August 2021
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Employment Law

Sign, Sign, Everywhere A Sign?

In May of 1971 the Canadian musical group Five Man Electrical Band released “Signs” which the website SongFacts describes as “a prescient look at class division and property rights.[i]  Some of you may be more familiar with the 1990 cover of Signs released by the band Tesla.  The song features the following chorus: 

Sign, sign everywhere a sign. 
Blockin’ out the scenery, breakin’my mind
do this, don’t do that, can’t you read the sign? 

When Governor Lee signed House Bill 1182 into law on May 19th he may have been envisioning signs on public bathrooms everywhere throughout the state.  But the law that would make that vision a reality is on hold, at least for now. 

The so called “Business Bathroom Law” requires any public or private business or entity that operates a business or facility that is open to the general public to post signage if they have a formal or informal policy of allowing a “member of either biological sex to use any public restroom within the building or facility.”[ii]  The statute defines “public restroom” as any “locker room, shower facility, dressing area or other facility or area that is open to the general public, designated for a specific biological sex [and is] a facility or area where a person would have a reasonable expectation of privacy.”  Unisex, single occupant and family restrooms are exempt from this definition.[iii] 

The Business Bathroom Law requires that businesses or facilities that allow individuals of either sex to use their bathrooms to post a notice at the entrance of each of their restrooms.  The notice may be located either on the public restroom door or within one foot of the public restroom door frame.[iv]  The law also sets forth specifics on the signs that must be posted. 

Covered businesses or facilities must purchase signs that are at least 8 inches wide and 6 inches tall.  The top third of the sign must be red and read NOTICE in yellow font.[v]  The bottom two-thirds of the sign must contain a white background with black boldface, block letters that read:

THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION OF THE RESTROOM[vi]

If a qualifying business or facility fails to comply with the law the business or entity, once notified of noncompliance, will have 30 days in which to comply before any action is taken against it.  Because the statute is part of the Building Regulations chapter of the Tennessee Code Annotated a violation results in a class B misdemeanor which is punishable by up to 6 months of jail time and/or a $500.00 fine.[vii]

The Business Bathroom Law came under attack shortly after Governor Lee signed it.  In May Davidson County District Attorney General Glenn Funk said he would not press charges against anyone refusing to post the required signs.  Attorney General Funk deemed the law as “transphobic” and “homophobic” and said that his office “will not promote  hate”[viii]

In June the American Civil Liberties Union and its Tennessee Chapter filed suit in Federal Court on behalf of two Tennessee businesses and their respective owners, Bongo Productions, LLC, Robert Bernstein, Sanctuary Performing Arts LLC and Kye Sayers. 

A second Lawsuit was filed a few days later.  Both cases assert that the Business Bathroom Law is unconstitutional on multiple grounds, including that it violates the First Amendment right “against compelled speech”.[ix]

On July 9th United States District Judge Aleta A. Trauger issued a Memorandum Opinion granting the Plaintiffs’ Motion for a Preliminary Injunction in Bongo.  Judge Trauger found that the Plaintiffs’ had met their burden to obtain a preliminary injunction based on their claim that the Business Bathroom Law violated their right against compelled speech.  Judge Trauger held as follows:

Some messages do not have to be compelled to be repeated; they surface, time and again, by dint of their persuasiveness and their importance. More than a dozen times, the Supreme Court, or a Justice of that Court writing separately, has repeated the classic declaration, originally set forth by the Court in West Virginia State Board of Education v. Barnette, that, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. That rule is not founded simply on an abstract love of unfettered and uncompelled speech. The First Amendment holds its privileged place in our constitutional system because, “[w]henever the Federal Government or a State prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines” both “our democratic form of government” and the very “search for truth” necessary for a thriving society to persist.  Because that principle retains its vitality today, and because the law at issue in this case is a brazen violation of it, the court will grant the plaintiffs’ motion for a preliminary injunction.  (internal citations omitted).[x]

As of the date of this writing the preliminary injunction is still in effect.  While the preliminary injunction could ultimately be set aside by Judge Trauger or an appellate court Tennessee businesses currently do not have to comply with the Business Bathroom Law.  Businesses should keep a close eye on this litigation because in the event the injunction is lifted, compliance will be mandatory and there will likely be a short time in which to comply. 

[i] http://www.songfacts.com

[ii] House Bill 1182

[iii] Id. 

[iv] Id. 

[v]  Id. 

[vi] Id.

[vii] Tenn Code Ann §40-35-111 (e)(2)

[viii] See Mariah Timms Nashville DA Won’t Enforce ‘Hate’ Bill Requiring Businesses To Post Signs For Transgender Bathroom Access, Tennessean (May 24, 2021), htpps\\www.tennesseean.com/story/news/politics/2021/05/04/Nashville-da-not-enforce-trans-bathroo-signage-bill-tennessee/7422294002/. 

[ix] Bongo Production, LLC v. Carter Lawrence, et al. Case No. 3:21-cv-00490 7-9-21 Mem Op. at pp. 17-18, 30-31

[x] Id. at pp. 30-31

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April 2021
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Employment Law

OSHA Weighs In On Mandatory COVID-19 Vaccines

As you know from my prior posts, the EEOC has stated that employers can require employees to be vaccinated against COVID-19, subject to exceptions for those employees who have a disability that prevents them from being vaccinated and those employees who have a good faith religious belief which prohibits vaccinations. Recently, OSHA weighed in on the issue of mandatory vaccinations in the workplace.

OSHA also allows mandatory COVID-19 vaccinations. However, if an employer makes vaccinations mandatory and an employee has an adverse reaction, that is a recordable event under OSHA assuming the other factors are met for recording an event on the OSHA log. Those factors include any of the following: days away from work, restricted work, transfer to another job or medical treatment beyond first aid.

OSHA’s FAQs on COVID-19 are a helpful resource, and can be found at http://www.osha.gov

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February 2021
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Employment Law

OSHA’s Latest Guidelines on COVID-19

At the end of January OSHA issued another set of Guidelines for dealing with COVID-19 in the workplace. These Guidelines are not legal requirements. However, I suspect that if OSHA investigates and sees that a business is not following these Guidelines a determination that the business has violated OSHA’s General Duty clause, which states that employers have a general duty to keep the workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm”, is likely.

Among other things the Guidelines state:

  1. Employees who have been vaccinated against COVID-19 must still follow the protective measures, including wearing a mask, social distancing and hand washing.
  2. In adopting a workplace safety plan employers should engage employees to ensure their thoughts and concerns are considered. It is an interactive process.
  3. Employers should consider protections for workers at a higher risk. But be careful. This does not mean you automatically send all older employees, or employees with known underlying health issues, home. Doing so could lead to claims of age and/or disability discrimination. Instead, make a decision that applies to all high risk employees, not just a certain group or groups.
  4. Follow the CDC isolation guidelines for employees who have COVID-19 or have or may have been exposed to it.

The bottom line is employers should continue to be proactive, responsive and flexible.

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December 2020
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Employment Law

Can an employer require its employees to take the COVID-19 vaccine?

In November, pharmaceutical companies Pfizer, AstraZeneca and Moderna announced that they had each developed a coronavirus vaccine.   This is, obviously, wonderful news.  Under the current vaccine distribution plan for the State of Tennessee, residents and employees of nursing homes and long-term care facilities will receive the vaccine first, followed by first responders, low exposure healthcare workers and people with two (2) or more high-risk comorbidities. 

These vaccines will likely not be available to the general public for several months.  Many people will take the vaccine voluntarily.  But as an employer, can you require your employees to be vaccinated against the coronavirus as a condition of employment? 

The answer is likely yes, with some exceptions.  The EEOC has not yet issued any guidance on this issue.  However, the EEOC has previously issued guidance on whether employers can require all employees to take the flu vaccine.  With respect to the flu vaccine, the EEOC states that an employer can require an employee to be vaccinated unless the employee should be exempted because of an ADA disability or his or her sincerely-held religious beliefs. 

If the employee has an ADA disability that prevents the employee from taking the flu vaccine, the employer must analyze whether it can reasonably accommodate this disability without undue hardship.  For example, can the employer reasonably accommodate the employee’s disability and address the health and safety concern by having the employee wear a mask or PPE at all times when the employee is around others?  If this reasonable accommodation will not create an undue hardship, then the employer must provide that reasonable accommodation.

An employee’s sincerely-held religious belief, practice or observance may also prevent that employee from taking a vaccine, whether it is the flu or the coronavirus vaccine.  For those employees, the employer must also determine whether it can provide a reasonable accommodation, such as the mask or PPE requirement, or working remotely, that will not impose an undue hardship on the employer.  The EEOC goes on to state that “generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.”

Given that COVID 19 appears to be more deadly to some and more contagious than the flu, the EEOC might change its position on the issue.  Certain industries may also have obligations to vaccinate employees, such as those employers in the healthcare industry.  For now, most employers should assume that they will not be able to require vaccinations for those employees who have an ADA disability or sincerely-held religious belief that prohibits vaccination and will have to consider whether those employees can be reasonably accommodated without undue hardship. 

Employers considering mandatory vaccination policies should review relevant EEOC, CDC and any state guidance and consult legal counsel to ensure that they meet their goal of protecting the health and safety of their workforce without violating applicable laws.   

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September 2020
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Employment Law

Tennessee Pregnant Workers Fairness Act Becomes Law on October 1st

On October 1, 2020 the Tennessee Pregnant Workers Fairness Act becomes law.  Passed this summer, the new law requires every employer with 15 or more employees to make a reasonable accommodation for an employee’s or prospective employee’s medical needs arising from pregnancy, childbirth, or related medical conditions.  Consistent with the ADA, a reasonable accommodation does not have to be made if doing so will impose an undue hardship on business operations.

The law specifies that it is not imposing certain requirements on employers.  Specifically, employers are not required to:

  1.  create a new position for the employee, including a light duty position, unless a light duty position would be provided for another equivalent employee;
  2. hire new employees that would not otherwise have been hired;
  3. discharge an employee, transfer an employee with more seniority, or promote another employee who is not qualified to perform the new job;
  4. compensate an employee for more frequent or longer breaks, unless the break would otherwise be compensated;
  5. construct a permanent, dedicated space for expressing breast milk.

In addition to the requirement to provide a reasonable accommodation unless doing so would create an undue hardship, the Act also details the following unlawful employment practices:

  1. requiring an employee to take leave if another reasonable accommodation can be provided;
  2. taking an adverse action in the terms , conditions or privileges of employment because an employee has requested or used/received a reasonable accommodation, including, but not limited to, counting an absence related to pregnancy under a no fault attendance policy.

Significantly, the “no adverse action based on a no fault attendance policy” may be broad enough to require payment of a perfect or regular attendance bonus if the only absences are due to the reasonable accommodation.

Employers can require employees who request a reasonable accommodation of a temporary transfer to a vacant position, job restructuring, light duty, or an accommodation that requires time away from work to submit a certification from a health care provider supporting the request.  However, the employer must engage in a good faith interactive process with the employee to determine if a reasonable accommodation is available while awaiting the certification.

A suit alleging the Act has been violated can be filed in Circuit or Chancery Court and must be filed within one year of the adverse employment action.  Filing a charge with the THRC is not required before suit can be filed.  A successful plaintiff can recover back pay, compensatory damages, prejudgment interest, reasonable attorney’s fees and other legal or equitable relief that will effectuate the purposes of the Act.

Since October 1st is fast approaching employers should review their policies to determine what changes need to be made and train their supervisors on these new requirements.

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September 2020
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Employment Law

DOL Revises The FFCRA Definition of Health Care Provider

Last month the Southern District of New York ruled that four parts of the FFCRA were invalid.  While that ruling was only effective in that judicial district it resulted in the U.S. Department of Labor reviewing the FFCRA.  On September 11th the DOL issued  a temporary rule revising the  FFCRA .

As detailed below, the DOL reaffirmed most of the portions the Court found invalid, but revised the definition of ” health care provider” for the purpose of determining what employees are exempt from the FFCRA.

To determine what employees are  exempt from the FFCRA the DOL now defines “health care provider” as those employees defined as health care providers under the FMLA (licensed doctors of medicine or osteopathy, among others) as well as those employees who make medical diagnoses and those employees who are “capable of providing health care services”.  The focus is on the duties of these employees , and the employees must be “employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care”.

The DOL interprets “health care services” to include relevant services related to patient care, even if not performed by employees with a license, registration or certification.

So who is and is not a health care provider for purposes of the exemption? The DOL gives the following examples:

Health Care Providers– doctors, nurses, nurse assistants, medical technicians, and laboratory technicians.

Not Health Care Providers- IT personnel, human resources, building maintenance/janitorial staff, cooks, food service workers, records managers and staff, billing staff and consultants.

This revision is effective immediately.  So if you have a business that provides health care and you have previously been treating all of your employees as exempt under the FFCRA,  you will need to reevaluate that position as soon as you can.

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June 2020
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Employment Law

Supreme Court Holds Title VII Protects Gay and Transgender Employees

On June 15th in a 6-3 decision the Supreme Court held in Bostock v Clayton County, GA that Title VII prohibits discrimination against gay and transgender employees.  Writing for the majority Justice Neil Gorsuch based the opinion on the fact that Title VII prohibits discrimination on the basis of “sex”.  In the very first paragraph of  the majority opinion Justice Gorsuch wrote:

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex necessarily plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

While this is a groundbreaking ruling, the Court did not resolve all legal issues involving gay and transgender rights.  Justice Gorsuch noted that employers with strong religious objections to these rights might have some protection under the Religious Freedom Restoration Act of 1993 (RFFA).  In 2014 the Supreme Court held that under the RFFA Hobby Lobby did not have to pay for insurance coverage for contraception under the Affordable Care Act because doing so violated Hobby Lobby’s religious freedom.

In Bostock the Court also declined to address whether an employer violates Title VII by requiring sex segregated bathrooms and locker rooms and sex specific dress codes.  The opinion is expressly limited to a situation where an employer fires an employee for being gay or transgender.

To ensure compliance with this change in the law employers should update their EEO, Anti-Harassment and other similar policies to ensure that gay and transgender employees are expressly protected.

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April 2020
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Employment Law

The IRS Weighs In On What Information An Employer Can Request To Substantiate FFCRA Eligibility

Yesterday the IRS issued some FAQs on the FFCRA.  On the important question of what documentation is needed from the employee in order for the employer to seek tax credits for the paid leave provided under the FFCRA,  the IRS said as follows:

An Eligible Employer will substantiate eligibility for the sick leave or family leave credits if the employer receives a written request for such leave from the employee in which the employee provides:

  1. The employee’s name;
  2. The date or dates for which leave is requested;
  3. A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
  4. A statement that the employee is unable to work, including by means of telework, for such reason.

In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

In the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

While the IRS is the entity that will approve or deny the request for the tax credit, the DOL is responsible for enforcing the FFCRA.  Hopefully, the DOL’s regulations will be consistent on this issue, and it is my expectation that they will be.

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March 2020
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Employment Law

FFCRA and CARES ACT WEBINAR

Yesterday, my partner Kevin Perkey, who focuses his practice on tax law, and I presented a Webinar entitled COVID-19: THE IMPACT ON YOUR BUSINESS AND EMPLOYEES.  The webinar focuses on the FFCRA and certain provisions of the CARES Act.  Thank you to the hundreds of you who watched.   If you were unable to watch the Webinar, or want to see it again, it can be accessed at the following link. https://vimeo.com/401032682/9969809358

Also, one clarification on the small business (under 50 employees) exception.  While it does apply to both Expanded FMLA and Emergency Paid Sick Leave, it only applies when leave is requested because the child’s school or place of care is closed, or the child care provider is unavailable, due to COVID-19 related reasons.  And if that is the reason you still must show that one of the following apply:

 

       1.The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  

       2.The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or  

      3.There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

 

Again, the DOL expects you to act in good faith when claiming this exemption and in all of your efforts to comply with the FFCRA.

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March 2020
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Employment Law

DOL Clarifies FFCRA Small Business and Health Care Provider Exemptions

Late Saturday afternoon the Department of Labor issued more FAQs on the FFCRA.  These additional FAQs provide guidance on two subjects I have received many questions about:  1. What employees qualify for the “health care provider and emergency responder exemption”?; and 2.  What must I show for the small business exemption to apply?

The health care provider and emergency responder exemption allows the employer to designate certain employees as exempt from the FFCRA’s provisions.  In a bit of a surprise the DOL clarified that, for the purposes of the FFCRA health care provider and emergency responder exemption, a health care provider is “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy , or any similar institution, employer, or entity.”   Furthermore, any individual employed by an entity that contracts with any of the above institutions or employers is also included in the definition of “health care provider” for the purposes of the FFCRA exemption.

Emergency responder is equally broad, and includes anyone in law enforcement, firefighters, paramedics, EMTs, 911 operators, and military and national guard among others.

On the small business exemption the Department of Labor states:

 

  1. When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing paid sick leave and expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:
    1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  
    2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or  
    3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

 

The Department of Labor makes clear that the business does not have to “apply” for the exemption, and does not have to call or write the Department to seek exempt status.  Instead, an authorized officer must make the call that one of the three tests set forth above will be met.  The Department does stress that it expects employers claiming this exemption to have documentation to support their claim.  This could include, for example, financial documentation showing that complying with the Act and granting leave will cause business expenses and financial obligations to exceed available business revenues, a description of how letting the employee with specialized skills take leave will create a substantial risk to the business’s ability to continue to operate, the lack of availability of qualified replacements who are ready, willing and able to work, and other similar documentation.

The Department of Labor has also stated that it will grant a 30 day grace period on enforcing penalties to those employers who have violated the FFCRA but have acted in “good faith ” in doing so.  With this small business exemption, make sure there are facts to support your claim so that you are at least acting in good faith in the event the Department determines your business is not exempt.

 

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