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Mandatory Flu Shots In The Workplace: What Can An Employer Legally Require

Case study:  George Costanza’s employer implements a new policy which requires all employees to obtain an influenza vaccine prior to the upcoming flu season.  The policy permits employees to be excluded from the required vaccination if they can establish a medical or religious basis for the request.  Costanza informs his employer that he cannot get […]

Case study:  George Costanza’s employer implements a new policy which requires all employees to obtain an influenza vaccine prior to the upcoming flu season.  The policy permits employees to be excluded from the required vaccination if they can establish a medical or religious basis for the request.  Costanza informs his employer that he cannot get the vaccination due to his religious beliefs.  Specifically, Costanza’s religion of Festivus not only includes a metal pole, the airing of grievances, and feats of strength but also prohibits the use of vaccinations.  Costanza’s employer does not believe that this is a real religion and terminates his employment.  Costanza’s attorney subsequently files a lawsuit claiming religious discrimination in violation of state and federal laws.  Did the employer do anything wrong in this instance?

Analysis:  As an initial matter, under Title VII, the federal law which prohibits discrimination on the basis of religion, employers are required to provide reasonable accommodations for an employee’s sincerely-held religious beliefs.  Title VII does not contain a list of acceptable religions and includes more than just the traditional recognized and organized religions.  As such, in order to be protected under Title VII, an employee must merely show that he or she holds a sincere religious belief, which was the basis for the adverse employment action.

The Third Circuit has recently addressed what constitutes a sincerely-held religious belief in accordance with Title VII.  In Fallon v. Mercy Catholic Medical Center, the plaintiff, Fallon, claimed that his employer terminated him after he refused to get the required flu vaccine.  Fallon did not belong to any organized religious organization but held a strong personal and medical belief opposing the flu vaccine because he believed it might harm his body.  After Fallon informed his employer of his belief, the employer requested a letter from a clergy member to support his request.  Fallon could not provide such a letter to support his request.  As such, his employment was terminated.

Fallon sued his employer and claimed it had discriminated against him on the basis of his religion.  Fallon’s complaint was initially dismissed by the federal District Court in Pennsylvania because Fallon’s beliefs were not based upon any sincerely-held religious belief and, as such, not protected by Title VII.

The dismissal of Fallon’s claim was upheld by the Third Circuit Appellate Court, which conducted a specific analysis into whether Fallon’s beliefs with regard to the flu vaccine were in any way based upon religion.  The Court found that Fallon’s beliefs were not religious in nature due to the fact that they did not “address fundamental and ultimate questions having to do with deep and imponderable matters.”  Conversely, Fallon was concerned about the health effects of the flu vaccine.   Fallon merely did not believe that it was harmless to most people and desired to avoid taking the vaccine.  As such, the Court determined that Fallon’s request was not religious in nature, and therefore, not protected by law.

Turning back to Costanza, his employer should be concerned about the claim.  Contrary to the plaintiff in Fallon, Costanza has clearly articulated a religious belief to his employer, not one of a personal nature.  Under both state and federal law, once an employee articulates a sincerely held religious belief, an employer is required to provide a reasonable accommodation unless the employer can establish an undue hardship.  In this instance, it would be difficult to establish an undue burden considering the employer had carved exceptions into the policy itself.

Employers should also be mindful of how much they question an employee’s sincerely-held religious beliefs.  In this regard, the Court in Fallon specifically stated that asking for a “letter from the clergy” may be a violation of the law.  If an employee articulates a sincerely-held religious belief and can state the reasons for such a belief and the reasons for the accommodation request, the employer’s follow-up inquiry should be limited to determine if the accommodation can be provided.  Employers should not, generally, force employees to document their religious beliefs in order to obtain an accommodation.  As with Costanza, not all religions are organized or established and need not be so in order to be afforded protections under the law.

Employers who have union employees and are subject to collective bargaining agreements have additional concerns.  The National Labor Relations Board, which interprets and enforces the National Labor Relations Act, has stated that flu policies are subjects of mandatory bargaining.  As such, unless a “Management Rights” provision in the collective bargaining agreement permits an employer to unilaterally implement such a policy, the employer is required to sit at a table with the union and agree, generally, to the terms to be included in the policy.

Employers must be mindful of their legal requirements generally if an employee requests a religious accommodation and specifically if it is done in response to a mandatory influenza vaccine policy.  While the Fallon employer was lucky in that the employee’s belief was not “religious” in nature, that is not always the case and is rare for a court to find in such a manner.  Employers should not generally question an employee’s beliefs, but instead, determine if they can accommodate the request.  Additionally, employers should ensure that all policies, including an influenza vaccination policy, are handled in a consistent and uniform manner.  Doing so will hopefully avoid being subject to a lawsuit or being on the receiving side of the airing of grievances at Festivus.

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Harassment in the Workplace: It’s Not Just for Hollywood

Harvey Weinstein, Louis C.K. Matt Lauer, Marshall Faulk, James Franco, Mario Batali, Charlie Rose, Ryan Seacrest…who’s next up to the plate? One year ago, this would have been a list of successful and famous men. Today, it’s a list of people who have been accused of harassment by female co-workers. It seems like every day […]

Harvey Weinstein, Louis C.K. Matt Lauer, Marshall Faulk, James Franco, Mario Batali, Charlie Rose, Ryan Seacrest…who’s next up to the plate? One year ago, this would have been a list of successful and famous men. Today, it’s a list of people who have been accused of harassment by female co-workers. It seems like every day another name pops up into the newsfeed with allegations of harassment. As a result, employers are scrambling to try to take steps to prevent their name from being the next one in the news. What, exactly, can employers do to prevent or, at worst, remedy any such claims? The answer is not always easy, but there are some steps an employer can take to place it in a position to eliminate harassment or defend against claims that are brought against it.
As an initial matter, it is important to understand what unlawful harassment is. Many people believe that unlawful harassment is anything that makes the workplace “hostile.” In this regard, employees claim they have been subject to harassment because their boss is mean to them or co-workers are not as friendly as they would like them to be. To be clear, the law does not protect employees from general issues at work or require the workplace to be a friendly and wonderful place. Unlawful harassment is a specific term of law which requires certain factors to be present which are as follows: there must be unwelcome conduct (which could be basically anything), which is based upon an individual’s protected classification (age, race, gender, religion, national origin, gender identity, sexual orientation, disability, etc.), the conduct must be subjectively and objectively offensive, and it must be severe or pervasive.
The main difference between merely a mean boss and a harassment claim is that the conduct is based upon an individual’s protected classification. If the behavior is not based on a person’s protected classification, what they have is not an ideal work setting, but not a claim for harassment.
Now that there is an understanding of what is “harassment,” employers need to determine what they can do to prevent claims or defend against claims that are brought. The first thing employers need to do is develop an effective harassment policy. A harassment policy must have certain provisions in order to be effective which include a statement of what is protected (hint: it is not just sexual harassment!), examples of harassment, a multi-tiered complaint mechanism (meaning the complaint procedure should not start and end with a person’s supervisor), a provision addressing confidentiality issues, anti-retaliation language, and language which addresses disciplinary issues.
While all of the previous provisions are important, the most significant requirement is that the policy has a multi-tiered complaint mechanism. If the complaint mechanism is limited to an individual’s supervisor, what is that person to do if the supervisor is the one engaging in the harassing behavior? If that is not addressed in a policy, it is not going to be deemed effective and is not worth the paper it is written on.
Having a policy is great. However, it is not sufficient to prevent and defend claims of harassment. If an employer has a policy, but no one knows what it is, it might as well not exist in the first place. As such, employers must provide regular harassment training to its employees. With regard to such training, the Equal Employment Opportunity Commission (the “EEOC”), the federal agency responsible for handling claims of harassment and discrimination, indicated in a 2017 report that harassment training should be in-person (not merely pushing a button online) and interactive and that there needs to be different training for supervisors and non-supervisory employees.
In this regard, supervisors need to be trained on how to protect, eliminate, and respond to complaints of harassment. Supervisors also need to be trained on how to document issues and the liability concerns which arise if they merely “do nothing” when in the presence of potential harassment. Training must also address proper and appropriate measures which employers should take in response to claims of harassment to remedy and eliminate any such issues.
Ultimately, most harassment claims come down to issues of common sense. It should be common sense not to end an interview with an invitation to a hotel room. It should be common sense not to take revealing pictures of yourself and send them to co-workers. It should be common sense that employees should not send inappropriate e-mails to each other. The problem, however, is that in many instances common sense is lacking and whether someone intended to offend the other person is irrelevant. Employers must, therefore, take steps to educate their employees and prepare for any potential claims that may arise so that they are not in the next headline.

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To Pay Or Not To Pay: The Internship Conundrum

Monica Lewinsky.  Darren, from Seinfeld.  That strange, quiet kid in the cubicle next to you all summer whose name you do not know and whose purpose you’re really not sure of.  Interns, some famous, some infamous, some nameless, can potentially cause significant problems for an employer.  Given that it is almost intern season, employers should […]

Monica Lewinsky.  Darren, from Seinfeld.  That strange, quiet kid in the cubicle next to you all summer whose name you do not know and whose purpose you’re really not sure of.  Interns, some famous, some infamous, some nameless, can potentially cause significant problems for an employer.  Given that it is almost intern season, employers should be mindful of some of the legal issues presented when they decide to hire an intern.

The initial issue faced by employers is whether the internship will be paid or unpaid.  As a general matter, under both state and federal law all individuals who perform work for a company are considered “employees” and must be paid at least minimum wage unless they fall within certain exceptions.  The exceptions include not only the independent contractor exception, which is the one most employers use and recognize but a specific exception for “unpaid interns.”  Accordingly, if an employer establishes an internship in accordance with specific requirements, it can be considered unpaid under the law.

While this sounds like a good idea for employers (FREE LABOR!) the hurdles an employer must overcome in order to establish an unpaid internship are significant.  As an initial matter, the primary beneficiary of the internship must be the intern.  This means that an employer cannot have an unpaid intern who merely answers phones, files documents, and gets the boss coffee.  Additionally, for the internship to be unpaid, it should be tied to a formal education program, the intern should not displace regular employees, there should be no guarantee of employment subsequent to the internship, and there should be an understanding (preferably in writing) with regard to compensation or the lack thereof.

In the event that an employer is able to meet all of the foregoing requirements, the internship can be unpaid.  Unfortunately for an employer, however, pay is not the only issue it will be presented with when hiring an intern for the summer.

As with all its other employees, paid interns are generally covered under both federal and state statutes which provide protections for individuals to be free from discrimination and harassment in the workplace.  Accordingly, an employer would be potentially liable for claims of harassment or discrimination brought by a paid intern which arose out of the internship.

Unpaid interns, however, were previously left out in the cold with regard to such protections.  In this regard, anti-discrimination statutes only protect “employees.”  Because unpaid interns are not generally considered employees under state or federal law, they have not traditionally been afforded any protections with respect to harassment and discrimination.

Notwithstanding the foregoing, several states have recently passed laws which provide protections to unpaid internships.  Pennsylvania, however, is not one of those states.  Nevertheless, this does not mean that employers are free to harass and discriminate against unpaid interns.  Courts have afforded unpaid interns protections under anti-discrimination statutes if they have received nonfinancial benefits that create or relate to career opportunities, such as free training and educational opportunities.  Given that most internships would provide free training or an educational opportunity, a Pennsylvania court may find that an unpaid intern is covered under the anti-discrimination statutes and, in turn, that an employer is subject to liability.

As such, whether an intern is paid or unpaid, employers must take all claims of harassment or discrimination seriously and conduct a thorough investigation.  A defense consisting of “I didn’t think they were protected, so I didn’t care” is unlikely to hold much weight with a court.

Finally, depending on the internship, an intern may be afforded access to an employer’s confidential or proprietary information.  Employers should not merely hope that an intern keeps such information a “secret” and does not discuss the information with his or her roommate over a game of beer pong.  Employers should take affirmative steps to protect any confidential or proprietary information which will be provided to an intern during the internship.

In this regard, employers should have interns execute non-disclosure agreements prior to the commencement of the internship.  The nondisclosure agreement will prohibit an intern from disclosing an organization’s confidential information to third parties both during the internship and after termination. Provided the nondisclosure agreement is not overbroad and is discussed with the intern prior to execution, a court will likely find such an agreement enforceable.

Employers are always tempted to hire interns during the summer.  Employers should be mindful that there is potential liability hiding around every “friend’s sister who needs an internship and says don’t worry, I’ll work for free.”  While not every internship ends in a Presidential impeachment, it can end it costly litigation for an employer.

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The “Legalization” of Marijuana and its Impact on the Workplace

On May 17, 2016, the Medical Marijuana Act (the “MMA”) became effective in Pennsylvania.  Pennsylvania has now joined almost half of the United States (and the District of Columbia) by legalizing the use of medical marijuana.  Several other states (and the District of Columbia) have gone a step further by legalizing the use of recreational […]

On May 17, 2016, the Medical Marijuana Act (the “MMA”) became effective in Pennsylvania.  Pennsylvania has now joined almost half of the United States (and the District of Columbia) by legalizing the use of medical marijuana.  Several other states (and the District of Columbia) have gone a step further by legalizing the use of recreational marijuana.

Pennsylvania’s MMA permits the use of medical marijuana for individuals suffering from certain medical ailments.  Does this mean that employees are free to turn on some Grateful Dead or Snoop Dog, get high at work, and claim that their actions are “legal?”  Wrong.  Despite certain protections provided by the MMA, employees are still subject to both state and federal limitations on their “legal” use of marijuana.  The question now is what are an employer’s rights and obligations going forward.

As an initial matter, the MMA prohibits employers from discriminating against employees who use medical marijuana.  In this regard, the MMA prohibits employers from subjecting an employee to an adverse act (e.g. termination, refusal to hire, discipline) based solely on the employee’s status as a medical marijuana user.  The MMA’s anti-discrimination provision does not, however, provide employees with free reign to walk around the office using marijuana or come to work under the influence of marijuana.

In this regard, the Act specifically states that an employer is permitted to take an adverse action against an employee if their job performance suffers or they are under the influence of marijuana at work.  In addition to exceptions set forth in the Act, the federal government has not yet adopted legislation legalizing marijuana.  Consequently, the federal prohibition further limits an individual’s ability to use the drug, regardless of the new Pennsylvania law.  Accordingly, if an individual uses marijuana, whether for medical, recreational, or other purposes, they are committing a federal crime by using a Schedule I narcotic (which also includes heroin, acid (LSD), ecstasy, and methaqualone).

In light of the foregoing, employers are faced with numerous issues pertaining to medical marijuana users.  The biggest issue, however, relates to the MMA’s interaction with the Americans with Disabilities Act (the “ADA”).  The ADA prevents an employer from subjecting an employee to discrimination on the basis of his or her actual or perceived disability.  The ADA further requires an employer to provide an employee with a “reasonable accommodation” and engage in the “interactive process” of determining whether such an accommodation is possible.   Once an employee notifies the employer of the need for accommodation for a disability, the employer must communicate with the employee and solicit whatever information is necessary to determine if a suitable accommodation is possible.  The ADA, however, does not require an employer to accommodate an “illegal activity.”

As noted above, under federal law, marijuana remains an illegal drug and, therefore, the use of marijuana constitutes an illegal act.  To date, no court has found in favor of an employee who has been terminated for using medical marijuana, regardless of the state law.  Conversely, the courts that have addressed this issue have determined that an employer is still permitted to terminate an employee who engages in activity that violates federal law.  Accordingly, employers may still conduct drug testing and discipline or terminate employees who test positive for marijuana.  The MMA provides no protections in this regard.

Given the new state of the law and the fact that there is currently no precedent interpreting the law in Pennsylvania, employers must ensure that their policies address the use of marijuana by employees.  In this regard, employers are recommended to have policies and procedures in place for drug testing and determining “reasonable suspicion” to test individuals deemed to be under the influence at work.  Additionally, while the use of medical marijuana is not a reasonable accommodation under the ADA, the Act makes it clear that an employer is not permitted to subject an employee to an adverse act solely for being a “medical marijuana” user.  As such, employers must be mindful to thoroughly document any and all reasons for an “adverse employment action.”

While the debate over the legalization of marijuana will likely continue to rage for the foreseeable future, what is clear is that for now, employers can still enforce their work rules regarding marijuana use and being under the influence at work.  In this regard, there can be no debate that if employees are permitted to be under the influence of marijuana while at work, an employer will be exposed to significant potential liability and adverse consequences beyond the snack machine being consistently empty.

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