EEOC: Non-U.S. Citizen Employees Working Abroad May Be Excluded from OWBPA Disclosures

For years, U.S. employers with international operations have struggled to understand their obligations under the Older Workers Benefit Protection Act (OWBPA) when implementing reductions-in-force and group layoffs. In a January 14, 2021, formal opinion letter, the Equal Employment Opportunity Commission (EEOC) clarified that non-U.S. citizen employees working abroad may be excluded from OWBPA disclosures because such individuals are not “employees” for purposes of the Age Discrimination in Employment Act of 1967 (ADEA). Significantly, this opinion letter may be relied upon by employers and constitutes binding legal authority in any proceedings brought against an employer.

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EEOC Revises Guidance on Religious Discrimination in the Workplace

The Equal Employment Opportunity Commission (EEOC) has approved revisions to its Compliance Manual Section on Religious Discrimination (Guidance). The revised Guidance, approved on January 15, 2021, draws upon several U.S. Supreme Court opinions issued since the agency’s last significant update to its guidelines in 2008.

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“The Impact of COVID-19 on Employment Claims and Litigation,” authored by Martin Aron in Claims Magazine, January/February 2021

Jackson Lewis’ Martin Aron has co-authored, “The Impact of COVID-19 on Employment Claims and Litigation,” published by Claims Magazine, Jan./Feb. 2021 issue.  The article focuses on (1) the variety of pandemic-related claims and litigation that have emerged during the COVID-19 pandemic; (2) the role human resources professionals, in-house counsel, and insurance claims professionals can play in reducing the risks and costs associated with COVID-19-related employment claims and litigation; (3) the challenges of mitigating damages and negotiating settlements in the midst of the COVID-19 pandemic; and (4) how the filing of bankruptcy by employers and individuals can impact litigation and litigation strategy.  The article frequently cites Jackson Lewis’ COVID-19 Employment LitWatch when discussing important COVID-19-related litigation trends.

The full article, “The Impact of COVID-19 on Employment Claims and Litigation,” is available online here, or you can download the PDF here.

Employee Incapable of Complying with Valid Safety Requirements is Not a “Qualified” Individual

An employee who is categorically unable to comply with an employer’s valid workplace safety requirement is not a “qualified” individual under the Americans with Disabilities Act (ADA), even if the safety requirement is not part of the “essential functions” of the employee’s position, the U.S. Court of Appeals for the Fourth Circuit has reaffirmed in an unpublished decision. Holmes v. General Dynamics Mission Sys., 2020 U.S. App. Lexis 38425 (4th Cir. Dec. 9, 2020) (unpublished).

In Holmes, plaintiff Shelia Holmes began working for General Dynamics Mission Systems as a shelter fabricator in 1998. Approximately five years later, General Dynamics started requiring that shelter fabricators wear steel-toed shoes as protection from accidents. Holmes claimed it was unsafe for someone with her medical conditions – diabetes and brachymetapodia, a condition characterized by short or overlapping toes – to wear steel-toed shoes. Whenever a supervisor challenged her on it, she provided a doctor’s note and was permitted to wear other shoes.

Following a negative 2013 safety audit, and fearing repeat violations would endanger its certification compliance with various international standards, General Dynamics began enforcing the steel-toed shoe requirement in earnest. When Holmes insisted that she could not comply with this requirement, General Dynamics attempted to accommodate her by investigating various customized-shoe options and different work assignments at the company. Ultimately, the company could not identify a reasonable accommodation that Holmes would agree to, so Holmes’ employment was terminated.

Holmes sued for disability discrimination under the ADA, alleging that wearing steel-toed shoes was never an essential function of her job, that she performed her job satisfactorily for years while wearing regular shoes, and that the company had made exceptions in the past and could do so again. The district court disagreed and granted summary judgment in favor of General Dynamics.

On appeal, the Fourth Circuit affirmed. The Court determined that (1) under the ADA, employers may require compliance with valid safety regulations, even if the regulations are not listed as an essential function of the job; and (2) the fact that Holmes wore regular shoes at work for over a decade, and never experienced a serious accident or safety incident, does not prove that the safety requirement is invalid, or that exempting her from the safety regulations is a reasonable accommodation. The Court wrote, “If exemptions from valid safety policies were required as ADA accommodations, it is unclear under what circumstances an employer could ever enforce a valid safety policy.” Because Holmes is not a “qualified individual” under the ADA, she is not within the ADA’s protected class. The Fourth Circuit repeatedly cited the Equal Employment Opportunity Commission’s guidance, Applying Performance and Conduct Standards to Employees with Disabilities (Sept. 3, 2008) (“Employers may require employees to wear certain articles of clothing to protect themselves, coworkers, or the public.”).

As employers attempt to navigate the COVID-19 pandemic, many are implementing new safety requirements – such as mask-wearing – that may trigger negative reactions from employees. Every case is different and will require case-specific legal analysis but Holmes is a timely reminder that the ADA does not require employers to grant exceptions to legitimate safety requirements.

Please contact a Jackson Lewis attorney with any questions.

Employer Fitness for Duty Policy Survives Disability Discrimination Claim

A district court ruled that a long-time railroad trackman, who was pulled from service following safety complaints from his coworkers and supervisors, failed to prove that he was considered disabled under the ADA, and failed to prove that his employer (the railroad) violated the ADA when it required him to undergo a “fitness for duty” medical exam following his removal from service. Owen v. Union Pacific Railroad Co., No. 8:19CV462 (D. Neb. Nov. 12, 2020).

In Owen, coworkers observed a long-time trackman struggling to get around, having trouble breathing, and having trouble kneeling and standing. One of the coworkers shared his concerns about the trackman’s ability to perform his physically demanding job duties safely with a group supervisor. After observing the trackman’s conduct himself, the group supervisor contacted a railroad manager to report the trackman’s concerning behavior. After reviewing the concerns of managers, supervisors, and the company physician, the trackman’s manager pulled him from service and sent him home, fearing that the trackman would injure himself or others if he remained on the job.  Having received credible information raising concerns about the trackman’s ability to perform his job duties safely, the manager instructed the trackman to undergo a fitness for duty examination, which was consistent with the railroad’s policies.

When he was not permitted to return to work, the trackman sued the railroad for alleged violations of the ADA. The railroad ultimately moved for summary judgment. On November 12, 2020, the court ruled in favor of the railroad.

First, the district court found that the trackman’s claim could not survive because he did not qualify as disabled under the ADA. Second, it found the railroad’s safety concerns qualified as a legitimate, nondiscriminatory basis for the trackman’s removal from service. Third, it found the medical examination did not violate the ADA because it was job-related, vital to the company’s business, and “no broader or more intrusive than necessary.”

This case highlights the importance of considering ADA implications when acting on physical safety concerns of an employee.

If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work.

Employment Law Developments to Monitor in 2021: COVID-19-Related Employment Litigation and Trends

As 2021 begins, Jackson Lewis continues to work with employers to help them understand, prepare for, and handle the impact of COVID-19 on the workplace.  In addition to advising and counseling clients, Jackson Lewis attorneys are handling COVID-19-related litigation matters nationwide, and are tracking COVID-19 employment litigation trends with Jackson Lewis’ interactive COVID-19 Employment LitWatch.

Employers across the country face a variety of COVID-19-related lawsuits. Common claims include, but are not limited to:

  • Retaliation against an employee who raised health or safety concerns or requested time off or accommodations;
  • Failure to accommodate an employee’s alleged disability (or serious medical condition);
  • Violations of family and medical leave laws; and
  • Discriminatory treatment based on age, disability, gender, pregnancy, as well as race and national origin.

COVID-19-related employment lawsuits likely will increase in 2021, especially when employers begin recalling some (but not all) laid-off or furloughed employees, increasing hours or shifts for some (but not all) employees, or requiring more employees to report to work in-person.

Diving deeper into the data with Jackson Lewis’ COVID-19 Employment LitWatch, JL attorneys can identify trends that may play an important role in planning for the year ahead.  By way of example, as of January 13, 2021:

  • Approximately 1,360 COVID-19-related employment lawsuits have been filed in state and federal court since March 2020, including 70 class actions of the 1,360 cases, approximately 76% include allegations of wrongful termination.
  • Since Labor Day 2020, non-class action COVID-19-related employment lawsuits have more than doubled, with claims of discrimination and retaliation trending up. Disability leave claims have remained steady but declined as a percentage of overall claims.  Allegations of workplace safety are slowing down.
  • States with the most lawsuits to-date are California (298), New Jersey (184), Florida (115), New York (96), Ohio (80), Texas (77), and Michigan (54). Since December 1, 2020, however, states with the most lawsuits (in descending order) are California, New Jersey, New York, Florida, Texas, Ohio, and Pennsylvania.
  • Approximately 35% of all COVID-19-related employment lawsuits nationwide have been filed in California and New Jersey, and approximately 92% of those suits were filed in California and New Jersey state courts. Outside of California and New Jersey, approximately 48% of lawsuits were filed in federal court and 52% in state court.
  • Healthcare and manufacturing industries have been hit the hardest by single-plaintiff lawsuits, while hospitality, retail and consumer goods, and transportation have been hit the hardest by class action lawsuits.
  • Approximately 43% of class action complaints allege wage and hour violations, while approximately 38% allege workplace safety (24%) or disability leave violations (14%).
  • Of the 70 class actions filed to date, approximately 61% were filed in California (29) and Florida (14). Outside of California, 73% of class actions were filed in federal court. Only 21% of California’s class actions were filed in federal court.

In 2021, Jackson Lewis looks forward to working with employers to navigate the rapidly evolving world of employment law, including the new and uncharted territory of COVID-19 employment litigation.

Developments to Monitor in 2021: LGBTQ+ Rights and Freedom of Religion in the Workplace

As 2021 begins, Jackson Lewis is again providing “The Year Ahead for Employers” to clients. This comprehensive report covers all aspects of employment law and highlights 2020 issues, trends, legislative and regulatory activity, and litigation that employers need to be aware of and what to look out for in 2021. Highlights from the Litigation section of the report include our analysis of recent U.S. Supreme Court cases impacting LGBTQ+ rights and religious freedom in the workplace.

LGBTQ+ Rights – Sexual Orientation and Gender Identity

In June 2020, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity. The Court issued its decision in three consolidated cases: Bostock v. Clayton County, Georgia590 U.S. __, 140 S. Ct. 1731; Altitude Express Inc. v. Zarda, No. 17-1623; and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, No. 18-107. By finding that Title VII bars workplace discrimination on the basis of sexual orientation and gender identity, the Court’s decision supports LGBTQ+ individuals seeking protection under federal and state gender anti-discrimination laws.

The Ministerial Exception and Freedom of Religion

In July 2020, the U.S. Supreme Court expanded the scope of the “ministerial exception,” which precludes application of Title VII employment discrimination laws to questions involving the employment relationship between a religious institution and its ministers. In Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267; and St. James School v. Biel,  591 U.S. __ , 140 S. Ct. 249 (2020), the Court held that two teachers were barred from suing their school-employers for age and disability discrimination because the ministerial exception applies to employees who are performing vital religious duties, regardless of the employees’ official titles or religious training. The fact that the teachers were not ministers and did not have significant formal religious training did not matter. The Court’s new test appears to be less rigid and significantly more deferential to the employer’s definition of vital religious duties. Further, the Court appears willing to apply the ministerial exception to a wider range of employers and employees, not simply those working at houses of worship or clearly religious organizations or schools. These issues will need to be clarified in future cases and litigation.

With the solidification of a conservative majority on the Court following the elevation of Justice Amy Coney Barrett, the Court likely will be more critical of what it views as encroachments on religious liberty in the workplace. Indeed, on November 25, 2020, the Court enjoined the State of New York’s attempt to restrict the number of worshipers who can attend indoor religious services to 10 individuals in “red” zones, and 25 in “orange” zones, despite the State’s public health and COVID-19 rationale for implementing the restrictions. The majority had held that: (1) New York’s proposed restrictions were not narrowly tailored; (2) New York failed to allege or demonstrate that attendance at religious services resulted in the spread of COVID-19; and (3) the proposed restrictions “strike at the very heart of the First Amendment’s guarantee of religious liberty.” Roman Catholic Diocese of Brooklyn, New York v. Cuomo, 592 U.S. __ (2020). The Court’s stance on religious liberty also was on display during the November 4 oral arguments in Fulton v. City of Philadelphia, a case in which a Philadelphia social services agency affiliated with the Catholic Church declined to work with same-sex couples as foster parents. See Fulton v. City of Philadelphia, 922 F.3d 140 (3d Cir. 2019), cert. granted, No. 19-123, 140 S. Ct. 1104 (Feb. 24, 2020). The justices’ questions seem to indicate unease over stepping on the agency’s religious freedoms. A decision is expected in the case by June 2021.

Working Together

In 2021, Jackson Lewis looks forward to working with employers to navigate the rapidly evolving world of employment law.

Seventh Circuit Continues To Find That Lengthy Leaves of Absence May Not Be Reasonable Accommodations Under the ADA

On December 30, 2020, the U.S. Court of Appeals for the Seventh Circuit issued its opinion in McAllister v. Innovation Ventures, LLC, No. 20-1779 (7th Cir., Dec. 30 2020), and held that an employer did not violate the ADA where it terminated its employee after it became clear that she would require several additional months of leave after she had already been granted a two-and-a-half-month leave of absence due to her disability. The Seventh Circuit’s opinion in McAllister expanded on its previous opinion in Severson v. Heartland Woodcraft, Inc.872 F.3d 476 (7th Cir. 2017), in which it held that a request for a two-to-three-month leave of absence following the expiration of the plaintiff’s FMLA leave entitlement was not a reasonable accommodation under the ADA. Jackson Lewis’s analysis of the Severson opinion can be found here.

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Litigator’s Guide to Navigating Virtual Court Proceedings

With the “new norm” losing some of its “newness” as the COVID-19 pandemic continues, virtual court proceedings are becoming widespread across federal and state courts. Here are some important areas to consider before and during remote court proceedings.

Test Your Technology

At this point, many people have participated in a conference call in which one participant is too loud or too quiet, has a poor internet connection, or otherwise cannot be understood because of technical difficulties. Virtual court proceedings conducted by videoconferencing software are not immune from such technical difficulties. Testing your internet connection, setting your headset or microphone to an appropriate level, or dialing in by phone if your internet bandwidth is suboptimal can go a long way to address these problems. Additionally, test your computer system beforehand to make sure you meet the minimum technical requirements.


Ensure your workstation is free of clutter and is presentable to the court. Then, consider the nature of the proceeding. For instance, if the hearing is an evidentiary hearing where demonstrative evidence will be presented, have hard copies of all exhibits closely accessible just as you would in person. You should also take advantage of being able to set up your workspaces to your preference — an advantage often unavailable in the courtroom.
Regardless of whether exhibits will be introduced electronically, make sure all unused applications and files are closed. This is particularly important for attorneys who use multiple screens and may be sharing their screen to present evidence virtually.

Take steps to minimize disruptions during the hearing, such as silencing your phone. You should assume the worst: someone will call you right as you begin arguing. If you are in a busy household or otherwise live with others or pets, be sure to inform your housemates what you are doing and when. Pets should be secured.

During The Hearing

Be sure to make “eye contact” with the judge. Eye contact in the videoconferencing world means staring straight into the camera, not at other persons on your screen. Try to continue to read the judge’s facial expressions when possible to ensure you have a sense of the judge’s reactions to your arguments. Just as in court, do not speak over the judge. Be particularly mindful of this point, as video lags and audio problems tend to increase the possibility of parties speaking over one another.

Feel free to contact a Jackson Lewis attorney if you have any questions about virtual court proceedings in your local court system.