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Foulston Labor & Employment Team Recognized by Benchmark Litigation

In this year’s edition of the Benchmark Litigation Labor & Employment rankings, Foulston is listed as the only “highly recommended” firm in Kansas. In addition, nine Foulston attorneys were individually recognized as “Labor and Employment Stars”: Jim Armstrong; Vaughn Burkholder; Boyd Byers; Tara Eberline; Charles McClellan; Forrest Rhodes; David Rogers; Teresa Shulda; and Rachel Wetta. Benchmark Litigation’s rankings are based on research through extensive interviews with litigators, dispute-resolution specialists, and clients, in addition to examination of recent casework and professional peer and practitioner feedback. 

To learn more about Benchmark Litigation, visit www.benchmarklitigation.com.

Task Force Issues Vaccine Guidance for Federal Contractors

As President Biden announced under his COVID-19 Action Plan, the Safer Federal Workforce Task Force issued its Guidance for Federal Contractors and Subcontractors on September 24. The guidance has already been approved by the Office of Management and Budget.

President Biden’s executive order required certain government contracts to include a clause stating that the contractor and any subcontractors (at any tier) must, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force and approved by the Office of Management and Budget (the “COVID clause”). Below is a summary of the scope and implementation of the Safer Federal Workforce Task Force’s guidance:
President Biden’s Executive Order applies to all procurement contracts or contract-like instruments: (1) for services, construction, or a leasehold interest in real property; (2) for services covered by the Service Contract Act; (3) for concessions; (4) for the provision of services on Federal property for Federal employees, their dependents, or the general public (“covered contracts”). Notably, this definition does not cover contracts solely for the provision of products. The Executive Order further exempts, among others, subcontracts of covered contracts that are solely for the provision of products, as well as federal government grants.
Under the Task Force guidance, the COVID clause must be included in solicitations for covered contracts after October 15, 2021, and in all new covered contracts issued after November 14. For existing covered contracts, the COVID clause must be incorporated whenever a contractual      Continue Reading...
President Biden Announces Sweeping Vaccine Requirements for Employers

On September 9, President Joe Biden announced his COVID-19 Action Plan. The Plan, which includes two new Executive Orders to combat COVID-19 and the Delta variant, would require many employers to mandate that its employees be vaccinated. The mandates will not go into effect until government agencies issue regulations that more clearly explain the requirements. Potentially impacted employers should stay tuned for the upcoming regulations, prepare their workforce and policies for the impending requirements, and continue to monitor the legal landscape. 

Federal Employees
President Biden issued an Executive Order requiring federal government employees to be fully vaccinated by November 22, 2021, subject to exceptions as required by law (such as medical and religious reasons). 
Federal Contractors 
President Biden issued another Executive Order requiring all government contracts, subcontracts, extensions, and renewals issued after October 15, 2021, to include language requiring compliance with guidance to be published by the Safer Federal Workforce Task Force, which would include vaccine requirements for employees. The Task Force is set to publish guidance defining contractors, explaining safety protocols, and outlining exceptions by September 24, 2021, which must then be approved by the director of the Office of Management and Budget.
Private Employers with 100 or More Employees
The broadest component of President Biden’s Action Plan included an announcement that the Occupational Safety and Health Administration (OSHA) has been tasked with developing a rule that will require all private employers with 100 or more employees to ensure their workforce is fully vaccinated. Any employees who remain unvaccinated      Continue Reading...
EEOC Sues Employer for Not Accommodating COVID-Related Telework Request

On September 7, 2021, the Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit against ISS Facility Services, Inc., a workplace experience and facility management company headquartered in Texas, alleging violations of the Americans with Disabilities Act (“ADA”). This case marks the agency’s first disability accommodation lawsuit connected to the COVID-19 pandemic, and it is one employers should keep an eye on as they continue to shift employees from remote work back to the office.

Beginning in May 2020, ISS Facility Services required all employees to work from home due to the COVID-19 pandemic. In June 2020, employees were required to return to working at the company’s facility.
The EEOC alleges that Ronisha Moncrief, who had recently been diagnosed with obstructive lung disease, requested an accommodation to continue working from home for two days per week because her past and recent bouts with severe pulmonary disease made her high risk for contracting COVID-19. The company allegedly denied Moncrief’s request for an accommodation, though it allowed other managers to work from home. About a month and a half after Moncrief’s request was denied, the company terminated Moncrief for performance issues. The EEOC seeks a permanent injunction against the company and its officers from engaging in disability discrimination and retaliation, back pay, compensation for past and future pecuniary and non-pecuniary losses, punitive damages, and the Commission’s costs in bringing this lawsuit.  
This case illustrates the EEOC’s view that if an employee has a disability that puts the employee at higher risk of contracting or becoming      Continue Reading...
Labor Day: The Unofficial End of Summer or Something More

We hope everyone enjoyed their Labor Day holiday. Over the years, Labor Day has been viewed as the last gasp of summer fun. While taking this last summer holiday to enjoy some travel or family time is a great idea, the roots of Labor Day can actually be traced to labor unions. Labor Day was established in the late 1800s and early 1900s as a holiday to celebrate the contributions of our country's workers and was initially proposed by organized labor unions. Click here for the history of Labor Day.

The Labor Day holiday should serve as a reminder to union-free employers that organized labor is still working hard to represent the employees at their companies. Your management team should spend some quality time on a regular basis communicating with your employees and listening to their concerns. This is a great way to ensure your company remains union-free. If management fails to establish a rapport and maintain a good working relationship with their employees, this opens the door for people outside the company to have those conversations. I'm sure most of you would prefer the good working relationship start within the company as opposed to outside the company.
So now that you have made the most of your holiday weekend courtesy of the labor movement, get back to work building those internal relationships.
Foulston Attorneys Recognized in The Best Lawyers in America 2022

Eighteen members of Foulston’s employment and labor law practice group have been selected for inclusion in the 2022 Edition of The Best Lawyers in America®. Best Lawyers honors attorneys whose peers recognize their reputation and professional experience in a practice area.

Foulston employment and labor law lawyers recognized in The Best Lawyers in America© 2022, and the practice areas for which they were selected, are as follows:
  • James M. Armstrong: Bet-the-Company Litigation, Commercial Litigation, Legal Malpractice Law - Defendants, Litigation - Antitrust, Litigation - Intellectual Property, Litigation - Labor and Employment, Litigation - Regulatory Enforcement (SEC, Telecom, Energy), and Litigation – Securities
  • Donald D. Berner: Employment Law - Management, Labor Law - Management, Litigation - Labor and Employment
  • Vaughn Burkholder: Employment Law - Management, Litigation - Labor and Employment, Workers' Compensation Law - Employers
  • Boyd A. Byers: Employment Law - Management, Labor Law - Management, Litigation - Labor and Employment
  • Jeff P. DeGraffenreid: Commercial Litigation, Litigation - Labor and Employment
  • Tara      Continue Reading...
Marking One Year of Bostock: EEOC Issues Guidance on Sexual Orientation & Gender Identity Discrimination
By: Ashley McCall

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.

The EEOC observed Bostock’s one-year anniversary by announcing the release of new educational resources that explain employees’ right to be free from sexual orientation and gender identity discrimination in employment. The new resources include a landing page and a technical assistance document to help the public understand Bostock and the EEOC’s position on sexual orientation and gender identity discrimination. The landing page consolidates statistics, fact sheets, information about the scope of protections against discrimination, information about harassment and retaliation, and the steps for filing a discrimination charge with the EEOC. The information does not provide a new policy but rather provides concise, accessible information about existing requirements under the law.

Notably, the EEOC’s opinions do not have the force of law but are highly influential in how courts interpret employment law.
EEOC Guidance

The EEOC’s resources provide      Continue Reading...
Mask Use on the Rise as Delta Variant Surges

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 7, 2021, the Centers for Disease Control and Prevention (CDC) rescinded its previous guidance, which said that fully vaccinated people could safely forego wearing masks indoors. The federal agency now recommends that both vaccinated and unvaccinated people wear masks in public indoor spaces if located in an area of substantial or high transmission. At this time, most Kansas counties are designated “high” transmission areas, including Sedgwick County, Butler County, Shawnee County, Johnson County, and Wyandotte County.
Though the CDC’s guidance is not binding on employers, some state and local governments are reviving mask mandates applicable to both vaccinated and unvaccinated individuals. Kansas City, Missouri, for example, announced reinstatement of an indoor mask mandate, effective Aug. 2, 2021, in places of public accommodation. Missouri Attorney General Eric Schmitt sued Kansas City over the mandate, but it will remain in effect unless and until the court says otherwise.
At this time, Kansas Gov. Laura Kelly has not issued a state-wide mask mandate – she announced on July 28, 2021 that the issue of reinstituting mask mandates will be left up to Kansas counties. She has, however, announced that state employees, and anyone entering a state building, will be required to wear a mask beginning Aug. 2, 2021.
Employers should also consider their general duty under OSHA to provide workers      Continue Reading...
Updated Vaccination Protocols for Government Employees and Federal Contractors

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.

While these new guidelines do not currently extend to offsite government contractors, a White House press release noted that, “President Biden is directing his team to take steps to apply similar standards to all federal contractors.” So far, the government has not issued any formal rules or executive orders along these lines, but similar requirements for the government-contractor workplaces may be coming soon. 
OFCCP Proposes $15 Minimum Wage for Federal Contractors

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.

The proposed rule is open for public comment until Aug. 23, 2021. Federal contractors may, during this period, submit comments explaining how the wage requirement may impact contract prices and costs. The proposed rule would go into effect Jan. 30, 2022. 
2021 HR Training Series Begins

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.

Sessions are as follows:
  • 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...
Kansas Governor Expands Paid Parental Leave for State Employees

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.

Paid parental leave applies to Kansas employees who have been employed for at least 180 days, regardless of classification, part-time/full-time status, or whether leave is for the birth, adoption, or foster placement of a child. Employees may start leave up to 30 days prior to the projected due date in order to prepare for the new child. Additionally, employees must utilize all leave within the first 12 weeks of the birth, adoption, or foster placement.
The new executive order goes into effect immediately, though new state employees must still wait 180 days after the start of employment to become eligible for parental leave.
Court Says ADA Request for Telework Unreasonable
By: Madison Moore

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...

OSHA Issues Emergency Temporary Standards for Healthcare Employers

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...
Foulston's Employment Law Practice Recognized

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
o   Boyd Byers
o   Tara Eberline
o   Forrest Rhodes, Jr.
o   Teresa Shulda
  • Employee Benefits & Executive Compensation
o   Douglas Hanisch
o   Jason Lacey
Chambers USA ranks the top lawyers and law firms in all states using independent research, based on feedback from legal peers and references on quality of technical legal ability, client service, depth of team, commercial vision and business understanding, diligence, value for money, and other qualities      Continue Reading...

Don Berner Image
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
Additional Sources
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