COVID-19: News and Updates |
| Special #45 - June 18, 2020 |
| Articles and Updates Today
- HRDive Article: How allyship drives workplace inclusion > It's "especially important for leaders to actively support people of color to set company-wide norms," Limeaid Chief Science Officer Laura Hamill said. AUTHOR Sheryl Estrada
PUBLISHED June 16, 2020
- Constangy.com Legal Bulletin: Title VII applies to discrimination based on LGBT status, Supreme Court says
June 15, 2020
- Constangy.com Podcast: Six Tips to Avoid Being Sued By Your Employees June 16, 2020 - When may an employer require an employee to use existing leave concurrent with leave under the federal coronavirus-related laws? June 15, 2020 from GEA's HR answers now - ¶47,062 EEOC’s updated COVID-19 Q&As talk harassment, age, disability, pregnancy, and sex discrimination — AGENCY GUIDANCE, June 15, 2020
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| | | HRDive Article: How allyship drives workplace inclusion
It's "especially important for leaders to actively support people of color to set compaany-wide norms," Limeaid Chief Science Officer Laura Hamill said.
"Command and control leadership, lack of trust, not giving employees a voice, lack of listening — these are all signs of a potential non-inclusive culture," Hamill told HR Dive via email. "At the root of this is not fundamentally valuing your employees as human beings and not understanding that when you fail to value your employees, ultimately your people and business results will suffer."
Limeade defines inclusion "as a sense of belonging, connection and community at work," Hamill said. Allyship in the workplace is a key driver of an inclusive culture.
Effective allyship is based on trust
Healthy, supportive allyship must be "based on trust and intentional and conscious efforts that are perceived as helpful and positive by those you are seeking to be an ally to," Hamill said.
Although allyship for people of color can come in many forms, Hamill explained, it's "especially important for leaders to actively support people of color to set company-wide norms." This can happen through public advocacy and support, she said.
In the wake of the national protests following the killing of George Floyd by the Minneapolis police May 25, major employers have taken a stand against racism. For example, in immediate communication to its workforce, TD Bank leadership affirmed that any act of racism or hatred is unacceptable. The company committed to augmenting D&I education and training modules, placing a greater focus on issues affecting black employees and creating spaces for discussion, Girish Ganesan, global head of diversity and inclusion at TD Bank, told HR Dive in an interview.
Allyship can also mean taking a stand by making bold moves. Reddit named Michael Seibel to its board June 10, after Alexis Ohanian Sr., co-founder and former CEO of the tech company, stepped down. Ohanian announced June 5 that he resigned from Reddit's board and urged members to fill the seat with a black candidate.
"We need diversity at the highest levels of business now more than ever," he said.
Allyship can also be similar to mentoring relationships, Hamill said. It can happen through one-on-one conversations and by providing advice and resources, she said.
Set new behavioral norms
A benefit of allyship is new awareness and behavioral norms, which in turn drives inclusion, according to Hamill.
"For example, if a person of color is interrupted repeatedly, an ally can point that out and offer the person the space to talk without being interrupted," she said. "Once repeatedly practiced, this can start to create more awareness and others doing the same thing."
She continued, "it may also show the person you are supporting that you see them and value them and hopefully that they feel more included with your support."
Microaggressions can be defined as comments or actions that subtly express a prejudiced attitude toward a member of a marginalized group. A Dec. 9 report from the Center for Talent Innovation found that black professionals are more likely to experience microaggressions and prejudice more than other racial or ethnic groups.
Accountability for inclusion
To measure inclusion, Limeade utilizes its own technology including "a research-based survey that gathers feedback from employees on the drivers of inclusion," Hamill said.
"Companies should be checking in using confidential surveys like this so that employees can be open and honest about what's going well and what needs to improve," she continued. "If companies don't have inclusion surveys, they should consider adding inclusion items to their engagement surveys."
Low engagement and lack of inclusion in the workplace can be a retention risk. A Limeade Institute white paper published in October found that 60% of employees surveyed who felt "cared for" said they plan to remain three or more years with their companies, in comparison to only 7% of those who said they don't feel cared for.
Hamill also cautioned that allyship is just one important piece in creating inclusive workplaces.
"There's much more companies need to do to drive inclusion, such as ensuring behavioral norms of inclusion are articulated and trained," she said. All employees — especially leaders and managers — need to be held accountable to these behavioral norms, Hamill said; "people practices" such as hiring, onboarding, performance management and development, need to "be aligned and promote inclusion as well."
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| | | | Constangy.com Legal Bulletin: Title VII applies to discrimination based on LGBT status, Supreme Court says
By Robin Shea / Winston-Salem Office
6.15.20 In a 6-3 decision written by Justice Neil Gorsuch, the U.S. Supreme Court ruled today that discrimination based on sexual orientation or gender identity is a form of “sex” discrimination prohibited by Title VII.
Justice Gorsuch was joined by Chief Justice John Roberts, and Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. Justice Samuel Alito dissented, joined by Justice Clarence Thomas, and Justice Brett Kavanaugh wrote a separate dissent.
The decision resolved three lower court decisions: Bostock v. Clayton County and Altitude Express v. Zarda (U.S. Courts of Appeal for the Eleventh and Second Circuits, respectively, and both cases involving sexual orientation discrimination) and R.G. and G.R. Funeral Homes, Inc. v. EEOC (U.S. Court of Appeals for the Sixth Circuit, and involving gender identity discrimination). A listing of the states in each of the circuits is available here.
The decision resolves an issue that has been debated for years: As of today, employment discrimination based on sexual orientation or gender identity is prohibited by federal law. In addition to applying to employment decisions made in the future, the decision will apply to pending cases as well as employment decisions that have been made within the applicable charge-filing period.
Discussion
The primary rationale for the majority decision was that people who are discriminated against because of their sexual orientation or gender identity would not have been treated disparately “but for” their sex. In other words (for example), a gay man is discriminated because he is a man who is attracted to men. A similarly situated woman who is attracted to men would not be subjected to discrimination. The same rationale applied to gender identity, according to Justice Gorsuch: A biological male who presents as a woman would not be discriminated against “but for” the fact that the individual is a biological male. A similarly situated biological female who presented as a woman would not be subject to discrimination.
Justice Gorsuch analogized to prior Supreme Court decisions, including those finding that sexual harassment was a form of “sex discrimination” even though it is not specifically mentioned in Title VII. Justice Gorsuch also cited an earlier Supreme Court decision involving women who were discriminated against not because they were women per se but because of their status as mothers. The Court found that “motherhood discrimination” violated the Title VII prohibition on sex discrimination.
In addressing concerns expressed during oral argument and elsewhere that the Court’s decision could lead to unisex bathrooms and dressing rooms, or infringe on the religious rights of employers, Justice Gorsuch said that today’s decision did not extend that far and that those issues could be resolved in subsequent decisions.
Impact and steps for employers
For many employers and in many jurisdictions, the Court’s decision may not have a significant impact. Many state and local laws already prohibit, and many companies have voluntarily adopted policies prohibiting, employment discrimination on these bases. In addition, federal contractors have been required to prohibit LGBT discrimination and harassment since the Obama Administration.
However, for employers who are not federal contractors, who have older internal policies, or who have operations in jurisdictions that do not have these laws, the Court’s decision represents a significant expansion of Title VII as many employers understood it. Employers should take the following steps as soon as possible:
- Review your equal employment opportunity policies to determine whether your company prohibits discrimination or harassment based on sexual orientation and gender identity. If not, amend your policies to include those provisions.
- Promptly communicate the policy updates to all employees.
- In some work environments, there may be a risk of “reverse discrimination” against heterosexual employees. We believe that would also violate Title VII as interpreted by the Supreme Court.
- If your harassment training has not historically addressed harassment based on sexual orientation or gender identity, consider promptly conducting a “mini-session” addressing those subjects, and then include it in your regular training going forward.
- In determining whether to take adverse action against an employee, ensure that your review includes consideration of whether the employee’s sexual orientation or gender identity played any role in the proposed decision.
- Take appropriate steps to avoid discriminating in hiring against applicants based on sexual orientation or gender identity.
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| | | | Constangy.com Podcast: Six Tips to Avoid Being Sued By Your Employees with Attorneys: Susan Bassford Wilson / Cherie Silberman
June 16,2020
Do you want to get sued by your employees? Probably not. If you’ve ever pondered what steps you can take to reduce your company’s legal exposure, then this episode is for you. Join us as we discuss six practical tips that you can put into effect immediately at your company. You will thank us later!
This podcast is made available for educational purposes only, to give you general information and a general understanding of the law, not to provide specific legal advice or to establish an attorney-client relationship. This podcast should not be used as a substitute for competent legal advice from a licensed attorney in your state.
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When may an employer require an employee to use existing leave concurrent with leave under the federal coronavirus-related laws?
June 15, 2020 from GEA's HR answers now
Issue: Under your company policy, employees can take up to five paid sick days per year. For purposes of the new paid sick leave requirements under the Emergency Paid Sick Leave Act (EPSLA), when may you require an employee to use his or her existing leave under the company policy? What if leave is taken under the Emergency Family and Medical Leave Expansion Act (EFMLEA)?
Answer: Paid sick leave under the EPSLA is in addition to any form of paid or unpaid leave provided by an employer, law, or an applicable collective bargaining agreement. An employer may not require employer-provided paid leave to run concurrently with — that is, cover the same hours as — paid sick leave under the EPSLA.
Concurrent leave. In contrast, an employer may require that any paid leave available to an employee under the employer’s policies to allow an employee to care for his or her child or children because their school or place of care is closed (or child care provider is unavailable) due to a COVID-19-related reason run concurrently with paid expanded family and medical leave under the EFMLEA. In this situation, the employer must pay the employee’s full pay during the leave until the employee has exhausted available paid leave under the employer’s plan — including vacation and/or personal leave (typically not sick or medical leave). However, the employer may only obtain tax credits for wages paid at two-thirds of the employee’s regular rate of pay, up to the daily and aggregate limits in the EFMLEA ($200 per day or $10,000 in total).
If the employee exhausts available paid leave under the employer’s plan, but has more paid expanded and medical family leave available, the employee will receive any remaining paid expanded and medical family in the amounts and subject to the daily and aggregate limits in the EFMLEA. Additionally, provided both an employer and employee agree, and subject to federal or state law, paid leave provided by an employer may supplement two-thirds pay under the EFMLEA so that the employee may receive the full amount of the employee’s normal compensation.
Employees’ choices. Finally, an employee may elect — but may not be required by the employer — to take paid sick leave under the EPSLA or paid leave under the employer’s plan for the first two weeks of unpaid expanded family and medical leave, but not both. If, however, an employee has used some or all paid sick leave under the EPSLA, any remaining portion of that employee’s first two weeks of expanded family and medical leave may be unpaid. During this period of unpaid leave under the EFMLEA, the employee may choose — but the employer may not require the employee — to use paid leave under the employer’s policies that would be available to the employee to take in order to care for the employee’s child or children because their school or place of care is closed or the child care provider is unavailable due to a COVID-19-related reason concurrently with the unpaid leave.
Source: Families First Coronavirus Response Act: Questions and Answers, Q&A-86, https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.
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| | ¶47,062 EEOC’s updated COVID-19 Q&As talk harassment, age, disability, pregnancy, and sex discrimination — AGENCY GUIDANCE,
June 15, 2020 from GEA's HR answers now
On June 11, the EEOC posted new updates to its expanded technical assistance publication addressing COVID-19-related questions and answers arising under the federal equal opportunity laws. The publication, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, provides various approaches that employers may adopt as they plan for employees returning to the workplace, including providing information to all employees on who to contact with requests for disability accommodation or other flexibilities, and inviting employees to make any requests in advance that the employer will consider on an individualized basis.
Pandemic-related harassment. One of the new Q&As addresses how employers may respond to pandemic-related harassment, particularly targeted to employees who are or are perceived to be Asian. The EEOC said that managers should be alert to "demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Chinese or other Asian national origin, including about the coronavirus or its origins."
Make sure management knows what it is. Title VII-covered employers should make sure that management understands in advance how to recognize this type of harassment, which may occur using electronic communication tools, no matter whether employees are in the workplace, teleworking, or on leave, as well as in person between employees at the worksite.
Employee harassment at the worksite may also originate from contractors, customers, or clients, or from patients or their family members at health care facilities, assisted living facilities, and nursing homes. "Managers should know their legal obligations and be instructed to quickly identify and resolve potential problems, before they rise to the level of unlawful discrimination," according to the EEOC.
Workforce reminder. The antidiscrimination agency also suggested that employers may send a reminder to their entire workforce noting Title VII’s prohibitions on harassment; reminding employees that harassment will not be tolerated and can result in disciplinary action up to and including termination; and also inviting anyone who experiences or witnesses workplace harassment to report it to management.
Harassment while teleworking. What actions should an employer take when it learns that an employee who is teleworking due to COVID-19 is sending harassing emails to another worker? Here the EEOC said: "The employer should take the same actions it would take if the employee was in the workplace. Employees may not harass other employees through, for example, emails, calls, or platforms for video or chat communication and collaboration."
Inviting flexibility requests before returning to work. What are the best practices, in advance of having some or all employees return to the workplace, for an employer to invite employees to request flexibility in work arrangements?
Who-to-contact notice. The EEOC noted that the ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about who to contact, should they want to request accommodation for a disability that they may need when they return to the workplace, even if no date has yet been announced for their return. For requests received in advance, the employer may begin the interactive process.
Employers also may include in the notice all the CDC-listed medical conditions that may put a person at higher risk of serious illness if they contract COVID-19, provide instructions on who to contact, and explain that it is "willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions," the EEOC said.
General notice to returning employees. Employers may also send a general notice to all employees designated to return to the workplace, noting that it is willing to consider requests for accommodation or flexibilities on an individualized basis. Here, employers should specify whether the contacts differ depending on the reason for the request (e.g., if the office or person to contact is different for employees with disabilities or pregnant workers than it is for those whose request is based on age or child-care responsibilities).
Either approach works. The EEOC said either of these approaches are consistent with the ADEA, the ADA, and the May 29, 2020, CDC guidance emphasizing the importance of employers providing accommodations or flexibilities to employees who, due to age or certain medical conditions, are at higher risk for severe illness.
However, under both approaches, employers should make sure that whoever receives inquiries knows how to handle them consistent with the various federal employment nondiscrimination laws that may apply, such as those applicable to accommodations for a medical condition, a religious belief, or pregnancy.
Alternative screening method request. What should employers do when an employee entering the worksite requests an alternative method of screening due to a medical condition? The explained that this is request for reasonable accommodation that employers should handle in the same manner as they would for any other request for accommodation under the ADA or the Rehabilitation Act.
"If the requested change is easy to provide and inexpensive, the employer might voluntarily choose to make it available to anyone who asks, without going through an interactive process," the federal agency said. "Alternatively, if the disability is not obvious or already known, an employer may ask the employee for information to establish that the condition is a disability and what specific limitations require an accommodation. If necessary, an employer also may request medical documentation to support the employee’s request, and then determine if that accommodation or an alternative effective accommodation can be provided, absent undue hardship."
Religious accommodation. Where an employee has requested an alternative screening method as a religious accommodation, the employer should likewise determine if accommodation is available under Title VII.
Over age 65. Do employees age 65 and over have protections under the federal employment discrimination laws? The EEOC noted that the CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus and therefore has encouraged employers to offer maximum flexibilities to this group.
Can’t involuntary exclude, but can provide flexibilities. The ADEA prohibits employment discrimination against individuals age 40 and older, and it would prohibit a covered employer from involuntarilyexcluding an individual from the workplace based on his or her being 65 or older, the EEOC explained. This is the case even where the employer has acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.
"Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age," the federal agency observed. "However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison."
Medical conditions. The EEOC also noted that medical conditions may come into play. Workers age 65 and older may have medical conditions for which they are protected under the ADA as individuals with disabilities. Accordingly, they may request reasonable accommodation for their disability as opposed to their age.
Caregivers and family responsibilities. The EEOC had this to say on the question of whether there are sex discrimination considerations when an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic. "Employers may provide any flexibilities as long as they are not treating employees differently based on sex or other EEO-protected characteristics." Under Title VII, for example, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.
Pregnancy. The updates also added two Q&As related to pregnancy. In the first one, the EEOC advised that due to the pandemic, employers may not exclude employees from the workplace involuntarilydue to pregnancy. Under Title VII, sex discrimination under includes discrimination based on pregnancy. "Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough," the antidiscrimination agency explained.
Accommodations under the ADA. As to the right to accommodation based on pregnancy during the pandemic, the EEOC pointed to two federal employment discrimination laws that may trigger accommodation for employees based on pregnancy.
First, pregnancy-related medical conditions may amount to disabilities under the ADA, even though pregnancy itself is not an ADA disability. Where an employee requests reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.
Title VII accommodations. Second, the EEOC explained that Title VII as amended by the Pregnancy Discrimination Act "specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work." Accordingly, a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave, to the extent provided for other employees who are similar in their ability or inability to work.
Here, the federal agency suggested that employers make sure that supervisors, managers, and HR personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.
Source: Written by Pamela Wolf, J.D.
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| | | Georgia Department of Public Health COVID-19 Daily Status Report For: 06/03/2020 Updated 3pm daily
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Georgia Employers' Association |
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