IN THIS ISSUE:
December 8, 2009 Breakfast Meeting:
Introducing our December Legal Panel
InTheMix: Vendor/Mixer Fair
Wrap UP
LEGAL BRIEF:
Planning for a Pandemic:
The EEOC Issues Guidance
Member Spotlight:
Jamie Naughton
of Zappos.com
PLUS:
Happy Thanksgiving from SNHRA
(In case you’re wondering, our Pumpkin Patch Twins are our
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This month's breakfast meeting will present our ever-popular December Legal Panel. Top labor lawyers from Southern Nevada will be discussing current HR legal topics exclusively for our Members and Guests.
Click here to read the bios of our distinguished lawyers on the Panel:
Patrick Hicks | Littler
Shaun Haley | Fisher & Phillips LLP
Jen Sarafina | Kamer Zucker Abbott
Gary C. Moss | Jackson Lewis LLP
RSVP for our December 8 breakfast meeting by clicking here.
We would like to thank all of our Members and Guests who attended inTheMix and all of our vendors for making our inTheMix mixer/vendor fair event a huge success.
We would also like to thank the New Hard Rock Cafe on the Strip for being our co-event sponsor...The Food and the Beverages were great! We encourage all of our Members and Guests to remember the Hard Rock Cafe on the Strip for their meetings and celebrations. We hope that all of you had a great time and that you will be ready to join us at our next SNHRA mixer.
By: Patrick H. Hicks and Jeanine Navarro. Patrick H. Hicks is the Founding Shareholder of Littler Mendelson’s Las Vegas and Reno offices. He can be reached at phicks@littler.com. Jeanine Navarro is an Associate in Littler Mendelson’s Las Vegas office. She can be reached at jnavarro@littler.com.
Planning for a Pandemic: The EEOC Issues Guidance
Each year an average of 36,000 people die and over 200,000 people are hospitalized in the United States due to flu-related complications. In addition to seasonal flu, an outbreak of H1N1 influenza has greatly increased the number of people at risk this flu season.
The outbreak of the H1N1 virus has reached pandemic levels, prompting government and private action. On October 23, President Obama declared a National Emergency in response to the H1N1 influenza pandemic. Federal, state, and local governments have created comprehensive plans setting forth public health strategies and guidance for communities, businesses, and individuals to plan for, and respond to, influenza outbreaks. Many employers are devising individualized plans to help prevent the spread of the virus in their workplace and to ensure continued operations in the event of an outbreak affecting their employees.
Employers must pay careful attention to the legal implications of their actions in implementing flu prevention and containment measures. Recently, the United States Equal Employment Opportunity Commission (EEOC) published guidance for employers on how to handle pandemic influenza without implicating the Americans with Disabilities Act (ADA), which prohibits disability-based discrimination ("EEOC Guidance"). The EEOC also issued a notice reminding employers to avoid national origin discrimination in dealing with H1N1. In addition to the discrimination laws, employers' actions, or inactions, may implicate other laws such as the Occupational Safety and Health Act (OSHA); the Family and Medical Leave Act (FMLA); privacy laws; workers' compensation, and disability benefits laws.
EEOC Guidance
The EEOC Guidance sets forth the relevant ADA principles and explains, in a question and answer format, how these principles will be applied during various stages of a pandemic. The EEOC Guidance is not legally binding on employers, but it sheds light how the EEOC will interpret a "direct threat," a "reasonable accommodation," an "undue hardship," a "disability-related inquiry" and a "medical exam" when evaluating employer practices and whether those practices are discriminatory or justifiable under the circumstances of a pandemic outbreak.
Most importantly, the EEOC Guidance recognizes that such analyses and determinations may be modified depending on the severity and pervasiveness of the pandemic. The EEOC Guidance acknowledges that the pandemic may become so severe that employers' interests in protecting themselves and their businesses from the spread of disease may outweigh employees' rights under the ADA and other antidiscrimination laws. The EEOC Guidance states that should the World Health Organization (WHO), the Centers for Disease Control and Prevention (CDC), or other objective health organizations determine that certain precautionary measures are warranted due to the escalation of the severity or pervasiveness of the pandemic, their determinations would be controlling, and the EEOC Guidance will be modified accordingly.
The EEOC Guidance enumerates certain employer practices that are permissible during the various stages of a pandemic. For example, during a pandemic, employers may send home employees who are exhibiting flu-like symptoms and question employees who report illness regarding the nature of their symptoms. If the pandemic influenza is mild, the inquiries and actions would not be considered disability-related. If the pandemic is severe, even if disability-related, the inquiries and actions would be justified by a reasonable belief based on objective evidence that the influenza poses a direct threat.
Despite the interests of employers in ensuring business continuity and protecting their employees, there are certain things that employers are prohibited from doing. For example, before an actual pandemic, employers may not question employees specifically about any medical conditions predisposing them to complications from influenza, as this would be a "disability-related inquiry." Even during a pandemic, employers may not question employees who do not exhibit flu-like symptoms about any such medical conditions. Employers are also prohibited from taking employees' temperatures to determine whether they have a fever, as this would qualify as a "medical examination" under the ADA. However, the EEOC Guidance acknowledges that the aforementioned actions may become permissible if the severity and pervasiveness of a pandemic, asdetermined by a local, state, or federal health authority, poses a direct threat and therefore warrants such action.
Mandatory Vaccinations
One effective means of preventing and containing the spread of influenza is vaccination against the virus. There has been a wave of controversy, however, surrounding the H1N1 vaccine. In fact, a group of health care professionals have filed suit in Washington, D.C., asking courts to stop the distribution of the H1N1 vaccine, which they alleged was approved too quickly by the Food and Drug Administration (FDA), without adequate testing for safety and effectiveness. Because of this public uproar, and general fears about getting painful injections, employees may be resistant to getting vaccinated.
The EEOC Guidance warns employers that they may not compel all employees to get vaccinated. While an employer may generally be able to impose mandatory vaccination requirements, it must provide exemptions for certain employees. For example, under the ADA, an employee who has a disability preventing him or her from getting a flu vaccine, such as a severe allergy to eggs or an underlying medical condition that might be compromised by the flu vaccine, may be entitled to an exemption from a vaccination requirement, which would be considered a reasonable accommodation, barring any undue hardship to the employer. Under the ADA, an "undue hardship" would be a "significant difficulty or expense."
Similarly, under Title VII of the Civil Rights Act (Title VII), an employee may be entitled to an exemption from vaccination because of a sincerely held religious belief, practice, or observance that prevents the employee from getting the influenza vaccine. This also would be considered a reasonable accommodation under Title VII, barring an undue hardship to the employer. Under Title VII there is a lower standard than under the ADA for establishing an "undue hardship," which, under Title VII is "more than de minimis cost" to the operation of the employer's business.
In addition to exposure to discrimination and failure to accommodate claims, employers that adopt vaccination programs, whether mandatory or voluntary, face the risk of workers' compensation claims for injuries resulting from vaccinations. On the other hand, an employer that does not adopt measures to prevent the spread of the influenza virus at work adequately may face liability for failure to comply with its duty to provide a safe workplace under OSHA.
Other Legal Risks for Employers
Employers will face many challenging issues in preparing for and dealing with an influenza pandemic. As discussed above in connection with the EEOC Guidance, employers may be restricted in screening employees so as not to violate the ADA, which prohibits employers from making inquiries that will elicit information about a disability and from conducting medical examinations, except under limited circumstances. Employers may also risk discrimination claims under Title VII if employees of certain national origins are singled out because of an irrational fear that they have been exposed to the virus or if employees argue that mandatory vaccines violate their religious beliefs.
In addition to liability issues, employers will face many challenging HR issues, such as implementing telecommuting policies and dealing with absenteeism, both voluntary and involuntary. In employing such practices, employers must consider both the practical challenges of choosing effective means to ensure business continuity, as well as the obstacles involved in ensuring that all adopted policies and procedures are enforced in a nondiscriminatory manner. Employers will have to deal with disability benefits rights, FMLA leave rights, OSHA laws, workers' compensation and other common law legal restrictions and entitlements. Accordingly, employers should carefully review all policies before they implement them.
Q.How did you hear about SNHRA?
A. Who hasn’t heard of SNHRA?
Q. Why did you join SNHRA?
A. To keep up with the latest issues facing our industry in the Southern Nevada area.
Q. Tell us about Zappos…
A. Zappos.com is known for selling Apparel, Shoes, Handbags, Housewares and much more, but the best part about Zappos is the amazing people who work here and the amazing culture that allows us to express who we are in the work we do.
Q. Tell us a little about your role with Zappos ...
A. I have been with Zappos for almost 5 years. My department is called Cruise Ship Operations. We work under the HR umbrella and focus on employee happiness. This includes the employee programs, perks, and incentives, as well as community involvement, events, and employee communications. We work to keep fun an everyday staple in our workplace.
Q. What benefits of membership in SNHRA do you enjoy the most?
A. Knowing there is a network of resources available for assistance, best practices and sharing of strategies with those facing similar opportunities and challenges.
Q. What challenges are you facing as an administrator in the economic
downturn?
A. The biggest issue is always trying to do more with less. We want to make sure our employees have everything they need to do their job well along with making recognition and motivation a top priority. In times like these we really need to be creative on how to have the same impact with a smaller budget. Luckily for me fun doesn’t have to be expensive. With a little bit of creativity we have been able to do a lot with very little expense.
Q. What are your favorite things to do in Las Vegas?
A. I have a 3 year old daughter so I like to do anything that keeps her entertained. We go to many of the local events and art shows. Vegas isn’t known for being exactly family friendly but I disagree. I try to keep her well connected to the community and the great things Southern Nevada has to offer.
Q. What was one of the last shows you’ve seen on the strip that you enjoyed?
A. I saw Terry Fator’s show just this past weekend. It was amazing. I watched him on America’s Got Talent so I knew he was good but he surpassed all my expectations. I highly recommend it!
Q. Your company recently won one of our “Best Places to Work in Southern Nevada (sm)” awards…What is your firm doing to continue to be a Best Place to Work during these difficult economic times?
A.We were so excited to receive the award! Culture is always our top priority. Right now we are really diving into the science behind happiness and how we can use that information to help our employees find a higher level of happiness and meaning in their jobs.
12 explanations that employees might say when
they’re caught sleeping at their desks:
"They told me at the blood bank this might happen."
"This is just a 15-minute power nap like they raved about in that time management course you sent me to."
"Whew! Guess I left the top off the liquid paper. You probably got here just in time."
"This is in exchange for the six hours last night when I dreamed about work."
"It’s okay ... I’m still billing the client."
"I wasn’t sleeping! I was meditating on the mission statement."
"I was testing my keyboard for drool resistance."
"I was doing a yoga exercise to relieve work-related stress."
"Rats! Why did you interrupt me? I almost had figured out a solution to our biggest company problem."
"The coffee machine’s broken."
"Someone must have put decaf in the wrong pot."
"Amen."
Top HR Book Titles That Never Got Published
Concealed Weapons, OSHA and You
Temps and Asbestos Cleanup
How to Improve Retention Through the Use of Barbed Wire
A Guide to Interoffice Dating
Punish Them with Whips and Chains
A 40-Hour Work Week and Other Fairy Tales
Martha Stewart's Hand-Me-Down Rewards
Office Politics and the Return of the Gladiator Arena
Creatively Finance Your Company into Chapter 11
From www.coolavenues.com
We hope that all of our Members and Friends find the articles contained within R E S O U R C E S useful in your HR environment.
Many thanks to all of you who responded to our requests
for articles and research for this newsletter.
If you have anything you wish to contribute to the next issue, please do not hesitate to email Barry Lippold at blippold@marcison.com.
Contact Barry Lippold at 702-281-6528 for pricing and availability
to sponsor future R E S O U R C E S editions
Newsletter: 2009 Edition 11