Photo of Ryan Abernethy

Ryan Abernethy is a senior attorney in the firm’s Labor & Employment and Litigation practice groups. Ryan has successfully represented clients in all areas of employment law including the defense of claims involving workplace discrimination, harassment, retaliation, wrongful termination, wage and hour issues, trade secrets infringements and class actions.  He also regularly counsels clients regarding compliance, risk management, policy preparation and training.

The FDA’s rollout of COVID-19 vaccinations has given hope to many employers that we may finally be witnessing the horizon of the pandemic. But this good news comes with a few side-effects, including the question of whether employers can require, or even encourage, their employees to get vaccinated.

To that end, on December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance regarding the COVID-19 vaccinations in the workplace and the interplay with other employment laws.

Most significantly, the EEOC guidance makes clear that employers are legally allowed to mandate vaccines before employees are permitted to return to work, provided the employer makes accommodations for employees with certain disabilities and sincerely held religious beliefs.

Medical Accommodation Under Mandatory Vaccination Policy:

The Americans with Disabilities Act (“ADA”) permits employers to have an employment qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if such a standard tends to screen out individuals with a disability—something mandatory vaccination could do—then the employer must show that the unvaccinated employee would pose a substantial risk of harm to others that cannot be eliminated or reduced by reasonable accommodation. To make this determination, employers should conduct an individualized assessment of four factors: (1) the duration of the risk; (2) the nature of the severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.

The EEOC indicated that a “direct threat” would include an unvaccinated employee who exposes other employees to the COVID-19 virus. If such an employee cannot be vaccinated due to a disability, the employer can exclude the employee from the workplace if there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the risk caused by the unvaccinated employee.

If the threat caused by the employee cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace. However, all other federal, state and local EEO laws and employee rights will need to be taken into account before such an employee can be automatically terminated. This may include providing telework, and if no such work is available, to continue to provide those eligible with leave under the Families First Coronavirus Response Act or other employer policies.

Employers must also engage in the interactive process to explore available accommodations. The EEOC made clear that the prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration. Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available.
Continue Reading Mandatory Vaccines in the Workplace? New EEOC Guidance Regarding What Employers Can Do

California Gov. Gavin Newsom signed Executive Order N-62-20—way back on May 6, 2020—which created a presumption that employees’ COVID-19-related illnesses were caused at work and therefore covered by workers’ compensation. That order covered COVID-19 infections from March 19, 2020 to July 5, 2020, at which time the order expired. To fill the void, on

The CDC has issued new guidance for in-home patients diagnosed with COVID-19, including lowering the number of days the patient must remain isolated after being fever-free. The CDC previously recommended that “at least 72 hours” pass since the last fever without the use of fever-reducing medication before ending self-isolation. Noting “accumulating evidence” and ongoing research

In this age of expensive class-action litigation, many California companies have found solace in their arbitration agreements. Under certain circumstances, the enforcement of such agreements includes the dismissal of class action claims. This has largely been made possible by the Federal Arbitration Act (FAA) which requires judges to enforce a wide range of written arbitration agreements notwithstanding contrary state law. California courts have a long history of delivering rulings that attempt to narrow the scope and effect of the FAA. As one of the latest examples, the California Court of Appeal for the Fifth District held that truck drivers who complete only intrastate deliveries are exempt from the FAA because their work was part of a “continuous stream of interstate travel.”
Continue Reading Certain Delivery Drivers Are Exempt from the Federal Arbitration Act and May Proceed with Class Actions

On April 30, 2018, the California Supreme Court applied an expansive definition of independent contractor in a ruling that is sure to have a dramatic impact on many California businesses, and the burgeoning gig economy in particular.

In the case of Dynamex Operations W. v. Superior L.A. County, a class action was brought on behalf of a group of delivery drivers who were classified as independent contractors by delivery company, Dynamex. Dynamex argued that the drivers were properly designated as independent contracts under the totality-of-the-circumstances standard set forth in the Borello case—utilized by California businesses since 1989—which concentrated primarily on the degree of control the employer exercised over the worker. Dynamex’s drivers provided their own vehicles, paid their own transportation expenses (fuel, tolls, vehicle maintenance, and insurance), set their own schedules, and were generally free to choose the sequence in which they made deliveries and the routes they would take. They were also allowed to simultaneously work for other delivery companies.  
Continue Reading The California Supreme Court Makes It More Difficult to Classify Workers as Independent Contractors – Assumes all Workers are Employees