Sweatpants in the Workplace? Dress Code Considerations When Returning to the Office During a PandemicMonths of working from home have made at least one thing clear – the “Freshman 15” has nothing on the COVID-19. Boredom, stress, and ease of access to the refrigerator has caused many employees to trade in their suits for sweatpants and their heels for flip-flops. As offices see more and more employees return to work, employers may want to consider taking proactive steps to curtail such casual attire in the workplace.

Can employers require a dress code?

Yes. Dress codes have permeated workspaces for decades and this will likely not change. If you already have a policy in place, remind employees of the policy before the return to the office. If you do not have a dress code policy but expect employees to return to work in something other than yoga pants, you should implement a policy before the return to the office and circulate it.

What are the potential legal implications of a dress code?

A key attribute of a successful dress code policy is uniform enforcement. Failure to apply the dress code across the board can lead to several legal concerns. In short, do not enforce your dress code in a way that is, or appears to be, discriminatory. Employees are protected from discrimination based on race, color, religion, sex (including sexual orientation and gender identity), national origin, age, disability, genetic information, and any other class protected by applicable law. Employers should make sure that their dress code policies do not discriminate against any of these classes. A couple of examples:

  • Do not place a higher burden on women than men, such as requiring women to wear skirts or high heels and not requiring the same of men. Instead, let employees know that they are expected to dress professionally, which means suits and dress shoes.
  • Have an avenue for someone to seek a reasonable accommodation for a sincerely held religious belief (such as allowing a Muslim woman to wear a head covering) or a disability (such as shoes that address an orthopedic issue). You do not have to grant the accommodation if it would cause an undue hardship.

Can I include masks as part of the dress code?

Many employers ask whether they can require their employees to wear masks. The short answer is —(typically) yes. The Equal Employment Opportunity Commission has determined that employers can require employees to wear masks in most cases (see questions G.2 – G.5 for guidance). You should be cognizant of the Americans with Disabilities Act and religious protections when implementing a mask mandate. For example, if an employee has health reasons preventing him or her from wearing a mask, you should consider whether a reasonable accommodation would allow the employee to perform the essential functions of the job (assuming no undue hardship issue). A similar situation may arise if a mask impedes an employee’s ability to wear a particular religious garb.

Takeaways

The COVID-19 pandemic may have forever altered many workplaces, but you can still expect your employees to show up to work appropriately dressed for work. As you return to your workplace, keep the following in mind:

  1. You can still enforce or adopt traditional rules, such as dress codes.
  2. Make sure your dress code does not discriminate or appear to discriminate against employees based on their race, sex, or other protected status.
  3. Have a clear path for an employee to request a reasonable accommodation for a disability or a sincerely held religious belief. Make sure your supervisors understand that there may be exceptions to the dress code and document the reasonable accommodation process.

The Whistleblower’s Show Can Go On: Georgia Supreme Court Allows Complaint to Proceed Despite Inconsistent Bankruptcy FilingYour former employee sues you, but your employee-plaintiff filed for bankruptcy. You diligently research the bankruptcy filings and discover the employee did not disclose the lawsuit against you in those filings, which are sworn to under oath. You might have a winner to get out of the case, right? Well, it is not quite that simple, according to a recent ruling in Georgia. The potential argument that the plaintiff’s claims may be precluded or estopped if he or she has not sufficiently disclosed the lawsuit in the bankruptcy certainly exists. A divided Georgia Supreme Court, however, said that a whistle-blower’s claims can continue despite the inconsistent position taken in her bankruptcy filings. The decision is significant to keep in mind when crafting early dismissal arguments premised on inconsistent bankruptcy disclosures.

Bankruptcy Case

In May 2013, Fulton County employee Sandra Ward-Poag filed for personal Chapter 13 bankruptcy protection in the Bankruptcy Court for the Northern District of Georgia. Bankruptcy petition schedules call for the filing debtor to disclose any and all claims they have as assets. The Bankruptcy Court confirmed her Chapter 13 plan in March 2014, which required her to make her plan payments to the bankruptcy trustee through March 2019.

Claims

Ward-Poag worked for Fulton County as the manager of Wolf Creek Amphitheater beginning in 2012. In October 2016, when her bankruptcy was still active and she was making plan payments, Ward-Poag filed a civil whistleblower claim against Fulton County alleging that after she raised the issue of a Fulton County commissioner attempting to use the amphitheater for personal gain that she was demoted and retaliated against. She sought $3 million in damages plus attorneys’ fees in her complaint. Although her bankruptcy case was still open and pending, Ward-Poag did not initially file any amendment to her bankruptcy asset disclosures.

In September 2017, over a year after the case was first filed, the county filed a motion for summary judgment asserting that judicial estoppel barred Ward-Poag’s claims because she did not disclose the lawsuit in her bankruptcy filings as an asset per the requirements of the bankruptcy code and that she was required to amend her asset listings in the bankruptcy court. A short time later, Ward-Poag did just that and amended her bankruptcy petition to include her litigation against the county but swore, under penalty of perjury, that the lawsuit was valued at only $1. She then responded to the motion for summary judgment stating that she had no intention to deceive the bankruptcy court, was unaware of her obligation to amend her schedules years after they were submitted, and that she had amended her schedules.

The trial court granted the county summary judgment based on judicial estoppel with her personal bankruptcy case. That is her claim was barred because she took a position in her whistleblower complaint that was inconsistent with her bankruptcy filings. At the summary judgment hearing, the judge proclaimed that Ward-Poag made “a mockery of the court and a mockery of the bankruptcy court” in asking for much more than $1 in her lawsuit. In his written order, the judge noted that Ward-Poag was a law school graduate, was represented by counsel in her bankruptcy, and amended her bankruptcy schedules only after the county raised it in their motion, all suggesting that Ward-Poag intended to deceive and was inconsistent in her court filings. The intermediate Court of Appeals reversed the trial court, but did so with the bright line rule that because Ward-Poag had amended her bankruptcy filing to disclose the lawsuit that all was cured.

Judicial Estoppel Based on Bankruptcy Filings

The court began with a discussion that judicial estoppel is commonly applied with bankruptcy debtors who pursue a damages claim that they fail to include as an asset in bankruptcy. The idea is that when assets are not revealed in the bankruptcy petition, “including unliquidated tort claims, it operates as a denial that such assets exist, deprives the bankruptcy court of the full information it needs to evaluate and rule … deprives creditors of resources that may satisfy unpaid obligations [and] preserves the integrity of the judicial forum by not permitting a debtor to take inconsistent positions to manipulate the system.” The 11th Circuit guidance applies a two-part test for judicial estoppel, asking (1) whether the party took an inconsistent position under oath in a separate proceeding and (2) whether these inconsistent positions were calculated to make a mockery of the judicial system.

Holding: Not So Simple, Consider All Facts and Circumstances

First, the Georgia Supreme Court rejected the Court of Appeals’ “bright line rule” that just because Ward-Poag amended her bankruptcy petition she eliminated any judicial estoppel contention. The Georgia Supreme Court found it is not always so simple, as a party may sometimes amend, but still take an inconsistent position. “We disapprove cases that can be read to support the proposition that any amendment, no matter how inaccurate, will automatically make a debtor’s positions consistent for purposes of judicial estoppel.”

Instead, the Georgia Supreme Court reversed the summary judgment ruling because the trial court “not only ignored Ward-Poag’s evidence, it also construed the facts and drew inferences against Ward-Poag when it was required to do the exact opposite.” The court leaned heavily on the 11th Circuit precedent to determine where the inconsistency was calculated to make a mockery of the judicial system, which required review of “all the facts and circumstances of the particular case”  that may include the party’s sophistication, any corrections made, reliance on the bankruptcy attorney, whether creditors were aware, and any findings by the bankruptcy court. To be clear, the court’s decision does not mean that the county lost on its judicial estoppel defense. Rather, the question of her intent to deceive was for the fact finder and not for the judge to decide before a trial. “This is not one of those rare cases where the evidence of intent is plain and undisputed. There are genuine issues of material fact as to whether Ward-Poag intended to deceive her creditors and make a mockery of the judicial system by any inconsistent position she may have taken.” The court went on to say that multiple other factors could be considered as to the appropriateness of judicial estoppel, such as whether there would be a windfall to a bad actor and any public interest, since it was an equitable doctrine.

The chief judge authored a vigorous dissent to assert that the trial court’s order properly concluded that she acted with the intent to make a mockery of the judicial system through her inconsistent filings. In particular, the dissent was frustrated by the fact that while Ward-Poag could claim some ignorance before the county’s motion, it was her actions afterward in amending the schedules but placing a value of only $1, while simultaneously seeking $3 million in damages elsewhere.

Lesson: Check the Bankruptcy Filings of Your Plaintiff and Pick Your Battles

The Georgia Supreme Court took a very nuanced view of judicial estoppel to reverse the summary judgment order, but the principle should still be a part of your defensive playbook where your plaintiff is in bankruptcy. With any new litigation filed against the company by an individual one item to always check is any potential bankruptcy filings by the plaintiff. Despite the Georgia Supreme Court’s decision, there still may be avenues to pursue dismissal based on what is disclosed in the bankruptcy petition or schedules. With personal bankruptcies likely to tick up in the coming months and years, every employer who finds itself in new litigation should make a point to check any bankruptcy filings by the plaintiff and take advantage of any estoppel arguments.

Mandate to Vaccinate? Employers and Required Flu ShotsThis year has presented many challenges, including a global health pandemic, wildfires, hurricanes, and social justice unrest, and yet we now face a fast approaching influenza season that is sure to bring on more coughs, sneezes and hiccups. In light of the ongoing health crisis and resulting disruption caused by the COVID-19 pandemic, employers may find themselves considering a mandatory flu vaccination as a way to keep their workforce healthy and productive during the fall and winter months.

Can You Require All of Your Employees to Get a Flu Vaccine?

Yes and no. Generally, employers can establish legitimate health and safety standards, policies, and requirements so long as they are job related and consistent with business necessity and so long as they consider reasonable accommodations for disabilities and religious beliefs. That includes implementing a mandatory flu vaccination program. Mandating vaccines is most common in industries and occupations where employees provide personal services to individuals who are at high risk of developing serious complications if they were to contract the flu (e.g., adults 65 and over, young children, women who are pregnant, and some people with chronic health impairments). However, as our parents often admonish, just because you can does not mean you should. Before you mandate flu vaccines, you should take proper precautions and allow for exceptions.

OSHA Says Inform and Educate

OSHA takes the position that employers can require employees to take influenza vaccines but emphasizes that employees “need to be properly informed of the benefits of vaccinations.” OSHA also explains that:

an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as a serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act pertaining to whistleblower rights.

Employers are advised to develop consistent written communication to employees about the efficacy of a flu vaccine, provide details about how a mandatory program would be administered, and perform supervisor training on how to address objections (covered in more detail below).  Also, your policy should clearly describe the process for requesting an exemption or accommodation for employees who object to the vaccine.

Circumstances When an Employee Must Be Granted an Exemption 

The EEOC has identified two principal exemptions to mandatory vaccination requirements: disabilities under the ADA and sincerely held religious beliefs under Title VII.

  • Disability-based objections – If an employee claims a qualifying disability under the ADA, you may be required to grant an exemption to mandatory flu vaccinations as a reasonable accommodation unless it would result in undue hardship to the employer. First, determine if there is a reasonable accommodation. If the employee does not take the vaccine, can he or she wear PPE? If the only accommodation is exempting the employee from the flu shot, is that an undue hardship? As a reminder, under the ADA, “undue hardship” is “significant difficulty or expense” incurred by the employer in providing an accommodation. As with any request for an accommodation, you must engage in an interactive process to determine if reasonable accommodations are available that would allow the employee to perform the assigned job or another available job for which the employee is qualified. If an employee claims to have a health condition that makes getting vaccinated a health risk, you do not have to take the employee’s word for it and instead should ask the employee to provide documentation from a physician before exploring accommodations for someone without an obvious impairment.
  • Religious Objections – You also have an obligation to accommodate sincerely held religious beliefs. A religiously grounded objection to vaccination must be the product of an authentic and sincerely held belief, which can be contested. Nevertheless, courts have broadly interpreted “religion” in the context of required vaccination policies. For example, one court held that an employee’s veganism was a sincerely held religious belief and the employee’s dismissal for refusal of a vaccine that included animal by-products constituted religious discrimination. The best practice is not to judge the validity of an employee’s claimed religious practice, but rather engage in the interactive process and evaluate whether (1) there is reason to believe that the employee’s religious beliefs are not sincerely held; (2) there is a reasonable accommodation available that does not pose an undue hardship; and (3) whether you have granted a similar accommodation for other reasons, such as for a disability.

Best Practices

If you elect to implement mandatory flu vaccinations, you should develop and publish a written policy explaining your expectations and clearly describe how an employee may request an exemption or accommodation. You should also ensure compliance with any applicable state or local regulation as some states have personal privacy laws that could be the basis for individual challenges to mandatory vaccinations. On the other hand, other states specifically require vaccinations for employees in certain industries such as eldercare, healthcare and/or childcare. You should consider paying or reimbursing employees for the cost of a mandatory vaccination and compensating employees for the time it takes to have the vaccination administered. Finally, you must also safeguard the privacy of employees’ medical information, including but not limited to keeping it separate from your general personnel files.

To Mandate or Not to Mandate

Although promoting a safe workplace and protecting the health and wellbeing of your workforce is a noble cause, you should proceed with caution in implementing an across-the-board, mandatory flu vaccination policy. As a first step, encourage your employees to be vaccinated and provide them with the opportunity to be vaccinated at their worksite during work hours by a licensed healthcare provider. You should consult with an attorney before implementing any workplace vaccination policy to avoid missteps and ensure your policy is legally compliant.