Archive
OSHA Publishes Guidance on Returning to Work
On June 18, 2020, the Occupational Safety and Health Administration (OSHA) published Guidance on Returning to Work (the “Guide”). The Guide, just as with other recent COVID-19-related OSHA publications, was published as recommendations meant to assist employers, and does not impose new regulations or standards.
The Guide supplements OSHA’s previously published Guidance on Preparing Workplaces for COVID-19, and expands on the three-phased re-opening approach articulated in the White House’s Opening Up America Again:
- Phase 1: Businesses should encourage telework where feasible. Where not feasible, businesses should consider limiting the number of people in the workplace to maintain proper social distancing. Flexibilities and accommodations for employees who are at high-risk of contracting the virus should be considered.
- Phase 2: Businesses should continue to allow telework but can begin to ease up on social distancing protocols at the workplace.
- Phase 3: Businesses may resume without restrictions at the workplaces.
The Guide then identifies nine key areas employers should assess when creating their re-opening plans, and provides examples to guide employers in each area:
- Hazard assessment
- Hygiene
- Social distancing
- Identification and isolation of sick employees
- Return to work after illness or exposure
- Controls
- Workplace flexibilities
- Training
- Anti-retaliation
The Guide is not meant to cover every scenario or to provide the only solution to the various challenges that businesses may encounter when re-opening. Employers reviewing the Guide should keep in mind that that the Guide provides recommendations that should be read in the context of local re-opening regulations and recommendations from the CDC. It is important to keep up-to-date with the state and local orders and implement those directives within this framework provided by OSHA.
For more information, please contact Amanda Thibodeau.
EEOC Updates COVID-19-Related Employer Guidance on Antibody Testing
The U.S. Equal Employment Opportunity Commission (“EEOC”) again updated its employer guidance related to COVID-19 late last week, this time with guidance related to employers requiring antibody testing before allowing employees to return to the workplace.
The EEOC previously released guidance allowing employers to conduct temperature checks on employees and to inquire about COVID-19-related symptoms as part of their outbreak mitigation strategies. The EEOC also advised employers that they could require employees to test for COVID-19 prior to returning to the workplace. These are temporary practices that are typically disallowed by the Americans With Disabilities Act (ADA).
The EEOC clarified now, however, that based on guidance from the Centers for Disease Control (CDC), employers cannot require antibody testing before allowing employees to return to the workplace. Antibody testing, the EEOC advises, is considered a medical examination under the ADA and does not meet the “business necessity” standard. Employers may still require viral testing to determine of an employee has an active COVID-19 case, but antibody testing is strictly disallowed.
Morse is focused on assisting our clients through these unprecedented and challenging times. Please contact the Firm should you have questions concerning this subject, or any other COVID-19 response matters.
OSHA Publishes FAQs on Face Coverings in the Workplace
The Occupational Safety and Health Administration (OSHA) recently published additional recommendations in the form of FAQs related to the use of face masks in the workplace. The new guidance covers the differences between PPE, cloth face masks, and surgical masks, and what the current OSHA regulations require of employers. OSHA clarifies that the new FAQs do not place new regulatory burdens on employers, but are instead provided to assist employers in providing a safe workplace under current regulations.
The Occupational Safety and Health Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their employees with “a workplace free from recognized hazards likely to cause death or serious physical harm.” This generally requires employers to adopt strategies and other control measures to protect their workers from known hazards. While cloth face coverings are encouraged by the Centers for Disease Control (CDC), current OSHA regulations do not require cloth face coverings. However, OSHA does have regulations and standards on when PPE is required or recommended. It also notes that cloth face coverings or even surgical face masks are not a substitute for PPE, such as N95 masks, under OSHA’s PPE standards.
OSHA’s FAQs detail the differences between cloth face coverings, surgical masks, and respirators, and the merits and protections of each. OSHA recommends that even though cloth face coverings are not required under its regulations, employers may choose to adopt such a policy as a control measure, and OSHA does encourage their use. OSHA notes, however, that whether an employer chooses to require or encourage masks will be highly dependent on the specific circumstances of each worker, workspace, and work requirements. In some instances, the wearing of a face covering may increase other hazards, and employers should be cognizant of evaluating such risks when forming any policies on face coverings. OSHA also emphasized that face coverings are not a substitute for social distancing measures, and employers must still adopt such strategies with or without face coverings.
OSHA additionally made clear that for industries or situations where respirators and other PPE are required by the presence of applicable workplace hazards, the regulations require that employers attempt other mitigation and control strategies before requiring respirators – but when respirators cannot be obtained due to supply issues (or other unavailability), employers cannot substitute cloth or surgical masks. For example, where asbestos is present and creates an imminent danger to the worker, the employer must attempt other control issues (engineering, administrative, and work practice controls) first. If the control measures do not eliminate the hazard and respirators are not available, the employer must delay the task, if feasible, to avoid exposing the worker to the hazardous condition.
For more information, please contact Amanda Thibodeau.
SCOTUS Rules on Title VII’s Protections for LGBTQ+ Employees
The U.S. Supreme Court released its highly anticipated landmark decision on whether Title VII of the Civil Rights Act of 1964 (“Title VII”) includes sexual orientation and gender identity as protected from employment discrimination. The Court, in a 6-3 decision, held that the term “sex” in Title VII protects LGBTQ+ employees from employment discrimination.
The Supreme Court reviewed three consolidated cases: Bostock v. Clayton County, Georgia, No. 17-1618; Altitude Express Inc. v. Zarda, No. 17-1623; and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, No. 18-107. Morse previously discussed the facts of these cases here. Justice Gorsuch wrote for the majority and was joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justices Thomas, Alito, and Kavanaugh dissented.
The cases turned on whether Title VII’s prohibitions on discrimination “because of sex” included gay and transgender employees. As Justice Gorsuch writes,
Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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 plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Justice Gorsuch explains that under the plain terms of Title VII, an employer is in violation when it takes an adverse action against an employee based, at least in part, on sex. Gorsuch emphasizes that “changing the employee’s sex would have yielded a different choice by the employer.” For example, the Court writes, with two employees who are both attracted to men and are, otherwise, identical, but one is male and one is female, if the employer fires the male employee because he is attracted to men, while keeping the female employee, then the employer has violated Title VII. Discrimination against LGBTQ+ employees, Gorsuch made clear, “necessarily entails discrimination based on sex; the first cannot happen without the second.”
The majority also held that other factors, along with sex, may contribute to an employer’s decision. In other words, the employee’s sex, including their homosexuality or gender identity, “need not be the sole or primary cause of the employer’s adverse action” to run afoul of Title VII.
The dissent written by Justice Alito emphasizes that because homosexuality and gender identity were not commonly known or supported in 1964, the drafters of Title VII did not intend to include LGBTQ+ employees in its protections. Instead, they argue, “because of sex” was meant only to protect against treating women differently than men, and vice versa. Justice Kavanaugh filed his own dissent which makes the argument that while he agrees that Title VII should be expanded to cover sexual orientation, it is not the job or responsibility of the Court to amend Title VII. Instead, that power “belongs to Congress and the President in the legislative process….”
Of note, the Court did not come to a decision on how religious freedom laws, such as the Religious Freedom Restoration Act, would affect such Title VII cases, as none of the litigants raised the issue on appeal. But, the Court did acknowledge that these “are questions for future cases….”
Two of the three named plaintiffs sadly passed away prior to the Court’s decision, but their cases will now have significant implications for employers and LGBTQ+ employees across the country. Up until this decision, many states and jurisdictions were either split or silent on whether Title VII protected LGBTQ+ employees. Even on the federal level, the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice held positions contrary to each other. Now that the highest Court has spoken on the issue, states and agencies alike will now be generally aligned in their positions in protecting LBGTQ+ employees and prosecuting employers who take discriminatory actions. Some states, like Massachusetts, already provided their own individual protections based upon sexual orientation and gender identity, but many states previously did not. Employers should review their internal anti-harassment policies and make sure employees are trained on the prevention and reporting of any discrimination.
For more information, please contact Amanda Thibodeau.
EEOC Updates COVID-19-Related Employer Guidance
The U.S. Equal Employment Opportunity Commission (“EEOC”) again updated its employer guidance related to COVID-19 late last week, this time with guidance related towards warning employers against falling into traps related to age discrimination or age bias when bringing employees back to work facilities, as well as discrimination based on other factors such as race or national origin, and pregnancy and sex.
Learn about the EEOC’s specific guidance related to age discrimination, harassment and discrimination based on race or national origin, and pregnancy and sex discrimination in our COVID-19 Alert.
Massachusetts Employment Law Blog 