EEOC Archives - Page 8 of 9

The Dos and Don’ts of Implementing a Mandatory Flu Vaccine Policy Outside the Hospital Setting

As health experts describe this flu season as one reaching epidemic proportions, many employers are questioning the legality of requiring their employees to receive a flu vaccine shot when they recognize business and safety needs for ensuring their work environments and workforce are better protected from the flu virus. This need is especially acute for non-hospital employers who care for individuals with compromised immune systems, such as rehabilitation centers or schools. While a different set of considerations come into play when a hospital is assessing how to implement a flu vaccine policy (see our post from January 24, 2013 – “Firing Employees Who Don’t Get Flu Shots: What Risks Do Hospitals Face”, Mark Nelson), non-hospital employers have business needs and health concerns that may make implementation of a flu vaccine policy desirable or necessary.

So, what should an employer consider before implementing such a policy?

DO evaluate the business need for the policy. Whether it be concern for patients, clients, or customers or, rather, a need to ensure that your workforce is less likely to be on leave due to a flu outbreak, an employer must be prepared to identify its reasonable business interest if the policy is challenged.
DO consider what type of policy suits business needs. Some employers are implementing mandatory policies for all employees to receive a flu shot. Others are only requiring that certain categories of employees receive a flu shot, i.e., those with regular access to patients or individuals with compromised immune systems. Still others are implementing a policy that “strongly encourages” flu vaccinations.
DO review any applicable Collective Bargaining Agreements. Under the National Labor Relations Act, a flu vaccination policy is a mandatory subject of bargaining. This means that a unionized employer cannot unilaterally implement such a policy without giving the union notice of the policy and bargain over the policy if the union requests. However, as set forth under recent National Labor Relations Board caselaw, a union may waive a right to bargain over such a policy by way of a Management Rights Clause. See Virginia Mason Medical Center, 358 NLRB No. 46 (2012). If unionized, employers should evaluate the breadth of their clause to see if the union has waived the right to bargain regarding the employer’s right to direct employees, to determine materials and equipment to be used and/or to implement improved operational methods and procedures. In the Virginia Mason case, the NLRB specifically recognized this type of waiver language as permitting the Medical Center to require non-immunized nurses to wear facemasks.
DON’T refuse to engage in an interactive process with any objecting employees. Employers should be prepared to work with an employee’s health or religious objections to receiving a flu shot. The Equal Employment Opportunity Commission has taken the position that employees may be exempt from a mandatory vaccination requirement based on an ADA disability or a “sincerely held religious belief, practice, or observance.” See www.eeoc.gov/facts/pandemic_flu.html -48k-2009-10-21. Courts have recognized that such sincerely held” beliefs may include lifestyle choices such as veganism. See Chenzira v. Cincinnati Children’s Medical Center, No. 11-917 (S.D. Ohio, December 27, 2012). In such instances where an employee expresses a health or religious-based objection to a mandatory flu vaccine policy, the employer should discuss reasonable accommodations with the employee, e.g., exempting the employee from the policy entirely, transferring the employee to another position temporarily (until the flu threat ends as determined by local health officials) or permitting the employee to wear a facemask when in proximity to patients and coworkers.
DON’T terminate any employee who refuses a flu shot without engaging in the interactive process if they are objecting for health or religious reasons. Further, any disciplinary measures should be uniformly implemented in the case of employees in violation of the policy. Employers may also want to consider progressive discipline for first-time offenders, e.g., issuing a warning letter for an initial failure to show proof of a flu shot or failure to wear a facemask.
DO ensure that any policy implemented is enforced uniformly. Require proof that employees have received a flu shot. In the case of objectors, seek a waiver that the employee is unable or objects to vaccination and then engage in the interactive process to agree upon a reasonable accommodation.
DO consider making flu shots available to employees on-site to maximize compliance with any flu shot policy.
DON’T implement a policy without contacting your state’s Department of Health or any other related agencies. These agencies can provide guidance on the manner in which vaccine policies should be implemented for various categories of employers or regarding possible accommodations for objecting employees.

Seventh Circuit: ADA Gives Disabled Employees Priority For Vacant Positions

A recent Seventh Circuit decision may require employers to select minimally qualified employees over far more qualified employees when filling vacant positions. In EEOC v. United Airlines, Inc., 2012 WL 3871503 (7th Cir. 2012), the Court held last month that, absent undue hardship, the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), requires an employer to transfer a disabled employee to a vacant position ahead of more qualified non-disabled employees.

This case involved guidelines that United Airlines issued in 2003 for accommodating “employees who, because of disability, can no longer do the essential functions of their current jobs even with reasonable accommodation.” Under the guidelines, these disabled employees were eligible for placement in a vacant position and even received priority over otherwise equally qualified co-workers, but did not receive an open position over a genuinely superior candidate. The Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit against United Airlines, which filed a Motion to Dismiss. The district court granted the motion, holding that a “competitive transfer policy does not violate the ADA.”

The EEOC appealed and the Seventh Circuit reversed. The Seventh Circuit acknowledged that, according to its own precedent, employers were not required “to reassign a disabled employee to a job for which there is a better applicant, provided it’s the employer’s consistent and honest policy to hire the best applicant for the particular job in question.” The Court concluded, however, that this precedent conflicted with the Supreme Court’s more recent decision in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002).

In Barnett, the Supreme Court considered whether a disabled cargo handler who could no longer perform his job was entitled to a mailroom position ahead of a more senior employee who was otherwise entitled to the job pursuant to a seniority system. The Barnett Court noted that “preferences will sometimes prove necessary to achieve the [ADA’s] basic equal opportunity goal” and articulated a “two-step, case-specific” analysis. First, the plaintiff/employee must show that an accommodation “seems reasonable on its face, i.e., ordinarily or in the run of cases.” After the plaintiff/employee satisfies the first step, the burden shifts to the defendant/employer to “show special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.” The Barnett Court concluded that, although a transfer to the mailroom may have constituted a reasonable accommodation, violating the seniority system was unreasonable. According to the Seventh Circuit, however, the Barnett Court “was not creating a per se exception for seniority systems.”

Relying on Barnett, the Seventh Circuit remanded the United Airlines case and directed the district court to apply the Supreme Court’s analysis. The Seventh Circuit observed that the Tenth and the District of Columbia Circuits have previously reached similar results. The Court gave little weight to a contrary Eighth Circuit decision that relied on the Seventh Circuit’s now-overruled precedent.

Practical Advice for Employers

Employers should have policies and procedures in place to address transfer requests by employees whose disabilities prevent them from performing their jobs. Within the Seventh Circuit (Wisconsin, Illinois and Indiana), employers should plan to give these employees priority for open positions and must understand that the Seventh Circuit will rarely accept an “undue hardship” excuse for denying the transfer.

Even outside of the Seventh Circuit, employers should be mindful of the United Airlines decision. Not only have the Tenth and District of Columbia Circuits reached similar rulings, but the Seventh Circuit’s interpretation of the Supreme Court’s Barnett decision will likely influence the decisions of courts that have not yet addressed this issue. Moreover, the EEOC clearly takes the position that anything less than mandatory reassignment violates the ADA.

Discrimination Claims Based on Denial of Religious Clothing Is “Low Hanging Fruit” to EEOC

At a recent workshop for attorneys, the Equal Employment Opportunity Commission provided guidance on what employers should consider when enforcing a dress code policy on religious clothing.

A senior EEOC attorney described cases involving religious clothing and grooming policies as “low hanging fruit” for EEOC enforcement efforts. Among the cases the EEOC is investigating are claims of religious discrimination where employees have been disciplined or otherwise disadvantaged for donning Muslim head scarves, Sikh turbans and yarmulkes. The EEOC is also pursuing cases involving religious tattoos. In one case, EEOC recently sued a Burger King restaurant for religious discrimination because it fired a female cashier, who is a Christian Pentecostal, for refusing to wear uniform pants. A tenet of the Christian Pentecostal faith is that its members should not wear the clothing of the opposite sex. The woman’s offer to wear a skirt of modest length was rejected and she was discharged.

EEOC acknowledges that employers can have and enforce a dress code, but when it comes to dealing with employees who wear clothing for religious reasons or have special grooming requirements EEOC takes the position that exceptions to the policy may be required as an accommodation. Under Title VII of the Civil Rights Act of 1964, an employer is required to accommodate an employee’s religious belief unless doing so would create an “undue hardship.” According to the EEOC attorney, an undue hardship is “anything that would cause more than a de minims cost on the employer’s operation.”

Employers should be careful about arguing that absolute enforcement of a dress code policy is a business necessity. The EEOC will scrutinize an employer’s ban on religious clothing that the employer justifies based in its desire to convey a certain image to customers and the public. EEOC and the courts have recognized undue hardships where the religious clothing creates a safety hazard or where the garb may be mistaken as being the employer’s “message” to customers and clients. However, employers should tread cautiously. In one case, a court found that a county library discriminated on the basis of religion when it fired a librarian because she refused to remove a “cross necklace.” The court held that library patrons were unlikely to believe that the cross was part of the county’s message.

Employers should review their dress code policies to ensure they are not discriminatory and that they recognize the possibility of accommodating religious clothing, jewelry and tattoos. In addition, managers should be educated to understand the employer’s rights and responsibilities when faced with an employee’s request to wear a religious article that may conflict with the dress code policy.

EEOC Issues Guidelines Addressing the Use of Background Checks in Employment

The EEOC (the “Commission”) recently issued guidelines addressing the use of background checks in employment. Generally speaking, a “background check” or “consumer report” is something that is obtained from a reporting agency and reflects a consumer’s credit, character, reputation, standing, lifestyle, or the like, and is used (in this context) for the purpose of determining employment eligibility (whether for hire, promotion, eligibility to work at a particular job site, etc.). While the Commission had been focused on this issue to some extent since 2007, the new guidelines suggest that the EEOC plans to launch an aggressive enforcement campaign aimed at preventing perceived inherent disparate impact discrimination via the most common background check scenarios.

At the heart of the Commission’s guidelines and, indeed, currently the subject of legislative debates in many states, are “Ban the Box” recommendations. The “Box” being referenced typically appears on an employment application as a Yes/No choice, seeking disclosure of any prior convictions or pending criminal charges. The disclosure, if any, acts as a de facto bar to employment. The EEOC has now publicly expressed the presumption that any policy that mandates an adverse employment decision for any criminal history is inherently discriminatory.

EEOC guidance mandates what should be logical — any disclosure or “hit” on a background check should be considered on an individualized basis. Factors the EEOC recommends considering include the nature and gravity of the offense, the age of the offense, and the nature of the job at issue. Where an employer can point to a rational relationship between the job and the offense so as to justify disqualification from employment, the Commission will not likely find discrimination occurred. The clearest example is disqualifying an applicant with a fraud conviction from work as a bank teller — a position in which the person would handle funds with little supervision and be responsible for reporting balances and the like. Where businesses run in to trouble is in disqualifying applicants or employees based on a “zero tolerance” policy, or because the individual is guilty of crimes the employer finds inherently offensive, though they lack a rational relationship to the job duties at issue. One of the most common examples is an employer’s policy of refusal to hire anyone found guilty of a “sex offense,” without further clarifying the meaning of that term. That phrase can mean many things, including potentially having consensual sexual relations with someone just a few years younger than majority age (e.g., an 18-year old boy and a 17-year old girl in California). Absent individualized inquiry and analysis, a blanket policy could result in unjust actions, whether putatively race-based or otherwise.

The federal Fair Credit Reporting Act (“FCRA”) further requires that detailed disclosures be given to employees before background checks are done, when any adverse action is contemplated, and again when an adverse action decision is finalized. Separate disclosures are required if the background check will also include “interviews” (e.g., discussions with prior employers) in additional to database research. The FCRA is very specific about the format of each of these notices. And nearly half of the United States have requirements that are stricter and even more specific than those set forth in the federal FCRA. Some even mandate particular type fonts. As with any procedural violation, class certification is often virtually guaranteed (given the absence of individualized treatment). Violations of the FCRA requirements, for example, can multiply at the rate of $100-$1000 per violation (e.g., per applicant or employee, for the entire statutory period). It is common that businesses seldom complete all steps of the process correctly.

So, how does all this play out in the workplace? Fixing the paperwork might be the easy part. Most employers don’t want to spend the time or money going through individualized analyses, which the Commission says should include discussions with the subject individual to explore circumstances surrounding the offense at issue before a final decision is made. “Zero tolerance” policies are certainly much easier (and more expedient) from an employer perspective, and companies often bank on the fact that applicants or employees with “dirty laundry” may be less likely to raise complaints about potentially unfair policies. However, the Commission is empowered to pursue violations on behalf of an absent class — there does not have to be a proactive complainant. At present, the EEOC is actively engaged in hundreds of claims involving alleged violations of applicant/employee rights associated with background check procedures, and we anticipate the recent Commission guidelines to encourage the plaintiffs’ bar to focus on this area of the law in the context of class actions. In sum, this is a good time for businesses to take a fresh look at not just their paperwork, but in how they utilize the results of any consumer investigative report.

Editor’s note – Please see our other coverage of the EEOC’s guidance on use of background check’s here.

EEOC’s Guidance on the Use of Criminal History Records Under Title VII Comes as New News to Many Small Businesses

In our post on April 30, 2012, we highlighted the EEOC’s recent guidance on the use of criminal history records to discriminate against job applicants. To read our original post click here. As businesses large and small now look to make sense of the new guidance, and to tailor appropriate policies, many are discovering that they may have been unknowingly violating the law. For some interesting thoughts on the EEOC’s Guidance on the use of criminal history records under Title VII from the perspective of small businesses, check out this well-sourced post by New York Times reporter Robb Mandelbaum and his related article.

EEOC Issues New Guidance on Use of Arrest and Conviction Records Under Title VII

On April 25, 2012, the EEOC issued its first update in 20 years of its position on employers’ use of arrest and convictions records in making employment decisions.

The EEOC’s Guidance discusses employers’ use of arrest and conviction records in the context of Title VII of the Civil Rights Act’s prohibition on race and national origin discrimination. It first makes clear what most employers already know – employers cannot require or apply criminal background checks differently for one group of employees than another protected class of employees. The focusof the EEOC’s new Guidance, however, is that reliance on criminal records can have a disparate impact on certain protected groups and, therefore, violate Title VII.