Is telework a reasonable accommodation?

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I contribute an Employment Law advice column to The Human Resources Association of Broward County newsletter.  A reader recently asked a question that I thought was important and I wanted to share.

ASK JANET:

If an organization does not allow telework for any of their employees, but an employee is requesting an accommodation under the ADA to telework due to their medical condition. Can the organization deny that request because they do not allow anyone else to do it?

 

Dear Confused in Cocoa:

This is a great question!   Under the ADA, you are required to provide reasonable accommodations needed so that the employee can perform his/her essential functions. A request to work from home due to a disability triggers an obligation for your organization to engage in an interactive discussion with the employee to understand exactly what the employee is requesting and why the employee believes that granting this request will allow the employee to perform the essential functions of his/her position.

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Bottom of the Ninth

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We are now in the fourth week of February, yet a familiar tradition has not taken place.  Major League baseball players have not yet reported to their respective camps for Spring Training.  Unable to reach a new collective bargaining agreement with the MLB Players Association last December, the MLB owners imposed a lockout preventing the players from reporting to work until a new deal is reached.
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Registration for H-1B Lottery Opens March 1

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Each fiscal year, which runs from October 1 to September 30, there are 65,000 H-1B visas available plus an additional 20,000 H-1B visas for individuals who hold an advanced degree from a U.S. university.  The H-1B visa is for aliens in “specialty occupations.” A specialty occupation is defined as an occupation which requires theoretical and practical application of a body of highly specialized knowledge and which requires the attainment of a bachelor’s or higher degree as a minimum for entry into the occupation in the United States.  Because there is more demand for H-1B visas than the 85,000 visas available, the U.S. Citizenship and Immigration Services (USCIS) conducts a lottery to determine who can file an H-1B petition.

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Sundays – A Day to Pray, Not For Pay

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In the midst of the Great Resignation, you would think employers would put forth the extra effort to accommodate employees (and to comply with the law).  Yet, last week, the EEOC announced a settlement in a religious discrimination case in which the employer, an Amazon delivery partner, terminated an employee after he refused to work on a Sunday — he went to church instead.  In fact, when he was hired, the employee told the employer he could not work on Sundays because he attended church on Sundays.  The employer asked that the employee work on Saturdays and he agreed.  The employer not only forgot its agreement but also the law. Continue Reading

And the OSHA Vax or Test Rule is Off (Again)

Today, the U.S. Supreme Court put the brakes on OSHA’s mandatory vaccination and testing rules for private employers with at least 100 employees.  The Court ruled that OSHA exceeded its authority when issuing its Emergency Temporary Standard (ETS) requiring either mandatory vaccination or weekly testing and face masks. The Court noted that OSHA is charged with regulating hazards in the workplace, not “hazards of daily life.” Because COVID-19 can and does spread outside of the workplace, according to the Court, the risk OSHA seeks to mitigate cannot be considered an occupational hazard.

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Happy Holidays from Stearns Weaver Miller’s Labor & Employment Department!

As this year comes to a close, there is no better time to say thank you. Thank you for being a subscriber and joining us on this journey as we continue to navigate this ever evolving environment together. Wishing you a joyous holiday season and happy, healthy year ahead.

We hope that BeLabor the Point has brought you timely and important information throughout the year and a few smiles along the way.  Click here to view our firm’s virtual holiday card! 

SURPRISE, SURPRISE, SURPRISE! OSHA’s Vaccinate or Test Rule is Back (at least for now).

On Friday night, the Sixth Circuit Court of Appeals gave OSHA’s Emergency Temporary Standard (ETS) on COVID vaccination new life.  As you may remember, OSHA issued an ETS requiring employers with 100 or more employees to adopt a vaccination policy that either made vaccination mandatory, or gave employees a choice between vaccination or weekly testing.  The day after OSHA issued this ETS, the Fifth Circuit Court of Appeals entered an Order staying the ETS until further notice.

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Think Twice Before Paying Employee Wages in Bitcoin

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The working world has turned increasingly digital over the past two years. The nature of our workplace — how we meet, communicate, and commute – has made a rapid shift from the physical to the virtual, precipitated by COVID-related lockdowns and social distancing efforts. But what about how we are paid? Or more precisely, what we are paid?

Bitcoin and its numerous cryptocurrency cousins seem to be taking over the world. Little more than a year ago it seemed as if the jury was still out on cryptocurrencies; now, it is increasingly looking like they are here to stay, and bitcoin seems to be leading the way.

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Florida’s New Anti-Vaccine Mandate Law

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On November 18, 2021, Florida Governor Ron DeSantis signed HB 1B into law, which creates Fla. Stat. 381.00317 and imposes new limitations on private employers’ ability to mandate COVID-19 vaccinations in the workplace. The law is effective immediately, and now Florida employers must adapt. Here is what you need to know:

What does the new law require?

It requires private employers (regardless of size) adopting a vaccination mandate to provide their full-time, part-time, or contract employees the following exemptions to opt-out of the mandate:

  • “Medical reasons,” including, but not limited to, pregnancy or anticipated pregnancy. The employee must present to the employer an “exemption statement” that is dated and signed by a physician or physician assistant, or an APRN, who has examined the employee.  The statement must provide that, in the professional opinion of the physician, physician assistant, or APRN, COVID-19 vaccination is not in the best medical interest of the employee.
  • “Religious reasons.” The employee must present to the employer an “exemption statement” indicating that the employee declines vaccination because of a sincerely held religious belief.
  • “Covid -19 immunity.” The employee must present an “exemption statement” demonstrating competent medical evidence that the employee has immunity, documented by the results of a valid lab test performed on the employee.  The Department of Health shall adopt a standard for demonstrating competent medical evidence of immunity.
  • “Periodic testing.” An “exemption statement” must indicate that the employee agrees to comply with regular testing for the presence of COVID-19 at no cost to the employee.
  • “Use of employer-provided personal protective equipment.” An “exemption statement” must indicate that the employee agrees to comply with the employer’s reasonable, written requirement to use employer-provided PPE when in the presence of other employees or other persons.

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Stuck In The Middle With You

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Florida employers face conflicting federal/state legal obligations.

It can be tough to keep up. On Thursday of last week, the federal Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) establishing mandatory vaccination requirements for employers with 100 or more employees. The regulation was published in the Federal Register the next day.

The next day, a panel of the United States Court of Appeals for the Fifth Circuit issued an order staying the ETS, while the legality of OSHA’s authority to implement the ETS is litigated.

Finally, Governor DeSantis has called the Florida Legislature into a Special Session. It will begin on Monday, November 15, 2021, and go no later than Friday, November 19, 2021. Part of the call of the Special Session will include the consideration of legislation that would place substantial limits on a Florida employer’s compliance with the ETS, by mandating that employers implement broad categories of exemptions permitting employees to “opt out” of vaccination requirements, with substantial fines for violations.

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