COVID-19 also known as the corona virus has inundated the normalcy of everyday existence like a worldwide flash flood. Currently, the flood waters are predicted to rise before they recede. More will be attempted by government to keep the flood at bay, as shown by Governor Evers’ “Safer at Home” Order signed on March 24, 2020.

The COVID-19 pandemic will eventually subside. But for now, it is threatening to overwhelm a significant portion of our national, state and local economies. Social distancing to a six-foot minimum is relatively easy compared to the challenges facing employers in responding quickly and effectively to keep the workplace safe for all employees in this pandemic.

The Center for Disease Control (CDC) is issuing guidance to employers with respect to how best to keep the workplace safe at this time of the pandemic. See, for example, www.osha.gov. That guidance tracks well with the general duty clause under the Occupational Safety and Health Act (OSH Act.) With the CDC guidance and OSH Act in mind, questions arise such as how do employment laws like the Americans with Disabilities Act (ADA) meant to protect an individual worker’s rights from discrimination and retaliation, affect the decisions that the responsible employer must make in balancing safety versus individual employee interests? May the responsible employer, in the urgency of a pandemic, take steps that it ordinarily would not take such as taking the temperature of an employee who does not show signs of COVID-19 or requiring an employee to self-quarantine if he or she has recently traveled to an area known to be experiencing so-called “community spread” to protect the workplace?

In addressing the many issues that must be considered by employers trying to manage their business effectively, it is important to note that the ADA has not been repealed. Employers must remain mindful of the rights of employees to be free from disability discrimination (or the perception of a disability), the requirement for reasonable accommodations and the limitations on medical examinations and inquiries, under the relevant rules and regulations of the ADA. In ordinary times, when there is not a direct threat to the workplace posed by a pandemic, this means to limit the inquiries that an employer makes about the health status of any individual employee.

However, in instances where a health pandemic and a national emergency have been declared, an employer that acts reasonably in making health-related inquiries in the interest of overall workplace safety will almost certainly be afforded more latitude under applicable employment laws, even when aggressively engaging in health-related inquiries of its workforce or requires an employee to leave the workplace due to suspected COVID-19 exposure than it would under ordinary circumstances. In other words, the balance between protecting individual employee rights and overall workplace safety has shifted in favor of workplace safety. The name of the game for the prudent, lawful employer is to achieve workplace safety in a manner that is reasonable and consistent with federal and state health experts. Of course, what is reasonable may vary significantly from business to business. For example, a business that does not require travel may not have the same need to ask its employees about disease-related symptoms as a business that ordinarily has employees that travel throughout the country.

The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the ADA, has recently confirmed that employers should follow the guidance of the CDC. The EEOC issued new guidance on March 19, 2020 that specifically states that while the ADA continues to apply in times of a pandemic, the law should not “prevent employers from following the guidelines and suggestions made by the Center for Disease Control” or the guidance of state or local authorities. See, for example, www.eeoc.gov. This means that employers may, in some circumstances, take the temperature of their employers. But caution is warranted for many reasons, including the fact that a person with COVID-19 disease may not have a fever, according to the CDC.

The Wisconsin government entity that addresses statewide health issues is the Department of Health Services (DHS). It has a robust website that offers helpful guidance to employers and others about COVID-19. It is found at www.dhs.gov.

The EEOC’s updated pandemic guidance is speaking clearly to employers. Prudent employers are advised as follows:

1. Keep your workplaces safe and stay within the bounds of applicable law, follow the guidance of the CDC and state and local health officials.
2. Remember to keep specific health information on individual employees separate and confidential.
3. Make inquiries about the health of your workers, but do so reasonably and without hysteria by following the guidance of the health experts.
4. Educate your employees about the information available through the CDC and the Wisconsin DHS.
5. Remind employees often of effective measures to reduce the spread of COVID-19.

Finally, the responsible employer with fewer than 500 employees is advised to review and follow, if applicable, the new mandated sick leave and emergency FMLA benefits to be provided to most employees under the recently passed Families First Corona virus Response Act. The prudent employer will want to compare those mandated benefits with the benefits that the employer may already provide to its employees as part of its paid time off or sick leave benefits. The Families First legislation will become effective no later than April 2, 2020.

For the foreseeable future, the employment law landscape will be deluged by the COVID-19 pandemic. The prudent employer will stay alert to guidance put forth by the CDC, the Wisconsin DHS, and the U.S. Department of Labor. Contact your Anderson O’Brien lawyer with any questions that you have concerning keeping your business afloat with a minimum of legal risk.

 

One of the most significant benefits of seeking advice from your lawyer are the ethical rules that generally require that the communications with your lawyer are confidential.  This means that, except in some limited circumstances, information that a business or individual client conveys to the business’s or the individual’s attorney remains confidential.  One such exception to this general rule is if an employee uses the employer’s email domain to communicate with employee’s lawyer.  Confidentiality may be lost in that instance.

Consider this example:  If Emily, an employee, wants to communicate with her lawyer about her employer, ACME, Inc., regarding her concerns about sexual harassment in the workplace, she ordinarily may do so with every confidence that the communication will not lose its confidential nature.  However, one way that the private, confidential nature of Emily’s communication to her lawyer may be lost is if she and/or her lawyer uses the ACME email domain/server to communicate.  This is particularly true in instances where the employer has made it clear in its handbook that employees have no expectation of privacy in communications made over the company’s email server.

If an employee uses an employer’s email domain to communicate with his or her lawyer, there is a significant risk that the communications may lose the protection of confidentiality.  This was the case in a recent Florida case, where the court said that the information sent between client and attorney over the employer’s email domain and server was not protected by rules of confidentiality and the attorney client privilege.

As such, an employee is well-advised to use an email domain other than one that is provided by the employer when communicating with their lawyer.  The employer is well-advised to specify as part of its policies in its employee handbook that employees should not expect privacy or confidentiality for matters that are shared over the employer’s email domain.  In other words, employers should consider drafting a well-written policy that there is no expectation of privacy if the employee uses the employer’s server or email domain for personal purposes.  Finally, although it may be inconvenient, a person or business that communicates with an attorney should take care to use a method of communication that maintains confidentiality, one of the greatest benefits of seeking legal advice from an attorney.

 

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace because of sex.  Title VII applies to employers with 15 or more employees.  By contrast, the Wisconsin Fair Employment Act prohibits discrimination on the basis of sex and sexual orientation.  The WFEA applies to employers with one or more employees.

The U.S. Equal Employment Opportunity Commission (“EEOC”) is the federal agency that is empowered to investigate allegations of discrimination under Title VII.  The EEOC recently sued El Tio Tex-Mex Grille, a restaurant in Gainsville, Virginia, with intentionally allowing harassment of one of its employees based on sex.

The EEOC alleged that El Tio employees, including servers and kitchen staff, routinely subjected a gay male server to unwelcome harassing and offensive behavior that included the use of homophobic epithets and taunts about his sexuality.  The same employees similarly harassed the server’s straight friend, a busser, based on their friendship.  The server and the busser reported the harassment to El Tio’s management several times, but management allegedly ignored their complaints, failed to take reasonable measures to curb the harassment, and neglected to implement any anti-harassment policies or training. The harassment continued, according to the EEOC.

As a settlement, El Tio has agreed to pay Forty Thousand Dollars ($40,000.00) and provide specific and extensive training to its employees for a three-year period following the settlement, with monitoring by the EEOC.

For Wisconsin employers, state law forbids harassment based on an employee’s gender, as well as his or her sexual orientation. Consequently, Wisconsin employers are well advised to maintain a workplace that is free from homophobic taunts or similar verbal or physical harassing activity, lest the employer become the subject of a complaint filed with the EEOC or the Wisconsin Equal Rights Division. Employers should not ignore complaints. Every employer should have an up-to-date anti-harassment policy as part of its employee handbook.  The U.S. Supreme Court has held that such a policy may be a partial or complete defense to a complaint of sex harassment in certain instances.  For more information concerning compliance with state and federal workplace laws, consult with your employment attorney.

 

All Wisconsin employers likely are aware of the requirement to dialogue with a disabled employee about whether a reasonable accommodation would assist the employee to effectively perform the essential functions of the job.

While the requirement is well-known, applying it to a specific fact situation can prove challenging because what is reasonable or effective will necessarily vary from situation to situation.

Bath and Body Works, LLC, a national chain with more than 1,600 retail stores selling a range of home fragrance products, learned the hard way that there are differences in opinion with respect to whether an accommodation is reasonable under the circumstances. Bath and Body Works will pay over $38,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission.

According to the lawsuit, a Bath and Body Works store in Minnetonka, Minnesota refused to supply a reasonable accommodation to a lead sales associate with type-1 diabetes suffering retinopathy. The employee asked for a larger monitor screen for the cash register, but instead, the manager purchased an inexpensive, hand-held magnifying glass.

The EEOC maintains that the manager’s conduct violated the Americans with Disabilities Act, which requires an employer to provide employees and applicants with a reasonable accommodation for a disability, unless it causes the employer an undue hardship.

The EEOC then filed suit in federal court. Under the ensuing consent decree that settled the lawsuit, Bath and Body Works will pay the employee $38,000 and is required to adopt district-wide policies to prevent future violations of the ADA.

What is the lesson for employers and employees? An employer should be aware of and have access to past cases and how the “reasonable accommodation” rule may be interpreted by the EEOC and the Wisconsin Equal Rights Division (the state counterpart to the EEOC) in a given matter. Both employers and employees should know that an accommodation is not reasonable merely because it is requested by an employee. Rather, the accommodation must be effective and not pose a hardship to the employer. In the Bath and Body Works case, it is apparent that the EEOC viewed the purchase of a magnifying glass for the disabled employee as a failure of the employer to meet its duty of reasonable accommodation under the ADA. For further assistance in assessing what a reasonable accommodation may or may not be, contact your employment law attorney.

 

Most employers know that it is illegal to discriminate in the employment process. Employment discrimination commonly occurs when an employee or job applicant is treated unfavorably because of his or her race, skin color, gender, disability, religion, or age, among other factors. It is also against the law to retaliate against an employee or job applicant who makes a claim of unlawful discrimination.

Many employers may be unaware of the law that prohibits discriminating against work-authorized, non-U.S. citizens when verifying their work authorization at the start of employment. The Immigration and Nationality Act (“INA”) prohibits discrimination against individuals who are otherwise authorized to work in the U.S., even if they are not U.S. citizens.

Mrs. Fields’ Original Cookies, Inc. recently learned the hard way that it may not discriminate against non-U.S. citizens when verifying their work authorization for employment. The U.S. Justice Department disclosed in December 2018 that Mrs. Fields had been requiring lawful permanent residents to provide specific documentation to prove their work authorization status, while not imposing that specific documentation requirement on U.S. citizens.

Under the INA, all work-authorized individuals, regardless of citizenship status, have the right to choose which document to present to employers, from a range of valid documents, to demonstrate their authority to work in the United States. In the employment context, work authorization typically arises at the point in the hiring process when an employer needs to verify an employee’s work authorization. This is accomplished by following the guidance under Form I-9.

Although all U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment, the INA provides a specific list of acceptable documents evidencing identity and employment authorization. An employer, as Mrs. Fields now knows, may not pick-and-choose what documents it will accept. Rather, an employer must accept any valid authorization document presented by an applicant.

Under the settlement reached with the Justice Department, Mrs. Fields will pay $26,400.00 in civil penalties to the United States and be subject to monitoring and reporting requirements.

What lessons may be learned from the Mrs. Fields experience? First, acknowledge that it is not desirable for an employer to create a recipe for employment verification that differs from the recipe set forth within federal law, to use a baking metaphor. Second, employers should be aware that all U.S. citizens, lawful permanent residents and other work-authorized individuals are protected from national origin discrimination in the workplace. Employers may not request more or different documents than are required to verify employment eligibility, as set forth under the I-9 process, with the purpose or intent of discriminating on the basis of citizenship or national origin. We suggest consulting with your employment law attorney with any questions or for a review of your hiring practices to make sure that they comply with applicable state and federal law.