A “Sincerely Held” Belief Not Always Enough

Analyzing Undue Hardship In Religious Accommodation And Exemption Requests

When deciding employee religious exemption requests, many employers operate under the misconception that freedom of religion is absolute in the private workplace, completely overlooking the undue hardship analysis.

The recent implementation of COVID-19 vaccine mandates, such as the federal Centers for Medicare and Medicaid Services health care worker mandate and other non-governmental company-issued mandates, has resulted in employees filing an unprecedented number of religious exemption requests.

In October 2021, the Equal Employment Opportunity Commission (EEOC) reported statistics for fiscal year 2020, showing that religious discrimination charges made up just 3.6% of all charges filed. This is in line with historic trends over the prior 20 years during which religious discrimination charges accounted for 2.4% to 4.2% of all EEOC charges.

In contrast to these trends, hospitals across the country are reporting that around 15% to 30% of their employees seek religious exemptions to mandatory vaccination, and the majority of such requests are granted. The reasons for this are nuanced, and most certainly involve considerations of potential staffing shortages.

Other reasons include that many employers, having minimal experience with the legal issues related to religious accommodations, feel overwhelmed with the sheer number of requests, and are accustomed to deciding disability accommodation requests, which are subject to a stricter standard of review.

In fact, the legal standard that employers must meet to demonstrate that a religious exemption accommodation request poses undue hardship is much less onerous than that required in a disability accommodation request.

In recognition of the quick action that would be required by employers to comply with impending vaccine mandates, on October 25, 2021, the EEOC issued new guidance to assist employers in addressing the unique legal issues raised by implementation of COVID-19 vaccine mandates, including religious exemption requests.

Based on the current, unprecedented explosion of religious exemption requests, and in recognition of the continued confusion that many employers are experiencing with this issue, the EEOC updated its guidance again on March 1, providing employers with additional information necessary to making these accommodation decisions.

Deciding a Religious Exemption Request

When deciding an employee’s request for a religious exemption from a COVID-19 vaccine mandate, the employer must first determine whether the employee asserts “sincerely held religious beliefs, observances, or practices” that conflict with the mandate. Once established, the employer may further consider whether it can provide a reasonable accommodation that does not pose undue hardship to operations.

Has Employee Stated ‘Sincerely Held Religious Beliefs, Observances or Practices?’

The sincerity of an employee’s stated religious beliefs, practices, or observances is usually not in dispute.  The employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.” The definition of “religion” under Title VII protects non-traditional religious beliefs that may be unfamiliar to employers. Thus, as a general rule, an employer should assume that a request for a religious accommodation is based on sincerely held religious beliefs even if the employer is unfamiliar with the belief. Likewise, employees should not assume that their employer knows or understands their stated religious belief, and are required to cooperate with the employer when asked to explain the religious nature of their belief. Objections to vaccination that are based on social, political or personal preferences, or on non-religious concerns about the possible effects of the vaccine, do not qualify as “religious beliefs” under Title VII.

Employer Need Only Meet a ‘de minimis’ Standard to Show Undue Hardship

Requests for exemption from mandatory vaccination may be based on religious beliefs or for medical reasons, with religious exemptions accounting for the overwhelming majority of all exemption requests. Medical exemption requests, which are limited to specific medical conditions having contraindications to the COVID-19 vaccine, are analyzed under the Americans with Disabilities Act (ADA), which requires employers to meet a strict standard of review to show that a requested accommodation poses undue hardship. When evaluating whether undue hardship exists pursuant to the ADA, an employer must demonstrate that the requested accommodation would cause the business “significant difficulty or expense.”

In comparison, the United States Supreme Court has held that an employer evaluating undue hardship for an employee seeking a religious exemption under Title VII of the Civil Rights Act need only show that it would “bear more than a de minimis, or a minimal, cost to accommodate an employee’s religious belief.”  Such “costs” are broadly defined as “not only direct monetary costs but also the burden on the conduct of the employer’s business – including, the risk of the spread of COVID-19 to other employees or to the public.” Courts have found Title VII undue hardship where “the religious accommodation would violate federal law, impair workplace safety, diminish efficiency in other jobs, or cause co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work.”

Assessing Undue Hardship

When deciding whether it can accommodate an employee’s religious exemption request, the employer should carefully analyze the employee’s specific job functions and make a case-by-case, individualized assessment, considering the particular facts of the specific situation. In so doing, the employer is required to engage in the interactive process with the employee, requesting what specific accommodation the employee is seeking, e.g. remote work, wearing an N-95 mask, required testing, etc., and asking any necessary follow-up questions.  Employers should thoroughly consider all possible reasonable accommodations, including remote work and reassignment, and may consider an alternative accommodation to the one proposed by the employee.

When assessing undue hardship, the employer should consider the particular facts of each situation and will need to demonstrate how much cost or disruption to operations the employee’s proposed accommodation would involve. “An employer cannot rely on speculative or hypothetical hardship when faced with an employee’s religious objection but, rather, should rely on objective information.”  “When an employer is assessing whether exempting employees from getting a vaccination would impair workplace safety, it may consider, for example, the type of workplace, the nature of the employees’ duties, the location in which the employees must or can perform their duties, the number of employees who are fully vaccinated, how many employees and non-employees physically enter the workplace, and the number of employees who will in fact need a particular accommodation.” With respect to this last criterion, “the employer may consider the cumulative cost or burden of granting accommodations to other employees.”  Importantly, when deciding religious requests under the health care worker vaccine mandate, CMS requires the employer to ensure that it “minimizes the risk of transmission of COVID-19 to at-risk individuals in keeping with its obligation to protect the health and safety of patients.”

Denial of Accommodation Based on Undue Hardship

When an employer denies the employee’s accommodation based on undue hardship, it should provide the employee with a detailed explanation pertaining to whether it found the employee had stated “sincerely held religious beliefs, observances, or practices,” and all of the factors it relied on when deciding that it was unable to reasonably accommodate the employee without undue hardship on its operations. Employers also have the right to discontinue a previously granted accommodation if it subsequently poses an undue hardship on the employer’s operations due to changed circumstances.

Finally, when making religious exemption decisions, an employer should consider using an exemption review committee rather than relying on individuals to make these decisions, and should confer with legal counsel when questions arise to ensure compliance with the law.

With vaccine mandates in effect for an as yet undetermined period of time, employers can best protect their business, keep their workplaces safe, and reduce potential exposure to liability by becoming knowledgeable about Title VII religious exemption legal issues.

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Janis L. Adams of Danbrook Adams Raymond PLC is an experienced employment law attorney and business owner. You can reach her at jadams@darlawyers.com

This article was featured in the April 2022 issue of the Traverse City Business News.

Reality Check

Workplace Culture Assessments an Eye-Opening Tool

Scroll through Indeed, Monster, or any other job site at the moment and you will find endless employers describing themselves as “a great place to work,” “like family” and “supportive.” When trying to attract new workers, businesses generally put their best foot forward.

However, when trying to retain and engage a talented workforce, and comply with applicable employment laws, actions often speak louder than words.

Given the current economy and expanding employment law protections, many proactive employers are completing workplace culture assessments, taking a look in the mirror and asking themselves hard questions, like “What kind of employer are we?” and “What is it honestly like to work here?”

A workplace culture assessment is a tool that offers a candid snapshot of an organization’s current work culture. The assessment is intended to evaluate the work culture from multiple perspectives, identify strengths and weaknesses, and ultimately assess how closely the actua culture tracks with the version the organization projects or intends.

The process can be reaffirming, but it can also be uncomfortable and eye-opening. The information learned can make a business stronger, help to drive change where needed, and lead to better risk mitigation strategies. However, as with any tool, employers should be fully informed when making the decision to conduct such an assessment.

Employers should consider the following when planning or conducting a workplace culture assessment:

Internal v. Third-party Assessment

The goal for the assessment is to obtain accurate information about the employer’s actual practices and culture. While a current employee may be able to conduct the assessment more economically and have a deeper understanding of the organization’s operations, employees may be too close to the source to provide an objective and unbiased assessment. Further, if the assessing employee’s duties already include managing employee satisfaction, engagement, or compliance, an inherent conflict may exist. On the other hand, a third-party assessor with proper distance should be able to provide an impartial evaluation.

Additionally, the assessor should have specific experience with employment law and compliance in order to accurately identify areas of potential risk and exposure. If legal advice and/or other privileged information will be a part of the process, the company may wish to utilize its legal counsel to conduct and/or man- age the assessment to preserve privilege where possible.

Backward- and Forward-Looking Components

The most effective workplace culture assessments generally include components that analyze not only the employer’s current work culture based on past practices, but also the employer’s vision for its work culture going forward. The goal is to equip the organization with the information it needs to bridge the gap between the two, if any.

The backward-looking component should include an analysis of whether the employer’s actions in practice have been consistent with its own representations of culture and values (i.e., what has the organization said about its own culture via its policies, statements, etc.? Does the organization follow its own policies?)

It should also ask whether the employer’s practices and policies actually foster the type of culture or behavior intended (i.e., what behaviors are rewarded or discouraged by the practices and/or policies? What traits or values are lifted up?) This part of the assessment would likely include some form of exchange with current employees about their work experiences, as well as an analysis of performance management and corrective action procedures, and related documentation.

The second component of the assessment generally relates to the employer’s vision for its work culture going forward. If the organization’s leadership does not already have a shared vision about work culture, the assessor may be able to help the company intentionally consider this vision. Based on the shared vision, a work culture assessment generally would identify steps to bridge the gap, if any, and address any potential risk and exposure related to compliance issues identified in the backward-looking component.

Commitment to Action

Employers should understand that numerous employment laws require action by an employer once the employer has knowledge of an issue (i.e. discrimination and harassment, etc.). As a workplace culture assessment may directly identify such compliance issues, employers who engage in the assessment should understand that they may be exposing themselves to obligations to take investigative and/ or corrective action as a result of the findings of the assessment. Failure to take such action after knowledge could result in willful violations of law and/or potential exposure to liability. Thus, employers choosing to start the assessment process should be fully committed to act on the results.

While workplace culture assessments can provide an employer with a valuable unfiltered, introspective view of their organization, employers should be fully prepared for what they might see in the mirror.

Employers should consult their legal counsel prior to beginning such an assessment to ensure proper procedure is followed and privileged information is protected to the extent possible.

Lindsay Raymond specializes in employment law, represents employers in all aspects of employment-related matters, and defends employers in employment litigation matters. She can be reached at (231) 714-0161 or lraymond@darlawyers.com.

This article was featured in the September 2021 issue of the Traverse City Business News.

COVID Catch-Up

Michigan Employers’ Guide to MIOSHA Emergency Rules and COVID-19 Legislation

In the past few months, Michigan businesses have been impacted by rising COVID-19 cases, MIOSHA Emergency Rules, a package of COVID-19 statutes, and MDHHS orders. More business owners and employees are being personally impacted by the virus. COVID-19 found its way into my own home when my husband was exposed at his work this past October and then passed the virus to me. Thankfully, our children never showed any symptoms. However, it would be an understatement to say it was difficult to isolate with a 3- and 6-year-old when both parents are sick. When I finally emerged from our family’s quarantine, it was clear that COVID-19 fatigue is more than just a symptom of the virus. To provide some clarity in all of the COVID-19 chaos, I have summarized some of the most recent changes and requirements for employers:

MIOSHA Emergency Rules: On Oct. 14, the Michigan Occupational Safety and Health Administration (MIOSHA) issued emergency rules related to COVID-19, to
remain in effect for at least six months (through April 14, 2021). These rules require employers to:

• Conduct exposure determinations for all job tasks and procedures
• Prepare a COVID-19 preparedness and response plan with specific components
• Implement basic infection prevention measures (including a policy prohibiting in-person work to the extent work activities can feasibly be completed remotely)
• Carry out employee health surveillance (including daily screenings)
• Implement workplace controls
• Provide training
• Maintain required records MIOSHA issued FAQs to help explain some of the requirements. Employers can find the FAQs at www.michigan.gov

Among other subjects, the FAQs clarify that employers are required to keep records of the daily screenings of all employees and visitors to the workplace. At the very least, employers must keep a log containing the names of the individuals, date, and a pass/fail indicator. Because the log may reveal confidential medical information depending on its level of detail, it should be kept confidential and shared only with those who have a legitimate need to know.

Additionally, the FAQs address the requirement to conduct a remote work feasibility analysis. This requirement has been a source of contention for many employers as the emergency rules are vague on the subject and employers fear it requires 100% remote work, which may not be sustainable for their businesses. The FAQs indicate: “It is essential that businesses have a thoughtful, reasoned policy for why work that is completed in person cannot feasibly be completed remotely ... MIOSHA will not focus on evaluating the business’ judgment of feasibility, except for cases of obvious misapplication.”

The Michigan COVID-19 Workplace Safety Director echoed this approach in a live Q&A with employers on Nov. 16, stating that MIOSHA will give “deference” to the employer’s determination of feasibility when supported by a reasoned policy.

Thus, employers should evaluate each position and determine whether remote work is feasible. Some positions may require in-person work if such physical presence is necessary to:

• Facilitate the remote work of others
• Access certain equipment, networks, and/or data that cannot be sufficiently and securely accessed from home
• Maintain the security and value of the employers’ assets
• Efficiently and reliably respond to time-sensitive business and/or customer needs
• And/or meet other operational demands, including financial sustainability

No one factor should be determinative; the totality of the circumstances should be considered.

Employers should work with their legal counsel to develop a policy that explains how the remote work feasibility analysis for job tasks and/or positions is conducted and designates which
positions and duties must be performed in-person, via a hybrid arrangement, or fully remote. The policy should be a part of the employer’s COVID-19 preparedness and response plan.

Additionally, the policy should reserve the right of the employer to modify the designations to comply with any subsequent federal, state, or local governmental orders and directives, including but not limited to MDHHS Epidemic Orders, which are now being used in place of Gov. Gretchen Whitmer’s Executive Orders.

COVID-19 Legislation Package:
Four new Michigan statutes designed to support Michigan businesses dealing with COVID-19 went into effect on Oct. 22. House Bill 6030 provides immunity to employers from COVID-19 claims provided the employers comply with all applicable laws, regulations, orders, and requirements relating to COVID-19 precautions.

Thus, if employers are complying with CDC guidance and all federal, state, and local required mitigation measures, they are generally protected from employee tort and personal injury lawsuits if employees are potentially or actually exposed to COVID-19, or otherwise damaged as a

Lindsay Raymond specializes in employment law, represents employers in all aspects of employment-related matters, and defends employers in employment litigation matters. She can be reached at (231) 714-0161 or lraymond@darlawyers.com.

This article was featured in the December 2020 issue of the Traverse City Business News.

Reopening Your Business Part II

Practical Considerations For The Post-Shutdown Workplace

Now that your business is reopened, what happens if an employee contracts COVID-19? Are you required to grant an employee’s request for leave related to COVID-19? Are you still required to accommodate requests to telework?  In Reopening Your Business – Part II, we focus on preparing employers to properly respond to these novel issues, and avoid liability.

Investigating Whether COVID-19 Is Work-Related

An employee contracting COVID-19 does not necessarily mean there has been an OSHA violation. Understanding that COVID-19 can be acquired both inside and outside of the workplace, on May 26, 2020, OSHA issued enforcement guidance requiring employers with more than 10 employees (certain low-risk industries are exempted) to reasonably investigate whether COVID-19 infections are “work-related.”  A condition is “work-related” if an event or exposure in the work environment caused or contributed to the condition or significantly aggravated a pre-existing condition.

In accordance with OSHA’s recording requirements, a confirmed COVID-19 case that is work-related and results in death, days away from work, restricted work or job transfer, medical treatment beyond first aid or loss of consciousness, must be recorded by the employer in its OSHA Form 300 log.  Importantly, employers are also required to annually post a summary of the log. Employers with 250 or more employees and certain smaller employers in designated hazardous industries are further required to electronically file their summaries with OSHA each year. Failure to comply with these recording requirements may result in OSHA citations and financial penalties.

In order to properly complete the Form 300 log, employers are now required to conduct a reasonable investigation to determine whether a confirmed COVID-19 case is “work-related.”  This should include asking the employee his or her belief as to how the virus was contracted, discussing work and out-of-work activities that may have led to the illness (being cognizant of privacy concerns), and reviewing the work environment for potential exposures to the virus, such as evaluating whether appropriate mitigation measures were in place, and determining if other individuals also contracted COVID-19. Factors weighing in favor of or against a finding of “work-relatedness,” when there is no other alternative explanation, include, but are not limited to:

  • Infection develops among employees working closely together;
  • Contraction of the virus occurs shortly after prolonged exposure to customer/employee with a confirmed case;
  • Job duties require frequent close exposure to public in an area with on-going community transmission;
  • Employee associates with someone outside of work with COVID-19 during the infectious period; and
  • Evidence of causation provided by a medical provider or health authority, if any.

The final determination of work-relatedness must be based on information reasonably available to the employer at the time of the decision; however, if additional, relevant information is subsequently discovered, the determination must be supplemented. If after a reasonable and good faith investigation the employer cannot determine whether it is more likely than not that the exposure was work-related, the employer is not required to record the COVID-19 case in the Form 300 log. However, the employer must document and maintain records of the investigation to support its determination.

Granting Leave Related to COVID-19

When employees know they have a job to return to after taking leave for COVID-related reasons, they are more likely to report potential exposure and remove themselves from the workplace. OSHA’s new “Guidelines for Opening Up America” (June 2020) recognize this, advising employers to “evaluate existing policies and, if needed, consider new ones that facilitate appropriate use of…sick or other types of leave, and other options that help minimize worker’s exposure risks.”

Several state and federal leave laws support this goal. The FFCRA provides for paid leave to employees experiencing specific, identifiable COVID-19 issues.  If an employee’s request for leave under the FFCRA does not meet its specific requirements, or if such leave has been exhausted, employers may still be obligated to provide other leave related to COVID-19.

For instance, an employer with 50 or more employees would also need to consider whether an employee’s COVID-related leave request would qualify for leave under Michigan’s Paid Medical Leave Act or unpaid leave under FMLA based on the employee’s own serious medical condition or need to care for a family member.  An employer with 15 or more employees must also consider whether the employee would be entitled to unpaid leave as a reasonable accommodation for a disability of the employee under the ADA, absent undue hardship or direct threat. Finally, employers must consider whether they have leave policies beyond those required by law, such as a discretionary unpaid leave policy, that is applicable to the employee’s COVID-19-related situation, and if so, must apply such policies consistently to all eligible employees.

Teleworking Allows for Workplace Flexibility

Teleworking has also been shown to be an effective method of combating the spread of COVID-19 in the workplace. For this reason, in each Executive Order (EO) issued by Governor Whitmer regarding temporary workplace restrictions, employers have been ordered to use teleworking when in-person work is not necessary.  Thus, employers remain obligated to provide telework for their employees post-shutdown.

The OSHA Opening Guidelines, likewise, provide that telework should be considered at all phases of business recovery, and encourage employers to “consider additional policies that facilitate telework…to help minimize worker’s exposure risks.” Consistent with this direction, post-shutdown, employers will need to assess whether “in-person” work should remain an essential function of a particular job position: If an employee performed effectively while teleworking during the shutdown, why would telework no longer be offered post-shutdown?  If “in-person” work is no longer an essential function of a job position, employers may also need to consider telework as a reasonable accommodation for a disability. With that in mind, employers who utilize teleworking should have a teleworking policy that sets forth clear criteria regarding tracking of hours and supervisor monitoring to ensure performance standards are being met.

Reopening your business requires compliance with countless laws, administrative regulations, and state executive orders. Employers can mitigate their risk of potential penalties and liability by working with legal counsel to ensure compliance.

Janis L. Adams and Lindsay J. Raymond are experienced employment law attorneys and business owners. You can reach them at jadams@darlawyers.com and lraymond@darlawyers.com.

This article was featured in the July 2020 issue of the Traverse City Business News

Reopening Your Business

Implementing Required COVID-19 Mitigation Measures

The northern Michigan regions are the first regions in Michigan to be granted broader permission to reopen businesses due to their low numbers of COVID-19 cases and deaths, as compared with other Michigan regions.

This welcome news for business owners and employees comes amidst several grim statistics: The U.S. recently surpassed 100,000 deaths; Michigan has 54,881 confirmed cases; and 5,240 Michiganders have lost their lives to COVID-19. Against this backdrop, employees returning to work may feel anxious and concerned about exposure to the virus in the workplace. By implementing required mitigation measures and establishing good channels of communication with their employees on issues of safety, employers will better position their business for a successful reopening.

Required Mitigation Measures

On May 7, 2020, Governor Whitmer released “MI Safe Start: A Plan to Re-Engage Michigan’s Economy.” The governor’s plan establishes a six-phase continuum of restrictions and mitigation measures that relax incrementally over time as COVID-19 infections decrease and treatments develop.

The final post-pandemic phase permits all businesses to open only after there is a “high uptake of an effective therapy or vaccine” while continuing to require certain safety guidance and procedures and social distancing rules. As a vaccine to COVID-19 may not be available until mid-2021 or later, employers cannot simply wait it out. Thus, businesses should move quickly and proactively with all mitigation measures as soon as they are permitted to reopen.

The Grand Traverse region and Upper Peninsula have entered phase 4 of the plan due to their declining COVID-19 numbers while the rest of Michigan remains in phase 3. Executive Order 2020-96 (EO-96) extended the general shelter-in-place order through May 28, 2020, but increased limited exceptions for certain critical infrastructure workers, workers performing minimum basic operations, and workers performing a subset of resumed activities.

Under Executive Order 2020-97 (EO-97), all businesses utilizing permitted in-person work under EO-96 are required to take specific measures to protect their employees and mitigate the spread of COVID-19. It is expected that any similar executive orders in the near future will require at least these same mitigation measures, which include but are not limited to:

  • Developing and maintaining an OSHA-compliant COVID-19 preparedness and response plan by June 1, 2020, or within two weeks of resuming in-person activities, whichever is later.
  • Designating supervisor(s) to implement, monitor, and report COVID-19 control strategies.
  • Providing COVID-19 training to employees.
  • Conducting a daily self-screening protocol for all employees entering the workplace, including at a minimum a questionnaire covering symptoms and suspected exposure.
  • Enforcing visible six-foot social distancing and requiring masks (provided by the employer) when such distance cannot be consistently maintained.
  • Increasing facility cleaning and disinfecting standards.
  • Making cleaning supplies available to employees upon entry and providing time to frequently wash hands or use hand sanitizer.
  • Implementing a plan for notification and action subsequent to identification of a confirmed case of COVID-19 in the workplace.
  • Promoting remote work to the fullest extent possible.

 

Under EO-97, an employer’s failure to comply with these mitigation measures constitutes a violation of Michigan’s OSHA under MCL 408.1011, subjecting the business to possible penalties. If found to be willful, the violation could constitute a misdemeanor under EO-96, potentially affecting a business’s continued operations. Failing to comply with mitigation measures could also result in workers’ compensation claims if employees become sick while at work and a decrease in employee productivity and morale.

Creative Mitigation Strategies

As each business is unique, mitigation strategies that work in one work environment will not necessarily work in another work environment. In deciding what additional mitigation measures may be necessary to achieve your primary goals of maintaining six-foot social distancing, ensuring effective cleaning and disinfecting, and conducting daily employee health screenings – all of which are designed to limit virus transmission – employers should consider:

  • Adopting a gradual plan for returning employees to work.
  • Implementing staggered employee work schedules for days and/or times worked.
  • Reorganizing cubicles and other work areas to accommodate six-foot social distancing.
  • Developing clear, visible six-foot markings on the floor and signage for social distancing.
  • For businesses with patrons, posting an entering office sign regarding required social distancing and/or wearing of masks.
  • Closing common areas to employee use, such as break rooms.
  • Implementing staggering of employee break times.
  • Replacing community-use glasses, coffee mugs, plates and silverware with disposable paper/plastic products.
  • Turning off water fountains.
  • Identifying high-touch surfaces with color-coded stickers.
  • Replacing door knobs with hook openers or removing doors.
  • Replacing trash receptacles requiring hand touch with no-touch foot pedals.
  • Planning for anticipated supply shortages of high demand items: no-touch thermometers, soap, disinfectant, paper towels, hand sanitizer, face masks, gloves, and other PPE.
  • Using stickers, hand-stamping or other visible markings to confirm employees’ completion of daily health screenings and hand-washing/sanitizing upon entry into work environment.

 

An employer’s social distancing, cleaning and disinfecting, and daily health screening policies will only be effective if they are uniformly applied to everyone in the work environment, including the owners and management, and are transparent to all employees. By taking a “we are all in this together” approach to safety in the workplace, employers can help alleviate their employees’ trepidation about possible exposure in the workplace. Through this shared confidence in the measures taken to ensure the safety of all during these difficult times, employers can better position their business for success upon reopening. We owe that to those no longer with us today.

*NOTE: We will have a second article appearing in the July edition of TCBN focusing on the issues faced by businesses during their first month of reopening. 

Janis L. Adams is an experienced employment law attorney and business owner. You can reach her at jadams@darlawyers.com.

This article was featured in the June 2020 issue of the Traverse City Business News

Employment Law Countdown

Legal developments to consider ahead of 2020

The holiday season is a time to reflect on the past and plan for the future. However, making resolutions for your business can be overwhelming, especially with the ever-evolv- ing legal landscape of employment law. To make the process a bit easier, below is a count- down of a few developments to keep in mind as 2020 approaches.

1. Minimum Wage Increase

Effective Jan. 1, 2020, Michigan’s minimum wage will increase to $9.65/hour (up from the current $9.45/hour). Under Michigan’s Improved Workforce Opportunity Wage Act, incremental increases will take effect each year, reaching $12.05/hour by January 2030.

2. New DOT Drug and Alcohol Testing Database

Effective Jan. 6, 2020, the new Department of Transportation's Clearinghouse Database must be used by employers who are subject to DOT's drug and alcohol testing regulations via the rules of the Federal Motor Carrier Safety Administration (FMCSA). These regulations apply to employers who employ drivers who hold commercial driver’s licenses and drive commercial motor vehicles (CMV).

A CMV includes, but is not limited to, a vehicle with a gross weight rating of at least 26,001 pounds, one designed to transport 16 or more passengers, including the driver, or one that is used in the transportation of hazardous materials.

Under current rules, covered employers must make pre-employment requests to previous and current employers regarding each driver’s accident and drug and alcohol testing history. The new database must be used to supplement these information requests until Jan. 6, 2023, at which time the database will replace almost all such requests.

Additionally, covered employers must use the database to conduct annual queries on all covered drivers, and to report specific violations and return-to-duty/follow-up testing within three business days of the occurrences.

Covered employers should register with the database at https://clearinghouse.fmcsa.dot.gov and work with legal counsel to create or update their FMCSA Drug and Alcohol Testing Policy to ensure compliance.

3. FLSA Salary Threshold Increase

Effective Jan. 1, 2020, the federal Fair Labor Standards Act (FLSA) salary threshold for white-collar exemptions will increase from $455/week to $684/week, or an increase from $23,660/year to $35,568/year. Additionally, the salary threshold for highly compensated employees will increase from $100,000/year to $107,432/year. Certain non-discretionary bonuses and incentive payments, including commissions, are allowed to satisfy up to 10% of the threshold.

When workers are paid a salary at or above the salary threshold and meet certain duties tests, the employees are exempt from receiving overtime compensation for hours worked beyond 40 in a workweek. However, as of the New Year, if those employees are not being paid at the new salary threshold level, they will lose their exemption and become entitled to overtime compensation.

Employers still have time to work with legal counsel and evaluate their workforce to determine what changes, if any, are necessary. For those affected employees, employers should weigh the costs of increasing their salaries to preserve an exemption or reclassifying them as non-exempt and paying overtime. Position descriptions and budgets may need to be revised, and any reclassified employees will need to be trained on timekeeping policies and procedures.

In late October, Governor Gretchen Whitmer indicated that she did not believe the salary level set by the new federal rule was “good enough.” Thus, she directed the state labor department to consider an appropriate level and draft a proposal. Finalizing such a rule could take up to a year. However, if Michigan’s final rule increases the threshold beyond the FLSA threshold, employers would need to be ready to comply with the higher amount.

4. Employee Handbook Updates

Whether your employee handbook was updated 20 years ago or this past January, several developments in employment law in the last year would most likely impact current policies and procedures, including, but not limited to:

– Paid Medical Leave Act (PMLA): The PMLA applies to employers with 50 or more employees, and gives eligible employees up to 40 hours of paid leave for specified purposes. Subject to certain exceptions, generally non-exempt employees working an average of at least 25 hours per week each year are eligible for paid leave. The PMLA was effective in March this year, but many employers have not yet fully updated their policies to account for this change. Some common oversights include the requirement that eligible employees begin accruing paid leave on the first day of employment, that the waiting period for the use of such leave cannot be longer than 90 days, and that employees who accrue the leave (as opposed to being awarded it in one lump sum) must be able to carry over up to 40 hours of unused leave into the following year. Policies should be thoroughly reviewed for compliance.

– Legalization of marijuana:

In December 2018, the private recreational use and possession of limited amounts of marijuana and marijuana plants was legalized for persons at least 21 years of age. With a year under their belts, employers should consider the impact this legalization has had on their workforce and recruiting efforts, if any, and work with legal counsel to revise and/or refine their drug and alcohol policies to address any pressing needs, including, but not limited to, testing requirements and disciplinary actions, if not already mandated by other law.

By keeping these developments in mind and taking proactive steps to prepare, your business’ New Year will be looking merry and bright.

Lindsay Raymond specializes in employment law, represents employers in all aspects of employment-related matters, and defends employers in employment litigation matters. She can be reached at (231) 714-0161 or lraymond@darlawyers.com.

This article was featured in the December 2019 issues of the Traverse City Business News.

#MeToo: A New Perspective On Harassment Investigation

In the wake of the #MeToo movement, there has been a surge in the number of sexual harassment charges filed with the Equal Employment Opportunity Commission (EEOC).

In October 2019, the EEOC reported its fiscal year 2018 statistics showing that sexual harassment charge filings increased by 13.6% over the previous year; reasonable cause findings increased by 23.6% to nearly 1,200; and the EEOC recovered nearly $70 million for the victims of sexual harassment through administrative enforcement and litigation, up from $47.5 million in 2017.

In connection with these statistics, the EEOC has ramped up its role as enforcer, educator and leader in preventing workplace harassment. Given the dramatic increase in sexual harassment filings – and the focused efforts of the EEOC – it is incumbent upon employers to create a workplace culture that encourages the reporting and investigation of sexual harassment complaints. By focusing on the identification and prevention of sexual harassment in the workplace, employers can reduce their exposure to liability, and foster a professional, safe and respectful workplace environment.

Embrace (don’t avoid) the sexual harassment investigation. 

When faced with a sexual harassment complaint, some employers make the mistake of failing to investigate or engaging in a perfunctory investigation, neither of which will protect the employer from liability. Under federal and state laws, certain affirmative defenses are available to employers who take reasonable steps to prevent and promptly correct sexual harassment in the workplace.

For instance, provided no adverse employment action has been taken against the complainant, the employer may assert such a defense if it conducts a prompt, thorough and impartial investigation of the sexual harassment complaint and takes appropriate remedial action, as necessary, to ensure that the complained-of conduct does not recur. Thus, depending on other factors, the investigation and the remedial action taken as a result of the investigation assists in forming a shield for the employer, which may ultimately insulate the employer from liability.

The investigation must be prompt, thorough and impartial. 

Employers who fail to properly conduct a prompt, thorough and impartial investigation may be prohibited from asserting such a defense. An investigation that is perfunctory in nature or a sham, i.e., “I’ll talk to Chuck (the accused) – I’m sure he didn’t mean anything by it,” will not meet the “thorough” and “impartial” requirement. One that is unnecessarily delayed for several weeks may not meet the “prompt” requirement. Additionally, certain situations compel the use of an independent investigator to ensure impartiality, such as when the accused is the company’s CEO and the complainant is his/her assistant. Other circumstances may also require an independent investigator, such as when multiple complainants are involved; when the allegations concern extremely egregious conduct, such as sexual assault; or when the conduct has gone unreported for long periods of time. Although there can be some variation in the investigation depending on the particular circumstances of the complaint, every investigation must be prompt, thorough and impartial.

What about the “troublemaker” employee? 

It is never acceptable for an employer to make a precursory, subjective determination that an employee alleging sexual harassment is lying or that such employee’s claim is otherwise unworthy of investigation. A common mistake made by employers is to determine, for example: “Bea has always been a troublemaker and complainer at TCorp. We didn’t investigate her complaint of sexual harassment because we knew it wasn’t true and didn’t want to waste company time and money.”

The employer may ultimately determine through investigation that Bea’s complaint was falsified or misconstrued, however, that determination should never be made prior to the investigation. On the other hand, the investigation could show that Bea was the third victim of the accused, a lower-level supervisor, who regularly grabbed the breasts of Bea and two other victims, rubbed his genitals against them as they worked, made sexually inappropriate comments and gestures to them on a daily basis, and threatened to terminate their employment if they reported his conduct.

In this scenario, assuming TCorp had no knowledge of the harassment prior to Bea’s complaint, by conducting a prompt, thorough and impartial investigation and taking appropriate remedial action (termination of the accused in this situation), TCorp may be able to avoid liability and limit damages if Bea were to file a lawsuit. Moreover, by investigating Bea’s complaint, TCorp demonstrates to employees that sexual harassment is not tolerated in the workplace, and fosters a workplace culture that encourages reporting and respect.

Alternatively, if TCorp does not investigate Bea’s complaint, and thereafter the accused harasses two additional employees, TCorp’s knowledge of Bea’s complaint combined with its failure to investigate could easily result in TCorp being found liable for the sexual harassment claims of all five victims, thereby potentially exposing it to a financially ruinous outcome.

But we only need to investigate claims that complainants want investigated, right? 

Other common mistakes made by employers include not investigating harassing behavior employers know of but has not been reported, and not investigating allegations of harassment based on the complainant’s desire to keep the matter confidential.

An employer is imputed with “knowledge” of harassment and is legally obligated to investigate it when a member of management observes the harassing conduct first hand or learns of it through a witness other than the complainant. Likewise, an employer is obligated to investigate if it receives a complaint of harassment but the complainant wants to keep it confidential and does not want an investigation. The defense of “we knew about it but she didn’t want us to investigate it” or “we saw it but no one ever reported it” does not relieve an employer from its legal obligation to protect employees from known harassment in the workplace.  Indeed, if employers were able to rely on such a defense and avoid liability, it would be completely contrary to an employer’s responsibility to create a harassment-free workplace that encourages reporting and investigation and fosters a workplace culture that supports a safe and respectful work environment.

Employers who fulfill these responsibilities can improve their workplace culture and reduce their potential risk of exposure to liability related to claims of sexual harassment.

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Janis L. Adams of Danbrook Adams Raymond PLC is an experienced employment law attorney and business owner. You can reach her at jadams@darlawyers.com

This article was featured in the November 2019 issue of the Traverse City Business News.