Thursday, June 18, 2020

EEOC to employers: Don't use anti-body testing for return to work

The EEOC has once again updated its guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. This time, it just added one new question on anti-body testing, with a particularly clear answer:
Not official use.
A.7. CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace? (6/17/20) 

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA. 

The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.
Note that the EEOC reserved the right to changes its mind - but, for now, no anti-body testing. 

Tuesday, June 16, 2020

SCOTUS: Title VII prohibits sexual orientation and gender identity discrimination

Yesterday, the Supreme Court decided Bostock v. Clayton County - the Supreme Court website has been having trouble, so this is a link to SCOTUSblog (which excluded the appendices to make the file smaller). 

The Court consolidated Bostock and a couple others to address both sexual orientation and gender identity. Long story short, Justice Gorsuch authored a textualist 6-3 majority opinion:
In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.
Many jurisdictions already recognized sexual orientation or gender identity as protected classes. Now, the entire nation is covered - at least employers with 15 or more employees (who are therefore covered by Title VII). 

There may be some employers that are covered by state laws but not Title VII. For example, Pennsylvania employers with 4-14 employees fall under the PHRA, but not Title VII. And, the PHRA protects "sex" but not expressly sexual orientation of gender identity. Pennsylvania courts could conclude that the PHRA does not apply to sexual orientation and gender identity. Given Bostock, and my read on PA appellate courts currently, I doubt that will happen. But, we may still see it in other states. 

Monday, June 15, 2020

Lawffice Links: COVID-19 guidance still trickling in

The guidance just keeps comin' folks:

Wednesday, June 10, 2020

SCOPA: Public employee free speech meets Facebook rant about bus driver

The Supreme Court of Pennsylvania (SCOPA), recently issued its opinion in Carr v. PennDOT, addressing public employee free speech and Facebook rants. I know, I know, cut to the chase and tell us what she posted already:
Rant: can we acknowledge the horrible school bus drivers? I’m in PA almost on the NY boarder [sic] bear [sic] Erie and they are hella scary. Daily I get ran [sic] off the berm of our completely wide enough road and today one asked me to t-bone it. I end this rant saying I don’t give a flying shit about those babies and I will gladly smash into a school bus[.] 
 And some sassy replies to comments: 
 If you see a vehicle coming perpendicular you [sic] with no turn signal on, do you pull out from your stop sign anyway? Lmk when you’re done googling perpendicular Good then, you don’t? Then they shouldn’t either. . . 
And that’s my problem? They broke traffic law[s], which I’m abiding and I’m in the wrong? Getfucked. What world do you live in that I’d deliberate [sic] injure myself in stead [sic] of somebody else. [sic] Didn’t call myself a hero . . . 
No I’m saying you don’t care about the random fucks that drive your kids and are you serious? Haha. . . 
I care about me. . . . 
Your children and your decision to chance them with a driver you’ve never been a passenger with is your problem. A vehicle pulls out in front of me or crosses the yellow line, that’s their problem. A sedan, school bus or water truck. You’re [sic] kids your problem. Not mine
The author was a PennDOT road worker who got fired for the post. In 2018, the Commonwealth Court held that she was speaking on a matter of public concern, and that her public employer did not have sufficient justification to terminate her.  

Not so fast! The Supreme Court reversed. The Court agreed that the post touched on a matter of public concern, but noted that it seemed limited to a rant about a specific driver (as opposed to a broader issue of bus safety) and therefore had limited public value. The limited public concern was outweighed by the interest of the employer in "efficiently carrying out its responsibilities." As the Court noted:
Clearly, few statements could be more contrary to the Department’s mission of providing safe roadways for the traveling public than Carr’s comment, “I don’t give a flying shit about those babies and I will gladly smash into a school bus.” Furthermore, the fact that the Department received complaints via social media about Carr’s posts highlights the reasonableness of its concerns regarding the loss of public trust.
This remains a complicated area of the law. Many people don't realize that public employees have free speech protections at all; and then another large group thinks they have full free speech rights. Nope. It's somewhere in between - public employees receive some protection to speak as private citizens on matters of public concern - but balanced against public employers' rights to efficiently carry out their public duties. 

Friday, June 5, 2020

PPP Flexibility Act

A little tied up at the moment, but I would be remiss if I didn't point out that the Senate approved the PPP Flexibility Act by unanimous consent this week. Forgive me if I outsource the heavy lifting here and just point you to PPP Extension & Increased Flexibility: Paycheck Protection Program Flexibility Act of 2020 & Other Updates from The National Law Review. 

See also, interim final rules from May:
Presumably, these will be updated if Trump signs the PPP Flexibility Act into law (and it appears he will). 

Tuesday, June 2, 2020

3d Cir: "Fairness" in university discipline policy requires cross-examination and live, adversarial hearing

The Obama administration's Title IX "Dear Colleague" letter generated a flood of litigation. Mostly male university students challenged the single investigator model and lack of various procedural safeguards in sexual misconduct disciplinary processes. For the most part, federal courts have been sympathetic to their plight. The Dear Colleague letter has now been replaced by the Trump administration's Title IX regs, but the litigation continues.

On May 29, 2020, the Third Circuit issued a precedential opinion in Doe v. Univ. of the Sciences. The university expelled a male student following allegations of sexual assault from two female students. He claimed that the school discriminated against him because of his sex in violation of Title IX; and, the university breached its contractual obligation to provide him a "fair" process under the student handbook and university policies. 

The Court noted assorted Title IX doctrines that have sprouted up in the past few years, most notably, erroneous outcome and selective enforcement. The Court expressly rejected the need to "superimpose doctrinal tests" and instead just focused on whether "a federally-funded college or university discriminated against a person on the basis of sex."

Here, the student alleged outside pressure to target male students from the Dear Colleague letter. He
also pointed to the university's failure to pursue discipline against the female students, who he claims violated the confidentiality provisions of the policy (by recruiting new accusers), violated the alcohol policy by drinking, and failed to consider that the accusers may have violated the policy because *he* was intoxicated when they had sex. The Court concluded that these allegations were sufficient to state a Title IX claim. 

The next part of the opinion analyzed the process afforded to John Doe. Most procedural challenges in this context are based on the 14th Amendment's Due Process Clause. But, here, the student attended a private school, which is not subject to constitutional constraints. The Court held, however, that the school could have contractually bound itself to its student handbook and discipline policies, which promised "fairness" 
The policies did not define "fairness" . . . so, the Court did:
In short, notions of fairness in Pennsylvania law include providing the accused with a chance to test witness credibility through some form of cross-examination and a live, adversarial hearing during which he or she can put on a defense and challenge evidence against him or her.
The student alleged that he received neither a live hearing nor an opportunity to cross-examine, and therefore he had stated a claim for breach of contract. 

Interestingly, the Court distinguished this case from a line of Pennsylvania court decisions showing a fair amount of deference to university interpretations of their own policies:
That is especially appropriate for matters uniquely within the institution’s province, such as academic integrity or faculty development and discipline . . . . This is not such a case. The investigation and fair adjudication of alleged criminal activity like sexual assault is not uniquely within the province of colleges and universities.
This raises some questions for future application. The University is not adjudicating a crime, and there is no criminal conviction - it's adjudicating a violation of its own policies. Now, there is obviously an overlap in that criminal activity (such as sexual assault) will often also violate a school policy. But, one of the cases the Court purports to differentiate is Murphy v. Duquesne Univ. of the Holy Ghost

In Murphy, the university terminated a faculty member for violation of its sexual harassment policy. Obviously, harassment could encompass criminal activity, including assault. So, why is Doe's situation different? Is there a substantive distinction between faculty sexual harassment and student sexual harassment? Student discipline is just as much in a university's wheelhouse as faculty discipline, no? Or is the distinction assault versus harassment that does not include assault? It feels like the Court drew some fine lines here, and it's not entirely clear (to me at least) exactly where they were drawn. 

Friday, May 29, 2020

New OSHA Guidance on Social Distancing

New OSHA alert: COVID-19 Guidance on Social Distancing at Work. Some tips for maintaining proper social distancing:
  • Encourage workers to stay home if they are sick. 
  • Isolate any worker who begins to exhibit symptoms until they can either go home or leave to seek medical care. 
  • Establish flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), if feasible. 
  • In workplaces where customers are present, mark six-foot distances with floor tape in areas where lines form, use drive-through windows or curbside pickup, and limit the number of customers allowed at one time.
  • Stagger breaks and rearrange seating in common break areas to maintain physical distance between workers. 
  • Move or reposition workstations to create more distance, and install plexiglass partitions. 
  • Encourage workers to bring any safety and health concerns to the employers’ attention.