Tag Archives: Employer

Can Employers Require Employees to Get the COVID-19 Vaccine?

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Happy New Year! 

Moving on from 2020 does not mean we have moved on from the scourge that is COVID-19.  However, the COVID vaccine is finally here! Though distribution has been slow, employers are planning ahead and wondering if they can require employees to get a vaccine as a condition to returning to work.  The short answer is yes, but there are some important factors to take into consideration to avoid potential risks, such as compliance with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other state and federal employment laws.

According to newly published EEOC guidance, employers, in general, can require employees to be vaccinated against COVID-19 and have determined that administration of a vaccine is not a medical examination under the ADA. “If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.” However, employers should be careful with any pre-vaccination questions as those could be subject to ADA laws. Employers need to make sure that these questions are job-related and consistent with business necessity.

Of course, there are always exceptions to the general rule.  Employees who have medical concerns related to a disability or sincerely held religious beliefs that preclude them from being vaccinated may be exempted from the vaccination requirement. In these scenarios, a reasonable accommodation that does not pose an undue hardship to the employer’s business may be required, such as allowing the employee to work from home, requiring the employee wear protective equipment at all times, or providing a separate space for the employee to work.

Where an accommodation is not possible or cannot substantially reduce the risk of infection to others, the employer must be able to demonstrate that the unvaccinated employee poses a “direct threat” to the safety and health of other individuals at the workplace. The following factors should be evaluated in determining if a direct threat at the workplace exists:

  • the duration of the risk
  • the nature and severity of the potential harm
  • the likelihood that the potential harm will occur
  • the imminence of the potential harm 

If there are no reasonable accommodations available and the employer finds that the employee does pose a direct threat to others, the employee may be prohibited from physically entering the workplace, but this does not mean the employer can terminate the worker without liability. Employers will need to determine if any other rights apply under other federal, state or local laws.

Finally, employers are not shielded from liability if an employee suffers adverse effects from a mandated vaccine administered by the employer or a third party with whom the employer has contracted. Therefore, the best option for employers is to encourage employees to take the vaccine voluntarily rather than mandating it. Employers can choose to give incentives to those employees that decide to get the vaccine to promote voluntary compliance.

Always best to contact legal counsel if you have any further questions.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2101 N.W. Corporate Blvd., Suite 410

Boca Raton, Florida 33431

Main: 561-361-6566
Direct: 561-948-2479

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eml@assoulineberlowe.com

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Protecting Employers from Sexual Harassment Claims

sexual harassment

 

As all of you know, today’s headlines have been dominated by stories of sexual harassment.  Last year, Bill Cosby and Donald Trump got most of the press, as did the decades-old charges against Bill Clinton.  This year, we have heard about complaints made against Harvey Weinstein, Bill O’Reilly, Roger Ailes, Kevin Spacey, Louis C.K., Roy Moore and others.  The list grows day by day.

Not all of these claims took place in a workplace setting, but many of them did.  Some of you may remember back in 1991 when sexual harassment in the workplace first became mainstream news.  I can still recall when Anita Hill accused Clarence Thomas, her former boss (and nominee to the United States Supreme Court), of sexually harassing her while the two worked together:  asking her out on dates even after she repeatedly refused, discussing sex in the work place, commenting on his own sexual prowess, etc.  After the hearings on Justice Thomas’ confirmation, lawyers like me first began seeing a slew of sexual harassment lawsuits brought against our employer clients.  In fact, I eventually became an employment lawyer exclusively because I had to learn how to defend these lawsuits, which had never before been handled by any of the lawyers in the large, litigation-driven firm where I was then working.

Over the years, employers – especially those who were sued and paid big-time attorneys’ fees and settlements – got smarter.  They developed anti-harassment policies, they trained their managers and employees, they hired sophisticated human resources managers to nip these claims in the bud and some even procured employer practices liability insurance (EPLI) coverage.  These actions, as well as the Supreme Court’s holding in Faragher v. City of Boca Raton case (which limited an employer’s liability for a supervisor who engages in sexual harassment at work), have made lawsuits for sexual harassment a rarity these days.

Although these lawsuits no longer dominate my case load, the tide could easily change with the new wave of sexual harassment claims in today’s headlines.  It will not be long before the person behind the “Me Too” post on Facebook brings a sexual harassment claim against her employer (note that individual harassers are not personally liable under applicable employment laws such as the Florida and federal civil rights acts; the employer bears sole responsibility).  Accordingly, my advice to smart employers is to be proactive today, and I have two key recommendations for how to do so:

First, all employers need to review their existing sexual harassment policies (or, heaven forbid, hire an employment attorney to draft one if you do not have a policy).  Make sure the policy clearly defines and prohibits any form of sexual harassment in the work place and describes a procedure for making complaints of harassment, including designating alternate persons to whom such complaints can be reported.  Although it should go without saying, the policy must be followed by the employer and must not be pure window dressing: complaints should be taken seriously, investigated and resolved and, if the complaint has merit, the offending employee should be disciplined.

Second, all employers should train managers AND employees on the policy.  Many employers have new hires simultaneously sign off on receipt of their handbook and sexual harassment policy without specifically training employees about recognizing, addressing and reporting sexual harassment in the work place.  And other employers wrongly assume that managers should know what to do if they see or are presented with a harassment complaint.  Employment attorneys and human resources consultants offer such training services, as do employee leasing companies; some EPLI providers may offer these services as well.  An investment in training goes a long way in establishing an harassment-free work place, and the costs of training are far less than those that may be incurred defending a lawsuit.

The old saying goes, “An ounce of prevention is worth a pound of cure.” If your business is ever forced to defend a sexual harassment claim, you will be in a better position to defend such claim by following the guidance above.  If I can assist you in any way, please call or email.

Ellen is a Florida Board Certified Labor and Employment Attorney with Assouline & Berlowe, P.A.

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

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Employers DON’T Have to Post Union Notices, Judge Rules – NY Times

By
Published: April 13, 2012
 

A federal judge in South Carolina ruled on Friday that the National Labor Relations Board did not have the authority to order most private employers to post notices telling workers about their right to unionize under federal law.

The judge, David C. Norton of United States District Court in Charleston, rejected the labor board’s argument that its order to post such notices was necessary for the board to carry out its mission. He also rejected the board’s contention that Congress had delegated authority to the board to order the posting of such notices, which would explain the right to bargain collectively, to distribute union literature and to work together to improve wages and conditions.

Judge Norton’s decision clashes with one that a federal district court judge in Washington, D.C., issued last month, concluding that the labor board did have the authority to issue its order on posting notices.

Officials with the labor board and the United States Chamber of Commerce, the main plaintiff in the South Carolina case, said their lawyers were looking into whether Friday’s ruling would or should cause the suspension of the board’s order just in South Carolina or nationwide.

Nancy Cleeland, the labor board’s spokeswoman, said, “Our attorneys are studying the decision and deciding what our response will be.”

Randel K. Johnson, the chamber’s senior vice president for labor, immigration and employee benefits, said, “We’re quite pleased with the decision, and we hope the labor board will suspend the regulation across the country until this all gets sorted out.”

Several legal experts predicted that the South Carolina decision would be appealed to resolve the conflict between the two rulings.

The ruling on Friday came in a state where the labor board is hugely unpopular because it had sought to have Boeing move a new $750 million production line for its Dreamliner to Washington State from South Carolina.

Judge Norton noted that for the 77 years since the National Labor Relations Act was passed, the labor board “has been nearly unique among federal labor agencies in not requiring employees to post a general notice of employee rights in the workplace.” But he noted that last August, the board changed course and issued the new regulation, which business groups argued was part of the board’s pro-union tilt under President Obama.

Noting that many workers are unaware of their rights under the National Labor Relations Act, the board said the regulations were intended to make it easier for workers to exercise their rights under the act.

Judge Norton, appointed by the elder President George Bush, wrote, “The legislative history of this act supports a finding that Congress did not intend to impose a universal notice-posting requirement on employers, nor did it authorize the board to do so.”

In the Washington ruling, Judge Amy Berman Jackson, an Obama appointee, found that the board was reasonable in concluding that many workers including high school students, recent immigrants and other workers in nonunion workplaces were unaware of their right to form unions or bargain collectively.

“The notice-posting rule is a reasonable means of promoting awareness,” she wrote, upholding the regulation.

A version of this article appeared in print on April 14, 2012, on page B7 of the New York edition with the headline: Employers Don’t Have to Post Union Notices, Judge Rules.
 
ASSOULINE & BERLOWE
Ellen M. Leibovitch, Esq.
Board Certified by the Florida Bar in Labor & Employment Law

 

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