NLRB to Issue New Rules on Whether Student Workers Can Unionize

Q.  Are students who work in connection with their studies considered to be “employees” and therefore able to unionize?

A.  In a significant development for private colleges and universities, the National Labor Relations Board (NLRB) announced that it intends to propose rules that would establish a “standard for determining whether students who perform services at private colleges or universities in connection with their studies are ‘employees’” under the National Labor Relations Act (NLRA). The NLRB currently projects that the proposed rules will be issued in September 2019. It is widely expected that the rules, which will be proposed by the Republican-controlled Board, will make it more difficult for students to be classified as “employees” for the purpose of forming unions.

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Christopher J. Moran & Lee E. Tankle

Woof Woof: Accommodating Animals in the Workplace

Q.  An employee has requested that he be allowed to bring his Labradoodle to work with him. Do we have to accommodate this request?

A.  Pets are accompanying their masters everywhere these days. It is not unusual to see pets in public areas, including restaurants, and even on airplanes. Likewise, more employees are requesting to bring man’s best friend to work.  Whether an employer has to accommodate such a request depends on whether the employee is qualified individual with a disability and the request for accommodation would enable the employee to perform the essential functions of his or her job.  If the workplace is also a place of public accommodation, then the company also should be mindful of the rules under the  Americans With Disabilities Act (ADA) for “service animals.”

The ADA defines a service animal as a dog or miniature horse that is individually trained to do work or perform tasks for a person with a disability. Yes, you did read that correctly.  Miniature horses are covered by the Act, although other animals, such as cats, are not.  Examples of the type of work or tasks performed by service animals include:  (i) guiding a blind employee, (ii) alerting a deaf individual, (iii) pulling a wheelchair, (iv) alerting and protecting a person who is having a seizure, (v) alerting a diabetic that his or her blood sugar has reached certain high or low levels, (vi) reminding a person with mental illness to take prescribed medications, and (vii) calming an employee with a mental health disability during an anxiety attack.  The work or task the service animal has been trained to provide must be directly related to the person’s disability.

When it is not obvious what service a particular animal provides, a place of accommodation may only ask the following questions: (1) whether the animal is a service animal required because of a disability, and (2) what work or task the service animal has been trained to perform. The company may not require the individual to demonstrate that the service animal has been trained to perform a certain task.  Moreover, the ADA does not require that service animals be trained by a professional training program.  Instead, individuals with disabilities have the right to train the service animal themselves.  Likewise, the ADA does not require service animals to wear a vest, ID tag, or specific harness, or require that the animal has been certified, trained, or licensed as a service animal.

Animals in Private Workplaces

If your workplace is not a place of public accommodation, then the ADA does not have specific rules governing the type of animal allowed.  Employers will need to engage in the interactive process with the employee to determine whether allowing the animal into the workplace will enable the employee to perform the essential functions of his or her job without posing an undue hardship on the employer or a direct threat to health and safety in the workplace.  As part of the interactive process, the employer should ask the employee to provide medical documentation of the nature of the disability and way in which the animal would enable the employee to perform his or her job functions.  The employer can provide an alternative accommodation so long as the accommodation would be as effective in enabling the employee to perform the job.

Written Policies

Employers should consider putting a written policy in place, taking into consideration several practices, including, for example, the employee’s responsibility to keep the animal harnessed, leashed, or tethered, unless these devices interfere with the animal’s work or the individual’s disability prevents using these devices. In that case, the individual must maintain control of the animal through voice, signal, or other effective controls. In addition, a policy can clarify the employee’s responsibility to provide care and food for the animal.  Moreover, an individual with a disability can be asked to remove his animal from the workplace if: (a) the animal is out of control and the employee does not take effective action to control it, (b) the animal is not housebroken; (c) the facility cannot accommodate the animal’s type, size, or weight; or (4) the animal’s presence will compromise legitimate safety requirements necessary for safe operation of the facility.

Significantly, however, a coworker’s allergies or fear of dogs may not be valid reasons for prohibiting animals from the workplace. When a coworker who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility, or modifying work schedules.

–Tracey E. Diamond

 

Pittsburgh Expands Pregnancy Accommodations for Employees and Their Partners

Q.  As an employer located in Pittsburgh, Pennsylvania, what do I need to know about accommodations for pregnant employees?

A.  Pittsburgh’s City Council recently unanimously passed a new ordinance that expands protections for pregnant employees and their partners and imposes several new requirements on private employers, much like those under the federal Pregnancy Discrimination Act and Americans with Disabilities Act. The local ordinance became effective on March 15, 2019.

Section 659.02 of Article V, Chapter 659 of the Pittsburgh City Code already treated pregnancy discrimination as a form of sex discrimination. It prohibits employers with five or more employees from discriminating on the basis of sex including “pregnancy, childbirth, or a related medical conditions.”  The newly added provisions amend and supplement these existing provisions, expanding protections for pregnant employees by making pregnancy its own protected class.

Importantly, the new ordinance makes Pittsburgh one of the first cities to extend protections for partners of pregnant employees. The term “partner” applies broadly to mean “a person of any gender with whom a pregnant person or person with a related medical condition has a relationship of mutual emotional and/or physical support, and does not require a marital or domestic relationship.” The ordinance makes nearly all of the law’s anti-discrimination provisions applicable to partners of pregnant employees.

The law requires employers to initiate an interactive process with pregnant employees who are having an issue with their work performance or conduct at work related to their or a partner’s pregnancy, childbirth, or related medical condition —regardless of whether the employee has asked for an accommodation. The Pittsburgh Commission on Human Relations published written guidance about the ordinance, which explains:

“It is the duty of the employer to initiate a dialogue with an employee (the “interactive process”) when: (a) the employer learns, either directly (e.g., is informed by the employee) or indirectly (e.g., the condition is visible and obvious) that the employee is pregnant, has recently experienced childbirth, or has a pregnancy-related medical condition, or that an employee is the partner of such a person; (b) the employer has knowledge that the employee is having an issue with their performance or conduct at work; and (c) the employer has reason to believe that the performance or conduct issue(s) are related to the employee’s or their partner’s pregnancy, childbirth, or a related medical condition.”

If all of those conditions are met, the employer has a duty to initiate the interactive process, whether or not the employee has made a request for accommodation.

The Commission’s guidance identifies examples of reasonable accommodations, including the following: schedule modifications, granting leave requests, modified duties and job requirements (e.g. offering light duty work), and modified work stations (e.g. permitting an employee to sit during her shift). The new ordinance also limits when employers may request medical documentation from pregnant workers and prohibits retaliation against employees who request reasonable accommodations under the new law.

Takeaways

Pittsburgh employers should review their current policies and develop additional policies as needed to comply with the new ordinance’s prohibition of pregnancy discrimination and retaliation, including its applicability to a pregnant employee’s partner and the requirement to initiate the interactive process. For assistance in ensuring that your policies comply with this ordinance, we recommend consulting with labor and employment counsel.

Leigh McMonigle

 

New Requirements for Reporting Pay Data on EEO-1 Forms

Q.  Please explain the new requirements for reporting pay data with the EEO-1 Form.

A. During the Obama administration, the Equal Employment Opportunity Commission (EEOC), in an effort to address pay discrimination, sought to require organizations that file EEO-1 forms (i.e., those with at least 100 employees or federal government contractors with 50 or more employees) to report additional pieces of information — W-2 wage data and hours worked within 12 pay bands by sex, race and ethnicity for each of the 10 EEO-1 job categories. The purpose of this requirement was to provide the EEOC with information to assess pay disparities along sex and race lines. The pay data collection requirement was set to be implemented on March 30, 2018, but the Trump administration’s Office of Management and Budget (OMB) stayed the requirement on August 29, 2017, concluding that it violated the Paperwork Reduction Act.

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Susan K. Lessack