Take a deep breath. Now exhale. While the country awaits the results of the presidential race and many others that are still too close to call, the 2020 election made one thing clear: the march toward 50-state legalization of marijuana (and now perhaps other drugs) continues. On Tuesday, voters in five states decided to legalize recreational or medical marijuana, while Oregon voted to decriminalize most hard drugs, including heroin and cocaine. We summarize each ballot initiative and its outcome below.

Arizona

Ballot Summary: Although a similar initiative was narrowly defeated at the polls in 2016, voters in the Grand Canyon State approved Proposition 207: The Smart and Safe Arizona Act, which legalizes the sale and possession of up to one ounce of marijuana and five grams of THC concentrate by adults age 21 and over. Arizona has already legalized the use of medicinal marijuana. Proposition 207 also allows individuals convicted of certain marijuana-related crimes to apply to have their criminal records expunged. Although the measure becomes effective as soon as the votes are certified and the governor issues a proclamation, it will likely take several months for the Department of Health Services to license the dispensaries where residents will be able to purchase marijuana products.

Employment Implications: Nothing in the measure restricts an employer’s right to maintain a drug-free workplace or otherwise prevent employers from restricting marijuana use by their employees or applicants. The measure also does not require employers to permit or accommodate the use or consumption of marijuana “in a place of employment.”

Montana

Ballot Summary: Montana voters approved two ballot initiatives related to legalizing recreational marijuana. Initiative No. 190 (“I-190”) legalizes the use and possession of up to one ounce of marijuana by all persons who are at least 21 years old, effective January 1, 2021. Under this initiative, anyone serving a prison sentence for a marijuana-related offense that is decriminalized by the law may request re-sentencing or expungement. Voters also approved Constitutional Initiative No. 118 (CI-118), which allows the legislature or the people via ballot initiative to establish the legal age for marijuana use. Effectively, this constitutional amendment, coupled with the passage of I-190, limits recreational marijuana use to adults age 21. The Montana Department of Revenue will issue further rules and regulations by October 1, 2021.

Employment Implications: As with most of the other measures discussed in this article, I-190 does not require employers to permit or accommodate the use of medical marijuana “in any workplace or on the employer’s property.” The law will not prevent employers from disciplining employees or declining to hire an applicant who violates the employer’s drug policies or works while stoned.

New Jersey

Ballot Summary: Recreational marijuana was also on the ballot in New Jersey, where voters chose to legalize possession and use by adults age 21 and older. Public Question 1 amends the state constitution to legalize marijuana and authorizes the state’s existing Cannabis Regulatory Commission to oversee the new adult marijuana market, but leaves it up to the state legislature and local governments to provide further rules and regulations. The Constitutional amendment is effective January 1, 2021.

Employment Implications: Public Question 1 is silent with regard to its effect on private employers. Any direct employment implications will arise from the subsequent legislation or regulations. In the meantime, as we previously reported, New Jersey employers may still need to provide reasonable accommodations for medical marijuana users.

South Dakota

 Ballot Summary: In South Dakota, voters passed two ballot initiatives related to marijuana. Initiated Measure 26 creates a medical marijuana program for patients with debilitating medical conditions, while Constitutional Amendment A permits the use and possession of up to one ounce of marijuana (or eight grams of THC concentrate) by those age 21 and older. The medical marijuana program will begin on July 1, 2021. Adults age 21 and over will also be permitted to possess and use marijuana starting July 1, 2021, although the state has until April 1, 2022 to develop rules and regulations regarding the sale of recreational marijuana.

Employment Implications: Initiative Measure 26 requires employers to treat medical marijuana patients the same as any other employee prescribed a pharmaceutical medication (including drug testing), but it does not require employers to permit marijuana use “in any workplace” or working under the influence of marijuana. However, the measure explicitly provides that a medical marijuana patient is not considered under the influence “solely because of the presence of metabolites or components of cannabis that appear in insufficient concentration to cause impairment.” Constitutional Amendment A does not require employers to permit or accommodate recreational marijuana use, nor does it affect an employer’s ability to prohibit marijuana use by its employees.

Mississippi

Ballot Summary: Mississippi voters approved Initiative 65, which amends the state constitution to allow physicians to issue medical marijuana certifications to certain patients with debilitating medical conditions. The program permits patients to possess up to 2.5 ounces of marijuana, which they can obtain from a medical marijuana treatment center. Mississippi has until July 1, 2021 to establish rules and regulations implementing the medical marijuana program.

Employment Implications: The measure does not require employers to accommodate medical marijuana users or require any on-site use of medical marijuana.

Oregon

 Ballot Summary: With the passage of Measure 110, Oregon became the first state to decriminalize the personal, non-commercial possession of small amounts of Schedule I-IV controlled substances, including heroin, cocaine, and methamphetamines. The measure will take effect February 1, 2021.

Employment Implications: Measure 110 is silent with respect to employment and therefore does not impose any additional obligations on employers.

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Employers and health care professionals should prepare to handle issues that arise with the potential conflict between state and federal law in devising compliance, both in terms of reporting and human resources issues. As states and localities increasingly permit medicinal and recreational marijuana, employers – and particularly those with multi-state operations – must review and evaluate their current policies with respect to marijuana use by employees and patients.

Although cannabis (marijuana) remains an illegal substance under federal law, companies in the cannabis industry are not exempt from complying with federal laws in general. A recent flurry of complaints filed in federal courts and with federal administrative agencies have highlighted the obligation of companies in the cannabis industry to comply with Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act of 1967 (the “ADEA”), and the Americans with Disabilities Act (the “ADA”). These employers must also remain compliant with state and local anti-harassment training regulations. Not only are such trainings required in many jurisdictions, but when considering the factual scenarios in the cases below, one can readily understand how the trainings can help reduce the risk of exposure to claims of harassment and discrimination. While employers may find the bevy of federal, state, and local anti-harassment laws overwhelming, Epstein Becker & Green’s Halting Harassment® program is 50-state compliant and designed to help employers ensure compliance. Our Halting Harassment® program can help new cannabis companies navigate the gamut of anti-discrimination laws, and avoid the pitfalls of compliance.

Recent Discrimination Complaints Against Cannabis Companies

On July 29, 2020, in Soule v. New England Treatment Access LLC, plaintiff, a transgender woman with post-traumatic stress disorder (“PTSD”) and brain trauma injuries related to her service in the military, as well as diagnoses of depression and anxiety, sued her marijuana dispensary employer alleging that it engaged in discrimination in violation of Title VII, the ADA, and the Massachusetts Fair Employment Practices Act. Specifically, the plaintiff alleged that the dispensary’s supervisors and coworkers subjected her to a wide range of sexist and transphobic workplace comments and conduct, including, among other things:

  • the human resources department’s making public the knowledge of the plaintiff’s transition, after which the plaintiff was passed over for promotion;
  • asking the plaintiff about personal and medical information about her transition, and sharing the information in the workplace without the plaintiff’s permission;
  • denying the plaintiff access to her preferred bathroom and locker room facilities;
  • addressing the plaintiff by the wrong pronouns;
  • failing to change the plaintiff’s name and picture on her work badge following her transition;
  • subjecting the plaintiff to inappropriate touching; and
  • subjecting the plaintiff to intentional exacerbation and mockery of her PTSD, anxiety, and depression.

The plaintiff also claimed that upon requesting accommodations and leave from work for her disabilities, symptoms of which had worsened due to the alleged harassment, the company did not accommodate her medically supported request for extended Family and Medical Leave Act leave. When the plaintiff requested to return to work, the company allegedly told her that the job was no longer available and offered her a different position that interfered with her medication schedule. The employer has answered the complaint, and the case remains pending in the trial court.

On September 16, 2020, in Dieffenback v. Greenleaf Compassionate Care Center, Inc., a former medical marijuana dispensary accountant filed a complaint against his former employer, alleging violations of the ADEA, the ADA, and the state’s parallel anti-discrimination statutes. The plaintiff, a 71 year-old man, alleged that, among other things, after blowing the whistle on misappropriation of funds and conflicts of interest, executives referred to him as a “silver fox” and harassed him about his “antiquated” record keeping methods. He also claimed that executives asked him about his health, specifically a perceived lung illness, and age. After reporting the alleged harassment to human resources, the plaintiff claimed, the company retaliated against him by gradually reducing his job duties and transferring his work to a younger employee who did not have a perceived disability. The dispensary ultimately terminated plaintiff’s employment. The dispensary has not yet filed an answer to the complaint.

On September 24, 2020, in EEOC v. AMA Investment Group, LLC, the Equal Employment Opportunity Commission filed a complaint on behalf of several current and former employees against their employer, a marijuana dispensary, and its Arizona-based parent corporation. The marijuana dispensary employees claimed that the employer had engaged in sex-based discrimination in violation of Title VII by creating a sexually hostile work environment. Women and a gay man who worked at the dispensary alleged that their manager had made sexualized comments and engaged in sexualized behavior, including inappropriate touching toward them, but not straight male employees. The complaint alleged that the defendant employer did not have an anti-harassment or anti-discrimination policy in place for at least a year after the alleged discriminatory behavior began. When the company eventually established a policy, it allegedly required harassment complaints to be directed to either the aforementioned manager, or the human resources department located within the Arizona parent company’s offices. The complaint alleged that the policies, however, failed to provide the contact information for the Arizona-based human resources department. It also alleged that the employees feared making forTmal complaints to the aforementioned manager, who told employees that he was key to their access to employment opportunities in the cannabis industry. The defendants have not yet filed an answer to the complaint.

Considerations for Employers in the Cannabis Industry

These cases provide a harsh reminder to cannabis industry employers that even companies in a new, growing, and progressive industry are not immune from the risk of discrimination litigation. As the end of the year approaches, employers are reminded that many states and localities, including California, Connecticut, Delaware, Illinois, Maine, and New York require anti-harassment training. To comply with the current and unprecedented number of laws concerning anti-harassment training in the workplace, employers may utilize Epstein Becker & Green’s Halting Harassment®. Our e-learning solution provides compliant, compelling, interactive, computer-based training for all company employees in addition to supplemental training for supervisors. Designed to help employers in jurisdictions with mandatory training requirements, as well as those in locations without them, Halting Harassment® encourages behaviors that foster a work environment free from discrimination and harassment.

Please contact Nathaniel M. GlasserAnastasia A. Regne, or Eric I. Emanuelson, Jr. for assistance with questions regarding anti-harassment prevention, treatment of cannabis users in the workplace, and drug testing policies, and for information about Epstein Becker & Green’s Halting Harassment® program.

As featured in #WorkforceWednesday:  This week, workplace safety and liability issues are top of mind while employers also look ahead to the tax issues telecommuting will cause this tax season.

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The first legal challenge to Executive Order 13950 (the “Order”) has been made. On October 29, 2020, the NAACP, representing the National Urban League, and the National Fair Housing Alliance, filed a civil rights class action lawsuit in the United States District Court for the District of Columbia (Case No. 1:20-cv-03121), requesting injunctive and declaratory relief against the President of the United States, the U.S. Secretary of Labor and the U.S. Department of Labor. Specifically, the lawsuit seeks for the Court to strike down the Order, declaring it unlawful and invalid, arguing it violates inter alia the First Amendment protection of free speech and the Fifth Amendment equal protection clause.

The lawsuit is in response to an Order, entitled “Combating Race and Sex Stereotyping,” issued on September 22, 2020, prohibiting federal government contractors (“Contractors”), as well as federal agencies and the military, from using a workplace training program that “inculcates in [their] employees any form of race or sex stereotyping or any form of race or sex scapegoating.” As we indicated in our Act Now Advisory, Executive Order Prohibits Inclusion of “Divisive” Concepts in Workplace Training, the Order prohibits those Contractors entering into new contracts, beginning November 21, 2020, from incorporating certain “divisive” concepts, set forth in the Order, such as systemic racism, white privilege, male privilege, and the idea that the United States is a racist country, into diversity and awareness training programs. The Order also directs all federal agencies to review their respective grant programs and identify programs which may require recipients to certify that federal funds will not be used to promote the concepts prohibited by the Order.

The NAACP stated, in support of the lawsuit,

Despite the urgent need to address and remedy systemic discrimination and counter the harms stemming from implicit biases, EO 13950 unconstitutionally forces Plaintiffs to choose between censoring speech on these important issues or forfeiting any opportunity to enter into a federal contract for the provision of goods or services or to receive federal funds as a grant recipient. The infringement of Plaintiffs’ private speech on these matters of public concern and public welfare is deeply troubling… This censorship of Plaintiffs’ speech by the federal government is anathema to a free democracy.

The NAACP argues that (i) Plaintiffs have been and will be irreparably harmed by the President’s ultra vires Order issued in violation of the First Amendment and have no adequate remedy at law; (ii) the Order is unconstitutionally vague in violation of the Fifth Amendment’s Due Process Clause; and (iii) the stated justifications and policy rationales for the Order are pre-textual and meant to obfuscate its impermissible discriminatory purpose. For relief, the NAACP requests that the Court order a declaration that the Order is unlawful and invalid, and issue a permanent injunction enjoining the President of the United States, the U.S. Secretary of Labor, and the U.S. Department of Labor from implementing or enforcing any part of the Order.

While the NAACP seeks immediate relief, federal government contractors will need to take a wait-and-see approach as the litigation plays out, with many variables at play, including potential appeals to the United State Supreme Court, and the outcome of the presidential election.

As the COVID-19 pandemic continues to affect workplaces throughout the world, employers are considering new ways to ensure a safe workplace when employees return to the office. Outside the US, employers must balance their duty of care to protect the health and safety of all their employees with safeguarding employees’ privacy and complying with data protection regulations. Many employers already have analyzed whether they may require or request employees to (i) submit to COVID-19 testing at the workplace, (ii) certify certain health information regarding exposure to COVID-19 and (iii) wear a face covering in the workplace. Another relatively recent development employers outside the US may wish to consider is whether they may require or request employees to download a COVID-19 contact tracing application to their smartphones to track employees’ movements and contacts to enable employers to alert employees if they have been exposed to a co-worker with COVID-19.

Consent in the Employment Context

Requiring or requesting employees to download a contact tracing application raises data privacy issues. To start, in the EU and elsewhere processing employee personal data, including location data, generally requires employers to obtain employee consent. As such, using an employer-sponsored COVID-19 contact tracing application must be voluntary. But it is very difficult for employers in the EU and other countries to demonstrate that employees’ use of the application actually is voluntary. This is because those jurisdictions view consent skeptically in the employment context because of the perceived unequal bargaining position between employers and employees.

There may, however, be a way to implement contact tracing through use of a mobile phone application that is legally complaint with the General Data Protection Regulation (“GDPR”). Under the GDPR, EU employers may process employees’ personal data when necessary for employers’ legitimate interests or the legitimate interests of a third party, unless there is an overriding reason to protect the individual’s personal data. In addition, employers must comply with GDPR rules when processing special category (sensitive) data, which includes health data. To ensure that employers’ processing of special category data is lawful, employers must first identify an Article 6 basis for the processing, and then must meet one of the specific conditions in Article 9, which includes explicit consent. To establish explicit consent under the GDPR, the consent must (i) be a clear statement (oral or written), (ii) specify the nature of the special category data and (iii) be separate from any other consent.

Jurisdiction-Specific Considerations

Prior to rolling out a COVID-19 contact tracing application, employers should analyze whether such an application is permissible in specific jurisdictions. Some countries, including Australia, India, Japan, Singapore, Spain and the United Kingdom, among others, have state-sponsored applications and also allow employers to request employees to download a workplace contact tracing application. Government applications are not necessarily widely used (as is the case in Spain and the UK); therefore, an employer-specific application, although arguably redundant, may actually provide better workplace contact tracing and with it, better employee health safeguarding.

There are some countries, however, which ban contact tracing applications. In Luxembourg, for example, the National Commission for Data Protection has stated that employers should not use contact tracing applications to process employee data. After national debate, Luxembourg decided not to develop a national contact tracing application. The decision applies to employers, who if they do not comply, may be subject to fines and/or criminal sanctions.

In other countries, including France, Germany and Ireland, where the government has rolled out a state-sponsored COVID-19 contact tracing application, employers likely face an uphill battle in demonstrating that a workplace application is necessary and proportionate in light of data privacy laws.

Proposed Solutions

To minimize data privacy issues, EU employers should provide employees with a detailed notice statement that contains specific information regarding the purpose and scope of the data collection and includes an employee acknowledgment. This detailed notice statement should not be a “one-size-fits-all” form, but instead should be tailored for specific circumstances.

Where an employee can work from home, but may wish to return to the workplace, employers may consider making an employee’s return to the workplace contingent on their downloading the employer’s contact tracing application. In such case, and as a best practice, employers still should provide employees with a specific, detailed notice statement that informs employees of the purpose and scope of the data collection and should obtain the acknowledgement.

Where workplace contract tracing applications are permitted, providing employees with written disclosure and obtaining their acknowledgement and consent should minimize the potential for data privacy claims.

Takeaways

In the end, whether employers should require or recommend employees to download a contact tracing application depends upon both practical and legal issues. Employers should be aware of type and size of the workforce that they have in specific jurisdictions. While some employees may think that the application is a cool gadget, others may have privacy concerns. Local teams may be in the best position to assess this risk.

Epstein Becker & Green continues to monitor workforce management issues in the US and abroad.

As featured in #WorkforceWednesdayEmployers fear that the COVID-19 pandemic could undo recent progress towards workforce equity, with women and caregivers leaving the workforce in droves. Flexible time off, remote work policies, and employee benefits, like on-site child care, are just a few options employers can deploy to retain female talent. Learn more about the legal issues.

Video: YouTube, Vimeo, MP4, Instagram.

As COVID-19 cases once again surge across the country, Washington, D.C. employers must remember to provide both paid and unpaid leave under the new District of Columbia Coronavirus Support Temporary Amendment Act of 2020 (D.C. Law 23-130) (the “Act”).  Although passed in July 2020, the Act formally became effective on October 9, 2020 and will remain in effect through the end of the declared COVID-19 public health emergency—currently December 31, 2021.  The law repeals the emergency laws that we previously blogged about, but carries over the additional obligations to provide employees with paid and unpaid leave for COVID-19-related reasons.  We have summarized both provisions below.

Paid Public Health Emergency Leave under the ASSLA

The Act carries over the amendment to the Accrued Sick and Safe Leave Act (“ASSLA”) (D.C. Code § 32-531.02a), which requires non-healthcare employers with between 50-499 employees to provide workers with up to two weeks of paid public health emergency leave (previously referred to under the emergency laws as “declared emergency leave” or “DOE Paid Leave”).  Notably, the Act does not clarify whether employers are required to count their employees nationwide or just those within the District.

Employees who have worked for their employer for at least 15 days may request paid public health emergency leave for any reason allowed by the federal Families First Coronavirus Response Act (“FFCRA”).  Under the FFCRA, an employee may take paid sick leave if the employee cannot work (or telework) because the employee:

  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
  6. is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

According to the Act, employers must provide enough paid leave to ensure that a full-time or part time employee is able to stay home for two full weeks of work (up to 80 hours).  The leave must be taken over a consecutive two-week period and cannot be taken intermittently.  Employers do not have to modify their existing paid leave policies or programs, provided those policies allow employees to access and use paid leave for COVID-19 related reasons.

Employers may not require eligible employees to provide more than 48-hours’ notice of their need for leave, and they must accept even less notice “in the event of an emergency.”  Additionally, employers may not request certification of an employee’s need for the paid leave unless the employer contributes towards that employee’s health insurance plan, and not until the employee has taken three or more consecutive working days of paid leave.  Furthermore, the employee does not have to provide the certification until at least one week after returning to work.

In a departure from the prior emergency laws, the Act now clarifies that paid public health emergency leave is not a supplement to other paid leave programs.  Employees must use paid public health emergency leave concurrently with or after exhausting FFCRA leave, or any other paid leave provided by the employer or under federal or D.C. law.  When an employee takes paid public health emergency leave concurrently with another leave, the employer does not have to pay the employee any more than 100% of standard pay.  Moreover, if the employee uses paid public health emergency leave after exhausting other paid leave, the employer may reduce the amount of paid public health emergency leave by the number hours taken under other leave laws or policies.

Unpaid DCFMLA Leave

The Act also requires all employers, regardless of their size, to provide up to 16 weeks of unpaid COVID-19 leave to any employee who has worked at least 30 days.  In a new section of the District of Columbia Family and Medical Leave Act (“DCFMLA”), employees may now request unpaid leave if:

  • A health care provider recommends that the employee quarantine or isolate, either due to the employee’s own health needs or because they share a household with a high-risk individual;
  • The employee needs to care for a family or household member who is ordered to quarantine; or
  • The employee needs to care for a child whose school is closed or childcare provider is unavailable.

Employers may require employees to provide certain certifications of their need for unpaid COVID-19 leave.  For example, if the employee needs to take leave because a health provider recommended they isolate or quarantine, the employer may require a written, dated statement from that health care provider.  Although the health provider must estimate the “probable duration” of the employee’s need, the certification does not have to disclose any condition underlying that need.  If the employee must stay home because their child(ren)’s school is closed or childcare provider is unavailable, the employee need only provide a statement from the head of the agency, company, or childcare provider indicating such closure.  Employers must accept statements pulled from the institution’s website.

Employees may reduce the economic impact of a prolonged unpaid absence by using other paid leave provided by the employer, and that paid leave will count against the 16 workweeks of unpaid leave.  Thus, for example, if an employee chooses to take D.C. Paid Family Leave (“PFL”) because they have received an official diagnosis of COVID-19 or they need to provide care or companionship to a family member diagnosed with COVID-19, the time taken for PFL will count against the 16 weeks of COVID-19 leave.  Employers cannot require the employee to take unpaid COVID-19 leave before other leave to which the employee may be entitled, but the employee may elect to do so.  It appears, however, that employers may require other leave to run concurrently.  Further, employers should note that the Council of the District of Columbia created COVID-19 leave as a separate entitlement, and thus employees may take this leave in addition to 16 weeks of family leave and 16 weeks of medical leave under the historical provisions of the DCFMLA.

Employers must provide employees notice of their right to take COVID-19 leave under this expanded DCFMLA.  Under guidance previously published by the D.C. Office of Human Rights (“OHR”) regarding the predecessor emergency laws, this includes posting a notice in a conspicuous place and notifying an eligible employee of COVID-19 leave as soon as they become or may become eligible under the statutory circumstances.  OHR has published a notice, which is now in its third iteration to account for the extension of the public health emergency in the District of Columbia.  On October 7, 2020, Mayor Muriel Bowser issued Mayor’s Order 2020-103, in which she extended the public emergency and public health emergency through December 31, 2020.  Employers should be prepared for further extensions of this emergency.

D.C. “DOES” Conduct Audits

The D.C. Department of Employment Services (“DOES”), which has authority to enforce ASSLA, is conducting random audits of employers to ensure they are providing paid public health emergency leave.  The D.C. Office of the Attorney General (“OAG”) also has been conducting audits to ensure compliance with both paid public health emergency leave under ASSLA and COVID-19 leave under DCFMLA.

Fortunately, the Act requires the Mayor’s office to provide written notice of any alleged violations of the paid public health leave provision, after which employers have at least five business days to cure before the District takes any administrative action.  Still, to avoid costly fines, employers should act quickly and make sure their return to work plans and leave policies provide sufficient COVID-19-related leave.  Employers should also be sure to both post the “DC Family and Medical Leave Act during COVID-19” notice in the workplace and circulate a copy to all employees working remotely.

Please contact Nathaniel Glasser, Brian Steinbach, or Eric Emanuelson with any questions regarding these COVID-19 leave requirements.

As featured in #WorkforceWednesday: The Centers for Disease Control and Prevention broadened its definition of “close contact.” Now, spending a total of 15 minutes within six feet of an infected individual over a 24-hour period counts as close contact. Previously, it was an exposure period of 15 consecutive minutes.  Attorney Denise Dadika explains what this change means for employers.

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As the pandemic continues into 2021, many employers are contending with their workers’ significantly increased caregiving responsibilities.  Parents – many without viable day care or other childcare options – must try to balance work with the challenges of caring for their children and overseeing their education (and entertainment). Other employees find themselves at the forefront of caregiving for sick family members and for family members at high risk for serious illness, if they become infected by COVID-19.

Recent data has revealed the disproportionate impact that the pandemic has had on women both at home and at work.  The widely cited September U.S. Department of Labor report of unemployment statistics show that four times the number of women than men have left the workforce since the pandemic. A recent McKinsey Report found that during the pandemic one in four women are considering downshifting their careers or leaving the workforce entirely.  These statistics have material economic and societal consequences not only to the affected women, but also to their employers and to the economy at large.

To address these issues, employers are looking for creative ways to help prevent the loss of productive workers, including the following:

  • Workforce Policies and Benefits. To assist in addressing the new challenges facing their workforces, many employers are reevaluating employment policies as to remote working, flexible work options, additional leave time, while doing their best to comply with various federal, state and local sick time, family leave, and COVID-related leave laws.  In addition, many companies are considering contracting with vendors to provide back-up care, adding resources for caregiver support, providing on-site support for returning workers (and their children), and internal and external outreach to workers to maintain open lines of communication between employers and workers.  With the necessity for social distancing, as well as other concerns facing many employers, in-person resources and on-site caregiver support are not likely to be a viable option.
  • Financial Support. Financial support may be a viable alternative for some employers.  For example, it may be possible for employers to provide qualified disaster relief payments under Section 139 of the Internal Revenue Code to provide additional caregiver assistance on a tax favored basis.  Relatedly, employers can consider establishing a PTO leave donation program or PTO buy-sell program to provide additional leave time to workers who are caregivers.
  • Workplace Culture. Employers may also wish to assess how the culture of the workplace may be affecting their workers.  While the notion of a standard work day is engrained in the DNA of many employers, with the current crisis employers may wish to rethink their schedules and on-call culture.  It may be possible to establish a standard or acceptance of working hours that allows caregivers to address caregiving responsibilities without needing (or feeling the need) to be “on-call” during all hours of the standard workday.  Some employers, for example, have adopted a “no-meeting Fridays” policy.
  • Employee Performance. Employers need to act with care when addressing performance related issues that may be caused by an employee’s increased caregiver responsibilities.  In such instances, employee claims could be framed around allegations of sex, caregiver, or age discrimination (or other similar discrimination claims) as caregivers may consist primarily of women, and older populations may be saddled with greater health issues, necessitating time off or longer periods of remote work.  At the same time, employers should avoid making presumptions about an employee’s ability to take on an assignment because of caregiver responsibilities.  A manager who gives better assignments to those without caregiving responsibilities may give rise to a discrimination claim, even though the assignment was made with good intentions.  Further, employers should be mindful of family leave rights that employees may have under the FMLA and applicable state law.

Given the complex challenges facing workers with increased caregiver responsibilities because of the pandemic, employers should consider creative approaches and the best fit for their organization and workforce, and give due and careful consideration to adverse employment decisions affecting caregivers.

Part 9 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.

If the Rules of the Road: Return to Work in the Time of COVID-19 series has given you any takeaways, it should be that it pays to be prepared, to be safe, and to anticipate workplace issues before they arise. This means taking stock of what has happened in the past year and what challenges lie ahead. There is almost nothing the pandemic has not affected in our lives, or in business and the workplace and the challenges have been daunting. Challenges have included, coping with illness, the stressors of new work arraignments, the impact of physical distancing, adjusting to caregiving responsibilities at home, and simply grappling with the unknowns of the pandemic. In short, it’s been a challenging year. As we turn the corner into 2021, it’s apparent that employers will continue to need to manage their workforces with an understanding of the complexities that the pandemic has thrust upon employees’ lives. The following short statements serve as a quick reminder of what employers should and should not do when returning employees safely to the workplace. If the statements seem familiar (dare we say intuitive), it’s because they are. You have seen them before. These maxims apply with equal force to the workplace today as they did before the pandemic. With all the preoccupying challenges presented by the pandemic, however, we offer these important reminders.

Don’t Discriminate

Discrimination based on protected characteristics was illegal pre-pandemic, and it is certainly not lawful during the pandemic nor will it be afterwards. To avoid discrimination claims, employers must ensure they have legitimate, non-discriminatory business reasons for their actions – whether they be hiring, firing, promotions, compensation and benefits, and so forth. In practice, this means ensuring safety practices implemented during the pandemic do not exclude individuals from the workplace based on protected characteristics such as age or gender involuntarily. For example, as the EEOC has explicitly pointed out, creating a blanket policy requiring individuals 65 or older and pregnant women to work from home – while mandating that everyone else come into the office – would violate Title VII of the Civil Rights Act. This is true even if the employer’s motivation is well-intentioned (i.e., done to protect the employee’s health and well-being). When making personnel decisions for a return to the workplace, employers should ensure they are not dictating who must return and who cannot based on the employee’s membership in a particular classification (beware as well, of potential reverse discrimination claims).

Discrimination can also occur in the improper administration of leave or accommodation policies. Allowing employees with children to take caregiving leave while denying a leave request of an employee to take care of a bona fide mental health issue is one example of the many ways employers can inadvertently discriminate against employees. Employees will undoubtedly have different needs and life circumstances that will each require careful consideration during these unprecedented times. To avoid discrimination claims, employers should train their managers to recognize these issues and ensure that leave and accommodation requests are assessed individually and then granted or denied in a consistent manner.

Don’t Retaliate

Disciplining, terminating, or taking adverse employment action of any kind toward an employee for taking time off due to COVID-19 is a sure fire way to run afoul of the law. As Department of Labor Q&A’s make clear, employers subject to the Families First Coronavirus Response Act (FFCRA) can run into trouble by asking too many questions or requiring employees to provide excessive information regarding their need for COVID-19 based leave. As such, employers should proceed with caution when denying leave requests on such basis. While there is no prohibition on disciplining an employee who unlawfully takes leave based on misrepresentations, employers should ensure they do so only when it is clear that a misrepresentation was made.

Taking adverse employment action of any kind toward an employee for reporting workplace safety violations is also unlawful. This is no less true now than it was pre-pandemic. Various states and cities have created ways for employees to report workplace violations of COVID-19 safety protocols. Some have even gone a step further in their guidance and orders by including explicit language prohibiting retaliation against employees for disclosing information regarding COVID-19 safety violations. Accordingly, employers should proceed with caution when responding to any COVID-19 safety claims in the workplace and ensure they take employee concerns seriously. Making sure an organization has a COVID-19 safety coordinator (required by some states) that can address employees concerns should help mitigate issues that may arise before they become bigger problems.

If Plausible, Accommodate

Since the beginning of the pandemic, and certainly as weeks turned into months, we have been speaking to clients and advising them of the biggest sleeper issue to be wary of – the impending and inevitable mental health effects on employees and, more broadly, on the workplace.

In August, the Centers for Disease Control and Prevention (“CDC”) published a report detailing the impact the pandemic has had on the mental health of individuals and the findings are alarming. According to the CDC, around 41% of individuals surveyed reported at least one adverse mental or behavioral health condition, including depression, anxiety, and trauma- and stressor-related disorder (TRSD) related to the pandemic. With no clear end to the pandemic in sight, employers should plan for the need to address mental health issues that will likely continue to affect employees for many months to come.

The first step to addressing issues of mental health in the workplace is by building awareness and creating a compassionate workplace culture. Employers can offer additional support to their employees by ensuring benefit offerings include telehealth services, or by providing employees use of vacation and leave benefits. Even minor changes, such as checking in with individuals periodically or creating opportunities to interact outside of work can make a lasting impact on employee health and well-being. It is important to recognize that everyone has good days and bad days – and that everyone is coping as best they can. But now more than ever, just as we advised that culture comes through in a crisis, it is crucial to stay connected, engaged and to check in regularly with our people. We cannot and should not assume that no news is good news – it very well may be the opposite.

Employers should expect to see (if they have not already) an uptick in requests for reasonable accommodations under the ADA and, relatedly, leave requests under the FMLA, and their state law equivalents. This should serve as a reminder that employers need to conduct individualized-inquiries into the ability of the person to meet the specific requirements of their position, and to determine if the individual needs a reasonable accommodation (including leave or intermittent leave) to perform the essential functions of their job. Beyond the legal requirements, employers should strive to be accommodating of requests by employees that are particular to each individual’s unique circumstances. When possible, employers should strive to accommodate an employee’s needs to take time off to home school their children, address mental health issues, move to a new location, or work flexible hours to take care of basic needs and increased family responsibilities occasioned by the pandemic. These requests for accommodation should be treated by employers in the same manner as they would have otherwise pre-pandemic – consistently and on a case by case basis, and, in addition, remaining mindful of complexities and unprecedented circumstances that must be navigated today.

Takeaway

Above all, employers should ensure they have a plan in place to proactively address issues concerning discrimination, retaliation, and accommodations requests that will undoubtedly arise as employers embark on employees’ safe return to the workplace. By creating a thoughtful and well-supported return-to work plan and culture, employers can demonstrate legitimate reasons for their actions, promote goodwill with employees, and avoid costly litigation and reputational damage.