Religious and Disability Accommodations in Response to COVID-19 Mandates [Webinar Recordings]

On Thursday, April 7, 2022, Andrew J. Sommer and Lindsay A. DiSalvo presented a webinar regarding Religious and Disability Accommodations in Response to COVID-19 Mandates.

Employee requests for medical and/or religious accommodations in the workplace are not new. However, never before have these accommodation requests been such a hot-button topic, nor have these accommodation requests been used so frequently (and in particular, religious accommodation requests). The imposition of COVID-19 vaccine mandates has changed that, particularly with regard to religious accommodation requests, which has become the ultimate “gray area,” as both employers and employees alike have learned that sincerely held religious belief can include an employee’s religious-based objection to vaccinations. As a result, the Equal Employment Opportunity Commission (“EEOC”) has issued guidance regarding the obligations of employers under Title VII when an employee presents with a religious objection to a mandatory COVID-19 vaccination policy, which actually builds upon prior EEOC guidance regarding COVID-19 vaccinations in the employment context. Thus, there are multiple issues that employers need to keep in mind and juggle when addressing these vaccination accommodation requests.

Participants in this webinar learned how to best deal with such requests by their employees, including: Continue reading

Conn Maciel Carey’s 2022 Labor and Employment Webinar Series

2022 LE Webinar Series

Announcing Conn Maciel Carey’s 2022 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As we enter Year 2 of President Biden’s Administration, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.

​Conn Maciel Carey’s complimentary 2022 Labor and Employment Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by attorneys in the firm’s national Labor and Employment Practice, will focus on a host of the most challenging and timely issues facing employers, examining past trends and looking ahead at the issues most likely to arise.

To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2022 series, click here to send us an email request, and we will register you.  If you missed any of our programs from the past seven years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars. 

2022 Labor and Employment Webinar Series – Program Schedule

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Employment Law Implications of the OSHA ETS: Paying for COVID-19 Testing

By Conn Maciel Carey’s COVID-19 Taskforce

As the OSHA COVID-19 Vaccination and Testing emergency temporary standard (“ETS”) works its way through the courts in pending legal challenges, employers are still scrambling to position themselves in the event the ETS goes back into effect.  (Review our Employer Defense Report and OSHA Defense Report for full background on the ETS and the most recent updates on its current status.)  A key issue to consider is the cost of testing.

Background

Should the ETS go back into effect, employers with 100 or more employees must implement a program to facilitate (1) a COVID-19 vaccination requirement for all employees (known as a “hard mandate”) or (2) a combination of a COVID-19 vaccination requirement and weekly testing, plus face covering requirement, for those employees who choose not to get vaccinated (known as a “soft mandate”).  Under this soft-vaccine mandate, an employee may only report to the workplace after demonstrating either: proof of being fully vaccinated; or for employees who do not get vaccinated or decline to share their vaccination status, proof of a negative COVID-19 test result from within the last week.  Employees who are not fully vaccinated must also wear face coverings when indoors and when occupying a vehicle with another person for work purposes.

Under the ETS, a COVID-19 test must be: Continue reading

The State of the Law Regarding Marijuana, Drug Testing and Background Checks [Webinar Recording]

On July 13, 2021, Dan Deacon, Aaron Gelb, and Ashley D. Mitchell presented a webinar regarding “The State of the Law Regarding Marijuana, Drug Testing and Background Checks”.

CaptureThe green wave continued to roll through America during 2020, as several new jurisdictions legalized marijuana in some form. However, new regulatory developments regarding medical and recreational marijuana have created a host of compliance concerns for employers. 35 states and the District of Columbia have passed legislation giving medical marijuana usage the green light. Fifteen states and the District of Columbia have legalized recreational marijuana. Several states have also enacted laws making the possession of small amounts of the drug a civil, not criminal, offense. Although marijuana is currently still illegal under federal law, for the first time in fifty years, a bill was introduced in the U.S. House of Representatives to remove marijuana from the Schedule I controlled substances list in the Controlled Substances Act. In sum, it seems to be only a matter of time before marijuana is legalized in some form throughout the entire country.

This webinar explored the changing legal landscape concerning marijuana, analyzed potential issues related to zero-tolerance policies, and reviewed tips for developing effective drug testing and background check policies. More specifically, participants learned: Continue reading

EEOC Updates COVID-19 Vaccination Guidance

By Conn Maciel Carey’s COVID-19 Task Force

Last week, Conn Maciel Carey posted a blog article about How to Navigate the Thorny Legal Landscape Around Employee Vaccination Status.  One of the observation in that article was that we were all on the edge of our seats waiting for the EEOC to issue promised guidance about employer incentives and mandates about the COVID-19 vaccination.  On Friday, the EEOC finally issued much-anticipated updated FAQs about the legal landscape of various employer vaccinations policies.

Here is a summary of the vaccine section of the guidance:

May employers ask employees about vaccination status under federal law?  See FAQs K9, K5, K15, K16, K18, K19

  • Yes – does not violate ADA or GINA.
  • However, employer should not ask “why” an employee is unvaccinated, as this could compel the employee to reveal disability information that is protected under the ADA and/or GINA.
  • Recommended practice: If employer requires documentation or other confirmation of vaccination, “notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.”

Is vaccination information “confidential” under the ADA?  See FAQ K4

  • Yes, this includes documentation (i.e., the white vaccination card)  or “other confirmation” of vaccination, which we presume means any self-attestation form or email from the employee, as well as any record, matrix, spreadsheet, or checklist created by the employer after viewing employees’ vaccination cards or receiving a verbal confirmations from employees.
  • The records or information must be kept confidential and stored separately from employee personnel files.

How may employers encourage employees and family members to get vaccinated?  See FAQ K3 Continue reading

ADA Website Compliance Issues – Best Strategies for Employers [Webinar Recording]

On Tuesday, May 18, 2021, Jordan B. Schwartz and Megan S. Shaked presented a webinar regarding ADA Website Compliance Issues – Best Strategies for Employers.

CaptureThe pandemic has not decreased the number of lawsuits filed against businesses, hotels, and other places of public accommodation alleging violations of the Americans with Disabilities Act (“ADA”). Indeed, dozens of lawsuits continue to be filed daily against hotels for their failure to identify and describe accessible features at their properties in sufficient detail on their websites. In a relatively new twist, many of these lawsuits now also allege that hotels are fully liable for the failure of Online Travel Agencies such as Orbitz or Expedia to provide information on their website about the accessible amenities of the hotel, including its guestrooms, or to allow an individual with a disability to book an accessible guestroom.

While many ADA lawsuits also continue to be filed alleging that hotel websites cannot be used by individuals with visual or hearing impairments, there is positive news in that regard, Continue reading

[Webinar] ADA Website Compliance Issues – Best Strategies for Employers

On Tuesday, May 18, 2021 at 1:00 p.m. EST, join Jordan B. Schwartz and Megan S. Shaked for a webinar regarding ADA Website Compliance Issues – Best Strategies for Employers.

CaptureThe pandemic has not decreased the number of lawsuits filed against businesses, hotels, and other places of public accommodation alleging violations of the Americans with Disabilities Act (“ADA”). Indeed, dozens of lawsuits continue to be filed daily against hotels for their failure to identify and describe accessible features at their properties in sufficient detail on their websites. In a relatively new twist, many of these lawsuits now also allege that hotels are fully liable for the failure of Online Travel Agencies such as Orbitz or Expedia to provide information on their website about the accessible amenities of the hotel, including its guestrooms, or to allow an individual with a disability to book an accessible guestroom.

While many ADA lawsuits also continue to be filed alleging that hotel websites cannot be used by individuals with visual or hearing impairments, there is positive news in that regard, as a recent business-friendly ruling out of the Eleventh Circuit Court of Appeals may make it more difficult for plaintiffs to bring claims against companies for inaccessible websites. That being said, this ruling conflicts with rulings from other circuits that reach the opposite conclusion and thus, a supreme court review of this issue may be brewing. Regardless, it remains important that businesses ensure the accessibility of their websites while also providing an appropriate “accessibility statement” explaining to users the steps you have taken to improve your website’s accessibility.

Unfortunately, there is no sign that ADA lawsuits are slowing down. On the contrary, serial plaintiffs continue to file dozens of these lawsuits each and every day. This presentation will present practical tips and cost-effective strategies for managing the risk of ADA-related litigation in this ever-evolving area of the law.

Participants in this webinar will learn:

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Court Concludes That A Business’s Website Does Not Need To Comply With The ADA

New,Technologies,,A,Side,View,Of,An,Open,Laptop,,MillennialsWe have been blogging for more than five years about the rising litigation threat over website accessibility, and the surrounding confusion about what type of compliance, if any, is required.  In our initial blog post on this topic in January 2016, we stated that the question as to whether a business’s website and mobile app needed to be accessible with the Americans with Disabilities Act (“ADA”) had no definitive answer at that time because (i) although Title III of the ADA prohibits discrimination against individuals on the basis of disability with regard to their participation and equal enjoyment in places of public accommodation, the statute did not explicitly define whether a place of public accommodation must be a physical place or facility; (ii) there were no regulations from the Department of Justice (“DOJ”) (the federal agency that enforces Title III of the ADA) regarding website accessibility and without applicable regulations, it was unclear how a court would address a lawsuit over website accessibility; and (iii) adding to this uncertainty, the DOJ had emphasized that, despite the lack of regulations, businesses should make websites accessible to the disabled, and relied on a set of guidelines called the Web Content Accessibility Guidelines (“WCAG”).

Five years later, this question still has no definitive answer.  And, the DOJ still has yet to promulgate regulations regarding businesses’ obligations to make websites accessible to individuals with visual and hearing impairments.  In April, however, an extremely positive development occurred for businesses when, in the matter of Gil v. Winn-Dixie Stores Inc., the Eleventh Circuit Court of Appeals (which covers Florida, Georgia, and Alabama) held that websites are NOT places of public accommodation and thus are NOT covered by Title III of the ADA.

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[Webinar] Delaying Retirement: Impact of America’s Aging Workforce on OSHA and Employment Matters

On Wednesday, December 16th at 1:00 PM ET, join Lindsay A. DiSalvo and Ashley D. Mitchell for a webinarCapture regarding Delaying Retirement: Impact of America’s Aging Workforce on OSHA and Employment Matters

The single biggest factor affecting safety and health in America’s workplaces today is our aging workforce. Older workers offer valuable experience and job knowledge, but with that comes an increased risk of serious workplace injuries due to physiological changes affecting flexibility, strength, vision, hearing, and balance. Although older workers experience fewer total injuries than their junior counterparts, the injuries they do have tend to be more severe and require longer recovery times. With more than 30 million workers 55 years or older expected to be in the U.S. labor force by 2025, and huge numbers of workers remaining in the workforce well past traditional retirement age, employers face unique challenges in keeping employees safe and healthy and complying with a host of state and federal laws.

This webinar will review the realities of our nation’s aging workforce and how employers must carefully address these realities without running afoul of OSHA regulations and federal and state anti-discrimination laws, such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Americans With Disabilities Act.

Participants in this webinar will learn about: Continue reading

What You Should Know About COVID-19, the Americans with Disabilities Act, and the Age Discrimination in Employment Act

As the U.S. enters month seven of the COVID-19 pandemic, employers continue to grapple with how to keep employees safe without violating the rights of employees protected by the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”). The Centers for Disease Control and Prevention (“CDC”) has issued guidance to slow the spread of COVID-19 in the workplace encouraging employers to: (1) actively encourage sick employees to stay home; (2) conduct daily in person health checks such as temperature and symptom screenings; and (3) ensure that workers are able to follow social distancing guidelines as much as practicable and encouraging employees to wear face masks where social distancing is not possible. Employers should remain vigilant against enacting policies meant to keep employees safe but have a disparate impact on employees in a protected class.

The Americans with Disabilities Act

The Americans with Disabilities Act (“ADA”) prohibits employers with 15 or more employees from discriminating against job applicants and/or employees with disabilities. If a job applicant or employee has a disability and requests an accommodation, employers must engage in an interactive process and are required to provide a reasonable accommodation to the extent it does not cause the employer undue hardship.

In the context of COVID-19, employers may screen employees entering the workplace for COVID-19 symptoms consistent with CDC guidance. For example, an employer may: (1) ask questions about COVID-19 diagnosis or testing, COVID-19 symptoms, and exposure to anyone with COVID-19 (but employers should be sure the question is broad and does not ask employees about specific family members so as not to run afoul of the Genetic Information Nondiscrimination Act (“GINA”)); (2) take an employee’s temperature; and (3) administer COVID-19 viral tests (but not anti-body tests). If an employee is screened and has symptoms that the CDC has identified as consistent with COVID-19, the employer may – and indeed, should – exclude the employee from the workplace. It is also okay – and again, advisable – for an employer to send an employee home who reports feeling ill during the workday.

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