The Biden administration has been very busy rolling out its plan to manage the COVID-19 pandemic. While we blogged about the president’s announcement last week, we just can’t help ourselves and are going to have an hour-long webinar to talk some more about it. Join us tomorrow while Craig Oliver, Chuck Mataya, and Anne Yuengert talk more about the latest and greatest in what employers need to worry about in the wonderful world of COVID-19.
Yesterday, President Biden announced that he is entering two Executive Orders requiring COVID-19 vaccines for federal workers and contractors and that administrative agencies (the Centers for Medicare and Medicaid Services (CMS) and the Occupational Safety and Health Administration) will be issuing requirements establishing vaccine protocols for large employers and healthcare providers. President Biden expressed his frustration with the loss of momentum in citizens getting vaccinated and stated that “our patience is wearing thin.” The new mandates may affect around 100 million U.S. workers.
OSHA to Enforce Mandate Against Large Employers
The president has asked OSHA to put out an Emergency Temporary Standard (ETS) that will cover any business that has 100 or more employees. The ETS is expected to require those employers to verify that their workers are vaccinated before coming to work. Employees who do not get vaccinated would have to provide a weekly negative COVID-19 test to be allowed to remain in the workplace. The standard will also require the large employers to provide paid time off for workers to get vaccinated or to recover from any side effects from the vaccine. No deadline for this requirement has been released yet.
The new vaccination mandate does not negate employers’ obligation under both Title VII and the ADA to entertain employee objections to vaccinations based on religious belief or a medical condition. Employers should continue to follow the practice of an interactive process if an employee lodges such an objection.
Federal Contractors and Federal Workers
The new vaccination mandate builds upon the administration’s July announcement regarding federal workers. This new mandate requires that all federal executive branch workers be vaccinated (they do not have the weekly testing option). This would cover many agencies, including the Department of Defense, the Department of Veterans Affairs, and the USDA, just to name a few. If federal workers chooses not to be vaccinated and does not meet either the religious exemption under Title VII or the medical condition exemption under the ADA, they may be subject to progressive discipline, including termination. This requirement was also extended to federal contractors and may not simply apply to those contractor employees who appear on federal property. The president’s Executive Order requires further guidance about this prong to be issued in seven days.
Following past requirements for nursing home facilities, CMS will require vaccinations for workers in most healthcare settings. If a hospital, clinic or other medical services provider receives reimbursements from Medicare or Medicaid, they are likely covered by this new vaccination requirement. Like the federal workers and contractors, there is no weekly testing alternative. Curiously, the CMS requirement for nursing home facilities was announced in mid-August but CMS has not yet issued a rule.
What Does This Mean and When Does It Start?
The White House plan did not include many hard deadlines. We will have to wait to see when OSHA issues its Emergency Temporary Standard on the rule for large employers. The guidance for federal workers and contractors is supposed to be issued within a week. For healthcare providers, it is unknown when CMS will issue its standard.
Despite the unclear deadlines, it is probably smart for covered employers to go ahead and start talking with your employees about this upcoming mandate. Many large national employers have already implemented some sort of mandatory vaccination program. As with everything these days, it is likely that there will be some sort of challenge to this mandate, but there will not be any legal decision soon.
In another chapter in litigation alliteration, in Maner v. Dignity Health, f/k/a Catholic Healthcare West, the Ninth Circuit held that a male employee’s theory that his supervisor’s long-term romantic relationship with a co-worker could not be the basis for his own Title VII claim that he was discriminated due to his sex. The Court noted that his supervisor’s “paramour preference” for a female subordinate was not enough to show that the employee had suffered discrimination based on his male gender.
Alleged Preferred Treatment
The Plaintiff, Mr. Maner, worked as a biomedical design engineer at Dr. Robert Garfield’s lab in Galveston, Texas. One of Mr. Maner’s co-workers was a researcher named Dr. Shi. Significantly, Dr. Shi was in long-term romantic relationship with Dr. Garfield.
In 2008, Dr. Garfield decided to move the lab to Phoenix, Arizona at an installation operated by Dignity Health. Due to some legal troubles, Mr. Maner could not leave the state of Texas and instead remained working remotely in Texas. Three years later, Dr. Garfield gave Mr. Maner a highly negative review and suggested that Mr. Maner either move to Arizona or get fired. The lab ultimately terminated Mr. Maner due to his performance and an overall decline in lab funding. Mr. Maner internally contested the termination claiming that Dr. Garfield engaged in unfair labor practices and appropriated lab funds “in a nepotistic manner.” Dignity Health investigated but denied his appeal.
Mr. Maner’s Suit and Theory
Mr. Maner filed a sex discrimination charge and later lawsuit against Dignity Health alleging that it protected the female employee, Dr. Shi, from the impacts of the reduced lab funding by terminating Mr. Maner. He also brought a retaliation claim stating that Dignity Health terminated him for protesting Dr. Garfield’s favoritism of Dr. Shi at the expense of other employees.
The district court granted Dignity Health’s motion for summary judgment, holding that Mr. Maner’s complaints were not based on his sex, but instead on Dr. Garfield’s preference for Dr. Shi as a romantic partner. The court noted that this “paramour preference” theory of Title VII liability (where a supervisor’s relationship with a romantic partner at work results in an adverse employment action against another employee) had not yet been recognized in the Ninth Circuit. The court acknowledged that nearly every other circuit and the EEOC had already rejected that theory as inconsistent with Title VII.
The Ninth Shuts It Down
The Ninth Circuit narrowed the issue by pointing out that Mr. Maner conceded he had no allegations that Dr. Garfield or anyone at the company had shown any animus against male employees or engaged in any sort of hostile work environment. Instead, his only evidence was Dr. Garfield’s romantic relationship with Dr. Shi and his theory that Mr. Maner’s termination was motivated by a “paramour preference.”
The court pointed out that Mr. Maner’s “paramour preference” theory would have Title VII’s use of the word “sex” to cover sexual activity between persons. However, every circuit to consider the question has rejected that theory. Those courts focused on the fact that Title VII uses “sex” in context along with “race,” “color,” “religion,” and “national origin.” Sex is seen as a characteristic and not an activity. Sex refers to membership in a class. This context is borne out by noting that under the “paramour preference” theory, male plaintiffs face the same predicament as any other woman employee – no one but the paramour would be considered to be protected by the supervisor.
The EEOC guidance agrees with the circuits, noting that “Title VII does not prohibit isolated instances of preferential treatment based upon consensual romantic relationships.” The EEOC went on to say that an instance of favoritism toward a paramour, spouse or friend may be unfair, but it does not discriminate against women or men in violation of Title VII.
The Ninth Circuit turned to the recent Bostock decision for further ammunition in shutting down Mr. Maner’s theory. In Bostock, the Supreme Court held that that the phrase “because of sex” in Title VII covers sexual orientation and gender identity. The Bostock Court posited this test: if changing the employee’s sex would have yielded a different choice, a statutory violation has occurred. According to the Ninth Circuit, this is where the “paramour preference” theory fails. If Mr. Maner changed his sex, it would have made no difference in how he had been treated – Dr. Garfield only had eyes for Dr. Shi. The court concluded:
“Workplace favoritism toward a supervisor’s sexual or romantic partner is certainly unfair to similarly situated workers and more than likely harms morale. But Title VII is not a ‘general civility code,’ and employment practices are not unlawful simply because they are unwise. The Court upheld the summary judgment granted against Mr. Maner.”
Does This Endorse Dating In the Workplace?
Romantic relationships among co-workers, especially between supervisors and subordinates, are problematic. While things initially may be rosy, relationships turned bad may result in quid pro quo and hostile environment harassment allegations. However, as recognized by the Ninth Circuit, simply because an employment practice is unwise, does not mean that it is necessarily unlawful. While the fact pattern found here may not have supported a claim, employers need to be very careful about how they handle consensual workplace relationships. You should also remind everyone that non-consensual sexual or romantic gestures may not be welcome and can result in liability.