July 26 was the 31st anniversary of the ADA. As17 year old daughter would say, “Yeah!!!!!

 

Today’s blog entry deals with whether long-haul Covid-19 can be a disability under the ADA, §504 of the Rehabilitation Act, and §1557 of the Affordable Care Act. I have been saying for some time that long-haul Covid-19 may very well be a disability depending upon the circumstances. We now know from this guidance put out by DOJ and HHS, here, that I was absolutely on the right track. This blog entry doesn’t have the usual categories associated with it. What I have done is I have lifted verbatim the guidance and then have a thought/takeaways section afterwards. You may also see references to numbers. When I cut and pasted, those references did not show up. However, you can find the references associated with those numbers in the original guidance linked to above. The blog entry is really short, so I think you are going to want to read the whole thing.

 

  1. What is long COVID and what are its symptoms? According to the Centers for Disease Control and Prevention (CDC), people with long COVID have a range of new or ongoing symptoms that can last weeks or months after they are infected with the virus that causes COVID-19 and that can worsen with physical or mental activity. Examples of common symptoms of long COVID include:
  • Tiredness or fatigue
  • Difficulty thinking or concentrating (sometimes called “brain fog”)
  • Shortness of breath or difficulty breathing
  • Headache
  • Dizziness on standing
  • Fast-beating or pounding heart (known as heart palpitations)
  • Chest pain
  • Cough
  • Joint or muscle pain
  • Depression or anxiety
  • Fever
  • Loss of taste or smell

 

This list is not exhaustive. Some people also experience damage to multiple organs including the heart, lungs, kidneys, skin, and brain.

 

Thoughts/takeaways: All of the items here would be physical or mental impairments under the ADA, §504, or §1557. Of course, that doesn’t answer the question of whether a person is a person with a disability because they must also be substantially limited in a major life activity, discussed below.

 

  1. Can long COVID be a disability under the ADA, Section 504, and Section 1557? Yes, long COVID can be a disability under the ADA, Section 504, and Section 1557 if it substantially limits one or more major life activities.9 These laws and their related rules define a person with a disability as an individual with a physical or mental impairment that substantially limits one or more of the major life activities of such individual (“actual disability”); a person with a record of such an impairment (“record of”); or a person who is regarded as having such an impairment (“regarded as”). A person with long COVID has a disability if the person’s condition or any of its symptoms is a physical or mental impairment that substantially limits one or more major life activities.

 

This guidance only addresses the actual disability part of the definition of disability and not the regarded as and record all prongs . It does not cover other definitions of disability or eligibility requirements such as those necessary to qualify for Federal benefit programs under Social Security.

 

Thoughts/takeaways: While the guidance does not address the record of or regarded as prongs of the disability definition, that does not mean those prongs can be ignored.

 

  1. Long COVID is a physical or mental impairment A physical impairment includes any physiological disorder or condition affecting one or more body systems, including, among others, the neurological, respiratory, cardiovascular, and circulatory systems. A mental impairment includes any mental or psychological disorder, such as an emotional or mental illness. Long COVID is a physiological condition affecting one or more body systems. For example, some people with long COVID experience:
  • Lung damage
  • Heart damage, including inflammation of the heart muscle
  • Kidney damage
  • Neurological damage
  • Damage to the circulatory system resulting in poor blood flow
  • Lingering emotional illness and other mental health conditions

 

Accordingly, long COVID is a physical or mental impairment under the ADA, Section 504, and Section 1557.

 

Thoughts/takeaways: All of the items here would be physical or mental impairments under the ADA, §504, or §1557. Of course, that doesn’t answer the question of whether a person is a person with a disability because they must also be substantially limited, discussed immediately below.

 

  1. Long COVID can substantially limit one or more major life activities “Major life activities” include a wide range of activities, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working. The term also includes the operation of a major bodily function, such as the functions of the immune system, cardiovascular system, neurological system, circulatory system, or the operation of an organ. The term “substantially limits” is construed broadly under these laws and should not demand extensive analysis. The impairment does not need to prevent or significantly restrict an individual from performing a major life activity, and the limitations do not need to be severe, permanent, or long-term. Whether an individual with long COVID is substantially limited in a major bodily function or other major life activity is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Even if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active.

 

Long COVID can substantially limit a major life activity. The situations in which an individual with long COVID might be substantially limited in a major life activity are diverse. Among possible examples, some include:

 

  • A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.
  • A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.
  • A person with long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, and/or thinking.

 

  1. Thoughts/takeaways: This particular section of the guidance bears repeating:

 

“The term “substantially limits” is construed broadly under these laws and should not demand extensive analysis. The impairment does not need to prevent or significantly restrict an individual from performing a major life activity, and the limitations do not need to be severe, permanent, or long-term. Whether an individual with long COVID is substantially limited in a major bodily function or other major life activity is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Even if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active.”

 

I have mentioned previously in my blog numerous times that as a preventive law measure, I like to ask myself the question whether the impairment, assuming it is temporary, is both transitory and minor. If the temporary impairment is both transitory and minor, you most likely have a disability under the actual disability prong even if the disability is temporary. Similarly, for the same reasons, if the disability goes longer than six months you most likely have an actual disability under the ADA. Again, the six months and transitory and minor approaches are preventive law and not a legal standard. Also, that substantially limits should not demand extensive analysis in most situations means that any request for documentation needs to be narrowly focused and not a fishing expedition. Finally, mitigating measures, with the exception of glasses, do not get factored into the question of whether a person has a disability. On the other hand, mitigating measures do come into play with respect to figuring out what reasonable accommodations are on the table.

 

 

  1. Is long COVID always a disability? No. An individualized assessment is necessary to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity. The CDC and health experts are working to better understand long COVID.

 

Thoughts/takeaways: Readers of my blog know that an individualized analysis is always required when it comes to ADA issues.

 

  1. What rights do people whose long COVID qualifies as a disability have under the ADA, Section 504, and Section 1557? People whose long COVID qualifies as a disability are entitled to the same protections from discrimination as any other person with a disability under the ADA, Section 504, and Section 1557. Put simply, they are entitled to full and equal opportunities to participate in and enjoy all aspects of civic and commercial life.

 

For example, this may mean that businesses or state or local governments will sometimes need to make changes to the way that they operate to accommodate a person’s long COVID-related limitations. For people whose long COVID qualifies as a disability, these changes, or “reasonable modifications,” may include:

  • Providing additional time on a test for a student who has difficulty concentrating
  • Modifying procedures so a customer who finds it too tiring to stand in line can announce their presence and sit down without losing their place in line
  • Providing refueling assistance at a gas station for a customer whose joint or muscle pain prevents them from pumping their own gas
  • Modifying a policy to allow a person who experience dizziness when standing to be accompanied by their service animal that is trained to stabilize them

 

Thoughts/takeaways: There are millions and millions of reasonable accommodations for specific disabilities. Always remember the do’s and don’ts of the interactive process, which we discussed here. Also, call the Job Accommodation Network, here, if you are stuck or looking for other ideas. If you are an entity involved in tests associated with licensing, don’t forget about complying with §309, 42 U.S.C. §12189, of the ADA. Also, Covid-19 and long-haul issues are coming for you if it hasn’t already.

 

  1. What federal resources are there for people with symptoms of long COVID?
  • The Office for Civil Rights of the Department of Health and Human Services (HHS) has the following page on civil rights and COVID-19: https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/index.html. o If you believe that an entity covered by HHS civil rights laws has violated your rights protected under these authorities, you may file a complaint at https://www.hhs.gov/ocr/complaints/index.html.

 

  • The Civil Rights Division of the Department of Justice has the following page on its ADA.gov website that discusses topics related to COVID-19 and the ADA: https://www.ada.gov/emerg_prep.html. o If you believe that you or another person has been discriminated against by an entity covered by the ADA, you may file a complaint with the Disability Rights Section (DRS) in the Department of Justice. Information about how to file a complaint is available at https://www.ada.gov/fact_on_complaint.htm.

 

 

  • The Administration for Community Living’s document, “How ACL’s Disability and Aging Networks Can Help People with Long COVID,” provides information on resources and programs to assist people with long COVID. This document is available at https://acl.gov/sites/default/files/COVID19/ACL_LongCOVID.pdf.

 

  • While employment is outside of the scope of this guidance document, individuals who wish to learn more about COVID-19 and employment can visit the following Equal Employment Opportunity Commission page, which provides COVID-19 information and resources: www.eeoc.gov/coronavirus.

o The EEOC’s main COVID-19 publication, What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, is available at: https://www.eeoc.gov/wysk/what-you-should-know-aboutcovid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

o For information about filing an employment discrimination charge, see https://www.eeoc.gov/filing-charge-discrimination.

 

Thoughts/takeaways: While not federal resources, the job accommodation network, mentioned above, and my blog, understanding the ADA, can be useful resources as well. Finally, training by knowledgeable people and consulting knowledgeable ADA counsel when appropriate are also very important.

Synagogue, Jewish, 1869, Pecs, Hungary

Synagogue (two story)

 

Previously, I blogged on a Seventh Circuit case discussing whether the ministerial exception applied to hostile work environment situation. In that panel decision, the Seventh Circuit said that the ministerial exception did not apply to situations involving a hostile work environment. You can see the complete discussion of that panel decision here. However, the Seventh Circuit voted to hear it en banc. On July 9, 2021, the Seventh Circuit sitting as a whole decided 7-3 that the panel got it wrong. That is, the ministerial exception does apply to hostile work environment situations. The person who wrote the majority opinion in the original panel decision dissented along with two others. Since we have already discussed this case at length, the blog  entry will be divided into the following categories and they are: why hostile work environment cases are subject to the ministerial exception (majority opinion); why hostile work environment cases are not subject to the ministerial exception (dissenting opinion); and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Why Hostile Work Environment Cases Are Subject to the Ministerial Exception (Majority Opinion)

 

  1. The First Amendment says that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.
  2. From the establishment clause and the free exercise clause, the ministerial exception, which ensures that the authority to select and control who ministers to the faithful is the church’s alone because such authority is strictly ecclesiastical.
  3. The First Amendment and the ministerial exception work together towards a common goal of protecting the employment rights of religious organizations.
  4. When adjudicating disputes involving religious governance, avoidance rather than intervention should be the role of the courts.
  5. Churches must have independence on matters of faith and doctrine and in closely linked matters of internal government.
  6. Ministerial exception follows naturally from the church autonomy doctrine.
  7. The ministerial exception put forth by the court in Hosanna-Tabor, discussed here, is a result of the church autonomy case law and notions of ecclesiastical independence and employment coming together.
  8. In Our Lady of Guadalupe, here, the Court emphasized that the church’s independence in matter of faith and doctrine requires the authority to select, supervise, and if necessary, remove a minister without interference by secular authorities.
  9. Without that power, a wayward minister’s preaching, teaching, and counseling could contradict the church’s tenets and lead the congregation away from the faith. The ministerial exception preserves a church’s independent authority in such matters.
  10. From Hosanna-Tabor and Our Lady of Guadalupe, you get the following three principles. First, the rationale is not limited to the context of those cases. Second, the ministerial exception prevents the harms of civil intrusion and excessive entanglement with the church. Finally, the First Amendment gives special deference to the right of religious organizations, especially in matters of ministerial employment.
  11. The ministerial exception is an affirmative defense to employment discrimination claims.
  12. Adjudicating plaintiff’s allegations of a minister’s hostile work environment claim would not only undercut a religious organization’s constitutionally protected relationship with the ministers, but it would also cause civil intrusion into, and excessive entanglement with, the religious sphere.
  13. Judicial involvement in this dispute departs from Hosanna-Tabor and Our Lady of Guadalupe and threatens the independence of religious organizations in a way the First Amendment does not allow.
  14. A judgment against the church would legally recognize that it fostered a discriminatory employment atmosphere for one of its ministers. Thus, the church would have necessarily failed in its supervision and control, either directly or indirectly.
  15. Members of a religious group put their faith in the hands of their ministers as the minister is the chief instrument for religious organization to fulfill its purpose.
  16. Only through a minister does a religious organization begin its own voice and spread its own message.
  17. Precluding termination claims by ministers, recognizes that their employment relationship is different than others and deservedly so.
  18. A religious organization must be free to choose those who will guide it on its way as well as free to decide how to lead a religious organization on that journey.
  19. Absolutely no doubt that the plaintiff was a minister under the applicable Supreme Court case law.
  20. Religion permeates the ministerial workplace in ways it does not for other workplaces. Ministers infuse a religious organization with spirituality. Therefore, allowing hostile work environment claims intrudes upon more than a mere employment decision. It also means that analyzing a minister’s hostile work environment claim based upon another minister’s conduct is not just a legal question but a religious one as well.
  21. If the relationship between an organized church and its ministers is its lifeblood, then the relationship between its ministers is its backbone.
  22. Interaction between ministers is critical to religious organization and its mission.
  23. The contours of the ministerial relationship are best left to a religious organization and not to the courts.
  24. To render a legal judgment about plaintiff’s work environment is to render a religious judgment about how ministers interact with each other.
  25. Deciding where a minister’s supervisory power over another minister ends and where employment discrimination law begins, is not a line to be drawn in litigation, which is why the ministerial exception exist in the first place.
  26. A religious organization’s supervision of its ministers is as much a component of its autonomy as is the selection of the individuals playing certain key roles.
  27. It doesn’t make sense to say that the independence of religious organizations matter only at the hiring and firing of the ministerial relationship and not in between (the work environment).
  28. Distinguishing between tangible and intangible employment actions is not persuasive.
  29. By probing the ministerial work environment, courts interfere with the free exercise clause, which protects a religious group’s right to shape its own faith and mission.
  30. A religious organization shapes its faith and mission through its work environment as much as it does through its appointments.
  31. Allowing the state to regulate the ministerial work environment violates the establishment clause.
  32. How one minister interacts with another in the employment environment that follows, is a religious not judicial prerogative.
  33. A hostile work environment claim threatens to fundamentally alter the ministerial relationship in the work environment.
  34. Since a minister lies at the heart of a religious organization’s work and workplace, deciding whether discrimination pervades his employment impermissibly requires a court’s intrusion into a religious thicket.
  35. Civil authorities have no say over matters of religious government. The invitation to turn the spiritual into the secular raises the concern of curtailing religious-based speech in the religious workplace.
  36. What one minister says in supervision of another may be stern counsel to some or tread into bigotry to others. How a court is to figure out the difference between the two cannot be done without infringing upon a religious organization’s rights.
  37. The free exercise clause allows ministers to have an eye toward liturgy and not litigation.
  38. A hostile work environment claim based on the relationship between ministers would send a court into endless inquiries as to whether each discriminatory act was based upon church doctrine or simply secular animus. Discerning the difference between the two is no task for a judge or jury.
  39. Judges cannot be as competent in ecclesiastical law and religious faith as members of a religious faith are.
  40. Excessive entanglement results when a court adjudicates a minister’s hostile work environment claim based upon the protective ministerial relationship.
  41. A religious organization should not be forced to choose between putting forth a religious justification or risking legal liability. That is, the state may no more require a minimum basis in the doctrinal reasoning then it can with respect to supervising doctrinal content.
  42. To defend against plaintiff’s claims without the ministerial exception, the church would have to rely on the affirmative defense comprising two elements: 1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and 2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Playing that defense out would make legally relevant every step that the church took or failed to take in internally responding to the alleged behavior of the minister from the informal procedures of the church handbook to the ancient traditions of a Canon tribunal. Such rules, policies, and decisions are not the federal courts concern because they are unmistakably of an ecclesiastical nature.
  43. Discovery to determine who is a minister differs significantly from discovery to determine how that minister was treated. Even more burdensome would be depositions of fellow ministers to figure out a subjective motive behind the alleged hostility.
  44. Tort liability generally does not arise as a direct result of the protective ministerial relationship, which is not the case for employment discrimination claims.
  45. Analogy to tort law fails to recognize that a hostile work environment claim brings the entire ministerial relationship under invasive examination.
  46. The courts are split on whether the ministerial exception covers hostile work environment claims. The 10th Circuit says that hostile work environment claims do fall within the ministerial exception. However, the Ninth Circuit says that hostile work environment claims do not fall within the ministerial exception. The court says the 11th and Fifth Circuits have not taken a clear stand on the issue.

 

II

Why Hostile Work Environment Claims Are Not Subject to the Ministerial Exception (Dissenting Opinion).

 

  1. The majority opinion means that regardless of how severe, pervasive, or hostile the work environment is, regardless of whether the hostility is motivated by race, sex, national origin, disability, or age, and regardless of whether the hostility is tied to religious faith and practice, such suits are precluded.
  2. The majority opinion focuses too much on religious liberty and too little on the counter arguments and other interests so as to take the Seventh Circuit’s law beyond the necessary protection of religious liberty. Instead, it creates for religious institutions a constitutional shelter from generally applicable laws at the expense of the rights of employees.
  3. The Supreme Court has never reached the question of whether hostile work environment claims are subject to the ministerial exception.
  4. The majority holding draws an oddly arbitrary line as a matter of constitutional law, barring only hostile environment claims.
  5. The Fourth and the Ninth Circuit’s and the Seventh Circuit’s panel decision drawing a line between tangible employment actions and hostile environment claims is the line most consistent with the purposes of the ministerial exception. Such a line allows churches ample power to select, control, and supervisor ministers while protecting employees from abuses that are not properly within the scope of anyone’s employment.
  6. The Ninth Circuit’s and the Seventh Circuit’s panel decisions are more in harmony with the broader sweep of First Amendment precedents-protecting religious liberty while not granting special privileges to churches at the expense of their employees except when necessary.
  7. In Hosanna-Tabor, the Supreme Court specifically said that they were not expressing an opinion on whether the ministerial exception applied to employees alleging breach of contract or two tortious conduct by the religious employers.
  8. The First Amendment does not bar civil suits against churches with respect to all aspects of a minister’s employment relationship. For example, it has long been clear that civil courts may award damages to a minister for breaches of employment contracts.
  9. That the circuits are split is a sign that the question of whether hostile work environment cases are subject to the ministerial exception is not as easy of a question as the majority suggests. In the Ninth Circuit case, the Jesuits did not defend the alleged harassment as motivating by religious views. In fact, they condemned it.
  10. In a footnote, the dissent notes that ministers claim for breach of contract can present serious First Amendment issues. However, those issues are not barred categorically from civil courts and call for a case-by-case consideration of whether the claim may be decided without intruding into doctrinal or ecclesiastical territory.
  11. The Ninth Circuit found that the free exercise clause did not require the courts to deny relief on hostile environment claims. In particular, they noted that the Jesuits most certainly did not claim that allowing harassment to continue unrectified was a method of choosing their clergy. Since there was no protected choice rationale involved, the Ninth Circuit said that they were not intruding on church economy. Therefore, allowing the case to proceed was anymore an intrusion upon church autonomy than when parishioners are allowed to proceed with civil suits against the church for the negligent supervision of ministers who have subjected them to inappropriate sexual behavior.
  12. A generalized and diffused concern about church autonomy was not enough to require dismissal.
  13. The Ninth Circuit found that in a hostile work environment case there would be no need to evaluate religious doctrine or the reasonableness of Jesuit practices.
  14. Churches and leaders are already accountable in civil courts for all kinds of similar sorts of claims. For example, employees who are not ministers may assert rights against churches for discrimination in the hiring, firing, compensation, and every other aspect of the employment relationship, including hostile environment claims.
  15. Everyone agrees that even ministerial employees can assert tort claims against supervising ministers and churches as institutions. Tort claims that would be similar to a hostile work environment claim include assault and battery and the intentional infliction of emotional distress.
  16. Defendants and all members of the court agree that supervising ministers may be subject to criminal law for crimes committed against church employees, including ministerial employees.
  17. Defendants and all members of the court agree that churches and their ministers can be subject to tort and criminal law for wrongs committed against parishioners and others.
  18. Investigations into tort and criminal liability of supervisors and churches of institutions cannot avoid looking into a church’s supervision and control of a ministerial employee. While delicate legal questions may arise in that eventuality, such investigation, civil suits, and even prosecutions may proceed and no one suggests otherwise.
  19. In a footnote, the dissent notes that state of mind is at the heart of tort law. For example, all you have to do is look at the great divide between intentional torts and negligent torts to get the point. That same footnote also points out that tort liability can arise as a direct result of the protective ministerial relationship. Just take a look at the role of a priest or other pastor’s power in the sexual abuse of parishioners or subordinate ministers or in the infliction of emotional distress on a subordinate.
  20. The First Amendment question that the ministerial exception involves has never been what sort of legal immunities actually helps churches. Instead, the question is whether that particular legal immunity is necessary to comply with the First Amendment.
  21. The government’s interest in preventing discrimination has long been recognized as compelling for purposes of constitutional analysis.
  22. Churches have undisputed powers to select and control their ministers free of constraints from employment discrimination and other laws. Hiring, firing, promoting, retiring, transferring our decisions that employers, including religious ones, make to select those who carry out their work. Further control is available through many other tangible employment actions, including decisions about compensation, benefits, working condition, resources available to do the job, training from other staff and volunteers, and so on.
  23. Hostile environment claims involve quite different elements and special rules for employers. The differences show that religious employers do not need exemption from such claims to be able to select, supervise, or control their ministers.
  24. Hostile work environment claims are tortious in nature and are by definition based upon actions that are not necessary for effective supervision of employees.
  25. In general, sexual harassment by a supervisor is not conduct within the scope of employment so the employer cannot be held liable for that conduct. That said, an employer can be liable where its own negligence is a cause of the harassment or where the supervisor takes tangible employment action against the employee. If no tangible employment action is taken, the hostile work environment rules view the harassment as a tort committed by a supervisor against an employee but acting outside the scope of the supervisor’s employment.
  26. The Supreme Court’s leading case teaches that a hostile work environment is not a permissible means of exerting constitutionally protected control over employees and accomplishing the mission of the business or the religious organization.
  27. An employer’s need and right to control employees should not embrace harassing behavior that the Supreme Court has defined in numerous cases as conduct that unreasonably interferes with an employee’s work performance. The notion that harassment is somehow necessary to control or supervise an employee is an oxymoron.
  28. The suggestion that federal courts cannot tell the difference between pastoral counseling even with tough love or stern counseling and the torrents of the most violent and abusive epitaphs aimed at race, sex, sexual orientation, and disability does not give sufficient credit to the federal courts. After all, courts have been protecting religious liberty for generations by policing lines far more subtle than the one that worries the defendants and the majority in this case.
  29. While it is true that application of employment discrimination laws, including hostile environment claims, poses some risk of entanglement between civil power and churches, that should only be the beginning of the analysis and not the end.
  30. Where faith communities encounter civil law, American courts have a long history of balancing powerful interest on both sides to protect religious freedom while enforcing other important legal rights. That problem is particularly sensitive when it comes to the tension between the freedom of religion and employees right to be free from invidious
  31. Procedural entanglements may result from a protracted legal process pitting invidious church and the state as adversaries and with the religious organization getting subjected to a legal process designed to probe the mind of the church, including far-reaching remedies and continue court surveillance of the church’s policy and decisions even after final judgment. In more than 20 years on the Ninth Circuit, the Ninth Circuit had not seen any procedural entanglements as so defined.
  32. Religious employers have long been subject to employment discrimination suits by their non-ministerial employees.
  33. Tort, contract, and property claims are not barred categorically against churches.
  34. Procedural entanglement is not necessarily any more concerned with hostile environment claims by ministerial employees than claims by non-ministerial employees.
  35. The Catholic Church has faced expensive litigation over torts committed by clergy in recent years. That litigation inquires, sometimes deeply so, into the relationship between the clergy and parishioners and into the church’s supervision and disciplinary practices in dealing with priests subjected of having sexually abused children. No one is suggesting that the First Amendment barred such claims or the necessary investigations.
  36. Courts have managed potential entanglement problems in church litigation across a range of subjects-from contract and property disputes to employment disputes, torts, and church elections and schisms.
  37. Deciding which of two rival groups seeking control of church property has the better theological or doctrinal argument, is not a role for the courts. However, civil court do sometimes decide questions of property, contract, tax, or tort law in cases involving churches. They can do that so long as they avoid issues of faith and stick to applying neutral, secular principles of law.
  38. If the full sweep of case law is considered, a need for balance and nuance and not new absolute rules in constitutional law is required.
  39. Civil courts have nothing to say about whether same-sex marriage or a hierarchal supervisory structure should be permitted. The church was free to decide whether to retain the plaintiff or fire him. However, hostile work environment claims alleging conduct constituting abuse under neutral, generally applicable standards that would be enforceable on behalf of a non-ministerial employee is another matter as such conduct is by definition not necessary to control or supervise any employee. So, the dissent would hold that courts may apply secular hostile environment law to actions taken towards all employees, including ministers, absent a showing that the circumstances of the particular case would require excessive entanglement between civil and religious realms.
  40. Hostile environment claims have been brought against other types of employers on the basis of highly disturbing facts and the majority opinion would preclude such claims.
  41. In brief and oral argument, defendants acknowledge that a religious employer could be held civilly liable for supervisor’s criminal or tortious conduct toward a ministerial employee or for the pattern of racial abuse and harassment described in other cases. If that is the case, the dissent does not see why a statutory case based upon the same conduct necessarily violates the First Amendment regardless of whether the supervisor claims a religious motive.
  42. It is difficult for the dissent to conclude that the First Amendment requires immunity with supervisors and coworkers of a ministerial employees leave nooses at the desk of the black minister while repeatedly subjecting him to verbal abuse with racial epitaphs and symbols. Similarly, it is difficult to understand how the First Amendment would require immunity where a teacher is subject to pervasive and unwelcome sexual intention or subject another to intimidating harassment based upon national origin. Such harassment is simply not necessary to control ministerial or any other employee. The majority’s holding puts this sort of extreme conduct beyond the reach of employment discrimination statutes.
  43. The majority decision raises the stakes for future decisions about who should be deemed a ministerial employee. In fact, many employers with religious affiliations are trying to expand the reach of the ministerial exception to cover a much broader range of their employees, such as teachers, nurses, and other healthcare workers. Lawyers for such employers have been offering public advice about how to do precisely that. In fact, several cases have rejected that approach. Expect aggressive effort to expand who might be ministerial employees after the majority opinion.
  44. The combination of the majority’s holding in this case with effort to expand the categories employee deemed ministerial threatens to leave many without basic legal protection of their dignity and employment.

 

III

Thoughts/Takeaways

 

  1. The Circuit Court split mean that it is inevitable that sooner or later this will go before the Supreme Court. I count four solid votes for the en banc decision: Barrett, Alito, Thomas, and Gorsuch. Three solid votes in favor of the dissent: Kagan, SotoMayor, and Breyer. That leaves Chief Justice Roberts and Justice Kavanaugh outstanding. Both are Catholics but that could play either way. Also, hard to say how the sexual harassment allegations against Justice Kavanaugh in his confirmation hearings would affect anything, if at all. For the dissenting view to prevail, Justice Kavanaugh and Chief Justice Roberts are going to have to be convinced somehow. The briefs for either side can be expected to resemble closely the majority and dissenting opinion in the Seventh Circuit’s en banc decision.
  2. Most certainly, lawyers are advising their clients on ways to increase the possibility of their ministerial exception applying to their clients that are religious employers. I started making suggestions myself the minute the Hosanna-Tabor decision came down, see here.
  3. Effort to make employees ministers may not be that difficult, particularly after the Our Lady of Guadalupe decision, here.
  4. If the majority opinion of the en banc Seventh Circuit’s decision is confirmed by the United States Supreme Court, you can expect an awful lot of litigation over who is a minister. In that situation, plaintiffs will have to figure out a way to say that Our Lady of Guadalupe did not render Hosanna-Tabor irrelevant. That is, the Hosanna-Tabor analysis of who is a minister still must be worked through. One wonders if the en banc majority decision is adopted, if you will not see a significant effort by employees to narrow Our Lady of Guadalupe and focus on using Hosanna-Tabor to figure out whether a ministerial employee is involved.
  5. If you are a person with a protected characteristic and are considering working for a religious employer in a jurisdiction that follows the majority of the Seventh Circuit’s en banc decision, you want to think several times over before deciding to work for that organization. At a minimum, a prospective employee should insist upon language in the contract saying that the religious organization will not discriminate against you based upon your protected characteristic. If you are a person with a disability, make sure that contractual language includes making reasonable accommodations per the ADA. If the religious entity is not willing to put that into the employment contract, serious consideration should be given to just walking away as difficult as that might be.
  6. You can expect litigation to move into the area of breach of contract if the majority opinion becomes the rule. Hence, what is actually in the employment contract will become super important.
  7. Since title III of the ADA specifically exempts religious employers from its coverage, you want to think very carefully about whether you want to be an independent contractor for religious organizations if you are a person with the disability. At a minimum, get protective contractual language into the independent contractor agreement.
  8. The majority opinion may be a be careful what you wish for situation. That is, religious employers may now find it very difficult to attract good employees to work for them because should there be any discrimination, the employee is without any remedy under the Seventh Circuit majority opinion. In the socially conscious world we now live in, such organizations may see protests and members leave as well.
  9. Even the dissenting opinion may be problematic for persons with disabilities alleging a hostile work environment with respect to a disability at a religious organization. One of the arguments that the dissent makes is that such conduct is outside the scope of employment. However, when it comes to the ADA the general rule is that there is no individual liability pertaining to private entities.
  10. Non-ministerial employees, if there is such a thing after Our Lady of Guadalupe, are not affected by this decision.
  11. The ministerial exception is an affirmative defense. So, the burden of making the defense falls upon the religious employer. How difficult that burden is, is not clear after Our Lady of Guadalupe Bay. Our Lady of Guadalupe and Hosanna-Tabor suggest very different answers between them on how expensive the burden of proof is for the religious employer.
  12. In extreme situations, look for more intentional infliction of emotional distress claims against religious employers after this decision because the decision does not preclude such claims. Also, look for other intentional tort claims to increase as well, such as assault and battery. Finally, keep in mind that intentional tort claims are often not covered by insurance.

Let’s say you have a situation where you have a severely autistic individual, a person with Tourette’s, dyslexia, or some kind of severe learning disability, all of which can lead to anger when the person gets frustrated. To be clear, I am not saying that all persons with disabilities are prone to anger more so than anyone else. I am saying that it is realistic to say that K-12 students with disabilities of various kinds may get extremely frustrated causing them to act out. Let’s say they engage in speech off-campus where those frustrations come to the fore. Does it matter if their IEP or their 504 plan makes note of their ability to get frustrated and then lash out? Perhaps, the IEP or a 504 plan even has an anger management plan in it. What are the considerations?

 

The case of the day actually doesn’t deal with disability rights at all, but rather deals with the rights of all K-12 public school students to engage in speech while off-campus. The case is Mahanoy Area School District v. B.L. decided by the United States Supreme Court on June 23, 2021. The case involved a person who failed to make the cheerleading team and then put a couple of different posts up on Snapchat. Someone screenshotted those posts, and the plaintiff wound up being suspended from the junior varsity cheerleading team for an entire year. She sued alleging violations of her free speech rights. It eventually made its way to the United States Supreme Court. As usual the blog entry is divided into categories and they are: why disciplining K-12 public school students for off-campus speech is going to be very difficult; just when might you be able to discipline a K-12 public school student for off-campus speech; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Why Disciplining K-12 Public School Students for Off-Campus Speech is Going to Be Very Difficult (Justice Breyer’s Majority Opinion).

 

  1. When it comes to off-campus speech, a school rarely stands in loco parentis (in the shoes of the parent).
  2. Geographically speaking, off-campus speech normally falls within the zone of parental rather than school related responsibility.
  3. Courts have to be skeptical of a school’s effort to regulate off-campus speech 24-7.
  4. American Public schools are nurseries of democracy and must include the protection of unpopular ideas.

 

Mitigating Factors to Consider:

 

  1. The postings appeared outside of school hours on her own time from a location outside the school and the language used did not identify the school or target any member of the school’s community.
  2. No reason to believe that the plaintiff’s parents had delegated to school officials their own control of their child’s behavior at the restaurant where the postings were made from.
  3. The vulgarity used in the posts encompassed a message of irritation and criticism of the school and cheerleading communities.
  4. The school presented no evidence of any general effort to prevent students from using vulgarity outside the classroom.
  5. No evidence existed of substantial disruption of the school activity or threatened harm to the rights of others that might justify the school’s actions. In fact, the evidence was entirely to the contrary. Also, little evidence of any serious decline in team morale to the point where it created a substantial interference or disruption of the school’s effort to maintain team cohesion.

 

II

Just When Might You Be Able to Discipline a Public School K-12 Student for Off-Campus Speech?(Justice Alito’s Concurring Opinion)

 

  1. None of the Supreme Court’s prior cases dealt with off-campus speech.
  2. The doctrine of in loco parentis rarely applies to off-campus speech.
  3. The only possible theory for disciplining a student for off-campus speech is that parents consented on behalf of the child to the relinquishment of some of the child’s free-speech rights.
  4. Parents consent to a public school’s exercise the degree of authority commensurate with the task that the parents ask the school to perform. In other words, they relinquish the measure of authority to allow the school to exercise their state-mandated educational mission as well as to allow them to perform any other function to which parents expressly or implicitly agree, such as giving permission for a child to participate in a curricular activity or to go on a school trip.
  5. Enrollment cannot be treated as a complete transfer of parental authority over a student’s speech because in our society, it is parents and not the State that have the primary authority and duty to raise, educate, and inform the character of the children.
  6. Parents can reasonably be understood to have delegated to their child’s public school the authority to regulate the speech in the following situations: 1) speech taking place during or as part of what amounts to a temporal or spatial extension of the regular school program, such as: online instruction at home; assigned essays or other homework; and transportation to and from school; 2) statements made during other school activities in which to participate need parental consent, such as school trips, sports, and other extracurricular activities taking place after regular school hours off the school premises; 3) afterschool program for students who would otherwise be without adult supervision during that time, such as abusive speech occurring while students are walking to and from school;
  7. Student speech that is not expressly and specifically directed at the school, school administrators, teachers, or fellow students addressing matters of public concern, such as, by way of example, politics, religion, and social relations is almost always beyond the regulatory authority of a public school.
  8. While schools may suppress disruption from protected speech, they cannot punish protected off-campus speech that prompted students to engage in the misconduct.
  9. There are three common categories where schools often step in with respect to speech: 1) perceived threat to a school’s administrators, teachers, other staff members, or students; 2) speech criticizing or deriding school administrators, teachers, or other staff members. Public k-12 schools can certainly demand respect in this situation, but parents do not relinquish their children’s ability to complain in appropriate manner about wrongdoing, dereliction, or even plain incompetence; and 3) bullying and severe harassment, which are not easy concepts to define with precision with respect to the regulation of speech.
  10. Unflattering speech about a school is protected.
  11. It is not reasonable to infer that the school was given the authority by plaintiff’s parent to regulate her choice of language when she was off school premises and not engaged in any school activity.

 

Justice Thomas dissented saying that in loco parentis at the time of the founding fathers would have included the regulation of off-campus speech. (Justice Alito in several different footnotes in his opinion, very much disagrees with this argument).

 

III

Thoughts/takeaways

 

  1. This case can be considered the constitutional lawyer’s full employment act. If you are a K-12 school and don’t have a constitutional lawyer on retainer, you most certainly need one now.
  2. In a footnote, Justice Alito points out that the case did not involve speech by a student at a public college or university. For several reasons, including age, independence, and living arrangements of college students, regulation of their speech may raise very different questions from those presented in this case. So, this case does not apply to college students at public colleges or universities.
  3. 90% of K-12 students attend public schools.
  4. If an IEP or a 504 plan has references to anger issues, temper, or even an anger management plan, then the student with a disability may also be able to fall back on that wording to minimize any discipline in addition to the protections offered by this case. In such cases, there is going to be a real issue of the student’s intent v. whether they were just acting in a way related to their disability based upon the circumstances they were facing. If the latter, there may be questions of whether reasonable modifications to the policy, program, activities might not be in order instead of discipline.
  5. Did I mention that every K-12 public school needs to have a constitutional lawyer on retainer?
  6. It is clear that disciplining K-12 public school students for off-campus speech is now going to be an extremely difficult proposition. If you throw in students with disabilities with 504 plans and IEPs referencing how they act out when frustrated, it becomes even more difficult.
  7. If a student has a disability that is prone to acting out when very frustrated, it would be a good idea to get that into the IEP or the 504 plan. As a general proposition, IEP’s and 504 plans should be as comprehensive as possible.
  8. Expect to see a lot of litigation in the future trying to figure out what the parameters are for public K-12 schools disciplining students for disruptive off-campus speech.
  9. As Justice Alito noted, the principles discussed in this case do not neatly carry over to colleges and universities, especially residential ones. As a result, look for lots of future litigation with respect to public colleges and universities disciplining students for off-campus speech.
  10. The majority opinion does not give much guidance as to when public K-12 schools can step in with respect to off-campus speech. Instead, the majority opinion just says that it will be very difficult for public K-12 schools to do so. Look for Justice Alito’s opinion to become very frequently read by special education/504 attorneys and constitutional law attorneys because he attempts to give that guidance.
  11. When bullying and harassment off-campus is sufficient for a public K-12 school to step in, remains to be worked out. Might there be an analogy to the hostile work environment line of cases?
  12. The decision applies to public K-12 schools. Private schools have much more flexibility when it comes to limiting freedom of speech.

Happy Fourth of July week everyone. Hope everyone had a great Fourth of July. I am sure many are taking the week off or having an extended holiday. Have fun and be safe.

 

Today’s blog entry is a three in one. In particular, we will talk about how do you figure out when a temporary disability falls under the actual disability prong, the importance of the EEOC charge, and an upcoming case before the United States Supreme Court dealing with whether emotional distress damages are available under the Rehabilitation Act. As usual, the blog entry is divided into categories and they are: Hamilton v. Westchester County; EEOC charge is everything; and Rehabilitation Act come to the United States Supreme Court. There is not a thoughts/takeaways section because it is incorporated already into each section.

 

I

 

Hamilton v. Westchester County (Just When Is a Temporary Disability Protected under the Actual Disability Prong)

 

In this case, plaintiff dislocated his knee and tore his meniscus when he stepped on crumble concrete in the prison recreational yard. While the disability would have been temporary with proper medical care, he didn’t get that care and things went from bad to worse. The county defended on the grounds that his disability was temporary, and the District Court dismissed his ADA claim on that ground. Plaintiff appealed.

 

After laying out what is needed for a prima facie case in a title II claim and noting that title II claims are driven by the question of whether meaningful access existed, the court notes that the ADA has been held by the Supreme Court to apply to prisons. The court then goes on to talk about how the ADA was interpreted prior to its amendments and how the amendments to the ADA expanded both definitional terms and by way of regulation relaxed temporal requirements with respect to whether a temporary disability could be an actual disability. The court joined the First, Fourth, and Seventh Circuits in holding that a short-term injury can now qualify as an actual disability under the ADA. In other words, a plaintiff’s actual disability claim under the ADA does not fail solely because he failed to state that his or her disability will be permanent or chronic or because he or she fails to indicate the duration or long-term impact of the impairment. The court goes on to note that the expansion for temporary disabilities by way of regulation contrasts with the exception that exist with respect to a person regarding as having a disability. As we know, with respect to the regarded as prong a person does not have protection under that prong if the impairment is both objectively transitory, lasting six months or less, and minor. 28 C.F.R. §35.108(f)(2). However, 28 C.F.R. §35.108(d)(1)(ix) now includes temporary disability as actionable impairments under both the actual and record of prongs. Here, the complaint alleged that the plaintiff sustained a dislocated knee and torn meniscus, suffered from excruciating pain, his injuries were not properly treated, and he was placed in situation where his injuries were aggravated.

 

So, what is the standard for determining when a temporary disability becomes an actual disability under the ADA as amended? The answer comes from a footnote where the court cites to a First Circuit decision holding that a temporary disability falls under the actual disability prong if it is sufficiently severe. They also cite to a decision we discussed here from the Fourth Circuit that also adopted in essence a sufficiently severe standard. However, just what is meant by sufficiently severe? I think it is instructive that the Second Circuit discusses the transitory and minor exception for regarded as as a way of illustrating that temporary disabilities can be covered under the actual disability prong but not the regarded as prong. I remain convinced that as a matter of preventive law if you are trying to figure out whether a temporary disability is an actual disability, asking yourself the question of whether the disability is both transitory AND minor will solve a lot of problems. Again, that isn’t the legal standard rather but good preventive law. We do have cases now saying that the legal standard is, “sufficiently severe.” However, “sufficiently severe,” isn’t really very helpful. Hence, the preventive approach of asking whether the disability is transitory, lasting less than six months, AND minor makes a lot of sense.

 

II

EEOC Charge Is Everything

 

In Yarbough v. Kaiser Permanente , a decision from the Northern District of Georgia decided on June 29, 2021 by United States Magistrate Judge Christopher Bly, a person filed a class-action suit after previously submitting an EEOC charge containing no indication that a class action was involved. The defense moved to dismiss the class action charges because the EEOC claim did not put anyone on notice that a class action was coming. The magistrate judge said that nothing in the charge indicated a class action was forthcoming. As a result, the charge did not provide notice to the EEOC and the employer that the discrimination alleged was more than an isolated act and therefore could not be used to bring class action allegations. The moral of the story is the EEOC charge has to closely match up with the complaint. Also, while anyone can file an EEOC charge, it is helpful to have a lawyer do it as they are aware of how the charge and any subsequent complaint have to match up with each other. Also, even if you can get by the EEOC charge and the complaint matching up with each other, class actions with respect to disability discrimination are incredibly difficult to pursue, as we have discussed here for example.

 

III

Rehabilitation Act Comes to the Supreme Court

 

Just last week, the United States Supreme Court agreed to hear the case of Cummings v. Premier Rehab Keller, a 2020 decision from the Fifth Circuit holding that emotional distress damages are not available under the Rehabilitation Act. That decision takes the opposite point of view from the 11th Circuit decision of 2007 in Sheely v. MRI Radiology Network, here, holding that emotional distress damages are available under the Rehabilitation Act. Having just read the 11th Circuit decision, the two decisions cannot be reconciled and are clearly in conflict with each other. So, no surprise that the Supreme Court stepped in to resolve the conflict. Both cases turn on how do you interpret Barnes v. Gorman. Barnes holds that compensatory damages are available under the Rehabilitation Act but not punitive damages. Since title II of the ADA is tied into the Rehabilitation Act remedies, you get the same answer as Barnes for violations of title II of the ADA. However, Barnes does not answer the question of whether a subset of compensatory damages, emotional distress damages, are available. Back in 2007, the 11th Circuit said they were. In June 2020, the Fifth Circuit said they were not. It all comes down to whether the cause of action is something that an entity is on notice of when they agreed to take federal funds. The 11th Circuit says that emotional distress damages are clearly foreseeable when there is discrimination under the Rehabilitation Act. They also say that there is a presumption that all remedies apply when a wrong is committed under a federal statute. On the other hand, the Fifth Circuit says that the 11th Circuit is confusing notice with whether damages are foreseeable. They are not at all the same thing says the Fifth Circuit. At this stage, I have no idea how the Supreme Court is going to deal with this situation. The case of course has huge implications for persons with disabilities pursuing title II or Rehabilitation Act claims for both the person with a disability and for lawyers thinking about taking such cases on. Stay tuned.

 

Have a great Fourth of July week everybody!

Today’s blog entry discusses the real issue of whether ADA serial plaintiffs, architectural or Internet, and ADA testers will continue to have standing with respect to claims filed in federal court. The case of the day actually has nothing to do with disability discrimination, but in a sense it has everything to do with disability discrimination. The case is TransUnion LLC v. Ramirez, here, decided by the United States Supreme Court on June 25, 2021. As usual, the blog entry is divided into categories and they are: facts; Justice Kavanaugh’s general discussion of standing principles; Justice Kavanaugh’s discussion of how those principles apply to standing in this case; Justice Thomas’s dissent; Justice Kagan’s dissent; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

Before jumping into this particular case, I should point out that the Supreme Court came down with another decision this week of interest. It also has nothing to do with disability discrimination except that it affects the regulation of any K-12 student’s off-campus behavior. That case is Mahanoy Area School District v. B.L., here, where the Supreme Court held that if you are going to go after a student for off-campus speech you better have your ducks in a row every which way to Sunday so to speak as the chances of the school being successful of going after that student successfully are not great. I haven’t decided whether to blog on that case yet, but I might do so in the future.

 

I

Facts

 

Beginning in 2002, TransUnion introduced an Office of Foreign Assets Control name screen alert product. Individuals on the Office of Foreign Assets Control list are terrorists, drug traffickers or other serious criminals. It is generally unlawful to transact business with anyone on that list. TransUnion created the Office of Foreign Assets Control name screen alert to help businesses avoid transacting with individuals on the Office of Foreign Assets Control list. While the intention was good, the implementation was not so great. What TransUnion did was if the consumer’s first and last name matched the first and last name of an individual on the Office of Foreign Assets Control’s list, then TransUnion would place an alert on the credit report indicating that the consumer’s name was a potential match to a name on the Office of Foreign Assets Control list. TransUnion did not compare any data other than first and last names. Not surprisingly, TransUnion’s name screen product generated many false positives. Thousands of law-abiding Americans happen to share first and last names with one of the terrorists, drug traffickers, or serious criminals on the Office of Foreign Assets Control’s list of specifically designated nationals. One of those individuals was a gentleman named Sergio Ramirez who tried to purchase a car but could not do so because his name was on the list. He actually had to have his wife purchase the car in her own name. The next day the plaintiff called TransUnion and requested a copy of his credit file. They sent him a mailing the same day that included his credit file and the statutorily required summary of rights prepared by the Consumer Finance Protection Bureau. The mailing did not mention the Office of Foreign Assets Control alert in Ramirez’s file. The following day, TransUnion sent Ramirez a second mailing alerting him that his name was considered a potential match to names on the Office of Foreign Assets Control list. The second mailing did not include any additional copy of the summary of rights. Concerned about the mailings, Ramirez contacted a lawyer and ultimately canceled a planned trip to Mexico. TransUnion eventually removed the Office of Foreign Assets Control alert from his file. He then brought suit alleging three violations of the Fair Credit Reporting Act. That suit was expanded to include a class action of all people in the United States to whom TransUnion sent a mailing during January 1, 2011 to July 26, 2011 that was similar in the form to the second mailing that the plaintiff received. That entire class contained 8185 members including the plaintiff. Of that class, only 1853 members had their credit report disseminated by TransUnion to potential creditors during the period from January 1, 2011, to July 26, 2011. After six days of trial, the jury awarded each class member $984.22 in statutory damages and $6353.08 in punitive damages for a total award of more than $60 million.

 

II

Justice Kavanaugh on General Principles of Standing (Majority Opinion Joined by Chief Justice Roberts, Justice Alito, Justice Barrett, and Justice Gorsuch).

 

 

  1. For there to be a case or Controversy under article III, a plaintiff must have a personal stake in the case.
  2. Answering whether a person has a personal stake in the case involves a plaintiff showing: 1) that he or she suffered an injury in fact that is concrete, particularized, and actual or imminent; 2) that the injury was likely caused by the defendant; and 3) that the injury would likely be redressed by judicial relief.
  3. Requiring a plaintiff to demonstrate a concrete and particularized injury caused by the defendant that is redressable by the courts and ensures that federal courts decide only the rights of individuals and that federal courts exercise their proper function in a limited and separated government.
  4. Federal courts do not adjudicate hypothetical abstract disputes nor do they possess a roving commission to opine on every legal question. They also do not exercise general legal oversight of the legislative and executive branches or private entities. Finally, they do not issue advisory opinions.
  5. A federal court may resolve only a real controversy with real impact on real persons.
  6. Courts need to assess whether the alleged injury to the plaintiff has a close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American courts. That is, the question is whether plaintiffs have identified a close historical or common-law analog the injuries alleged.
  7. Certain injuries readily qualify as concrete injuries under article III of the U.S. Constitution. The most obvious such injuries are traditional tangible harms, such as physical harms and monetary harms. If a defendant has caused physical or monetary injury to the plaintiff, the plaintiff has suffered a concrete injury.
  8. Intangible harms can also be concrete. Chief among those harms are those injuries with a close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts, such as reputational harms, disclosure of private information, and intrusion upon seclusion.
  9. Traditional harms may also include harms specified by the Constitution itself.
  10. Courts must afford due respect to Congress’s decision to impose a statutory prohibition obligation on the defendant and grant a plaintiff a cause of action to sue over the defendant’s violation of that statutory prohibition obligation.
  11. Congress is not permitted to enact an injury into existence using lawmaking power to transform something that is not remotely harmful into something that is.
  12. The Supreme Court has previously rejected the proposition that a plaintiff automatically satisfies the injury in fact requirement whenever a statute grants a person a statutory right that purports to authorize that person to sue to vindicate that right. That is, article III standing requires a concrete injury even in the context of a statutory violation. In other words, courts cannot treat an injury as concrete based only on Congress’s say-so.
  13. So, an important distinction exists between a statutory cause of action and whether a concrete harm exists because of the defendant’s violation of federal law. In other words an injury in law is not an injury in fact. You could have an injury in law without the person being concretely harmed.
  14. An uninjured plaintiff who is not seeking to remedy any harm to herself but instead is merely seeking to ensure a defendant’s compliance with regulatory law does not have standing. The example the Supreme Court used is a person in Hawaii suing for environmental pollution in Maine.
  15. Absent a concrete harm requirement, Congress could authorize virtually any citizen to bring statutory damages suit against virtually any defendant that violated virtually any federal law. Such an expansive understanding of article III flouts constitutional text, history, and precedent. In other words, a public interest that mandates private entities to comply with the law cannot be converted into an individual right by a statute that permits all citizens who suffer no distinctive concrete harm to sue.
  16. A regime where Congress could freely authorize unharmed plaintiff’s to sue defendant for violating federal law violates article III and also infringes upon the executive branch’s article II authority.
  17. In a footnote, the Court said that concreteness and particularization are separate requirements and you have to have both.
  18. The concrete harm requirement is essential to the Constitution’s separation of powers.

 

III

Justice Kavanaugh’s Discussion of How the General Principles of Standing Apply to This Case

 

  1. Plaintiff bears the burden of demonstrating they have standing.
  2. Standing is something that must be maintained at all stages of the litigation.
  3. Plaintiffs must demonstrate standing for each claim they allege and for each form of relief they seek.
  4. Under long-standing American law, a person is injured when a defamatory statement that would subject him to hatred, contempt, ridicule is published to a third party. Here, TransUnion provided third parties with credit reports containing alerts that labeled the class members as potential terrorists, drug traffickers, or serious criminals. Therefore, the 1853 class members suffered a harm with a close relationship to the harm associated with the tort of defamation and have standing because they suffered a concrete harm qualifying as an injury in fact.
  5. The harm from being labeled a potential terrorists bears a close relationship to the harm from being labeled a terrorist. That is, the harm from the misleading statement of this kind bears a sufficiently close relationship to the harm from a false and defamatory statement.
  6. With respect to the remaining 6332 class members, the parties stipulated that none of their credit information was provided to any potential creditors during the class period. In other words, while inaccurate written information was in the credit file, it didn’t make any sound because it wasn’t disseminated.
  7. Publication is essential to liability in a suit for defamation.
  8. There is no historical or common-law analog where the mere existence of inaccurate information, absent dissemination, amounts to a concrete injury. In other words, the mere existence of inaccurate information in a database is insufficient to confer article III standing.
  9. The mere presence of an inaccuracy in an internal credit file if not disclosed to a third party causes no concrete harm. That is, a letter not sent to anyone does not harm anyone no matter how insulting the letter is.
  10. Injunctive relief is a different matter entirely. When it comes to injunctive relief, a person exposed to a risk of future harm may pursue forward-looking injunctive relief to prevent the harm from occurring at least so long at the risk of harm is sufficiently imminent and substantial.
  11. When it comes to damages, the mere risk of future harm by itself does not qualify as a concrete harm unless the exposure of the risk of future harm itself causes a separate concrete harm.
  12. Libel and slander require evidence of publication.
  13. The risk of future harm for the 6332 class members that did not have the report disseminated is too speculative to support article III standing.
  14. Plaintiff did not demonstrate a sufficient likelihood that their individual credit information would be requested by third-party businesses and provided by TransUnion during the relevant time period. They also did not demonstrate that there was a sufficient likelihood that TransUnion would otherwise intentionally or accidentally release the information to third parties.
  15. Plaintiff did not present any evidence that the 6332 class members even knew that there was an Office of Foreign Assets Control alert in their internal TransUnion credit files.
  16. Plaintiffs have the burden to prove the trial that the reports were actually sent to third-party businesses.
  17. Plaintiff put forth no evidence that they tried to correct their credit files and thereby prevent dissemination of the misleading reports. They also made no effort to explain how they were prevented from contacting TransUnion to correct any errors before misleading credit reports were disseminated that third-party businesses.

 

IV

 

Justice Thomas’s Dissent (Joined by Justice Kagan, Justice Breyer, and Justice Sotomayor)

 

  1. Even though TransUnion had a verdict against it for its sloppy practices with respect to the Office of Foreign Assets Control list product, TransUnion made very little change in its practices. All it did was require exact matches for names and add language saying the consumer was a potential match rather than saying the person was a match.
  2. At the time of the founding of the United States, whether a court possessed judicial power over an action with no showing of actual damages depended upon whether the plaintiff sought to enforce a right held privately by an individual or a duty owed broadly to the community.
  3. Where an individual of that time sought to sue someone for a violation of his private rights, the plaintiff needed only to allege the violation.
  4. When individuals sue based on violation of the duty owed broadly to the whole community, the person had to allege both a legal injury as well as damages. That distinction mattered not only for traditional common law rights, but also for newly created statutory ones.
  5. The principle that the violation of an individual right give rise to an actionable harm was widespread at the founding of the United States.
  6. So long as a statute fixes a minimum of recovery, there would seem to be no doubt of the right of one who establishes a technical ground of action to recover this minimum sum without any specific showing of loss.
  7. Courts for centuries have held that injury and loss to a private right was enough to create a case or controversy.
  8. In this case, all the class members established the violation of his or her private rights. The jury found that TransUnion violated three separate duty created by statute. All three of those duties were owed to individuals and not to the community at large. That the duties were owed to individuals and not to the community at large is obvious from the language in the statute’s remedies provision, which uses language of “any person,” “that consumer,” and “liable to the consumer.”
  9. Injury in fact did not come into existence until 1970, 180 years after article III of the US Constitution was ratified.
  10. When injury in fact came into existence, it served as an additional way to get into federal court and not as a way to limit access to federal courts.
  11. The majority opinion takes the view that an injury in law is not an injury in fact. So no matter if the right is personal or if the legislature deemed the right worthy of legal protection, legislatures are constitutionally unable to offer to protection of the federal courts for anything other than money, bodily integrity, and anything else that the Supreme Court thinks looks close enough to rights existing at common law. The 1970s injury in fact theory has now displaced the traditional gateway into federal courts.
  12. Never before has the Supreme Court declared that legal injury is inherently insufficient to support standing. Also, the Supreme Court has never before declared that legislatures are constitutionally precluded from creating legal rights enforceable in federal courts if those rights deviate too far from there common-law roots.
  13. According to the majority opinion, courts alone now have the power to sift and weigh harms to decide whether they merit the federal judiciary’s attention.
  14. In the name of protecting the separation of powers, the majority opinion has relieved the legislature of its power to create and define rights.
  15. TransUnion’s misconduct is exactly the sort of thing that has long merited legal redress.
  16. The Supreme Court has previously recognized that the unlawful withholding of requested information causes a sufficiently distinct injury to provide standing to sue.
  17. The plaintiffs had a financial injury here because TransUnion charges clients extra to receive credit reports with the Office of Foreign Assets Control designation.
  18. The case is a strong example of the harm the Supreme Court identified as central to the Fairness Credit Reporting Act, i.e. the dissemination of false information and aligns closely with the harm that had traditionally been regarded as providing a basis for a lawsuit.
  19. 25% of the class had the alerts sent to potential creditors. Such a percentage is a sufficient degree of risk to meet the concreteness requirement. If 25% is not sufficient, then what is?
  20. The opinion that the majority opinion relies upon specifically said that their opinion did not mean that the risk of real harm cannot satisfy the requirement of concreteness. The Supreme Court also said in that decision that it was remanding the claim to the Ninth Circuit to consider whether the violations alleged entail a degree of risk sufficient to meet the concreteness requirement. Therefore, the theory that risk of harm matters only for injunctive relief is squarely foreclosed by that decision.
  21. In history, publication to even a single other party could be enough to give rise to suit.
  22. One only need to tap into common sense to know that receiving a letter identifying you as a potential drug trafficker terrorist is harmful. That is even more true when the information comes in the context of a credit report whose entire purpose is to demonstrate that a person can be trusted.
  23. If the sort of confusing and frustrating communication in this case is insufficient to establish a concrete injury, one has to wonder what could rise to that level. For example, what about being flagged as a potential child molester or a racist, a slur of some kind being put into the file, a credit score reduced because of race, etc. Previously, the Supreme Court has said that the inability to observe an animal species even for purely aesthetic purposes is a concrete harm. How do these examples not rise to that level? Also, how does a court go about picking and choosing the ones that do and do not rise to the level of concrete harms. Justice Thomas sees no way to engage in such a value laden inquiry without it devolving into pure policy judgments. Weighing the harm caused by specific facts and choosing remedies is a much better fit for legislatures and juries than for the Supreme Court.
  24. In a footnote, Justice Thomas said that the Supreme Court does not prohibit Congress from creating statutory rights for consumers by the majority opinion. Instead, it simply holds that federal courts lack jurisdiction to hear some of those cases. That combination of things might actually be a Pyrrhic victory for defendants because it may leave state courts that are not bound by the limitations of a case or controversy or other federal rules of standing even when they address issues of federal law as the sole forum for such cases when defendants find they are unable to seek removal to federal court as a result of the majority opinion. By declaring that federal courts lack jurisdiction, the Supreme Court has ensured the state courts will exercise exclusive jurisdiction over these sorts of class actions.

 

V

Justice Kagan’s Dissent

 

  1. The majority opinion transforms standing law from the doctrine of judicial modesty into a tool of judicial aggrandizement when it holds that a specific class of plaintiffs allowed by Congress to bring a lawsuit cannot do so under article III.
  2. To say that the resulting injuries in this case do not exist in the real world to inhabit a world that Justice Kagan does not know. Further, to make that claim in the face of Congress’s contrary judgment is to exceed the judiciary’s proper and properly limited role.
  3. Why is it so speculative that a company in the business of selling credit report to third parties will in fact sell credit reports to a third party?
  4. Justice Kagan continue to support the view that a concrete injury is required even in the context of a statutory violation and says such a view will lead to the same result as Justice Thomas’s approach in all but highly unusual cases.
  5. Congress is better suited than courts to determine when something is because of a harm or risk of harm in the real world. Therefore, courts should give deference to those congressional judgments.
  6. Overriding an authorization to sue is only appropriate when Congress could not reasonably have thought that a suit will contribute to compensating or preventing the harm at issue.

 

VI

Thoughts/Takeaways

 

  1. It is now more important than ever after this decision to take Iqbal/Twombly seriously if you are a plaintiff. Now, a plaintiff is very much going to want to throw the kitchen sink into their complaint and quite specifically so in order to show the court and the defendant that there is a very specific harm involved in the lawsuit that is very clearly a harm to the plaintiff.
  2. In footnote 4 of the majority opinion, Justice Kavanaugh says that this opinion does not address the distinct question of whether every class member must demonstrate standing before a court certifies a class. A plain reading of the majority opinion suggests that such a requirement may well be coming in the future.
  3. Statutory rights being violated are not enough for a claim to be in federal court. You also need a concrete injury AND a particularized injury.
  4. As justice Thomas points out, States can approach standing very differently from the federal courts. For example, as we discussed here, deterrence works in California. So, you may now see lots of disability discrimination cases alleging both violations of the California disability antidiscrimination law and the ADA that have to remain in California courts because a federal court would find that no standing exist as a result of the majority opinion in this case. As defendants prefer federal courts generally, this decision may actually benefit plaintiffs in states with disability antidiscrimination laws. For States without disability antidiscrimination laws, getting by standing when it comes to federal claims in federal courts is going to be much more difficult than it used to be after this decision.
  5. Even if Congress created a cause of action and a plaintiff alleges the prima facie case for that cause of action, federal courts have the right to throw the case out on standing grounds if they find there is no concrete or particularized harm involved. As the court said, you need both an injury in law and an injury in fact to proceed in federal courts.
  6. The burden of showing standing is on the plaintiff and must be maintained throughout the litigation.
  7. The majority opinion makes a distinction between damages and injunctive relief; a distinction that Justice Thomas does not buy. The distinction is important when it comes to the ADA, because title III of the ADA only allows for injunctive relief and attorney fees. So, does that mean serial plaintiffs, whether they be architectural or Internet accessibility, are not affected by this decision? I think they still are because under the majority opinion the harm must be still sufficiently imminent and substantial to proceed. The way court opinions get interpreted, I think it is quite likely that the concrete and particularization requirements of the majority opinion will be folded into whether an injunctive relief claim alleges claims that are sufficiently imminent and substantial to give a plaintiff standing. Look for what is required for sufficiently imminent and substantial in injunctive relief cases to eventually make its way to the United States Supreme Court.
  8. Justice Thomas’s jurisprudence can be a difficult thing to figure out. A very provocative book that takes an unusual approach to attempting to figuring out his jurisprudence is a book called the Enigma of Clarence Thomas. I highly recommend it if you are interested in trying to begin to get a handle on how justice Thomas approaches cases. I have read that book. I am not entirely sure it accomplishes what it sets out to do, but it is very interesting reading.
  9. It is a 5-4 decision and the Justices in the majority are strong believers in the roles of the courts. It will be interesting to see how this decision holds up over time as the Supreme Court evolves in its configuration because Justices can have different views as to just how broad the authority of courts are.
  10. Regardless of statutory rights alleged, look for defendants in all kinds of cases, including ones not involving class actions, to allege that plaintiff does not have standing even if their statutory rights were violated even assuming the allegations are true.
  11. Make sure you periodically check your credit report.
  12. Are courts really going to get into the business of saying that federal rights created by Congress are of no matter where there is a lack of concrete and particularized harms even where the plaintiff has clearly alleged a prima facie case for a particular statutory claim? It appears that will be the case.
  13. Specific harms alleging constitutional violations will get by the majority opinion.
  14. How much due respect must a court give to Congress’s decision on statutory rights is an open question.
  15. What does “not remotely harmful,” even mean?
  16. Where ADA testers are involved, look for the defense to argue lack of concrete and particularized harm per this case regardless of whether injunctive relief or damages are involved. The majority opinion clearly raises the question of whether ADA testers have standing when bringing ADA claims in federal court.
  17. Look for more ADA cases to be filed in state courts whenever possible and to stay there. Also look for a very peculiar situation where plaintiffs may allege when a defendant is trying to remove the case that they do not have standing under federal law per this decision, but they do have standing under state law. So, therefore the case should remain in state court and not be removed to federal court. A very odd argument indeed, but one this court sets up by its decision.

Today’s case explores the arguments as to why an adverse action is not necessary in failure to accommodate cases. As a bonus, it also explores how workers compensation exclusivity does not preempt a state’s disability antidiscrimination law. The case of the day is Richter v. Oakland Board of Education decided on June 8, 2021, by the New Jersey Supreme Court in a unanimous opinion. Most of the cases I write about are federal cases and not state ones. However, this case is an excellent read for understanding the arguments as to why a court would hold that an adverse action is not required in failure to accommodate claims. For those states with disability antidiscrimination laws, Georgia is not one of them, it also provides a good explanation as to why the exclusive remedies provisions of the workers compensation statute does not preempt disability discrimination claims under state law. As usual, blog entry is divided into categories and they are: facts; adverse action not required for failure to accommodate claims under New Jersey law; exclusive remedies provisions of the Worker’s Compensation act does not bar other claims for disability discrimination under the New Jersey Law against Discrimination; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Richter, a longtime type I diabetic and teacher, experienced a hypoglycemic event in the classroom because her work schedule prevented her from eating her lunch early enough in the day to maintain proper blood sugar levels. She fainted, hit her head on a laboratory table, and sustained serious and permanent life altering injuries, which are described in the opinion Throughout the school year she repeatedly attempted to have the school make reasonable accommodations so that she could eat lunch in a timely way and not put herself at risk. The school ignored those entreaties. They did grant the accommodation at one point in time but that did not stick for the entire year. Until the event, she continued to work as a teacher and no adverse action outside of the failure to accommodate was ever taken. She did file for workers compensation successfully where she received $18,940.94 for medical bills, $9792.47 for temporary disability benefits, and $77,200 in partial total permanent disability benefits. She also then filed under the New Jersey Law against Discrimination. Trial court granted summary judgment for the Board of Education but that was reversed on appeal. The Oakland Board of Education appealed to the New Jersey Supreme Court.

 

II

Adverse Actions Are Not Required for Failure to Accommodate Claims Arising under the New Jersey Law against Discrimination

 

  1. The New Jersey Law against Discrimination prohibits discrimination on the basis of disability.
  2. Although the New Jersey law does not explicitly address the reasonable accommodation requirement or claim, New Jersey courts have uniformly held that the law does require an employer to reasonably accommodate an employee’s disability. That requirement was codified in a regulation by the agency responsible for administering the law and promulgating regulations for its implementation and enforcement.
  3. Under the New Jersey administrative code, an employer must make a reasonable accommodation to the limitations of an employee who is a person with a disability unless an undue hardship is imposed on the operation of the business.
  4. In a prior case, the New Jersey Supreme Court said that it is entirely possible, though it probably would be a rare occurrence, for a person to have a failure to accommodate claim without an adverse action because some individuals requesting reasonable accommodations will continue to toil on even though their reasonable accommodation request are not addressed or the requests are denied.
  5. The elements of a failure to accommodate claim under New Jersey law are: 1) person is an individual with a disability or is perceived as having a disability as defined by the statute; 2) person is qualified to perform the essential functions of the job or was performing those essential functions with or without reasonable accommodation; and 3) the defendant failed to reasonably accommodate his or her disabilities. An adverse employment action does not appear in these elements of a failure to accommodate claim.
  6. Federal antidiscrimination cases provide a helpful source of interpretive authority.
  7. In interpreting the ADA, many federal courts have recited the elements of a failure to accommodate claim without mentioning a requirement of an adverse employment action.
  8. One circuit, the Third Circuit Court of Appeals, has said that adverse employment action includes refusing to make reasonable accommodation for plaintiff’s disabilities. The Eighth Circuit has done the same.
  9. The 10th Circuit has said that an adverse employment action is not a required element of a failure to accommodate claim. We discussed that case, Exby-Stolley v. Board of County Commissioners, here.
  10. The 10th Circuit in Exby-Stolley based its reasoning on its own failure to accommodate precedents, the precedents of no fewer than six circuits strongly suggesting that failure to accommodate claim do not require an adverse action, the plain text of the ADA, regulatory pronouncements of the EEOC, and common sense. With respect to common sense, the 10th Circuit Court of Appeals said that it would make little sense to require the showing of an adverse employment action as part of a failure to accommodate claim because it verges on the illogical to require plaintiffs in failure to accommodate claims to establish that their employer acted adversely toward them when the fundamental nature of the claim is the employer’s failure to act.
  11. Insistence on an adverse action in failure to accommodate claims does not serve the New Jersey Law against Discrimination broad remedial purposes.
  12. An adverse action requirement is not consistent with the obligation of employers to reasonably accommodate an employee with a disability.
  13. The overriding purpose of the New Jersey Law against Discrimination’s promise to eradicate obstacles in the workplace for people with disabilities is to make it possible for people with disability to work.
  14. Given that employers have an affirmative obligation to make reasonable accommodation, why should people who have requested but not received the reasonable accommodation from an employer have to wait for an adverse employment action to follow the employer’s denial or inaction-or refusal to even engage in an interactive dialogue about the request-in order to bring a complaint to compel the employer to do its affirmative obligation laid out by the regulatory scheme? Even posing the question answers the question.
  15. The breach of the duty can and should be addressable before an adverse employment consequence occurs.
  16. The wrongful act for purposes of a failure to accommodate claim is the employer’s failure to perform its duty and not the further adverse employment action that the employee suffers.
  17. The persevering employee trying to make do without a reasonable accommodation is not without his or her remedies, and a callous employer does not get to escape liability under the New Jersey Law against Discrimination for failing to perform its required duty to provide accommodation simply by declining to fire, demote, or take another form of adverse action against the employee. Such an approach essentially renders the reasonable accommodation requirement unenforceable in its own right and runs roughshod over the legislature’s stated intent to eradicate discrimination and make the workplace hospitable for persons with disabilities.
  18. An employer’s inaction, silence, or inadequate response to a reasonable accommodation request is an omission that can give rise to a cause of action. In other words, a failure to accommodate claim is not dependent on causing harm to the employee through an adverse employment action.
  19. The employer of an employee suffering consequences from the employer’s failure to accommodate should not escape liability under New Jersey Law against Discrimination merely because those consequences do not fit neatly into a definition of adverse employment action.
  20. While a lack of demonstrable consequences-whether in the form of an adverse action, of injuries like those sustained by Richter or of some other type-might affect the damages an employee is entitled to, an employer’s failure to accommodate is in and of itself and actionable harm.
  21. Courts holding that the failure to reasonably accommodate is the adverse action winds up being a matter of form over substance. Such analysis results in the same outcome for the plaintiff’s ability to proceed with the claim as when the element is not required at all. Accordingly, there is no need to add additional formalistic hurdles to a failure to accommodate claim.
  22. Since providing a reasonable accommodation is an obligation of the employer, it makes little sense to include the adverse employment action element even in form. The better and simpler course is to recognize that an adverse employment action is not an element of a failure to accommodate claim.

 

III

Does the Exclusive Remedies Provisions of Workers Compensation Schemes Bar a Disability Discrimination Suit under the New Jersey Law against Discrimination

 

  1. Enacted in 1911, the New Jersey Worker’s Compensation Act amounted to a historic trade-off where employees relinquish the right to pursue common law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffered injury by accident arising out of and in the course of employment.
  2. The New Jersey Worker’s Compensation Act has an exception for intentional wrongs.
  3. In all of the prior cases discussing the intentional wrong exception, the injured employee brought common law claims against their employer as opposed to statutory claims.
  4. The purpose of the New Jersey Law against Discrimination is no less than the eradication of the cancer of discrimination in our society.
  5. The New Jersey Law against Discrimination is given liberal construction because the more broadly it is applied, the greater its anti-discriminatory impact.
  6. In 1990, the New Jersey Law against Discrimination was amended to add common law remedies for a New Jersey Law against Discrimination statutory violation. In amending the statute, the legislature noted that people who suffer discrimination suffer a myriad of personal hardships including: economic loss; time loss; physical and emotional distress; illness; homelessness; other irreparable harm resulting from the strain of employment controversy; relocation; search and moving difficulty; anxiety; uncertainty; planning difficulties; career, education, family, and social disruption; and adjustment problems. The legislature goes on to say that compensatory and punitive damages need to be available to all persons protected by the act and that the act must be liberally construed in combination with other protections available under the laws of New Jersey.
  7. Prior New Jersey Supreme Court cases have dealt with the issue of what happens when other statutes are implicated when Worker’s Compensation is also involved. In those cases, the New Jersey Supreme Court held that the workers compensation scheme did not trump the other statute.
  8. The workers compensation statute was in place when the New Jersey Law against Discrimination was enacted when the legislature stated clearly that its intent was for the New Jersey Law against Discrimination to be treated as supplemental to other remedies. The legislature certainly would have been aware of the Worker’s Compensation Act when it included such strong direction and when it added the common law remedies to the New Jersey Law against Discrimination in 1990.
  9. The New Jersey Law against Discrimination, law remedies made available by way of the 1990 amendments do not pose a conflict with the Worker’s Compensation act. That is, each statute operates to fulfill different purposes, both protective of workers in the workplace. The statutes function cumulatively and complementarily and not in tension, much less in conflict, with each other.
  10. The facts of this case illustrate not only how the two statutory schemes operate harmoniously, but why it is important that they do so.
  11. Richter’s disability discrimination claim is not duplicative of the type of claim whose regress it secured to the Worker’s Compensation Act and should not be regarded as subordinate to the Worker’s Compensation Act exclusive remedy feature. That is, the New Jersey Law against Discrimination provides relief under state statute for a different workplace wrong.
  12. In a footnote, the New Jersey Supreme Court noted that it has been understood that state Worker’s Compensation exclusivity provisions do not bar claims brought under federal civil rights laws because to do so would violate the supremacy clause. While the supremacy clause is not involved here, the New Jersey Law against Discrimination’s broad remedial purposes and the wide scope of its coverage for disabilities as compared to the ADA an expansive view of protecting the rights of people with disabilities in the workplace. Holding that the New Jersey Law against Discrimination claims would be barred by the Worker’s Compensation Act would have the peculiar effect of rendering the New Jersey law less protective than the ADA. That is not something the New Jersey Supreme Court wants to do because it would depart from their precedent.
  13. The two legislative acts provide relief for separate wrongs and can coexist in harmony with the purposes of each being fulfilled. Indeed, the two statutory schemes, when harmonized, operate to prevent double recovery. With double recovery averted, no possible conflict exists. So, the full throated pursuit of remedies available under the New Jersey Law against Discrimination for disability discrimination get to proceed unencumbered by the Worker’s Compensation Act exclusivity bar.

 

IV

Thoughts/Takeaways

 

  1. I realize that this is a decision based upon New Jersey law. However, the case does a good of a job as I have seen with respect to laying out why a failure to accommodate case should not have an adverse action requirement.
  2. For those states with antidiscrimination laws on the basis of disability, this case also does an excellent job of laying out why a state’s disability antidiscrimination law is not preempted by Worker’s Compensation statutes.
  3. Taking away any adverse action requirement in failure to accommodate cases, makes getting the interactive process right, which we discussed here, even more important than it already is. It is already plenty important and going to become more so.
  4. A person in need of accommodations who has the request ignored or denied has undoubtedly suffered an action adverse to that individual. Real harm as discussed in ¶ III(6) of this blog entry can ensue when an accommodation is wrongfully withheld. Adverse action in the legal sense means something else, which is why the New Jersey Supreme Court said it wasn’t necessary. It is also why it is not a leap for some courts to say that an adverse action in the legal sense occurs by denying the accommodation.
  5. Whether failure to accommodate cases require an adverse action beyond the failure to accommodate will undoubtedly go to the United States Supreme Court. Normally, I would say that the person with the disability would be up against it because it is an employment situation and the United States Supreme Court generally does not favor the person with a disability in employment situations. However, if there was ever a case where there United States Supreme Court would favor a person with a disability in an employment situation it would be a case like this.

Today’s blog entry discusses the CDC Guidance For Institutions Of Higher Education Updated June 4, 2021. In short, if you are an institution of higher education you have to strongly consider mandating proof of vaccination for students, faculty, staff, and visitors unless you are in a State that has an executive order or law that prohibits you from doing so. Many colleges and more every day are doing precisely this. Further, Rhodes College in Memphis Tennessee has added a surcharge of $1500 for any student that is not vaccinated to cover Covid-19 tests etc.

 

Let’s look at the guidance to see why institutions of higher education (IHE), should seriously consider mandating proof of vaccination for its students. Also, there is now a federal court decision saying that employers have a perfect right to mandate vaccines for their employees. I previously discussed here why employers have a perfect right to insist that their employees be vaccinated absent disability or sincerely religious held belief. As usual, the blog entry is divided into categories and they are: fully vaccinated campuses; campuses that are not fully vaccinated; general consideration for all IHE’s; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Highlights of the CDC Guidance: Fully Vaccinated Campuses

 

  1. IHE can help increase vaccine uptake among students, faculty, and staff by providing information about and offering Covid-19 vaccination, promoting vaccine trust and confidence, and establishing supportive policies and practices making vaccination as is easy and convenient as possible. I recently read a big article in the Wall Street Journal about the University of Florida’s efforts in this regards with respect to the communities surrounding it.
  2. IHE can consider verifying vaccination status of their student, faculty, and staff.
  3. IHE with fully vaccinated students, faculty, and staff can refer to CDC’s previous guidance for fully vaccinated people, which basically allows people to go mask free without social distancing except in crowded indoor areas.
  4. IHE where all students, faculty, and staff are fully (emphasis in the guidance), vaccinated prior to the start of semester, can return to full capacity in person learning without requiring masking or physical distancing for people who are fully vaccinated.
  5. When holding gatherings and events that include individuals who are not fully vaccinated such as campus visitors from outside of the IHE, the IHE needs to utilize appropriate prevention strategies to protect people who are not fully vaccinated.
  6. Students, faculty, and staff who are fully vaccinated do not need to wear masks, except where required by federal, state, local, tribal, or territorial laws, rules and regulation, including local business and workplace guidances. While fully vaccinated person do not generally need to wear masks, CDC recommend continued masking and physical distancing for people with weakened immune systems. IHE need to be supportive of students, faculty, or staff who choose to continue to wear a mask for any reason.
  7. Physical distancing is not necessary for fully vaccinated students, faculty, and staff on campus for IHE where everyone is fully vaccinated.
  8. People who are fully vaccinated in shared housing per the prior CDC guidance are pretty much free to go about their business mask free.
  9. People who are fully vaccinated do not need to undergo routine Covid-19 screening testing. If a fully vaccinated person is exposed to someone with Covid-19, they also do not need to be tested unless they are experiencing Covid-19 symptoms.
  10. Students, faculty, and staff with signs or symptoms of infectious illness should be encouraged to stay home when sick and/or seek medical care.
  11. People who are fully vaccinated with no Covid-19 symptoms do not need to quarantine or be restricted from work following an exposure to someone with suspected or confirmed Covid-19, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidances.
  12. Students, faculty, and staff who are fully vaccinated can refrain from testing following a known exposure if they are asymptomatic. People who are fully vaccinated should continue to get tested if experiencing Covid-19 symptoms. Also, students, faculty, and staff who are fully vaccinated can refrain from routine screening testing.
  13. Fully vaccinated people with no Covid-19 like symptoms and no known exposure should be exempted from routine screening testing programs.

 

II

Highlights of the CDC Guidance: Campuses That Are Not Fully Vaccinated

 

  1. IHE administrators should create programs and policy facilitating the adoption and implementation of prevention strategies necessary to slow the spread of Covid-19 at the IHE and in the local community. Prevention strategies include: offering and promoting vaccination; consistent and correct use of mask; physical distancing; handwashing and respiratory etiquette; contact tracing in combination with isolation and quarantine; testing for Covid-19; maintaining healthy environments (increased ventilation and cleaning); and maintaining healthy operations (communication, supportive policies and health equity).
  2. Consistent and correct masks use by people who are not fully vaccinated is especially important indoors and in crowded settings when physical distancing cannot be maintained.
  3. Mask use is recommended for people who are not fully vaccinated, including children.
  4. In general, people do not need to wear masks when outdoors. CDC does recommend that people who are not fully vaccinated wear a mask in crowded outdoor setting or during activities involving sustained close contact with other people who are not fully vaccinated.
  5. Exception for masks wearing need to be made for people with disabilities who cannot wear a mask due to their disability.
  6. Exceptions need to be made for person wearing a mask that would create a risk to workplace health, safety, or job duty at determined by the relevant workplace safety guidelines are federal regulations.
  7. People who are not fully vaccinated should continue to practice physical distancing, which means keeping space of at least 6 feet between people not from your household in both indoor and outdoor spaces.
  8. Physical distancing promotion strategies include: hosting virtual only activities, events, and gatherings of all sizes; holding activities, events, and gatherings outdoors in areas that can accommodate physical distancing when possible; facing out or blocking off roads, chairs, and/or table seating position in communal use shared spaces (such as classroom, dining halls, locker room, laboratory facility, library, student centers, and lecture room); and limiting occupancy and requiring mask use by people who are not fully vaccinated, including drivers, and on campus buses/shuttles or other vehicles. Alternate or block off roads and increased ventilation (i.e. opening windows if possible).
  9. IHE can designate fully vaccinated dorms, floors or complexes and those areas get to follow the CDC guidance for fully vaccinated people.
  10. IHE should consider housing students who are not fully vaccinated in single rooms instead of shared rooms when feasible.
  11. IHE should consider establishing cohorts of people who are not fully vaccinated, such as groups of dorm rooms or dorm floors that do not mix with other cohorts to minimize transmission across cohorts and facilitate contact tracing. All units sharing a bathroom should be included in a cohort. Roommate/suite mates can be considered a household and do not need to use mask or physically distance within the household unit (dorm room or suite), unless someone in the household is ill.
  12. IHE should close or limit the capacity of community use shared spaces such as dining areas, game room, exercise room, and lounges, if possible to decrease mixing among non-cohort people who are not fully vaccinated.
  13. IHE should consider limiting use of communal use shared space to people who are fully vaccinated.
  14. IHE should consider limiting building access by nonresidents, including outside guests and nonessential visitors to dorms in residence halls.
  15. IHE should conduct diagnostic or screening testing of student, faculty, and staff for purposes of surveillance or in the context of an outbreak but those recommendations vary depending upon whether a person is fully vaccinated or not.
  16. IHE may consider maintaining documentation of individual vaccination status to inform testing, contact tracing effort, and quarantine/isolation practices. Any such vaccination information should be obtained with appropriate safeguards to protect personally identifiable information and HIPAA sensitive information from unlawful release.

 

III

General Consideration for All IHE

 

  1. Cleaning high touch surfaces and shared objects once a day is usually enough to sufficiently remove virus that may be on surfaces unless someone with confirmed or suspected Covid-19 had been in your facility.
  2. Improving ventilation is an important Covid-19 prevention strategy.
  3. Staff and volunteers should be required to wash their hands and encourage diners to wash their hands or use an alcohol-based hand sanitizer before and after serving or eating.
  4. In indoor dining areas, people who are not fully vaccinated should wear a mask when not actively eating or drinking and physically distance.
  5. Prioritize outdoor dining and improve ventilation in indoor dining spaces.
  6. Particularly in areas with substantial to high levels of community transmission, reduce seating capacity, use markers and guides to ensure that people remain at least 6 feet apart in a mixed campus when waiting in line for pick up. Also, stagger use of dining areas.
  7. Consider offering to go options and serve individually plated meals. If traditional self-serve plates are offered, check out the CDC recommendations in order to reduce the risk of getting and spreading Covid-19.
  8. People who are not fully vaccinated should continue to avoid large gatherings, but if they choose to attend they should wear well fitting masks covering the mouth and nose and maintain physical distancing while practicing good hand hygiene.
  9. For campuses with both fully vaccinated individuals and individuals who are not fully vaccinated, in person instruction should be prioritized over extracurricular activities, (including sports and school events), in order to minimize risk of transmission in schools and to protect in person learning. Mixed campuses may consider limiting the size of gathering to maintain physical defense as an additional measure.
  10. People who are fully vaccinated no longer need to wear a mask or physically distance in any setting including while participating in sports. People who are fully vaccinated can also refrain from quarantine following a known exposure if asymptomatic.
  11. Players, coaches, trainers, etc. who are not fully vaccinated are at an increased risk for getting and spreading Covid-19. Further, close contact in indoor sports are particularly risky.
  12. IHE should postpone programs in a nation with very high Covid-19 levels, and they should have plans in place to take action in situations where Covid-19 levels become very high during the program.
  13. IHE may consider requiring vaccination as a condition of a study abroad program.

 

IV

Thoughts/Takeaways

 

  1. As a preventive law measure, IHE should mandate proof of vaccine for students wanting to return to campus.
  2. Depending upon location of the IHE, mandating proof of vaccine for return the campus may not be possible. In that case, things will get very complicated in a hurry as a result of this guideline.
  3. OSHA has said that it will follow CDC with respect to what is a safe workplace. So, if the IHE is not mandating proof of vaccination for its students, that does raise an issue of whether the IHE is providing a safe workplace for its faculty and staff if the CDC guidelines for mixed campuses are also not being followed.
  4. The IHE may want to consider mandating proof of vaccination for its workers. That is not at all the same at the IHE performing the vaccination itself. If the IHE performs the vaccination itself, there are GINA and ADA concerns that need to be taken into account as we discussed here. As discussed earlier, an employer is perfectly within its rights to mandate the Covid-19 t vaccine for its workers.
  5. Carrying on sports safely consistent with the CDC guidelines is going to be very difficult on mixed campuses, which will be the case in many regions of the country. Some of those regions are very sports driven but may also have laws or executive orders prohibiting proof of vaccination making the situation even more difficult.
  6. The college experience, particularly the residential one, is much more likely to be somewhat normal if the campus is fully vaccinated than if the campus is not. Considering many schools derive a great deal of revenue from tuition, having a campus that is fully vaccinated will make it much more likely that people will be willing to pay the tuition for their college experience.
  7. The CDC guidance says that it is perfectly okay to segregate out people who are fully vaccinated and people who are not fully vaccinated with respect to where they live. On a scientific level, I get that. On a political level, that is likely to be very controversial.
  8. Look for people who are deaf or hard of hearing and who are fully vaccinated to ask for a person with a mask who they know is fully vaccinated to pull their masks down in order for them to lip read, assuming they are a lip reader. This is a reasonable accommodation request that I am making myself in certain situations. It would get complicated if such an individual made a request in a classroom containing both people who are fully vaccinated and people who are not. The IHE needs to have a plan in place for those situations.
  9. Offhand, I can’t think of how mask wearing would violate federal workplace safety guidelines and regulations. If such a situation does arise, definitely consult knowledgeable legal counsel.
  10. People love their single dorm rooms and this guidance might create an incentive for students to not get vaccinated. Admittedly, the CDC doesn’t say that the college must give people who are not vaccinated single rooms. However, it does say that colleges and universities should consider it.

As everyone knows, Naomi Osaka made news last week in a big way. One of the things that I saw is that labor and employment bloggers were using it as an analogy for how they would deal with something like this under title I of the ADA, such as here184192212213215215. Sports commentators, such as here185193213214216216 for example, were also talking about it in employment law terms. What you do not find is anybody talking about the situation in terms of the applicable rules that actually apply. Since Naomi Osaka is an independent contractor, the question is whether title III of the ADA applies. If it does, what are the obligations of the WTA or the Grand Slams with respect to Naomi Osaka? This blog entry will deal with all of that. As is my typical practice, the blog entry is divided into categories and they are: facts; is Naomi Osaka a person with a disability; otherwise qualified/qualified is not a thing in title III; is the WTA a union; is the WTA a place of public accommodation; what about the interactive process; remedies; what accommodations might be possible; and concluding thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The facts that happened can be found here186194214215217217. Basically, Naomi Osaka has struggled with depression since she won the US open in 2018. If you recall, that particular US open ended when Serena Williams was defaulted on match point. All of a sudden, a very shy and introverted talented 18-year-old tennis professional was at the top of the world having beaten probably the greatest female tennis player of all time in a Grand Slam event. Certainly, a lot for anyone to handle. In her withdrawal statement from the French Open, she said that she has depression, anxiety, and social anxiety. She becomes extremely anxious when she has to talk to the press as it exacerbates her underlying mental health conditions. The Women’s Tennis Association (WTA), as well as well as the Grand Slams have rules mandating that players speak to the press. You can find the WTA rules on that here187195215216218218.

 

II

Is Naomi Osaka a Person with a Disability?

 

Under the ADA, 42 U.S.C. §12102188196216217219219(1), a disability is defined as a person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment. Here, Naomi Osaka has a mental impairment. The question then becomes is whether the mental impairment substantially limits one or more major life activities. 42 U.S.C. §12102189197217218220220(2) defines a major life activity as including but not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. It also includes the operation of major bodily functions, such as but not limited to: functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

 

Undoubtedly, one of these major life activities is at issue with respect to Naomi Osaka. The question then arises whether she is substantially limited in any of these major life activities. The DOJ rules and regulations implementing title II in title III do not talk about substantial limitation. However, EEOC rules do talk about it. In particular, per 29 C.F.R. §1630.2190198218219221221(j)(ii), the question is whether the person is substantially limited in a major life activity as compared to most people in the general population. The chances are very good that a substantial limitation will be found upon further analysis. So, Naomi Osaka is undoubtedly a person with a disability under the ADA.

 

III

Otherwise Qualified/Qualified Is Not a Thing in Title III

 

The labor and employment law bloggers who have blogged on this are quick to note that meeting the press is arguably an essential function of the job. Under title I of the ADA, you have to be both a person with a disability and otherwise qualified/qualified (the Rehabilitation Act uses the term “otherwise qualified,” while the ADA uses the term, “qualified.” The two terms mean exactly the same thing. To be qualified under title I of the ADA, one of the questions, per 29 C.F.R. §1630.2191199219220222222(m), is whether the person can do the essential functions of the job with or without reasonable accommodations. You also find the term “qualified,” in title II of the ADA and it has a different meaning than it does under title I of the ADA. See 28 C.F.R. §35.104192200220221223223. However, the term otherwise qualified/qualified appears nowhere in title III of the ADA, as we discussed here193201221222224224 for example. So under title III of the ADA, whether Naomi Osaka is otherwise otherwise qualified/qualified is not relevant to the analysis that has to happen. By the way, titles II and III use the term “reasonable modification,” while title I uses the term, “reasonable accommodation.” The two terms are exactly the same in their meanings.

 

IV

Is the WTA a Union?

 

Why does it even matter if the WTA is a union? It matters because unions are subject to title I of the ADA. The WTA is most definitely not a union, rather it is the organization that runs the professional tennis tour. They are not at all the same thing. For more information on the WTA, you can check out this link194202222223225225. So, title I of the ADA simply does not apply to Naomi Osaka’s situation.

 

V

Is the WTA a Place of Public Accommodation?

 

Under 42 U.S.C. §12181195203223224226226(7), the following are places of public accommodations: 1) places of lodging; 2) establishments serving food and drink; 3) places of exhibition and entertainment; 4) places of public gathering, such as a museum or library; 5) sales or rental establishments; 6) service establishments; 7) specified public transportation, such as terminals and depots; 8) public display or collection; 9) places of recreation, such as parks, etc.; 10) places of education; 11) social service center; and 12) places of exercise or recreation (athletic in nature).

 

There are several possibilities looking at the statute for claiming that the WTA is a place of public accommodation. For example, the WTA provides services. The tournaments also take place at athletic venues and even at places of recreation, such as parks. All this said, we don’t have to guess as to whether the WTA would be a place of public accommodation because the Supreme Court has already answered the question in PGA Tour v. Martin196204224225227227. In that case, you will find that the reasons the Supreme Court held that the PGA Tour was a place of public accommodation apply equally as well to the WTA. You don’t have to take my word for it. Let’s take a look at the United States Supreme Court’s reasoning on this issue as discussed on pages 677-681 of their opinion. In particular, the Supreme Court makes the following points about why the PGA golf tour and their qualifying rounds fit comfortably within title III of the ADA: 1) events occur on golf courses, a type of place specifically identified by the ADA as a place of public accommodation; 2) the PGA Tour leases and operates golf courses to conduct its Q school and its tours; 3) as a lessor and operator of golf courses, the PGA Tour cannot discriminate against any individual in the full and equal enjoyment of the goods, services, facility, privileges, advantages, or accommodations of those courses; 4) among the privileges offered by the PGA on the courses are those of competing in the Q school and playing on its tours; the former a privilege for which thousands of individuals from the general public pay and the latter being one for which they vie; 5) Title III’s broad general rule contains no express client or customer limitations; and 6) the PGA Tour offers two privileges to the general public, namely watching the golf competition and competing in it. Clearly, it is a no-brainer that the Supreme Court’s reasoning in PGA Tour v. Martin equally applies to the WTA.

 

VI

What about the Interactive Process?

 

The interactive process is a title I construct, though as a matter of preventive law you have to be out of your mind not to use the interactive process in title II or title III situations. With respect to title II situations (accessing nonfederal governmental entities), you will find some case law out there requiring an interactive process, particularly with respect to places of education. If you search hard enough, you will find it outside of the educational contexts. You simply will not find case law dealing with whether a title III entity must engage in the interactive process. As a matter of preventive law, you certainly want to do that. However, if you don’t want to do that are you within your legal rights to refuse to do so? Arguably, yes. Will the courts hold that title III requires an interactive process? A court just might because it is hard to figure out how else you can determine a reasonable modification that does not constitute a fundamental alteration or an undue burden absent an interactive process. That said, as a matter of law a place of public accommodation would appear to be within its rights to refuse to engage in the interactive process. It makes no sense for them to take that position but they could. After initial reports on the Osaka matter, both the WTA and the Grand Slams, which are a separate entity, said they would work with her. That in and of itself is not surprising because she is a huge moneymaker on the tour, a worldwide presence, and the number two player in the world. If a place of public accommodation refuses to engage in the interactive process, it is certainly worth challenging because it would make for some great new law. It is also quite likely that a court would find that the interactive process is required because otherwise the ADA statutory scheme makes absolutely no sense.

 

VII

Remedies

 

The only remedies available to her under title III of the ADA would be injunctive relief and attorney fees. So, an order mandating the WTA engage in the interactive process and make reasonable modification to its policies, practices, procedures plus attorney fees. If the WTA takes federal funds (perhaps they took coronavirus relief funds), then damages would be a possibility under §504 the Rehabilitation Act upon a showing of deliberate indifference as we discussed here197205225226228228.

 

VIII

What Accommodations Might Be Possible?

 

I could think of one offhand. For example, perhaps her social anxiety is not so bad if she does the interview over a laptop through Zoom. There must be many other possible reasonable modifications that can be made without fundamentally altering the nature of her obligations to do the press conferences as a member of the WTA tour. The Job Accommodation Network198206226227229229 even though a job is not involved, could probably be of great help as well.

 

IX

Concluding thoughts/takeaways

 

  1. Naomi Osaka is undoubtedly a person with a disability.
  2. The WTA is undoubtedly per PGA Tour v. Martin, a place of public accommodation under the ADA.
  3. The WTA is under no obligation to engage in an interactive process with Naomi Osaka, though they would have to be out of their minds not to do so.
  4. I absolutely expect many more athletes at all levels to begin coming out saying that their mental health conditions need accommodating with reasonable modifications, particularly after a whole year of the pandemic that upended a lot of the athletes lives at all levels. Naomi Osaka has certainly started something.
  5. Keep in mind, the rules are not the same for employees and for independent contractors. So if this was the Kevin Love situation (he has been quite upfront about the anxiety that he deals with), he would be governed by title I because he is an employee of an NBA team.
  6. I have seen too many attorneys make mistakes because they don’t realize that each of the titles of the ADA have their own statutory and regulatory provisions. If you run into issues, be sure to seek out competent ADA counsel familiar with the particular title(s) involved.
  7. I am currently involved in several cases where more than one of the ADA titles are happening simultaneously. In fact, sometimes you can see titles I, II, and III all happening at the same time. It isn’t unusual in my practice for me to see title II and III happening at the same time, particularly but not exclusively so in the area of healthcare licensing boards and their interactions with professional recovery programs.
  8. Training, training, training (which also happens to be a large part of my practice:-).

Hope everyone had a great Memorial Day holiday weekend. Today’s blog entry talks about the latest update from the EEOC with respect to Covid-19. All the labor and employment law bloggers are blogging on it, so I decided to blog on it as well and offer my own perspective. As with previous blog entries of mine on the subject, what I have done is cut-and-paste the new sections of the guidance and then underneath the section put in my own comments. So, the blog entry is not divided into the usual traditional categories. The only new piece to the EEOC guidance comes in §K, which is at the very end of the EEOC document, pages 28-40.

COVID-19 Vaccinations:  EEO Overview

K.1.   Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees physically entering the workplace to be vaccinated for COVID-19?    (5/28/21)

The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below99185186200201.  These principles apply if an employee gets the vaccine in the community or from the employer.

In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.  The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) (see K.6) or for religion (see K.12).

As with any employment policy, employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act (40+)).  Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.

It would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.

 

Thoughts/takeaways: As I mentioned previously in this blog entry186187201202, federal EEO laws do allow for employers to mandate Covid-19 vaccinations. An employer does have to make reasonable accommodations for employees with disabilities or for those with sincerely held religious beliefs. Keep in mind that reasonable accommodations for persons with disabilities and reasonable accommodations for people having sincere religious beliefs are not at all the same thing, at least for now. Employers do want to be careful about policies that have a disproportionate effect on protected groups.

K.2.   What are some examples of reasonable accommodations or modifications that employers may have to provide to employees who do not get vaccinated due to disability; religious beliefs, practices, or observance; or pregnancy?  (5/28/21)

An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business.  For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment.

Employees who are not vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees.  These modifications may be the same as the accommodations made for an employee based on disability or religion.

 

Thoughts/takeaways: There is legislation currently pending in Congress, the Pregnant Workers Fairness Act, which would take the ADA paradigm and place it on pregnancy. Until that legislation becomes law, as a matter of preventive law it is a good idea to put that ADA paradigm onto pregnancy anyway. As mentioned immediately above, keep in mind that reasonable accommodations has a completely different meaning for dealing with a person with a sincere religious belief v. a person with a disability.

K.3.  How can employers encourage employees and their family members to be vaccinated without violating the EEO laws, especially the ADA and GINA? (5/28/21)

Employers may provide employees and their family members with information to educate them about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns.  Also, under certain circumstances employers may offer incentives to employees who receive COVID-19 vaccines, as discussed in K.16 – K. 21100187188202203.  As of May 2021, the federal government is providing vaccines at no cost to everyone ages 12 and older.

There are many resources available to employees seeking more information about how to get vaccinated:

  • The federal government’s online vaccines.gov101188189203204 site can identify vaccination sites anywhere in the country (or https://www.vacunas.gov102189190204205 for Spanish).  Individuals also can text their zip code to “GETVAX” (438829) – or “VACUNA” (822862) for Spanish – to find three vaccination locations near them.
  • CDC’s website offers a link to a listing of local health departments103190191205206, which can provide more information about local vaccination efforts.
  • In addition, the CDC offers background information for employers about workplace vaccination programs104191192206207. The CDC provides a complete communication “tool kit” for employers to use with their workforce to educate people about getting the COVID-19 vaccine.  (Although originally written for essential workers, it is useful for all workers.)   See CDC’s Essential Workers COVID-19 Toolkit105192193207208.  Employers should provide the contact information of a management representative for employees who need to request a reasonable accommodation for a disability or religious belief, practice, or observance or to ensure nondiscrimination for an employee who is pregnant.
  • Some employees may not have reliable access to the internet to identify nearby vaccination locations or may speak no or limited English and find it difficult to make an appointment for a vaccine over the phone. The CDC operates a toll-free telephone line that can provide assistance in many languages for individuals seeking more information about vaccinations: 800-232-4636; TTY 888-232-6348.
  • Some employees also may require assistance with transportation to vaccination sites. Employers may gather and disseminate information to their employees on low-cost and no-cost transportation resources available in their community serving vaccination sites and offer time-off for vaccination, particularly if transportation is not readily available outside regular work hours.

Thoughts/takeaways: Nothing to add here.

General

K.4.  Is information about an employee’s COVID-19 vaccination confidential medical information under the ADA?  (5/28/21)

Yes.  The ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination.  This ADA confidentiality requirement applies regardless of where the employee gets the vaccination.  Although the EEO laws themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.

 

Thoughts/takeaways: This particular question raises the important point that Covid-19 information must be kept confidential under the ADA. That means not only keeping it confidential but also storing it separately from the employee’s personnel files.

Mandatory Employer Vaccination Programs

K.5.  Under the ADA, may an employer require a COVID-19 vaccination for all employees entering the workplace, even though it knows that some employees may not get a vaccine because of a disability? (12/16/20, updated 5/28/21)

Yes, provided certain requirements are met.  Under the ADA, an employer may require all employees to meet a qualification standard that is job-related and consistent with business necessity, such as a safety-related standard requiring COVID-19 vaccination.  However, if a  particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace.  A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation.  29 C.F.R. 1630.2(r)106193194208209.  This determination can be broken down into two steps: determining if there is a direct threat and, if there is, assessing whether a reasonable accommodation would reduce or eliminate the threat.

To determine if an employee who is not vaccinated due to a disability poses a “direct threat” in the workplace, an employer first must make an individualized assessment of the employee’s present ability to safely perform the essential functions of the job.  The factors that make up this assessment are: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.  The determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19.  Such medical knowledge may include, for example, the level of community spread at the time of the assessment.   Statements from the CDC provide an important source of current medical knowledge about COVID-19, and the employee’s health care provider, with the employee’s consent, also may provide useful information about the employee.   Additionally, the assessment of direct threat should take account of the type of work environment, such as: whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing.

If the assessment demonstrates that an employee with a disability who is not vaccinated would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat.  Potential reasonable accommodations could include requiring the employee to wear a mask, work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees ), permitting telework if feasible, or reassigning the employee to a vacant position in a different workspace.

As a best practice, an employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.  (See also K.12107194195209210 recommending the same best practice for religious accommodations.)

 

Thoughts/takeaways: 1) An employer can absolutely require Covid-19 vaccination for its current employees providing that standard is job-related and consistent with business necessity, such as by way of example a safety-related standard requiring Covid-19 vaccination. Just what is job-related and consistent with business necessity is something that we have discussed numerous times before in our blog, such as here195196210211; 2) The employer will have to make “reasonable accommodation,” for those with disabilities or for those with sincerely held religious beliefs; 3) if a person with a disability cannot be vaccinated, then the employer has to decide whether that person is a direct threat and whether any reasonable accommodation can be made short of that direct threat point. Direct threat is something that we have discussed before quite a few times, such as here196197211212; 4) when figuring out whether a direct threat exists, CDC guidances are useful as well as information from the employee’s health care provider. With respect to CDC guidances, they have been all over the place, so you would want to have those analyzed closely; 5) Figuring out direct threat also means looking at the employee’s individual work environment, such as: whether the employee works alone or with others or works inside or outside; available ventilation; frequency and duration of direct interaction the employee’s typically has with other employees and nonemployees; number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing; and 6) remember that direct threat is a term of art and always requires an individualized analysis.

 

K.6. Under the ADA, if an employer requires COVID-19 vaccinations for employees physically entering the workplace, how should an employee who does not get a COVID-19 vaccination because of a disability inform the employer, and what should the employer do?   (12/16/20, updated 5/28/21)

An employee with a disability who does not get vaccinated for COVID-19 because of a disability must let the employer know that he or she needs an exemption from the requirement or a change at work, known as a reasonable accommodation.  To request an accommodation, an individual does not need to mention the ADA or use the phrase “reasonable accommodation.”

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability108197198212213 and know to whom to refer the request for full consideration. As a best practice, before instituting a mandatory vaccination policy, employers should provide managers, supervisors, and those responsible for implementing the policy with clear information about how to handle accommodation requests related to the policy.

Employers and employees typically engage in a flexible, interactive process to identify workplace accommodation options that do not impose an undue hardship (significant difficulty or expense) on the employer.  This process may include determining whether it is necessary to obtain supporting medical documentation about the employee’s disability.

In discussing accommodation requests, employers and employees may find it helpful to consult the 109Job Accommodation Network (JAN) website198199213214 as a resource for different types of accommodations.  JAN’s materials about COVID-19 are available at 110https://askjan.org/topics/COVID-19.cfm199200214215.  Employers also may consult applicable Occupational Safety and Health Administration (OSHA) COVID-specific resources111200201215216.  Even if there is no reasonable accommodation that will allow the unvaccinated employee to be physically present to perform his or her current job without posing a direct threat, the employer must consider if telework is an option for that particular job as an accommodation and, as a last resort, whether reassignment to another position is possible.

The ADA requires that employers offer an available accommodation if one exists that does not pose an undue hardship, meaning a significant difficulty or expense. See 29 C.F.R. 1630.2(p).  Employers are advised to consider all the options before denying an accommodation request.  The proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, who may be ineligible for a vaccination or whose vaccination status may be unknown, can impact the ADA undue hardship consideration.  Employers may rely on CDC recommendations112201202216217 when deciding whether an effective accommodation is available that would not pose an undue hardship.

Under the ADA, it is unlawful for an employer to disclose that an employee is receiving a reasonable accommodation113202203217218 or to retaliate against an employee for requesting an accommodation114203204218219.

 

Thoughts/takeaways: 1) it is up to the employee to request an exemption from a Covid-19 vaccination requirement; 2) requesting that exemption does not need magic words; 3) managers and supervisors need to know how to respond to particular employee requests for exemption from any Covid-19 vaccination requirements; 4) never forget about the interactive process and make sure you get the interactive process right, as we discussed here204205219220; 5) the ADA makes it unlawful to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting an accommodation; 6) significant difficulty or expense is a much higher standard- see 29 C.F.R. 1630.2(p)205206220221-then a plain reading of the term would suggest.

K.7.  If an employer requires employees to get a COVID-19 vaccination from the employer or its agent, do the ADA’s restrictions on an employer making disability-related inquiries or medical examinations of its employees apply to any part of the vaccination process? (12/16/20, updated 5/28/21)

Yes. The ADA’s restrictions apply to the screening questions that must be asked immediately prior to administering the vaccine if the vaccine is administered by the employer or its agent.  An employer’s agent115206207221222 is an individual or entity having the authority to act on behalf of, or at the direction of, the employer.

The ADA generally restricts when employers may require medical examinations (procedures or tests that seek information about an individual’s physical or mental impairments or health) or make disability-related inquiries (questions that are likely to elicit information about an individual’s disability).  The act of administering the vaccine is not a “medical examination” under the ADA because it does not seek information about the employee’s physical or mental health.

However, because the pre-vaccination screening questions are likely to elicit information about a disability, the ADA requires that they must be “job related and consistent with business necessity” when an employer or its agent administers the COVID-19 vaccine.  To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, cannot be vaccinated, will pose a direct threat to the employee’s own health or safety or to the health and safety of others in the workplace.  (See general discussion in Question K.5116207208222223.)  Therefore, when an employer requires that employees be vaccinated by the employer or its agent, the employer should be aware that an employee may challenge the mandatory pre-vaccination inquiries, and an employer would have to justify them under the ADA.

The ADA also requires employers to keep any employee medical information obtained in the course of an employer vaccination program confidential.

 

Thoughts/takeaways: 1) the ADA scheme dealing with medical exams also applies to disability -related inquiries. See this blog entry208209223224 for example; 2) pre-vaccination screening questions are likely to elicit information about a disability and therefore, are a disability related inquiry; 3) any disability related inquiries of current employees must be job-related and consistent with business necessity; 4) an employer must have a reasonable belief based upon objective evidence that an employee not answering the questions cannot be vaccinated, will pose a direct threat to the employee’s own health or safety or to the health and safety of others in the workplace; 5) employee medical information obtained in the course of an employer vaccination program must be kept confidential; 6) an employer may want to make sure that neither itself nor its agents do the vaccines for its employees if it wants to avoid possible exposure to disability related inquiries. Of course, bigger companies may not see this as much of an issue. 7) just what is a disability related inquiry can be a bit of a moving target. If you have persons with disabilities involved in that analysis, that certainly will help.

Voluntary Employer Vaccination Programs

K.8.  Under the ADA, are there circumstances in which an employer or its agent may ask disability-related screening questions before administering a COVID-19 vaccine without needing to satisfy the “job-related and consistent with business necessity” standard?  (12/16/20, updated 5/28/21)

Yes.  If the employer offers to vaccinate its employees on a voluntary basis, meaning that employees can choose whether or not to get the COVID-19 vaccine from the employer or its agent, the employer does not have to show that the pre-vaccination screening questions are job-related and consistent with business necessity.  However, the employee’s decision to answer the questions must be voluntary.  (See also Questions K.16 – 17117209210224225.)  The ADA prohibits taking an adverse action against an employee, including harassing the employee, for refusing to participate in a voluntary employer-administered vaccination program.  An employer also must keep any medical information it obtains from any voluntary vaccination program confidential.

 

Thoughts/takeaways: 1) see thoughts/takeaways for K.7; 2) an employee’s decision to answer pre-vaccine questions has to be voluntary; 3) the ADA prohibits taking adverse action against an employee for refusing to participate in the voluntary employer-administered vaccination program; 4) medical information obtained from a voluntary vaccination program must be kept confidential.

K.9.  Under the ADA, is it a “disability-related inquiry” for an employer to inquire about or request documentation or other confirmation that an employee obtained the COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider, or public clinic?   (12/16/20, updated 5/28/21)

No.  When an employer asks employees whether they obtained a COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider, or public clinic, the employer is not asking a question that is likely to disclose the existence of a disability; there are many reasons an employee may not show documentation or other confirmation of vaccination in the community besides having a disability.  Therefore, requesting documentation or other confirmation of vaccination by a third party in the community is not a disability-related inquiry under the ADA, and the ADA’s rules about such inquiries do not apply.

However, documentation or other confirmation of vaccination provided by the employee to the employer is medical information about the employee and must be kept confidential.

 

Thoughts/takeaways: Nothing to add here.

K.10.  May an employer offer voluntary vaccinations only to certain groups of employees?  (5/28/21)

If an employer or its agent offers voluntary vaccinations to employees, the employer must comply with federal employment nondiscrimination laws.  For example, not offering voluntary vaccinations to certain employees based on national origin or another protected basis under the EEO laws would not be permissible.

 

Thoughts/takeaways: if you are going to offer voluntary vaccinations only to certain groups of employees, make sure you have documentation in place to why you are doing that. Also, make sure that any such decisions do not run into problems with persons with protected characteristics.

K.11. What should an employer do if an employee who is fully vaccinated for COVID-19 requests accommodation for an underlying disability because of a continuing concern that he or she faces a heightened risk of severe illness from a COVID-19 infection, despite being vaccinated? (5/28/21)

Employers who receive a reasonable accommodation request from an employee should process the request in accordance with applicable ADA standards.

When an employee asks for a reasonable accommodation, whether the employee is fully vaccinated or not, the employer should engage in an interactive process to determine if there is a disability-related need for reasonable accommodation.  This process typically includes seeking information from the employee’s health care provider with the employee’s consent explaining why an accommodation is needed.

For example, some individuals who are immunocompromised might still need reasonable accommodations because their conditions may mean that the vaccines may not offer them the same measure of protection as other vaccinated individuals.  If there is a disability-related need for accommodation, an employer must explore potential reasonable accommodations that may be provided absent undue hardship.

 

Thoughts/takeaways: 1) interactive process!!!!

Title VII and COVID-19 Vaccinations

K.12.  Under Title VII, how should an employer respond to an employee who communicates that he or she is unable to be vaccinated for COVID-19 (or provide documentation or other confirmation of vaccination) because of a sincerely held religious belief, practice, or observance? (12/16/20, updated 5/28/21)

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from getting a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship.  Employers also may receive religious accommodation requests from individuals who wish to wait until an alternative version or specific brand of COVID-19 vaccine is available to the employee.  Such requests should be processed according to the same standards that apply to other accommodation requests.

EEOC guidance explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar.  Therefore, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance.  However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information. See also 29 CFR 1605.

Under Title VII, an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment.  For suggestions about types of reasonable accommodation for unvaccinated employees, see question and answer K.6.118210211225226, above.  In many circumstances, it may be possible to accommodate those seeking reasonable accommodations for their religious beliefs, practices, or observances.

Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer.  This is an easier standard for employers to meet than the ADA’s undue hardship standard, which applies to requests for accommodations due to a disability.  Considerations relevant to undue hardship can include, among other things, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine.  Ultimately, if an employee cannot be accommodated, employers should determine if any other rights apply under the EEO laws or other federal, state, and local authorities before taking adverse employment action against an unvaccinated employee.

 

Thoughts/takeaways: The first sentence in the last paragraph of this § mentions how title VII reasonable accommodation for sincerely held religious beliefs is quite a bit different than the ADA standard even if they use the same terminology.

K.13.  Under Title VII, what should an employer do if an employee chooses not to receive a COVID-19 vaccination due to pregnancy?   (12/16/20, updated 5/28/21)

Under Title VII, some employees may seek job adjustments or may request exemptions from a COVID-19 vaccination requirement due to pregnancy.

If an employee seeks an exemption from a vaccine requirement due to pregnancy, the employer must ensure that the employee is not being discriminated against compared to other employees similar in their ability or inability to work.  This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work. Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII119211212226227.

 

Thoughts/takeaways: 1) we have discussed pregnancy before. For example, see this blog entry212213227228; 2) the Pregnant Workers Fairness Act213214228229 if it passes through Congress, and there is a good probability it will, will have something to say on this as well.

GINA And COVID-19 Vaccinations

Title II of GINA prohibits covered employers from using the genetic information of employees to make employment decisions.  It also restricts employers from requesting, requiring, purchasing, or disclosing genetic information of employees. Under Title II of GINA, genetic information includes information about the manifestation of disease or disorder in a family member (which is referred to as “family medical history”) and information from genetic tests of the individual employee or a family member, among other things. 

 

Thoughts/takeaways: nothing to add here.

 

K.14.  Is Title II of GINA implicated if an employer requires an employee to receive a COVID-19 vaccine administered by the employer or its agent? (12/16/20, updated 5/28/21)

No.  Requiring an employee to receive a COVID-19 vaccination administered by the employer or its agent would not implicate Title II of GINA unless the pre-vaccination medical screening questions include questions about the employee’s genetic information, such as asking about the employee’s family medical history.   As of May 27, 2021, the pre-vaccination medical screening questions for the first three COVID-19 vaccines to receive Emergency Use Authorization (EUA) from the FDA do not seek family medical history or any other type of genetic information.  See CDC’s Pre-vaccination Checklist120214215229230 (last visited May 27, 2021).  Therefore, an employer or its agent may ask these questions without violating Title II of GINA.

The act of administering a COVID-19 vaccine does not involve the use of the employee’s genetic information to make employment decisions or the acquisition or disclosure of genetic information and, therefore, does not implicate Title II of GINA.

 

Thoughts/takeaways: nothing to add here.

K.15.  Is Title II of GINA implicated when an employer requires employees to provide documentation or other confirmation that they received a vaccination from a doctor, pharmacy, health agency, or another health care provider in the community? (12/16/20, updated 5/28/21)

No.  An employer requiring an employee to show documentation or other confirmation of vaccination from a doctor, pharmacy, or other third party is not using, acquiring, or disclosing genetic information and, therefore, is not implicating Title II of GINA.  This is the case even if the medical screening questions that must be asked before vaccination include questions about genetic information, because documentation or other confirmation of vaccination would not reveal genetic information.  Title II of GINA does not prohibit an employee’s own health care provider from asking questions about genetic information. This GINA Title II prohibition only applies to the employer or its agent.

 

Thoughts/takeaways: nothing to add here.

Employer Incentives For COVID-19 Voluntary Vaccinations Under ADA and GINA

ADA:  Employer Incentives for Voluntary COVID-19 Vaccinations

K.16.  Under the ADA, may an employer offer an incentive to employees to voluntarily provide documentation or other confirmation that they received a vaccination on their own from a pharmacy, public health department, or other health care provider in the community?  (5/28/21)

Yes.  Requesting documentation or other confirmation showing that an employee received a COVID-19 vaccination in the community is not a disability-related inquiry covered by the ADA.  Therefore, an employer may offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community.  As noted elsewhere, the employer is required to keep vaccination information confidential pursuant to the ADA.

 

Thoughts/takeaways: 1) employers are free to offer an incentive so long as the employee is getting the vaccination from a pharmacy, public health department, or other healthcare provider in the community; 2) as you can see from the very next question, different story with respect to vaccinations administered by the employer or the employer’s agent.

K.17.  Under the ADA, may an employer offer an incentive to employees for voluntarily receiving a vaccination administered by the employer or its agent?  (5/28/21)

Yes, if any incentive (which includes both rewards and penalties) is not so substantial as to be coercive.  Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information. As explained in K.16., however, this incentive limitation does not apply if an employer offers an incentive to employees to voluntarily provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider that is not their employer or an agent of their employer.

 

Thoughts/takeaways: 1) incentives are permissible if the employer or the employer’s agent is the one administering the vaccine so long at the incentive is not so substantial as to be coercive. What that means is anybody’s guess, which is why employers still want the EEOC to clarify this. In the meantime, keep any such incentives really small, such as small dollar gift cards, a mug, etc.

GINA:  Employer Incentives for Voluntary COVID-19 Vaccinations

K.18.  Under GINA, may an employer offer an incentive to employees to provide documentation or other confirmation that they or their family members received a vaccination from their own health care provider, such as a doctor, pharmacy, health agency, or another health care provider in the community? (5/28/21)

Yes.  Under GINA, an employer may offer an incentive to employees to provide documentation or other confirmation from a third party not acting on the employer’s behalf, such as a pharmacy or health department, that employees or their family members have been vaccinated.  If employers ask an employee to show documentation or other confirmation that the employee or a family member has been vaccinated, it is not an unlawful request for genetic information under GINA because the fact that someone received a vaccination is not information about the manifestation of a disease or disorder in a family member (known as family medical history under GINA), nor is it any other form of genetic information. GINA’s restrictions on employers acquiring genetic information (including those prohibiting incentives in exchange for genetic information), therefore, do not apply.

 

Thoughts/takeaways: nothing to add here.

K.19.  Under GINA, may an employer offer an incentive to employees in exchange for the employee getting vaccinated by the employer or its agent? (5/28/21)

Yes.  Under GINA, as long as an employer does not acquire genetic information while administering the vaccines, employers may offer incentives to employees for getting vaccinated.  Because the pre-vaccination medical screening questions for the three COVID-19 vaccines now available do not inquire about genetic information, employers may offer incentives to their employees for getting vaccinated.  See K.14121215216230231 for more about GINA and pre-vaccination medical screening questions.

 

Thoughts/takeaways: nothing to add here.

K.20. Under GINA, may an employer offer an incentive to an employee in return for an employee’s family member getting vaccinated by the employer or its agent? (5/28/21)

No.  Under GINA’s Title II health and genetic services provision, an employer may not offer any incentives to an employee in exchange for a family member’s receipt of a vaccination from an employer or its agent.   Providing such an incentive to an employee because a family member was vaccinated by the employer or its agent would require the vaccinator to ask the family member the pre-vaccination medical screening questions, which include medical questions about the family member.  Asking these medical questions would lead to the employer’s receipt of genetic information in the form of family medical history of the employee.  The regulations implementing Title II of GINA prohibit employers from providing incentives in exchange for genetic information.  Therefore, the employer may not offer incentives in exchange for the family member getting vaccinated.  However, employers may still offer an employee’s family member the opportunity to be vaccinated by the employer or its agent, if they take certain steps to ensure GINA compliance.

 

Thoughts/takeaways: nothing to add here.

K.21. Under GINA, may an employer offer an employee’s family member an opportunity to be vaccinated without offering the employee an incentive? (5/28/21)

Yes.  GINA permits an employer to offer vaccinations to an employee’s family members if it takes certain steps to comply with GINA.  Employers must not require employees to have their family members get vaccinated and must not penalize employees if their family members decide not to get vaccinated.  Employers must also ensure that all medical information obtained from top family members during the screening process is only used for the purpose of providing the vaccination, is kept confidential, and is not provided to any managers, supervisors, or others who make employment decisions for the employees.  In addition, employers need to ensure that they obtain prior, knowing, voluntary, and written authorization from the family member before the family member is asked any questions about his or her medical conditions.  If these requirements are met, GINA permits the collection of genetic information.

 

Thoughts/takeaways: nothing to add here.

Today’s blog entry explores a variety of issues dealing with vindicating rights under the ADA in the face of a collective bargaining agreement (CBA). The case of the day is Murphy v. United Parcel Service,186188204208207 Inc., a decision from the Eastern District of Wisconsin on March 23, 2021. As usual, the blog entry is divided into categories and they are: facts; CBA need not be exhausted prior to filing an ADA claim; CBA does not require arbitration of the claim; plaintiff has standing; failure to accommodate claim do not require an adverse action; sufficient allegations exist with respect to plaintiff being otherwise qualified; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts Taken Directly from the Opinion Excepting Materials in Brackets Added at the Very End of This Section.

 

The defendant hired the plaintiff in 2004. Dkt. No. 19 at ¶7. The plaintiff worked in the Germantown facility, but now works in Elm Grove as package handler; he is a member of the Teamsters Local Union 344. Id. at ¶7, 9. The plaintiff, who is deaf and communicates through American Sign Language (ASL), did not have communication problems in Germantown because he had a supervisor who knew some ASL and whenever there was an important meeting, the defendant provided a sign language interpreter. Id. at ¶¶6, 7. The plaintiff began having problems with communication and the lack of interpreters once he transferred to the Elm Grove facility. Id. at ¶7. The plaintiff requested *9 interpreters for meetings and provided the human resources manager with contact information for interpreters. Id. at ¶8. On multiple occasions, the defendant failed to provide interpreters for meetings discussing promotions, scheduling, job changes, discipline and safety. Id. The failure to provide interpreters continues to be a problem for the plaintiff. Id. 9

 

The plaintiff has filed union grievances for the alleged “failure[s] to provide interpreters or appropriate communication.” Id. at ¶9. At least two of the grievances went to the Wisconsin Area Panel Grievance Committee, which ruled in the plaintiff’s favor and ordered the defendant to provide appropriate sign language interpretation to the plaintiff. Id. The plaintiff alleges that these orders have been followed “sporadically at best” and that there continues to be a failure to provide interpretation for many meetings, resulting in his not getting the information that his co-workers receive in daily briefings. Id. at ¶10. The plaintiff alleges that “[i]n the alternative,” the defendant has failed to provide him with notes on the meetings or has provided inadequate notes. Id. at ¶11. As a result, he has missed information about schedule changes in the days of the week he was supposed to work and how to participate in incentive programs. Id. at ¶12. The plaintiff alleges that the Elm Grove facility fails to follow UPS corporate policy for deaf and hard of hearing employees and applicants, which generally requires interpreters. Id.

 

The plaintiff applied for three full-time driving positions in 2016. Id. at ¶¶13-14. The process for bidding on driving positions is covered by the *10 seniority system mandated by the CBAs. Dkt. No. 24-3 at 7 (Sec. 8). A vacancy must be filled be the senior bidding employee. Id. 10 4 Murphy v. United Parcel Serv. Case No. 19-cv-1728-pp (E.D. Wis. Mar. 23, 2021)

 

The first two times the plaintiff bid for full-time driver positions—on August 16 and September 16, 2016—he was the most senior bidder. Dkt. No 19 at ¶13. The defendant removed the postings without explanation. Id. The third time he bid (again, as the most senior bidder), on September 27, 2016, the plaintiff took a required physical exam (and passed), then was scheduled to take a driving test. Id. at ¶¶14-15. An applicant must complete several steps to be hired as a package car driver. He must pass the physical examination, which the plaintiff did. Dkt. No. 19 at ¶14. The applicant also must meet the hearing threshold required by the FMCSA. 49 C.F.R. §391.41(b)(11). The plaintiff obtained an exemption from the hearing requirement through an experimental program conducted by the FMCSA. Dkt. No. 19 at ¶14.

 

Next, the plaintiff was required to pass a driving test. Dkt. No. 19 at ¶15. When he took the test on November 7, 2016, the plaintiff requested an interpreter and asked to use a student truck because it had enough seats for the plaintiff, the tester and the interpreter. Id. The defendant refused to allow the interpreter to ride along and required the plaintiff to take the test in an older vehicle with a manual transmission. Id. When the plaintiff asked if he could practice driving with supervisors (which he says had happened in the past), the HR representative told him that option was no longer available because of liability concerns. Id. The plaintiff asserts, however, that after he *11 was told this, another driver (who was not deaf) was allowed to practice with a supervisor. Id. 11

 

The plaintiff alleges that before starting the test, the tester agreed to use hand gestures to administer directions on the test; however, the tester did not use the agreed upon gestures and used different gestures. Id. at ¶16. The tester never had the plaintiff pull over during the test to explain to the plaintiff what the tester wanted the plaintiff to do or what was to be evaluated. Id. The plaintiff says that his test was fifty-five minutes long; he says that non-deaf drivers usually had a test lasting between fifteen to twenty minutes. Id. The plaintiff did not pass the test. Id.

 

The plaintiff had a second driving test that was similar to the first one, except that the tester wrote notes and stuck them in the plaintiff’s face while he was driving. Id. at ¶17. The tester also marked a score for the plaintiff on the uphill parking portion of the test, even though the plaintiff does not recall being directed to perform this portion of the test. Id. The plaintiff did not pass this test. Id. After the second test, the tester allegedly told others that the defendant was determined never to let the plaintiff become a company driver. Id. at ¶18.

 

The CBAs are negotiated every five years [an internal process exist for resolving disagreements with the CBA].

 

II

A Collective Bargaining Agreement Need Not Be Exhausted Prior to Filing an ADA Claim

 

  1. The Labor Management Relations Act is silent on whether exhaustion is an affirmative defense with the default rule being it is an affirmative defense.
  2. Plaintiff is not suing under the Labor Management Relations Act rather this is a title I of the ADA claim claiming the defendant failed on multiple occasions to provide reasonable accommodations to help the plaintiff in his work and also failed on multiple occasions to provide reasonable accommodations so that he was denied a promotion to full-time work.
  3. Several courts have held that exhaustion of a CBA is not jurisdictional.

 

III

The Labor Management Relations Act Does Not Preempt ADA Claims

 

  1. The amended complaint asserts federal law claims.
  2. The Sixth Circuit has held that the Labor Management Relations Act did not preempt a claim brought in federal court under the ADA.
  3. Since the claim is based upon a federal cause of action and is in federal court, there is no danger of divergent application of the collective bargaining agreement provisions and therefore, preemption simply does not apply.
  4. A claim under the ADA is a separate, statutorily created federal cause of action independent from a CBA based contract claim under the Labor Management Relations Act. So, any contractual right under the collective bargaining agreement does not negate the statutory rights under the ADA.
  5. The Labor Management Relations Act does not bar a plaintiff from bringing an independent state or federal claim in court unless the claim can be conclusively resolved by interpretation of the CBA. That is, the claim is only precluded if it can be dispositively resolved through an interpretation of a CBA, which is not the case here.
  6. The defendant has not identified any provision of the CBA needing to be reinterpreted, or applied differently to other similarly situated employees if the court were to rule on the plaintiff’s ADA claim.
  7. The first amended complaint alleges that the defendant repeatedly failed to provide interpreters for meetings and other employment functions when requested and refused to provide notes on meetings without interpreters in violation of the ADA. Figuring this case out does not involve interpreting the CBA to decide whether the defendant has violated federal law. The case also has nothing to do with seniority bidding processes.
  8. The plaintiff alleges he was treated differently from other employees during the examination process so that the defendant would never allow him to become a driver. Further, the procedures employed during testing are not governed by the CBA. So while the court may consult the collective bargaining agreement or his prior grievances in resolving this case, a decision on the plaintiff’s claim does not require interpretation of the CBA.

 

IV

The CBA Does Not Require Arbitration of the Claims

 

  1. The relevant section of the CBA with respect to the ADA states as follows:

 

The Parties agree to abide by the provisions of the Americans with Disabilities Act. The Company shall be required to negotiate with the Local Union prior to providing a reasonable accommodation to a qualified bargaining unit employee. The Company shall make a good faith effort to comply in a timely manner with requests for a reasonable accommodation because of a permanent disability. Any grievance concerning the accommodation not resolved at the center level hearing will be referred to the appropriate Union and Company co-chairs for the Local Area or to the Region Grievance Committee, if applicable. If not resolved at that 32 14 Murphy v. United Parcel Serv. Case No. 19-cv-1728-pp (E.D. Wis. Mar. 23, 2021) *33 Dkt. No. 24-1 at 49-50 (emphasis added). level within then (10) days, the grievance shall be submitted directly to the National Safety and Health Grievance Committee. If the Company claims that the individual does not fall within the protections of the Americans with Disabilities Act, then the grievance must follow the normal grievance procedure in order to resolve that issue before it can be docketed with the National Safety and Health Committee. Any claim in dispute concerning rights under this Section shall be addressed under the grievance and arbitration procedures of this Agreement. A grievance may be filed by an employee or the Union, notwithstanding any contrary provision in any Supplement, Rider or Addendum. The submission of a claim under this Section to the grievance and arbitration procedures of the Agreement shall not prohibit or impede an employee or the Union from pursuing their statutory rights under the Americans with Disabilities Act (ADA) or comparable state or local laws.

 

  1. The section talking about how a submission of claim under this particular section of the CBA does not prohibit or impede an employee or the union from pursuing their statutory rights under the ADA is ambiguous. For instance, it doesn’t define what a claim under this section means. Also, this section does not appear to give rise independent claims, rather it simply states its intent to abide by the ADA. It also isn’t clear whether a claim refers to an employee claim for reasonable accommodation or whether it refers to a claim regarding the defendant’s handling of such claims. Finally, it is unclear whether this section means that an employee may pursue his statutory rights under the ADA and arbitration or whether he may pursue those rights in the courts. The CBA could have easily made that clear. Accordingly, the language of the CBA suggests that nothing shall prohibit or impede a plaintiff from pursuing his rights under the ADA in any forum.
  2. For a claim to be subject to arbitration, the agreement must be really clear (clear and unmistakable), that the claim subjects itself to arbitration and this one isn’t.
  3. In short, the CBA did not articulate a clear intent to require employees to submit ADA claims to the grievance process. For that matter, it does not contain a clear waiver of an employee’s right to pursue an ADA claim in federal court.

 

V

Plaintiff Has Standing to Pursue His Claim

 

  1. The plaintiff took all the necessary steps to file an ADA claim: he filed his claims with the EEOC and received a notice of right to sue with a finding of reasonable cause. The plaintiff has suffered a concrete and particularized injury. The injuries he alleges are neither hypothetical nor illusory; the plaintiff requested an ASL interpreter, he grieved the failure to accommodate and prevailed twice, he applied three times for the driving position, he requested accommodations in testing and he failed the driving test twice without accommodations. He alleges that others were tested under different conditions, allowed to practice, and accommodated.
  2. The defendant argues that the plaintiff must repeatedly return to a process that has failed him. Twice the state panel has agreed with the plaintiff and ordered the defendant to provide accommodation. Yet the plaintiff alleges that the defendant still has failed to address his needs. It is not clear why the defendant believes that a third—or fourth or fifth trip through the grievance process would make a difference. The defendant’s argument has little to do with ripeness. The plaintiff’s claims are ripe.

 

VI

Failure to Accommodate Claims Do Not Require an Independent Adverse Action

 

  1. In the Seventh Circuit, to prevail on a failure to accommodate claim a plaintiff must show: 1) he was a qualified individual with a disability; 2) his employer was aware of a disability; and 3) the employer failed to reasonably accommodate his disability.
  2. The Seventh Circuit does not require a plaintiff pursuing a failure to accommodate claim to allege an adverse action.
  3. Plaintiff alleged: 1) he was a qualified individual with a disability; 2) the employer was aware of it disability and have previously provided ASL interpreters at another location; 3) the plaintiff requested an ASL interpreter for meeting and had agreed the requested accommodation twice and the defendant continue to ignore his request. All of this is sufficient to get by a motion to dismiss.
  4. Since an adverse action is not an essential element of a failure to accommodate claim, the fact that the plaintiff did not plead it in the amended complaint is irrelevant.

 

VII

Sufficient Allegations Exist With Respect to Whether the Plaintiff Was Otherwise Qualified

 

  1. To state a discrimination claim under the ADA, a plaintiff has to allege: 1) he is a person with a disability within the meaning of the ADA; 2) he is qualified to perform the essential elements of the job with or without reasonable accommodation; and 3) he suffered an adverse employment action because of his disability.
  2. Here, plaintiff alleges that he is qualified to perform the essential functions of the job with reasonable accommodation. He alleged that he sought and was granted a hearing exemption from the Federal Motor Carrier Safety Administration and passed the requisite physical test. He holds a valid Wisconsin driver’s license. Finally, he was denied accommodations and failed the driving test twice.
  3. Whether a plaintiff can perform the essential functions of the job with or without reasonable accommodations is a jury question.

 

Separately, the court granted the defendant’s motion to strike the claim for declaratory relief because the amended complaint did not identify any policies or regulations for the court to declare in violation of the ADA and did not assert a declaratory relief claim. For that matter, the plaintiff did not respond to the defendant’s arguments on the issue. Also, the court explicitly encouraged the party to consider mediation, especially since the defendant had already litigated a similar case in another federal court.

 

VIII

 

Thoughts/Takeaways

 

  1. If an employee is faced with an ADA claim and is a member of a union, the employee’s claim will not be bounced out of court automatically if the employee does not go through the collective bargaining grievance process.
  2. The Labor Management Relations Act may preempt ADA claims in narrow situations, but not often because just about all cases will not involve interpreting the CBA to decide whether the defendant has violated the ADA. It may be a different story with respect to seniority bidding processes (think mandatory reassignment situations).
  3. Any agreement to arbitrate must be clear and unmistakable.
  4. The more specific a plaintiff is with respect to allegations in an ADA claim, the more likely the plaintiff will have standing and also get by any claims he or she is not otherwise qualified.
  5. Check your jurisdiction with respect to whether failure to accommodate claim require an independent adverse action. The courts are definitely split on that question. Look for that question to go to the Supreme Court eventually.
  6. Whether you are qualified under the ADA involves asking whether you can perform the essential functions of the job with or without reasonable accommodations and is a jury question.
  7. It wouldn’t surprise me to see an appeal to the Seventh Circuit. Hard to say what the Seventh Circuit would do on the various issues raised in this opinion.