U.S. Supreme Court Substantially Increases Employee Protections in Religious Accommodation Cases

By: E. Fredrick Preis, Jr. and Philip Giorlando

Just as June came to an end, the U.S. Supreme Court released several opinions, including Groff v. Dejoy, a religious accommodation case important for employers involving a postal worker who claimed he was discriminated against for his religious beliefs. In this unanimous decision, the Court overturned the longstanding “de minimis” standard previously applied by courts to an employer’s decision to deny an employee’s request for a religious accommodation—meaning that the employer needed only to show that the accommodation would be more than a minor cost to the employer. The Court changed the standard to a more “pro-employee” test, and now an employer must provide a religious accommodation unless the accommodation would result in “substantial increased costs in relation to the conduct of its business.”

This decision marks a significant departure from the previous standard set by the 1977 U.S. Supreme Court decision, Trans World Airlines v. Hardison, which interpreted “undue hardship” in the religious accommodation context as anything imposing more than a minor, or “de minimis” cost. That 1977 decision had made it easier for employers to deny religious accommodations to employees. Now, the unanimous court has held that accommodations should be allowed unless the accommodation would result in substantial increased costs in relation to the conduct of its particular business. As a practical matter, this decision brings the employer’s “undue hardship” burden required to properly deny a religious accommodation closer to the “significant difficulty or expense” test required to deny a disability accommodation under the Americans with Disabilities Act.

The implications of this decision are far-reaching and affect employers of all sizes and industries. Employers’ policies and practices need to be reviewed to ensure that they are respectful of employees' religious beliefs and practices and provide a chance to engage in a good-faith dialogue with employees who request accommodations. Employers should also document their efforts to provide reasonable accommodations and the reasons for denying any requests that would cause undue hardship.

This decision may also impact one of the more recent scenarios for religious accommodation requests—COVID-19 vaccinations. It is likely that some employers denied religious accommodation requests by employees who refused to take the COVID-19 vaccine for religious reasons, and the basis for the employers’ denials was likely that any accommodation would cause an “undue hardship.” If the employer’s decision was considered based on the “de minimis” standard now rejected by the U.S. Supreme Court, the previous religious accommodation denials need to be reconsidered to determine the continued validity of those denials under the new analysis provided by the Groff Court.

Employers who fail to comply with the new standard may face lawsuits from employees who claim that their religious rights were violated. Such lawsuits may result in damages and reputational harm, so care needs to be taken.

EEOC’s “Algorithm” for AI in the Workplace

By: E. Fredrick Preis, Jr., Rachael Jeanfreau, and Kayla M. Jacob

Without question, the rapid advancement of artificial intelligence (AI) has certainly made things easier for employers. For example, human resource departments often use AI technologies to streamline tasks, such as resume screening, candidate shortlisting, facilitating employee onboarding, and tracking employee performance.

However, use of AI-powered tools in hiring and other employment decisions must still comply with Federal equal employment opportunity laws. That is, AI-inspired employment decisions cannot discriminate against applicants or employees based on race, color, religion, sex, national origin, age (40+), disability, or any other legally protected characteristic or activity.

Recently, the EEOC released technical guidance to address the intersection of AI and workplace discrimination, and to clarify that employers must ensure that AI technologies are in compliance with Federal law.

Here are a few ways for employers to mitigate potential risks and safeguard against AI as a high-tech pathway to discrimination while effectively leveraging the benefits of AI technologies:

Do not rely on AI technology entirely. While AI can automate various HR processes, human oversight is critical to helping prevent potential biases, errors, or unintended consequences. Employees should still use critical thinking skills, based on their knowledge, expertise, and experience, for input into decisions.  

Work with vendors. The EEOC has made clear that employers could be on the hook for vendor-designed or administered technologies that result in discriminatory employment decisions. Employers should work with third-party vendors to ensure that AI systems comply with Federal law. For example, employers may wish to confirm that vendors have taken steps to evaluate whether the AI tool could cause a substantially lower selection rate of individuals with protected characteristics, such as race or sex. Employers also should have their contracts with vendors reviewed by legal counsel.

Establish clear guidelines. Employers should establish clear guidelines on how AI technology is utilized in the workplace. This could include, but is not limited to, defining the purpose of using AI tools, procedures for data collection/analysis, and evaluation procedures to monitor the fairness in AI decision-making.

Evaluate and adjust AI technology. Employers should be aware of the potential for AI to be biased, particularly if the algorithms used were based on biased data. It is important that businesses regularly evaluate AI tools’ performance to identify any potential biases, ensure accuracy of data and compliance with Federal, State, and local laws and regulations. If discrepancies are identified, employers should work with vendors to adjust AI algorithms or data sets, or explore new AI technologies that decrease the risk of discrimination.

Train employees. As with any other work process or tool, employees must be trained effectively to utilize and work alongside AI technology. Training employees in areas such as data literacy, analytics, and unconscious bias may assist employees in utilizing AI properly.

Do not forget to accommodate. Employers using AI are still required under disability and religious discrimination laws to provide reasonable accommodations to applicants and employees. Failure to provide accommodations could result in a qualified individual being unfairly or inaccurately rated by an algorithm monitoring work performance or being unable to use the AI technology to apply/interview for a job. Employers should be sure that any AI tools adopted can accommodate qualified individuals with disabilities to prevent unlawful discrimination.

Governor Signs New Law Requiring Leave for Genetic Testing and Cancer Screening

By: Jerry L. "Jay" Stovall, Jr.

On June 8, Governor Edwards signed into law Act 210. This Act amends LSA – R.S. 23:302 and requires an employer to allow an employee one day’s leave of absence from work in order to obtain genetic testing when “medically necessary”, or as a preventative cancer screening.

The Act provides that “medically necessary” generally means those healthcare services that are in accordance with generally accepted evidence-based medical standards or that are considered by most physicians or independent licensed practitioners within the community of their respective professional organizations to be the standard of care. A physician’s recommendation that the employee undergo the testing will suffice.

Services that are experimental (not approved by the FDA), investigational, or cosmetic will not qualify as “medically necessary” unless coverage for early screening and detection is provided for in Part III of Chapter 4 of Title 22.

Employees are supposed to provide at least 15 days’ notice prior to the leave and schedule the leave so as to avoid unduly disrupting the employer’s operations.

This leave is unpaid, but an employer must allow an employee to use accrued paid leave if the employee chooses to do so. The Act does NOT address whether or not an employer can require an employee to use accrued paid leave.

The Act applies to all employers who employ twenty or more employees within this state for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, including both public and private employers. Educational and religious institutions and non-profits are excluded.

The Act requires employers to post a notice to be provided by the LWC and will become effective on August 1, 2023.

DOL Opinion Letter Tells Employers How to Calculate FMLA Leave During a Holiday Week

By: Jerry L. "Jay" Stovall, Jr.

Last week the DOL issued an Opinion Letter (a rarity in itself these days) clarifying how to calculate an employee's use of FMLA during a workweek containing a holiday. The proper method of calculation is not necessarily intuitive and warrants some explanation. 

The short version is this: If an employee takes FMLA leave for the entire workweek in which the holiday falls, the employer can count the holiday against the employee's FMLA leave bank. That is, the employer can treat the holiday as FMLA leave. 

However, if the employee works any part of the workweek in which the holiday falls, the employer cannot count the holiday against the employee’s FMLA bank.  

Using this week as an example: if employee Tom took off Monday for the Memorial Day holiday, reported working for 2 hours on Tuesday before hurting his back, and took the rest of the week off as FMLA leave, Tom’s employer could not count Memorial Day as FMLA leave unless Tom was scheduled to work on Memorial Day.  

The DOL explained it like this; in Factsheet #28I.

When a holiday falls during a week in which an employee is taking the full week of FMLA leave, the entire week is counted as FMLA leave. However, when a holiday falls during a week when an employee is taking less than the full week of FMLA leave, the holiday is not counted as FMLA leave, unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day.

It matters in calculating how much FMLA leaves an employee has available to them. If an employer incorrectly counts a holiday against an employee’s FMLA leave bank, and then takes action against the employee in the mistaken belief that the employee has exhausted her FMLA leave, the employer will be walking into an FMLA suit. 

If You Employ Workers in Texas, You Need to Know About This

By: Jerry L. "Jay" Stovall, Jr.

Texas passed a new law this month that will require employers with at least one employee in Texas to post a notice containing the contact information of the Texas Department of Public Safety to be used for reporting instances of violence or “suspicious activity”. The Notice must be posted in sufficient locations to be convenient to all employees and in both English and Spanish, as appropriate. 

The effective date of the Reporting Workplace Violence Act is September 1, 2023. The Act directs the Texas Workforce Commission to publish Rules prescribing the form and content of the notice, and allows it until March 1, 2024, to do so. 

It is not clear whether Texas will attempt to enforce the posting obligations after September 1, 2023, but before the TWC issues the accompanying Rule in March of 2024. Employers may want to consider creating their notice form out of an abundance of caution.

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