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When Is COVID-19 a Disability? Courts Tackle Issue in Bias Cases

A Pennsylvania federal judge recently allowed an employee to move forward with a discrimination lawsuit after her employer terminated her following a positive COVID-19 test result. According to this Bloomberg Law article, the judge noted that COVID-19 could be considered a disability under the Americans with Disabilities Act (ADA); however, it’s unclear if the ADA also protects infected workers before they display long-haul COVID-19 symptoms. McDermott Partner Brian Mead said the employee’s presentation of long-haul COVID-19 symptoms (including loss of smell and taste) was also key in the judge’s ruling.

“The difference between having a cough or a substantial lung impairment is the difference between being covered by the ADA or not covered,” Mead said.

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“Because of Bostock” – Court Delays HHS Rule Re-interpreting Section 1557 Discrimination “Because of Sex”

One day before an updated rule of the US Department of Health and Human Services regarding Section 1557 of the Patient Protection and Affordable Care Act took effect, the US District Court for the Eastern District of New York ordered a stay and issued a preliminary injunction precluding the most recent final rules from becoming operative. Entities subject to Section 1557 should — at least until decisions are issued in cases pending in US district courts — be cautious in their approach to their non-discrimination compliance obligations.

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Can Companies Be Held Liable When Their Employees Fall Ill with Coronavirus?

While the Occupational Safety and Health Administration (OSHA) has not released specific standards covering COVID-19, Michelle Strowhiro, a partner in the Los Angeles office of McDermott Will & Emery, is quoted in a recent ABA Journal article saying that employers could face risks under Occupational Safety and Health Act’s general duty clause if they don’t take steps to protect their workplace and ensure it is not exposed to individuals who may have contracted the virus.

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Justices Poised to Reshape Employer Religious Bias Issues

Ecclesiastes 3:1 states: “For everything there is a season, a time for every activity under heaven.” Now is apparently the time for religious issues in employment law. In its current term, the US Supreme Court could hear three cases concerning religion under Title VII. Therefore, it is a good time for a refresher on these recurring issues.

McDermott’s Sarah Schanz authors an article for Law360 discussing the recurring issues we’re seeing, including the questions of what amounts to undue hardship and who qualifies as a minister to invoke the ministerial exception.

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Originally published on Law360, February 2020




Employment Cases to Keep an Eye on in 2020

This year, the US Supreme Court will get a chance to say whether federal civil rights law protects gay and transgender employees from discrimination, and California courts will grapple with recent changes making it harder for Golden State businesses to label workers as independent contractors. McDermott’s Michael Sheehan looked at these and other cases to watch in 2020 in a recent article for Law360.

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Originally published by Law360, January 2020




Making a Splash in the Global Employment Pool: The Challenge of Multiple Employment Laws

US businesses expanding abroad, and international businesses moving into the United States, can find the differences between employment laws both unexpected and costly.

Companies of all sizes are eager to expand their businesses, and their workforce, into new markets. US employers already know that operating in multiple states can feel like operating in different countries because of state- and locality-specific employment laws. But if operating in California versus Wyoming is comparing pools to puddles, then operating in the United States versus other countries is comparing puddles to oceans.

US-based companies looking to expand abroad, and foreign companies opening their first US locations, must proceed with caution before jumping in. One error can commit a business to employing its workforce until retirement, cost months and a small fortune to terminate the employment relationship, or keep it embroiled for years in class action litigation.

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Rights of Job Applicants in Germany

The German Federal Labor Court made a very clear ruling regarding job applicants in Germany who are not offered the position for which such applicants applied.  In the Federal Labor Court’s view, a rejected applicant has no right to know whether another applicant was offered or accepted the position.  (Federal Labor Court, verdict dated April 25, 2013, case number 8 AZR 287/08)

This case concerned a plaintiff who was born in the former Soviet Union in 1961.  She applied for a position that was advertised by a German company, the defendant in this case.  Even though the plaintiff fulfilled all required qualifications, she was rejected and did not receive a job offer.  The plaintiff presumed that this decision was based on discrimination for her gender, age and origin.  The Federal Labor Court submitted the case to the European Court of Justice to determine whether the job applicant had a right to information regarding why she was not selected, or if another applicant was selected for the position.  The European Court of Justice rendered its verdict on April 19, 2012 (case number C415/10), and stated that rejected job applicants had no right to this information under European law.

The German Federal Labor Court dismissed the case because it could not detect any evidence of discrimination.  The mere refusal of the defendant to disclose any information related to the application process and/or the hiring could not establish the presumption of an inadmissible discrimination, according to Section 7 of the German General Equal Treatment Act.

However, this ruling has to be viewed with great caution.  The German decision is not in line with the aforementioned ruling in the same matter of the European Court of Justice.  The European judges, in contrast to the German Court, stressed that the complete refusal to give out any information regarding the hiring could actually be evaluated as a presumption of possible discrimination.  This remarkable difference in the two verdicts was not explained by the German judges and as long as their reasoning remains unclear, German employers should provide a short explanation to rejected applicants when they ask the reason why they have been rejected for an open position (e.g., the other candidate better satisfies the qualification profile, made a better impression at the job interview, seems to be a more motivated and energetic person, etc.).




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