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In what appears to be our never-ending political season, employers should prepare for employee discussions during work time related to political matters. It really is hard to get away from it as virtually every news item features something that connects to the election. How can an employer maintain productivity and peace at work while otherwise permitting employees to engage in political discussions?
First of all, we must sweep aside the common misconception that there is a right to free speech of all manner, at all times, in all location. Specific to employment issues, the First Amendment speaks only to restrictions by government, not private employers. Subject to state or local laws, private employers may generally take all sorts of employment actions to limit or in response to employee speech. These include the rights of private employers to limit political discourse on the clock and to discipline or terminate employees for extremist views expressed off the clock(1).
There are a number of practical workplace culture reasons for an employer to limit the scope of political discussions at work. In an interesting study by the American Psychological Association, there is a connection between political discussions at work and employee hostility and anxiety. According to the study, 28% of younger workers feel stressed as an outcome of political discussions; 23% of all employees, regardless of age, feel isolated as an outcome of political discussions; 25% believe they have been the recipients of hostile behavior due to political discussions; and 27% described at least one negative outcome as a consequence of political discussions.
Of course, some employers don’t want to commit to a wholesale ban of political discussion, but still want to keep it from interfering with production. Employers have the right to prohibit employees who are working or who are supposed to be working from interrupting the work of others. Employers can restrict political and other non-work discussion to occasions where all participants are not working, like during break time or before or after work. Discussions that can be curtailed include talk about politics, unions(2) or anything else that would cause one employee to be disrupted at work.
Employers have the right to hold employees accountable to follow an employer’s anti-harassment policies in the context of political discussions. An effective anti-harassment policy extends beyond protected classes to include unwanted, hostile behavior regardless of the underlying cause. Thus, once an employee makes it known to another that he or she does not want to be the recipient of political discussions, those discussions must stop.
A related issue and frequently connected to free speech is political emblems, stickers, caps or otherwise at work. Generally, an employer may prohibit those unless the cap or expression relates to a work-related issue. For example, if an employee had a cap or t-shirt that said “Fight for $15,” that likely is protected, concerted activity under the NLRA because it involves an issue regarding wages, hours or conditions of employment. If, however, an employee had a cap that identified a particular candidate, the employer would have the right to prohibit it. Again, this concerns private sector employers, not the public sector.
Political discussions at work that relate to the National Labor Relations Act Section 7 rights concerted activity regarding wages, hours and conditions of employment is permitted, but the employer has the right to limit when and where. Again, during non-work time, provided those who are engaged in the discussion are not working. Even if the discussion is permitted, the employer has the right to hold employees accountable to engage in such discussions with a certain level of civility. Recent NLRB cases have expanded employer rights to hold employees accountable for vulgar, foul, threatening or otherwise hostile communications. Employers are encouraged to apply those same principles when communications involve political discussions.
(1) Two asides: 1. Public sector employees have broader First Amendment rights in the workplace than their private sector brethren described here. 2. The term “extremist views” is meant to refer to virulent discrimination and harassment cloaked as a political opinion (ex: neo-Nazis who advocate the killing or extreme segregation of racial and religious minority claiming to be a political party). Taking or conditioning employment actions for mainstream political views or support of candidates would certainly create morale issues and would be more likely to run afoul of election statutes.
(2) As long as the policy isn’t targeted towards unions in language or enforcement.
We have received many questions from employers about the situation where an employee says that he or she cannot wear a mask as required by an employer. There are several approaches within an employer’s rights to deal with this mask issue. First, there is a great deal of misinformation about masks. OSHA has released a helpful Q&A regarding the safety of medical and surgical masks specifically: https://www.osha.gov/SLTC/covid-19/covid-19-faq.html. Depending on your workforce, you may want to affirmatively make this a positive talking point in a pre-shift or other regular meeting, or simply to have it readily available on an as-needed basis.
Next, if employees do articulate a specific medical inability to wear a mask, an employer has the right to require that the employee provide medial substantiation of the employee’s limitation from wearing masks or other face coverings.
This includes the right to require that the medical substantiation identify whether the issue is any covering, the density of the covering, or the fabric used for the covering. Furthermore, the employer should ask for the employee’s healthcare provider to state what accommodation, if any, can be made for the employee in lieu of the face covering.
Let’s assume that the employee simply cannot wear a face covering. At this point, the employer evaluates whether there is some form of accommodation available where the employer’s infection control prerogatives remain in place. These can include regular mask breaks where an employee is permitted to go outside or some other designated area and lower his/her mask; temporary transfer to an open position where a mask is not required; or telework. Any sort of physical reassignment of the place where work is done or job transfer does not have to be permanent; and, in the case of a job transfer, the job the employee is transferred to may pay less.
If the employer ultimately concludes that no accommodation is possible, the employer is not required to permit the employee to work without a face covering where it would negatively affect the health and safety of co-workers and/or consumers. In this situation, the employer has the right to tell the employee that until either the employer’s face covering policy changes or the employee’s limitations end need for accommodation change, the employee will be placed on a leave of absence, which may be without pay.
During that time, the employer will move forward with filling the employee’s position. If the employee at some point is able to return to work with a different or no accommodation, the employee should notify the employer and the employer at that time will evaluate its staffing needs. The employer may issue the employee a COBRA notice and either leave the employee alone indefinitely or provide the employee with a follow up date months into the future, if by which the employer does not hear from the employee, the employer will consider the employee separated from the organization.
Our attorneys are happy to assist with requests for medical substantiation, as well as other mask issues.
Lawsuits have already begun alleging that the manner in which employers handled COVID exposure resulted in serious injury or death to employees. For example, in the case of Iniguez v. Aurora Packing Company, the estate of the wife of a butcher filed a lawsuit against her husband’s employer, a meat packing company. The suit claims that the husband contracted COVID-19 while at work and transmitted the disease to his wife, who died. The lawsuit claims that the employer knew COVID-19 was spreading at its facility but did nothing to mitigate the risk. The lawsuit alleges the employer was negligent in failing to notify employees of the spread of the virus, negligent in failing to implement an infectious disease control program that followed CDC and other healthcare guidelines, and failed to monitor employee exposure to COVID-19.
In the case of Montgomery v. Peruvian Senior Living, LP, the plaintiffs were the family members of a deceased employee who worked at the residential care facility. The plaintiffs allege that the employer was grossly negligent in not communicating to its employees which residents had COVID-19 and requiring employees to sit with COVID19 positive residents for extended periods of time without protection. The suit alleges that the employer breached its duty to warn, did not provide adequate persona protective equipment, failed to implement safety protocols and failed to take other steps to remove the harm of COVID.
In many situations where COVID was transmitted at the workplace, the employer’s argument in defense of litigation is that it is covered exclusively by the remedies under workers’ compensation. In several states, workers’ compensation does not apply if the employer’s actions were willful or grossly negligent. This is particularly true in circumstances where employees work at locations such that social distancing is not possible, or where employers in general did not implement the three basics to protect from the spread of COVID: face coverings, frequent hand washing, and social distancing.
For many employers, the telework experiment necessitated by COVID-19 has been a surprising success. Many are considering whether to continue the telework option for at least a portion of their workforce. One of the lingering concerns, however, is how best to track time for non-exempt workers who are away from the physical workplace.
Under the Fair Labor Standards Act, employers are obligated to pay non-exempt employees for all time worked even if the work was not requested by the employer or even if performed against the employer’s express direction (such as a no overtime rule). If the employee does not report the time (such as by a timecard), but the employer has “reason to know” of the work, the employer must still pay for the time.
This month, the Department of Labor issued a Field Assistance Bulletin (guidance for its enforcement investigators) setting out its position on unreported time by teleworking employees. An employer must pay for any time of which it has actual or constructive knowledge. For telework and remote work employees, the employer has actual knowledge of the employees’ regularly scheduled hours; it may also have actual knowledge of hours worked through employee reports or other notifications.
An employer may have “constructive knowledge” of additional unscheduled hours worked by their employees if the employer should have acquired knowledge of such hours through reasonable diligence. One way an employer generally may satisfy its obligation to exercise reasonable diligence is by establishing a reasonable process for an employee to report uncompensated work time. For this to be reasonable, the employer cannot discourage or impede accurate reporting and the employer must compensate employees for all reported hours of work.
Here is where DOL offers employers some peace of mind. If an employee fails to report unscheduled hours worked through such a procedure, you are generally not required to investigate further to uncover unreported hours. Though an employer may have access to non-payroll records of employees’ activities, such as records showing employees accessing their work-issued electronic devices outside of reported hours, reasonable diligence generally does not require the employer to undertake impractical efforts such as sorting through this information to determine whether its employees worked hours beyond what they reported.
While you cannot turn a blind eye to signs the employee is working unreported time, you need not comb through their electronic trash to determine whether they are. To take advantage of this presumption, however, you must have a reasonable process for reporting the unscheduled time.
On August 6, the EEOC announced that it will begin issuing right to sue notices from its backlog of thousands of charges, beginning with the charges that are the oldest. The EEOC’s fiscal year ends on September 30, so we expect a flood of dismissals between now and September 30. One of the factors Congress considers in its funding of the EEOC is the number of charges processed and closed. Thus, the EEOC wants to finish the fiscal year with a high-level trend of charge closures. If you have a pending charge, a dismissal may occur.
With these dismissals, we also expect a substantial increase in employment litigation. As lawyers that represent employers, the decline in litigation filings during the March to current time frame has not adversely affected our workload, because we have had so many other issues arise that are COVID-related. Plaintiff’s attorneys have not been so fortunate. If plaintiffs’ attorneys cannot sue or process cases, you know what the outcome is in terms of what kind of the meal they can put on their dinner table. So, with the increase of right to sue notices, we expect a substantial increase in employment litigation.
One final note about the EEOC involves the Commission’s review of its conciliation process. If the EEOC concludes there is “cause” to believe discrimination occurred, the statutes require the EEOC to engage with the employer in a conciliation process. Only 40% of conciliation processes are successful. In our view, a reason for that is because the EEOC refuses to share information about why it reached its determination and takes unreasonable negotiating positions.
The EEOC recently held a town hall to consider the opportunity for more conciliations. The EEOC is focusing on transparency with the employer and flexibility in its bargaining positions. Both are welcome. Too often, the EEOC has required that employers play “pin the tail on the donkey” about evidence the EEOC reviewed to issue the “cause” determination.
As August comes to a close, many employers are anxious that with Fall will come flu season, placing employers in the position of battling staffing challenges and employee health issues from two dueling infections. While healthcare employers have long mandated flu vaccines for employees, many non-healthcare employers are considering imposing flu vaccine requirements for the first time. Keep reading for consideration and employee talking points about requiring or encouraging a flu vaccine.
Under federal law, employers may impose reasonable vaccine requirements. This means that while vaccines may be required, in most situations there should be exemptions or accommodations made for bona fide religious or health objections pursuant to Title VII and the Americans with Disabilities Act. Employees asserting disability-related reasons have the highest level of protection. Some states may permit other reasons an employee may be exempted from a vaccine requirement, so you should always review with your employment counsel the impact of state law on policy decisions like this one.
Healthcare employers have been requiring the flu vaccine for years now (some of them having been legally mandated to do so), and we can expect that the practices that have worked in healthcare will generally suffice for most other businesses. When healthcare employers receive a valid religious or health-related request from an employee to avoid the flu vaccine, healthcare employers have generally accommodated the employee by requiring them to wear a face mask while working.
Employers in other industries will need to plan proactively to decide if they will encourage or mandate flu vaccines this year (1).
Factors to consider include:
Employers should work with legal counsel to assess how these factors line up for their particular work setting and population.
Nationally, a slight majority of U.S. adults do not receive the flu vaccine each year. For the 2018-19 flu season (the most recent flu season for which statistics from the CDC are available), only 45.3% of adults got the vaccine. For Alabama, the figure was 44.8%. However, among most working-age adults (age 18-64) in Alabama, the vaccination rate was just 37.4% (nationally, that figure is 39.0%). Because a healthy (or not-so-healthy) proportion of adults opt out of the flu vaccine each year, any employer mandating the flu vaccine should be prepared to tackle morale issues and a number of requests for accommodation, many of them referencing a mix of religious, health-related, and “personal liberty”-related reasons.
Finally, since the healthcare environment has established that masks are the standard accommodation, if an employer is already requiring face masks, will it feel that the morale costs of mandatory vaccinations were worth it if a not insignificant of employees remain unvaccinated under religious or medical excuses?
Whether an employer decides to encourage or mandate the flu vaccine, it is important to be able to articulate the importance of vaccination and combat internet meme pseudoscience. If the decision is made to mandate the vaccine, there should be messaging from the top, consistently enforced by managers, as to the rationale for this decision. For example, an employer might want to look to its attendance statistics to see if leave balances are on average lower this year than in prior years, and use those average numbers to encourage employees to think about the consequences of getting the flu. Also, employers should publicize the details for providers where their employees can obtain free or reduced cost flu vaccinations.
While it’s not unreasonable to expect that the legal guidance for a still-hypothetical COVID-19 vaccine would track the flu shot guidance, that expectation is underwritten by assumptions, including that a COVID-19 vaccine would have similar efficacy and similarly established medical reasons that would contraindicate its use, and also that no applicable government agency would publish guidance approving employers to mandate the vaccine for employees in shared workspaces except in narrow and specifically-defined health circumstances. All three assumptions and many others (2) could easily and foreseeably be challenged by reality.
In any event, there will likely be ample time between the discovery of any COVID vaccine and its manufacture in sufficient quantities for widespread use for those parameters to be better defined.
(1) For what it’s worth, the EEOC prefers employers to encourage influenza vaccination, rather than mandate. Check the information here. (Q.13)
(2) For example, will there be a federal tort immunity statute passed, and will it specifically cover employers requiring a COVID vaccine? As there is far more than one vaccine in development, will there be more than one vaccine to choose from, and could employers have valid reasons for requiring one vaccine over another?
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