The killing of George Floyd, an African American, at the hands of a white Minneapolis police officer, was a tragic moment in our country’s history. It has sparked weeks of public protests in cities and states across the U.S. Individuals have gone to the streets to voice their concerns about the issues of racial injustice in American society. While police brutality may be at the forefront, the movement is aimed at shedding light on all areas of racial inequality. Many high-profile figures, from politicians to stars to professional athletes, have been vocal about their condemnation of racial bias. They have further indicated in no uncertain terms that any individual, company, or organization that remains silent on issues of racial inequality is in fact complacent and part of the problem.
Continue Reading The Important Role Employers Play in Addressing Racism in Light of the George Floyd Tragedy
COVID-19 Antibody Testing: Useful Screening Tool or Impermissible Medical Examination?
As the United States still struggles with testing capacity for active COVID-19 infections, employers are increasingly asking “may we require our employees be tested for the presence of COVID-19 antibodies?” This is particularly true following the Equal Employment Opportunity Commission’s position that employers were permitted to test for the presence of active COVID-19 infection, set forth in its What You Should Know About COVID-19 resource (Q&A 6).
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Selecting Employees for Recall or Rehire
In the COVID-19 recession, many employers made reductions in force en masse, thus avoiding selection decisions that might be challenged as discriminatory. If the same employers recall or rehire employees en masse, they will continue to avoid such decisions. But what if the employer’s need to recall or rehire is partial or gradual, such that some employees are brought back before others? Such choices can give rise discrimination claims. To protect itself, an employer will need to apply and document a non-discriminatory method of choosing among employees.
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Recalled Workers Don’t Want to Return Because of Health Risks or Child Care – Now What?
As businesses slowly begin to reopen, workers are being recalled to the workplace. Some of them are expressing reluctance to return due to increased health risks from COVID-19 based on underlying medical conditions or age. Others are struggling with child care issues as schools remain closed for the remainder of the academic year and summer care programs are canceled. Some employers have asked what are their obligations to such workers under the law? Can they terminate them, or do they have to accommodate them?
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Methadone User Can Sue Under ADA
As I discussed in a blog post last year, the Equal Employment Opportunity Commission has been bringing cases on behalf of applicants/employees who use lawfully prescribed opioids (including methadone) against employers who fail to conduct an individualized assessment of the applicant/employee to determine whether those drugs made them unqualified for the position. In EEOC v. Steel Painters LLC, the U.S. District Court for the Eastern District of Texas held that a reasonable jury could find that the employer did just that.
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“[M]aintaining consciousness is a basic element of any job.”
And with that obvious (and rather snarky) statement, the U.S. Court of Appeals for the Fifth Circuit made the obvious point that an employee who was asleep or unconscious on the job was unable to perform the essential functions of his job and therefore not qualified for the position under the Americans with Disabilities Act! Now, as my regular readers know, I enjoy a good snark and my blog posts about various court decisions often contain snide comments. But in this case, the (usually quite proper) Fifth Circuit took care of that all on its own…
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Maryland’s General Assembly Overrides “Ban the Box” Veto – What’s Next for Employers
On January 30, 2020, the Maryland General Assembly voted to override Governor Hogan’s veto of the “Ban the Box” bill that was passed in the last legislative session, just as we predicted in our veto E-lert. The law will prohibit employers in Maryland from inquiring about an applicant’s criminal history until later in the application process. It takes effect on February 29, 2020, and Maryland employers should prepare now to comply with the new requirements.
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A Marriage of Convenience? EEOC Continues To Push Non-Competitive Transfer as Reasonable Accommodation
It is a truth universally acknowledged that an employee unable to perform the essential functions of his/her job must be in want of a transfer. And it is also quite clear under the Americans with Disabilities Act that the employer must consider a transfer or reassignment to a vacant position as a reasonable accommodation. What is less clear is whether the employee automatically gets the position (i.e. an arranged marriage) or whether the employer can require the employee to compete for the position (see, e.g. “The Bachelor”).
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#MeToo (Et Tu SEIU?)
In Shakespeare’s play, Julius Caesar cried out “Et Tu Brute?” – translated “Even you Brutus?” – as he lay dying from the assassin’s sword that had been plunged into his chest by his friend and confidant, Marcus Brutus. These words came to mind as I read an article about a sordid tale of rampant sexual misconduct by SEIU officials. Even them???
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Extraordinary Employee Misconduct: Monkeying Around in the Workplace!
This is a new entry in our occasional series on extremely bad behavior by employees. I am constantly amazed by the lack of awareness and judgment exhibited by employees in the workplace. I was baffled when I read Hennessey v. Dollar Bank, FSB, a case in which a Caucasian employee at Dollar Bank was terminated when, over the Martin Luther King, Jr. holiday weekend, he hung a brown monkey from the ceiling of a workspace utilized by African American employees.
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