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Title VII to Protect LGBTQ Community

It is not every day that the United States Supreme Court issues a decision that dramatically changes the workplace, but it happened this week. In a landmark decision captioned as Bostock v. Clayton County, issued by the Court on June 15th, the Court ruled that federal law prohibiting discrimination on the basis of “sex” will now include protections for individuals on the basis of sexual orientation, transgender, and gender identity.

On its face, Title VII of the Civil Rights Act of 1964 provides, in pertinent part, that it is an “unlawful employment practice for an employer” to discriminate against an individual “because of such individual’s race, color, sex, or national origin” (emphasis added).

In the decades since its passing, courts across the country have grappled with the meaning of “sex” within the text of Title VII and the extent of its coverage; however, today, the Court clarified that “sex” includes sexual orientation, transgender, and gender identity, extending employment protections to these protected classes of people.

Justice Gorsuch delivered the opinion of the Court in which he writes:

In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires [or discriminates against] an individual merely for being gay or transgender defies the law.

This is a very important decision for all employers in America to recognize and follow as it will surely lead to liability and lawsuits for those employers that choose to ignore it. Practically, this decision prohibits an employer from considering an employee’s sexual orientation, transgender, or gender identification when making decisions concerning hiring, discipline, pay rate, job duties, and termination. As a result, employers should take this ruling as an opportunity to update employee handbooks and ensure provisions reflect the newly identified protected classes. As an additional measure, employers should use this decision as an opportunity to conduct re-trainings for all employees to ensure company-wide compliance with anti-discrimination and harassment policies, including the recent protections afforded to the LGBTQ community. Finally, this decision should spark employers to consider purchasing or reviewing their current Employment Practices Liability Insurance (“EPLI”) plan to ensure protection in the event of claims arising out of this decision.

Bryan Meek is a member of Brennan, Manna & Diamond’s Employment & Labor team and is available to assist you with responding to requests for information and/or appealing unfavorable unemployment decisions. Bryan can be reached at 330.253.5586, or bmeek@bmdllc.com

The Masks Are Back: New OSHA Regulations for Healthcare Employers

Employment Law After Hours is back with a News Break Episode. Yesterday, OSHA published new rules for healthcare facilities, including hospitals, home health employers, nursing homes, ambulance companies, and assisted living facilities. These new rules are very cumbersome, requiring mask wearing for all employees, even those that are vaccinated. The only exception is for fully vaccinated employees (2 weeks post final dose) who are in a "well-defined" area where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.

New OSHA Guidance for Workplaces Not Covered by the Healthcare Emergency Temporary Standard

On June 10, 2021, OSHA issued an Emergency Temporary Standard (ETS) for occupational exposure to COVID-19, but it applies only to healthcare and healthcare support service workers. For a detailed summary of the ETS applicable to the healthcare industry, please visit https://youtu.be/vPyXmKwOzsk. All employers not subject to the ETS should review OSHA’s contemporaneously released, updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. The new Guidance essentially leaves intact OSHA’s earlier guidance, but only for unvaccinated and otherwise at-risk workers (“at-risk” meaning vaccinated or unvaccinated workers with immunocompromising conditions). For fully vaccinated workers, OSHA defers to CDC Guidance for Fully Vaccinated People, which advises that most fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, or local laws or individual business policies.

Employer Liability for COVID-19 Vaccine Side Effects

As employers encourage or require employees to obtain a COVID-19 vaccine, they should be aware of OSHA recording obligations and potential workers’ compensation liability. Though OSHA has yet to revise its COVID-19 guidance in response to the latest CDC recommendations, OSHA has revised its position regarding the recording of injury or illness resulting from the vaccine. Until now, OSHA required an employer to record an adverse reaction when the vaccine was required for employees and the injury or illness otherwise met the recording criteria (work-related, a new case, and meets one or more of the general recording criteria). OSHA has reversed course and announced that it will not require recording adverse reactions until at least May 2022, irrespective of whether the employer requires the vaccine as a condition of employment. In its revised COVID-19 FAQs, OSHA states:

The New Rule 1.510 - Radical Change for Summary Judgement Procedure in Florida

In civil litigation, where both sides participate actively, trial is usually required at the end of a long, expensive case to determine a winner and a loser. In federal and most state courts, however, there are a few procedural shortcuts by which parties can seek to prevail in advance of trial, saving time, money and annoyance. The most common of these is the “motion for summary judgment”: a request to the court by one side for judgment before trial, generally on the basis that the evidence available reflects that a win for that party is legally inevitable and thus required. Effective May 1, 2021, summary judgment procedure in Florida has radically changed.

Vacating, Modifying or Correcting an Arbitration Award Under R.C. 2711.13: Three-Month Limitation Maximum; Not Guaranteed Amount of Time

In a recent decision, the Supreme Court of Ohio held that neither R.C. 2711.09 nor R.C. 2711.13 requires a court to wait three months after an arbitration award is issued before confirming the award. R.C. 2711.13 provides that “after an award in an arbitration proceeding is made, any party to the arbitration may file a motion in the court of common pleas for an order vacating, modifying, or correcting the award.” Any such motion to vacate, modify, or correct an award “must be served upon the adverse party or his attorney within three months after the award is delivered to the parties in interest.” In BST Ohio Corporation et al. v. Wolgang, the Court held the three-month period set forth in R.C. 2711.13 is not a guaranteed time period in which to file a motion to vacate, modify, or correct an arbitration award. 2021-Ohio-1785.