Quick Hits - August 11, 2021 - American Society of Employers - Heather Nezich

Quick Hits - August 11, 2021

VETS 4212 reporting open:  The VETS 4212 reporting tools are open.  Federal contractors and subcontractors with $150,000 or more in contracts are required to file.  The tool closes as of September 30, 2021.   For more information, go to DOL VETS. 

No return date derails ADA claim: A school’s registrar who exhausted her Family and Medical Leave Act entitlement and did not provide a return-to-work date was not due additional leave under the Americans with Disabilities Act, the 5th U.S. Circuit Court of Appeals held (Drake v. Spring Independent School District, No. 20-20376 (July 27, 2021)).  Near the end of her leave, the employee inquired about additional time off, but her medical documentation only indicated dates on which she would be re-evaluated by a doctor. The employer fired her, citing the lack of a return plan. She sued, and a federal district court ruled in the employer’s favor. On appeal, the 5th Circuit upheld the lower court’s ruling, agreeing that because she "was out of leave and could not provide a return date, … no accommodation existed."  Source:  HR Dive 8/5/21

Religious objection to call employees by their names of choice could lead to termination:  John Kluge, a former music and orchestra teacher at Brownsburg Community School Corporation ("BCSC") allegedly was forced to resign after refusing to refer to transgender students by the names selected by the students, their parents, and their healthcare providers due to the teacher's religious objections. Kluge identified as Christian and claimed that referring to students by their preferred names would "encourage students in transgenderism" and "promote gender dysphoria," which went against his religious beliefs that "God created mankind as either male or female." Initially, BCSC provided Kluge with the option of referring to students using only their last names, but ultimately, that accommodation was rescinded after several complaints were brought forward from other teachers, students, and parents regarding the negative impacts this practice had on transgender students.  An employee who otherwise in a non-school setting does the same thing for similar reasons may be disciplined for harassment.  Consult with legal counsel before taking action.  Source:  Husch Blackwell 7/27/21

Are employees avoiding HR? Workers may be skirting their HR departments, July survey results from Elements Global Services revealed.  Two-thirds of the 1,000 workers surveyed said they have decided not to report an issue to HR "because they didn't think HR would fix the issue." Such issues included workloads, personality conflicts, bullying, compensation, and sexual harassment.  Half of respondents who said they avoided taking a problem to HR did so for fear of retaliation.  Something to think about when discussing HR strategy in the new work environment.  Source:  HR Dive 8/5/21

How long does it take to make a hire? After submitting a job application, the inevitable question follows: “When will I hear back from the company?”  However, a new study from LinkedIn sheds some light on how long it really takes to get hired. Researchers from LinkedIn’s Economic Graph team analyzed the profiles of 400,000 confirmed hires on their platform between June 2020 and March 2021 to determine which jobs take the longest time to fill across 15 different industries.  Engineering tops the list, as it takes an average of 49 days for candidates from submitting their job application to starting their first day on the job. Technical positions in research, finance, and information technology (IT) follow closely behind, taking 48, 46, and 44 days on average to fill.  Hiring tends to move at a faster pace in non-technical fields, including sales, human resources, and customer service, which typically hire and start candidates in new roles within 38, 39, and 34 days, according to the study.  So, when your managers complain about the slowness of hiring, take them to the study.  Source:  CNBC 8/6/21

Long COVID could fall under ADA:  The Biden administration released several resources on long COVID's interaction with the ADA. People with this condition are sometimes called “long-haulers.” The U.S. Department of Health and Human Services and Department of Justice both published guidance saying that long COVID is considered a disability under Titles II and III of the ADA "if it substantially limits one or more major life activities" — the threshold the statute uses to define any disability.  HHS offered several circumstances in which long COVID may substantially limit a major life activity. Long-term coronavirus symptoms may disrupt breathing, eating, or thinking — all major life activities. People whose COVID-related conditions qualify as disabilities are entitled to the same protections as anyone else with a disability, HHS said. Although the EEOC has not yet chimed in, it is expected to be consistent with Title I requirements of the ADA as well.  Long COVID affects somewhere between 10% and 30% of people who've contracted the virus, according to reporting by The Wall Street Journal. That figure includes those who experienced mild or asymptomatic infections. The guidance is on the HHS website at https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/index.html and on the DOJ website at https://www.ada.gov/long_covid_joint_guidance.pdf - PDF. Source:  HR Dive 7/28/21

Scabby the Rat still lives:  In a decision issued in July in Lippert Components, Inc. 371 NLRB No. 8 (2021), the National Labor Relations Board found that a union did not violate the National Labor Relations Act by displaying a 12-foot inflatable rat with red eyes, fangs, and claws (“Scabby the Rat”) and two large banners, one targeting a neutral employer (Lippert Components), near the public entrance to a trade show. The prior General Counsel had alleged that the display of these items was unlawfully coercive, arguing that the Board should overrule precedent. The Board had earlier issued a notice and invitation to file briefs on that question. Three members of the Board joined in an opinion dismissing the complaint. In her separate concurrence, Chairman McFerran expressed her belief that the outcome of this case was required by Board precedent. In their separate concurrence, Members Kaplan and Ring agreed that the complaint must be dismissed here to avoid creating a possible conflict with the First Amendment but expressed disagreement with some aspects of prior precedent. Member Emanuel, dissenting, would have found the banner and rat display to violate the Act.   Source:  NLRB 7/21/21

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