19

November, 2021

NYCCHR/EEOC Diverge on Accommodations to Vaccine Mandates

By Tracey I. Levy and Alex Lapes

Recent updates to technical assistance from the Equal Employment Opportunity Commission (EEOC) and guidance from the New York City Commission on Human Rights (Commission) reflect the continuously evolving expectations with regard to vaccine mandates and adherence to accommodation requirements under equal employment opportunity laws, and also highlight some differences in approach that New York City employers cannot overlook.  The challenge for employers is that, while they are permitted (and in some cases required) to mandate that all employees who physically enter the workplace be vaccinated against COVID-19, when enforcing that mandate, they need to provide reasonable accommodations to employees who object to a vaccination requirement due to:

  • disability;
  • pregnancy (either in its own right under New York law or for pregnancy-related conditions that constitute a disability under federal law); or
  • a sincerely held religious belief, practice, or observance.

The EEOC has updated its technical assistance Q&A’s on COVID-19 and EEO laws three separate times in the past month (October 13, 25, and 28, 2021), particularly Section K and new Section L, to address various issues that may arise when employers navigate vaccine-related accommodation requests.  Piggybacking on the EEOC’s guidance, on November 1, 2021, the Commission updated its COVID-19 resources to adopt some, but not all, of the EEOC’s stance on the subject of accommodations.

Divergence on What Triggers Consideration of a Reasonable Accommodation

EEOC guidance clarifies that an employee or a third party (i.e. employee’s healthcare provider) must notify the employer of the need for a reasonable accommodation because of a qualifying reason.  Under federal law, accommodation requests based on medical conditions (or underlying conditions) or religious beliefs or practices do not require the employer to initiate that process and, absent notice from the employee about such a request, employers have no obligation to inquire or take action, even if an employer knows an employee is at higher risk for severe illness if the employee contracts COVID-19.

Conversely, the Commission has stated that, under the New York City Human Rights Law (NYCHRL), employers are required to initiate the conversation and to engage in a “cooperative dialogue” with an employee when the employer knows or has reason to know that the employee may require a reasonable accommodation.  For example, a New York City employer who knows that an employee has a medical condition that might place the employee at “higher risk for severe illness” if the employee contracts COVID-19 is required under city law to engage with the employee in a cooperative dialogue about a potential accommodation, even without the employee requesting one.  In order to satisfy this obligation, the Commission recommends New York City employers remind all staff of the employer’s policies regarding reasonable accommodations and the process for requesting those accommodations.

Disability Considerations

The EEOC and the Commission are consistent on their guidance that simply asking for information to confirm whether an employee is vaccinated against COVID-19 is permissible and is not a disability-related inquiry.  However, employers who require employees to provide medical documentation on vaccine status must ensure that, as with all medical information, it is kept confidential and separate from other personnel files.

Pregnancy Considerations

Under federal law, unless an employee has a pregnancy-related condition that qualifies as a disability, the EEOC has explained that employers are encouraged but not required to explore reasonable accommodations for a pregnant employee.  The EEOC further noted that employers must ensure pregnant employees receive the same job modifications (including changes to work schedules, telework, or changes to work schedules or assignments) in response to their pregnancy-related accommodation requests as would other employees who are similar in their ability or inability to work.

The Commission goes one step beyond the EEOC, and affirmatively requires employers to engage in a cooperative dialogue and explore possible accommodations for a pregnant employee who requests an exemption from a vaccination mandate.

Religious Objection to Vaccination

Most of the new EEOC guidance pertains to religious objections to an employer’s vaccine mandate, and in that context the NYC Commission has explicitly adopted the following provisions from the EEOC’s guidance:

  • Employees and applicants must inform their employer if they seek exemption from a vaccine mandate based on a sincerely held religious belief, practice, or observance. While there are no “magic words”, the employee or applicant has an obligation to notify the employer if there is a conflict between their religious beliefs and the employer’s vaccine mandate.
  • Employers are permitted to ask the employee to explain how the employee’s religious beliefs conflict with the employer’s vaccine mandate. Employers have no obligation to accommodate employees who seek exceptions to a COVID-19 vaccination requirement based on social, political, or economic views, or personal preferences.  Therefore, the EEOC has stated, and the Commission has agreed, employers are permitted to make a limited factual inquiry and seek additional information from the employee, if they have an objective basis to question the sincerity of a particular belief.  Factors to be considered in evaluating the credibility of an employee’s sincerity as to a religious belief include prior inconsistent conduct (with the caveat that employees need not be scrupulous in their religious observance), whether the accommodation benefit would likely be sought for nonreligious reasons, whether the timing of the request makes it suspect, and whether the employer has other reason to believe the accommodation is not for religious reasons.
  • Significantly, though, when weighing these factors, employers also need to be mindful that the definition of religion is broad and protects both the major organized religions and “religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.”   The EEOC’s own religious accommodation request form, which it offers as an example of an appropriate scope of inquiry, is very limited in its probing of an individual’s religious beliefs.
  • Employers do not need to grant the requests of all employees who seek an accommodation based on religion. Employers are permitted to take into account the cumulative cost or burden of granting accommodations to other employees and should evaluate religious objections on a case-by-case basis depending on the specific factual circumstances of the employer’s business. As with all accommodations, if more than one accommodation would effectively eliminate the religious conflict, then the employer may choose which accommodation to offer.  An employer may also discontinue a previously granted accommodation based on changed circumstances, although the EEOC suggests as a best practice that employers discuss and evaluate alternative accommodations with the employee before discontinuing a religious accommodation.

The Commission has further expressed its agreement with the EEOC’s guidance that employers need not accommodate an employee’s belief if the employer demonstrates “undue hardship” on its operations.  In practice, however, the EEOC and the Commission define undue hardship in this context quite differently.  A minimal cost to accommodate an employee’s religious belief is an undue hardship under Title VII and employers may consider direct monetary costs as well as the burden on the employer to prevent the risk of the spread of COVID-19 to other employees or the public.  The EEOC’s guidance notes an employer may consider whether the employee works alone or with others, their contact with the public, and especially their contact with vulnerable individuals.

In contrast, the NYCHRL defines undue hardship as “an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or violation of a bona fide seniority system).” New York City employers should consider such factors as the identifiable cost of the accommodation, how many individuals will need the accommodation based on religion, and for employers with multiple facilities, the degree to which geographic separateness or administrative or fiscal relationship will make the accommodation more or less difficult.  Notably, under the NYCHRL, a religious accommodation will only be deemed an undue hardship “if it will result in the inability of an employee who is seeking a religious accommodation to perform the essential functions of the position.”

Takeaways

Employers in New York need to be ever mindful that compliance with federal requirements and guidance from the EEOC, OSHA, the CDC and other federal government agencies merely sets the floor in terms of legal standards.  New York State and New York City can and have been imposing additional obligations on employers and granting greater protections for employees in the context of addressing COVID-19.  New York City employers who mandate vaccinations need to ensure their policies and procedures allow employees to request an exemption from that requirement as a reasonable accommodation and entertain that request in a manner that does not discriminate or treat differently any employees based on protected characteristics.

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19

August, 2021

The Lines Have Been Redrawn; “Build Back Better” with Respectful Workplaces in New York

By Tracey I. Levy

Perhaps one of the most troubling quotes coming out of the investigation of sexual harassment allegations raised against Governor Andrew Cuomo was his statement, “In my mind, I’ve never crossed the line with anyone, but I didn’t realize the extent to which the line has been redrawn.”  He added, “There are generational and cultural shifts that I just didn’t fully appreciate.”

Indeed, there have been “generational and cultural shifts,” which were accelerated by the #MeToo movement.  The lines have been redrawn, expectations have shifted, and many organizations began revising their policies and practices years ago to hold employees to a higher standard of acceptable workplace behavior.  The law itself shifted substantially in New York State beginning in 2019, and employees (particularly managers) who do not recognize that shift now present a liability issue for their organizations.

Formerly, harassment was defined by the courts in New York, which looked to federal law to provide a wordy definition, considering, with respect to unwelcome conduct based on a protected characteristic, whether submitting to the conduct was made explicitly or implicitly a term or condition of an individual’s employment; submitting to or rejecting the conduct was used as the basis for employment decisions affecting an individual; or the conduct had the purpose or effect of “unreasonably interfering” with an individual’s work performance or creating an “intimidating, hostile or offensive” working environment, with the final element requiring consideration of whether the behavior was so severe or pervasive as to rise to the level of actionable harassment.  The standard is a mouthful to recite, hard to memorize, and overwhelming on a powerpoint slide.

In 2019, as part of Governor Cuomo’s “Women’s Justice Agenda,” the governor signed into law sweeping changes with regard to the legal standard and enforcement provisions for claims of sexual harassment.  Significantly, the law adopted a new, far simpler definition of sexual harassment (which was subsequently broadened to harassment based on other protected characteristics), as subjecting an individual “to inferior terms, conditions or privileges of employment based on” a protected characteristic.  Not only is the new standard pithy, but the law then expressly goes on to state that an individual need not show that the behavior is severe or pervasive.  Rather, it is for the employer to demonstrate that the conduct was nothing more than a “petty slight” or “trivial inconvenience.”  The legal bar for asserting unlawful harassment dropped precipitously with the new law, and the governor’s press release at the time expressly quoted him trumpeting that change: “By ending the absurd legal standard that sexual harassment in the workplace needs to be ‘severe or pervasive’ and making it easier for workplace sexual harassment claims to be brought forward, we are sending a strong message that time is up on sexual harassment in the workplace and setting the standard of equality for women.”

So how could the very individual who made these legal changes a centerpiece of his legislative agenda have fallen so far short in his own behavior?  Why, in 2021, are we still so fervently teaching the lessons of #MeToo, and how can we effectuate lasting change?  These are the questions that keep me up at night, and that I mull over at random hours.  How do we “build back better” when it comes to workplace culture?

I have no magic antidotes, but certain elements are important in progressing toward a more comfortable workplace.

Commitment from Senior Leadership

As with so many other organizational changes, there needs to be buy-in from the top.  If senior leadership shares the New York governor’s perspective, little if anything will change in their organizations.  Senior managers need to lead by example – both in articulating a commitment to providing a respectful workplace, and in conducting themselves publicly and privately in a manner that comports with that articulated standard.

Putting Sidewalks Around the Law

Preventing harassment based on sex and other protected characteristics is the legal standard.  But when that is our only goal, we end up quibbling about whether an individual’s behaviors do or do not exceed the level of a “petty slight” or what we mean by a “trivial inconvenience.”  Organizations should aim for something broader – offering a “respectful” workplace to employees and everyone else in the workplace.  We need to define what we mean by “respectful,” and that definition should both embody and exceed the legal standard.  Perhaps that means that an organization equally prohibits bullying behavior, which is not singling someone out based on a protected characteristic, but which most certainly can create an uncomfortable or intimidating work environment.  Or perhaps the organization wants to define expectations with regard to how employees communicate with one another – that such communications should be civil, and that employees should be able to articulate their perspective and have their views duly considered.  Alternatively or additionally, employers might address respectful behavior in terms of collaboration, and fostering a team environment where individuals feel supported.  The common and essential component of all these definitions is that they put “sidewalks” around the law by setting forth standards that embody and exceed the current legal standard.  When our goal is broader than the legal standard, the harassment takes care of itself so to speak, in the sense that it is definitionally inconsistent with and therefore should not be occurring in a truly “respectful” work environment.

It Takes a Village

Managers cannot single-handedly root out harassing behavior or impose a culture of respect, nor can any individual or series of complaints give rise to lasting organizational change.  Rather, an organization needs to encourage, empower, and perhaps even mandate that its employees go from bystanders to “upstanders.”  Here the New York City subway safety tagline is most apt – “if you see something, say something,” and that is the mantra to be inculcated throughout the organization.  But it is not sufficient to adopt a catchy refrain.  Employees need to be trained – on what the standards and expectations are for measuring appropriate behavior, about how they can intervene, and on where to submit concerns.  The New York State or New York City versions of the mandatory harassment prevention training programs are not sufficient for that purpose.  Rather, targeted messages, specific to those expectations, need to be communicated to employees and then reinforced at periodic intervals.

You May Need to Change

At times, a manager will seek to excuse questioned behavior with a comment along the lines that the manager is “no different than I was when I started working here,” however many years ago that may have been.  In a nutshell, the manager’s comment precisely illustrates the problem.  The lines have been redrawn.  We are holding employees, and everyone in the workplace, to a higher standard than was the case in 2017.  But that higher standard may not be the optimal objective from a cultural perspective.  Creating a comfortable, respectful workplace requires organizations to do more.  In doing so, an organization may also reap manifold benefits in employee morale, retention, and productivity, as well as reputation, that “build back better” and even help the organization’s bottom line.

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14

July, 2021

Four New State Laws Require Actions by Connecticut Employers to Achieve Compliance

By Alexandra Lapes and Tracey Levy

After a very quiet 2020, this past legislative season has brought a series of new mandates for private employers in Connecticut.  These include new obligations regarding reasonable accommodations for breastfeeding employees, extended time off to vote, new parameters for pay equity, and updates to cannabis workplace protections, as Connecticut has joined New York and New Jersey to legalize recreational cannabis this year.

Breastfeeding Workers Receive Additional Protections
Beginning October 1, 2021, employees are entitled to enhanced protections when expressing breast milk in the workplace.  Existing law required employers to make reasonable efforts to provide a room or other location in close to proximity to an employee’s work area to breastfeed.  Amendments to the law dictate specifics about the type of room that must be made available.  Employers must ensure the room is: (1) free from intrusion and shielded from the public while the employee uses the room, (2) situated next to or near a refrigerator or other employee-provided portable cold storage unit for the employee to store the milk, and (3) includes access to an electric outlet, provided that there is no undue hardship for the employer.

Unpaid Time Off to Vote
If requested at least two days in advance, employers must provide all employees with two hours of unpaid time off to vote in any state election or, if the employee is an elector, for any special election of a legislative representative at the federal or state level.  The law took effect immediately upon its passage but is scheduled to sunset on June 30, 2024.

Pay Equity and Transparency
Connecticut has revised its equal pay act to prohibit pay differences between sexes for comparable work (previously the standard was “equal” work) on a job.   Employers must evaluate comparable work as a composite of skill, effort, responsibility, and whether performed under similar working conditions.  Differentials in pay may be lawful if the employer can demonstrate they are based on bona fide factors other than sex, including but not limited to, education, training, credentials, skill, geographic location, or experience.

The new law, which takes effect October 1, 2021, also imposes new pay transparency obligations that require employers to disclose to applicants and employees the “wage range” for the position they are applying to or occupy.  For job applicants, the wage range must be disclosed upon the earliest of the applicant’s request or prior to or at the time a job offer is made that includes compensation.  For employees, the wage range must be disclosed upon hire, a change in the employee’s position, or the employee’s first request.

The law defines “wage range” as the range of wages an employer anticipates relying on when setting wages for a position, and the reference may include any applicable pay scale, range of wages previously determined for the position, the actual range of wages for current employees holding comparable positions, or the employer’s budgeted amount for the position.  The law provides a two-year limitation period for actions against employers who violate the new requirements and provides for various remedies and damages.

Legalization of Recreational Cannabis
Connecticut has now become the 19th state to legalize recreational cannabis use for adults aged 21 and over.  Effective July 1, 2022, employers in Connecticut may not prohibit the off-work use of cannabis or take adverse action against an employee or potential employee for use of cannabis prior to applying for, while working for an employer, or based on a positive THC test, except under limited circumstances and only with advance written notice.

As in New York and New Jersey, the Connecticut law makes clear that employers are not required to make accommodations for an employee to use cannabis while performing job duties, and employers can prohibit employees from possessing or consuming cannabis while at work.  The law also allows employers to take adverse action against employees who are impaired at work, upon (1) reasonable suspicion of an employee’s use of cannabis while engaged in the performance of the employee’s work responsibilities at the workplace or on-call, or (2) upon determining that an employee manifests specific, articulable symptoms of drug impairment while working or on-call that decrease or lessen the employee’s performance of the employees’ job duties.

Employers can also drug test employees or applicants and discipline or terminate an employee, or rescind a conditional offer of employment, based on a positive drug test result in certain circumstances.  As a threshold matter, the employer must have an established written policy that prohibits possession, use or other consumption of cannabis by an employee, and the policy must be made available to each employee (either physically or electronically), prior to the enactment of the drug testing program.  For job applicants, the drug testing policy must be made available to each prospective employee at the time the employer makes an offer of conditional employment.  Without this advance written notice, the employer cannot take any actions with respect to an employee’s use or possession of cannabis products outside the workplace.

Even if the employer has provided appropriate notice, however, employers cannot discipline employees or applicants based solely on a positive drug test.  Rather, they additionally need to show that:

  • failing to discipline/revoke an offer would cause the employer to lose a federal contract,
  • the employer reasonably believes the employee is engaged in cannabis use while performing the employee’s work duties, or
  • the employee manifests specific, articulable symptoms of drug impairment while working that decrease or lesson the employee’s performance.

An individual aggrieved by an employer’s violation of these provisions has 90 days to file a claim in state court.  However, a cause of action will not be implied in several circumstances, including but not limited to, if the employer had a good faith belief that an employee used or possessed cannabis while performing work, in violation of an employer’s workplace policy.

Takeaways
These new laws require updating employment policies.  Updates to comply with unpaid voting leave need to be put in place immediately, while employers have until October 1 to update their policies and practices with regard to breastfeeding accommodations and pay transparency.  Employers may want to undertake a review of their compensation practices to confirm they will meet the new “comparable work” standard.  Finally, employers have until next July 1 to develop and distribute written policies with regard to drug testing and maintaining a drug free workplace if they wish to police cannabis usage in the workplace.

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25

June, 2021

Protecting the Unvaccinated Presents an Employee Relations Quandary for Employers

By Tracey I. Levy

Under the Biden administration, the CDC has taken a strong position in support of vaccinating as many individuals in the United States as possible. The latest, very well-publicized carrot to incentivize that effort has come in the form of a lifting of COVID-19-related precautionary safety measures for those who are vaccinated. Masking, social distancing, workplace signage about effective hand washing – are all a relic of the past for those who have reached the point of “fully vaccinated.” But as discussed in our prior blog post, the guidance from OSHA is that masking and other COVID-19 precautions should remain in place for employees who are not vaccinated.

Very few workplaces have achieved the point of 100 percent vaccination, and therefore the practical effect of the government’s duality in approach is to bring the full weight of peer pressure down on those who are not vaccinated. The guidance from the EEOC stresses that accommodations must be made for those who are not vaccinated for medical or religious reasons, but employers who endeavor to do so are running into a significant employee relations problem. How do you provide vaccinated employees with the flexibility to resume the panoply of normal activities, while the unvaccinated subset of the workplace is immediately recognizable by their masks and social distancing measures? How do you resume pre-COVID activities like business travel, especially internationally, when a subset of your workforce may be unable to participate due to COVID restrictions? For workplaces that have been working largely remotely since March 2020 and are eagerly anticipating bringing employees back to the office in-person (at least several days per week), how do you rebuild team culture and fully integrate your newest hires who perhaps only know their colleagues by screen shots when any indoor group gathering will necessarily require sufficient spacing of a subset of the team and face masks will quickly brand those who opted out of vaccination?

There is no federal government guidance on this, currently, and a subset of states are contemplating laws similar to that which already took effect in Montana, which prohibit private employers from treating individuals differently based on vaccination status. Options employers may want to consider include:

• Maintain masking protocols in common areas, like pantries, break rooms and rest rooms;

o Those who are vaccinated may balk at being asked to continue masking, but the imposition is relatively modest, especially as the past year has gotten many individuals accustomed to having a mask on their person whenever they are out with others.

• Permit vaccinated employees to remove masks at their workspaces, and adjust seating arrangements where possible to provide social distancing between those who are not vaccinated;

• Explore options for having meetings, particularly larger gatherings, at outdoor venues;

• Schedule team meetings in conference rooms that allow sufficient spacing for six feet of social distancing, at least to accommodate the subset of employees who are unvaccinated;

o A conference room built for 20 can be reduced to only accommodating seven if everyone is socially-distanced, but a hybrid approach, in which social distancing might only be necessary for two or three individuals, could potentially allow that same conference room to seat a team of 15.

• Alternatively, continue to conduct team meetings by videoconference;

o One of the great benefits of meetings in which the entire team is participating by videoconference is that the participants all are equally-spaced and sized, and can more closely approximate speaking at the same audio level. That is a great equalizer when compared to in-person meetings in which some attendees can physically dominate the room and the conversation, and continuing videoconference meetings in the current environment similarly places the vaccinated and the unvaccinated on an equal plane.

• Reserve one or more smaller conference rooms or similar workspaces, perhaps outfitted with a portable HEPA filter for better air circulation, for use by unvaccinated employees when they are having one-to-one meetings with others;

o Some unvaccinated employees, especially those who are not vaccinated due to underlying medical conditions, may find their own mask to be insufficient protection when meeting with others who may not be masked, including clients or visitors whose vaccination status may not be known. Offering those employees an alternative, larger work space in which to conduct their meetings with social distancing and additional air filtration can reduce that concern, without “outing” the unvaccinated employee as someone with an underlying medical condition.

• Explore team-building activities that leverage the outdoors;

o As employers look to rebuild a cohesive culture, planning activities or events outside notably reduces the risks of COVID-19 exposure and enables unvaccinated employees to participate more freely.

• Advise managers, and all employees, to be sensitive to the range of reasons why employees may choose not to be vaccinated;

o To the same extent that we ask managers to address or report instances in which employees are engaging in harassment, retaliation or other inappropriate behaviors under respectful workplace policies, we want them to similarly address or report instances in which employees are being harassed or retaliated against based on their vaccination status.

• Regularly thank employees for adhering to protocols and being sensitive to their colleagues.

o None of this is easy, the stress of the past year has been overwhelming for many, and those who are vaccinated may have limited patience for continued COVID-19 precautions. Employers that acknowledge the strain and continue to express appreciation can help mitigate the negative impact on employee morale.

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3

June, 2021

The Courts Have Awoken: Takeaways Spring 2021

After a dearth of notable caselaw over the course of the pandemic, this past quarter brought five significant decisions across New York, New Jersey and Connecticut — addressing the parameters of employer obligations to medical marijuana users, the scope of New Jersey’s Pregnant Workers Fairness Act, business executives’ liability for harassing conduct by a supervisor, and New Jersey’s ban on arbitration of discrimination claims. Our Spring 2021 issue of Takeaways summarizes all those decisions, as well as recent employment law developments in New York and New Jersey resulting from the legalization of recreational marijuana usage, further updates on the ever-evolving maze of requirements related to COVID-19, expanded protections for discrimination related to employees’ hairstyles and head coverings, and a substantial increase in the minimum wage for federal contractors, taking effect in very short order.

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