Like a lot of you, I watched Hamilton with my family this month.  I’ve seen in twice in the theater and you don’t need me to tell you it’s spectacular.

One of the lines at the end of the show always gets me: “And when my time is up, have I done enough? Will they tell our story?”

I’ve been reminded of that over the last month or so as the issues of systemic racism have returned to the headlines.

For workplaces, these discussions aren’t new. And yet, it still seems as though the progress that has been made has stalled recently.  Have we grown tired of the conversations? Have we felt like we’ve done enough?

When I was in college, I had the good fortune to have some classes (and a law school recommendation too) by Mary Frances Berry, who went on to Chair the U.S. Commission on Civil Rights.  Professor Berry has written prolifically on systemic racism; one of her quotes that has stuck with me is:

The time when you need to do something is when no one else is willing to do it, when people are saying it can’t be done.

Both the Connecticut Bar Association and the Connecticut Bar Foundation (of which I serve as Chair of the James W. Cooper Fellows) are trying to do something.

Tomorrow evening, we will hold the inaugural event of the Constance Baker Motley Speaker Series on Racial Inequality, an ongoing forum for the Connecticut legal community to explore issues of racial inequality and systemic racism. This virtual event features Chief Justice Richard A. Robinson and Justice Maria A. Kahn and will be moderated by Dean Timothy Fisher of UConn School of Law and Professor Marilyn Ford of Quinnipiac University School of Law.

I’ll be making some introductory remarks.

This series, established by the CBA, Connecticut Bar Foundation (CBF), and CBF Fellows, is named in honor of civil rights trailblazer Judge Constance Baker Motley with the goal of supporting and fostering renewed commitment to advancing civil rights and social justice.

I hope you can join us in this conversation.   It’s a conversation that every workplace should continue to have as well.  Together, we can continue to make a meaningful difference.

The U.S. Supreme Court today ruled that the “ministerial exception” that bars some employment discrimination claims against religious institutions, also bars such claims by elementary school teachers at private Catholic schools.  The case further clarifies an exception that came to prominence back in 2012 and expands the reach of the exception.   I noted then that the Court was taking a fairly broad approach. Eight years later, that broad approach is playing out as expected.

Thus, the key takeaway from today’s decision? You need not have the title of “minister” to fall within the exception.

The case, Our Lady of Guadalupe School v. Morrissey-Berru, can be found here.

In the majority’s 7-2 decision, this key summary stands out:

The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.

In determining whether the ministerial exception applies, “a variety of factors may be important”.  But what matters, according to the court isn’t titles, but “what an employee does”.

And an elementary school teacher — responsible for “providing instruction in all subjects, including religion,” and “members of the school staff who were entrusted most directly with the responsibility of educating their students in the faith” — more than meets that exception, according to the court.

No “rigid formula” is needed and the court said it is “sufficient” to just decide the cases before it.  So those hoping for further guidance are going to have to dig a bit deeper to draw out a general rule. That being said, it seems quite clear that many teachers at parochial schools will be covered by this exception — meaning no discrimination lawsuits will be permitted against them, at least on a variety of grounds.

Connecticut has adopted a similar exception in a 2011 case that I also covered here.  There is no reason to think that a Connecticut court looking at this issue under state law would come to a different conclusion than the U.S. Supreme Court today.

 

We made it halfway through 2020.

I know it FEELS as if it should be December, but just think how long March was!

A lot has changed since the start of the pandemic.  But over the last few weeks, I’ve been hearing from employers wondering where things stand right now. What’s changed? What still remains?

So I thought I would try to recap some of the key developments the last few months with some links for an easy a slightly less complicated way of understanding how employers should be operating now.

  • For employers with less than 500 employees, there are paid sick leave provisions under the EPSLA.  Employees who get sick with COVID-19, who are under quarantine, or who are caring for other pandemic-stricken relatives are entitled to their salary or a portion of it for 2 weeks (12 weeks if caring for children whose schools are closed).
  • Essential employers can continue to remain open (and have more than 50 percent of their workforce at the workplace itself) but only if they continue to follow the safety rules set forth by DECD for essential employers. These rules are expected to continue throughout the summer.
  • Other offices that were part of the Phase One reopenings can have employees return to the workplace, subject to a 50 percent capacity cap and subject to following sector rules issued by the DECD.  These rules and caps are likely to continue throughout the summer.
  • Other businesses have to adapt to the sector rules; for example, restaurants have a series of required steps that need to be undertaken before opening for outdoor dining and even indoor dining.
  • In virtually all of the reopening rules for employers, businesses are encouraged to still have employees work from home where feasible.
  • Employees who travel Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Texas, and Utah should self-quarantine at home for 14 days. Essential employees are exempt from this requirement though it is not clear if that’s only if their travel was in a business capacity.
    (UPDATE: 12p 6/30 – Connecticut has expanded this list to also include:  California, Georgia, Iowa, Idaho, Louisiana, Mississippi, Nevada and Tennessee)
  • Employees who are quarantined under this travel advisory may be eligible for paid sick leave, but if they are working from home (or your workplace has more than 500 employees), then EPSLA likely does not apply.
  • Face coverings are required at most workplaces, most of the time and need to be provided by the employers if employees don’t have them.  The state’s unofficial motto of “If You Have to Ask, Wear a Mask” can be taken one step further in the workplace: Just Do It.
  • Employees who are over age 65 or employees who have a pre-existing health condition, are encouraged to avoid the workplace; but, employers may not issue a blanket rule prohibiting those employees from reporting to the workplace.  Employees with a disability may need to be accommodated; employees over 65 years old may not be entitled to such an accommodation but employers should work with employees where possible. Beware the age discrimination suit.
  • The extra $600 in unemployment benefits from the federal government is set to expire around July 25th. But employees in Connecticut may be entitled to extended state benefits at that time; new information was recently released by the CTDOL.
  • The State released extensive guidance yesterday for reopening public schools this fall.  Independent schools should review the guidance as well.  Ultimately, getting kids back to school is a key element to having their parents return to the workplace too.  My firm will be releasing updated information on its School Law blog later this week after our review. 
  • Federal courts in Connecticut are continuing with business as usual and the state courts are slowly getting up to speed with increasing uses of technology. However, employers should not anticipate any civil jury trials for the rest of 2020.

2020 has brought more developments in employment law than in just about any year that I can remember since I began practicing law.  Take stock of the current rules of operating a business and be flexible.  I suspect that before this year is out, we’ll have a second wave re-emerge and we’ll need to be readjusting yet again.

Until then, try to enjoy summer in Connecticut. Perhaps a lobster roll?

A few weeks ago, I did an inital post about how the new OSHA guidance on masks only served to complicate efforts for employers to comply with any such rules.

This week, my colleague Alfredo Fernandez (with only a little help from me — byline notwithstanding) posted a more thorough post on the ins and outs of masks, face coverings and personal protective equipment.

You can read the entire post here. 

Here’s a sneak peek:

The U.S. Occupational Safety and Health Administration (OSHA) recently issued guidance to answer frequently asked questions (FAQs) about the proper use of cloth face masks “at work” during the COVID-19 pandemic. The OSHA guidance must be read in conjunction with any applicable state rules and orders, many of which currently mandate that employees wear a face covering with limited exceptions.

Because face masks are an essential defense against the spread of COVID-19, understanding your employees’ respiratory health risks and establishing the right face mask protocol for your company are key factors in reopening and gradually returning the workforce to pre-pandemic levels.

In its FAQs, OSHA explains the differences among cloth face coverings, surgical masks (loose-fitting, fluid resistant barriers), and respirators (tight-fitting, particle filtering barriers). The following summary clarifies the variety of protective equipment that employees may use, along with its benefits and limitations.

You can find all of the pandemic-related guidance and articles from my firm here. 

 

Is the pandemic over yet?

Obviously, the answer is no.  While Connecticut’s numbers have diminished significantly, other states are continuing to spike.

Thus, yesterday, Governor Lamont issued new Executive Order No. 7BBB mandating that visitors from certain states with high numbers of cases to self-quarantine.  My colleague Jarad Lucan and I have a full update on this order (including the implications for paid sick leave) posting on my firm’s blog here today.

The order states that a “travel advisory” is to be issued that states that “[a]ll travelers entering Connecticut from a state with a positive test rate higher than 10 per 100,000 residents, or higher than a 10% test positivity rate over a seven-day rolling average, shall self-quarantine for a period of 14 days.”

It became effective this morning on June 25, 2020 (Thursday).

For employers, managing vacation times will be a challenge as will implementing paid sick leave provisions.  But employers should also be mindful of any business travel that is set up for the next few weeks; it is possible (probable?) that such travel should be cancelled. Otherwise, employer risk having those employees who travel to those hotspots unavailable for two weeks upon their return.

The Executive Order leaves open the possibility that employees of essential employers may have some exceptions, and it is possible that other exceptions may be established by the Commissioner of Public Health in the upcoming days.

Employers should further watch for updates to the list of “hot spot” states because that list is expected to change over time.

As of Wednesday, June 24, the list of states from which travelers will be self-quarantined include: Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Texas, Utah and Washington.

Can I test my employees for COVID-19?

Over the course of the last few months, it feels like the answer to that question has been Yes, No, and It Depends. And maybe all three at the same time.

In fact, if you look at my post from April 2020, you’ll see the differences in the guidance between then and, as I’ll explain below, now.

Quite simple, with more science, we’re starting to get greater clarity on what testing is permissible for employees.

For antibody testing, the CDC recently updated its interim guidance to state that antibody test results “should not be used to make decisions about returning persons to the workplace.”

Antibody testing, as it turns out, is not yet the panacea yet that many were hoping for.

As a result, on June 17, 2020, the EEOC also updated its guidance on whether antibody testing could be used by employers as a condition of permitting employees to return to the workplace.

The short answer is “No”, it cannot be used at this time.  In doing so, the EEOC said:

An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelinesthat antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. 

And what about testing for the virus itself? On that point, the EEOC said its previous guidance permitting such tests remains applicable.

Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test).  The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC noted that it “will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.”

Thus, while antibody testing is not permissible now, this could change again in the future.

Employers who have an employee with suspected COVID-19 symptoms should feel confident now that requiring an employee to get a virus test is permissible. At the same time, employers should not require antibody testing.  Employers can still ask for a return to work note from a doctor too.

As we continue to learn more about COVID-19, my statement from April holds true: Employers should continue to check back on the guidance in the upcoming months.

My unabashed love of the New York Yankees has been well chronicled here on the blog. (Here and here for just a sample.)

So imagine my surprise when I did a deeper dive last night into the Supreme Court’s landmark decision yesterday.  There on page ten, Justice Gorsuch digs deep into baseball loyalties for this example:

Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee.

Or, put another way, it’s ok to fire Yankees fans, so long as all employees who like the Yankees (both male and female) are treated the same.

(I’m still waiting for a vociferous dissent from Justice Sotomayor – a devout Yankees fan herself.)

Wait, you might say — That’s my private belief! How can I be fired for just liking a baseball team?

But obviously, you can. That’s exact the point the Court is making.

Employment law is broad, but it isn’t that broad.  Being a fan of a sports team is not a protected category.

Indeed, I often point out to people that employment-at-will still means that employers can fire employees for any reason with an exception.  You can’t fire someone when doing so for a protected class (race, sex, etc.) is prohibited under the law.

Being a Yankees fan may be great, but it still isn’t protected under the law.

Now, if you were a Red Sox fan….

In the most consequential U.S. Supreme Court case in many years, the Court ruled this morning that Title VII prohibits employment discrimination on the basis of sexual orientation or gender identity.

You can download the 6-3 decision in Bostock v. Clayton County, here.

Connecticut has long prohibited employment discrimination on the basis of sexual orientation and gender identity so the court’s decision will have less of an impact here for LGBT workers.  In fact, back in 2016 the Connecticut District Court already offered these protections for Title VII cases in this state in a decision that I covered back then. 

In states without such protection, the new protections now offered to employees nationwide will be significant.

And moreover, the message that this case is sending is unmistakable too:

The statute’s message for our cases is equally simple and  momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions.

The case affirms that Title VII provides broad protections for LGBT workers.

Some of those who supported adding language to Title VII  to ban sex discrimination may have hoped it would derail the entire Civil Rights Act. Yet, contrary to those intentions, the bill became law. Since then, Title VII’s effects  have unfolded with far­reaching consequences, some likely beyond what many in Congress or elsewhere expected.

But none of this helps decide today’s cases. Ours is a society of written laws. Judges are not free to overlook plain  statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex  when deciding to fire that employee. We do not hesitate to  recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.

For Connecticut employers, the case should be welcome news; no more will employers have to navigate inconsistent laws in other states. And having consistent federal laws will make it easier for training purposes too.  Employers should update their policies too to make sure this is included in anti-discrimination protections.

My firm will be providing a further alert likely late today and we’ll have more on my firm’s Employment Law Letter blog as well.

What do you think of masks?

Strangely, it seems a loaded question of late.  How masks became a political hot potato is something that historians will debate.

Yesterday, Connecticut tried out a new slogan encouraging common-sense use of masks. The new slogan? “If you have to ask, wear a mask”.

But that’s not the full story of course.

In all of the state’s reopening rules, masks (and face coverings) are a key component — in stores, restaurants, offices, even amusement parks.

OSHA has chimed in as well with a new FAQ purporting to recap existing regulations on the subject.

If you read that, though, you might think that employers in Connecticut are exempt from provide masks to their workers now.

Cloth face coverings are not considered personal protective equipment (PPE) and are not intended to be used when workers need PPE for protection against exposure to occupational hazards. As such, OSHA’s PPE standards do not require employers to provide them.

But Connecticut’s rules for reopening all mandate the opposite now.  In rules for offices — which are identical to other sector reopening rules — it states:

EMPLOYERS ARE RESPONSIBLE FOR PROVIDING PERSONAL PROTECTION
TO THEIR EMPLOYEES
• If businesses do not have adequate personal protection, they cannot open.

For employers in Connecticut then, this is the rule to follow for now as it trumps any OSHA requirement.

And what about whether employees should wear a mask at work?

OSHA again takes a decidedly wishy-washy approach stating: “OSHA generally recommends that employers encourage workers to wear face coverings at work.”

Recommends is not the same as requires.

But Connecticut states the opposite in clear plain terms: “All employees are required to wear a face mask or other cloth face covering that completely covers the nose and mouth, unless doing so would be contrary to his or her health or safety due to medical conditions.”

For employers trying to decipher all of the rules (which seem ever changing), the last few months have made things challenging; the mask debate is only the latest.

But perhaps it’s best to listen to the scientists.

As Jon Hyman cites on his blog post on masks, a recent study this week shows that masks used by the public “could make a major contribution to reducing the impact of the COVID-19 pandemic.”

Masks may not look pretty at times, but in Connecticut at least, masks are a key part of the state’s reopening plans.

One of the items I talk about in a sexual harassment prevention training is that people’s perception of what sexual harassment is, may differ from how a court defines it.

Suppose I told you that the owner of a small company that you worked at and reported to made inappropriate comments in discussing the size of his genitals on more than one occasion, mentioning having the office holiday party at a strip club, and suggesting that you wear more revealing clothing to attract more clients.

Is that enough to establish a claim of sexual harassment?

No, says one recent Superior Court case, in Robinson v. Purple Hearts Home Care, LLC. 

As the court notes, a plaintiff must allege that the “level of harassment went beyond a few stray comments and instead permeated the workplace to such an extent that it affected an employee’s work on a day to day basis”.

Here, the court said, these facts are not sufficient to indicate that the plaintiff was a victim of sexual harassment “because she has not alleged that the comments were a continuous and pervasive aspect of her working life” nor that the comments “had a negative impact on her day to day work”.

The case is a reminder that the burden to establish a sexual harassment claim isn’t mere isolated incidents unless the incidents are sufficiently severe.

For employers, this still isn’t conduct that employers should engage in and an example of how conduct that some people might find offensive, may still not rise to the level of “sexual harassment” as courts define it.