A year ago, the Supreme Court deemed it unlawful to otherwise discriminate against individuals based on their sexual orientation or gender identity in Bostock v. Clayton County, Georgia, a decision that has become a historic milestone for LGBTQ+ rights. The Court explained that an employer who discriminates based on sexual orientation or transgender status necessarily discriminates based on sex because the discrimination is based on the masculine or feminine stereotypes assigned to a specific sex. The U.S. Equal Employment Opportunity Commission (EEOC) and other courts have interpreted Bostock to extend the same Title VII prohibition against sex discrimination and harassment to cover sexual orientation and gender identity discrimination and harassment.

With COVID-19 cases on the rise due to the highly transmissible Delta variant, federal and local government views on masks are once again evolving. Employers may need to revise existing policies to reflect these developments.

On July 29, President Biden announced new vaccination guidelines for federal government employees and onsite government contractors. Every federal government employee and every government contractor who works on government property will be required to disclose their vaccination status. Any such employee or contractor who does not attest to being fully vaccinated will be required to wear a mask on the job at all times (no matter where they are physically located), to physically distance from all other employees and visitors, to comply with a weekly or twice-weekly COVID-testing regimen, and generally will be prohibited from travelling for work.

On July 22, 2021, the Office of Federal Contractor Compliance Programs published a proposed rule to increase the minimum wage for federal contractors and subcontractors to $15 per hour—a $4.05 increase over the current $10.95 per hour minimum wage. The $15 minimum wage would only apply to workers employed on or in connection with a federal contract, and it will only apply to “new” contracts—those entered on or after Jan. 30, 2022, or existing contracts that are renewed or extended on or after Jan. 30, 2022. And, the minimum wage will be recalculated annually, beginning in January 2023, based on the Consumer Price Index.

Foulston’s popular HR Training series returns, offering timely, relevant updates on employment law for HR pros, business owners, and managers. Six webinars and one in-person/videoconference workshop between August and December deliver a range of current topics presented by Foulston Siefkin employment attorneys. All sessions will be submitted for HRCI and SHRM credit. Cost is $50 per webinar and $170 for the in-person workshop.

• OSHA Compliance (Webinar)
  Aug. 24, 2021, noon to 1:00 p.m.
   
• Performance Management (Webinar)
  Sept. 1, 2021, noon to 1:00 p.m.
   
• LOA Toolkit: Managing Complex Leave Scenarios (Webinar)
  Sept. 14, 2021, noon to 1:00 p.m.
   
• Benefits Roundup (Webinar)
  Oct. 5, 2021, noon to 1:00 p.m.
   
• HR 101: Understanding the Basics (*In-person workshop in Foulston’s Wichita office; in-person by videoconference in Kansas City and Topeka offices)
  Oct. 27, 2021, 1:00 to 4:30 p.m.
   
• Undoing the Regulatory Rollback: The Biden Regulatory Agenda (Webinar)
  Nov. 16, 2021, noon to 1:00 p.m.
   
• Put a Bow on It: Wrapping Up All Those 2021 Gifts (Webinar)
  Dec. 14, 2021, noon to      Continue Reading...

On July 6, Kansas Gov. Laura Kelly issued an executive order expanding parental leave for Kansas state employees. Primary caregivers will now receive an extra two weeks of leave, and secondary caregivers will receive one extra week. Importantly, Kansas’s parental leave for state employees is paid at 100% of the employee’s regular salary.

Kansas employees first received paid leave under former Gov. Jeff Colyer in Nov. 2018. Previously, primary caregivers received six weeks of leave, and secondary caregivers received three weeks. Now, primary caregivers will receive eight weeks of leave, and secondary caregivers will receive four weeks. Gov. Kelly’s new executive order also provides the same leave to new foster parents, who previously would not have qualified.

The Tenth Circuit Court of Appeals, which has jurisdiction over Kansas Federal Courts, has clarified an employer’s obligations under the Americans with Disabilities Act (“ADA”) when an employee requests to work remotely. Specifically, the court ruled that employers are not obligated to provide accommodations for non-work-related barriers, such as transportation issues.

The case arose after a clinical dietitian became legally blind and could no longer make the 120-mile round-trip commute to and from work. The hospital granted the employee’s request for a flexible work schedule to accommodate her transportation struggles, permitting her to work part-time from home, but requiring her to work a majority of her hours on-site. After 15 months, the hospital notified the employee that it would be ending the flexible work schedule, because her physical presence at the hospital was unpredictable and patient satisfaction had suffered. The employee then requested to telecommute full-time. The hospital denied her request, stating that her position required over four hours of in-person face-to-face interactions per day. The hospital eventually terminated employment, explaining that the essential functions of the position could not “be accommodated through telecommuting and irregular and unpredictable physical presence at the hospital.” 

The Tenth Circuit affirmed the district court’s decision, which held that the employee’s requests for a flexible schedule without a set schedule or, in the alternative, to telecommute full-time, were unreasonable. A requested accommodation is unreasonable if it asks the employer to relieve the employee of an essential function of his or her position. Here,      Continue Reading...

On June 21, 2021, OSHA issued its Covid-19 Emergency Temporary Standards (“ETS”). The ETS is aimed at protecting workers facing the greatest risk of COVID-19—those working in healthcare settings where COVID-19 patients may be treated. Employees working in healthcare services and healthcare support services includes a broad range of employees, outside of just a hospital setting.

The ETS requires employers to implement COVID-19 plans that include the designation of a safety coordinator, a workplace-specific hazard assessment, and policies and procedures to minimize the risk of transmission of COVID-19 to employees. Specifically, this includes patient screening and management plans, standard and transmission-based precautions, PPE, aerosol-generating procedures for those with COVID-19, physical distancing, physical barriers, cleaning and disinfection, ventilation, health screens and medical management, vaccinations, trainings, anti-retaliation policies, recordkeeping, and reporting work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.

Here are some of the additional considerations that employers should be considering:

1. At the outset, it is important to note there are numerous carveouts that exempt a wide range of healthcare providers from the ETS requirements. Employers should carefully assess these carveouts to ensure they are truly covered by the ETS.
    
2. OSHA will use its enforcement discretion for employers who are making a good faith effort to comply with the ETS. It is important to document compliance efforts with the ETS.
        Continue Reading...

In the Chambers USA 2021 law firm and attorney guide, Foulston Siefkin LLP is the only Kansas law firm receiving the highest ranking in Labor & Employment by the London-based research organization.

Overall, Foulston received Chambers’ highest ranking for six practice areas: Labor & Employment; Employee Benefits & Executive Compensation; General Commercial Litigation; Corporate Mergers & Acquisitions; Real Estate; and Tax.

The breadth and depth of Foulston's Labor & Employment and Employee Benefits practice are reflected in Chambers’ selection of six attorneys for individual recognition in their respective practice areas.

• Labor & Employment

• Employee Benefits & Executive Compensation

Fraudulent unemployment claims across the country have risen over the last year. Kansas has been hit particularly hard – in some of the opening weeks of 2021, Kansas received the third highest number of initial claims for unemployment benefits of any state, behind only California and Illinois. Some believe the high number of claims indicate that Kansas is experiencing a greater number of fraudulent claims than other states.

The Kansas Department of Labor recently divulged that the state’s unemployment insurance program paid what it believes to be around $140 million in fraudulent claim payments in 2020. The Kansas Department of Labor and Kansas lawmakers are analyzing multiple solutions to the issue, including an overhaul of the unemployment system and additional legal protections for employers.

Congress has passed, and President Trump is expected to sign, the Consolidated Appropriations Act, 2021, a large year-end appropriations bill that includes COVID-19-related stimulus and relief provisions in several key areas, including the PPP loan program, paid leave tax credits, unemployment benefits, and the Provider Relief Fund. Click here to see our issue alert discussing key highlights from the new legislation.

On December 16, the EEOC released new COVID-19 vaccine guidance. As predicted, the new guidance generally allows employers to require employees to receive COVID-19 vaccines. But, as the EEOC explained, employers that require employees to receive COVID-19 vaccines must make exceptions for disabilities and sincerely held religious beliefs, in accordance with the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964.  

• Employers may ask an employee for proof that he or she received a COVID-19 vaccine. But more probing follow-up questions to an unvaccinated employee “may elicit information about a disability and would be subject to the pertinent ADA standard that they be ‘job-related and consistent with business necessity.’”
   
• If an employer requires all employees to receive a COVID-19 vaccine, and an employee is unable to receive one because of a disability, the employer must show that an unvaccinated employee would pose a direct threat of “significant harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
   
• The following four factors are used to determine whether a direct threat exists: “the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.” The EEOC notes that      Continue Reading...

You know it’s the holiday season when the kids come home from college, the Griswolds take vacation, and Santa Claus comes to town. But for many, the most wonderful time of the year has become a cause for concern. With COVID-19 cases on the rise and family gatherings inevitable, you may be worried the virus will spread in your workplace faster than holiday cheer. Don’t have a blue Christmas—plan now to keep your workplace safe this season by revisiting your COVID-19 policies.