Navigating AI in the Workplace: Key Issues for Employers
As advancements in artificial intelligence (AI) revolutionize the workplace, it’s crucial for employers to understand the legal and ethical implications. Here’s a guide to some of the key AI-related issues you should be aware of to ensure compliance and fairness in your business operations. Bias and Discrimination:AI can inadvertently perpetuate biases, leading to unfair hiring and promotion practices. Ensure that AI tools are regularly audited for bias and comply with anti-discrimination laws such as the Civil Rights Act and the Americans with Disabilities Act (ADA). Privacy and Data Protection:AI systems often require access to sensitive employee data. It’s vital to balance employee monitoring with privacy rights and comply with data protection laws like the General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA). Transparent communication about data usage is essential. Fair Labor Practices:Automated decision-making in hiring, firing, and promotions must be transparent and fair, with mechanisms for employees to appeal decisions. Ensure that AI tools managing work shifts and hours adhere to labor laws regarding overtime and fair compensation. Workplace Safety:AI and robotics used in the workplace must comply with Occupational Safety and Health Administration (OSHA) standards. Regular updates and validations of AI systems are necessary to maintain accurate risk assessments. Employment Contracts and Agreements:Clarify the ownership of AI-created work and any AI tools developed by employees in contracts. Update non-compete and confidentiality agreements to address AI and data protection concerns. Unionization and Collective Bargaining:Be aware of how AI might impact job displacement. Transparent communication and negotiation with employee representatives are critical when introducing AI in the workplace. Training and Development:Invest in reskilling and upskilling programs to help employees adapt to new AI tools. Support continuous learning to keep your workforce competitive. Ethical Considerations:Develop and implement ethical guidelines for AI use, ensuring adequate human oversight to maintain accountability. Regulatory Compliance:Stay informed about evolving AI regulations and ensure compliance with current and upcoming laws. Artificial Intelligence is fast-moving and evolving, but by staying connected and addressing these issues proactively, you can harness the benefits of AI while maintaining a fair and compliant workplace. About Luchansky Law Luchansky Law specializes in resolving workplace disputes for employers and employees across Maryland. Our attorneys bring extensive experience and a practical approach to protecting your rights, navigating new regulations, and ensuring compliance. Our team combines legal expertise and practical experience to solve workplace challenges and effectively meet legal and business needs. Please contact us at (410) 522-1020, email us at info@luchanskylaw.com, or stop by our office at 606 Bosley Avenue, Suite 3B, Towson, Maryland, 21204.
The Challenge of Writing up Employees—and How to Do a Better Job at It
Our clients recognize how important it is to write up employees when situations call for it. Yet, most companies struggle terribly with getting supervisors actually to fill out a disciplinary form when a problem arises with an employee. Why is that? And what can employers do to fix it? The most common explanation we hear is that filling out a disciplinary form just takes too much time. Supervisors, like everyone else, believe that they already have too little time to perform their main duties. Just the thought of having to sit down to fill out HR paperwork often seems like an impossible additional task. That perception, however, does not have just one flawed assumption. It has two. The first mistake is the view that filling out “HR paperwork” is not one of a supervisor’s “main duties.” Employees manage tasks; supervisors manage people. One of the most important tools in managing people is the responsibility to inform the stakeholders (both the employee and management) whether an employee’s actions are acceptable or problematic. Therefore, writing up an employee is not tangential to a supervisor’s primary duties. It is a primary duty. The second mistake is the (often) false notion that the main barrier to performing write-ups is the time it takes to do them. The real reason in most cases is very different. Supervisors often are anxious about doing write-ups because they don’t really know how to do them. Sometimes, the reason for the difficulty is that the disciplinary form itself is a bad one. It may be unclear. It may be confusing. The company’s form often makes it difficult for the supervisor to know exactly what information to provide or how much detail to include. Uncertainty creates anxiety, and anxiety causes procrastination. It’s not a supervisor’s fault. Blame human nature (and the company’s disciplinary form). In addition to poorly drafted disciplinary forms, there is another common—and crucial—reason why supervisors often are unsure how to perform a write-up. It is because they often don’t know the purpose of the write-up. Sure, it potentially will be used for disciplining an employee. But that does not answer the question. Even worse, companies often don’t know the answer to the question. What is this write-up supposed to accomplish? The Goals of an Employee Write-up The answer begins with a crucial insight. All employee issues do not fall into a single category of impropriety. They fall into one of two different categories. Employee issues consist of either poor performance or misconduct. An employee who is not performing up to a company’s expectations is “guilty” of poor performance, not misconduct. An employee who has violated a company’s policies (such as insubordination) is “guilty” of misconduct, not poor performance. The primary reason to write up a poorly performing employee is to attempt to rehabilitate the employee—to see if the employee can perform up to expectations. The primary purpose for disciplining an employee who engaged in misconduct is to prevent future misconduct (of course, there are other purposes for write-ups, including the legal protection of the company). With the clarity of this distinction, performing a write-up almost becomes common sense. Incidents of poor performance require information about the company’s expectations, how the employee has failed to meet those expectations, what the plan is for the employee to meet those expectations in the future, and what will happen if the employee does not meet them. Incidents of misconduct require documentation of the company rule that was violated, extensive details about the alleged incident of misconduct (including, when necessary, an investigation of the incident), and the consequences of further misconduct. At Luchansky Law, we make sure that our clients have the HR tools they need, including well-drafted forms to utilize for hiring, discipline, termination of employment, and non-compete agreements. We also train our clients’ supervisors to understand their duties clearly and how to maximize their performance. The result is better operations and less anxiety—for the supervisors and the company’s owners. If you would like to discuss whether your HR tools may need a tune-up, or whether your supervisors would benefit from some training, give us a call at (410) 522-1020 to schedule a consultation.
Maryland Law Makes It Easier for Employees to Win Sexual Harassment Lawsuits
All employers know that maintaining a workplace that is free from sexual harassment is the right thing to do. A harassment-free workplace shows respect for all employees at work and creates a safe work environment. It also happens to be good for business. Complaints of sexual harassment are unsettling, distracting, time-consuming, and expensive. But from an employer’s perspective, the law traditionally has established a reasonably high threshold for a complaining employee to win a lawsuit based on sexual harassment. According to the broadly adopted standard for claiming sexual harassment, an employee complaining of harassment must be able to prove that the wrongdoer’s conduct was “severe and pervasive.” In other words, the bad conduct had to be pretty serious in nature (“severe”) and it had to occur more than once (“pervasive”). Historically, that has been a high standard to meet. In Maryland, however, that is about to change. During the 2022 Legislative Session that concluded on April 11, 2022, the Maryland General Assembly passed a new law that removed the requirement that sexual harassment be “severe and pervasive” before the conduct violates the law. The law no longer requires that the bad conduct be “really” bad, or that it happen repeatedly. Instead, based on the totality of the circumstances, a judge or jury simply must determine that the conduct unreasonably created a working environment that a reasonable person would perceive to be abusive or hostile. Based on this new standard, could a single suggestive remark be considered sexual harassment? Maybe. This new law has not yet gone into effect – but it will soon, on October 1, 2022. What Should Employers Do? There is not much time left before this new law goes into effect. During this time, there are two things that all prudent employers must do. First, it is time to review the company’s Employee Handbook. For those employers who have been meaning to have their employee manual reviewed for a couple of years but have not quite gotten around to it, now is the time to get it done. This new law is one of several employment-related changes that must be incorporated into the company’s handbook. But even for those companies who have their handbooks reviewed annually, it is time to review the company’s sexual harassment policy. Second, we believe that it is more crucial than ever to schedule supervisor training on sexual harassment. At the very least, the change in the legal standard must be conveyed to each company’s front-line supervisors so they know what standard they will be held to. Moreover, in the event of a charge of harassment, it is important for the company to be able to show that it took all the reasonable steps it could to prevent such an occurrence. At Luchansky Law, we recognize that the employment laws that affect our clients’ businesses change all the time. We consider it our mission to keep employers well-informed of the employment laws that affect their business, and to perform the tasks that are necessary to protect them. Whether an employer requires a review of its handbook, needs to provide additional training to its supervisors, or requires a defense of a complaint before the EEOC, or federal or state court, we are as committed to your protection and growth as you are. For answers to all your employment law questions and assistance with issues in the workplace, call us at Luchansky Law at (410) 522-1020.
Litigation FAQ: Are My Attorneys’ Fees Recoverable?
One of the first questions many attorneys are asked when a client is considering filing a lawsuit is whether the fees and costs they will incur in the litigation are recoverable. In virtually all personal injury and property damage cases and in many business disputes, under what courts have dubbed the “American Rule,” the answer is no. Because the cost to a client of pursuing a claim is an important factor to be considered when evaluating a case (a $100,000 claim that will cost $50,000 in unrecoverable fees and costs to litigate is only worth $50,000 even if successful), knowing when and how fees can be recovered is key. In this series of posts, we will explore “fee-shifting” including when it is available, which party has the burden of proof and how that burden can be met, what courts will look at when deciding if and how much to award, how a party that intends to seek its fees can lay the groundwork for a successful recovery as the litigation progresses, and the recovery of costs. There are four major categories of cases in which the prevailing party can claim attorney’s fees: Cases in which it is mandatory or discretionary under the federal or state statute at issue for the court to award the prevailing party its reasonable attorneys’ fees (e.g., Fair Labor Standards Act, Civil Rights Act, State and Federal trade secret claims, State and Federal Class Actions, State Consumer Protection Act claims, State Unfair Claim Settlement Practice Act claims); Breach of contract claims in which the contract at issue entitles a party to recover the fees it incurred in an action to enforce the contract; Fees authorized by common law (e.g., in certain jurisdictions, an insured that is compelled to litigate with its insurer to obtain a defense under a liability policy can recover the fees associated with the coverage action); and Breach of contract claims in which an element of the damages caused by the breach are attorneys’ fees (e.g., in Maryland, where an insurer breaches a policy’s duty to defend, the insured can recover the costs of its defense). In all of the above scenarios, the party that intends to seek recovery of attorney’s fees must include a claim for attorney’s fees in their complaint. Under Maryland state law, different fee-shifting scenarios are governed by subsections of Maryland Rule 2-703, and reference to the appropriate rule section should be included in the complaint. In the first three categories above, the reasonableness of the attorney’s fees is generally litigated in a post-judgment fee petition, while in cases where fees are an element of a party’s substantive damages claim, they will likely be litigated as part of the case itself like any other category of damages. In our next post, we will address the burden of proof applicable to a fees claim and whether an expert should be retained to support a fees claim. In the meantime, if you would like the experienced attorneys at Luchansky Law to review your contracts to ensure that they include an enforceable attorney’s fees provision, give us a call at (410) 522-1020 to set up an appointment.
Deflection is Not the Best Defense to a Wage and Hour Claim
Ideally, employers that are faced with valid overtime or minimum wage claims should focus on working with their attorney to accurately evaluate their exposure and identify the most efficient way to resolve the claim. While this advice seems self-evident, too often employers do not heed it. Instead, frustrated by the cost of defending the claim and potentially settling it, and stung by the fact that the employees are ungrateful for all of the money they have been paid, employers often focus on the shortcomings of the claiming employee(s) and on the many reasons why those employees do not deserve to be paid anything more than what they have already received. That is an ill-advised approach and should be avoided. Deflecting is Short-Sighted First, it distracts the employer from focusing on gathering and communicating the facts, data, and documents that their attorney actually needs to evaluate the claim and provide advice as to how to proceed. Second, it clouds the employer’s judgment when it is time to make the decision as to whether to settle the claim, turning what is usually a business decision into a personal one. Third, it does not help the employer’s case. Rarely does an employee’s consent to how they are paid, or the employee’s legal status, performance, attitude, or personal conduct have any effect on their right to pursue a wage and hour claim or the potential success of such claims. One example that arises—often in cases against employers in the service industries such as restaurant owners, cleaning companies, and construction contractors—is the employer’s focus on employees’ immigration status or their unwillingness to fill out an I-9 or W-4. Not only will these facts not prevent the employee from recovering, but they actually expose the employer to liability for violations of federal and state law. Any attempt to use the employee’s status against them, and any implication that the employer will report the employee to state or federal authorities, will be viewed as retaliation against the employee and will likely increase the employers’ potential lability. Most Excuses are Not Legally Justified Similarly, “My employee requested that I pay him by the day,” “My employee agreed to accept more money per hour and not receive overtime pay,” or, “My worker asked me to classify him as a 1099 independent contractor instead of an employee,” will not absolve an employer from the consequences of failing to maintain records and pay employees as required by law. Ultimately, the governing state and local statutes and regulations place the responsibility for verifying the legal status of employees and compliance with applicable deduction, withholding, and record-keeping squarely on employers and their claims that they violated those laws as a favor to their employees will not protect them. Citing employees’ substandard performance as a basis for an offset against unpaid wages owed in a wage and hour case is likewise a non-starter. Even if employees showed up to work drunk, did not meet productivity expectations or workmanship standards, or were guilty of other misconduct while on the job, they must be paid for the time they worked. The time to discipline or terminate an underperforming employee is when the conduct is occurring. It is too late to attempt to “clawback” wages for non-productive time on the job after a wage and hour claim is filed and wage laws strictly limit the circumstances under which an employer may make a deduction from wages. In a perfect world, employers would carefully comply with all statutes and regulations as they pertain to employee documentation, record-keeping, and compensation. However, in the real world, when an employer faces a legitimate wage and hour claim, they should avoid the urge to finger point or blame-shift. Instead, they should focus on the legitimate defenses available, the efficient resolution of the claim, and implementing the fixes needed to avoid future claims. If you have received a wage and hour demand letter or lawsuit, or if you want to have your employment practices reviewed to limit the possibility, please contact us at (410) 522-1020 to schedule a consultation.
$10 Million Awarded by North Carolina Jury to White Male Executive Is Costly Reminder to Employers That Efforts to Diversify Must Be Lawful
Employers of all sizes and in all industries are striving to bring diversity to their workforces, including at the management level. Employers would be well-served, however, not to lose sight of the fact that Title VII of the Civil Rights Act of 1964, which governs discrimination in employment, protects all employees from discrimination on the basis of their race (or other protected classification)—including white males. A North Carolina jury sent this message loudly and clearly in a recently decided case. Novant Health is a Winston-Salem-based network of clinics and medical centers. A white male former Senior Vice President of Marketing and Communications claimed that he was discriminated against when he was replaced by a black woman and a white woman as part of his employer’s diversity efforts. Racial discrimination claims by white employees, and gender discrimination claims by male employees, often are referred to colloquially (and somewhat dismissively) as “reverse” discrimination claims because the civil rights laws were enacted at a time when women and minorities primarily were suffering from discrimination. Nevertheless, the laws themselves are written in neutral terms—they prohibit employers from discriminating against any applicant or employee “because of” race, gender, or other immutable characteristics. Therefore, if an employer fires an employee “because of” his white race and male gender, then the employer has violated the discrimination laws. That is precisely the conclusion that the North Carolina jury reached in the case brought against Novant Health. The price tag for this violation was not cheap. The jury awarded the white male management employee $10 million. Employers should not be lulled into a false belief that because replacing a white employee with a non-white employee or a male executive with a female executive may bring them closer to their goal of increasing diversity, they are immune from a Title VII employment discrimination claim. Ultimately, if the replaced male or white employee can prove that they would not have been terminated but for their race or gender, they can successfully pursue a Title VII discrimination claim, potentially with very expensive consequences to the well-meaning employer. The lesson should be an obvious one, but in today’s cultural climate it bears repeating. Employers should make employment decisions based on merit, and they should apply objective standards relating to qualifications and performance. Employment decisions should not be based on an individual’s immutable classifications protected by law—which means neither deciding against nor in favor of any candidate or employee based on their race, sex, sexual orientation, or other protected classification. If you are an employer that is planning a personnel decision and are concerned that it may result in exposure to an employment discrimination claim, or if you have received an EEOC charge or have been sued for alleged employment discrimination, the experienced lawyers at Luchansky Law are ready to help. We can be reached at (410) 522-1020 or at www.employmentattorneymd.com.
The Latest on President Biden’s Executive Order to Promote Competition in the American Economy
Nearly four months ago, President Biden issued an executive order in which he urged the Federal Trade Commission to explore enacting rules to curtail the use of non-competes and other agreements that impede worker mobility. In the days and weeks that followed, there were myriad articles and blog posts published by employment lawyers (present company included), constitutional scholars, and HR gurus examining the legality of the federal government regulating employee/employer contracts and what effect the promulgation of a regulation severely limiting or even banning non-competition agreements would have on the business world. Today, nearly four months later, the FTC has not taken any action, and there is virtually no “buzz” about the issue. It is possible that the Biden Administration has been distracted by other more pressing issues, such as Afghanistan, a bogged-down supply chain, efforts to pass infrastructure and spending bills, or curbing parental interaction with school boards. It is also possible, and one can only hope, that cooler heads have prevailed, recognizing that, as discussed in one of our previous posts, (1) many states were already on their way toward either restricting the use of non-competes or banning them altogether to protect vulnerable employees who lack the bargaining power to resist or refuse them or (2) that a federal regulation like the one urged by the President would face a strong constitutional challenge. For now, the use and enforceability of non-competes are still governed by state law. In Maryland, this means that, preferably, employers should make sure that non-competes are signed before employment begins. If an employer wants an employee to sign an agreement while already employed, the agreement should specifically identify the consideration the employee is getting in exchange for signing the agreement. In Maryland (though not in some other states), this can be something as basic as “in consideration for continued employment.” In Maryland, non-competes signed by employees earning less than $31,200 a year or $15.00 an hour are unenforceable. Employers also should be careful not to overreach with regard to the geographical scope of the non-compete. Courts will balance the employer’s legitimate interest in protecting against an employee trying to capitalize on relationships developed with the employer’s customers during his or her employment against placing an overly burdensome restriction on the employee’s ability to work. Courts also will make sure that any restriction is limited to a reasonable time period. Maryland courts generally enforce two-year restrictions but rarely have enforced three-year restrictions. Non-competes also should not restrict an employee from working for a former or potential future competitor of the employer. It remains to be seen when, or even if, the FTC will attempt to implement President Biden’s executive order. In the meantime, Luchansky Law’s attorneys will be monitoring developments closely and are available to explain how existing state laws and potentially any new regulations affect your company’s non-compete agreements. We can be reached at (410) 522-1020 or at www.employmentattorneymd.com.
Healthcare Employers: Don’t Learn About the FLSA “Learned Professional” Exemption the Hard Way
A widespread myth regarding the FLSA is that employees who are “on salary” do not need to be paid overtime. This misunderstanding of the law creates a significant risk that healthcare entities may be violating the law by failing to pay their employees overtime merely because they are salaried. While being paid on a salary basis is a requirement for a healthcare employee to be exempt from overtime, the employee’s duties must also qualify for one of the FLSA exemptions, which, for healthcare workers, is most often the “learned professional” exemption. In order to qualify for the learned professional exemption, an employee must be paid a minimum of $684 per week or $35,568 annually on a salary basis. In addition, the employee’s primary duty must be the performance of work requiring advanced knowledge in a field of science or learning, and the advanced knowledge must customarily be acquired through a prolonged course of instruction. Work requiring “advanced knowledge” is work that is predominantly intellectual in character and which requires the exercise of discretion and judgment. These requirements can be easily applied to some employees in a healthcare setting, such as a physician (generally exempt) on one hand, and a medical records clerk on the other (non-exempt). The exemptions applicability to other positions at a healthcare facility is not as clear-cut. Generally, a registered nurse, who must complete multiple years of training and education and is subject to examination by a state licensing board is exempt from overtime payment under the FLSA. Conversely, a licensed practical nurse or a medical aide would generally not be exempt from overtime even if paid on a salary basis. Nurse practitioners, who generally undergo a higher level of training than RNs, would generally be exempt if they are, in fact, practicing medicine. Similarly, physician assistants who have completed a four-year course of study including graduating from an accredited PA program and who have received commission certification, are generally exempt when actually practicing medicine. Medical technologists who have completed a total of four years of study including a year at an accredited medical technology school also may be exempt. However, the mere fact that an employee such as an x-ray technician or ultrasound technician is regularly involved in the use of medical technology is insufficient alone to meet the requirements of the exemption even if earning a salary. A registered dietitian working in a clinical setting who is responsible for counseling individuals with health problems, such as patients with diabetes or dialysis patients, would also generally be exempt from overtime if paid on a salary basis. If you are concerned that you may have incorrectly classified a healthcare worker as exempt from overtime, ask the following three questions: (1) Is the employee being paid a salary of at least $684 per week or $35,568 annually? (2) Is the employee performing a job for which they needed to complete a significant number of years of education and that is subject to oversight by a licensing board? (3) Is the employee permitted to exercise judgment and discretion in the performance of their job? If an employer cannot definitively answer “Yes” to each of these questions, there is a distinct possibility that they have misclassified the employee. Correctly applying the learned professional exemption can be challenging, while misapplying it can have significant and expensive consequences. If you own or are an administrator of a healthcare entity and need guidance as to how to classify employees, the lawyers at Luchansky Law are here to help. Call us at (410) 522-1020.
Increased Hiring Means Employers Should Perform a Criminal Background Check Check-Up
Governor Hogan’s recent decision to end Maryland’s participation in the federal enhanced employment benefits program and to reinstate the requirement that those collecting unemployment benefits resume their efforts to find work is likely to spur a hiring increase around the state. Employers looking to hire would be wise to verify that their hiring practices and procedures comply with Maryland’s relatively new criminal record/background check laws. The law, known informally as “Ban the Box,” was passed by the Maryland legislature over Governor Hogan’s veto in February 2020, just before the employment challenges created by Covid-19. It prohibits a Maryland employer with 15 or more full-time Maryland employees from inquiring, at any time prior to the first in-person interview, as to whether a potential employee has a criminal record or has been accused of criminal conduct. Full-time employees can include those employed on a seasonal or temporary basis. In-person interviews include telephone and videoconference interviews. Employers that violate the law more than once are subject to a $300 fine for each employee from whom a prohibited inquiry was made. Significantly, a Baltimore City ordinance that has been in effect since 2014 and which applies to employers with 10 or more full-time employees in Baltimore City is even more restrictive. It prohibits covered employers from inquiring as to whether an applicant applying for a job in Baltimore City has a criminal record or has been accused of a crime or conducting a criminal background check prior to the employer making a “conditional offer” to the prospective employee. The “conditional offer” may be explicitly conditioned on the results of a criminal background check. Significantly, the Baltimore City ordinance includes a provision allowing the Baltimore Community Relations Commission to recover lost wages, compensatory damages, and attorney’s fees on behalf of an applicant who was subjected to an unlawful inquiry. Both the Maryland law and the Baltimore City ordinance exempt employers that are required to inquire as to a prospective employee’s criminal history by federal law or another state law, as well as employers that provide services to minors and vulnerable adults. Employers that are subject to either of these laws should take a fresh look at all written and online applications to ensure that they contain no questions, or boxes that need to be checked, that relate to an applicant’s criminal history. Employers that use a single application in multiple states that includes criminal background questions should consider modifying the application to clearly indicate that Maryland residents should not respond to those questions. Employers should also remove references to criminal history from job postings and advertisements. Finally, employers that use recruiters or other third parties to screen potential employees should provide clear instructions that no inquiry be made into an applicant’s criminal history until the point in the process when it becomes permitted. If you have any questions about the legality of your application process, or if you are facing a claim or government inquiry into your hiring practices, the attorneys at Luchansky Law are here to help. Give us a call at(410) 522-1020.
Employer Vaccination Mandates have Title VII and ADA Implications
As they resume pre-pandemic operations, employers are understandably concerned about the safety of their employees and clients. As a result, many are implementing mandatory COVID-19 vaccination policies for their employees. According to the most recent guidance from the EEOC, employers are allowed to make such mandates; however, there are exceptions. The first exception is for those who cannot take the vaccine because of a sincerely held religious belief. The second is for those with a medical condition that prevents them from taking the vaccine. In its guidance, the EEOC has cautioned employers to be aware of these exceptions or face the risk of legal liability. With respect to the first exception, the EEOC guidance iterates that Title VII prohibits discrimination against those who refuse to be vaccinated because of their sincerely held religious beliefs. For the second exception, the ADA prohibits discrimination against employees who are unable to be vaccinated because of a disability. The new EEOC guidance reminds employers that pregnancy qualifies under the definition of disability under the ADA. Employers who have employees who object to a vaccine mandate for one of these reasons should engage in a two-step analysis. First, the employer should consider whether the unvaccinated employee poses a direct threat to the workplace. Second, the employer should discuss with the employee whether there are reasonable accommodations available to mitigate or eliminate that threat. Some factors to consider when assessing whether the employee is a direct threat are the duration of the pandemic, the nature and severity of potential harm, the potential harm’s likelihood of occurring, and the imminence of the potential harm. The latest guidance from state and local health organizations and the employee’s health care providers can be helpful in this analysis. If the unvaccinated employee is determined to be a direct threat, the employer should discuss with the employee possible accommodations. Examples include remote work, a change in the employee’s workstation to one that is further from other employees, modified scheduling, or continued mask-wearing and social distancing for this employee. As with any reasonable accommodation, the employer is not required to implement a modification of the employee’s work that would pose an undue hardship on the employer. The EEOC guidance recommends that employers who are considering implementing a mandatory vaccination policy notify their employees that they will consider reasonable accommodation requests for either religious or disability reasons on an individualized basis. Vaccination mandates require an artful balance between an employer’s right to ensure the safety of its employees and patrons and the employees’ rights under federal and state anti-discrimination laws. At Luchansky Law, we routinely assist employers with striking this balance. If your business would like assistance in reviewing or implementing its vaccination mandate for compliance with applicable anti-discrimination laws, give us a call at (410) 522-1020.