Wednesday, November 18, 2020

Correction: Travelers must quarantine for 14 days

Important correction: People travelling to (or returning to) Pennsylvania must either test negative for COVID-19 or quarantine for 14 days. I inadvertently typed "72 hours" in Wednesday's post (corrected version with update clearly marked here). My apologies! 

New orders from Gov. Wolf / Dr. Levine

Sorry for the brief hiatus, folks. I think I was suffering from a little election fatigue. I expect to be back in the flow after Thanksgiving. For now, "enjoy" these two new orders from Governor Wolf and Dr. Levine that may impact your workplace:

Traveler Testing

Just in time for Thanksgiving! People coming into Pennsylvania from another state (whether traveling to, or returning to, Pennsylvania) are required to either (a) get a negative COVID-19 test within 72 hours prior to entering PA; or (b) quarantining for 72 hours 14 Days (updated on 11/18/2020) (sidenote: perhaps some FFCRA implications here?). Full order

Strengthened Masking

  • Masks are required to be worn indoors and outdoors if you are away from your home. 
  • When outdoors, a mask must be worn if you are not able to remain physically distant (at least 6 feet away) from someone not in your household the entire time you are outdoors. 
  • When indoors, masks will now be required even if you are physically distant from members not in your household. This means that even if you are able to be 6 feet apart, you will need to wear a mask while inside if with people other than members of your household. 
  • This order applies to every indoor facility, including homes, retail establishments, gyms, doctors’ offices, public transportation, and anywhere food is prepared, packaged or served.
Of course, there are exceptions:
  • If wearing a face covering while working would create an unsafe condition in which to operate equipment or execute a task as determined by local, state, or federal regulators or workplace safety guidelines. 
  • If wearing a face covering would either cause a medical condition, or exacerbate an existing one, including respiratory issues that impede breathing, a mental health condition or a disability. 

  • When necessary to confirm the individual’s identity. 
  • While obtaining a service that requires the temporary removal of the face covering, such as dental services. 
  • When working alone and isolated from interaction with other people with little or no expectation of in-person interaction. 
  • If an individual is communicating or seeking to communicate with someone who is hearing-impaired or has another disability, where the ability to see the mouth is essential for communication.

Other Guidance

We also got two industry-specific memos:




Wednesday, October 28, 2020

Grocery store's mask requirements survive ADA legal challenge

An interesting decision from the Western District of Pennsylvania, in Pletcher v. Giant Eagle. One of the plaintiff's, Josiah Kostek, sought a preliminary injunction against Giant Eagle grocery store claiming that its mask requirements violated the ADA. 

The plaintiff has been diagnosed with numerous mental impairments: "anxiety disorder; panic disorder; post-traumatic stress disorder; and, an adjustment disorder with mixed anxiety and a depressed mood." But, he failed to provide any medical records establishing that he could not wear a mask in the grocery store. Further, Giant Eagle allows shoppers to wear face shields instead of masks, and Kostek had no evidence that he was unable to wear a shield. 

The plaintiff managed to trip over the low bar of establishing a prima facie case. Of course, even if he had cleared that initial hurdle, Giant Eagle would still have an opportunity to present a defense - like, ya know, they're trying to avoid the further spread of a global pandemic that's already killed a few hundred thousand Americans. The Court did not directly rule on that issue, but sent a crystal clear message:

[T]he Court need not evaluate Giant Eagle's well-taken defenses that its face covering policy is a legitimate safety requirement during the COVID-19 pandemic and that Kostek presented a direct threat to the health and safety of others, including customers and employees.

I understand people's frustration with mask requirements, but it appears to be an uphill legal battle to challenge store policies requiring them.  

Monday, October 19, 2020

Judge Amy Coney Barrett and the Case of the Last-Minute N-Word

 Back to some Judge Amy Coney Barrett employment law. Today's episode features Smith v. Illinois Dept. of Transportation. This was a hostile work environment and retaliation case, with a twist at the end. 

The employee alleged that he was told to "shut the f[] up," called a "stupid dumb motherf[]," and one guy threatened to "kick [his] ass" (f-words quoted as they appear in the opinion - you know I'd ordinarily let 'em fly in quotations). Does that create a hostile work environment claim? No. Why? No signs of discriminatory intent - hostile work environment claims arise under the discrimination statutes, so just being hostile is not enough. 

What about his retaliation claims? Well, the problem there was that he had a long, documented history of performance issues that were unrelated to any of his protected activity:

He received multiple ratings of “unsatisfactory” in two different formal performance reviews. His failings as an employee were chronicled in conversations and emails from a number of different supervisors and coworkers, who considered him unsafe, argumentative, and unable to follow instructions.

So, no retaliation claim either. 

Are you ready for the twist? Near the end of his employment, a former supervisor allegedly called him a "stupid ass ni[]." Judge Barrett acknowledged that this particular racial epithet "falls on the more severe end of the spectrum." Ultimately, she still affirmed summary judgment for the employer. Why? 


  • "He introduced no evidence that Colbert’s use of the n-word changed his subjective experience of the workplace." Instead, "his supervisors made him miserable throughout his employment," but for reasons unrelated to race, and there was no evidence that this last epithet subjectively made things worse.
  • And, his employment was already over. "The Department had initiated termination proceedings against Smith two weeks before, so he knew that he was about to be fired. And while things certainly could have gotten worse for Smith after the racially charged confrontation with Colbert, he offers no evidence that they did."
I've already seen some criticism of this decision. Although it was a panel decision affirming the district court (i.e. the four judges who looked at it all reached the same conclusion), I could also see a different panel coming out the other way. One could also contrast this opinion and then-Judge Kavanaugh's dicta on whether one n-word is enough to create a hostile work environment (that said, the facts on which Judge Barrett based her conclusion were not present in Judge Kavanaugh's case). 

Tuesday, October 6, 2020

Federal court recognizes cause of action under Pennsylvania Medical Marijuana Act

In a case of first impression for Pennsylvania federal courts, the Eastern District of Pennsylvania held that Pennsylvania's Medical Marijuana Act (MMA) creates an implied cause of action for employment discrimination. In other words, the MMA doesn't specifically say, "employees can sue their employers if they get fired for medical marijuana" - but, they can sue their employers if they get fired for medical marijuana. 

The Court quickly concluded that the plaintiff in this particular case had properly pled such a claim:

She alleges she legally purchased and used medical marijuana, disclosed her status as a cardholder, failed a drug test at work and then was fired the same day she recertified her medical marijuana card.

Now, we still don't have a state or federal appellate court decision on this issue - so, stay tuned. That said, the trend seems to be in line with this decision. Read the whole opinion in Hudnell v. Thomas Jefferson Univ. Hosp. here

Friday, October 2, 2020

Well, that Kimberly Guilfoyle story is somethin' else...

 You know I wouldn't take a break from my series on Judge Barrett's employment law decisions if it wasn't important... or scandalous. Okay, this is not exactly hard-hitting legal analysis, but it is a fascinating look at a high profile sexual harassment allegation. 

The New Yorker published a story, The Secret History of Kimberly Guilfoyle's Departure from Fox. It includes serious allegations:

[T]he assistant alleged that Guilfoyle, her direct supervisor, subjected her frequently to degrading, abusive, and sexually inappropriate behavior; among other things, she said that she was frequently required to work at Guilfoyle’s New York apartment while the Fox host displayed herself naked, and was shown photographs of the genitalia of men with whom Guilfoyle had had sexual relations. The draft complaint also alleged that Guilfoyle spoke incessantly and luridly about her sex life, and on one occasion demanded a massage of her bare thighs; other times, she said, Guilfoyle told her to submit to a Fox employee’s demands for sexual favors, encouraged her to sleep with wealthy and powerful men, asked her to critique her naked body, demanded that she share a room with her on business trips, required her to sleep over at her apartment, and exposed herself to her, making her feel deeply uncomfortable.

Guilfoyle reportedly denies the allegations. Per the article, Fox settled for "upward of four million dollars." 

This highlights the potential dangers of subordinates working with supervisors outside of a traditional workplace (like, the supervisor's apartment). These risks will likely be heightened as we go to more and more distributed work settings (work from home, work from coffee shop, work from AirBnB, etc.). Also, it's not just men engaging in workplace harassment. 

Thursday, October 1, 2020

Judge Barrett and the case of the Zamboni driver with a disability

 Back with another employment law opinion from Judge Barrett, this time in Graham v. Arctic Zone Iceplex, LLC

Graham was a Zamboni driver at Arctic Zone who got injured on the job. He did not work for a few months, and when he returned, he had certain medical restrictions. Specifically, he could only work sitting down. So, the employer tried to accommodate him by assigning him to sharpen skates. The employee disagreed - and claimed that he could not do the job sitting down. Here's the kicker though - "he did not inform Arctic Zone of his belief that skate sharpening did not meet his restrictions." 

Ask anyone who has attended one of my classes or presentations on the ADA - do I hammer on the importance of the "interactive process?" I hammer on the importance of the interactive process. And, the interactive process (as the name would suggest) is a two way street requiring interaction from both sides:

This is a textbook example of an employee “not provid[ing] sufficient information to the employer to determine the necessary accommodations.” Id. (citations omitted). Because he failed to uphold his end of the interactive process, we affirm the district court’s grant of summary judgment on the accommodation issue.

The employee also eventually got fired. So, Judge Barrett next turned to the employer's proffered legitimate non-discriminatory reasons for the termination. A few notes from that portion of the analysis:

  • The employer was not required to provide prior written notice or discipline of the employee's "apparent bad attitude, inability to complete work on time, and insubordination."
  • Judge Barrett derided the employee's "gotcha" argument - The employer argued that the employee did not handle his "change of position" well but also argued that the employee's "position" never changed. The reality was that the employee's schedule changed, so the semantics of calling it a "change of position" in one context and maintaining that it was the same position but just at a different time later was not viewed as contradictory. 
  • Oh, the employee also caused a Zamboni accident that created a dangerous condition for customers at the ice rink. 
So, Judge Barrett affirmed summary judgment for the employer. 

Sidenote: I've read a few of Judge Barrett's opinions now, and she is an excellent writer. She clearly explains the relevant facts and analysis, and she presents them in an easily readable "plain English" style. She is not, however, "folksy" (contra Justice Gorsuch).