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Cal/OSHA Encourages Following New Guidance On Face Masks Indoors

Cal/OSHA Encourages Following New Guidance On Face Masks Indoors

Aug. 25, 2021 — In addition to the requirements of the COVID-19 Prevention Emergency Temporary Standards (ETS) and as a best practice, CalOSHA encourages employers and workers to follow the recent update from the California Department of Public Health (CDPH) recommending that all individuals wear face coverings while indoors regardless of vaccination status. CDPH recently […]

First COVID Related Remote Work ADA Discrimination Lawsuit Filed By EEOC

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First COVID Related Remote Work ADA Discrimination Lawsuit Filed By EEOC

The U.S. Equal Employment Opportunity Commission, EEOC, has filed a remote work ADA discrimination lawsuit in what has been called a first-of-its-kind case that could decide businesses’ obligation to allow employees to work from home as a disability accommodation. ISS Facility Services, Inc., a Denmark-based workplace experience and facility management company with U.S. headquarters in […]

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Delaying injured employee’s training was reasonable accommodation

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Delaying injured employee’s training was reasonable accommodation

By Marjorie Johnson, J.D. — An employer provided a reasonable accommodation to a recently hired employee who had suffered an ankle injury by allowing her to delay her training until several days after her temporary restrictions were lifted. It was not required to instead have a trainer come down to the first floor to provide […]

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Insurers no longer waiving costs for COVID-19 treatment, employer waivers may also expire

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Insurers no longer waiving costs for COVID-19 treatment, employer waivers may also expire

By Rebecca Mayo, J.D. and WK Editorial Staff — Testing and vaccination for COVID-19 must be provided at no cost to individuals, however there is no federal mandate requiring insurers to waive out-of-pocket treatment costs for COVID-19. Early in the pandemic, the majority of private health plans waived out-of-pocket costs for COVID-19 treatment, but a survey […]

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Unvaccinated Employees Face Increasing Pressure From Employers — News Roundup

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Unvaccinated Employees Face Increasing Pressure From Employers — News Roundup

Unvaccinated employees are facing increasing pressure from employers to get vaccinated for COVID-19 or face firing. Employers Apply Different Requirements to Vaccinated and Unvaccinated Workers From SHRM – Some employers are applying selected workplace rules only to unvaccinated workers in an effort to protect employees from the COVID-19 delta variant, but are inadvertently intensifying conflicts […]

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Ridgewood Decision – In Case You Forgot How Anti-Union Trump’s Judges Are

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Ridgewood Decision – In Case You Forgot How Anti-Union Trump’s Judges Are

In 2019, I wrote about how the NLRB’s decision in Ridgewood Health Care Centertook away one of the few effective remedies for employer misconduct.  This was a case where a new employer took over a business and refused to hire the predecessor’s employees to avoid a bargaining obligation with the workers’ union.  The old remedy […]

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Americans With Disabilities Act Anniversary July 26, 2021

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Americans With Disabilities Act Anniversary July 26, 2021

The Americans With Disabilities Act Turns 31 Today. On July 26, 1990, then-President George H.W. Bush signed into law the Americans with Disabilities Act, which prohibits discrimination against people with disabilities in employment, transportation, public accommodations, commercial facilities, telecommunications, and state and local government services. This Facts for Features provides a demographic snapshot of the […]

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Video game company Activision Blizzard sued over ‘frat boy culture’ allegations

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CaliforniaVideo game company Activision Blizzard sued over ‘frat boy culture’ allegationsCalifornia’s DFEH files suit after investigation reveals discrimination against women Sarah Betancourt@

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High Court upholds Auer doctrine allowing agency interpretations of regulations

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By Ronald Miller, J.D.

In a case that has broad implications, including in the labor and employment arena, the Supreme Court declined to overturn the Auer doctrine, which gives deference to an agency’s reasonable reading of its own genuinely ambiguously regulations.

A unanimous Supreme Court vacated a circuit court decision finding that a ruling of the Board of Veterans’ Appeals was entitled to Auer deference. While declining to overturn Auer, the High Court determined that on remand, the appeals court must reconsider whether Auer deference is warranted. The Court observed that for nearly a century, Congress has let this deference regime work side-by-side with both the Administrative Procedure Act and the many statutes delegating rulemaking power to agencies. Thus, the Court concluded that it would need a particularly “special justification” to reverse Auer. In this instance, the Court concluded that the plaintiff offered nothing to persuade it that courts should take over agencies’ expertise-based, policymaking functions. Chief Justice Roberts, Justice Gorsuch, and Justice Kavanaugh each filed separate concurring opinions (Kisor v. Wilkie, June 26, 2018, Kagan, E.).

In 1982, a Vietnam War veteran sought disability benefits, alleging that he had developed post-traumatic stress disorder (PTSD) from his military service. The Department of Veterans Affairs (VA) denied that request, but in 2006, the plaintiff moved to reopen his claim. This time, the agency agreed that he was eligible for benefits, but it granted benefits only from the date of his motion to reopen, not from the date of his first application. The Board of Veterans’ Appeals affirmed the retroactivity decision based on its interpretation of an agency rule governing such claims.

Applying the Auer doctrine (Auer v. Robbins, 519 U.S. 452 (1997)), the Federal Circuit affirmed the agency ruling. Under that doctrine, the Supreme Court has long deferred to an agency’s reasonable reading of its own genuinely ambiguously regulations. The appeals court concluded that the VA regulation at issue was ambiguous, and it therefore deferred to the Board’s interpretation of the rule.

The plaintiff asked the Supreme Court to overrule Auer, as well as its predecessor Bowles v. Seminole Rock & Sand, 325 U.S. 410 (1945), discarding the deference that those decisions give agencies.

The Supreme Court noted that a court should not afford Auer deference unless, after exhausting all the “traditional tools” of construction, the regulation is genuinely ambiguous. If genuine ambiguity remains, the agency’s reading must still fall “within the bounds of reasonable interpretation.” The court must also make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight. The agency interpretation must in some way implicate its substantive expertise. Finally, an agency’s reading of a rule must reflect its “fair and considered judgment.”

Still, the Court determined that a remand was necessary in this case for two reasons. First, the appeals court jumped the gun in declaring the VA’s regulation ambiguous before bringing all its interpretative tools to bear on the question. Second, the appeals court assumed too quickly that Auer deference should apply in the event of genuine ambiguity, rather than assessing whether the interpretation is of the sort that Congress would want to receive deference.

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New Jersey State Police could assert immunity in ADA verdict, court revives parallel claim, awards $500K

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By Harold S. Berman J.D.

Even after litigating through trial and an unfavorable verdict, the New Jersey State police could exercise sovereign immunity from a policeman’s ADA claim, ruled the New Jersey Supreme Court. However, the court reinstated the employee’s parallel failure-to-accommodate claim under the New Jersey Law Against Discrimination (NJLAD), which was supported by the same evidence, did not offer sovereign immunity, and had been improperly dismissed by the trial court. The state high court remanded to the trial court with instructions to enter judgment of $500,000 in favor of the policeman on the NJLAD claim (Royster v. New Jersey State Police, January 17, 2017, Solomon, L.).

Assignment didn’t accommodate medical condition. The employee, a former New Jersey State policeman, suffered from colitis, which required that he have immediate access to restroom facilities. After returning from medical leave to treat this condition, the employee was assigned to a crime unit that required him to conduct surveillance from a car. The state police kept him on surveillance duty for seven months, even though he repeatedly requested to be transferred to a position where he had access to a restroom.

Lawsuit. The employee filed suit against the state police, asserting, among other claims, that it failed to make reasonable accommodation for his medical condition in violation of the ADA and the NJLAD, and for retaliation under the ADA, NJLAD, and the New Jersey Conscientious Employee Protection Act (CEPA). The state trial court dismissed several claims, leaving only the CEPA retaliation and ADA failure-to-accommodate claim for trial. The jury awarded the employee $500,000 in damages on the ADA claim.

JNOV denied. The state then moved for judgment notwithstanding the verdict, asserting for the first time that the trial court lacked subject matter jurisdiction over the ADA claim because the police, as a state actor, enjoyed sovereign immunity. The employee countered that it was unfair to allow the police to raise a sovereign immunity defense after the jury’s verdict, and asked the trial court to retroactively convert the remaining ADA claim to an NJLAD claim since the claims and arguments under both statutes were identical. The trial court denied the employee’s request, and also denied the state police’s motion for JNOV, holding that the state police were estopped from asserting lack of jurisdiction after waiting over seven years and the completion of trial. The state police appealed, and the Appellate Division reversed, holding that because the state’s sovereign immunity extended to the state police, the sovereign immunity defense could be raised at any time, and the police had not waived sovereign immunity through its litigation conduct. The Supreme Court then granted the employee’s petition for certification, considering whether the state police were entitled to sovereign immunity on the policeman’s ADA claim, and whether it had waived that immunity.

Sovereign immunity for ADA claim not waived. The court could not nullify sovereign immunity for federal claims under the ADA, regardless of the state’s delay in raising the defense. The state police were an arm of the state, and because the state legislature had not consented to be sued under the ADA, the police enjoyed sovereign immunity from the ADA claim. Nor did the state police waive sovereign immunity through its litigation conduct. Although a state that is involuntarily brought into litigation in state court can waive its immunity by removing the case to federal court, New Jersey courts have never declared that the state may waive its immunity from suit in state court through litigation conduct. The court also found that the state police could not be estopped from raising its sovereign immunity defense, as it never misrepresented its status as a state actor, nor affirmatively represented that it planned to waive immunity simply by defending the claims against it.

NJLAD claim improperly dismissed. The court found that the employee’s NJLAD claim for failure to accommodate, under which the state police did not have sovereign immunity, was improperly dismissed. The trial court had found that a prima facie case under the two statutes were identical, yet separated the two claims when the state police moved for a directed verdict. The trial court then applied CEPA’s waiver provision to both the NJLAD retaliation and failure to accommodate claims. However, the CEPA waiver provision applied only to those causes of action requiring a finding of retaliatory conduct that would be actionable under CEPA. The CEPA waiver did not apply to the NJLAD claim, which was premised on different facts.

NJLAD claim reinstated. The NJLAD failure-to-accommodate claim was identical to the ADA claim. Because there was sufficient evidence to support the policeman’s ADA claim, the NJLAD claim should have survived the directed verdict motion. Although the employee had acquiesced to dismissal of the NJLAD claim, which was not precluded by sovereign immunity, the court could not ignore that the dismissal was mistaken. The state police’s belated assertion of sovereign immunity was not made in bad faith, but the interests of justice required reinstatement of the NJLAD failure to accommodate claim. Because the jury awarded $500,000 for the ADA failure to accommodate claim, the court found that it would have given the same award for the parallel NJLAD claim had it not been dismissed, and so remanded to the trial court to mold the jury’s ADA award into an NJLAD award.

Concurrence/dissent. One Justice concurred in the judgment, but believed that the state police’s litigation conduct did constitute a waiver of sovereign immunity and that holding that a state’s litigation conduct could constitute an exception to the sovereign immunity doctrine would be a reasonable adaptation of the common law.

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