Reverse: Labor law LARP


Three labor and employment attorneys from Ward and Smith analyzed a number of real-life situations that many employers face in today’s landscape.

The webinar, part of Ward and Smith’s virtual in-house attorney conference, challenged attorneys to provide solutions to workplace issues such as vaccination mandates, religious accommodations, employment and discrimination.

The session – Inside Out: Employment Law Live Action Role Play (“LARP”) – used the Labor and Employment Practice Group’s Live Action Role Playing (LARPing) technique to help participants understand how to navigate legal issues real world work.

Session presenters included Ken Gray, who leads the labor and employment law group at Ward and Smith, Justin Hill, a labor and employment lawyer, and Devon Williams, a labor/employment lawyer. employment who is also one of the firm’s managing directors.

The attorneys discussed a variety of hypothetical scenarios they might face as general counsel for ABC, Inc. To begin, the attorneys described how they would react if the CEO of this fictitious company wanted to know the status of the Occupational Safety and Health Administration (OSHA) “weekly vaccination or test” mandate.

Stopping vaccination mandates

A common misconception is that all vaccination warrants have been suspended by the Fifth Circuit. “Instead, it was just the Emergency Temporary Standard (ETS) for employers with 100 or more employees,” Hill said.

The situation is constantly changing. “Just between the time we wrote this live action RPG and started talking about it last weekend, we saw that change dramatically,” Hill added.

Editor’s Notes: On January 13, 2022, the United States Supreme Court ordered that OSHA ETS be suspended pending the disposition of the case by the Court of Appeals for the Sixth Circuit. Click here for more information.

Religious exemptions

In the following hypothetical scenario involving ABC Corporation, which has a mandatory vaccination policy, the CEO asks what to do about employee Buster Williams, who refuses to get vaccinated. Prior to the policy’s rollout, Buster had expressed various political and personal reasons for choosing not to get vaccinated.

However, after the policy is implemented, Buster requests a religious accommodation to not get vaccinated. The CEO wants to know if Buster can be fired immediately in light of his previous comments about political reasons not to get vaccinated?

Or, could Buster be banned from the workplace and forced to work remotely, even though he cannot perform all of the essential functions of his job from home? Finally, if the previous options were not allowed, the attorneys considered whether ABC could require Buster to wear a mask in the workplace 100% of the time, even though he spends 99% of his day alone in the office with the door closed.

“The information tells us that we have reason to believe Busters has no sincere religious beliefs,” Williams commented. Regardless of the sincerity of the request, however, it may be possible to terminate Buster if the employer is unable to provide reasonable accommodation.

In a scenario like this, Williams says, “the ability to keep your job and get the shot Where losing your job and remaining unvaccinated may be the only two options.”

The situation does not include a discussion between employer and employee to assess whether Buster has an honest belief and whether an accommodation can be provided without undue burden. In light of that, Williams says, “it’s more of a knee-jerk reaction to fire him immediately, not because he’s seeking religious accommodation, but because of everything he’s said before.”

Avoiding retaliatory responses

Terminating Buster immediately may be considered retaliation, so action should be avoided. But what about forcing him to work from home?

The risk of banning Buster and only allowing him to work from home is that this action could be considered retaliation since he filed for religious accommodation. If firing Buster isn’t possible and forcing him to work from home isn’t either, what about making him wear a mask in his office all the time?

Gray noted, “The ETS was going to say you either got vaccinated or you had to test weekly and wear a mask indoors, except when you were in a closed office, and briefly while eating and drinking.”

In this situation, Buster is regulated at his closed office, so it could be argued that this is a retaliatory action. “Given the right circumstances, let’s say employees walk into his office every 10 minutes, that might not be retaliatory,” Gray added, with the caveat that the correct answer would simply depend on the facts.

In many situations, Hill advises employers to go through an interactive process: “Engage with the employee and make sure you go that route. The answer you’ll come up with is the most reasonable.”

Federal contractors

Another issue for many employers involves vaccines and federal contractors. Unlike the ETS published by OSHA, the Federal Workforce Safety Task Force requires federal contractors who meet coverage requirements to receive the vaccine. These employers do not have the option of doing weekly tests instead.

“However, if in fact a person has a legitimate religious or medical reason and is requesting an accommodation, an employer can accommodate them and exempt them from getting vaccinated,” Gray said.

In this case, weekly testing would be an option, but not the only one. Other options could be reassignment or requiring significant PPE. “It would be very fact-specific and would depend on the circumstances and the workplace they would be going to, but yes, there are exceptions for religious and medical accommodations,” Gray added.

Transgender rights

The last work scenario the attorneys discussed involved ABC hiring Reda Green, a transgender woman. Considering itself a progressive company, ABC proudly informed its employees that it had hired a transgender person, but the mass communication offended Reda, who did not want her gender identity disclosed.

Reda complains to the CEO, who wants to know how to fix the situation. “ABC is going to have to fix that and try to fix it somehow,” Hill noted.

Doing nothing would be an incorrect answer, and the problem is that ABC treated Reda differently than they would have treated anyone else. Offering Reda a welcome breakfast and asking him to talk would also be an inappropriate response to the situation.

Similarly, a public apology may not be the right choice. Reda has previously indicated that she was offended by the company’s disclosure of information about her status. “By publicly apologizing for revealing his status, it just keeps this wound open and doesn’t allow him to heal,” Williams said.

An apology is probably warranted, but the likely best strategy would be to speak with Reda first to figure out the best way to accomplish this.

Immediately forcing employees to undergo training focused solely on addressing harassment and discrimination against transgender people would also not be a good option. “The problem with that is that it puts the spotlight on the situation,” Hill explained. “It further compounds the problem of what the company did in the very beginning to offend him.”

Furthermore, Hill pointed out that it was not the employees who disclosed Reda’s status, so the training would not address the root of the problem. The best option would have been to simply apologize to Reda for revealing his identity and status.

As part of the apology, the company should ask Reda if she would like to be a member of the DEI committee, assure her that she was hired because she was the most qualified candidate for the job, and reiterate that the company prohibits any form of discrimination or harassment.

In a hypothetical situation where several female employees complain that Reda uses their toilets and should not be allowed to do so because it is against their religion, the lawyers agreed that the company should engage in an interactive process with The employees.

Whenever a person requests a disability-related accommodation or a religion-related accommodation, companies must have an interactive discussion with that person to avoid an adverse finding. The thing to remember is that Reda has the right to use any restroom he chooses due to United States Supreme Court case law.

After engaging in an interactive discussion with the complaining employees, the company may ask them to use a different restroom. The option for the complaining employees would be to resolve the situation and stop the complaints or no longer work there, since in this situation reasonable accommodation was not available.

© 2022 Ward and Smith, PA For further information regarding the issues described above, please contact S. McKinley Gray, III, Justin T. Hill Where Devon D. Williams.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or factual situation. No action should be taken on the basis of the information contained in this article without obtaining the advice of an attorney.

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