Animal magic – Assistance animals at work (UK)

Surprised cat

So you’ve seen the news stories about the chap suing Sainsburys for not letting him in with his “assistance cat”, yes?  He suffers from severe autism and unless accompanied by his cat, finds the noise, lights and crowds within the store impossible to manage.  You would allow in a guide dog, he says, so what’s the difference? Excluding my cat is effectively excluding me by reason of my health condition, and that is unlawful discrimination.  A prime example of silly-season news, you might think initially, but let us all take a deep breath and consider what might be the ramifications for the workplace if he succeeds. 

That would establish the principle, though nothing more, that permitting animals onto working premises where they would not normally be allowed could be a reasonable adjustment for disability in some situations. I confess to a degree of concern.  Some decades ago I advised on one of the first requests of a blind employee to bring his guide dog into his City offices.  His colleagues were fine with it and the question of how the employer would deal with the competing demands of a necessary dog on the one hand and raging allergies on the other mercifully did not arise (though look out for it in future).  Sadly this early experiment in canine inclusion came to a sudden end when the dog developed reportedly unstoppable flatulence and “offensive working environment” took on a whole new meaning.

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More healthcare professionals given powers to issue fit notes – a sticking plaster or fit for purpose? (UK)

As of 1 July, the rules on Statements of Fitness for Work (“fit notes”) will change. In addition to doctors, now nurses, occupational therapists, pharmacists and physiotherapists will also be able to issue them – although that must still be following an “assessment” and fit notes cannot be issued simply on request or “over the counter” (the link to the amended legislation is here).

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Lessons for California Employers from Viking River (US)

Last Wednesday, the U.S. Supreme Court waded into the complicated and controversial waters of California’s Labor Code Private Attorneys General Act (“PAGA”).  At issue was whether pre-dispute arbitration agreements between employers and employees could be enforced to compel PAGA claims into arbitration – California courts had said no.  At stake is a huge loophole which allows plaintiffs to ignore arbitration agreements and class action waivers in such agreements to bring cases on behalf of huge groups of past and current employees. Since the plaintiff and their counsel are considered to be standing in for the State of California, PAGA claims also allow plaintiffs to bypass traditional class certification proceedings.

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Implementation of the EU Whistleblowing Directive in France: latest position

Man whistleblowing

France already has fairly extensive legislative protection in place for whistleblowers under its “Sapin II” law, with certain private and public organisations required to operate whistleblowing schemes, but the scope of this protection is being expanded to ensure compliance with the EU Whistleblowing Directive. Legislation to that effect was supposed to go live in each EU member state by December last year but by what appears to be general and unspoken consent, most have focussed instead on more pressing matters relating to Covid and conflict in Ukraine, and it is only now that we are beginning to see material progress on the whistleblowing front.

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Implementation of the EU Whistleblowing Directive in Spain: latest position

Man whistleblowing

In our latest update on how the EU Whistleblowing Directive is being implemented across Europe, we focus on recent developments in Spain.

Whistleblowers in Spain currently have very little legislative protection, with existing provisions limited to certain types of complaint (e.g. money laundering) and certain sectors (e.g. financial institutions).  To comply with the much broader requirements of the Directive, Spain has recently issued a new draft law that seeks to protect those who raise allegations about breaches of EU law (as defined in the Directive), as well as other acts or omissions that breach Spanish law and “affect the general interest” (a precaution to limit the scope for use of the law to pursue personal agendas in individual disputes).  As you would expect, given the minimum requirements are set out in the Directive, most of the new obligations in Spain are similar to those we have already outlined for Germany and France. There are, however, a few important differences for employers to note.  

Key points for businesses operating in Spain are:  

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Summer State/Local Law Round-Up, Part 2 of 2: Ohio through West Virginia (US)

In our post earlier this week, we covered recent developments in state and local labor and employment laws in the states at the beginning at the alphabet. We now turn our attention to developments in the remaining states.

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Summer State/Local Law Round-Up, Part 1 of 2: California through New York (US)

Now that we’re almost half-way through 2022, it’s time again to cover all of the development in state and local labor and employment laws. It’s been a busy time in the state legislatures and city councils, with lots of new laws and amendments to existing laws. In fact, due to the large number of updates, we are splitting our post into two parts. Today’s update covers states in the first half of the alphabet. We’ll post part two, with updates for the remaining states (Ohio through West Virginia), later this week.

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Seventh Circuit Reminds Employers Words and Actions Both Count in FMLA Cases (US)

Employment Law

Most employers know that under the Family and Medical Leave Act (FMLA), employees who have worked at least one year (and at least 1,250 hours in that year) have the right to take leave for their own or a close family member’s serious health condition, among other reasons. And most employers that are subject to the FMLA (those that have at least 50 employees) understand that denying a qualified employee the right to take that leave would be a violation of the FMLA, as would retaliating against the employee for taking protected leave. But what about an employer that simply discourages employees from using available FMLA leave? Can that alone – simply suggesting it would better not to take FMLA leave, even if the request itself is not denied – violate the law?

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Employers Beware:  Take-Home COVID Cases are on the Rise (US)

You’ve just been informed that an employee who apparently contracted COVID-19 from an exposure in your workplace brought the virus home, and now his spouse, who is in a high-risk category, has contracted the virus and is in the hospital.  Do you as the employer face potential liability for the spouse’s illness?

More than two dozen so-called “take-home” COVID-19 lawsuits have been filed across the country, including against some of the largest employers in the US. This alarming pattern has prompted trade groups to warn employers of the potential for lawsuits stemming from COVID infections filed not only by workers’ family and friends, but by anyone infected by that circle of people, creating a seemingly endless chain of liability for employers. Some states have enacted laws shielding employers from such suits, but where that is not the case, the legal theories and procedural paths under which these suits have proceeded vary – including some being brought in state courts, some in federal courts, and others brought under claims within the worker’s compensation system. 

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Letters from America – risks of discrimination in AI-backed recruitment processes (UK)

Artificial Intelligence

So following our recent post on proposed new regulations it’s not just the EU which is looking askance at the potential risks of artificial intelligence in recruitment.  From across the pond comes news that the US Department of Justice has warned employers to take steps to ensure that the use of AI in recruitment does not disadvantage disabled job candidates, or else face the pain of breaching the Americans with Disabilities Act.  The ADA already requires US employers to make the equivalent of the UK’s reasonable adjustments to allow disabled candidates to take part fairly in the recruitment process.  However, both the ADA and the Equality Act were conceived well before the widespread use of AI in recruitment. Consequently there is concern that automated decision-making originally designed to reduce the scope for subjectivity and bias may actually create new disadvantage for candidates with disabilities, usually by screening out individuals who, by reason of their medical conditions, do not match the “ideals” which the algorithm is looking for.

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