Three Ward and Smith labor and employment attorneys walked through a series of challenging, real-world scenarios that many employers are facing.
The webinar, part of Ward and Smith’s 2021 Virtual Employment Law Symposium, tackled problems related to post-pandemic return-to-workplace plans, vaccination mandates, diversity initiatives, drug tests, and more.
The session — Busy as a Bee: LARPing a Day in the Life of HR — used the Labor and Employment Practice Group’s signature live-action role-playing (LARPing) technique to talk seminar participants through timely issues.
Ken Gray, who leads the labor and employment law group at Ward and Smith, moderated the session, along with two colleagues: Emily Massey and Justin Hill.
“We want to help you get in the mind of an employment attorney,” Gray says. “These are real-life questions that we’ve dealt with in the last several months.”
The attorneys' various hypothetical conundrums came from a fictional company, Busy Bees Inc., which has 400 employees and operates in several states.
Reluctant to Return to Work
Busy Bees has announced to all employees it expects everyone to be back in the office full-time by a certain date. Furthermore, the company has decided to mandate that all employees be vaccinated against COVID-19.
Sarah Sting, a graphic artist who has worked from home since she was hired five years earlier, informs the HR manager that she doesn’t feel comfortable returning to the office because she’s on medication that compromises her immune system.
She’s also hesitant to get the vaccine as she’s prone to anaphylactic shock — a potentially fatal allergic reaction. And she also has a special needs child who has been approved for remote learning for the upcoming school year.
Can Busy Bees compel Sarah Sting to work in the company’s offices?
Before the company can decide, Gray says, it must work with Sarah to learn about her objections and understand whether she may be legally entitled to accommodations.
"Given the issues that Sarah has raised with compromising immune medication and anaphylactic reactions, you must first engage in the interactive process to determine if you can provide a reasonable accommodation," Gray says.
Suppose Sarah is entitled to special accommodations under the Americans with Disabilities Act (ADA). In that case, Massey says, it will be difficult for the company to argue against her working from home since she did that before COVID-19 struck.
Diversity and Speech
Busy Bees’ leaders want to diversify the company’s supervisory ranks — promoting more women and people of color into those roles.
A mandate from the CEO says that no supervisory position at the company can be filled before considering whether there’s a woman or person of color who can take the job. The CEO also sets percentage goals for diversity in supervisory positions and indicates that year-end bonuses for executives will depend on meeting the diversity targets.
Many white male employees believe the new rules will restrict their promotion opportunities, and they start wearing T-shirts with slogans such as “White men matter” and “White men deserve promotions, too,” which the CEO promptly bans — even though the company had previously allowed employees to wear shirts with messages promoting women’s and LGBTQ+ rights and those condemning white supremacy.
“Should Busy Bees proceed with its diversity initiative unfettered and maintain its practice of silencing employees protesting against these initiatives?” Hill asked participants.
Massey says employees need to be consistent in their policies regarding whether they allow employees to wear clothing with messages or not — barring profanity or obscenity, of course — and then enforce that approach equally.
“You can certainly draw the line in regard to things that would be true hate speech and things that would incite violence,” Gray says.
Gray also notes that although there is a perception that white men are not a protected class in employment law, that’s not true. “Title VII [of the Civil Rights Act] talks in terms of individuals not being discriminated against based upon race, sex, gender, age, religion, national origin – all of those. It did not say a particular race, so all races are protected under Title VII.”
Dodging DEI Training
Busy Bee also decides to hold mandatory in-person diversity, equity, and inclusion (DEI) training sessions and announces a nationally recognized expert will make presentations at each company worksite.
Some employees, however, research the speaker on the Internet and determine she has controversial opinions. They decide they will claim to have been exposed to COVID-19 and self-quarantine the day the speaker presents. When the CEO hears this, he warns that anyone missing the meeting will face discipline.
Seminar participants raised alarm bells at the idea of disciplining employees for missing the DEI training.
One seminar participant asked if employees deciding to self-quarantine under false pretenses was a kind of collective action and potentially protected under national labor law.
“In this circumstance, if the person’s lying about being exposed to COVID-19, that would not be valid,” Massey says. But, she adds, “There would be an argument that these white male employees are coming together and saying we don’t feel like we’re being treated fairly. That could rise to a National Labor Relations Board complaint.”
Gray also touched on best practices for DEI training. Successful DEI programs, Gray says, should not “single out any particular race in an adverse capacity.”
"If you take that approach, you're going to alienate a segment of your population, and they're not going to hear the message that you want to be conveyed," he says. "The message we want to convey is one of inclusivity and not one of pigeon-holing folks … just because of the way you were born."
Fair Firing or Retaliation?
The day before the controversial diversity training at a Busy Bees North Carolina facility, Willie Wax — an employee who's been vaccinated — finds out that he may have been exposed to COVID-19. The night before, he calls his supervisor and says he'll be staying home and self-quarantining the following day.
Willie believes his action follows recommendations from the Centers for Disease Control, but in fact, those recommendations have changed, and guidelines now say it's OK for him (as a fully vaccinated individual) to go to work so long as he is not exhibiting symptoms himself.
Busy Bees' CEO decides to fire Willie immediately, believing he lied about his COVID-19 exposure and stayed home to avoid the diversity training. Willie sues.
Who’ll win the lawsuit — Busy Bees or Willie? It turns out the answer isn’t simple.
Although federal laws barring retaliation for employees who choose to stay home due to possible COVID-19 exposure expired at the end of 2020, Hill notes that some states still have anti-retaliation measures in place. That means companies need to consider what state laws may apply before acting.
North Carolina does not have such anti-retaliation measures in place, but Busy Bees isn’t entirely in the clear yet. Willie might find legal grounds under state workplace health and safety laws or the ADA.
Communication is usually the best first step, Massey says. Terminating Willie because he did what he thought was the right thing "is really not good for employee morale," she says. "Even though it might be possible that the employer could win, why would we want to take that risk?"
Hazy Legal Area
Another evolving area of employment law deals with marijuana — a drug that is legal in a growing number of states.
Busy Bees has a company-wide zero-tolerance policy for drugs and alcohol. A random drug test administered to Bob Buzzed, however, turns up a positive result for THC. Bob has arthritis and fibromyalgia and says he has never taken marijuana but does use CBD oil for joint pain.
Whether or not Busy Bees can let Bob go for the drug test failure has become a surprisingly complicated legal question. Many states, including North Carolina, have laws that say employees can’t be terminated for engaging in lawful conduct outside of work. Although CBD oil has very low levels of THC, enough of it can build up over time to trigger a positive for marijuana.
Further complicating the matter could be what kind of job Bob has. Hill notes that state exemptions that protect lawful conduct outside of work have exemptions for federal contractors and some federally regulated professions, such as commercial driver's license holders, who the federal government regulates.
In one real-world case, Gray says, an employer had a truck driver employee who tested positive for THC because of doctor-ordered CBD oil he was taking. The company didn’t want to terminate him, but the only way around the federal regulation was to have him go through a 30-day drug rehab program, and those the employee approached refused to admit him because he didn’t have a drug problem.
Massey also noted that some states, including North Carolina, have rigorous requirements for how employees are drug tested, the testing mechanisms used, and the notice employers provide.
Too Old to Work?
The final situation that Busy Bees had to deal with involved its oldest and longest-tenured employee — Harry Hive. The 82-year-old has no plans to retire and intends to continue to work until he’s no longer physically capable.
But in the last few years, his performance has declined. Harry has asked to work from home. And he’s complaining that his supervisor is discriminating against him due to his age and the fact that he’s not as skilled with technology as his younger co-workers.
Massey notes that every employee over the age of 40 is protected from age discrimination, which can make it difficult to find a way to usher a poor-performing, older employee out of the workplace.
Busy Bees has several options. Managers could sit down and have a candid conversation with Harry. The company could start writing up every work deficiency, creating a paper trail to make it easier to fire him. They could offer him an attractive severance package to persuade him to retire. Perhaps they could do all three. Or the company might try changing Harry’s job responsibilities to accommodate his declining performance.
Regardless of the performance problems, all three attorneys agreed that Busy Bees must investigate those claims if Harry is complaining about possible discrimination. "We need to make sure we're taking his complaint seriously," Massey says.
Hill notes that altering Harry’s responsibilities could run afoul of discrimination laws — changing the essential functions of his job and handing him legal cause for a lawsuit.
Gray, Massey, and Hill like some combination of the first three options: A candid conversation, a careful but fair document of Harry’s performance, and perhaps — if Harry brings up the possibility of retirement — encouraging him along with a sweet severance package.
No matter how Harry reacts to any company actions, Busy Bees’ actions with Harry will affect more than just one employee.
“Our decision here,” Gray says, “is going to set a precedent for how we’re going to treat other employees.”
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