Employment Law Update – Fall 2022
CDC EASES COVID GUIDELINES
On August 11th, the Centers for Disease Control issued new Guidance for handling exposure to, and cases of, COVID-19. Of particular interest in the workplace, the CDC no longer recommends that individuals who are merely exposed to the virus isolate or quarantine themselves – meaning that they can report to work. New recommendations for individuals who actually become infected with the virus simplify the procedure for and timing of isolation. And the new Guidance abandons the well-known “six foot distance” rule, downplaying social distancing in favor of more general prevention steps.
The new procedures are widely seen as changing CDC’s focus from preventing all transmission to the goal of preventing the worst outcomes – a tacit recognition that COVID is here to stay. In that vein, the CDC’s Morbidity and Mortality Weekly Report stated on August 19 that while “COVID-19 remains an ongoing public health threat,” ‘the current focus on reducing medically significant illness, death, and health care system strain are appropriate and achievable aims.” With the August guidelines, the CDC has also signaled that responsibility for preventing the spread of the disease has shifted from institutions like employers to individuals.
The most important new recommendations include the following:
- Mere exposure to someone infected with the virus no longer means quarantine. An individual who is exposed to the virus, for example by exposure to an infected co-worker or family member, need not isolate. Rather, the CDC now recommends the exposed individual wear a “high-quality” (i.e., N-95 or KN-95) mask for ten days, and test for infection at day five.
- Individuals who are infected with the virus – those who test positive or have a medical diagnosis – should stay home for five days. During that time, they should isolate themselves from others in the home, and wear a “high-quality mask” when around others. If, after those five days are up, the infected individual has had no fever for 24 hours (without use of fever-reducing drugs) and has improvement in symptoms, isolation can be discontinued.
- If symptoms do not improve after five days, or if symptoms are “severe” (i.e., hospitalization) or “moderate” (that is, shortness of breath or other difficulty breathing), isolation should be continued for the full ten days.
In large part, the new recommendations seem to reflect public practice, where mask-wearing and social distancing are now more the exception than the rule. These recommendations should allow more rapid, and safer, return to work in cases where only mild or no symptoms are present – making thousands of FMLA, sick day, and PTO calculations much easier. The new recommendations reflect a change in attitude towards COVID, but lest we forget, and as the CDC reminds us, “the pandemic is not over.” About 500 deaths are attributed to COVID-19 each day, and over 200,000 deaths so far in 2022.
K&C’S EMPLOYMENT LAW “DOCTORS” WILL BE “IN” ON OCTOBER 27TH
On October 27, 2022, K&C’s Employment Team will be presenting a day-long seminar to help employers assess and deal with employment law risks as we emerge from the Pandemic. The virtual 38th Annual Employment Law Update will help employers cope with new employment laws as well as with practical changes to the workplace brought about by the Pandemic. Numerous representatives from relevant agencies and other outside speakers will join K&C’s employment lawyers to present a variety of perspectives including, the new Director of Field Management Programs for the EEOC, Thomas Colclough, the former Enforcement Coordinator for the Department of Labor Wage-Hour Division, Patricia Slate, the top HR Executive from the area’s largest employer, Huntington Ingalls Industries, Edmond Hughes, and even a lawyer who specializes in suing employers, James Shoemaker. Our popular K&C Answer Booth will include even more opportunities for attendees to get their employment law questions answered directly by the experts.
Attendees will have a number of timely workshop options to choose from. Attendees can also earn up to 6 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI) and 5 PDCs toward SHRM-CP or SHRM-SCP. For more information or to register, visit www.kaufcan.com/events or call 757.624.3232.
EEOC PROMOTES COLCLOUGH TO NATIONAL POSITION
On July 13th, the EEOC announced that Thomas Colclough was named the new Director of Field Management Programs. Tom was previously the Charlotte District Director. In his new position as Director of Field Management Programs, Mr. Colclough will provide guidance and support to all of the EEOC’s 53 field offices across the country in matters of investigation, charge processing, education, and outreach. EEOC Chair, Charlotte A. Burrows, stated “Tom Colclough is the perfect person for this crucial position. We could not ask for a richer or more varied leadership background than Tom’s.”
Tom is a frequent speaker at K&C’s annual Employment Law Update where he always provides valuable information to attendees regarding how their companies can remain in compliance with applicable federal law. Even though his new national position has substantial time obligations, Tom has indicated he will again participate in the 38th Annual Employment Law Update on October 27, 2022.
ROE V. WADE REVERSAL MAY IMPACT EMPLOYER BENEFIT PLANS
The Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade and returned abortion regulation to the state level. Many companies—including household names such as Amazon, Microsoft, Wal-Mart, and Tesla—have announced that they will be extending medical travel or other similar types of benefits to employees who live in states where abortions are now restricted. Employers considering these types of programs should be aware that multiple state and federal laws—and, if offered as part of their group medical insurance, their plan’s fully insured or self-insured status and their carrier’s or administrator’s practices and procedures—can impact these types of employee benefits. This topic is evolving quickly, so employers also need to continue monitoring new developments.
To help employers understand the potential impact of this recent legal change and answer any benefits questions attendees might have, the K&C “Employment Doctor,” John Bredehoft, and benefits specialist Rob Johnson, will be in the K&C Answer Booth during the 38th Employment Law Update on October 27.
DAMAGE AWARDS IN EMPLOYMENT CASES REACH 10-YEAR HIGH
As reported in an August 28th ABA Journal article, a recent national study on employment litigation cases indicated a total of $1.17 billion in damages were awarded in employment cases during 2021. This study tracked cases filed under the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act and The Fair Labor Standards Act. Interestingly, while the total number of employment cases filed under these laws was the lowest number of cases of any year in the past decade, the damages awarded represented the highest amount of damages in nearly a decade. The low number of cases filed was attributed to ongoing effects of the COVID-19 pandemic.
The high amount of damages should be of particular concern to employers because it is anticipated that the number of employment cases filed will increase as plaintiffs and their lawyers file more cases as the effects of COVID-19 on the judicial system diminish. To avoid being a defendant hit with a large damage award, employers are well advised to review their HR policies and practices with an eye to insuring compliance with all applicable employment laws.
ADA COVERAGE CONTINUES TO EXPAND
On August 16, 2022, the federal appellate court over Virginia became the first federal appellate court in the country to rule that gender dysphoria is not barred by the Americans with Disabilities Act’s (“ADA”) exclusion for “gender identity disorders.” Kesha Williams, a transgender woman, suffers from gender dysphoria—defined as clinically significant distress experienced by a person as a result of a discrepancy between the person’s gender identity and the person’s gender at birth. She sued the Fairfax County Sheriff and other staff members at the Fairfax County jail for alleged ADA violations when she was assigned to the men’s housing unit, was harassed by officers and inmates because of her gender identity, and experienced a delay in the hormonal-based medical treatment of her gender dysphoria.
The defendants in the case filed a motion to dismiss Williams’ lawsuit, arguing that the ADA’s exclusion for “gender identity disorders not resulting from physical impairments” barred Williams’ claim. The district court in Alexandria agreed with the defendants and dismissed Williams’ ADA claim. However, on appeal, the federal appellate court ruled that gender dysphoria is different from “gender identity disorder,” especially as such disorder was understood when the ADA became law, and did not fall within the ADA’s exclusion. The court also ruled that Williams’ hormone treatment, as well as pertinent medical and scientific research, supported the reasonable notion that her gender dysphoria resulted from physical impairment, again removing it from the ADA’s exclusion. In reaching this conclusion, the federal appellate court was explicitly mindful of the ADA’s requirement that courts construe coverage as “broadly as possible” and exceptions “narrowly.” The fact that its construction of the ADA avoided “a serious constitutional question” of whether the exclusion denies equal protection of law to transgender people also factored into the Court’s decision. Given this reasoning, the appellate court reversed the dismissal of Williams’ ADA claim and is giving the plaintiff her day in court.
This recent decision highlights the expansive nature of the ADA’s coverage and the recognition of disabilities— especially mental disabilities—that may be unfamiliar to most people. When faced with an accommodation request for such a disability, employers are well-advised to be mindful of the ADA’s edict that “disability” is construed “in favor of broad coverage” and should focus on reasonable accommodation, rather than disputing the alleged disability. Accordingly, employers should engage in an interactive dialogue with the employee. Importantly, as with all employment actions, employers need to make sure they document that discussion.
The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2022.