Dear Friends and Clients:
Although another year of headlines dominated by Covid has finally ended, the effects of the virus on our lives, and on how we work, aren’t going away any time soon. Working from home, once a rarity, is now commonplace; paid sick time is increasingly important as employers try to keep infected employees out of the office; and mandatory vaccines have become a necessity at many workplaces and a source of strife.
But Covid was not the only employment news in 2021. While the pandemic will continue to have a huge impact, the American workplace will also be affected by changes in the interpretation of existing laws, new rules announced by the Biden administration, and important decisions in the Michigan Supreme Court and the U.S. Supreme Court.
Gwinn Legal has compiled a summary of some of these legal issues to help your business stay on top of events as we head into what could be a rough winter. We’re back to work in our new office (across the street from our former location) and remain committed to helping our clients in any way we can. Contact us if we can be of service.
Remote Work Continues
According to a Gallup survey in September, nearly half of full-time employees, and two-thirds of those in white-collar jobs were still working remotely, at least part time. As the omicron variant takes off, many employers have postponed plans to return to the office. That’s good news for many employees: Another survey found that 60 percent of those who worked from home wanted a blend of one to four days per week at the office, and 30 percent never want to return to the office at all.
Where employees have worked successfully from home, it will be increasingly difficult to make a case for their return to the office. Employers whose workers are unwilling to return might consider adopting a hybrid work plan as a compromise to avoid a forced return that could damage morale. As employers realized last year, it is hard to argue against remote work as an ADA (or other) accommodation if an employee worked successfully from home for most of 2020 and 2021.
Vaccine Mandates and Incentives
After a stay, President Joe Biden’s Covid-19 vaccine mandates for federal contractors, health care workers and private sector employees of firms with more than 100 workers are on again and their legality should be decided, once and for all, by the end of January.
The vaccine mandates, promulgated as an emergency OSHA rule, were put on hold in November by the Fifth Circuit court in New Orleans, but were reinstated on December 17 by a panel of the Sixth Circuit Court in Cincinnati. The U.S. Supreme Court has promised to hold a special hearing on January 7 to decide the issue.
Employers scrambling to ensure all employees are vaccinated by the January 4, 2022 deadline have been given a respite: The Department of Labor extended the deadline to February 9. Under the OSHA rule, businesses with at least 100 employees must ensure that their workers are fully vaccinated — two doses of Pfizer or Moderna or one dose of the Johnson & Johnson vaccine (although that vaccine is no longer recommended) — by the new deadline. Unvaccinated employees must be masked while in the workplace. Employees who choose not to receive a vaccine will be required to get tested for Covid-19 once a week. Employers are not required to cover the cost, if any, of the test.
Employers, whether subject to the OSHA mandate or not, must bear in mind that mandates are unpopular with many workers and be prepared to eliminate employee objections. Small businesses, especially those with a low-wage workforce, may want to try offering employees an incentive to get the shot before considering a mandate. If an incentive is not successful, a disincentive — like an increase in insurance premiums for the unvaccinated — could be attempted. Before implementing a mandate, according to the Harvard Business Review, employers should consider the following criteria:
- Evaluate the risk of workplace spread.
- Assess the impact of a mandate on their ability to retain workers (workers in health-related industries may find it harder to avoid a mandate by jumping ship, and may elect to stay put and have the shot).
- Calculate the economic impact of a mandate (vaccination leads to reduced cases of Covid-19, lower medical costs, but employer will have to cover administrative costs for ensuring the mandate is followed).
- Develop straightforward policies to make the mandate easy to implement, including the criteria for an exemption.
- Address liability concerns upfront (using a third-party off-site provider may reduce employer’s risk.).
- Evaluate the impact of the mandate and be ready to modify if necessary.
A study by the Kaiser Family Foundation found that when workers were given paid time off to get the vaccine and allowed paid time off to recover (without a reduction in their regular PTO hours), they were more likely to get the vaccine. Unfortunately, employers can no longer receive payroll tax credits through the American Rescue Plan Act. Those credits expired in September 2021.
Any employer adopting a vaccine mandate, should allow an exemption for those who are unable to take the vaccine for medical reasons, or due to bona fide religious objections. Employers should allow an accommodation, such as remote work or a combination of masking, social distancing and testing requirements for the unvaccinated.
Covid-19 ‘Long-Haulers’ May Be Viewed as Disabled under ADA
By the end of December 2021, more than 53 million Americans had tested positive for Covid and 821,000 had died. According to a 2021 analysis by the CDC, roughly 5% of those who contracted Covid but were asymptomatic or had mild symptoms (and were not hospitalized) developed what is known as “Long Covid.” The figures were higher for those with more severe symptoms: Up to 80 percent of hospitalized Covid-19 patients develop Long Covid. Symptoms of Long Covid, which can last for months or even a year or more, include fatigue, shortness of breath or difficulty breathing, joint pain, chest pain, trouble sleeping, difficulty concentrating, memory problems, muscle pain or headache, a fast heartbeat, and loss of smell or taste. In the worst cases, damage to the heart and lungs from the original illness may be permanent. Whether the omicron variant results in similar long-term effects is unknown.
Under guidance from the Department of Justice and the Equal Opportunity Employment Commission, an employer with at least 15 employees may be required to provide protection under the ADA to workers who suffer from Long Covid, including the duty to engage in the interactive process to determine if there is a reasonable accommodation that might permit the employee to keep working. Michigan has a similar statute — the Persons with Disabilities Civil Rights Act — that protects workers where the employer has one or more employees on the payroll.
Several courts have found that contracting Covid-19 can itself be a disability; at least one federal court favorably cited the DOJ guidelines on Long Covid. In addition, several courts have held that an underlying condition like high blood pressure or asthma may amount to a disability for purposes of the ADA when coupled with the risk of contracting Covid.
As noted above, it will be difficult for many employers to claim that remote work is an unreasonable accommodation that will cause undue hardship.
Rules Defining Joint Employer and Contract Worker Reversed — Again
Administrative Rules revised by the Department of Labor in the Trump Administration have been rescinded or withdrawn by the DOL in the Biden Administration. The changes reverse rules that would have made it easier for employers to avoid being viewed as “joint” — and jointly liable for violations of the Fair Labor Standards Act — and easier for employers to classify employees as independent contractors. The rescission of the Joint Employer rule went into effect October 5. The Independent Contractor Rule was withdrawn May 6.
Part I — Michigan Supreme Court to Decide Whether Prohibition Against Discrimination ‘Because of Sex’ Bars Discrimination on the Basis of Gender Orientation or Identity
The U.S. Supreme Court held in 2020 that discrimination “because of sex” under Title VII of the federal Civil Rights Act necessarily includes discrimination because of sexual orientation or gender identity, Bostock v Clayton County. Since then, Michigan’s Department of Civil Rights has followed the federal definition in cases brought under Michigan’s Elliott-Larsen Civil Rights Act. That practice was challenged in 2020 and partially upheld in the Court of Claims, which ruled “because of sex” protects against discrimination based on gender identity, but not against employment discrimination based on sexual orientation. That decision, and the law on which it is based, is now being challenged in Michigan’s Supreme Court.
The case, Rouch World v Department of Civil Rights, could have a big impact on small employers. Title VII of the federal law applies only to businesses with at least 15 workers; Michigan’s law, while similar to its federal counterpart, applies to businesses with as few as one employee as well as to places of public accommodation. Rouch World, which involves owners of a wedding venue who refused to host a same-sex wedding, may be heard early next year. Briefs in support of Rouch World or the MDCR have been filed by organizations as disparate as the ACLU, the Michigan Catholic Conference and a consortium of Michigan businesses, organizations and chambers of commerce. Gwinn Legal filed a brief in the case supporting the MDCR and the analysis under Bostock on behalf of a client.
Part II — HUD Embraces ‘Bostock’: Gender Orientation or Identity Discrimination Prohibited Under the Fair Housing Act
Michigan may not have decided the issue, but it’s pretty much a done deal at HUD. The U.S. Department of Housing and Urban Development says the Supreme Court’s decision in Bostock should apply to sex discrimination under the Fair Housing Act. In a February 11, 2021, Memorandum, HUD said the sex discrimination provisions of the FHA are comparable to those of Title VII; HUD’s Office of Fair Housing and Equal Opportunity was directed to enforce the FHA to prohibit discrimination because of sexual orientation and gender identity.
In Other Fair Housing Act News, on October 15, 2021, a federal jury in Connecticut awarded nearly $5.2 million in punitive damages against the town of Cromwell for discriminating against people with mental disabilities. After a nonprofit agency announced plans to open a home for six adults with disabilities in a residential neighborhood — a use allowed by right — residents of the town and its officials united in public opposition to the home. This resistance included not only pubic statements against the home, but even attempts to cut off state funding for the nonprofit. The nonprofit received almost $200,000 in compensatory damages in addition to the punitive award. The case is Gilead Community Services v Town of Cromwell.
Nix the Noncompetes
In an Executive Order issued in July, President Biden established a “whole of government” effort to address “overconcentration, monopolization, and unfair competition in the American economy.” Non-compete agreements that “restrict [workers’] ability to change jobs” were singled out for disfavor, and the FTC was encouraged to curtail the unfair use of non-compete clauses. A fact sheet describing the background for the Executive Order stated initiatives would ban or limit non-compete agreements, as well as “unnecessary, cumbersome occupational licensing requirements that impede economic mobility.”
The EO did not ban non-compete agreements, but employers should think twice before using them, especially for low-level, low-skill jobs, as it just became more likely that such non-compete agreements will be found unenforceable.
Testing for Marijuana Becomes a Tricky Question
Since November 2018, when Michigan voters approved the ballot proposal that became the “Regulation and Taxation of Marihuana Act,” marijuana has been legal for recreational use and sale. Despite marijuana’s new status, employers are still allowed to discipline or discharge a worker for testing positive for marijuana. The questions for employers now are whether they should take adverse actions against workers who test positive, and even whether they should use drug tests at all.
When deciding this issue, employers should consider the impact of refusing to hire or of disciplining those who test positive for marijuana on their business: Will taking a harder line against pot reduce the pool of eligible employees when workers are already in short supply? Will discharging employees who test positive put the employer on the hook for unemployment benefits (as in Braska v Challenge Mfg Co, a case that involved a worker’s use of medical marijuana)? If the employer receives federal funding, will failing to test, or allowing a worker who tests positive for pot to stay on the job, put that funding at risk? Should drug tests only be used where an employer has a “reasonable suspicion” that a worker is impaired while on the job? (The term “reasonable suspicion” must be defined carefully, and applied consistently.)
Employers who work under a federal contract, or receive federal funds, are still required to test for marijuana under federal guidelines that still classify marijuana as an illegal Class I Narcotic.
Facets of Employment Law under U.S. Supreme Court Review in 2022
In addition to vaccine mandates, the Supreme Court will consider administrative fees for employee retirement plans and how much deference should be given to Agency opinions. If the court rules against the Department of Health and Human Services in the case — American Hospital Association v Becerra — and finds that courts no longer need to defer to federal agencies’ legal interpretations, it could make it easier for businesses to challenge guidance and rules from the Department of Labor and other agencies that enforce employment laws.
Another question facing the SCOTUS this year is whether airlines should apply the wage laws in the states in which flight attendants are based, even though the attendants spend most of their working hours in the air. The case could have implications for other employers whose workers spend most of their working hours away from their employer’s home state.
We wish you a prosperous and healthy 2022! Please call us if we can be of assistance.
Very truly yours,
GWINN LEGAL PLLC
Daniel A. Gwinn firstname.lastname@example.org
Laura Bradshaw-Tucker email@example.com
Attorney and Counselor at Law
GWINN LEGAL PLLC
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0311 facsimile
 This newsletter is for informational purposes only and is not a substitute for legal advice, nor does it establish an attorney-client relationship. Call us for professional recommendations regarding your specific situation. Laws and regulations are subject to change. This newsletter is available in electronic form — with hyperlinks to the cases and facts mentioned — on our website, gwinnlegal.com.