On Friday, the United States Court of Appeals for the Sixth Circuit entered an order and opinion reinstating OSHA’s vaccine mandate for employers with 100 or more employees. Here’s a link to that opinion: Sixth Circuit Vaccine Mandate Opinion.
It’s too early to say what the ultimate outcome of this legal battle will be. At least ten interested parties have filed applications with the United States Supreme Court asking for an emergency stay of the OSHA mandate. Justice Brett Kavanaugh is responsible for ruling on those motions. He can stay the mandate on his own or refer the stay request to the Supreme Court as a whole. The Court has asked the Biden Administration to respond to the applications by December 30, 2021. Appellate experts expect a decision in January.
In the interim, OSHA took a quick victory-lap with an important Press Release on Friday. It stressed two important dates:
“OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.
To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”
So, if the Supreme Court takes no action in the near future, we know that these dates are important.
January 10, 2022: This is the day OSHA will being enforcing all aspects of the vaccine mandate. Not sure what all of those requirements are? Here’s my original article discussing the general requirements of the OSHA mandate: OSHA Issues Vaccine Mandate for Private Employers. Employers who are making “reasonable, good faith efforts to come into compliance” will get a grace period for the testing requirement.
February 9, 2022: The grace period expires. Presumably, OSHA will begin citing covered employers for noncompliance with the mandate.
I strongly recommend that employers prepare for the possibility that the OSHA mandate will survive the Supreme Court’s scrutiny. Most lawyers still think the odds are stacked against the mandate. But, you don’t want to be caught unprepared. At a bare minimum:
Decide if you want to mandate vaccines for your employees — with no “test out” option. If that’s your course of action, download OSHA’s sample policy and start taking steps to implement. Here’s a link to that policy: OSHA Sample Policy Mandating Vaccination
In the alternative, you can implement a policy allowing employees to mask and take weekly testing — instead of vaccinating. If that’s your plan, download OSHA’s sample policy and start taking steps to implement. Here’s a link to that policy: OSHA “Test Out” Policy
As always, stay tuned. More details are sure to come.
Late last week, the Alabama Legislature passed, and Governor Kay Ivey signed, SB9 which is designed to restrict the ability of Alabama businesses to impose vaccine mandates on their employees. Here is a link to SB9: SB9 Limiting Vaccine Mandates. While there are many unanswered questions in SB9, I think most Alabama businesses will be able to comply with federal vaccine mandates while simultaneously complying with SB9.
Here are my big takeaways regarding SB9:
1. Employers are required to give their employees a specific vaccine exemption form.
Employers cannot require any employee to receive a vaccination as a condition of employment without providing an opportunity to be exempted for religious or medical reasons. Most importantly, employers must use a specific form drafted by the Legislature. To access that form: (1) click on the the SB9 link above; (2) go to page 2, line 18 of SB9; (3) “cut and paste” all text through page 5, line 5. The form must be made “readily available” to all employees along with directions for submitting the form.
2. Denials of exemptions are appealable and employers cannot terminate employees based upon vaccination status until conclusion of an appeal.
If an employer denies an exemption request, the employee will be allowed to appeal that denial to an Administrative Law Judge appointed by the Alabama Secretary of Labor. If the ALJ also denies the exemption, the employee will be able to file an appeal with a court of competent jurisdiction.
SB9 also recognizes that employers might want to terminate based on vaccination status after denying an exemption. The new law prohibits any such termination until an administrative law judge or court issues a final ruling in the employer’s favor.
3. Here’s what SB9 DOESN’T do.
SB9 does not limit an employer’s ability to gather information. It says that employers must provide the Alabama form to employees. But, it does not say this is the onlyform that can be given to employees. SB9 does not restrict the duty or obligation of employers to engage in an “interactive process” with employees who request an accommodation or exemption.
SB9 does not limit the accommodations that an employer can require. In fact, SB9 says nothing whatsoever about accommodations. Some of my risk-averse clients have been fairly liberal in granting exemption requests even before SB9 was passed. Indeed, exemption from the vaccine is not an exemption from the obligation to protect your co-workers. Employers who grant exemptions under SB9 can also require that employees test for COVID-19 weekly and wear masks while around other employees.
3. The Alabama grounds for exemption are expansive.
The Centers for Disease Control has extensively discussed the impact of the COVID-19 vaccine on particular groups of people. (CDC COVID-19 Vaccine Discussion). This new Alabama law seems to take a different view of COVID-19 and allows employees to attempt to opt-out of vaccines based on: (1) their own statements of health history; or, (2) a generic statement that the vaccine conflicts with sincerely held religious beliefs, practices or observances — without requiring a statement defining those beliefs. Here’s the complete list of grounds for exemption:
My health care provider has recommended to me that I refuse the COVID-19 vaccination based upon my current health conditions and medications. (Note: This is the only ground that requires the signature of a “licensed health care provider.” Other health-based reasons discussed below don’t require any medical support.)
I have previously suffered a severe allergic reaction (e.g., anaphylaxis) related to vaccinations in the past.
I have previously suffered a severe allergic reaction related to receiving polyethylene glycol or products containing polyethylene glycol.
I have previously suffered a severe allergic reaction related to receiving polysorbate or products containing polysorbate.
I have received monoclonal antibodies or convalescent plasma as part of a COVID-19 treatment in the last 90 days.
I have a bleeding disorder or am taking a blood thinner.
I am severely immunocompromised such that receiving the COVID-19 vaccination creates a risk to my health.
I have been diagnosed with COVID-19 in the past 12 months.
Receiving the COVID-19 vaccination conflicts with my sincerely held religious beliefs, practices, or observances.
4. Mandated exemption or just a presumption?
SB9 says that “[a]n employer shall exempt vaccination as a condition of employment for any employee who has submitted the exemption form ….” This seems fairly clear: If the employee fills out the State-sponsored exemption form, they don’t have to get vaccinated.
But, the law later says that “submission of the completed form creates a presumption that the employee is entitled to the exemption.” Moreover, it sets forth a process for an employee to challenge a “denial of a request for an exemption.” Thus, it seems that employees don’t automatically get an exemption if they fill out the form.
This internal inconsistency is important. In the next few points, I discuss conflicts between SB9 and federal mandates. If completing the form is a mere “presumption” of exemption, then Alabama employers might be able to argue that the presumption is rebutted by the requirements of federal law.
5. There are conflicts with the vaccine mandate for federal contractors.
The most glaring ground for exemption under SB9 is COVID-19 diagnosis in the last 12 months. That exemption flies directly in the face of the federal contract mandate (found here Federal Contractor Mandate) which plainly states that “covered contractor employees who have had a prior COVID-19 infection are required to be vaccinated ….”
Notably, the federal contractor mandate allow employers to grant exemptions for health reasons and sincerely held religious beliefs. So, in some ways, SB9 comports with that mandate. This is where it is important for Alabamians to know if exemption is mandated upon completion of the SB9 form or if it is merely a presumption that can be rebutted. If it’s a presumption, then I think that a federal contractor could argue that the presumption of exemption for past COVID-19 infection is rebutted because federal law does not allow an exemption for federal contractor employees on that ground.
6. There are conflicts with the CMS mandate for many medical facilities.
I discussed CMS’s vaccine mandate for medical facilities here: CMS Vaccine Mandate. That mandate imposes strict requirements on employees who seek exemptions for medical reasons:
For staff members who request a medical exemption from vaccination, all documentation confirming recognized clinical contraindications to COVID–19 vaccines, and which supports the staff member’s request, must be signed and dated by a licensed practitioner, who is not the individual requesting the exemption, and who is acting within their respective scope of practice as defined by, and in accordance with, all applicable State and local laws. Such documentation must contain all information specifying which of the authorized COVID–19 vaccines are clinically contraindicated for the staff member to receive and the recognized clinical reasons for the contraindications; and a statement by the authenticating practitioner recommending that the staff member be exempted from the facility’s COVID–19 vaccination requirements based on the recognized clinical contraindications.
Obviously, SB9 does not require that level of detail for employees to obtain an exemption for medical reasons. Indeed, Alabama apparently prefers that employers to just take the employee “at their word” for a host of medical issues.
Once again, the issue will be whether exemption is mandatory once the employee submits the SB9 Form. If the form merely creates a presumption, then facilities covered by the CMS mandate might be able to argue that the presumption is rebutted by the CMS mandate requiring a more-detailed statement for medical exemptions.
7. No direct conflict with the OSHA mandate for employers with 100+ employees.
Last week, OSHA also imposed a vaccine mandate on employers with 100 or more employees. I wrote about that mandate here: OSHA Vaccine Mandate. The OSHA mandate offers employers the option to adopt: (1) a policy mandating all employees be vaccinated; or, (2) a policy where employees can “test out” of vaccine requirements. Under the “test out” option, employees are not required to be vaccinated if they test for COVID-19 on a weekly basis and observe masking protocols. If Alabama employers adopt the “test out” option, there does not appear to be a direct conflict between OSHA and SB9.
Even so, there is some level of conflict. As discussed above, SB9 grants an exemption to employees who have been infected with COVID-19 in the last 12 months. But, the OSHA standard “does not offer any exemptions to vaccination requirements based on ‘natural immunity’ or the presence of antibodies from a previous infection.”
8. Is leave without pay an option?
SB9 only restricts the ability to terminate an employee. What if an employer decides not to “terminate”? In other words, an employer could grant an exemption and then move the employee to long-term leave without pay status. This would be an aggressive strategy by the employer.
Technically, the employee could not appeal under SB9 because that law only allows appeals where exemptions are denied. But, long-term leave without pay would probably be considered a “constructive discharge.” Employers adopting this strategy would probably face a legal challenge of some kind.
9. Additional possible loophole?
Section (h)(2) of SB9 says: “Nothing in this section shall be construed to alter or amend the ability of an employer to terminate an employee for reasons other than the employee’s COVID-19 vaccination status.” This seems to reiterate that Alabama is an “employment at will” state. This means that, in the absence of an employment contract, an employer or employee can terminate the employment relationship at any time. Indeed, “employment at will” is so strong in Alabama that courts repeatedly say that an employee can be fired “for a good reason, a bad reason or no reason at all.”
SB9 also clearly states that it does not “create or imply a private cause of action for employees who are terminated after refusing to receive a vaccination mandated by their employer.” This means that employees cannot sue for wrongful termination. Instead, the only remedy allowed by SB9 is review “of an employee’s denial of a request for an exemption” by an Administrative Law Judge and Alabama’s courts.
I think creative attorneys could figure out ways to argue that a termination is “for reasons other than the employee’s COVID-19 vaccination status.” I also think that a “mixed motive” analysis (where vaccine status and some other reason provide the impetus for termination) could provide a defense.
10. The Alabama Department of Labor has to provide a process for employees.
SB9 requires that the Alabama Department of Labor develop a process for employees to appeal the denial of their exemption requests. DOL is supposed to release that process by November 26. In that process, DOL must appoint Administrative Law Judges to review the appeals. And, even after the ALJ rules, employees must be given the right to file a further appeal in “a court of competent jurisdiction.”
As soon as DOL issues its rules regarding the appeal process, I will provide an update.
11. Closing Thoughts
I think the Legislature’s main goal in passing SB9 was to force businesses to think-twice before terminating an employee based upon a vaccine mandate. And, SB9 dramatically slows the process for terminating employees on that ground.
But, as a practical matter, I was already advising my clients to think-twice before termination. Any time an employee asks for a religious or disability accommodation of any kind, an employer incurs risk if they terminate soon thereafter.
Each of of the federal vaccine mandates allows employers to exempt employees who have disabilities or sincerely held religious beliefs. SB9 is designed to liberalize the process for granting exemptions. But, at the end of the day, employers just need to proceed carefully and gather as much information as reasonably possible before deciding to grant or deny an exemption request. If an exemption is denied, employees can now appeal that denial to an ALJ and drag the process out. Otherwise, the process largely remains the same. Employers just have to use the additional form mandated by SB9 as part of that process.
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:
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.
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.
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.
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. Ifyou 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.”
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.
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.”
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.
The Americans with Disabilities Act generally requires that a “place of public accommodation” must be accessible to individual with disabilities. In recent years, numerous lawsuits have been filed claiming that websites are inaccessible in violation of the ADA. For example, a blind person will sue because a website cannot be read by specialized screen reader software. A recent decision from the Eleventh Circuit Court of Appeals may limit future lawsuits of that kind. See Gil v. Winn-Dixie Stores, Inc., No. 17-13467, 2021 WL 1289906 (11th Cir. Apr. 7, 2021).
Juan Carlos Gil is legally blind and a frequent visitor of Winn-Dixie’s physical grocery stores to shop and occasionally fill prescriptions. When Gil visited Winn-Dixie’s web site, he found that it was incompatible with screen reader software he used to access websites and vocalize sites’ content. He sued Winn-Dixie and claiming that its website was not accessible in violation of Title III of the ADA. A trial judge agreed and found a violation of the ADA, but the Eleventh Circuit reversed.
The primary issue was whether Winn-Dixie’s website was a “place of public accommodation.” Under Title III of the ADA, “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation ….” 42 U.S.C. § 12182(a). Thus, Gil claimed that the website was a “place of public accommodation” and he was being denied full enjoyment of it.
The Eleventh Circuit disagreed and relied primarily on the language of the ADA itself. That statute provides twelve examples of places of public accommodations. See 42 U.S.C. § 12181(7). “The list covers most physical locations in which individual will find themselves in their daily lives. Notably, however, the list does not include websites.” Gil, 2021 WL 1289906 at *6. The Court also noted that the Department of Justice’s ADA regulation provides a similar list: “The regulation echoes the language of the statute, listing a plethora of physical spaces, including ‘[a] baker, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment,’ not including websites.” Id. As a result, the court concluded that “public accommodations are limited to actual, physical places. Necessarily then, we hold that websites are not a place of public accommodation under Title III of the ADA.” Id. at *7.
But, that conclusion didn’t end the opinion. Prior decisions in the Eleventh Circuit held that Title III of “the ADA prohibits not just physical barriers, but also ‘intangible barriers,’ that prevent an individual from fully and equally enjoying the goods, services, privileges or advantages of a place of public accommodation.” Gil, 2021 WL 1289906 at *8. So, Gil cleverly argued that the inaccessible website prevented him from fully enjoying a place that is clearly a place of public accommodation — Winn Dixie’s physical store. The Eleventh Circuit relied upon three facts to reject that argument.
First, and most importantly, with website has only limited functionality. The court stressed that “it is not a point of sale; all purchases must occur at the store.” Gil, 2021 WL 1289906 at *9. Second, the limited functions permitted by the website (requesting prescription refills and redeeming coupons) had to be completed in-store. Finally, nothing prevented Gil from shopping at the physical store. Based upon those facts, the court found that the inaccessible website was not an intangible barrier.
The Gil decision leaves open the possibility that a future disabled person might be able to prevail under the ADA if an inaccessible website prevents them from making purchases that are available on the site. But, the vast majority of websites are informative, rather than sales-oriented. As a result, the Gil decision provides protection to many businesses whose websites might not be accessible to the disabled.
I’m tall: 6’5″. My wife is short: 5’1″ (on a good day). As she likes to put it: “I’m short, but mighty!!” Thus, she should read this blog and be unsurprised that her stature does not give her any rights under the Americans with Disabilities Act. See Colton v. FEHRER Auto. N.A., LLC, No. 4:19-cv-653-CLM, 2020 WL 2132026 (N.D. Ala. May 5, 2020).
Nicole Colton is 4’6″ tall. She was assigned by a temporary work agency to FEHRER’s plant in Gadsden, Alabama. When Ms. Colton was assigned to the assembly line, her short stature limited her reach and her ability to perform the job. Her requests for reassignment to a different position in the plant were refused and she was terminated because she was “not a good fit.”
Ms. Colton sued for disability discrimination under the Americans with Disabilities Act and FEHRER moved to dismiss her complaint. United States District Court Judge Corey L. Maze found that her height did not meet the definition of a “disability.” Importantly, Judge Maze did notrule that all short people are barred from the benefits of the ADA. Instead, he focused on the ADA’s implementing regulations and found that only physical impairments involving “some type of disorder or pathology of the body” qualify for protection. Thus, Ms. Colton’s height was not a “disability,” but a physical “characteristic.”
Judge Maze also rejected Ms. Colton’s argument that she was “regarded as” disabled. To satisfy that legal requirement, she was required to show “that FEHRER perceived that Colton’s height resulted from a physiological disorder or condition, thereby rendering her disabled under the ADA.” But, Ms. Colton possessed no evidence to support such a showing.
Again, it is important to note that Judge Maze did not create a categorical rule denying all short people the protection of the ADA. There are undoubtedly numerous physiological disorders or conditions that can result in decreased height. But, people like my wife, who are just short because of genetics, will not receive protection.
I’ve gotten a few calls this week from clients concerned about coronavirus. My clients have employees returning from travel to China/Korea/Japan and want advice on protecting the employee, their customers and co-employees. From a practical perspective, the Centers for Disease Control have issued guidance for business owners on responding to coronavirus in the workplace: CDC Coronavirus Guidance.
I. Legal Issues
From a legal perspective, employers have two primary statutes that relate to their employees and coronavirus: (1) the Occupational Safety and Health Act (“OSHA”); and, (2) the Americans with Disabilities Act.
OSHA has a “General Duty Clause” that requires employers to furnish “a place of employment which [is] free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.” In short, employers have a general duty to protect employees from hazards. That’s great, in concept, but how does it apply to coronavirus?
At this stage, employers should take common-sense steps to prevent the spread of contagious illnesses in the workplace. Most employers already have these steps in place. Provide hand sanitizer at multiple locations. Regularly clean and disinfect public areas. Make sick employees stay home. If the cornavirus threat spreads in the United States, there may be increased duties under OSHA for employers to provide personal protective equipment and/or take other measures. But, those are not necessary at this stage.
Generally, the ADA prohibits employers from taking an adverse job action against an employee who is disabled or “regarded as” disabled. So, would the ADA prevent an employer from suspending or terminating an employee who is infected with coronavirus or suspected of infection? I have strong doubts that the ADA would apply. But, I will give my lawyerly disclaimer: Only a judge and/or jury can make a final determination on legal liability. In particular, the transitory nature of any virus is unlikely to amount to a disability under the ADA. Moreover, the Eleventh Circuit has expressly found that an employer’s fearan employee might develop Ebola in the future does not amount to “regarding” the employee as disabled. Here’s a link to a blog post that I wrote about that case:Fear of Future Infection and the ADA. That analysis would seem to apply equally to fear of contraction of coronavirus.
Employers may also want to require their employees to undergo a medical examination. Even though coronavirus might not be a disability, the ADA generally imposes restrictions on medical examinations regardless of an employee’s status as disabled. The EEOC previously issued guidance on steps that an employer can properly take under the ADA relating to a pandemic. Here’s a link to that guidance: EEOC/ADA Pandemic Guidance. In general, employers can ask employees about potential exposure to coronavirus; ask employees how they are feeling; and, require symptomatic employees to stay home.
II. Practical Advice
If one of my Alabama clients has a genuine fear about coronavirus, I have advised them that they should allow asymptomatic employees returning from “hot spots” to work from home, if possible. If work-from-home is not an option, then consider requiring the employee to stay home — and pay the employee at the employer’s expense. If overhead makes gratis leave infeasible, consider requiring the employee to use accumulated paid leave. Employers should consult with counsel before requiring an asymptomatic employee to take unpaid leave.
The Alabama Medical Cannabis Study Commission is proposing legislation that could impact Alabama employers. Here is a link to an article from AL.com discussing creation of the Commission and its work on medical marijuana: Commission Votes to Approve Medical Marijuana
Most notably, the Commission is opening the door to medical cannabis use, but its proposed legislation (which can be found here) takes great pains to educate the public that it does not condone “traditional” marijuana use. For example, the synopsis of the proposed act (which is proposed for codification at Ala. Code §§ 20-2A-1 et seq.) says: “this bill would prohibit the ingestion of any raw plant material, and would prohibit any smokeable or vaping product.” To that end, the term “Medical Cannabis” in the legislation does not include:
Raw plant material.
Any product administered by smoking, combustion, or vaping.
A food product that has medical cannabis baked, mixed, or otherwise infused into the product such as cookies or candies.
Moreover, only a limited set of conditions will qualify for treatment by medical cannabis/marijuana, including: cancer; Crohn’s Disease; epilepsy; fibromyalgia; and, HIV/AIDs-related nausea or weight loss.
Section 20-2A-6 of the proposed legislation is designed to give businesses some comfort level with medical cannabis by stating that the proposed act does NOT :
(1) Require an insurer, organization for managed care, health benefit plan, or any person who provides coverage for a medical or health care service to pay for or reimburse a person for costs associated with the use of medical cannabis.
(2) Require any employer to permit or accommodate an employee’s possession or use of a medical cannabis product, to allow the use of medical cannabis in the workplace, or to modify the job or working conditions of an employee who engages in the use of medical cannabis that are based upon the reasonable business purposes of the employer.
(3) Prohibit an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment because of that individual’s possession or use of medical cannabis.
(4) Prohibit an employer from establishing and enforcing a drug testing policy or from implementing a drug-free workforce program established in accordance with Article 13, commencing with Section 25-5-330, of Chapter 5 of Title 25.
(5) Interfere with any federal restrictions on employment, including, but not limited to, regulations adopted by the United States Department of Transportation in Title 49, Code of Federal Regulations.
(6) Permit an individual to commence a cause of action against an employer for refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment related to use of medical cannabis.
(7) Require a government medical assistance program, employer, property and casualty insurer, or private health insurer to reimburse a person for costs associated with the use of medical cannabis.
Section 6 above is good for Alabama employers, because its says that they cannot be sued for taking an adverse job action (like termination) against an employee because of their use of legal, medical marijuana. Nevertheless, Section 2 raises some questions for me. The first part of that section says that employers are not required to accommodate an employee’s use of medical cannabis. In other words, employers don’t have to allow employees to use medical marijuana on-the-job. But, the very final phrase of that section tacks-on the words: “that are based upon the reasonable business purposes of the employer.” I’m not sure what the purpose of that phrase was intended to be. It’s possible, however, that somebody could argue that employer arerequired to allow medical cannabis on the job, unless they can demonstrate a “reasonable business purpose” for prohibiting its use. Hopefully, this phrase will be cleaned-up in the legislative process.
Finally, the legislation would also alter Alabama’s Workers Compensation Act:
An employee who is injured or killed while using medical cannabis is ineligible to receive any compensation under Chapter 5 of Title 25, Code of Alabama 1975, if the injury or death was caused by an action or inaction of the employee, even if the employee was in full compliance with Chapter 2A of Title 20, Code of Alabama 1975, at the time of injury or death.
Potentially, that section makes it more difficult for users of legal, medical cannabis to recover workers’ compensation benefits than users of illegal drugs. Alabama Code Section 25-5-51 currently provides: “no compensation shall be allowed for an injury or death caused by … an accident due to the injured employee being intoxicated from the use of alcohol or being impaired by illegal drugs.” Under that law, an employer attempting to deny workers’ compensation benefits must show that an employee was intoxicated and that the intoxication caused the accident in question. Under the Medical Cannabis Commission’s legislation, employers would not be required to prove intoxication. Instead, if an employee is prescribed medical cannabis and suffers an injury caused by the employee’s “action or inaction,” benefits could be denied.
The Alabama Legislature returns to session on February 4, 2020. This proposed legislation will unquestionably be one of the hot topics of that session.
What does it mean for something or someone to be “similar”? That was the existential question recently confronted by the Eleventh Circuit Court of Appeals in a race discrimination case: Lewis v. City of Union City, No. 15-11362, 2019 WL 1285058 (11th Cir. Mar. 21, 2019.) In particular, the Court was concerned with comparators in discrimination cases.
In a typical discrimination case, an employee in a protected class (race, gender, disability, age) will claim that another employee, outside the protected class, was treated better. For example, a female employee who was terminated for tardiness will claim that a male employee was tardy but not fired. In legal jargon, the male employee is considered a “comparator.”
But, comparators need to be similar. A business can have legitimate reasons for excusing the tardiness of a high-level, salaried manager, but not a lower-level, hourly employee. I have discussed the importance of comparators in other discrimination cases Here and Here. Courts can’t compare “apples and oranges.” So, Lewis is an effort by the Eleventh Circuit to provide lower courts with a better analysis for reaching an “apples to apples” comparison.
The United States Supreme Court has previously held that comparators must be “similarly situated.” But, the Eleventh Circuit, and other courts, have struggled with question of just how “similarly situated” a plaintiff and her comparators must be. Different groups of Judges in the Eleventh Circuit have announced different standards to the point that the Lewis court concluded: “It’s a mess.”
Therefore, the Court announced a new standard to be used in all cases going forward: a plaintiff and her proffered comparators must be “similarly situated in all material respects.” Great! But, what does that mean?
At one point in the opinion, the Court suggests that “essential sameness” is a requirement. Yet, the Court also states that the standard “must be worked out on a case-by-case basis.” The Court also identifies four “sorts of similarities” that will underlie a valid comparison:
The compartor will have engaged in the same basic conduct (or misconduct) as the plaintiff.
The comparator will have been subject to the same employment policy, guideline or rule as the plaintiff.
The comparator will ordinarily (although not invariably) have been under the jurisdiction of the same supervisor as the plaintiff.
The comparator will share the plaintiff’s employment or disciplinary status.
The Lewis Court concludes by stating that “a valid comparison will turn not on formal labels, but rather on substantive likenesses.” Moreover, “comparators must be sufficiently similar, in an objective sense, that they ‘cannot be reasonably distinguished.'”
So, what does this mean for Alabama employers? Generally, I think this standard is good for employers. By using phrases like “substantial sameness” and “substantive likenesses,” the Court appears to be signalling that the standard for similarity is high. Nevertheless, the new standard is not effective in helping employers in determining “how high” the bar is. I feel that, in many ways, we are left with Justice Potter Stewart’s famous saying: “I know it when I see it.” As a result, employers in Alabama and the rest of the Eleventh Circuit must simply do their best while the Eleventh Circuit continues to flesh-out the standard on a “case-by-case” basis.