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Author: Luchansky Law Team

Wal-Mart Ordered to Pay Over $125 Million to Former Disabled Employee

Wal-Mart has been hit with over a $125 million dollar jury verdict in a lawsuit filed against it by the EEOC. A Wisconsin jury found that Wal-Mart was in violation of the Americans with Disabilities Act (“ADA”) when it discriminated against an employee with Down Syndrome and ultimately terminated her. Further, Wal-Mart was found to have discriminated against that same employee by refusing to rehire her because of her disability. The bulk of this award was punitive damages as Wal-Mart’s conduct was found by the jury to be particularly heinous. The EEOC filed a suit against Wal-Mart on behalf of Mario Spaeth, an employee of that store from 1999 to 2015. Spaeth has Down Syndrome and worked in the store part-time. As a result of Wal-Mart’s computerized scheduler, Spaeth’s schedule was abruptly changed in 2014because of a shift in customer demand. Because of her disability, this schedule change presented significant challenges for her, and her supervisors began writing her up for attendance issues. In response, Spaeth’s sister and legal guardian requested a reasonable accommodation for Spaeth in the form of returning her to her previous schedule. Wal-Mart refused, continued writing up Spaeth for attendance, and ultimately terminated her. In their termination letter, Wal-Mart noted that Spaeth would be eligible for rehire. However, Wal-Mart refused to rehire Spaeth when she reapplied because she requested the accommodation that she only be scheduled during certain hours because of her disability.  During the trial, EEOC attorneys introduced Spaeth’s 16 years’ worth of positive performance reviews prior to the schedule change, that the store which employed Spaeth had over 300 employees, and the termination letter which noted she was eligible for rehire. Dozens of the store employees would have been able to switch shifts with Spaeth at no cost to Wal-Mart and Spaeth had already demonstrated she could perform the essential functions of her job during the shift she requested. Ultimately the jury determined that Wal-Mart’s conduct was a failure to provide reasonable accommodation under the ADA. Additionally, the jury found that its conduct was willful, necessitating punitive damages. Spaeth was awarded $150,000 in compensatory damages and $125 Million in punitive damages. A spokesperson for Wal-Mart notes that the amount of the punitive damages will be reduced to the maximum allowed under the ADA which is $300,000. This verdict sends a strong message to businesses: ADA compliance is not something to be taken lightly and violations will be punished, severely. At Luchansky Law, our attorneys are well-versed in federal anti-discrimination laws, including the ADA. If your business would like assistance responding to requests for accommodation under the ADA for either an applicant or employee, give us a call at (410) 522-1020 to schedule a consultation.

FDA Full Authorization Leads to More Employer Mandates

On August 23, 2021, the FDA granted full approval to the Pfizer-BioNTech COVID-19 Vaccine, which had previously been authorized under an emergency use authorization.  Although some private employers had begun implementing vaccine mandates for employees under the EUA, particularly in the health care field, many had signaled that they were waiting for a vaccine to receive full approval prior to making vaccines mandatory.  Following the full approval of the Pfizer vaccine, many more private and government employers, including CVS, Chevron, and McDonald’s, have begun to implement vaccine mandates.  For those employers considering making vaccines mandatory, there are a number of practical considerations to address, from whether a mandate is advisable to the practical components of the policy. First, from a practical standpoint, many industries have been shaken up by what has been coined, “The Great Resignation.”  If your business is struggling to recruit and retain employees, a mandatory vaccination policy may create some initial upheaval in your workforce.  Second, how critical are in-person interactions to your business operations?  Employers intending to continue remote work for the foreseeable future may feel less urgency to mandate vaccines, while those requiring in-person attendance may feel more acute pressure to require vaccines, both to ensure that their customers feel safe and to ensure that their operations will not be shut down due to possible exposure. Beyond the considerations about whether to implement a mandatory vaccination policy, businesses must also decide what their policy will include.  Will vaccinations be mandatory, full stop, with exceptions only for religious and medical exemptions?  Will employees be permitted to opt-out, subject to mask-wearing and weekly testing requirements?  If so, what kind of tests will be accepted for employees subject to weekly testing?  Who will be responsible for ensuring that employees are complying with the weekly testing policies?  How long will employees have until they are required to be fully vaccinated?  All of these questions should be answered in any vaccination policy. Please note that, beyond questions about vaccination status, other medical inquiries by employers and businesses are still governed by the Americans with Disabilities Act.  If you have questions about how to implement a vaccine mandate or the types of questions your business can ask its employees, please contact one of our attorneys at (410) 522-1020 to set up an appointment to discuss how your policies can be structured to meet your company’s goals.

Hazy Laws Around Marijuana Use Creates Headaches for Maryland Employers

Over the past ten years, states and local governments have increasingly legalized the use of marijuana, depending on the reason.  A majority of states and DC have legalized the use of marijuana for medicinal purposes while a growing minority of states and DC have legalized the recreational use of marijuana.  Within those states, differences persist regarding whether employees are entitled to accommodations for medicinal marijuana use, typically in the form of an exemption from the employer’s drug-free workplace policies. While Maryland has not fully legalized recreational marijuana use, with a legalization effort failing in the General Assembly this year, it has decriminalized it for small amounts for personal consumption and has legalized medical marijuana, following similar trends across the country.  For many employers, this has created confusion as to whether they are required to accommodate medical marijuana use under Maryland law, particularly as public acceptance of marijuana use increases.  As of the date of this article, there is no legal authority requiring that Maryland employers accommodate medicinal marijuana use.  Under federal law, marijuana is a “Schedule 1” controlled dangerous substance, meaning that is has a high potential for abuse and is not currently accepted for medical use.  As a result, there is no duty to accommodate medical marijuana use under the Americans with Disabilities Act (the “ADA”) which is a federal law.  Therefore, any duty to accommodate would arise under Maryland state law.  Neither Maryland’s law permitting medicinal marijuana, nor its Fair Employment laws explicitly protect employees from employment-related consequences of medical marijuana use – instead, they eliminate criminal penalties.  In fact, the Maryland Medical Cannabis Commission’s FAQs explicitly warn patients that, “Maryland law does not prevent an employer from testing for use of cannabis (for any reason) or taking action against an employee who tests positive for use of cannabis (for any reason).”  With all of that said, except for certain government contractors or employees in certain federally regulated positions, employers are not required to terminate or discipline employees engaged in medicinal or even recreational marijuana use.  Given the legal uncertainty around the duty to accommodate, many employers have voluntarily granted accommodations to employees who use medicinal marijuana outside of work, so long as their use does not result in them arriving to work while impaired.  Other employers, given the growing legalization movement, increased marijuana use among young people, and the tight job market, have announced that they will not test employees for marijuana use or refuse to hire employees who test positive for marijuana use absent at-work impairment.  If you have questions about whether you need to accommodate medicinal marijuana use by your employees or your drug testing policies, please contact one of the Luchansky Law attorneys at (410) 522-1020 to set up an appointment to discuss how your policies can be structured to meet your company’s goals. 

Hiring? Now is the Time to Audit Your I-9 Compliance

Employers are obligated to take certain steps to determine whether their employees are legally authorized to work in the United States.  Since the early 50s, federal law has prohibited employers from employing foreign workers unless they hold a status that authorizes them to work in the United States. However, it was not until the Immigration Reform and Control Act of 1986 that employers were provided a mechanism to meet this mandate by requiring all employers to complete a Form I-9 to verify the identity and work authorization of every employee hired, regardless of citizenship.  Since even minor errors and mistakes on an employer’s Form I-9s can result in fines, which can add up quickly, now is the time to conduct an internal audit to ensure that all forms have been completed and retained properly.  The I-9 Form must be completed within three days of the first day of employment. The employee completes Section 1 on the first day of employment; the employer must complete Section 2 by the end of the third day, including a physical inspection of the documents provided by the employee to verify employment eligibility.  In March 2020, DHS announced flexibility in requiring physical examination of documents for employers operating remotely, with physical examination of the documents to be conducted once in-person operations resume.  This has since been extended until August 31, 2021.  However, while this flexibility remains, employers who took advantage of the remote inspection provisions who are now resuming in-person operations should immediately begin inspecting documents in person for those employees who were hired while the employer was operating remotely and for all new hires.  Form I-9s should be kept apart from other personnel files, not only for convenience in the event of an audit (ICE is only required to give three days’ notice) but also to avoid the appearance that employment decisions were made using such information and a claim of discrimination.  This also allows you to easily conduct a self-audit since all the forms will be in one place.  Form I-9s should not be retained longer than required – we recommend keeping all forms together in a binder, with a separate section for employees who are no longer with the company.  That way, every six months or so you can review the binder and remove any I-9 forms that are no longer required to be maintained.   Penalties can be enforced for Form I-9 violations, employment violations, document fraud, or discrimination in the form of fines and penalties.  Unless the employer self-audits, since the Form I-9 is not filed with any agency, mistakes typically go undetected until an employer receives notice of an audit from ICE or DHS.  ICE and DHS do not look favorably upon corrections made after they sent notice of an audit, so the time to correct any errors, omissions, or issues arising from use of an outdated form is during a self-audit.  That way, if you are audited, DHS and ICE will see that any issues have been proactively corrected and are likely to levy lesser fines, if any.  If you have questions about your company’s compliance with the Form I-9 requirements or would like assistance with an internal audit and ensuring that your corrections are compliant with DHS guidance, please give us a call at (410) 522-1020. 

Federally Enhanced Unemployment Benefits to Remain in Effect in Maryland

On July 13, 2021, Baltimore City Circuit Court Judge Fletcher-Hill enjoined the State from opting out of the federally enhanced unemployment program under ARPA. In June, Governor Hogan provided Congress with the State’s written intent to withdraw from the program, effective July 3, 2021.  The Governor primarily cited increased vaccine availability and a marked number of job vacancies in support of this move. Additionally, businesses across the State believed that this benefits program caused a labor shortage since these payments disincentivized people from looking for work.  In response to the proposed termination of the benefits program, the Unemployed Workers’ Union and the Public Justice Center filed parallel lawsuits against the State seeking an injunction to prevent the State from withdrawing from the program early.    Judge Fletcher-Hill granted the injunction and prohibited Maryland from terminating these benefits early.  In doing so, Judge Fletcher-Hill found that to abruptly end these programs would cause “irreparable harm” to the beneficiaries.  The State has declined to appeal the matter. This means the enhanced benefits will continue until September, unless they are further extended by Congress.   At the heart of the issue are a pair of unemployment benefits: a $300 per week enhancement to traditional unemployment insurance, and a standalone benefit entitled Pandemic Unemployment Assistance (“PUA”).  The enhanced unemployment insurance benefits are available to those who are out of work due to traditional no-fault reasons, such as a layoff. Meanwhile, PUA is available to those in the margins who are unemployed voluntarily — and thus ineligible for traditional unemployment — but for reasons directly related to the pandemic. The most common PUA eligibility scenario is a parent who cannot work because of childcare issues because of school or daycare closures. The DLLR has advised that beneficiaries of either program should continue to file their weekly certifications to continue to receive their benefits. The State also must now resume accepting new PUA applications for benefits.    Despite this most recent win, unemployment claimants still are facing an uphill battle. The DLLR has been inundated with applications for benefits since the beginning of the pandemic, and many who are entitled to benefits are improperly denied because of clerical errors, misclassification, and BEACON system errors. To make things worse, the DLLR has a very short time window for a claimant to file a timely appeal of the benefit denial.  The sheer volume of appeals often causes the DLLR to uphold benefit denial determinations solely based upon the claimant’s appeal being untimely.  The DLLR has been using this as a method of expediting appeal processing to address its backlog. It is critical that an appeal be noted timely to ensure the merits of the claimant’s denial are addressed and any improper denial is reversed.   If you have received a notice of benefit determination denying benefits that you believe is incorrect, it is imperative that you not delay. At Luchansky Law, we have successfully represented claimants in their appeals before the DLLR and obtained benefits for those who were improperly denied.  If you believe you have been wrongfully denied PUA or any other unemployment benefit, give us a call at (410) 522-1020 to schedule a consultation. 

DIY Background Checks Can Create a Legal Risk that Companies Often Don’t Consider

As the state of emergency in Maryland ends this summer, many employers are looking to hire new employees to deal with an increase in customer and client demand.  For many of those employers, the hiring process includes some form of a background investigation of a prospective employee.  Many employers that perform background checks on applicants hire a third party to do that investigation, often to check an individual’s criminal conviction history, involvement in civil lawsuits, and driving record, where relevant.  Some employers, however, choose to perform their own “background checks” by using Google searches, reviewing social media websites, reading personal blogs, and investigating other online resources.  Few of these companies consider the legal risks associated with performing these do-it-yourself background checks.    The “benefit” of performing these searches would seem obvious.  An employer often can find a wealth of information online that a background check company typically might not provide.  Information about an individual’s judgment, character, and maturity are reasons frequently cited by employers justifying a DIY background check of an applicant’s social media. However, other information also comes up in those searches.   For example, information about the candidate’s age, race, nationality, disability, marital status, religion, sexual orientation, and familial status usually are also discoverable online quite easily.   The first question, however, is – once you have this information, what are you allowed to do with it?  In most cases, the answer is: Nothing.  The law prohibits employers from discriminating against individuals on the basis of these classifications (among others).  For example, a company that decides not to hire an applicant because of his or her religious beliefs likely would be committing a violation of federal law.  Therefore, the information obtained should not be considered in connection with making an employment decision, and this information typically should be ignored or discarded – making the search a waste of time.  And that’s the best-case scenario.  Worse still, if an individual in a protected classification is not hired and learns that this information had been obtained before the decision was made, it may create a basis for a discrimination claim.  Even if a company did not use this information as a basis not to hire the applicant, the fact that it obtained this information certainly makes it seem that way.  The risk of simply possessing this information may be made even worse if the company has not been performing its internal background searches consistently.  Imagine if a more onerous background check is found to have been performed on an unsuccessful candidate who is in a protected classification than for non-protected individuals.  That situation would provide even more ammunition for a claim of unlawful discrimination.  Suffice it to say that it is important for companies to know how to perform background checks properly.  At Luchansky Law, our attorneys routinely assist employers in reviewing their hiring practices, such as background checks, to ensure compliance with all anti-discrimination laws, including Title VII. If your business would like guidance on its background check practices, give us a call at (410) 522-1020. 

Governor Hogan Announces the End of Federally Enhanced Unemployment Assistance

Governor Hogan recently announced that Maryland will be ending federally enhanced unemployment assistance paid by the Department of Labor, Licensing, and Regulation, or DLLR, this summer. As part of the federally enhanced unemployment benefits, those who are eligible for traditional unemployment in Maryland have been receiving an additional $300 per week. On June 2, 2021, the State submitted the required 30-day written notice to the Federal Government to opt out of the program. Although the federally enhanced unemployment programs are scheduled to expire in September, these benefits will end for Maryland residents on July 3, 2021. Maryland is joining half the states in the country who are opting out of the enhanced unemployment benefits under ARPA. Employers in Maryland, particularly in the service sector, have been reporting a significant worker shortage and point to the enhanced unemployment benefits as its major cause. Governor Hogan cites increased vaccine availability, Maryland’s close to 70% vaccination rate, and decreasing first-time unemployment claims in further support of the move. In addition to ending the enhanced benefits, Governor Hogan has reinstated the work-search requirements for unemployment beneficiaries that were suspended during the pandemic. Beneficiaries are again required to make at least three re-employment attempts each week to be eligible to receive benefits for that week. By eliminating the enhanced unemployment insurance benefits and reinstating job search requirements to continue receipt of unemployment benefits, Governor Hogan expects more unemployment beneficiaries will return to work, thereby alleviating the worker shortage. The end of the enhanced Federal unemployment assistance does not only affect those who were eligible for traditional unemployment. Those who were placed out of work for reasons that would render them ineligible for traditional unemployment but are still receiving benefits from DLLR likely are beneficiaries of the federal Pandemic Unemployment Assistance program, or PUA. PUA was designed to create a safety net for those who were working in jobs that could not be done remotely or were out of work due to pandemic-related issues. For example, a parent of school-aged children who was required to be home to provide care for their children due to school closures would have received unemployment benefits through PUA even though they would not have otherwise been eligible for unemployment benefits. These benefits will also end on July 3, 2021. While the enhanced benefits will be eliminated after July 3, 2021, the DLLR has promised that any benefits properly owed under either enhanced unemployment or PUA for weeks through July 3, 2021 will be paid to the beneficiaries. This is important because PUA determinations have been particularly susceptible to data entry errors, such as incorrect time periods and other inaccurate information, which have resulted in eligible beneficiaries’ claims being denied. These determinations must be appealed for benefits to be received. At Luchansky Law, we have successfully represented claimants in their appeals before the DLLR and obtained benefits for those who were improperly denied. If you believe you have been wrongfully denied PUA or any other unemployment benefit, give us a call at (410) 522-1020 to schedule a consultatio

EEOC Issues Updated Guidance for Employers Regarding COVID-19 Vaccinations

On May 28, 2021, the EEOC issued updated guidance for employers related to COVID-19 vaccinations in the form of updated questions and answers on its site. The full update is available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. In the introduction to the updated guidance, the EEOC explicitly notes that the updated guidance was prepared prior to the CDC’s updated guidance for fully vaccinated individuals such that we can expect additional updates in the near future. The biggest takeaway from the updated guidance is confirmation from the EEOC that, subject to accommodations for individuals with disabilities or sincerely held religious beliefs, it is not a violation of federal EEO laws for employers to mandate vaccines for employees entering the workplace. This is the clearest position that the EEOC has taken on the issue to date and should provide employers additional assurance if they choose to mandate vaccinations. The guidance also provides details on how employees can request accommodations and what accommodations an employer might consider for those employees who are unable to be vaccinated. The updated guidance also explains that information about an employee’s vaccination is to be kept confidential under the ADA, such that any documentation or confirmation of vaccination must be kept confidential and stored in a separate personnel file. However, requesting documentation or confirmation of a vaccination is not a disability related inquiry and, except in specific circumstances, HIPAA does not apply to employer requests for information about vaccination status. Finally, the guidance confirms that employers may offer incentives to employees to obtain vaccinations under a voluntary vaccination program but does little in the way of providing concrete guidance or examples of permissible incentives. Instead, the EEOC simply reiterated the otherwise applicable standard that any incentive must not be so substantial as to be coercive. As the guidance makes clear, if you are considering implementing a COVID-19 vaccine mandate for employees or a voluntary incentive program, there are a number of obstacles to navigate. The attorneys at Luchansky Law are continuously monitoring federal, state, and local developments surrounding COVID-19, which change regularly and can help you formulate and communicate your plans to employees. If you have questions about COVID-19 vaccination mandates or incentive programs, please call Greg Currey at 410-522-1020.

How the CDC and Maryland’s Updated Guidance Impact Employers – 5.19.2021

On May 13, 2021, the CDC issued its Interim Public Health Recommendations for Fully Vaccinated People. This guidance, which applies to non-healthcare settings, substantially modified the CDC’s prior guidance as to what activities fully vaccinated individuals may engage in based on updated data on the efficacy of the vaccines. This guidance had two significant takeaways. First, subject to state and local laws and workplace guidance, fully vaccinated individuals may resume indoor activities without wearing masks or physically distancing. Second, fully vaccinated individuals with no COVID-like symptoms following an exposure to someone with suspected or confirmed COVID-19 do not need to quarantine, be tested, or be restricted from work.Following the CDC’s announcement, on Friday, May 14, 2021, Governor Hogan issued an updated Executive Order 21-05-14-01 lifting capacity restrictions on all businesses in the state of Maryland and the statewide mask mandate. He further announced that work search requirements for continued eligibility for unemployment benefits will be reinstated in late June. For businesses deciding on reopening plans, these developments could potentially be game-changing. By reinstating the work search rules for unemployment benefit eligibility, employees now have an additional incentive to re-enter the workforce. Lifting mask restrictions and capacity limitations makes it easier to resume in-person operations. That said, there are still hurdles to overcome. Employees still need to self-isolate and/or get tested if they have symptoms of COVID-19 and unvaccinated employees need to self-isolate and/or get tested if they have been exposed to someone with COVID-19. For employers with a high number of unvaccinated employees, distancing measures still may need to be maintained and masks for unvaccinated employees may be required. Finally, even for those workers who have been vaccinated, the general question of whether and to what extent remote work should continue to be offered remains.The attorneys at Luchansky Law are continuously monitoring federal, state, and local developments surrounding COVID-19, which change regularly. If you have questions about how to adjust your business’ return to work plan in light of the most recent developments, please call Greg Currey at 410-522-1020.