On March 1, 2022, the EEOC updated its Q&A to confirm that:
- When making request for religious objection to receiving a COVID injection, employees do not need to use any “magic words,” such as “religious accommodation” or “Title VII.” However, they need to explain the conflict and the religious basis for it. As a best practice, an employer should provide employees and applicants with information about whom to contact and the proper procedures for requesting a religious accommodation.
- The employer may ask for an explanation of how the employee’s religious beliefs, practices, or observances conflict with the employer’s COVID-19 vaccination requirement. Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs—or degree of adherence—may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held. An employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others. No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.
- An employer will need to assess undue hardship by considering the particular facts of each situation and will need to demonstrate how much cost or disruption 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. Certain common and relevant considerations during the COVID-19 pandemic include, for example, whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals). Another relevant consideration is the number of employees who are seeking a similar accommodation, i.e., the cumulative cost or burden on the employer. See K.12 for additional considerations relevant to the undue hardship analysis.
- The determination of whether a particular proposed accommodation imposes an undue hardship on the conduct of the employer’s business depends on its specific factual context. 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 nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation. A mere assumption that many more employees might seek a religious accommodation—or the same accommodation—to the vaccination requirement in the future is not evidence of undue hardship, but the employer may consider the cumulative cost or burden of granting accommodations to other employees.
- An employer should consider all possible alternatives to determine whether exempting an employee from a vaccination requirement would impose an undue hardship. Employers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship.
- The obligation to provide religious accommodations absent undue hardship is a continuing obligation that allows for changing circumstances. Employees’ sincerely held religious beliefs, practices, or observances may evolve or change over time and may result in requests for additional or different religious accommodations. Similarly, an employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances. Employers must consider whether there are alternative accommodations that would not impose an undue hardship. As a best practice, an employer should discuss with the employee any concerns it has about continuing a religious accommodation before revoking it.
WHD Proposes Amendments
The US DOL announced a notice of proposed rulemaking (NPRM), Updating the Davis-Bacon and Related Acts Regulations “to better reflect the needs of workers in the construction industry, and planned federal construction investments.”
Proposed changes include:
• Creating several efficiencies in the prevailing wage update system and ensuring prevailing wage rates keep up with actual wages, which over time would mean higher wages for workers.
• Returning to the definition of “prevailing wage” used from 1935 to 1983 to ensure prevailing wages reflect actual wages paid to workers in the local community.
• Periodically updating prevailing wage rates to address out-of-date wage determinations.
• Providing broader authority to adopt state or local wage determinations when certain criteria is met based on sound survey methodology.
• Issuing supplemental rates for key job classifications when no survey data exists.
• Updating the regulatory language to better reflect modern construction practices.
• Strengthening worker protections and enforcement, including debarment and anti-retaliation
No More Blue Penciling Restrictive Covenants in WY
On February 25, 2022, the Wyoming Supreme Court issued a decision prohibiting courts from revising, or “blue penciling,” noncompete agreements to be reasonable and enforceable under the law. The decision overrules the Wyoming Supreme Court’s prior holdings on the issue and changes the landscape for employers drafting and enforcing Wyoming noncompete agreements.
In Hassler v. Circle C Resources, the Wyoming Supreme Court overruled Hopper v. All Pet Animal Clinic, Inc., which adopted the “liberal blue pencil rule” and authorized courts to narrow the terms of noncompete agreements to render them enforceable under Wyoming law. In overruling Hopper, the supreme court noted that public policy and “established black letter rules of contract interpretation” supported its decision to prohibit employers from requesting that the court revise noncompetes that are otherwise unenforceable.
State Poster Updates
The State of California has released the Supplemental Paid Sick Leave Poster, which became effective on February 19, 2022 The California Department of Industrial Relations created a FAQ page for the paid sick leave poster.
DISTRICT OF COLUMBIA
The District of Columbia has updated its Voting Leave Poster for the primary on June 21, 2022.
The State of Maryland has updated the following posters and notices:
The State of New York has updated its workers compensation poster and mask mandate guidance.
2nd Circ. Establishes Joint Employer Test
In Felder v. USTA, the Second Circuit established that a joint employer relationship exists under Title VII (Felder alleged race discrimination) when two or more entities, according to common law principles, share significant control of the same employee. Per the court “[t}his means that an entity other than the employee’s formal employer has power to pay an employee’s salary, hire, fire, or otherwise control the employee’s daily employment activities, such that we may properly conclude that a constructive employer-employee relationship exists. Because the exercise of control is the guiding indicator, factors indicating a joint-employment relationship may vary depending on the case, and any “relevant factor may . . . be considered so long as [it is] drawn from the common law of agency that Reid seeks to synthesize.” Eisenberg, 237 F.3d at 114 n.1. We are thus mindful that “all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.” Darden, 503 U.S. at 324, 112 S.Ct. 1344 (quoting N.L.R.B. v. United Ins. Co. of Am., 390 U.S. 254, 257, 88 S.Ct. 988 (1968)”
This case is a reminder to be careful in not establishing a joint employer relationship with another entity, either by contract, or otherwise, as it posed joint and several liability with that other entity.
5th Circ. Won’t Let States Amend Health Care Vax Challenge
The full Fifth Circuit has denied a request from Louisiana and 13 other states to amend a lawsuit challenging a COVID-19 vaccine mandate for health care workers, holding that doing so at this point in the case would alter the status of the appeal.
The first way the states sought to amend was by adding a new challenge to what they described as “new agency action” taken by CMS on Jan. 25 that the states allege expanded the mandate to apply to surveyors who survey and report whether Medicare and Medicaid facilities are complying with applicable laws. The federal government maintains the new guidance was a clarification, not an expansion.
The second amendment was to add a claim that the mandate violates the anti-commandeering doctrine, which holds that states can’t be commanded by the federal government to administer a federal regulatory program.
In a two-page ruling issued Thursday, the Fifth Circuit explained that seven judges voted in favor of rehearing en banc while 10 voted against, including the three judges who sat on the panel that in December narrowed the scope of the nationwide injunction halting the mandate to apply only to the 14 states bringing the challenge — Judges Leslie H. Southwick, James E. Graves Jr. and Gregg J. Costa.
The court explained that the panel’s Feb. 14 order denying the request made clear that it shouldn’t authorize any proceedings “that have the potential to alter the status of the appeal.”
“We considered at the time of our original order and continue to find there is a risk that proceedings on the proposed amendment would alter the appeal,” the court held. “Therefore, rehearing by the panel is also denied.”
Written by: Gordon M. Berger, Partner