Is Maryland Going to be the Next State to Enact COVID-19 Workplace Standards?

Josh SchmandJosh Schmand

Maryland may soon join Virginia and D.C. in establishing COVID-19 workplace safety requirements. The state’s House of Delegates and Senate recently passed the Maryland Essential Workers’ Protection Act, and it is awaiting approval from Governor Larry Hogan (even if Governor Hogan vetoes the Act, the legislature has the votes to override any such veto).

Under the new Act, each essential employer* must take certain actions related to occupational safety and health during an emergency. The requirements cover, not just for the current and ongoing COVID-19 pandemic, but also for any situation in which extensive loss of life or serious disability is threatened imminently because of exposure to a deadly agent (e.g. anthrax, Ebola, radiation, or chemical or biological agent capable of causing extensive loss of life or serious disability).

* Essential employers under the Act are any persons or entities identified by the Governor or a federal agency as critical to remain in operation, who employ essential workers. Essential workers are those individuals who perform work during an emergency that cannot be performed remotely or are required to be completed at the work site, and that the employer determines to be essential or critical to its operation.

More specifically, during an emergency, essential employers must:

  • Provide working conditions that comply with applicable safety standards by the relevant state or federal agencies;
  • Provide necessary safety equipment recommended for usage during the emergency, at no cost to essential workers;
  • Adopt, maintain, and post written protocols to ensure essential workers’ access to the applicable safety standards in effect;
  • Take proactive steps to minimize the risk of transmission, including paying for testing for the communicable disease; and
  • Report test results to the Maryland Department of Health, redacting any personal identifying information to protect the identity of the essential workers.

Essential employers will also be required to provide paid public health emergency leave, if the state or federal government provides funding that can be used for this purpose. Public health emergency leave will be allowed for essential workers to:

  • Isolate if they have been diagnosed with, or are experiencing symptoms of, the communicable disease that is the subject of the emergency;
  • Seek or obtain a medical diagnosis, preventative care, or treatment because they have been diagnosed with or are exhibiting symptoms of the communicable disease that is the subject of the emergency; or
  • Care for a family member who is isolating because of a diagnosis or symptoms of the communicable disease that is the subject of the emergency.

This leave will be in addition to any other leave or benefit, including Earned Sick and Safe Leave (see here for a primer for employers to comply with the Maryland Sick and Safe Leave Act).

Essential employers will be allowed to ask essential workers who use public health emergency leave to provide documentation of the need to use the leave. The Act will not require essential employers to compensate essential workers for unused public health emergency leave when the essential worker leaves employment.

The Act also provides that each essential worker has the right to refuse to perform assigned tasks and may not be discharged or otherwise discriminated against for filing a complaint or exercising rights under the Act.

Given the veto-proof margin of the vote on the Act, Maryland employers should either develop and implement or modify and update their COVID-19 workplace safety policies now to be ready when the Act becomes law.

For more information, contact Josh at 301-347-1273 or jcschmand@lerchearly.com.

EEOC Issues Guidance For Employers Considering Mandatory COVID-19 Vaccine Policies

Michael NearyMichael Neary

On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 guidance to address how a COVID-19 vaccine interacts with the equal employment opportunity laws enforced by EEOC. We are likely months away from pharmaceutical companies making the vaccine generally available to the public. But the EEOC guidance is a good resource for employers thinking through whether to institute a mandatory COVID-19 vaccine policy when that day comes.

EEOC Provides a Framework for Mandatory Vaccine Programs

There are three key takeaways from the guidance. First, a policy mandating that employees receive the COVID-19 vaccine is possible provided disability and religious accommodation requests are carefully evaluated. Second, the pre-screening questions that must be asked before a vaccine is administered will likely compel many employers considering a mandatory program to institute a voluntary one instead or to require employees to receive the vaccine elsewhere. Finally, the COVID-19 situation in the country may change dramatically by the time a vaccine is widely available, which could substantially alter EEOC’s guidance. Employers should consider the guidance as they plan but continue to monitor the issue before finalizing any vaccine policies.

EEOC Answers Common Questions Employers Are Asking About Whether To Mandate A Vaccine

The updated EEOC guidance answers a series of questions related to how a mandatory vaccine policy interacts with equal employment opportunity laws. Below is a summary of the questions and answers provided by EEOC.

  • Is an employer administering a COVID-19 vaccine, directly or through a vendor hired by the employer, performing a medical examination under the Americans with Disabilities Act (“ADA”)?
    • Answer: No, with a catch. A medical examination under the ADA is a “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” While administering the vaccine is not a medical test, pre-screening questions would likely uncover underlying physical impairments and constitute a medical examination under the ADA. Under the ADA, employers can perform medical examinations only if they are “job-related and consistent with business necessity.” To meet this standard, employers would need a reasonable basis, based on objective evidence, to conclude an employee that does not receive the vaccine because of a refusal to answer the pre-screening questions poses a direct threat to the health or safety of the employee or others. COVID-19 conditions on the ground at the time of the mandatory program would dictate whether an employer could meet this standard.
    • The EEOC guidance identifies two ways around this issue. First, an employer could make the program voluntary instead of mandatory. The pre-screening questions do not need to satisfy the job-related and consistent with business necessity standard if the vaccine program is truly voluntary. Second, an employer could mandate employees receive the vaccine from third parties not connected to the employer. Under such a framework, since the third party would ask the pre-screening questions and not the employer, the employer need not satisfy the job-related and consistent with business necessity standard of the ADA. An employer may require an employee to provide proof of having received the vaccine without implicating the ADA so long as the employer makes clear the proof should not disclose underlying physical or mental impairments.
  • If an employer institutes a mandatory vaccine policy, how must it respond if an employee refuses because of a disability?
    • Answer: The employer must perform an individualized assessment under the ADA to determine whether the unvaccinated employee poses a direct threat to the workplace because of a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” In analyzing this question, four factors should be considered: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Assuming a direct threat is found, the employer could only exclude the employee if “there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.” If an employer finds that there is no way to provide a reasonable accommodation, the employer can bar the employee from the workplace but cannot necessarily terminate. Before terminating, the employer would need to determine whether other accommodations are available. Potential accommodations to consider are remote work, paid leave, or an unpaid leave of absence.
  • If an employer institutes a mandatory vaccine policy, how must it respond if an employee refuses because of a sincerely held religious belief?
    • Answer: The employer should assume the religious belief is sincerely held and provide a reasonable accommodation to its mandatory vaccine program for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act. The undue hardship analysis under Title VII asks whether the accommodation has more than a de minimis cost or burden on the employer. In rare circumstances, an employer having an objective basis to question the nature of the religious belief or the employee’s sincerity in that belief can ask for further information. If the employer cannot provide an accommodation because of undue burden, it can bar the employee from the workplace, but must consider whether alternative accommodations would allow the employee to remain employed without entering the workplace.
  • Is the Genetic Information Nondiscrimination Act (“GINA”) implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination?
    • Answer: No, with a catch. Title II of GINA prohibits employers from (1) using genetic information to make decisions related to the terms, conditions, and privileges of employment; (2) acquiring genetic information except in six narrow circumstances, or (3) disclosing genetic information except in six narrow circumstances. Administering the vaccine or requiring proof that an employee received one does not implicate GINA because neither involves “the use of genetic information to make employment decisions, or the acquisition or disclosure of genetic information as defined by the statute.”
    • The pre-screening questions, however, may implicate GINA. The pre-screening questions for a publicly available COVID-19 vaccine are not clear. If those questions ask for any of the following they would implicate GINA:
      • Information about an individual’s genetic tests;
      • Information about the genetic tests of a family member;
      • Information about the manifestation of disease or disorder in a family member (i.e., family medical history);
      • Information about requests for, or receipt of, genetic services or the participation in clinical research that includes genetic services by the an individual or a family member of the individual; and
      • Genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology.
    • If the pre-screening questions ask for this information, EEOC advises it would be wise for employers implementing a mandatory program not to administer the vaccine directly or through a third-party vendor but to require employers to obtain the vaccine elsewhere. When asking for proof of vaccination, the employer should make clear employees are not to provide GINA related information. Such a warning protects an employer from liability if the employee provides GINA protected information along with any proof of vaccine receipt.

For more information, contact Michael at 301-657-0740 or mjneary@lerchearly.com.

Voluntary Acceptance of a Transfer May Waive Employees’ Claims in Maryland and Virginia

Recognition of “Constructive Demotion” Claims Seems Imminent.

Lauri ClearyLauri Cleary

In October, the Fourth Circuit Court of Appeals confirmed in Laird v. Fairfax County, Virginia, that an employee voluntarily accepting a lateral transfer to another position (there, to settle a disability discrimination claim) may not be able to establish discrimination or retaliation just because the new job is not all she had hoped.

To make out a viable claim, the employee must suffer an “adverse employment action” such that the transfer resulted in “a significant detriment” to the employee. Whether an employee’s dissatisfaction rises to the level of “significant detriment” is a factual issue determined on a case-by-case basis.

A transfer must cause a “significant detriment” to be actionable

After working in the new position for some months, Ms. Laird came to believe she had been demoted. She found her new position “boring” and to be a “thinkless job, just data entry,” and hurt her potential for future promotion.

She sued the County for discrimination and retaliation under the Americans with Disabilities Act. The federal trial judge in Alexandria entered judgment against her, finding her disappointment, however genuine, was not significant enough to establish a significant detriment.

After reviewing all facts anew, the Fourth Circuit Court of Appeals agreed. Offering no real guidance on what establishes a “significant detriment,” the Court of Appeals discussed what does not. In her new job, Ms. Laird received the same compensation, asked for and received changes to the new title and duties, and received additional accommodations of her disability.

The Court noted near the end of its opinion that she had abandoned her argument that intolerable discriminatory conditions in her original job had compelled her to accept a transfer—in essence that she was forced to accept a demotion. Having waived that argument, she could no longer claim that the transfer itself had been discriminatory or retaliatory.

A transfer that is not “voluntary” may be a “constructive demotion”

Had she not abandoned her “constructive demotion” argument, Ms. Laird may have prevailed by claiming acceptance of the transfer had not been “voluntary.”

The majority did not address that potential, but a member of the three-judge panel did in a concurrence. Observing that the DC Circuit (and every other circuit court of appeals to address the issue) has recognized constructive demotion claims, and noting that this circuit already has recognized claims for “constructive discharge” (for employee left with no option but to resign), the concurrence concluded: “Logic dictates that if a demotion can constitute a constructive discharge, then a constructive demotion can similarly constitute a constructive demotion.”

Thus, as in DC, an employee who can allege a work experience so intolerable as to leave no option but to accept a transfer likely will have a viable claim for constructive demotion claim in MD and VA.

Employer takeaways

Making a lateral transfer of a (current or potential) disability claimant to settle claims of discrimination and/or retaliation may not be an easy panacea. The transfer must be both “voluntary” and it not trade one “significant detriment” (discrimination or retaliation) for another (a significantly inferior position).

For more information, contact Lauri at 301-657-0176 or lecleary@lerchearly.com.

Montgomery County Makes It Easier for Employees to Prove Unlawful Harassment

Marc EngelMarc Engel

Last month, the Montgomery County (Maryland) Council enacted amendments to the county’s anti-discrimination statute, which substantially lowers the standard for proving unlawful hostile harassment claims.

The amendment was signed into law on October 16, 2020 and takes effect on January 15, 2021. As discussed below, the amendments are likely to have a profound impact upon employers.

Overview

Sexual harassment is a form of sex discrimination prohibited by local, state, and federal law (Title VII). There are two types of unlawful harassment: (i) quid pro quo harassment (“you do this for me, and I do that for you”) and (ii) the more common type of harassment, known as hostile work environment.

Under current county, Maryland state, and federal law, in order to establish unlawful harassment, an employee must:

  • Establish that the conduct was unwelcome;
  • Was based upon the sex of the employee;
  • Was sufficiently “severe or pervasive” to alter the employee’s conditions of employment and to create an abusive work environment; and
  • The wrongdoing is imputable on a factual basis to the employer.

These requirements also apply to harassment claims based upon other unlawful factors, such as age and race.

The “severe or pervasive” prong has both a subjective and an objective component. With regard to the subjective component, an employee must show that she or he subjectively perceived, as a reasonable person would perceive, that the environment was hostile or abusive.

The conduct must also be objectively “severe or pervasive” and have a substantial effect on the terms or on the conditions of employment. The “severe or pervasive” requirement has proven challenging for employees to satisfy. The Fourth Circuit (where Maryland is located) has noted that boorish and crude behavior alone is not sufficiently “severe or pervasive” to be actionable under Title VII. As the Fourth Circuit explained: “While no one condones boorishness, there is a line between what can justifiably be called sexual harassment and what is merely crude behavior.”

Summary of Impact of New Legislation

The amendments to the Montgomery County anti-discrimination statute effectively replace the requirement that workplace conduct be sufficiently “severe or pervasive” to alter the working conditions of a reasonable person in the employee’s shoes, with the requirement that a reasonable person in the employee’s shoes “would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance.”

Although the law still contains an element of objective reasonableness, the employee is only required to establish that the conduct was more than a trivial inconvenience, minor annoyance or petty slight (and not that the conduct was sufficiently “severe or pervasive” to alter the working conditions of a reasonable person in the employee’s shoes) – which is a significantly lower standard than the one used under Maryland’s state anti-discrimination law and under Title VII.

Takeaways

To learn about steps employers should consider taking, read the rest of the article on our website: https://www.lerchearly.com/news/montgomery-county-makes-it-easier-for-employees-to-prove-unlawful-harassment.

For more information, contact Marc at 301-657-0184 or mrengel@lerchearly.com.

Maryland Law Bans Natural Hair Discrimination

The state joins Montgomery County and Virginia in adopting such legislation

Employment/Labor GroupEmployment/Labor Group

Effective October 1, 2020 Maryland’s anti-discrimination law prevents discrimination against persons based on their protective hairstyles and textures.

These types of laws, referred to as Creating a Respectful World for Natural Hair (CROWN) acts, are now being enacted in many states and localities. Montgomery County has had such a law in place since February of 2020, making it the first county in the country to ban hair discrimination. Virginia’s law went into effect on July 1, 2020. DC has not yet enacted such a law.

Maryland’s anti-discrimination law, Title 20 of the State Government Article of the Maryland Code, prevents various types of discrimination including discrimination in employment, places of public accommodation, leasing of commercial property, and housing. The definitional section of the title, Md. Code, State Gov’t § 20-101, has been amended to broaden the definition of “race” by including “traits associated with race including hair texture, afro hairstyles, and protective hairstyles.” Additionally, protective hairstyles is defined to include “braids, twists, and locks.”

Notably, the Senate version of the bill attempted to restrict the law by including language that an employer could establish and require an employee to “adhere to reasonable workplace appearance, grooming, and dress standards that are directly related to the nature of the employment of the employee.” However, this language was ultimately struck before the Act’s passage.

Employers should review any grooming and personal appearance standards or handbook policies in their workplace to ensure that they do not violate the new law.

For more information, contact one of our employment attorneys.