Tag: lawyer for small business

How to Reduce Risk of Litigation: Mandatory Covid-19 Vaccine Religious Exemption

September 9, 2021

As we attempt to escape the dark days of the COVID-19 pandemic, thanks in no small part to the availability of a vaccine, new changes are still being made in offices across the United States and the world to make that exit a reality. In the US, several  employers require staff members to take vaccinations to keep the office safe and free from health scares.

But one size does not fit all — several employees are requesting an exemption from compulsory vaccinations on various grounds, including religious reasons. But is this a conversation worth having? And what does US federal law say about the rights of individuals to exempt themselves from compulsory vaccinations on religious grounds? Let’s find out.

Understanding Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on religious beliefs or practices. In the case of the mandatory COVID-19 vaccinations, this law requires small business owners to accommodate a staff member’s request to be exempted from compulsory vaccinations because of sincerely-held religious beliefs.

Of course, this does not mean employers must accept an employee’s plea not to take the vaccine without question. Based on specific clauses in Title VII, company executives can look into religious objections made by employees to determine whether their requests are legitimate and fall in line with the requirements of the law.

Quickly, let’s look at some clauses in Title VII that may help small business owners handle issues surrounding religious exemptions from COVID-19 vaccinations.

Determining Whether the Employee’s Request is Based on Sincerely Held Religious Beliefs

While US laws require company executives to accommodate a staff member’s sincerely held religious beliefs, it can be tricky to recognize this belief, faith, or practice.

For clarity, Title VII does not recognize philosophical, political, and social ideologies under religious beliefs. As such, employees cannot use those factors as a basis to exempt themselves from vaccinations. Title VII also does not cover personal preferences.

That said, when an employer is not clear on the religious beliefs of a staff member, the employer can request additional information – either through documentary evidence of the tenants and dogma of the faith or one-on-one explanations – to clarify the situation. However, before casting doubt on an employee’s beliefs, the employer must ensure her reservations are objective and not coming from a place of discrimination. To be on the safe side, though, we would recommend companies consult legal help for complete clarity and guidance before making any move to question a team member’s religious objections.

Refusing Appeals for Religious Vaccination Exemptions Because of Undue Hardship

Under Title VII of the Civil Rights Act, employers may deny a staff member’s plea for exemption if granting the request would cause undue business hardship. For better understanding, approving a request for religious accommodation may cause undue hardship if:

●      It will significantly decrease business efficiency and productivity

●      It will infringe the rights and privileges of other members of the workforce

●      It puts staff and  customers at risk of workplace hazards

●      It may require other members of the team to execute more than their quota of hazardous tasks

●      The accommodation is too costly

Accommodations to Consider in the Event of Religious Exemptions from Mandatory COVID-19 Vaccinations

If an employer decides to grant an employees’ requests to be exempted from COVID-19 vaccinations, the employer may need to make some changes around the office to accommodate these individuals. Some of the steps an employer can take for exempted employees may include:

●      Mandatory wearing of face masks

●      Social distancing within office premises

●      Remote working

●      Isolation to a specific workplace

●      Alterations to employee’s work schedule to limit interactions with clients and other members of the workforce

Before putting these measures in place, the employer will need to review company policies on religious accommodation with company executives and managers; discuss with employees the proposed accommodations to be put in place around the office; and, appoint a supervisor to process and respond to all requests for religious accommodations.

Get Legal Help 

Employment laws in the US can be tricky, and when it comes to religious exemptions from COVID-19 vaccinations, small business owners may require the aid of a legal professional to navigate the muddy waters and avoid any potential litigation.

Therefore, if you are in need of an attorney to help you with issues relating to religious exemptions from COVID-19 vaccinations, consider contacting The Law Office of Sheri Oluyemi, LLC. We have an experienced team of professionals who specialize in employment law cases for small businesses, and we can provide your company with the legal counsel to respond to religious accommodations for COVID-19 vaccinations.

Positive Drug Test? Now What?

October 28, 2019

What does a public employer do when a job applicant’s test comes back positive? 

In the business world, employers sometimes ask job applicants to submit themselves to drug tests. A drug test can be completed either through a urine sample or hair follicle, depending on the County or State. So, what happens when the test results come back positive?

A few 11th Circuit decisions have weighed in on the issue of the best way for public employers to deal with a job applicant’s positive test results.  In Voss v. City of Key West, Voss applied for a position as a Solid Waste Coordinator at a train station. When asked to undergo a preemployment drug test, she refused, and filed an action challenging the constitutionality of the city’s workplace policy after she was not hired. The United States district court, in making its decision, gave employers three things to look out for before making an employment decision after an applicant’s test results return positive. 

 1.     Verify the importance of the test to the company or organization to determine whether it justifies a fourth amendment intrusion. In Voss, the Court decided that the reasons that the city gave for conducting a drug test for job applicants were not justified. The city claimed that the test was created to protect the public from motor vehicle accidents and personal injury to the employees and the public; stating that employees who use illegal drugs tend to be “less productive, less reliable and prone to greater absenteeism.”

2.     Ensure the desired position is one that is safety-sensitive. The position at issue in Voss was a Solid Waste Coordinator and the court found that this was not really a safety-sensitive position. Because, among other reasons, the city does not subject the Solid Waste Coordinator to random drug testing to which it subjects employees the policy classifies as “public safety positions”. 

3.     Distinguish between employees and applicants before carrying out a drug test. If the tests are disclosed to applicants before they apply, then they have the opportunity to withdraw their applications or not apply at all before any invasive tests are carried out. The court advised that employers should make sure that applicants have knowledge of the test before they submit their applications. 

More recently, as the issues of opioid and medical marijuana workplace pervasiveness rise to a head, both public and private sector employers must remember to consider the requirements of the American Disability Act. 

The ADA requires employers who are aware of a disability to provide a reasonable accommodation that would permit the disabled employee to perform the essential functions of her job. Accordingly, when an applicant’s drug test comes back positive the employer should inquire whether the applicant is taking such medication for medical reasons before making a decision on hiring the applicant. Essentially the results of this inquiry could lead to a requirement to commence, and participate in, the interactive process pursuant to the ADA.

In conclusion, if an employer is able to justify their reasons for requesting a pre-employment drug test, show that the position for which the test is required is safety-sensitive, disclose the requirement for a test to the applicant in advance of the application, and consider its obligations under the ADA, only then is the employer is free to make decisions based on its employee relations policies.

Hot Off the Press: New Overtime Rules

October 4, 2019

The Federal Labor Standards Act requires employers to pay overtime to employees who work over 40 hours in a workweek, unless the employee works in an “exempt” position. There are various classes of exempt employees, one of which is the executive, administrative and professional employees (i.e., the “white-collar” exemption). Generally, to qualify for the “white-collar” exemption, an employee:

  • must be paid a fixed weekly salary (the “salary basis test”), and

  • must primarily perform executive, administrative or professional duties in accordance with the Department of Labor regulations (the “duties test”).

Released on September 24, 2019 but effective January 1, 2020, the Trump Administration has announced its intention to revise the salary threshold for white collar employees and highly compensated employees. The new regulations do the following:

  1. Increase the threshold salary earnings for exempt executive, administrative and professional employees (i.e., the “white-collar” exemption) by 50% from $455 per week ($23,660 annually) to $684 per week ($35,568 annually) and for highly compensated employees from $100,000 annually to $107,432 annually.

  2. Allow employers to use non-discretionary bonuses and incentive payments, in kind commissions paid at least annually, to satisfy up to 10 percent of the salary threshold.

  3. Permit employers to make a “catch up” payment if an employee does not earn enough non-discretionary bonuses or incentive payments in a given year, as long as the payment is made within one payday of the end of the 52-week period.

  4. Omit any automatic updates to the salary threshold and instead reiterates its determination to update the earnings thresholds more regularly through notice-and-comment rulemaking.

Repercussions for Employers:

  1. Employers who fail to satisfy the minimum salary level will lose the exemption for their employees and be required to pay overtime at the legal rate.

  2. Thus, employers must immediately audit and reclassify affected employees in order to ensure overtime eligible employees are paid their due, that salaries are increased or other compensation is introduced to avoid overtime eligibility. The Department of Labor estimates that 1.3 million workers will become non-exempt when the proposed rule becomes effective, yours might be one of the 1.3 million to be affected.

    1. An audit would consist of reviewing payroll records for salary history, reviewing job descriptions for exempt/non-exempt classification, consider options to pay the affected employees more, or reassign their duties to avoid the need for overtime hours.

    2. An audit should also include a review and revision of benefit plans that determine eligibility and other metrics on salary or exempt/non-exempt status.

  3. Some states have thresholds higher than the federal even after this change, such as New York. Georgia follows the federal rules. Apply the rules appropriate to the state in which you have employees.

  4. Call our office or visit the Department of Labor’s website for more information on how to implement these changes in your workplace.