In August of 2023, the EEOC issued initial regulatory guidance on the landmark 2022 Pregnant Workers Fairness Act, and COVID litigation continued to trickle through the system with some positive and not-so-positive developments for employers. Get the full details below.
U.S. EEOC unveils proposed regulations for implementing the Pregnant Workers Fairness Act
The U.S. Equal Employment Opportunity Commission (EEOC) has introduced proposed regulations for the implementation of the Pregnant Workers Fairness Act (PWFA), which was enacted in 2022. The PWFA mandates that employers must make reasonable workplace adjustments to aid employees facing pregnancy-related limitations in performing their duties.
The proposed regulations offer insight into how the EEOC will enforce the PWFA. The EEOC in its approach emphasizes that the temporary nature of pregnancy calls for temporary accommodations even after childbirth, as unforeseen health issues could arise. Four accommodations highlighted as reasonable include additional restroom and meal breaks, access to water during work hours, and the flexibility to sit or stand as needed.
On the EEOC’s non-exhaustive list of conditions the EEOC believes generally fall within the scope of the law are “current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.”
While acknowledging that implementing the PWFA could incur a cost to the economy of over $200 million, the EEOC counters the economic benefits of improving gender equality in the workplace outweigh this expenditure. The public will have 60 days to provide feedback on the proposed rules, with specific areas of concern including defining crucial terms, offering examples of acceptable accommodations, and ensuring non-retaliation against employees utilizing such accommodations.
7th Circuit Court of Appeals Affirms Dismissal of COVID Disability Suit Over Remote Work
The Seventh Circuit Court has rejected a lawsuit accusing an Indiana hospital of discrimination against a department supervisor, who claimed that her anxiety prevented her from wearing a mask when asked to return from remote work during the COVID-19 pandemic. The employee sought an accommodation to continue working remotely. Despite having successfully worked from home during the pandemic for 6 months, the hospital declined her request, asserting that her executive director role required in-person attendance. The lawsuit alleged discrimination, retaliation, and failure to provide accommodations.
In a unanimous decision, the three-judge panel upheld the lower court’s summary judgment in favor of the hospital, stating that the employee’s essential job functions necessitated her physical presence. The panel highlighted that while remote work was feasible during the pandemic, the nature of her executive director position demanded in-person collaboration, oversight of equipment, and liaison with other departments.
The court emphasized that essential functions requiring on-site presence varied from job to job and could not be universally equated with pandemic-driven remote work. It was noted that the employee’s claims of discrimination and retaliation were unsupported by evidence of intolerable working conditions leading to her resignation. The panel also dismissed the employee’s assertions of gender-based promotion discrimination.
The case underscores the evolving legal landscape regarding remote work accommodations, indicating that determinations must be made on a case-by-case basis, considering specific job requirements. The case is Anna Kinney v. St. Mary’s Health Inc., case number 22-2740, in the U.S. Court of Appeals for the Seventh Circuit.
Religious Vaccine Exemption Lawsuit Permitted to go to Michigan Federal Jury
A Michigan federal judge has ruled that the MGM Grand Casino must face claims from former employees, Bryant Brown and Hratch Yeremian, who alleged that they were subjected to religious discrimination for refusing the COVID-19 vaccine. The judge, U.S. District Judge Victoria A. Roberts, denied MGM’s motion for partial summary judgment, stating that the workers had provided sufficient evidence to support their claims of disparate treatment.
Brown and Yeremian claimed that they held sincere religious beliefs conflicting with MGM’s vaccine requirement, informed the company about this conflict, and faced adverse employment actions for not complying. Yeremian said he applied for a vaccination exemption based on his Catholic beliefs, which he said barred him from getting the shot because he believed that the vaccines were developed using cells from aborted fetuses. Brown said he applied for an exemption based on his claim that he suffered from sleep apnea and breathing conditions that prevented him from getting the shot but did not tell the company that he had religious objections, because he felt like submitting a religious accommodation request would be futile based on what he had heard from management. However, when MGM’s Human Resources Department called Brown in October 2021 to inquire about his vaccination status, Brown said he told the caller his “body is a temple” and he is “allowed to choose what he puts in it,” according to the order. Judge Roberts said MGM did not cite any authority stating that Brown’s call or email wouldn’t be enough to inform the company of the conflict, and pointed to two decisions in the Sixth Circuit that held an employee doesn’t need to request accommodation in a “particular manner” to be considered as notifying their employer of needing a religious accommodation.
Brown and Yeremian sued MGM for violating Title VII of the Civil Rights Act and the Elliott-Larsen Civil Rights Act, alleging wrongful termination and denial of religious accommodations. The court’s ruling allows the former employees to proceed with their religious discrimination claims against the casino.
The case is Brown et al. v. MGM Grand Casino, case number 2:22-cv-12978, in the U.S. District Court for the Eastern District of Michigan.
Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment. Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.
