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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On July 7, 2021, the Centers for Disease Control and Prevention (CDC) rescinded its previous guidance, which said that fully vaccinated people could safely forego wearing masks indoors.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...
What Kansas Employers Should Know About Rising Unemployment Fraud Claims

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.

Often, scammers are filing fraudulent claims using the names and personal information of people who have not lost their jobs. In many cases, scammers use personal information they obtain through buying stolen personally identifiable information or information that was released after a data breach. These fraudulent claims not only result in costs to the state, but also may result in problems for the employer and employees who were targeted in the scam.
What Should Employers Do To Mitigate Fraud?
A well-trained and vigilant human resources department can be your first line of defense against unemployment fraud. Fraudulent claims are often discovered when an employer receives a notice to verify the employment status of a current employee. Your human resources department should scrutinize unemployment      Continue Reading...
Tips to Understand, Prepare for the CROWN Act
Have you heard of the CROWN Act? No, it isn’t a popular TV streaming series about Queen Elizabeth II. The CROWN Act is a new antidiscrimination law sweeping the nation, and it could be coming to a legislature near you soon.
What Sparked Movement To Protect Race-Based Hairstyles
The Creating a Respectful and Open World for Natural Hair Act, or CROWN Act, is part of a national coalition aimed at securing protections for race-based hairstyles in workplaces and public schools. The Act extends current discrimination laws to protect hair texture and protective styles, such as braids, locks, twists, and knots. Under the statute, an employer can’t discriminate against individuals because they have a natural hair tex­ture or choose to wear their hair in braids or dreadlocks.
The CROWN Act grew out of a research study that re­vealed black women are 80 percent more likely to be sent home from work because of their hairstyle and 1.5 times more likely than white women to report they had to change their hairstyle to fit in at the workplace.
Also, some courts have found employees discriminated against because of their hairstyles—even styles pri­marily associated with a certain race—aren’t protected under Title VII of the Civil Rights Act of 1964. In a 2016 case, for example, the U.S. 11th Circuit Court of Appeals concluded, “Title VII protects persons in covered catego­ries with respect to their      Continue Reading...
New COVID-19-Related Stimulus

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.

EEOC Issues COVID-19 Guidance

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.  

 Here are some highlights from the new EEOC guidance:
  • 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...
Judging the Sincerity of Religious Beliefs
In many situations, the question of whether an employee’s request for a religious accommodation is tied to sincere religious beliefs is not at issue. Instead, employers simply need to assess whether they can provide the accommodation without causing an undue hardship. Where an employer does question whether the employee sincerely holds those beliefs—an issue that might arise if an employee asserts a dubious religious objection to the COVID vaccine—it should look to the EEOC’s long-standing guidance on the level of inquiry it can make.
What are “religious” beliefs and practices?
According to the EEOC, religious practices include the “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Religion typically concerns “ultimate ideas” about “life, purpose, and death.” The EEOC does not protect beliefs merely because they are strongly held. Whether a practice is religious depends on the employee’s motivation. Social, political, or economic philosophies, as well as personal preferences, are not protected as religious beliefs under Title VII.
The EEOC does grant employees the benefit of the doubt. Employers should not dismiss the beliefs simply because the employee’s practices deviate from the exact tenants of a religion, or because few or no people adhere to those religious beliefs. The EEOC cautions employers that      Continue Reading...
Baby, It's COVID Outside: How to Return to Work Safely After the Holidays

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.

Review the Updated CDC Guidelines
As the medical community learns more about COVID-19, the CDC continues to update its guidance. For example, the CDC recently expanded the definition of a “close contact” to include more brief encounters. Before, “close contact” was defined as being within six feet of a confirmed positive COVID-19 case for 15 consecutive minutes or more. Now, “close contact” is defined as being within six feet of a confirmed positive case for a total of 15 minutes (see “Updated Definition of ‘Close Contact’” elsewhere in this blog).
The CDC also shortened the recommended length of quarantine time after exposure. Until recently, the CDC advised that individuals in close contact with a confirmed COVID-19 case should quarantine for 14 days. Though 14 days is still the gold-standard, the CDC now says that individuals who do not develop symptoms may end their quarantine after just 10 days, or even seven days if they test negative.
Employers should also be careful to review the latest guidelines issued by their state and local      Continue Reading...

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Jason Lacey, the Employee Benefits Guy
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