How to Handle Religious Accommodations and Vaccine Mandates

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There are numerous factors to consider if you are asked to provide a religious accommodation in response to a vaccine mandate.

I am getting swamped with calls wanting to discuss religious objections to vaccine mandates.  I’ve written about President Biden’s vaccine mandate here (Mandate Announcement) here (12/8 Deadline) and here (FAR Clause for Vaccine).  Government contractors have deadlines for vaccine compliance that are rapidly approaching.  Additionally, many private employers are rolling-out vaccine policies in advance of anticipated OSHA requirements.  Nevertheless, many employees don’t want to get vaccinated.  And, thanks to the internet, I’m seeing a lot of “cut and paste” religious objections to the vaccine.

For the sake of my clients, I’m not going to re-publish those objections.  But, many people seem to have the same beliefs regarding vaccines.  Presumably, those employees have read that there are two primary, legal avenues for trying to avoid the vaccine:  (1) the Americans with Disabilities Act; and, (2) Title VII of the Civil Rights Act of 1964.  Title VII prohibits discrimination against individuals because of their “sincerely held religious beliefs.”  As I understand the literature, there are few medical reasons for avoiding the vaccine.  As a result, I am not seeing many requests for ADA accommodations.  Instead, presumably because of the subjectivity of whether a belief is “religious” and/or “sincerely held,” I am seeing many more requests for religious accommodation.

At least for federal contractors, the Safer Federal Workforce Task Force has recognized that employees are entitled to religious accommodations:   “A covered contractor may be required to provide an accommodation to covered contractor employees who communicate to the covered contractor that they are not vaccinated against COVID-19 because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance.”  (The guidance is found here:  Guidance for Federal Contractors.)  But, when asked to provide details on reviewing religious accommodation requests, the Task Force punted:

Q4:   Who is responsible for determining if a covered contractor employee must be provided an accommodation because of a disability or because of a sincerely held religious belief, practice, or observance?

A:   A covered contractor may be required to provide an accommodation to contractor employees who communicate to the covered contractor that they are not vaccinated for COVID-19, or that they cannot wear a mask, because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance. A covered contractor should review and consider what, if any, accommodation it must offer. The contractor is responsible for considering, and dispositioning, such requests for accommodations regardless of the covered contractor employee’s place of performance. If the agency that is the party to the covered contract is a “joint employer” for purposes of compliance with the Rehabilitation Act and Title VII of the Civil Rights Act, both the agency and the covered contractor should review and consider what, if any, accommodation they must offer.

So, we know that employers are required to give accommodations.  Well, what is the process for giving an accommodation? Generally, there are two steps.

I.  DETERMINE IF A RELGIOUS BELIEF IS SINCERELY HELD

Historically, the United States Equal Employment Opportunity Commission has taken a liberal stance on this issue.  Here is a link to their guidance on religious discrimination:  EEOC: Religious Discrimination.  Generally, they don’t want employers second-guessing beliefs:

Because the definition of religion is broad and protects beliefs, observances, and practices with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, observance, or practice, the employer would be justified in seeking additional supporting information.

The EEOC has not provided any updated guidance on requests for accommodation in relation to vaccine mandates. As a result, employers are left to muddle-through without clear direction.  I don’t think there is a “right” or “wrong” way to approach this issue.  Instead, I think there is  sliding-scale of risk that each employer should review before determining if a belief is sincerely-held:

  1.   Take the employee’s word for it.  If an employee says he/she has a religious objection, an employer could just say:   “Ok.”  This is the easiest way to avoid a potential discrimination claim from the employee.  But, for federal contractors, I sincerely doubt that the federal government would accept this approach if vaccine compliance is audited.
  2. Get an attestation of truthfulness.  One step beyond taking the employee’s word is getting them to swear to the truthfulness of their beliefs.  Under this approach, the employee would sign a statement swearing or attesting under penalty of perjury that their statement of religious belief is true and correct.  This approach probably complies with the EEOC’s desire to avoid second-guessing.  It also would provide documentation to the federal government in the event of an audit.  Any documentation related to the accommodation process should be kept in a file separate from the employee’s regular personnel file.
  3. Ask some questions about the belief.  Does a “cut and paste” religious statement create an “objective basis for questioning either the religious nature or the sincerity of a particular belief” as recognized by the EEOC’s guidance?  Maybe.  Some employers are asking a few questions about the nature of an employee’s belief.  Can you provide any scripture to support your belief?  Can you provide a spiritual advisor that we can talk to who supports your belief?  The more questions you ask, the more danger that you run afoul of Title VII.  But, you probably get more cover in the event of a federal audit of vaccine compliance.
  4. Ask a bunch of questions about the belief.  One of the primary objections to vaccines is the claim that they were developed from fetal cells — implicating objections to abortion.  Some employers who are less risk-avers are providing employees with a list of  other medications developed from fetal cells and asking employees to affirm that they will not use those medications.  If you are going to question the sincerity of belief, the EEOC’s guidance says that the following are factors that could be considered:  “whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.”
  5. Determine that the belief is not sincerely held.  This is the most-aggressive stance, because it opens you up to claims of religious discrimination under Title VII.  If you are going to determine that a belief is not sincerely held, be prepared to explain why you came to that conclusion and have documentation of your decision.

II.   ENGAGE IN THE ACCOMMODATION PROCESS

A sincerely-held religious belief is not a “get out of jail free” card.  Employees don’t get to saunter around the workplace, consequence-free, because they have an objection.  Instead, Title VII merely requires an accommodation of a sincerely-held belief.  For federal contractor employees, unvaccinated employees must be masked in the workplace and in federal facilities.  Other accommodations designed to honor a belief, while also protecting co-employees, could include:  weekly COVID-19 testing; changing work locations to increase distance from other employees;  reassignment to another vacant and available position; telework; unpaid leave; or, a combination of options.

In some circumstances, it might not be possible to accommodate a religious belief.  Typically, this occurs where the only accommodation requested or available imposes an “undue hardship” on the employer.  The “undue hardship” standard is different from the “undue burden” analysis that sometimes occurs in disability accommodation cases.  An undue hardship is one that causes “more than a de minimis cost” to an employer.  But, the cost is not just monetary.  Instead, an undue hardship can be judged by the general burden on the conduct of an employer’s business.  The EEOC’s guidance recognizes that undue hardship can arise where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.

 

When it comes to requests for a religious accommodation, I cannot emphasize the following point enough:  GO SLOW.  Determine your risk level.  Review the applicable facts of each case. Decide if accommodations can be made.  And, document, document, document.  Obviously, the assistance of a good employment lawyer is invaluable in that process.

 

 

 

Feds Issue FAR Clause to Enforce Vaccine Mandate

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A new clause to the FAR and DEFARS will require contractor compliance with the Biden Administration’s vaccine mandate.

Somebody needs to tell the federal government that this is football season.  While I was driving to Tuscaloosa for the Alabama-Ole Miss football game, the Department of Defense, FAR Council and GSA issued a FAR deviation clause to assist in enforcement of President Biden’s vaccine mandate.  Here are the big takeaways.

  1. Comply with the Safer Federal Work Force Task Force Guidance.  President Biden’s executive order required development of a Federal Acquisition Regulation (“FAR”) clause to implement the vaccine mandate.  The FAR Council released that clause at FAR 52.223-99.  Most significantly, the clause says contractors “shall comply with all guidance, including guidance conveyed through Frequently Asked Questions, as amended during the performance of this contract, for contractor or subcontractor workplace locations published by the Safe Federal Workforce Task Force (Task Force Guidance) at https:/www.saferfederalworkforce.gov/contractors.”  Here is the link to the FAR Council guidance:  FAR Council Guidance.  The Department of Defense language, found in DFARS Clause 252.223-7999, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (Deviation 2021-O0009), is virtually identical. The emphasized language  is crucial because it means that contractors must comply with future guidance issued by the Task Force.
  2. Get ready for modifications to existing contracts.  The Department of Defense Guidance (found here: DOD) and the GSA Guidance (found here: GSA) each discuss bilateral modification of existing contracts.  Moreover, when the Department of the Navy sent this guidance in an e-mail to one of my clients, it included the following statement: “This clause will be added to nearly all solicitations and new and existing contracts.” (emphasis added).  This strongly suggests that existing contracts will be modified to include the vaccine mandate.  Contractors should be prepared to negotiate any increased costs incurred because of the mandate.
  3. GSA: Look for modifications before November 14, 2021.  GSA contracting officers are supposed to “complete as many modifications as possible by November 14, 2021.”  For IDIQ contracts, if a modification is not returned by November 14, contracting officers can take “interim actions” including “temporarily hiding contractor information on GSA websites and/or e-tools” and “Flagging contractors that have not accepted the modification.”
  4. December 8, 2021 looks like a “real” date.  When the Safer Federal Workforce Task Force issued its guidance, I gave my initial thoughts here:  Blog on Mandate.  My initial thought was that many contractors would have a grace period of sorts to get employees vaccinated.  This was because the mandate only applied to new contracts, solicitations or options.  I thought contractors might have some additional time because many contracts would not come up for renewal/option for months.  The emphasis on modifications suggests that employers need to prepare for December 8.
  5. November 24, 2021 is the last date for the shot.  The government isn’t cutting contractors any slack.  The Department of the Navy’s e-mail started with this BLUF (“Bottom Line Up Front”):  “For your planning and action purposes, the current guidance is that all covered Federal support contractor personnel will be required to be fully vaccinated by 08 December 2021.   This means that by 08 December 2021 covered Federal support contractors must be at least two weeks past the second shot of a two-shot vaccine, or two weeks past the first shot of a one-shot vaccine.”  In short, the last day for your employees to get the shot is November 24, 2021.
  6. What about employees who can’t get the vaccine because they recently had COVID?  We have no direct guidance on this issue.  Nevertheless, the CDC says that people can get the vaccine after their quarantine/isolation period ends:  CDC FAQs.  The CDC also explicitly says that people should wait 90 days to get vaccinated if they received monoclonal antibodies during their COVID treatment.  If an employees must delay a vaccination for health reasons, I am advising employers to document the reason for delay (keeping that documentation confidential and separate from personnel files) and claim a temporary exemption for health reasons.

We still have received no guidance on the enforcement process for the vaccine mandate.  I will keep you updated as a I learn more.

Federal Contractors Must Be Vaccinated by December 8, 2021

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New guidance was just issued imposing a December 8, 2021 deadline for federal contractors to get vaccinated.

By now, most employers know that President Biden announced a national vaccine mandate for COVID-19.  I wrote about his mandate and executive orders on September 9 here:  President Biden Implements Vaccine Mandate  One of President Biden’s orders directed the Federal Safer Workforce Task Force to develop guidance for federal contractor employees to get vaccinated.  Today, the Task Force released that guidance, which can be found here:  Guidance for Federal Contractors.

There is a lot to unpack in the guidance.  And, to be clear, my practice focuses on employment law.  I am working with my partners who specialize in the intricacies of government contracts.  We will provide additional interpretations as we digest this material.  In the interim, here are the big takeaways.

  1.  “Covered contractor employees must be fully vaccinated no later than December 8, 2021.”  President Biden’s executive order originally required that federal agencies place a clause in new/renewal/option contracts on or after October 15, 2021.  This sentence (found on page 5 and reinforced on page 11) seems to go a step further.  I think the Task Force is being intentionally vague here because it wants as many vaccines issued as quickly as possible.  The next sentence of the guidance says:  “After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.”  As I read those two sentences together, the federal government wants the vaccine clause put into new contracts/options/renewal  and will start enforcing that clause on December 8.  Additionally, my partners who specialize in government contracts question whether the  government could unilaterally enforce a vaccine mandate without a contractual modification.
  2. Government contractors must appoint a person or persons to coordinate COVID-19 workplace safety efforts.  This individual will have several responsibilities:
    • They must communicate workplace safety protocols and policies by e-mail, websites, memoranda flyers or other means.
    • They must post signage setting forth the requirements and protocols in a readily understandable manner.
    • They must communicate safety protocols and requirements to all other individuals present at a covered workplace.
    • They must ensure that employees comply with requirements for showing or providing proper vaccine documentation.
  3. Government contractors must review covered employees’ documentation to prove vaccinated status.
    • It does not appear that contractors are required to keep a copy of vaccine documentation.   Instead, employees are required to “show or provide” documentation.
    • Employees can provide a digital copy such as a photograph or PDF of their record.
    • The following documents “count” for documentation purposes:  a copy of the record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published on September 3, 2020), a copy of medical records documenting the vaccination, a copy of immunization records from a public health or State immunization information system, or a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering vaccine.
    • “A covered contractor cannot accept a recent antibody test from a covered contractor employee to prove vaccination status.”
    • “An attestation of vaccination by covered contractor employee is not an acceptable substitute for documentation of proof of vaccination.”
    • Local laws, like Alabama’s vaccine passport ban, mean nothing.  “These requirements are promulgated pursuant to Federal law and supersede and contrary State or local law or ordinance.”
  4. Government contractors must enforce masking and monitor community transmission data at least weekly.
    • The guidance follows current CDC requirements that in areas of high or substantial community transmission, fully vaccinated people must wear a mask in indoor settings. In areas of low or moderate community transmission, fully vaccinated people do not need to wear a mask.
    • Contractors can only relax masking requirements when the level of transmission is reduced and remains “at that lower level for at least two consecutive weeks.”
    • Contractors must check the CDC’s COVID-19 Data Tracker County View website at least weekly to determine the proper protocols.  That Tracker can be found here:  CDC COVID019 Data Tracker
    • “Masks” are rigorously defined in the guidance.  The following are NOT “masks”:  masks with exhalation valves, vents, or other openings; face shields only (without mask); or masks with single-layer fabric or thin fabric that does not block light.   Presumably, “gaiters” are not allowed.
  5. Covered contractor employees who have had a prior COVID-19 infection are required to be vaccinated.  As I understand matters, there is some debate on whether a prior COVID-19 infection provides ongoing, natural immunity to the virus.  In short, the federal government isn’t engaging in that debate.
  6. Employees who do not work directly on a federal contract must also be vaccinated.  This guidance tries to capture as many contractor employees as possible with two requirements:
    • Any contractor employee who performs work “in connection with” a covered contract must be vaccinated.  This includes all employees who perform duties necessary to the performance of the covered contract, but who are not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review, perform work in connection with a Federal Government contract.
    • Any contractor employee must be vaccinated if they work in a “covered contractor workplace.”  This means any location controlled by the contractor where an employee who works on, or in connection with, a covered contract is likely to be present.
    • A covered workplace does not include an employee’s residence.

FREE VACCINE AND MASKING WEBINAR ON SEPTEMBER 28

Again, the foregoing points are just the highlights of the new guidance.  Please read the entire guidance carefully.  In a shameless plug, I can say that I am conducting a FREE WEBINAR on September 28 at 1:00 PM (CST) with my friend, Helen Holden, who practices employment law with Spencer Fane in Arizona.  Helen is a Rock Star in the employment law world.  Here is her web page:  Helen Holden.  Helen is the past Chair, and I am the Current Chair, of the Employment Practices Section of the Federation of Defense and Corporate Counsel.  Here’s a link to the FDCC’s web page if you want to learn more about them:  FDCC

I can promise that we will be talking in more detail about this guidance.  If you would like to attend, please click on this link:  FREE VACCINE/MASKING WEBINAR

 

 

 

President Biden Implements Vaccine Mandate

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The Biden administration is requiring COVID-19 vaccines for government contractors and employers with 100 or more employees.

On Thursday evening, President Joe Biden addressed the nation and announced his plan for a “Path Out of the Pandemic.”  A broad outline of President Biden’s plan can be found on the White House web site here:  Biden COVID Plan.  That outline includes a vaccine mandate for all government contractors and private employers with 100 or more employees.  After the President’s address, the White House released two Executive Orders.  Here’s what we know:

1.  FEDERAL CONTRACTOR VACCINE MANDATE

After President Biden’s press conference, the White House posted a copy of an “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors.”  Here’s a link to that order:  Exec. Order Vaccine Protocols/Contractors.  Highlights of the order include:

  • Significantly, the Executive Order does not explicitly implement a vaccine mandate.  Instead, the Order defers to guidance from the Safer Federal Workforce Task Force.  Nevertheless, given the tone of President Biden’s comments, it is safe to assume that the Task Force will mandate vaccines for federal government contractors.
  • Federal agencies must include clauses in their contracts requiring  contractors to comply with guidance issued by the Task Force.  The requirements in those clauses must also be flowed-down to subcontractors.
  •   Here’s a link to the Task Force’s current discussion of vaccines:  Task Force Vaccine Discussion.  You should regularly check that link because it will almost certainly change in the coming days and weeks.
  • The Task Force shall issue guidance by September 24, 2021 which will essentially provide details for the requirements of the Executive Order.
  • The Federal Acquisition Regulation (“FAR”) will be amended to implement the Executive Order.
  • The new clause will be included in all new contracts, extensions, renewals or options of contracts on or after October 15, 2021.

2.  FEDERAL EMPLOYEE VACCINE MANDATE

President Biden’s second Executive Order explicitly mandates COVID-19 vaccines for federal employees.  That order can be found here:  Federal Employee Vaccine Mandate.  Here are the highlights:

  • The order repeatedly finds that the “best way” to combat COVID-19 is to “be vaccinated.”
  • Based on that finding, the order finds “it is necessary to require COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.”  I anticipate that those exceptions will be narrow and focus on people with disabilities and sincerely-held religious beliefs.
  • Once again, the Safer Federal Workforce Task Force will lead the way.  “The Task Force shall issue guidance within 7 days of the date of this order on agency implementation of this requirement for all agencies covered by this order.”  So, we should have additional guidance by September 16, 2021.

3.  PRIVATE EMPLOYER MANDATE???? Employers with 100+ Employees

The Executive Orders do not address a vaccine mandate for private employers.  Nevertheless, the White House’s broad outline says that OSHA will be issuing an emergency standard mandating vaccines and/or testing for private employers with 100 or more employees:

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

The process for issuing an Emergency Temporary Standard (“ETS”) is governed by 29 U.S.C. § 655(c).  Under that statute an ETS will become effective immediately when it’s published in the Federal Register.  Prior to publication, however, the ETS will likely identify compliance dates and deadlines for when certain actions must occur. The ETS will also allow for a public comment period prior to publication.

4.  CONCLUSION

In large part, today’s news is:  “Hurry up and wait!”  We know that the federal government is going to implement a vaccine mandate.  But, we don’t know the exact contours of that mandate.  We should have more guidance from the Task Force in the near future.

I plan to provide regular updates on this issue.  I also maintain an e-mail distribution list for clients, friends and generally anybody interested in employment law issues.  If you would like for me to include you on that list, please send me an e-mail at:  rlockwood@wilmerlee.com

 

 

COVID Questions Are Back: Paid Leave? COBRA? Vaccine Laws?

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The surge in the Delta variant of COVID-19 is causing questions for many employers.

In the last few weeks, COVID-19 cases and hospitalizations have risen with the increase in the Delta variant.  As a result, I’ve started receiving more COVID-related questions.  Here are some of the most-common questions and potential answers.

1. One of my employees has been diagnosed with COVID.  Do I have to provide them with paid leave?

No.  In Alabama, the laws mandating paid leave for COVID-related absence have expired.  In 2020, Congress passed the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Act.  Those laws required employers to provide paid leave to employees suffering from COVID or caring for those with COVID.  The paid-leave provisions of those Acts ended on December 31, 2020.  As a result, employers are not longer required to provide employees with paid leave for COVID-related absences.

Nevertheless, employers can voluntarily provide paid leave and receive tax credits from the Internal Revenue Service.  The American Rescue Plan Act was enacted in the Spring and allows employers with fewer than 500 employees to provide paid leave and get a tax credit through September 30, 2021.  Here’s the Act IRS fact sheet discussing those credits:  IRS Paid Leave Guidance

2.  I recently terminated an employee.  Am I required to pay their COBRA premiums?

The American Rescue Plan Act also provides a significant benefit to employees who are terminated from employment.  From April 1, 2021 to September 30, 2021, employees who suffer a “qualifying event” and lose their health insurance can have their ongoing COBRA insurance premiums paid.  A “qualifying event” includes: a reduction in hours (such as reduced hours due to change in a business’s hours of operations; a change from full-time to part-time status; taking of a temporary leave of absence; an individual’s participation in a lawful labor strike, as long as the individual remains an employee at the time that hours are reduced); or, an involuntary
termination of employment (not including a voluntary termination).

Employers are required to pay the cost of the COBRA premiums.  But, employers can reduce their payment of federal employment taxes on a dollar-for-dollar basis.  Here is the United States Department of Labor’s discussion:  DOL COBRA Premium Guidance

3.  Alabama has a new law prohibiting disclosure of vaccination status.  How does this affect my business?

Alabama Act Number 2021-493 is Alabama’s “COVID Passport” law.  For businesses, the law’s most-significant impact is its prohibition on refusing to provide goods or services, or refusing to allow admission, to an individual based on the customer’s immunization status or lack of immunization documentation.  Many commentators have noted that the law does not have an enforcement provisions.  So, it is unclear what penalties, if any, would be imposed for violating the law.  Nevertheless, I generally suggest that businesses should comply with the law.

Alabama Attorney General Steve Marshall has also issued guidance on implementation of the law, which can be found here:  Alabama’s Vaccine Law.  For purposes of this blog, the most notable portion of that guidance is the recognition that the act only “protects consumers of goods and services and does not address employer-employee relationships. Thus, it cannot be read to prohibit private employers from requiring employees to vaccinate against COVID-19.”

“Long COVID” Might Be a Disability Under the ADA

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Employees suffering from the ongoing effects of COVID-19, known as “Long COVID,” may be protected by the Americans with Disabilities Act.

In the early days of the COVID pandemic, many employment lawyers assumed that COVID-19 would not be considered a disability under the Americans with Disabilities Act.  After all, the typical duration of the virus was thought to be “transitory and minor”  — just like the “regular flu.”  Transitory and minor conditions are not disabilities covered by the ADA.

But, as the pandemic continues and our knowledge of the virus grows, the Biden Administration is taking steps to ensure that ongoing symptoms from COVID are considered a disability.  In particular, the focus is on “Long COVID” or “Long Haulers.”  People with “Long COVID” have a range of new or ongoing symptoms that can last for weeks or months after they are infected with the virus.

On July 6, 2021, the U.S. Department of Labor published a blog post stating that workers with Long COVID might be entitled to workplace accommodations under the ADA.  Here’s a link to that blog:  DOL Long COVID Blog.  This week, the U.S. Department of Health and Human Services and the U.S. Department of Justice issued a joint guidance finding that Long COVID could be a disability under the Americans with Disabilities Act.  Here is a link to that guidance:  OCR’s “Long COVID” Guidance

The Department of Justice joint guidance is particularly important because it recognizes that even if an impairment from COVID “comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active.”  That guidance also gives  several examples of substantial limitations on major life activities:

  • A person with long COVID who has lung damage that causes shortness of
    breath, fatigue, and related effects is substantially limited in respiratory function,
    among other major life activities.
  • A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal
    function, among other major life activities.
  • A person with long COVID who experiences memory lapses and “brain fog” is
    substantially limited in brain function, concentrating, and/or thinking.

But, the guidance also recognizes that COVID is not always a disability.  Instead, an “individualized assessment” of each affected employee is necessary to determine if symptoms from COVID amount to a disability.  As a result employers should be cautious when disciplining or terminating an employee with ongoing health conditions resulting from COVID-19.

Think Twice Before Firing an Injured Employee

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If your employee has been going to the doctor, think twice before you decide to fire them.

Most businesses are well-oiled-machines that rely upon their employees to keep the machine running.  And, managers can get frustrated when employees aren’t available to work.  But, businesses need to be very cautious when dealing with employees who miss work because of injury or illness.  Employees with physical impairments can have rights under federal laws like the Americans with Disabilities Act and the Family and Medical Leave.  Additionally, Alabama law prohibits employers from firing employees because they have filed a worker’s compensation claim.

In a recent case, a manager’s impatience with the workers’ compensation process was a key factor in the Alabama Supreme Court’s decision to send a retaliation case to trial.  See Register v. Outdoor Aluminum, Inc., No. 1200181, 2021 WL 1826991 (Ala. May  7, 2021).  Laura Register was injured on-the-job working for Outdoor Aluminum, Inc. on October 20, 2016.  Register immediately began treatment with the company’s worker’s compensation physician and she was assigned a nurse case manager to facilitate her treatment.  She was initially cleared to return to work light duty in March 2017, but was soon placed off-work after complaining about continuing symptoms.  The workers’ compensation physician referred her to an orthopedic surgeon for neck pain and headaches.

This is where managerial frustration comes into play.  On June 6, 2017, the nurse case manager told Register’s supervisor that she had been referred by the orthopedic for a Functional Capacities Evaluation, and she would need a follow-up appointment to review the results of that FCE.  The supervisor responded with e-mails expressing a “negative attitude” toward the workers’ compensation treatment:

“Just when will this happen?  This is dragging out way past its time.”

“We seem to be just going from one place to another TRYING to find a place that will say she’s disabled.  She has no trouble going to yard sales and such. It seems light duty is easier than that.”

Register underwent the FCE on June 20, 2017.  On July 18, 2017, she visited the regular workers’ compensation doctor, who referred her to a pain management doctor and placed her off-work until July 27, 2017.

But, on July 20, 2017, the supervisor:  (1) e-mailed the case nurse; (2) learned that the FCE was complete; and, (3) was told that the orthopedic released Register to return to full duty with zero impairment.  On July 21, 2017, the supervisor terminated Register’s employment, saying that she should have “reported back to work on 6/29/17” and concluding “it is obvious to me that you no longer wish to be employed here ….”  The supervisor failed to recognize that the regular workers’ compensation physician had placed Register off work, and that Register still had not met with the orthopedic to review the FCE results.  To make matters worse, Outdoor Aluminum had a three-step progressive discipline policy that it did not follow.

Outdoor Aluminum was able to convince a trial court judge that it did not violate Alabama’s retaliatory discharge statute.  See Ala. Code § 25-5-11.1.  But, the Alabama Supreme Court found  the evidence was sufficient to warrant a jury trial.  In particular the Court noted:

  1.  Outdoor Aluminum was aware of Register’s injury and the fact that its regular workers’ compensation physician was treating Register.  And, that regular physician placed Register off-work through July 27, 20217.  The inference seems to be that Outdoor Aluminum should have checked on Register’s status with the regular physician before firing her.
  2. The supervisor’s emails before the FCE “indicate either that he did not believe that Register’s injuries were serious or that he believed that she was exaggerating her injuries to stay out of work.”
  3. Outdoor Aluminum did not comply with its own disciplinary policy.  While Outdoor Aluminum argued that it had discretion to deviate from its policy, there was nothing in writing establishing that discretion.
  4. The supervisor was aware that Register was supposed to follow-up with the orthopedic to discuss the results of the FCE.  But, Register did not receive a copy of the FCE or meet with the orthopedic before she was fired.

The Register case provides a simple lesson for employers:  Go slow before firing an employee who is suffering from an injury, illness or impairment.  Yes, employee absences are frustrating.  But, state and federal laws are designed to protect employees who miss time for health-related reasons.  If you act too quickly, and without all of the relevant information, you could be setting yourself up for a legal claim.

 

Does Insurance Cover Your COVID-Related Business Losses?

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COVID Insurance Coverage Alabama Employment Law
Most federal judges find that insurance does not cover claims for business losses related to COVID-19.

COVID-19 has wreaked havoc on the lives of almost every American.  It has also devastated many businesses which were forced to shut down by government order or simple lack of customers.  Faced with devastating losses, many businesses have attempted to get insurance coverage to reimburse them.  The general idea is:  My business closure for COVID-19 reasons is no different from closure because of a fire.  So, my insurance should pay for my COVID-19 losses in the same manner as a closure for a fire.

Insurance companies disagree with that basic analysis.  In most cases, insurance companies are denying coverage for COVID-19 businesses losses.  As a result, businesses around the country are suing trying to get courts to award them coverage.  Usually, these claims are litigated in federal court.  And, the vast majority of federal courts are holding that COVID-19 business claims are not covered by insurance.

An insurance policy is a contract.  So, courts deciding these coverage issues have to interpret the contract.  The language of almost every policy only provides coverage for: “direct physical loss or damage.”  As a result, most insurance companies differentiate between a “physical loss” to fire and a non-physical loss caused by COVID-19.  After all, the brick-and-mortar business is still standing.  Additionally, some policies have exclusions — provisions that deny coverage for specific reasons.  Many policies specifically exclude any loss or damage caused by a virus.  Because of those provisions, most federal judges in Alabama have found that COVID-19 business losses are not covered by insurance.

  1.   Hillcrest Optical, Inc. v. Continental Cas. Co., No. 1:20-CV-275-JB-B, 2020 WL 6163142 (S.D. Ala. Oct. 21, 2020).  Judge Beaverstock focused on the word “physical”  and found that there must be some “tangible” alteration to the property.  Because COVID-19 does not tangibly alter property, business losses are not covered.
  2. Part Two, LLC v. Owners Ins. Co., No. 7:20-cv-01047-LSC, 2021 WL 135319 (N.D. Ala. Jan. 14, 2021).  Judge Proctor found that coverage was precluded by a virus exclusion.
  3. Pure Fitness, LLC v. Twin City Fire Ins. Co., No. 2:20-CV-775-RDP, 2021 WL 512242 (N.D. Ala. Feb. 11, 2021).  Judge Proctor again found coverage barred by a virus exclusion.
  4. The Woolworth, LLC v. Cincinnati Ins. Co., No. 2:20-CV-01084-CLM, 2021 WL 1424356 (N.D. Ala. Apr. 15, 2021).  Judge Maze found that there was no physical damage or loss.  “A virus does not physically alter the property it rests on.  A virus does not require property to be repaired, rebuilt or replaced.  A virus can simply be wiped off the surface with disinfectant, so there is no ‘physical damage,’ no ‘physical loss,’ and no ‘period of restoration’ of property.”  Notably, Judge Maze also relied upon a 2020 decision from the Eleventh Circuit Court of Appeals, applying Florida law to hold that “dust and debris” in a restaurant cannot be a “direct physical loss” because it “merely needs to be cleaned.”  See Mama Jo’s, Inc. v. Sparta Ins. Co., 823 Fed. Appx. 868 (11th Cir. 2020).
  5. Ascent Hosp. Mgmt. Co, LLC v. Employers Ins. Co. of Wausau, No. 2:20-cv-770-GMB, 2021 WL 1791490 (N.D. Ala. May 5, 2021).  Magistrate Judge Borden found that “direct physical loss must be a loss requiring repair or replacement.”  He also applied a contamination exclusion to deny coverage.
  6. Dukes Clothing, LLC v. The Cincinnati Ins. Co., No. 7:20-cv-860-GMB, 2021 WL 1791488 (N.D. Ala. May 5, 2021).  Judge Borden again denied coverage, finding that “direct physical loss or damage required an actual physical change to property that COVID-19 particles cannot cause.”

Against this tide of decisions stands one federal judge in Alabama:  Judge Haikala.  Each of the foregoing six cases was dismissed immediately after filing.  In a recent opinion, however, Judge Haikala refused to follow that trend.  See Serendipitous, LLC v. The Cincinnati Ins. Co., No. 2:20-cv-00873-MHH, 2021 WL 1816960 (N.D. Ala. May 6, 2021).  Notably, the insurance policy in Judge Haikala’s case did not have a virus exclusion.  Thus, she was only confronted with the issue of whether COVID-19 business closure was the result of “accidental physical loss or accidental physical damage.”  Judge Haikala focused on “physical loss,” noting that “loss” can be defined as “the act of losing possession.”  And, the restaurants in Judge Haikala’s case alleged that they were forced to “close completely” either as a result of government orders or the need to clean when an employee tested positive.  Consequently, she refused to dismiss the restaurants’ complaint.

Almost certainly, Judge Haikala’s case will continue and the parties will conduct discovery on the exact nature of damages suffered by the restaurants.  And, after discovery the insurance company will again move to dismiss the claim at the summary judgment stage.  There is some possibility that Judge Haikala could change her analysis in the interim.  Also, the Eleventh Circuit might issue a decision directly addressing the “physical loss or damage” issue.  But, for now, Judge Haikala has provided a path that businesses might try to follow to obtain coverage for their COVID-19 losses.

 

Your Non-Compete May Be Binding – Even After Death

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Death non-compete noncompetition Alabama Employment Law
Non-competition agreements that are part of the sale of a business can be binding even after the death of the person is who is supposed to refrain from competition.

The old saying goes:  Nothing in life is certain but death and taxes.  Well, the Alabama Supreme Court just made sure that your non-competition agreement is certain — even after you die.  See Boyd v. Mills, No. 1190615, 2021 WL 1589331 (Ala. Apr. 23, 2021). At first blush, this seems like a ridiculous premise:  How can I compete with anybody after I’m dead????

On closer examination, it looks like the Supreme Court was just trying to reach a fair result.  In 2006, Thomas Batey sold his company, Batey & Sanders, to John Boyd for $2,136,631.62.  Boyd was supposed to pay that amount in 120 equal monthly payments starting on December 1, 2006.  Unfortunately, Batey died in April 2013 before the purchase price was paid-off.  Boyd continued to make payments to Batey’s estate until December 2013.  When he stopped, he still owed three years’ of payments totaling $640,989.36.  Boyd claimed that he didn’t have to pay the remainder because the non-competition agreement was a personal services agreement by Batey (the service being a lack of competition).  Since Batey’s death meant he could no long provide that service, Boyd thought he shouldn’t have to pay.

The Supreme Court addressed one issue:  “whether the buyers’ obligation under the noncompete survived Batey’s death.”  Thus, the real issue was not whether Batey was competing, but whether the buyer (Boyd) was still required pay.  And, under the particular facts of this case, the Court found that Boyd should continue payments even after Batey’s death.  In particular, the Court relied upon a decision from Georgia which held:  “when a noncompetition agreement ancillary to the sale of a business does not also require the seller to affirmatively provide services to the buyer, the essential benefit to the buyer is purchasing the business’s goodwill (as opposed to the seller’s expertise) … [s0] the seller’s death does not deprive the buyer of his benefit.”

So, upon closer examination, the Batey case is not focused on competition as much as doing-the-right-thing.  The main thing that Boyd bought in the transaction was the goodwill of Batey’s business.  He shouldn’t get that goodwill at a steep discount simply because of Batey’s death.

The Court left-open the possibility that it could reach a different result in a case where a non-competition agreement was connected to employment or specific skills of the seller.  So, there might be a more-important lesson to learn from the Batey case:  Parties negotiating a non-competition agreement with installment payments should include a provision that clearly states the obligations of the parties if either dies.

 

 

Employees on Workers’ Compensation Must Be Notified of FMLA Rights

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notice FMLA workers' compensation Alabama Employment Law
Employers should give notice of FMLA rights to employees who are injured on the job.

Most employers purchase workers’ compensation insurance to provide payment and benefits for employees who are injured on-the-job.  Usually, the workers’ compensation insurance carrier handles all aspects of the claim and employers are happy to let them do so.  But, employers need to know that workers’ compensation frequently overlaps with the Family and Medical Leave Act.  And, workers’ compensation insurance companies have little motivation (and no obligation) to notify injured employees of their FMLA rights.  A recent case from the Eleventh Circuit Court of Appeals shows the danger to employers if they fail to notify injured employees of their FMLA rights.  See Ramji v. Hospital Housekeeping Sys., LLC, No. 19-13461, 2021 WL 1257247 (11th Cir. Apr. 6, 2021).

Noorjhan Ramji suffered a trip-and-fall while working on September 15, 2016.  She took eleven days off work during which her workers’ compensation physician found that she could perform light-duty work. After that finding, Ramji’s employer offered her a light-duty position, which she accepted.  Ramji continued to receive treatment and physical therapy.  On October 21, 2016, the workers’ compensation physician found that she could return to full-duty.  But, Ramji’s employer also required that she successfully pass an “essential functions” test, which appears to have been administered by her supervisors.  That test required Ramji to complete twenty tasks assessing her ability to grip, bend, lift, twist, climb and push.  When she failed five of those tasks, Ramji was fired.

A trial court entered summary judgment dismissing Ramji’s FMLA claims.  The court reasoned that the employer could not have been expected to offer FMLA rights to Ramji, because she was released to full-duty.  The Eleventh Circuit Court of Appeals disagreed and vacated the dismissal.  There are several important aspects of that decision.

  1. Ramji’s formal workers’ compensation claim  was sufficient to notify the employer that she might be protected by the FMLA.  “That claim included information about the nature of Ramji’s knee injury, the need for emergency medical and follow-up treatment, and a release excusing Ramji from three days of work.”
  2. The information in the workers’ compensation claim “activated [the employer’s] duty to provide Ramji with FMLA notice within five business day ….”  And, the Court found a failure to provide notice could be an interference with Ramji’s FMLA rights.
  3. The employer argued that Ramji’s acceptance of a light-duty position relieved it of the duty to notify her of FMLA rights.  Yet, the Eleventh Circuit found that Ramji was entitled to choose between a paid light-duty job and an unpaid period of FMLA leave.  “But Ramji never had the opportunity to decide between taking a light-duty position or taking unpaid FMLA leave.  [The employer] made that choice for her by offering only a light-duty assignment.”  The failure to provide the choice was also a potential interference with FMLA rights.
  4. The Court seemed to accept Ramji’s argument “that the FMLA notice provisions exist to ensure that employees ‘make informed decisions about leave.'”

Ultimately, the Eleventh Circuit decided that a jury should decide whether Ramji’s employer violated the FMLA.  Few employers want to place their fates in the hands of jury.  That fate, however, might have been avoided if the employer simply gave Ramji notice of her right to take twelve weeks of unpaid FMLA leave.

The lesson of the Ramji case is simple:  In most cases, employers should give notice of FMLA rights to employees who are injured on-the-job.  If an employer fails to provide notice, the consequences can be significant.