Insights Archive - Ogletree Deakins

The COVID-19 Emergency Declaration Has Ended—But Do the Accommodations Continue?

On May 11, 2023, the COVID-19 public health emergency ended, creating uncertainty as to employers’ continued obligation to accommodate employees due to pandemic-related reasons. The U.S. Equal Employment Opportunity Commission (EEOC) has sought to address these questions through an update that it issued on May 15, 2023, to its COVID-19 technical assistance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

Tiffany Cox Stacy San Antonio Author

Tina M. Bengs Chicago
Indianapolis
Valparaiso Author

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Workplace Violence: Recent Events Are Another Tragic Reminder for Employers

As has been the case too many times in the past, at least one of the recent tragic mass shootings that has been in the headlines involved a workplace shooting. Some of these horrible events may not be predictable or preventable. When an employee or former employee makes any type of threat of violence, here are some responses employers should consider taking immediately in response.

Scott R. McLaughlin Houston Author

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Workplace Violence Plans: Tragic Events Shine a Spotlight on Preventive Measures

Recent events have employers once again wondering if they do enough to address the risk of workplace violence. After a mass shooting, for example, businesses and other organizations sometimes look back with 20/20 hindsight and notice warning signs that they might have overlooked. A durable workplace violence prevention plan may help employers identify the hard-to-detect signs of potentially problematic behavior.

Gordon L. Blair Birmingham Author

Tiffany Cox Stacy San Antonio Author

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Overemployed? The Growing Trend of Remote Workers Secretly Working Multiple Jobs

The COVID-19 pandemic forced countless businesses to transition their employees to remote work, and through this process, many learned that remote work can offer multiple advantages, including increased employee productivity and morale and decreased expense associated with commercial office space and employee parking. Even those companies continuing to prefer an in-person presence have permitted at least some remote work on a hybrid basis, if only to remain competitive in a tight labor market. Lurking in the background is the unavoidable suspicion that at least some remote workers are taking advantage of the situation, and, indeed, some are—and in a surprising way. An increasing number of remote employees are working multiple jobs at the same time, so much so that the phenomenon is now referred to as “overemployed.”

Gordon L. Blair Birmingham Author

Tiffany Cox Stacy San Antonio Author

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Pennsylvania Federal Judge Tosses Challenge to Employer Jab or Swab Mandate

On August 26, 2022, Chief U.S. District Judge Matthew Brann for the United States District Court for the Middle District of Pennsylvania dismissed a putative class action representing approximately 100 healthcare company employees brought against their employer, Geisinger Clinic. In the suit, the employees challenged their employer’s policy requiring employees to either be vaccinated for COVID-19 or agree to regular testing and quarantining. In dismissing the complaint, the court rejected the employees’ religious discrimination, constitutional, and state law claims, calling the employees’ evidence “a collection of distorted statements and anti-vaccine hocus-pocus.”

Stacy M. Bunck Kansas City Author

Tiffany Cox Stacy San Antonio Author

Melissa M. Pesce St. Louis Author

Bethany S. Wagner Pittsburgh Author

Zachary V. Zagger New York Author

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COVID-19–Driven Layoffs Are Not a ‘Natural Disaster’ Under WARN Act, Fifth Circuit Rules

In the first ruling from a federal appellate court examining COVID-19–related layoffs and the Worker Adjustment and Retraining Notification (WARN) Act, the Fifth Circuit Court of Appeals held in Easom v. US Well Services, Inc., No. 21-20202 (June 15, 2022), that a mass layoff resulting in part from the economic impact of COVID-19 did not qualify for the “natural disaster” exemption to the WARN Act’s sixty-day notice requirement for mass layoffs. The court also held that for an employer to rely on the exemption, the mass layoff (or plant closing) must be the “direct result” of the natural disaster. This is an important ruling for employers in Louisiana, Mississippi, and Texas.

Andrew P. (Drew) Burnside New Orleans Author

Tiffany Cox Stacy San Antonio Author

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Fifth Circuit Finds Specific Allegation of One-Time Use of Racial Slur Sufficient to Preclude Dismissal Under Rule 12(b)(6)

On March 24, 2022, the U.S. Court of Appeals for the Fifth Circuit reversed a district court’s Federal Rule of Civil Procedure 12(b)(6) dismissal for failure to state a claim on a pro se plaintiff’s hostile work environment claim in violation of Title VII of the Civil Rights Act of 1964, holding that the plaintiff’s specific allegation—that his supervisor, in the presence of other employees, called him a derogatory racial epithet—was sufficient to give rise to a viable claim.

Adam T. Dougherty Dallas Author

Tiffany Cox Stacy San Antonio Author

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Fifth Circuit Relied on ‘Next to No Evidence’ of Animus in Discrimination Suit

On May 13, 2022, the U.S. Court of Appeals for the Fifth Circuit affirmed summary judgment in favor of an employer, finding that a fired employee had failed to create a genuine dispute of material fact as to pretext. In Owens v. Circassia Pharmaceuticals, Inc., the court affirmed summary judgment despite its recognition that the former employee had presented “substantial evidence” that could lead a reasonable jury to conclude that the employer’s stated reason for termination—her poor job performance—was false.

Andrew P. (Drew) Burnside New Orleans Author

Tiffany Cox Stacy San Antonio Author

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Beltway Buzz, October 15, 2021

The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C. could impact your business.

James J. Plunkett Washington D.C. Author

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Texas Governor Issues Executive Order Significantly Limiting the Ability of Many Employers to Mandate Vaccines

On October 11, 2021, Governor Greg Abbott issued Executive Order (EO) No. GA-40, prohibiting any entity in Texas from requiring any individual, including an employee, to receive a COVID-19 vaccination if that individual objects to the vaccination “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”

Tiffany Cox Stacy San Antonio Author

Christine Bestor Townsend Milwaukee
Chicago Author

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Texas Supreme Court Issues Two Key Pro-Arbitration Decisions

Arbitration agreements are intended to expedite the legal process while minimizing fees and costs. In reality, former employees and their counsel often resist submitting their employment claims to arbitration, resulting in protracted and expensive litigation before trial and appellate courts on the issue of whether there is an enforceable arbitration agreement. This year, the Supreme Court of Texas issued two key decisions that may provide employers with stronger legal grounds for enforcing their arbitration agreements.

Tiffany Cox Stacy San Antonio Author

Patrick J. Maher Dallas Author

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Texas’s New Law on Vaccines and Passports: What Private and Public Employers Need to Know

On June 7, 2021, Texas Governor Greg Abbott signed into law legislation that prohibits government entities from requiring individuals to provide evidence of COVID-19 vaccination status and strongly discourages private businesses in Texas from requiring what has become known as “COVID-19 vaccine passports” from customers.

Tiffany Cox Stacy San Antonio Author

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Texas Fifth District Court of Appeals: Texas Law Prohibits Sexual Orientation Discrimination

In Tarrant County College District v. Sims, No. 05-20-00351 (March 10, 2021), the Court of Appeals for the Fifth District of Texas held that “claim[s] of discrimination based on sexual orientation may be brought under the Texas Commission on Human Rights Act (TCHRA).” The Sims decision represents the first time that Texas law has been interpreted to provide workplace protection for LGBTQ workers and it follows on the heels of the June 2020 decision from the Supreme Court of the United States in Bostock v. Clayton County, Georgia, ruling that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation and gender identity.

Tiffany Cox Stacy San Antonio Author

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Texas Court Upholds San Antonio’s Sick and Safe Leave Ordinance Injunction

On March 10, 2021, the Texas Fourth Court of Appeals affirmed the District Court of Bexar County’s entry of a temporary injunction preventing the City of San Antonio’s sick and safe leave ordinance from taking effect. The appellate court reasoned that San Antonio’s ordinance was preempted by the Texas Minimum Wage Act (TMWA) and was thus unconstitutional.

Tiffany Cox Stacy San Antonio Author

Lawrence D. Smith San Antonio Author

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Texas Governor Ends COVID-19 Restrictions, but Employers May Want to Remember OSH Act’s General Duty Clause

On March 2, 2021, Texas Governor Greg Abbott issued Executive Order No. 34 (GA-34), rescinding most of his earlier executive orders related to COVID-19, including the statewide mask mandate and business occupancy restrictions. GA-34 becomes effective at 12:01 a.m. on March 10, 2021.

Tiffany Cox Stacy San Antonio Author

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Fifth Circuit Loss for Employee Who Refused Vaccine for Religious Reasons

As the COVID-19 vaccine becomes more readily available, employers are considering mandatory vaccination for their employees and in particular, how to respond to employee requests for accommodation, whether on the basis of disability or religion. In Horvath v. City of Leander, the U.S. Court of Appeals for the Fifth Circuit recently considered an employer’s proposed accommodations to a firefighter who refused a mandatory tetanus, diphtheria, and pertussis (TDAP) vaccine for religious reasons, and its analysis now provides timely guidance to employers considering a different type of mandatory vaccine.

Tiffany Cox Stacy San Antonio Author

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CDC Refines List of Underlying Conditions That Place Individuals at ‘Increased Risk of Severe Illness’ From COVID-19

On October 6, 2020, the U.S. Centers for Disease Control and Prevention (CDC) once again revised its list of individuals whose risk factors make them more likely to develop severe illness from COVID-19.

Tiffany Cox Stacy San Antonio Author

Charles L. Thompson, IV San Francisco Author

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CDC Expands List of Individuals At-Risk of Severe COVID-19 Illness

On June 25, 2020, the U.S. Centers for Disease Control and Prevention (CDC) expanded its list of risk factors of individuals more likely to develop severe illness or die from COVID-19.

Tiffany Cox Stacy San Antonio Author

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Texas Takes Immediate Action to Scale Back on Reopening

On June 26, 2020, Texas Governor Greg Abbott issued Executive Order No. GA-28, immediately scaling back the reopening of Texas due to substantial increases in the number of people testing positive for COVID-19 and the number of hospitalizations.

Tiffany Cox Stacy San Antonio Author

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Texas Businesses Across the State Face Fines for Failing to Comply With Newly-Issued Face Covering Mandates

As Texas has gradually reopened, the number of COVID-19 cases and associated hospitalizations has dramatically increased. In response to local conditions, Bexar County Judge Nelson Wolff recently issued Executive Order NW-10, under which all businesses operating in the county must adopt a health and safety policy that requires both employees and customers to wear face coverings.

Tiffany Cox Stacy San Antonio Author

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Austin and San Antonio-Area Businesses Now Required to Adopt Plans Mandating Face Coverings, But Fines May Be Imposed in San Antonio

On June 17, 2020, Bexar County Judge Nelson Wolff issued Executive Order NW-10, requiring all businesses operating in the county, which includes San Antonio, to implement a health and safety policy to include the mandated use of face coverings by employees and customers when social distancing of at least six feet is not possible.

Tiffany Cox Stacy San Antonio Author

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Reopening Texas: Governor Abbott Announces Phase 3

On June 3, 2020, Texas Governor Greg Abbott issued Executive Order GA-26, representing the third phase for reopening Texas, and allowing virtually all businesses to resume operations subject to continued occupancy limitations. GA-26 became effective immediately upon issuance.

Tiffany Cox Stacy San Antonio Author

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Reopening Texas: Governor Abbott Expands the List of Covered Services

On May 26, 2020, Governor Greg Abbott issued a proclamation expanding the list of “Covered Services” permitted to reopen in Texas. The proclamation is consistent with Executive Order GA-23, which “continu[es] through June 3, 2020, subject to extension based on the status of COVID-19 in Texas and the recommendations of the Governor’s Strike Force to Open Texas, the White House Coronavirus Task Force and the [Centers for Disease Control and Prevention].”

Tiffany Cox Stacy San Antonio Author

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Reopening Texas: Governor Abbott Issues Phase II Executive Order

On May 18, 2020, Governor Greg Abbott issued Executive Order GA-23 as part of his three-phase plan to reopen the economy in Texas. The three-phase plan is outlined in a report entitled “Texans Helping Texans: The Governor’s Report to Open Texas.” Executive Order GA-23 is Phase II of the plan and follows Executive Order GA-18 (issued April 27, 2020) and Executive Order GA-21 (issued May 5, 2020). Executive Order GA-23 “continu[es] through June 3, 2020, subject to extension based on the status of COVID-19 in Texas and the recommendations of the Governor’s Strike Force to Open Texas, the White House Coronavirus Task Force and the [U.S. Centers for Disease Control and Prevention] CDC.”

Tiffany Cox Stacy San Antonio Author

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Texas Workforce Commission Provides Form for Employers to Report Employee Reemployment Offer Refusals

On April 30, 2020, the Texas Workforce Commission (TWC) issued guidance identifying the circumstances in which an employee may remain eligible for the receipt of unemployment benefits despite the employee’s refusal of an offer to return to work. These circumstances included, for example, an individual being considered high risk due to his or her age (65 or older) or being diagnosed with COVID-19 and not having recovered.

Tiffany Cox Stacy San Antonio Author

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Reopening Texas: Governor Abbott Issues Executive Orders

Texas has joined the growing number of states that have begun to reopen businesses following weeks of closure due to the COVID-19 pandemic. Governor Greg Abbott rolled out a three-phase plan to reopen the economy in conjunction with a report entitled “Texas Helping Texans: The Governor’s Report to Open Texas.” Additionally, over the last few days, Governor Abbott issued a series of executive orders regarding phase two of the plan.

Tiffany Cox Stacy San Antonio Author

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Texas Workforce Commission Issues Guidance on Unemployment Claims of Individuals Who Refuse to Return to Work

As Texas begins to reopen, some employers are recalling employees placed on temporary leaves of absence or furloughs due to the COVID-19 pandemic. Invariably, a number of employees will ignore recall attempts or refuse offers to return to work. Depending upon the reason for refusal, these employees may remain eligible for the receipt of unemployment benefits, according to guidance issued by the Texas Workforce Commission (TWC) on April 30, 2020.

Tiffany Cox Stacy San Antonio Author

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Dallas Paid Sick Leave Ordinance Enjoined on Eve of Enforcement

The Dallas paid sick leave ordinance was enjoined less than two days before the City of Dallas was set to begin full enforcement.

Tiffany Cox Stacy San Antonio Author

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Judge Issues Temporary Injunction Blocking Implementation of San Antonio’s Sick and Safety Leave Law

The City of San Antonio’s Sick and Safe Leave ordinance has been enjoined. The ordinance was originally scheduled to go into effect on August 1, 2019, but on July 24, 2019, a Texas state court delayed implementation until December 1, 2019, pending a ruling on a motion for temporary injunction filed by business groups and the state.

Tiffany Cox Stacy San Antonio Author

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San Antonio City Council Approves Changes to Paid Sick Leave Ordinance

In response to a lawsuit filed by a number of San Antonio business groups, the San Antonio City Council approved certain revisions to the city’s paid sick leave (PSL) ordinance, including renaming it the Sick and Safe Leave (SSL) ordinance. The SSL ordinance is scheduled to become effective on December 1, 2019.

Tiffany Cox Stacy San Antonio Author

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