implementing policies or contracts that funnel assault and harassment cases into private arbitration – meaning claimants have the right to file lawsuits in federal, state, or tribal court, which is open to the public.  The law also prohibits employers from using joint-action waivers prohibiting class actions. Therefore, parties are now able to collectively file class action lawsuits alleging widespread sexual assault and/or harassment.

The law raises several new considerations for employers about how to manage claims of sexual assault or harassment. The public nature of filing claims in court elevates the risk of reputational harm for employers, as well as increases liability risk due to the potential for a proceeding before a jury.  Due to the elimination of private arbitration for these claims and the increased risks, plaintiffs now have more leverage in settlement negotiations.

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New York City Issues Private Employer Vaccine Mandate

By Dan C. Deacon

For those of you with establishments in New York City, note that this week, Mayor Bill de Blasio and the New York City Commissioner of Health and Mental Hygiene issued a private employer vaccine mandate, and yesterday published this implementation guidance for employers.

The key provisions of the mandate include:

1.  Beginning December 27, 2021, workers must provide proof of vaccination against COVID-19 to a covered entity before entering the workplace, and a covered entity must exclude from the workplace any worker who has not provided such proof, unless they are provided an accommodation for a disability or religious reason.

    • “Covered entity” means:
      • a non-governmental entity that employs more than one worker in New York City or maintains a workplace in New York City; or
      • a self-employed individual or a sole practitioner who works at a workplace or interacts with workers or the public in the course of their business.
    • “Worker” means an individual who works in-person in New York City at a workplace. Worker includes a full- or part-time staff member, employer, employee, intern, volunteer or contractor of a covered entity, as well as a self-employed individual or a sole practitioner.
      • Worker does not include:
        • an individual who works from their own home and whose employment does not involve interacting in-person with co-workers or members of the public;
        • an individual who enters the workplace for a quick and limited purpose (such as to use the bathroom, make a delivery, or clocking in and receiving an assignment before leaving to begin a solitary assignment); or
        • non-City residents who are performing artists, college or professional athletes, or individuals accompanying such performing artists or college or professional athletes who do not have to display proof of vaccination pursuant to the Key to NYC program, Emergency Executive Order No. 316 and successor Orders.
    • “Workplace” means any location, including a vehicle, where work is performed in the presence of another worker or member of the public.
    • “Proof of vaccination” means one of the following documents demonstrating that an individual has (1) been fully vaccinated against COVID-19; (2) received one dose of a single-dose COVID-19 vaccine; or (3) received the first dose of a two dose COVID-19 vaccine, provided that a worker providing proof of only such first dose provides proof of receiving the second dose of that vaccine within 45 days after receiving the first dose:
      • A CDC COVID-19 Vaccination Record Card or other official immunization record from the jurisdiction, city, state, or country where the vaccine was administered, or from a healthcare provider or other approved immunizer who administered the vaccine, that provides the person’s name, vaccine brand, and date of administration. A digital photo or photocopy of such record is also acceptable.
      • New York City COVID Safe App showing a vaccination record;
      • A valid New York State Excelsior Pass/Excelsior Pass Plus;
      • CLEAR Health Pass; or
      • Any other method specified by the Commissioner as sufficient to demonstrate proof of vaccination.

2.  Workers in New York City who perform in-person work or interact with the public in the course of business must show proof they have received at least one dose of a COVID-19 vaccine by December 27th.

        • Workers will then have 45 days to show proof of their second dose (for Pfizer or Moderna vaccines).

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NY State Health Commissioner Designates COVID-19 as a Highly Contagious Disease That Presents Serious Risk, Prompting Employers’ HERO Act Plans to be Activated

By Conn Maciel Carey’s COVID-19 Task Force

On Labor Day, the New York State Commissioner of Health designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to public health.  Under the New York HERO Act, employers must either adopt the New York State Department of Labor’s (“NYDOL”) model prevention plan or develop and establish an alternative prevention plan that equals or exceeds the requirements in the NYDOL’s model plan.

The NYDOL issued the HERO Act Standards and model plan, which set forth the minimum requirements employers must provide to address exposure to airborne infectious diseases in the workplace, on July 7, 2021.  As explained in our prior blog post, those requirements include:

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Pfizer Vaccine’s Full FDA Approval – What Does This Mean for Employers?

Earlier this week, on August 23, 2021, the U.S. Food and Drug Administration fully approved the Pfizer-BioNTech COVID-19 vaccine.   Earlier this year, many employers were hesitant to issue vaccine mandates and expressed concerns about potential legal risks associated with such a mandate since the COVID-19 vaccines were only approved for emergency use.  While the full approval designation may not change the legal landscape as it relates to vaccine mandates, many employers may feel more comfortable imposing such mandates. 

As explained in our prior blog, employers can mandate employee vaccinations under federal law.  The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance several months ago stating that employers generally can mandate COVID-19 vaccinations for employees who physically enter the workplace without running afoul of the federal anti-discrimination laws it enforces.  The U.S. Department of Justice (DOJ) also issued a slip opinion on July 6, 2021, regarding vaccination mandates and the emergency use authorization status of the vaccines:

We conclude that section 564(e)(1)(A)(ii)(III) concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs.

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State COVID-19 Regulations Multiply as Fed. OSHA Declines to Adopt General Industry COVID-19 Regulations

Well over a year after the pandemic began, federal OSHA has declined to adopt a set of COVID-19 regulations for general industry.  Shape,3d,Of,State,Of,New,York,Map,With,FlagJust yesterday, federal OSHA announced that it had “completed” the rulemaking process for the COVID-19 emergency temporary standard, which will only apply to healthcare industry employers.  This long awaited rule is expected to be released later today.  While federal OSHA has been evaluating whether a COVID-19 ETS is even necessary, several states have been aggressive in passing their own workplace safety and health rules related to COVID-19.  Most recently, New York State passed the New York Health and Essential Rights Act (HERO Act), which went into effect just last week on June 4, 2021.  New York State joins a number of states that have promulgated COVID-19 regulations, including California, Virginia, Oregon, Michigan, and, in the near future, Maryland.  In light of federal OSHA’s decision to adopt COVID-19 regulations solely related to the health care industry, several other states may take action to implement their own COVID-19 regulations.  New York State’s HERO Act, however, goes even one step further.  The HERO Act is not solely focused on COVID-19, it addresses any and all airborne infectious diseases.

New York is also the first state in the country to require its Department of Labor to develop “industry-specific” health and safety standards for private sector employers to reduce the risk of airborne illnesses for employees (including but not limited to COVID-19).  New York employers should move quickly to adopt safety and health plans and revise employee handbooks to conform with the Act’s requirements.  Below is an overview of the key provisions of the Act.

Safety Plans

Under Section 1 of the HERO Act, all private employers, of any size, are required to create a written prevention plan of health and safety standards to protect employees from workplace exposure to airborne infectious diseases.  The New York State Department of Labor (NY DOL), in consultation with the Department of Health, was required to publish industry-specific model safety and health plan by June 4, 2021, however that deadline was not met.  As a condition to signing the act, Governor Cuomo secured an agreement with the New York State Legislature to make technical changes to the Act, which included providing the NY DOL and employers more specific instructions in developing and implementing the workplace standards.  The NY DOL indicated that the model plan is currently being drafted, but there is no firm deadline on when that will be issued.

However, the HERO Act does specifically outline what the model standard is required to address, which includes Continue reading

Telemedicine Appointments are Sufficient to Establish a Serious Health Condition for FMLA Leave

On December 29, 2020, the U.S. Department of Labor Wage and Hour Division (WHD) issued Field Assistance Bulletin 2020-8 regarding the use of telemedicine in establishing a “serious health condition” under the Family and Medical Leave Act (FMLA).

Picture1The FMLA provides eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take up to 12 workweeks of leave in a 12-month period for, among other things, a serious health condition that makes the employee unable to perform the essential functions of his or her job, or to care for the employee’s spouse, son, daughter, or parent with a serious health condition. See 29 U.S.C. § 2612(a)(1)(C)-(D); 29 CFR § 825.112(a)(3)-(4).

Under the FMLA, a “serious health condition” is an “illness, injury, impairment, or physical or mental condition that involves” either: (1) “inpatient care,” such as an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care; or (2) “continuing treatment by a health care provider.” The FMLA regulations define the term “treatment” to include “examinations to determine if a serious health condition exists and evaluations of the condition.” The regulations also provide that “[t]reatment by a health care provider means an in-person visit to a health care provider.”  The “in-person visit” requirement Continue reading

Is Federal Marijuana Reform on the Horizon?

Fifty years after the Controlled Substances Act was passed and marijuana was deemed illegal under federal law, the legality of marijuana is finally being addressed by Congress, as the U.S. House of Representatives is scheduled to vote this month on a bill that seeks to end the federal law that prohibits marijuana use – a vote on the most comprehensive marijuana reform legislation in U.S. history that could have sweeping implications.

Specifically, the Marijuana Opportunity Reinvestment and Expungement Act (aka the “MORE Act”) intends to de-schedule cannabis from the list of Schedule I controlled substances under the Controlled Substances Act.  The Act also intends to expunge many convictions, tax cannabis sales at 5%, invest in grant programs with a heavy focus on social equity, and provide cannabis businesses access to Small Business Administration loans.

The vote in the House arrives roughly a month after five states — New Jersey, Arizona, Montana, South Dakota and Mississippi — voted on Election Day to legalize recreational or medical cannabis. Cannabis is already legal, to some degree, in most U.S. states, and the support for reform is only increasing.  Notably, every single marijuana reform measure placed on state ballots in 2020 passed, representing a continuation of the state-level reform movement that has consistently expanded in election after election.  As we move into 2021, medical marijuana is now legal in 34 states and the District of Columbia and recreational marijuana is legal in 15 states and the District of Columbia. Staunch activism for marijuana reform also continues to grow in several other states where legislation is expected to be introduced within the next year, including New York, New Mexico, Rhode Island, Missouri, North Dakota, and Florida.

While the MORE Act is expected to pass the House with some bipartisan support, it remains unlikely that Continue reading

Key Employment Considerations When Resuming or Increasing Business Operations

shutterstock_532208329Many states are beginning to re-open their economies, and employers are resuming or increasing business operations in some fashion.  As employers make this transition, there are several key employment considerations that employers should pay close attention to.  Below is an overview of some of the topics employers should carefully analyze when reopening or increasing business operations.

  1. Exempt and Non-Exempt Employee Classification Issues

As employers begin to ramp up business or begin plans to do so, employers should carefully evaluate whether exempt employees performing a majority of work on non-exempt tasks still meet the administrative exemption Continue reading