Author Archives: admin

June 21, 2021

Unpacking OSHA’s Historic Emergency Temporary Standard and Updated COVID-19 Guidance

On June 10, OSHA announced two significant developments in the ongoing saga of COVID-19 restrictions in the workplace. First, OSHA issued an emergency temporary standard (ETS) applicable to healthcare settings. Second, OSHA updated its COVID-19 guidance for all other non-healthcare settings.

Healthcare ETS

The ETS represents the first set of requirements issued by federal OSHA in response to COVID-19. Prior to the ETS, OSHA had only issued non-binding guidance. While the ETS has been expected for months, what is surprising is its scope. Instead of applying to all industries or select high-risk industries, the ETS only applies to “settings where any employee provides healthcare services or healthcare support services.”

June 21, 2021

Employee Fails At Telework and Then Asks to Work From Home As Accommodation

by Brad Cave

Brad Cave

Question: We asked an employee who was working from home to return to the office because he failed to perform his job duties. Now, in the midst of a disciplinary process, he has submitted a request to work from home as a reasonable accommodation to prevent exposure to COVID-19. Are we required to grant his request?

Answer: Fear of exposure to COVID-19 is not a disability. If he has an underlying disability that causes him to be at higher risk from the virus or that has been exacerbated by the outbreak, however, the Equal Employment Opportunity Commission (EEOC) has stated you should consider whether continued telework might be a reasonable accommodation. You should engage in the interactive process with him to:

Understand the basis of his concern;
Determine whether he has a disability; and
If so, explore possible accommodations that would minimize his potential for exposure.

June 18, 2021

Consider EEOC Guidance When Asking Employees About COVID Vaccine

by Mark Wiletsky

Mark Wiletsky

Question: Can we ask employees if they have received the COVID-19 vaccine?

Answer: The short answer is: Yes. According to the Equal Employment Opportunity Commission (EEOC), you can ask employees if they have received a COVID-19 vaccine. You can also require individuals to provide proof they were vaccinated. Read more >>

June 17, 2021

10th Circuit Decision May Affect Work-From-Home Requests After Pandemic Ends

by Mark Wiletsky

Mark Wiletsky

As COVID-19 vaccinations increase and states ease pandemic-related restrictions, many employers are beginning to plan for employees’ to return to the office. But not all workers may want to return, and some might ask to work remotely because of ongoing concerns about the virus in light of underlying health conditions or simply a fear of becoming infected. It remains to be seen how courts will address the issues under the Americans with Disabilities Act (ADA) and state law, but the U.S. 10th Circuit Court of Appeals (which covers Colorado employers) recently provided useful guidance in a case addressing a prepandemic accommodation issue.

Facts

Joan Unrein worked at the Colorado Plains Medical Center as a clinical dietitian. At some point, she became legally blind. The hospital accommodated her blindness at work with special magnifying equipment, but her transportation issues were more problematic.

Unrein, who lived about 60 miles from the hospital, couldn’t drive herself to work or secure a ride service or public transportation, so she had to rely on friends and family. As a result, her ability to get to and from work was inconsistent, leading her to request a flexible schedule. Read more >>

June 16, 2021

Update Handbook, Policies to Include Sexual Orientation and Gender Identity

by Laurie Rogers

Laurie Rogers

Question: With the Supreme Court’s ruling on Title VII of the Civil Rights Act of 1964 regarding gender identification, can we leave the Title VII disclaimer in our company handbook and applications as is? Or does the wording need to be adjusted to specifically state “sexual orientation” and “transgender status”?

Answer: On June 15, 2020, the U.S. Supreme Court held in the landmark civil rights case Bostock v. Clayton County that Title VII’s protections extend to the LGBT community. Although Title VII doesn’t specifically address sexual orientation or gender identity (it prohibits employment discrimination based on “race, color, religion, sex, or national origin”), the Court’s decision interprets Title VII’s “on the basis of sex” language to include sexual orientation and transgender status. Read more >>

June 15, 2021

CO Clarifies Employers’ Obligation to Provide Public Health Emergency Leave in 2021

by Laurie Rogers

Laurie Rogers

In late 2020, the Colorado Department of Labor and Employment (CDLE) issued guidance confirming the COVID-19 pandemic had triggered the Healthy Families and Workplaces Act’s (HFWA) provision entitling all employees to up to 80 hours of supplemental public health emergency leave in 2021 (see CDLE Info Sheet # 6C). While the guidance alerted employers to their obligation to provide the benefit, it left several unanswered questions about the amount of emergency leave part-time and new employees are entitled to receive under the HFWA. On February 23, 2021, the department issued revisions to the wage protection rules answering the questions (see 7 CCR 1103-7).

General requirements under the HFWA

As of January 1, 2021, the HFWA requires most employers with 16 or more employees to let them accrue up to 48 hours of paid sick and safe leave annually. They may take the leave for various health- and safety-related needs. On January 1, 2022, all covered employers, including those with fewer than 16 employees, will have to provide paid sick and safe leave to their employees (for more details, see CDLE Info Sheet # 6B). Read more >>

March 24, 2021

Changing of the Guard: NLRB Precedent Under Biden Administration

by Steven Gutierrez

Given the recent, whiplash-like reversals of labor law precedent by the National Labor Relations Board (NLRB) (depending on which presidential administration is in power), employers naturally wonder if the current version of the NLRB under President Joe Biden will present a similar about-face from decisions made under the Trump administration. While you can safely assume the NLRB will be more prolabor under the Biden administration, a recent decision from the D.C. Circuit, emphasizing the importance of precedent in Board decisions, may assuage some fears of ongoing uncertainty in labor-management relations.

Background on federal labor relations law, generally

National Labor Relations Act (NLRA). The NLRA was enacted in 1935 to promote employees’ and employers’ rights, encourage collective bargaining, and curtail certain private-sector labor and management practices that can harm the general welfare of workers, businesses, and the U.S. economy. Congress believed some employers’ refusal to let employees organize or accept collective bargaining led to industrial strife or unrest, which adversely obstructed commerce. Read more >>

March 22, 2021

New CO Guidance Concerning Paid Sick Leave and Job Posting Requirements

by Mark Wiletsky

Mark Wiletsky

It’s a brave new world for Colorado employers. The state now requires paid sick leave for employees, and it established unique requirements for job postings and promotional opportunities. In December, the Colorado Department of Labor and Employment (CDLE) amended its rules and issued new guidance with respect to the laws. The amended rules and guidance provide important information for all employers about how the CDLE interprets and will enforce the new laws.

Equal Pay for Equal Work Act (EPEWA)

The EPEWA became effective January 1, 2021. Among other things, it requires employers to pay men and women equally for the same or substantially similar work, subject to limited exceptions. The EPEWA also contains significant requirements with respect to job postings and promotional opportunities:

Job postings must contain salary and benefits information; and
Promotional opportunities must be announced to all Colorado employees on the same calendar day and before the decision is made.

In December, the CDLE issued Interpretive Notice and Formal Opinion (INFO) #9, which provided additional guidance on job postings and promotional opportunities. Read more >>

December 22, 2020

Update: EEOC Issues Employer Guidance on COVID-19 Vaccinations

By Mark Wiletsky

Mark Wiletsky

In the article, May Employers Mandate COVID-19 Vaccines?, we discussed legal and practical considerations for employers contemplating mandatory COVID-19 vaccines for their employees. We noted that the Equal Employment Opportunity Commission (“EEOC”) and other federal and state authorities might be providing updated guidance on this issue.

On December 16, 2020, the EEOC issued new guidance confirming that, although employers may likely mandate COVID-19 vaccines without violating federal anti-discrimination laws (and assuming accommodations are made for employees who cannot take vaccines for qualifying medical or religious reasons), the safest approach—at least for employers outside of certain high-risk fields like the healthcare industry—may be to make vaccinations voluntary, but highly encouraged. Read more >>

December 21, 2020

Rumors, Innuendo Lead Wyoming Highway Patrol to Face Sexual Harassment Trial

by Brad Cave

Brad Cave

Most people know overtly sexual comments are likely to violate their employer’s rules and could lead to sexual harassment claims. But many don’t understand the comments are a problem not just because they’re sexual. That’s because the sexual content can be used as evidence to show other nonsexual negative treatment was motivated by discriminatory intent. As a result, the sex-based misconduct is just one aspect of the working environment you must consider—whether overtly sexual or not—to determine whether an employee was subject to a hostile work environment.

In the following opinion from the 10th Circuit, you can learn more about how employees should be trained to avoid harassment and how supervisors should deal with rumors and other inappropriate behavior. Read more >>