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And this little piggy went to your workplace… and might decide to stay

August 31st, 2009  |  Deborah Hammonds

>The resurgence of the H1N1 influenza (swine flu) this fall and winter could infect approximately 30-50 percent of the US population, hospitalizing up to 1.8 million people and causing between 30,000-90,000 deaths, according to recent estimates from the President’s Council of Advisors on Science and Technology in an 86-page report to the White House assessing the government’s preparations for the H1N1 influenza. Employers, who are already reeling from the recession, must also brace themselves for the return of the H1N1 influenza because a pandemic could result in an estimated 30-40 percent reduction of their workforce and significant absenteeism for up to 12 weeks.

While the H1N1 influenza discovered last spring was decidedly less severe than originally anticipated, the flu strain, for which a vaccine is not expected until October, seems to be targeting a disproportionate number of children and young adults, according to a recent Centers for Disease Control and Prevention (CDC) Morbidity and Mortality Weekly Report. This is a key reminder to employers that employees may be absent from work not just because they are sick, but also to care for their sick family members.

Timing. The fall resurgence may well occur as early as September, beginning with the school term, with the peak infection hitting in mid-October, according to the President’s Council report. However, significant availability of the H1N1 vaccine is currently projected to begin only in mid-October, with several additional weeks required until vaccinated individuals develop a protective immunity. The government is asking employers to consider offering not just the seasonal flu vaccine to their employees, but also the H1N1 vaccine, once it’s available. The federal government has said that the vaccine will be provided at no cost to health care providers. Even then, (1) pregnant women, (2) health care workers/emergency medical responders, (3) parents or guardians of infants under 6 months of age, (4) persons between the ages of 6 months and 24 years of age and (5) individuals under 65 who are at higher risk for H1N1 influenza because of chronic health conditions or compromised immune systems would be the first to receive the vaccine, according to the CDC, with the elderly and then everyone else next in line. The majority of the H1N1 vaccine will be in multi-dose vials, with the remainder in single-dose syringes or nasal sprayers.

Given all the unknowns related to the H1N1 vaccine—owing to its availability and coverage—it begs the question, what should employers be doing now?

Recommendations for employers. Updated guidance from the CDC encourages employers to plan now for the impact that both the seasonal and the 2009 H1N1 influenza could have on their employees and operations. Among the CDC’s suggestions are the following:

  • Review or establish a flexible influenza pandemic continuity plan and involve your employees in developing and reviewing the plan;
  • Have an understanding about your organization’s normal seasonal absenteeism rates and know how to monitor your personnel for any unusual increases in absenteeism through the fall and winter;
  • Engage state and local health departments to confirm channels of communication and methods for dissemination of local outbreak information;
  • Cross-train personnel to perform essential job functions so that the workplace is able to operate even if key staff are absent;
  • Assess your essential functions and the reliance that others and the community have on your services or products; be prepared to change your business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations if needed);
  • Allow sick employees to stay home without fear of losing their jobs;
  • Develop other flexible work arrangements (i.e., telecommuting) to allow workers to stay home to care for sick family members or for their children if schools dismiss students or child care programs close;
  • Share your influenza pandemic plan with employees and explain what human resources policies, workplace and leave, pay and benefits policies will be available to them;
  • Encourage infection control practices in the workplace such as displaying posters that address and remind employees on correct hand and respiratory hygiene and cough etiquette;
  • Consider canceling non-essential, face-to-face meetings and travel during flu season; and
  • Add a “widget” or “button” to your company web page or employee web sites so employees can access the latest information on influenza: http://www.cdc.gov/widgets/ and http://www.cdc.gov/SocialMedia/Campaigns/H1N1/buttons.html.

In addition to the obligation to provide your employees and customers with a safe and healthy workplace, employers must avoid any liability issues that may arise when responding to the 2009 H1N1 influenza pandemic.

If the courts won’t tell us, how will we know?

August 28th, 2009  |  Pamela Wolf

>A law is only as good as a court’s willingness to apply it to the very real circumstances encountered by the individuals the law seeks to protect. So, courts are often called upon to determine exactly how far each protected category extends. For example, does the protected category of sexual orientation extend to ex-gays? Does the protected category of pregnancy (derived from the protected category of sex) extend to women, who, as a result of having a baby, are lactating?

These are the questions that the Superior Court for the District of Columbia and the Supreme Court of Ohio, respectively, had the opportunity to answer. One court answered the question loud and clear. The other missed the chance to provide clarity to the many women who need to know how far the law reaches when it comes to sex discrimination – do women in Ohio have to choose between their jobs and providing mother’s milk for their babies?

The sexual orientation question. In the D.C. case, the Parents and Friends of Ex-Gays, Inc (PFOX) challenged the District’s Office of Human Rights’ (OHR) rejection of the group’s public accommodations claim, finding that ex-gays are not members of a protected class under the District’s Human Rights Act (HRA), and, even if they were, the National Education Association (NEA) had rejected the group’s application for a booth at its annual convention for nondiscriminatory reasons. NEA viewed the group as hostile to gays and lesbians, and thus, its message was contrary to NEA’s policies regarding sexual orientation.

The court rejected OHR’s finding that ex-gays are not protected under the HRA since they do not have an immutable characteristic (presumably required for protected categories), calling it “clearly erroneous as a matter of law.” The HRA lists many protected categories such as religion, personal appearance, familial status, and source of income, all of which are subject to change, noted the court. Moreover, the HRA defines sexual orientation as “male or female homosexuality, heterosexuality and bisexuality, by preference or practice.” The court made it clear that the immutability of sexual preferences was not a part of the equation because the HRA protects sexual practices as well as preferences.

While ruling that OHR erred on the protected category issue, the court found that, although PFOX presented a prima facie case of discrimination, there was substantial evidence supporting the OHR’s determination that the non-discriminatory reasons asserted by NEA for its actions were not pretext for discrimination. Thus, the court affirmed OHR’s no probable cause determination.

The breast-feeding inquiry. As to mother’s milk, a splintered Supreme Court of Ohio, despite accepting a discretionary appeal to determine whether Ohio law prohibits discrimination against female employees because of lactation, chose not to give the clear direction so sorely needed.

In this case (Allen v Totes/Isotoner Corp), an employee was fired for taking breaks to pump her breasts after giving birth several months prior. A trial court entered summary judgment for her employer, reasoning that, since the employee had given birth five months earlier, and women who choose not to breast feed or pump their breasts do not continue to lactate for five months, the employee’s condition was not related to pregnancy, but rather to breastfeeding – which was not protected as gender discrimination.

An appeals court affirmed, holding that the employee had not presented a prima facie case of sex bias based on pregnancy, and that she wasn’t fired because she was lactating and needed to pump her breasts but, rather, because she took unauthorized extra breaks.

With no discussion on the reach of protections against sex or pregnancy bias, or whether the employee presented a prima facie case of discrimination, the high court’s per curiam opinion merely affirms based on the issue of pretext; the employee failed to show her employer’s justification for firing her – not following directions – was pretext for bias.

Three justices, two concurring in the judgment only and one dissenting, criticized the failure of the per curiam opinion to answer the question they believed was incorrectly answered by the trial court – all three justices would find that Ohio law protects against employment discrimination based on lactation.

One of these justices pointed out that Ohio’s Pregnancy Discrimination Act uses broad language, protecting employees ‘“because of or on the basis of pregnancy” and states that ‘[w]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes.”’

The same justice found it curious that the trial court would find lactation related to breast feeding but not to pregnancy. “[G]iven the physiological aspects of lactation, I have little trouble concluding that lactation also has a clear, undeniable nexus with pregnancy and with childbirth,” she wrote.

I’m sure many, many working mothers would agree. And they would like to know the answer to the question put to the state supreme court as soon as possible. Does Ohio law protect women from employment discrimination based on breast feeding?

If the state supreme court will not answer the question, how will they know?

Ricci decision highlights importance of validating tests

August 26th, 2009  |  Cynthia L. Hackerott

>One of the important lessons from the Supreme Court’s June 29, 2009 decision in Ricci v DeStefano, is that employers need to make sure, before administering a test, that the test is valid under the Uniform Guidelines on Employee Selection Procedures (41 CFR §60-3) for the specific job in question. Moreover, federal contractors should note that, post-Ricci, the OFCCP has demonstrated it will continue to evaluate whether employment tests have a disparate impact against any racial, ethnic or gender group. 

In Ricci, the Supreme Court found that the City of New Haven, Connecticut violated Title VII’s prohibition against discriminatory treatment when it tossed the results of firefighters’ promotion exams on the premise that certifying the exam results would lead to disparate impact litigation from minorities who were not promoted. In so ruling, the Court adopted a new standard — “strong-basis-in-evidence” — for resolving any potential conflict between Title VII’s disparate treatment and disparate impact provisions. The High Court held that under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate impact liability if it fails to take the race-conscious, discriminatory action.

However, the High Court ruling did not change the standards under Title VII and, thus, the Uniform Guidelines, regarding liability for employment tests that result in a disparate impact. Under the Uniform Guidelines, it is permissible for an employment test to have a disparate impact if the test is valid – i.e., job-related and consistent with business necessity, unless a plaintiff can show the employer had a better option, equally valid alternatives with lesser adverse impact, which is rare. A highly unusual aspect of the Ricci case was that the employer (rather than an employee alleging disparate impact) argued that its test was not valid and that it had equally valid alternatives with lesser adverse impact.

In addition to Title VII, the Uniform Guidelines apply to disparate impact liability under Executive Order 11246. During a forum at the Industry Liaison Group National Conference in Atlanta on July 30, OFCCP Midwest Regional Director Sandra Zeigler specifically stated that, post-Ricci, the OFCCP will continue to evaluate federal contractors’ use of tests pursuant to the requirements of the Uniform Guidelines. Recent OFCCP enforcement actions buttress Zeigler’s statement. On July 28, the agency announced that Kraft Foods Global, Inc. paid $227,500 to settle allegations of hiring discrimination against 193 minority jobseekers for the position of plant laborer at a Kraft facility. On August 18, the OFCCP announced that Gerber Products Co. agreed to pay $900,000 to settle findings of hiring discrimination against 1,912 rejected minority and female applicants for entry-level positions. In both cases, OFCCP investigators found that the employers used pre-employment tests with a disparate impact where there was insufficient evidence of validity for the positions at issue.  

Thus, employers are left with a legal landscape where they risk a Title VII action or OFCCP enforcement action by using invalid tests that result in a disparate impact, but, under Ricci, they cannot legally throw out the results of such tests without “a strong basis in evidence.” If the City of New Haven’s assertions are to be believed, then it begs the question why the city did not take care to validate the test prior to its implementation. In addition to potential disparate impact liability from using tests that are not valid, the OFCCP’s testing expert, Richard J. Fischer, Ph.D., has pointed out that if a test is not job-related, it simply doesn’t make business sense to use it. The bottom line is that employers should not be so concerned with the unusual circumstances presented in the Ricci case that they forget to focus on whether they are implementing valid employment tests in the first place. 

New York City private employers may soon wrestle with paid sick leave obligations

August 24th, 2009  |  David Stephanides

>Positioning New York City to become the fourth municipality in the country to pass paid sick leave legislation, Council Member Gale A. Brewer (D-Manhattan) introduced legislation on August 20, 2009, mandating that New York city private employers provide paid sick leave to their employees. Thirty-five of the 51 City Council Members have agreed to cosponsor the bill. New York City Mayor Michael Bloomberg has also endorsed the concept of paid sick days.

Called the Earned Paid Sick Leave Law, the bill would require employers to provide paid sick leave annually to each employee at a rate of one hour of paid sick leave for every 30 hours worked. Employees who work a 40-hour workweek would earn up to nine paid sick days per year, while employees working for small businesses (employing ten or fewer employees) would earn up to five days per year. Employees are eligible for the benefit once they begin work, but the paid sick days cannot be used until the employee has worked at least 90 days.

An employer must permit an employee to use the paid sick leave for the following reasons:

  • an employee’s or the employee’s child’s, spouse’s, parent’s, grandparent’s or domestic partner’s mental or physical illness, diagnosis or preventive medical care;
  • issues related to domestic violence; and
  • in the event a public oficial closes a school or place of business due to a public health emergency.

According to the bill, reasonable notice of foreseeable leave may be required and documentation may also be required for leave of more than three days. In addition, the bill bans employers from taking retaliatory personnel actions or discriminating against an employees because they take the leave. Businesses would be fined $1,000 per violation.

The District of Columbia, San Francisco and Milwaukee are municipalities that have paid leave programs, but Milwaukee’s paid sick leave ordinance was declared unconstitutional. An appeal has since been filed. Nationally, the Healthy Families Act (S. 1152/H.R. 2460) would establish a minimum standard of paid sick days for the nation, allowing workers to earn up to seven paid sick days a year. It is currently being considered by both the House and Senate.

U.S. signs international treaty promoting worldwide rights of persons with disabilities

August 21st, 2009  |  Deborah Hammonds

>The Obama administration continued to act on its stated commitment to be a “strong advocate for persons with disabilities” when it signed the U.N. Convention on the Rights of Persons with Disabilities. The convention is a treaty committing governments to promote, protect and ensure the full and equal enjoyment of all human rights and basic freedoms by people with disabilities worldwide.

When Susan Rice, U.S. Ambassador to the United Nations, signed the treaty, she noted it was “the first new human rights convention of the 21st century adopted by the United Nations and further advances the human rights of the 650 million people with disabilities worldwide. It urges equal protection and equal benefits under the law for all citizens, it rejects discrimination in all its forms, and calls for the full participation and inclusion in society of all persons with disabilities.”

“We all still have a great deal more to do at home and abroad,” she continued. “As President Obama has noted, people with disabilities far too often lack the choice to live in communities of their own choosing; their unemployment rate is much higher than those without disabilities; they are much more likely to live in poverty; health care is out of reach for far too many; and too many children with disabilities are denied a world-class education around the world. Discrimination against people with disabilities is not simply unjust; it hinders economic development, limits democracy, and erodes societies.”

Senior presidential advisor Valerie Jarrett took a moment during the signing ceremony to announce the President’s intent to create a new senior-level diplomatic post in the State Department to promote the rights of people with disabilities internationally.

“This individual will be charged with developing a comprehensive strategy to promote the rights of persons with disabilities internationally; he or she will coordinate a process for the ratification of the Convention in conjunction with the other federal offices; last but not least, this leader will serve as a symbol of public diplomacy on disability issues, and work to ensure that the needs of persons with disabilities are addressed in international situations. By appointing the necessary personnel to lead and ensure compliance on disability human rights issues, the President reinforces his commitment to the UN Convention.”

The United States joined 141 other countries that have signed the U.N. treaty. President Obama must submit the treaty to the U.S. Senate for ratification.