What Should Be On Every HR Exec's Agenda NOW

The Supreme Court is a good place to start

Human Resources has a lot on its plate as employers and workplaces emerge from Covid remote work arrangements.  It has been about two years since many offices were filled with employees milling around, having lunch, and talking shop.  Likewise, it has been some time since many HR professionals have had the opportunity to review many of their foundational documents such as employee handbooks and related SOPs. What should be top of mind as HR returns to office?  The Supreme Court is a good place to start.

The question in Bostock was whether Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination on the basis of sex orientation and transgender status under sex discrimination.  The Supreme Court answered with a resounding “yes”.  The Court stated “An employer who fires an individual merely for being gay or transgender violates Title VII.”  This finding has a far-reaching impact.  Fundamentally, employers should be updating their employee handbooks to be sure that they prohibit harassment, discrimination, and retaliation on the basis of sexual orientation and transgender status (among other protected classes). Likewise, employers should be training their managers and employees regarding their rights and obligations under Title VII (among other employment laws). But this Court decision goes further than the employee handbook.

Title VII prohibits discrimination with respect to “compensation, terms, conditions, or privileges of employment” which includes employee benefits. It’s clear that Title VII prohibits discrimination in the offer of coverage. But were you aware that it may also apply to the actual plan design and coverages/exclusions in the insurance plan itself? On June 6th a Middle District Court in Georgia found that an employer’s health plan that excluded coverage for transgender medical, surgical, and psychological services violated Title VII. In Lange v. Houston County Georgia, the employee sued her employer for the failure of the group health insurance to cover her transgender medical, surgical, and psychological services.  The court found that [d]enying healthcare coverage “because of” sex unquestionably violates Title VII because those benefits are “compensation, terms, conditions, or privileges of employment” under the Act.

This means that employers should not only update their employee handbook, but likewise should review their employee health insurance exclusions and consult with their broker and outside counsel. 

In November 2021, the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB) (collectively the Agencies) announced a joint information sharing effort to end retaliation in the workplace. Specifically, the Agencies stated:
The initiative will include collaboration among these civil law enforcement agencies to protect workers on issues of unlawful retaliatory conduct, educate the public and engage with employers, business organizations, labor organizations and civil rights groups in the coming year.

The Agencies have developed a memorandum of understanding formalizing the cooperative effort to enforce related laws and protect workers’ rights. This means that it is possible for one agency (such as the DOL) to engage in an investigation and based on its findings, share information with another agency (such as the EEOC or NLRB) which may trigger a second investigation from the additional agency.  The core focus of this collaboration is to combat retaliation in the workplace.

Therefore, as employers update their handbooks, they should also pay special attention to their complaint procedures and anti-retaliation policies. Employers may want to consider offering a hotline to employees providing a neutral avenue for complaints.   Likewise, training is incredibly important.  Ensuring that your managers and decision makers understand what may constitute retaliation and their obligations is an essential component of any retaliation prevention program.

Back in 2002 when WHO declared Covid-19 a pandemic and the EEOC declared it a “Direct Threat” employers' Covid-19 medical inquires became subject to the ADA “direct threat” standard.  During a pandemic, ADA-covered employers may ask employees if they are experiencing symptoms of the pandemic virus. Why was this allowed? Because employers may request information to determine whether an employee may perform his or her essential job functions without posing a direct threat. However, employers are also prohibited from asking employees about their Covid-19 symptoms if they are not coming into the workplace or attending live work-related meetings (such as a client lunch or attending a conference).

However, even in a pandemic and under a direct threat, employer inquiries remain limited to information regarding whether the employee poses a direct threat.  This means, for example, an employer may not request an employee’s complete medical record because the records are likely to contain information unrelated to whether the employee can perform his or her essential functions without posing a direct threat. 

It has been more than two years since the declaration of a “direct threat”. During this time, HR departments have updated technology, policies, protocols, and processes to include Covid-19 symptom questionnaires.  When Covid19 is no longer a pandemic and the EEOC removes the “Direct Threat” declaration, HR professionals will have to unravel many of their Covidmedical screening processes.  Employers will no longer be able to engage in medical surveillance of Covid-19 for general health and safety purposes.  For example, employers will no longer be able to screen employees for Covid-19 symptoms or take the temperatures of employees entering the workplace or attending workplace functions.  Likewise, employers will no longer be able to conduct Covid-19 testing or seek the results of Covid-19 tests as a condition of attending work.

In many cases, this also means retraining HR professionals who may have joined the profession during the Covid-19 pandemic and have not operated under the more traditional (non-Direct Threat) ADA medical inquiry rules. 

The legalization of marijuana across the U.S. varies greatly by state.  The differing rules and obligations across the U.S. create significant complexity for multi-state employers.  For example, in some states, the failure to accommodate an employee who uses marijuana for medical purposes may be a violation of state disability laws.  Conversely, in other states, employers have no obligation to accommodate employees who use medical marijuana and employees have no private right of action.  For instance, on March 30, 2021, New York laws began prohibiting employers from taking any action against someone for using recreational marijuana when not working.  Conversely, as of April 12, 2021, New Mexico passed a medical marijuana law that affords several protections to employers and does not provide employment protections to recreational users. This makes developing a “one size fits all” drug-free workplace policy virtually impossible.

The current labor shortage adds to the complexity. HR and recruiters are under tremendous pressure to find and retain talent.  Employers may be tempted to eliminate THC from their drug screening protocols.  However,  in some states allowing the use of marijuana may jeopardize the employer’s workers compensation coverage – especially for safety-sensitive positions. Employers should speak with outside counsel, their broker, and their workers’ compensation carrier before making any changes to their drug testing programs (including those that are specifically designated as a Drug-Free Workplace).

Another state-based complexity includes time off and paid leave rules. States (along with some counties and municipalities) have been actively engaged in passing mandatory paid time off laws.  For example, there are now eight states plus the District of Columbia and Puerto Rico with Paid Medical/Paid Family Leave benefits currently in effect (California, Connecticut, District of Columbia, Hawaii, Massachusetts, New Jersey, New York, Puerto Rico, Rhode Island, Washington).  Moreover, there are additional four states who have passed legislation with benefits effective in the future (Colorado (2024), Delaware (2026), Maryland (2025), Oregon (2023)). Compounding this complexity, there are 18 states with Paid Sick or Earned Leave Time requirements and 23 Cities and Counties with Paid Sick Leave requirements. 

Multistate employers are constantly challenged to remain up to date in both their practices and their policies.  Having solid multi-state compliance resources is imperative.  There are a wide array of resources available to employers to assist with multistate compliance including law firms, consulting firms, and online subscription tools. 

This article encompasses only some of the hottest topics for HR today – in addition to the ongoing foundational HR obligations including training, audits, and HR operations.  The bottom line – the HR profession is increasingly complex and an essential role for every organization.  If you see an HR person today, say thank you.  It’s been a long few years.

Carrie B. Cherveny, Esq., is Chief Compliance Officer and Senior Vice President of Employment Solutions at global insurance brokerage, Hub International. She has 20 years of combined experience in employee relations working on the management side providing human resources, employment law, and employee benefits legal guidance. Carrie works closely with clients to identify compliance risks across the organization and develop responsive strategies and solutions that ensure compliance and further the overall organization's goals. Carrie has been at the forefront of the Covid pandemic helping employers navigate the complex employment, health and safety laws while maintaining their operations.  Part of Carrie’s focus is risk mitigation when it comes to various insurances such as health and welfare programs and employment practices liability.    Connect Carrie B. Cherveny, Esq.