Update: Obesity as a Disability in the Ninth Circuit (US)

Courthouse close with Justice inscribedAs we previously reported here, the U.S. Court of Appeals for the Ninth Circuit and the Washington Supreme Court have been wrestling with whether obesity qualifies as a disability under the Washington Law Against Discrimination (“WLAD”).

The dispute involves an applicant for a position with a railway company who sued in 2010, alleging that the company unlawfully refused to hire him in violation of the WLAD because of his obesity.  Six years later, a federal district court granted summary judgment in favor of the railway company, holding that because the applicant could not prove that his obesity was caused by a physiological condition or disorder or that the employer perceived his obesity as stemming from such a source, his obesity discrimination claim under state law could not proceed.  The applicant appealed, and the Ninth Circuit Court of Appeals  concluded that whether obesity unrelated to any physiological condition or disease is a disability was an unresolved issue under state law, and that rather than decide the issue, it certified the question to the Washington Supreme Court to decide.  After considering the plain language of the WLAD, along with publications from the medical community, the Washington Supreme Court held last year that “obesity always qualifies as an impairment” under the plain language of the WLAD, and therefore, it is unlawful for employers in Washington to discriminate against otherwise qualified applicants because the employer perceives them to be obese.    Continue Reading

Mental health and employers (UK)

Mental health is clearly an important concern for all employers who wish to promote the wellbeing of their employees. UK employers are now facing costs of up to £45 billion per year because of their employees’ poor mental health, making this an important area for investment. This figure was revealed in the “Mental health and employers: Refreshing the case for investment” report published earlier this year by Deloitte and mental health charity Mind.

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Pandemic or Pandemonium? Employers Brace for the Coronavirus (US)

You can’t escape the panic spreading through mass and social media regarding the 2020 Wuhan Novel Coronavirus, a virus that has resulted in fatalities in China and infected thousands worldwide. Symptoms mimic that of influenza (fever, cough), but can include difficulty breathing, pneumonia, kidney failure, and death in severe cases. Despite the panic, there are only a handful of confirmed cases in the U.S., but this has done little to quell paranoia. With fear of the bug’s spread, many employers are bracing themselves the possibility of employee absences, either due to illness or fear of contagion in congested workplaces. Employers and human resources professionals can immunize themselves against some risk by implementing steps in advance. Continue Reading

Travel Ban Updates: Temporary Ban of Foreign Nationals Traveling From Mainland China Per Novel Coronavirus Outbreak; Additional Countries Added To Travel Ban 3.0

By Presidential Proclamation, dated January 31, 2020 and effective on February 2, 2020 at 5pm EST, the United States is suspending the entry of “foreign nationals who pose a risk of transmitting the 2019 novel coronavirus.” As a result, foreign nationals (of any nationality), other than immediate family of U.S. citizens, permanent residents and certain others, who have been residing in or traveled to Mainland China during the 14-day period preceding their request for admission to the United States will be denied entry. Also, on January 31, 2020, President Trump issued another Proclamation expanding the ongoing travel ban, pursuant to Executive Order 13780 of March 6, 2017, Protecting the Nation from Foreign Terrorist Entry Into the United States (Travel Ban 3.0), to include certain foreign nationals of the following six countries: Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania. Continue Reading

Does workplace sports chat put you in the penalty area? (UK)

If you saw this in the press earlier this week and just before you ask, no, cracking down on sports-related chat for the benefit of women in your workplace is not a good idea. This novel suggestion comes from the Chartered Management Institute this week on the grounds that “A lot of women feel left out. They don’t follow those sports and don’t like either being forced to talk about them or not being included” and then the truly gob-smacking “It’s very easy for it to escalate from VAR talk to slapping each other on the back and talking about their [sexual] conquests at the weekend”. What, really?

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NLRB Releases Multiple Advice Memoranda Covering a Range of Hot Button Topics (US)

NLRB LogoMemos provide guidance on a variety of topics, including employer confidentiality policies and arbitration agreements

As you may recall from our previous blog posts, National Labor Relations Board (“NLRB” or “Board”) advice memoranda are issued by the agency’s Division of Advice, which is part of the NLRB’s Office of the General Counsel (the “General Counsel”).  The purpose of advice memoranda is to provide guidance to NLRB regional offices when presented with novel or complex fact patterns on how the National Labor Relations Act (“NLRA”) should be interpreted and applied to those fact-specific situations.  Although they are non-binding and non-precedential, advice memoranda are regarded as authoritative guidance from the General Counsel, and often indicate how the Board may interpret the NLRA in the future.  Advice memoranda are confidential and non-public when issued, but the NLRB often releases them to the public once the matter in which they arose has resolved.  Accordingly, it is not uncommon for memos to be released years after they are written.

On January 15, 2020, the General Counsel released eight “new” advice memoranda.  Several of the recently-issued memos precede more recent relevant and important legal developments, impacting their interpretative significance.  However, the memos offer valuable insight into the General Counsel’s deliberative and interpretative processes.

Below is a summary of the recently-released memos, each which notes the date the General Counsel originally issued the memo, and an explanation of how each should be considered in the context of current NLRB precedent.  The full text of each of these memos can be found here. Continue Reading

UK Equality Commission issues new sexual harassment guidance

Earlier this month, the Equality and Human Rights Commission issued new guidance on sexual harassment and harassment at work. The guidance is very comprehensive, running to some 82 pages, but if you are responsible for drafting your company’s harassment policies or for handling such complaints in the workplace, you should still take a look at it to ensure that your policies and practices are in line with the EHRC’s recommendations.

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SPB In-Depth:  Service Animals as Reasonable Workplace Disability Accommodations (US)

Many individuals with disabilities use service animals to help them fully engage in everyday life.  Animals, particularly dogs, can be trained to perform a wide range of tasks to help people with disabilities, and the number of tasks these specially trained animals can perform continues to grow. As a result, more applicants and employees are requesting the use of service animals as a reasonable workplace accommodation for a variety of different disabilities.  In addition, the growing popularity of emotional support animals adds another layer of complexity to the issue of animals in the workplace for employers.  Because the law in this area is somewhat murky, employers must use caution when addressing service animal/emotional support animal accommodation requests and need to be prepared to address the potential challenges that such accommodations can entail.

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