2021 marks the first time in history that a special legislative session has been called by petition as two-thirds of Kansas legislators signed on forcing Governor Kelly to call the special session. It is set to begin on Monday, November 22, 2021, to consider two bills relating to vaccine exemptions and potentially expanding UI benefits.
While Kansas is an “at-will” employment state, an employer cannot terminate an employee for reasons related to discrimination, retaliation, or for any reason protected by public policy. Whether employees are terminated or face other forms of workplace discrimination, harassment, or retaliation because of protected action, there will likely be legal action. Concerns are being raised that the bills under consideration will erode the long-standing position of Kansas being an at-will employer.
The KS Overreach Committee Bills under consideration:
Bill 1: Medical & Religious Exemptions
1. Broadens health care providers who are allowed to grant medical exemptions.
2. Provides simplified criteria for religious exemption.
3. Creates cause of action against employer who terminates employee for vaccine status.
Concerns:
a) Lawsuits against employers is concerning especially under the Hilburn decision (no caps for damages) because of potentially cost and harassment of employers
b) System for an employee to file a complaint for discharge already exists under Kansas discrimination act, which is regulatory and typically less costly to employer and employee
c) Current bill language needs to ensure requirements mirror EEOC religious exemption/language
d) Must also consider the costs to employers for monitoring employees with exemptions (required testing, masking, etc.)
Bill 2: Expansion of UI Benefits for Individuals Discharged or not Hired Based on Medical and/or Religious Exemption
1. Allows UI benefit for those who voluntarily leave workplace due to vaccine requirement
2. Allows UI benefit for employee denied exemption for vaccine status
Concerns:
a) Slippery slope to allow benefits for an employee who refuses a term of employment
b) Employees who are vaccinated could bring claim for unsafe work environment, if an employer allows multiple exemptions causing a double-edged sword for employers.
c) The UI system was established for those who lose their job at no fault of their own. This bill challenges this notion by awarding benefits to workers who voluntarily leave their job.
Also in the mix, Kansas Attorney General, Derek Schmidt has joined several other states in multiple suits suing the Biden administration over the vaccine mandates.
The OSHA Emergency Temporary Standard (ETS) and the Centers for Medicare & Medicaid Services (CMS) rules will hit nearly 50% of employers across the state. The OSHA ETS was formally issued on November 5, 2021 and on Tuesday, November 16, 2021, the Sixth Circuit Court of Appeals, based out of Cincinnati, was selected via lottery by the Judicial Panel on Multidistrict Litigation to hear legal challenges to the OSHA ETS. A three-judge panel from the Sixth Circuit will now hear the legal challenges to the OSHA ETS. It is notable, Republican presidents appointed a majority of the judges currently presiding in the Sixth Circuit.
On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) ("ETS"). The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.
It is almost assured that the Biden Administration and OSHA will ask the Sixth Circuit Panel to review and repeal the Fifth Circuit Court of Appeals’ stay of the OSHA ETS. The Fifth Circuit reaffirmed its earlier order halting enforcement of the OSHA ETS, noting it “threatens to substantially burden the liberty interests of reluctant individual recipients to put a choice between their job(s) and their jab(s).” OSHA has since issued a statement it was suspending “activities related to the implementation and enforcement of the ETS,” but provided OSHA “remains confident in its authority to protect workers in emergencies.”
From the EEOC website:
Religious discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) protects workers from employment discrimination based on their race, color, religion, sex (including pregnancy, sexual orientation, and transgender status), national origin, or protected activity. Under Title VII, an employer is prohibited from discriminating because of religion in hiring, promotion, discharge, compensation, or other “terms, conditions or privileges” of employment, and also cannot “limit, segregate, or classify” applicants or employees based on religion “in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee.” The statute defines “religion” as including “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that [it] is unable to reasonably accommodate . . . without undue hardship on the conduct of the employer’s business.” “Undue hardship” under Title VII is not defined in the statute but has been defined by the Supreme Court as “more than a de minimis cost” – a lower standard for employers to satisfy than the “undue hardship” defense under the Americans with Disabilities Act (ADA), which is defined by statute as “significant difficulty or expense.”
These protections apply whether the religious beliefs or practices in question are common or non-traditional, and regardless of whether they are recognized by any organized religion. The test under Title VII’s definition of religion is whether the beliefs are, in the individual’s “own scheme of things, religious.” Belief in God or gods is not necessary; nontheistic beliefs can also be religious for purposes of the Title VII exemption as long as they “‘occupy in the life of that individual “a place parallel to that filled by . . . God” in traditionally religious persons.’” The non-discrimination provisions of the statute also protect employees who do not possess religious beliefs or engage in religious practices. EEOC, as a federal government enforcement agency, and its staff, like all governmental entities, carries out its mission neutrally and without any hostility to any religion or related observances, practices, and beliefs, or lack thereof.
The number of religious discrimination charges filed with EEOC has increased significantly from fiscal years 1997 to 2019, although the total number of such charges remains relatively small compared to charges filed on other bases. Many employers seek legal guidance in managing equal employment opportunity (“EEO”) issues that arise from religious diversity as well as the demands of the modern American workplace. This document is designed to be a practical resource for employers, employees, practitioners, and EEOC enforcement staff on Title VII’s prohibition against religious discrimination. It explains the variety of issues considered in workplace-related religious discrimination claims, discusses typical scenarios that may arise, and provides guidance to employers on how to balance the rights of individuals in an environment that includes people of varying religious faiths, or no faith.
Definition Overview:
Religion is very broadly defined for purposes of Title VII. The presence of a deity or deities is not necessary for a religion to receive protection under Title VII. Religious beliefs can include unique beliefs held by a few or even one individual; however, mere personal preferences are not religious beliefs. Individuals who do not practice any religion are also protected from discrimination on the basis of religion or lack thereof. Title VII requires employers to accommodate religious beliefs, practices and observances if the beliefs are “sincerely held” and the reasonable accommodation poses no undue hardship on the employer.
Sincerely Held
Title VII requires employers to accommodate those religious beliefs that are “sincerely held.” Whether or not a religious belief is sincerely held by an applicant or employee is rarely at issue in many types of Title VII religious claims. For example, with respect to an allegation of discriminatory discharge or harassment, it is the motivation of the discriminating official, not the actual beliefs of the individual alleging discrimination, that is relevant in determining if the discrimination that occurred was because of religion. A detailed discussion of reasonable accommodation of sincerely held religious beliefs appears in § 12-IV, but the meaning of “sincerely held” is addressed here.
Like the religious nature of a belief, observance, or practice, the sincerity of an employee’s stated religious belief is usually not in dispute and is “generally presumed or easily established.” Further, the Commission and courts “are not and should not be in the business of deciding whether a person holds religious beliefs for the ‘proper’ reasons.
So, now what?
1. Do we play the wait and see game with the courts?
2. Do we tinker with the state law and play the wait and see game regarding if, what and when unintended consequences develop?
3. Do we follow and enforce current law related to medical and religious exemptions and let the Kansas Department of Labor make a determination on the merits of each unemployment claim?
I make the motion we go with option 3… Let’s leave the laws as they are, let the three-judge panel from the Sixth Circuit make a final ruling on the OSHA ETS, and push out a PR campaign to Kansas employers letting them know they can take a streamlined approach to the sincerely held religious belief exception process under current law and EEOC guidance and language.
