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Articles Posted in Employment Discrimination

Long Island employment law firm Famighetti & Weinick, PLLC recently hired a summer law student intern, Danielle Jacobs. Danielle is a second year student at the Maurice A. Deane School of Law at Hofstra University.

During her time as an intern, Danielle has conducted research and drafted memoranda. Danielle has observed Mr. Famighetti and Mr. Weinick at consultations and arbitration hearings for labor and employment law topics. Additionally, Danielle assists Mr. Famighetti and Mr. Weinick by drafting intent to sue letters, complaints, rebuttals, and settlement agreements, along with writing blog posts on commonly asked questions by clients such as the NYC Mandatory Retirement Plan and the NY HERO Act.

During her time at Hofstra Law School, Danielle has achieved a GPA of 3.72 and is in the top 8.4% of her class. She also recently earned membership as a Staff Member on the Hofstra Law Review for Vol. 50. Danielle holds a Merit Scholarship and a Dean’s Honor Scholarship from Hofstra Law School. Throughout her first year of law school, Danielle also became an active member in the Hofstra Law Women’s club and the Public Justice Foundation. The Public Justice Foundation helps raise money and awards fellowships to students who devote their summers to working in an area of public interest and are unable to be paid while doing so. Danielle spoke with alumni, family members, and friends in order to raise money for the Public Justice Foundation.

The Americans with Disabilities Act, or the ADA, is a federal law which regulates discrimination against individuals with disabilities. The law prohibits discrimination in several areas, including in employment. Like most words in the law, however, disability has a specific definition meaning that to be protected under the law, an individual must have a disability as defined by the ADA. On June 30, 2021, the Second Circuit Court of Appeals in New York joined other jurisdictions and took an expansive interpretation of the meaning of disability. Today’s Long Island employment law blog discusses the case.

To be covered under the ADA, an individual must have a disability as defined by law. The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities. If an individual has a medical condition that does not meet this definition, then the ADA does not apply and the individual is not entitled to reasonable accommodations under the law and is not protected from discrimination based on the medical condition.

In 2002, the Supreme Court of the United States narrowly interpreted the definition. The Court determined that the words used by Congress, such as major and substantially, implied that disability is a demanding standard. The Court further held that to qualify as a disability, a person’s impairment must be permanent or long term.

The Americans with Disabilities Act is a federal law which requires, among other things, that employers provide reasonable accommodations to employees with disabilities. But, what if, by providing an accommodation, the employer would be violating another federal law? Must the employer still provide that accommodation? Recently, the Second Circuit Court of Appeals in New York weighed in on this question. Today’s Long Island employment law blog discusses the Bey v. City of New York decision.

The Fire Department of New York (FDNY) maintains a policy that requires all firefighters to shave their facial hair in order to wear a tight fitting respirator to protect the firefighters from smoke and toxic fumes. The policy allowed for only short sideburns and trimmed mustaches that do not affect the area where the mask meets with skin.

Pseudofolliculitis Barbae (“PFB”) is a skin condition which causes pain, irritation, and scarring to men who shave with PFB. In other words, men with PFB cannot shave without enduring pain, irritation and scarring. PFB is more prevalent among black males than white males. Firefighters are not immune from PFB, thus some firefighters suffer from PFB, putting their medical condition on a collision course with the FDNY facial hair policy.

Long Island employment lawyers Famighetti & Weinick PLLC have been blogging about whether employers can lawfully require employees to be vaccinated against COVID-19. Our blogs have concentrated on guidance issued by the federal Equal Employment Opportunity Commission and have opined that workplace vaccination requirements are likely lawful, at least under federal law.

But, the EEOC’s guidance is not binding and there have not been any apparent court cases concerning the legality of vaccination requirements. On June 12, 2021, however, a Texas federal court dismissed a challenge to a Texas hospital’s workplace rules requiring that employees be vaccinated or be fired. 116 employees challenged the rule. Today’s Long Island employment law blog discusses the case.

On April 1, 2021, Texas hospital Houston Methodist, issued a policy directing that all of its employees must be vaccinated by June 7, 2021. 116 employees challenged the rule in federal court and asked that the court block the hospital from requiring that they be injected with the vaccine or be fired.

At the beginning of the COVID-19 pandemic, Long Island employment lawyers Famighetti & Weinick PLLC published information on our website warning that the financial impact of the pandemic could be used by employers to conduct unlawful discriminatory layoffs. Indeed, the firm has seen this scenario play out. On June 7, 2021, the New York State Division of Human Rights issued a determination of Probable Cause, in a case filed by Famighetti & Weinick PLLC alleging that the client’s inclusion in a reduction in force plan constituted discrimination based on age and/or disability. Today’s Long Island employment blog discusses this decision.

According to the New York State Division of Human Rights, the employee worked for a Long Island medical provider for 34 years and was 70 years old. After the pandemic started, the company implemented a reduction in force plan which included the 70 year old employee. The employee alleged that she was replaced with a younger employee who had less experience, showing her inclusion in the plan was pre-text for discrimination. But, the company alleged 28 employees in total were terminated and their ages ranged from 20 to 79, undermining a claim that age played in role in termination decisions.

During the Division’s investigation, it learned that the employee’s position was indeed given to a younger employee with much less experience. The company argued the decision was based on the replacement’s efficiency as compared to the terminated employee, but could not articulate any demonstrable basis for this comparison.

In late 2020, COVID-19 vaccines began rolling out to the public. Some individuals could not roll up their sleeves quick enough to get the vaccine. Others, however, are reluctant to receive the vaccine for any number of reasons. With the vaccine now widely available, businesses, schools, and other public places are considering whether to require vaccinations for workers, students, customers and/or visitors.

Concerning workplaces, on May 28, 2021, the Equal Employment Opportunity Commission, the federal agency charged with regulating workplace discrimination, issued guidance relating to COVID-19 vaccines and employment. Among other things, the EEOC’s guidance addresses whether employers can require employees to get vaccinated. Today’s Long Island employment law blog discusses the guidance.

Generally, employers have broad discretion about how to govern their workplaces and their workers’ working conditions. Of course, some limitations exist. The National Labor Relations Act regulates some conditions, such as employees’ cooperating together to improve their working conditions. OSHA regulates workplace safety standards. The FLSA sets a minimum wage and overtime pay requirements. There’s also a myriad of anti-discrimination laws which prohibit employers from setting employees’ terms and conditions of employment based on protected characteristics such as age, race, disability, sex, national origin, or religion.

On March 26, 2021, the New York State Division of Human Rights issued a determination of Probable Cause in a firm’s religious discrimination case. Today’s Long Island employment law blog discusses the case and what happens next.

The following is taken from the New York State Division of Human Right’s final investigation report.

The firm’s client, a Muslim, worked for an ambulance company as a driver. When he was first hired, he was told he would have to shave his beard, which he initially did, but told the company he maintained his beard because of religious beliefs. He interprets his religious teachings as prohibiting Muslims from cutting their beards.

In November 2020, the Long Island employment law firm Famighetti & Weinick PLLC filed a federal lawsuit against a Long Island volunteer fire department on behalf of a female volunteer firefighter. The lawsuit alleged that the department discriminated against the firefighter based on her sex, then retaliated against her when she complained about the discrimination. The fire department asked the court to dismiss the case. Today’s Long Island employment law blog discusses the lawsuit, the department’s motion, and the court’s decision.

The lawsuit alleges that the female volunteer firefighter is currently the only female in the department. Unlike her male counterparts, the female firefighter alleged that she was treated differently by being subject to unwarranted scrutiny over work on department committees. She further alleged that stipends and budgets under her control were cut to levels lower than males who had previously held her position.

After years of ongoing disparate treatment, the firefighter eventually brought her complaints to the department’s attention. After making the complaint, individuals in the department tried to oust her from her position as an officer of the department, and took other action allegedly in retaliation for her complaints. Ultimately, the fire department decided that her claims lacked merit, so she filed a charge of discrimination with the Equal Employment Opportunity Commission.

On December 14, 2020, the country’s wait for a COVID-19 vaccination came to an end as the first vaccines began to be administered to America’s health care workers. Like many measures taken to combat the virus, the vaccine is not without controversy. According to one recent survey, nearly one quarter of Americans are hesitant about taking the vaccine. With such a prevalence, employers and employees may be wondering about whether employers can require workers be vaccinated and whether workers can refuse a vaccine mandate. Today’s Long Island employment law blog discusses these issues.

On December 15, 2020, the federal Equal Employment Opportunity Commission issued guidance to employers about how the COVID-19 vaccine may implicate employment law concerns. The issues discussed in this blog rely on that guidance.

The first employment law which may relate to vaccinating workers is the Americans with Disabilities Act (ADA). The ADA generally prohibits employers from discriminating against employees based on an employee’s medical condition or disability. More specifically, the ADA regulates medical examinations of employees. For vaccines, the preliminary question is whether a vaccination is a medical exam.

As states across the country, including New York, make the medical use of marijuana legal, new issues are arising in the context of employment. For example, how will employers which require drug testing, respond to the changes in the law and how they will handle employees who are lawfully taking medical marijuana? Few courts have addressed these issues.

Recently, Long Island employment lawyers Famighetti & Weinick PLLC were able to “test the waters” to challenge the interplay of employment discrimination laws and medical marijuana laws. Today’s Long Island employment law blog discusses a decision from the New York State Division of Human Rights concerning employment drug testing and medical marijuana laws.

The following facts were taken from the Division’s decision. F&W’s client applied for a job with a national consumer electronics retail company. The applicant interviewed for the position at his local Long Island retail location. Soon after, the store issued the client a conditional offer of employment, subject to a background test and drug test.

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