Nebraska Updates Vaccine Mandate Legislation

On February 25, 2022, the Nebraska Legislature passed LB 906, which addresses COVID-19 vaccine mandates implemented by Nebraska employers.  It allows for certain exceptions for employees who complete a form prepared by the Nebraska Department of Health and Human Services for medical or religious objections, and also permits employers to require wearing of masks and periodic testing at employer expense.  The bill has an emergency clause which means that as soon as it is signed by the Governor, it becomes fully effective.  The details of this new legislation are set out below.

The new COVID-19 vaccine mandate legislation applies to all private Nebraska employers regardless of size, as well as the State of Nebraska, government agencies and all political subdivisions.  However, it should be emphasized that Nebraska employers in the healthcare industry are already subject to the Federal vaccine mandate applicable to healthcare employers, which will take precedence over the new Nebraska COVID-19 legislation.  It should also be emphasized that LB 906 only applies to COVID-19 vaccinations, and no other employer mandated vaccinations. 

The new law does not apply to the United States and other Federal agencies, Indian tribes, and bona fide private membership clubs exempt from taxes under the Internal Revenue Code.

It requires the Nebraska Department of Health and Human Services to develop a vaccine exemption form for individual employees to submit to claim an exemption from receiving a COVID-19 vaccine.  The form is required to contain two separate potential declarations:  (1) that a certified healthcare practitioner has provided the individual with a signed written statement that receiving a COVID-19 vaccine is medically “contraindicated for the individual”, or that “medical necessity” requires the individual to delay receiving a COVID-19 vaccination; or (2) receiving a COVID-19 vaccine would conflict with the individual’s “sincerely held religious belief, practice, or observance.”

Once this new law takes effect, any Nebraska employer that requires applicants or employees to be vaccinated against COVID-19 must allow for an exemption to the COVID-19 vaccine requirement for any individual who provides the employer with the completed vaccine exemption form, and for any individual claiming the exemption based upon the statement of a healthcare practitioner, a copy of the health practitioner’s signed written statement.

Nebraska employers may require any employee granted an exemption under this new law to be periodically tested for COVID-19 at the employer’s expense, and to wear and use masks or other personal protective equipment provided by the employer.

This differs substantially from recently proposed Federal vaccine mandate legislation as well as the current Federal vaccine mandate applicable to healthcare employers.  Specifically, other vaccine mandates and proposed legislation provide(d) that an employee seeking to avoid the vaccination mandate and be granted an exception would assume the cost of periodic testing in order to be exempt from the vaccination requirement.  Nebraska employers who desire to exercise their right to mandate COVID-19 vaccinations are now faced with bearing a considerable cost of periodic testing for employees who submit the exemption form.  Business organizations and the Chambers of Commerce were opposed to this provision, but were unsuccessful in keeping it out of the final version of LB 906. 

Given that the COVID-19 outbreak is waning, and with much of the population already vaccinated, or immune due to having had COVID, this Legislation may just be a solution in search of a problem.  However, the Legislation passed by a vote of 37-5, with 5 abstentions, so there was obviously a strong feeling among the majority of Senators in the Nebraska Legislature that a law limiting employer COVID-19 vaccine mandates was required at this time.

It will be interesting to see how this new law develops, and how many Nebraska employers determine that they will either implement or continue an existing COVID-19 vaccination requirement.  Employers in the healthcare industry are still covered by the Federal vaccine mandate applicable to healthcare organizations. 

One interesting aspect is the fact that any employee who seeks to declare a religious exemption must simply fill in the form stating that receiving a COVID-19 vaccination would conflict with their “sincerely held religious belief, practice or observance.”  There is no threshold requirement to establish such beliefs, which differs considerably from the law in the area of religious discrimination in employment, which requires that any individual seeking to assert a religious discrimination claim establish or prove that they are actually a member of a particular religion, and an active participant in the particular religion’s practices and activities.  For purposes of the new law on COVID-19 vaccinations in Nebraska, it is clear that an employee seeking an exemption must simply fill out the form and include that particular section in seeking an exemption.

As noted above, LB 906 has an emergency clause, so it will go into effect as soon as it is signed by the Governor, which will likely be early in the week of February 28th.  Therefore, any Nebraska employer that currently has a COVID-19 vaccination mandate or is considering implementing one, should take immediate steps to comply with this new Nebraska law.

Nebraska Employees Terminated for Refusing to Receive a COVID-19 Vaccination Pursuant to An Employer Instituted Vaccine Requirement Eligible for Unemployment Compensation

The Nebraska Department of Labor (NDOL) recently issued a guidance memorandum regarding unemployment benefit eligibility for employees terminated for refusing to receive a COVID-19 vaccination.  The guidance memorandum posted very quietly on the NDOL website is advisory in nature, but is binding on the NDOL, including its claims examiners and appeals tribunal, and Administrative Law Judges, unless or until amended by the NDOL.  Let’s examine the new guidance to determine its full effect on Nebraska employers.

Background.

The guidance memorandum posted in late November, 2021 is intended to provide individuals and Nebraska employers with an understanding of how the NDOL will interpret the definition of “misconduct” as applied under the Nebraska Employment Security Law to determine a separated employee’s eligibility for unemployment compensation benefits.  It has become settled law in Nebraska that, when an employee is involuntarily terminated from employment, the employee is eligible for unemployment compensation benefits unless the reason for the termination amounts to “misconduct”.  Misconduct is defined under the Nebraska Employment Security Law as conduct “not in the best interests of the employer.”  As a practical matter, employees terminated for unsatisfactory performance are not disqualified from receipt of unemployment compensation benefits, and there must be some clear violation of a critical employer interest, policy or rule to constitute misconduct.  Employees found to have engaged in misconduct that is gross, flagrant, willful or unlawful receive a more lengthy disqualification for eligibility for unemployment compensation benefits. 

New Guidance.

The NDOL’s recent guidance implements the following rule to be followed within the agency in employee separations due to the employee’s refusal to receive a COVID-19 vaccination.

“For all individuals who began work for an employer prior to an employer instituting a COVID-19 vaccine requirement:

--  an individual who is discharged from employment for refusing to receive a vaccination against Covid-19, shall be deemed to have been discharged for reasons other than misconduct and not be disqualified for unemployment benefits on account of such discharge; and

--  impact to an employer’s experience account will be determined under Neb. Rev. Stat. § 48-652.”

In short, the guidance indicates that employees who are already employed when the employer implements a new COVID-19 vaccination mandate will receive unemployment compensation benefits, and those benefits will be applied against the employer’s unemployment compensation tax account.  Since the guidance is expressly limited only to those employees who became employed prior to the employer-instituted vaccination requirement, any employee accepting employment with an employer when the COVID-19 vaccination requirement has already been instituted, and who then refused to get a vaccination, would be subject to disqualification from receipt of unemployment compensation benefits due to violation of a known policy, i.e., conduct not in the best interests of the employer.

As a practical matter, however, it is not likely that any applicant who is going to refuse a COVID-19 vaccination in order to comply with the employer’s mandate would accept such employment in the first place, and it is not likely that this will become a major issue. 

Moreover, the recently issued COVID-19 vaccination requirements at the federal level are not currently being implemented or enforced, as the OSHA mandate covering private employers with more than 100 employees, the CMS rule requiring mandatory COVID-19 vaccinations for healthcare workers, and the federal mandate for all employees of employers with federal contracts, have all now been blocked by Federal Courts with the result that all implementation and potential enforcement has been terminated at the federal level for the time being. 

The NDOL apparently felt that this guidance memorandum and advisory was necessary since some employers are implementing COVID-19 vaccination mandates on their own.  Indeed, in issuing the guidance, the NDOL expressly recognized that under Nebraska law employers may institute COVID-19 vaccination requirements, while also expressly recognizing that Nebraskans have individual responsibility and personal freedom of their healthcare decisions and that the decision to receive a COVID-19 vaccination is a personal choice involving medical, religious, and other personal factors.  Based on these statements and the recognition that requirements may be issued by employers regarding COVID-19 vaccinations which may not have existed at the time individual employment was accepted, apparently caused the NDOL to believe that a policy guidance pronouncement was in order.

Time will tell how these issues will play out in Nebraska and at the federal level, and we will keep you updated on any further developments in this area.

Erickson | Sederstrom PC’s employment attorneys are well-versed in the COVID-19 pandemic-related changes in the legal and HR landscape. They can be reached 402-397-2200.

Mandatory Vaccination and Testing Requirements for Private Employers with Over 100 Employees

• OSHA issued its Emergency Temporary Standard (ETS) regarding Covid-19 vaccination and testing requirements on November 4, 2021. 

• The OSHA ETS will take effect immediately, but most requirements do not kick in until January 4, 2022, or thirty (60) days after the date the ETS was published in the Federal Register.  By January 4, 2022, employers will be required to comply with the vaccination requirements. 

• After sixty (60) days, employers must comply with all testing requirements for those employees who have not become fully vaccinated.   

• This new vaccination and testing mandate will apply to all employers with more than 100 employees, and to all federal contractors. 

• It will not apply to employees who either work at home or work outdoors. 

• Covered employers will have two options, the first being to mandate that all employees not working at home or outdoors must be fully vaccinated by January 4, 2022. 

• There is an exemption to the vaccination requirement for those employees who are entitled to a reasonable accommodation due to a sincerely held religious belief, i.e., active practice of a recognized religion and a valid religious objection. 

• An exemption will also be provided for any employee who has valid medical certification from a licensed healthcare provider that the employee should not receive the vaccination either because of a specific medical condition or disability.   

• Under the vaccination requirement, employees must provide proof of vaccination either through a CDC Vaccination Record Card, or other medical records of immunizations received, documentation from a certified pharmacy, or other source. 

• The vaccination must be one of the FDA approved vaccinations, i.e., Pfizer, Moderna or Johnson & Johnson. 

• Any employee who refuses to be vaccinated will have an alternative method of compliance with the mandate by wearing a mask at all times when they are not either in a personal office with the door closed, or eating or drinking, in combination with providing proof of a valid negative SARS test for Covid every seven (7) days. 

• There is no requirement that employers pay for the regular testing. 

• The OSHA ETS requires that all employers provide up to four (4) hours of paid time off for employees to get vaccinated, including travel time, as well as provision of reasonable paid time off to recover from any illness or side effects as a result of receiving the vaccination.   

• Any employee who has tested positive for Covid-19 in a SARS test or otherwise diagnosed with Covid by a licensed health practitioner will not be subject to testing for a period of ninety (90) days following any such positive diagnosis, due to the high incidence of false positives for ninety (90) days after a Covid infection. 

• All employers are required to establish a written policy concerning the mandatory vaccination requirement, and an alternative policy outlining the only exemptions the Mandatory Vaccination Requirement which allows employees to avoid the vaccination mandate by wearing a mask at all times in the workplace, unless in a private office with the door closed or eating, drinking, etc., and provision of proof of regular negative tests for Covid-19 every seven (7) days. 

• Covered employers found to be in violation may be fined up to $13,653 for each violation, and any covered employer found to have willfully or repetitively violate the standards may be fined up to $136,532.

 Our labor and employment law experts at Erickson | Sederstrom, P.C., LLO, can assist you with development of the required policies and on-going compliance with this new OSHA ETS Mandate.

New Nebraska Law Protects Culture-Specific Hairstyles

Recently enacted into law, Legislative Bill (LB) 451 amends the Nebraska Fair Employment Practices Act (NFEPA) to expand the definition of “race” to include protection against discrimination for characteristics such as skin color, hair texture, and protective hairstyles. Governor Pete Ricketts signed the legislation on May 5, and it will take effect 90 days after the current legislative session adjourns. Let’s examine the new amendment.

What new legislation covers

LB 451, introduced by Senator Terrell McKinney of Omaha, passed the legislature by a 40-4 vote (with five senators not voting) on April 29. The intent was to protect individuals against race discrimination based on characteristics associated with race, culture, and personhood, including natural and protective hairstyles. The law defines “protective hairstyles” to include braids, locks, and twists.

In legislative hearings and floor debate, the bill’s supporters claimed employers have forced some employees to straighten or trim their hair or cut off braids and dreadlocks to maintain their employment. Under the new law, employers can’t discriminate or base employment decisions on an individual’s culture-specific hair texture or hairstyle.

You’ll still be able to maintain bona fide health and safety standards that regulate characteristics associated with race and culture-specific hairstyles, however, if you can show:

·         A safety policy or grooming standard is necessary to guarantee employees’ health or safety;

·         You adopted the standard for nondiscriminatory reasons;

·         It’s applied equally; and

·         You’ve engaged in good-faith efforts to reasonably accommodate a particular applicant or employee with regard to the required standard.

For employers in most industries, however, it will likely be very difficult to establish a need for an exception to the standard.

Finally, the new law contains an exception for the Nebraska State Patrol, county sheriff’s departments, and various other law enforcement agencies as well as the Nebraska National Guard, which may continue to impose their own dress and grooming standards.

What happens next

The Nebraska Legislature is expected to end its session in very late May or early June. Therefore, the new law will go into effect sometime around September 1, 2021.

It’s too early to project the law’s full impact or the number of new employment discrimination claims it will likely generate. We may have to wait a few years to see how the claims are processed and interpreted by the Nebraska Equal Opportunity Commission and the courts. Of course, we’ll provide updates as necessary.

Attorneys Mark Schorr, Bonnie Boryca, and Heather Veik lead Erickson Sederstrom’s labor and employment group and can be reached at (402) 397-2200.

No Age Bias in Demoting 51-Year-Old Employee for Lack of Accounting Experience

Former employees alleging age discrimination have the burden to prove the employment decision in question hinged on their age. In a recent case arising in Nebraska, the U.S. 8th Circuit Court of Appeals (which has jurisdiction over employment claims arising in the state) found the federal trial court in Omaha had properly dismissed the age claims raised by a 51-year-old woman. While restructuring its financial department, the employer demoted the employee because she lacked accounting experience, after which she ultimately resigned.

Facts

Lana Starkey worked for Amber Pharmacy from September 2001 until August 2015. In 2014, her position changed from enrollment director to financial services director. The change coincided with the acquisition of Amber by Hy-Vee, a supermarket chain.

After the acquisition, Amber’s accounting and financial department was found to be “in complete disarray,” a situation exacerbated when the pharmacy implemented a new operating system in February 2015. The company retained a “third-party implementation consultant” for the new operating system, who reported the biggest obstacle to implementing the system was because the financial team was “understaffed” and “potentially not the right skill level” and lacked “management in the financial area.” The consultant recommended restructuring the team.

At about the same time the consultant delivered the report, Starkey reported to others that Amber was being overpaid by Texas Medicaid, incorrect billing codes were being used for the payments, and some employees were engaged in e-mail practices that raised concerns about violating the Health Insurance Portability and Accountability Act (HIPAA).

The company considered various plans for restructuring the financial department, ultimately determining Starkey’s position would be eliminated. According to the company, the decision was based on accounting expertise, which Starkey lacked, and her struggles in adapting to the new operating system.

Starkey was told her job was being eliminated and was offered a choice of two new positions, both of which were demotions with a pay cut. In June 2015, she reluctantly accepted one of the positions but questioned whether the demotion was caused by her report of the Medicaid and HIPAA issues.

In August 2015, Starkey resigned, after which she didn’t receive a timely COBRA notice about her right to elect temporary continuation of health insurance coverage.

Legal Action

Starkey filed suit in Nebraska state court, claiming her resignation was caused by discrimination, retaliation, the demotion, and a hostile work environment, asserting various federal and state claims against Amber, Hy-Vee, and Mike Agostino, Amber’s president. The defending parties moved the case to federal court and promptly asked for summary judgment (dismissal without a trial), asserting no material facts were in dispute and that they were entitled to judgment as a matter of law.

The federal court granted summary judgment on each of Starkey’s federal charges, including her Age Discrimination in Employment Act (ADEA) claims. It also dismissed all state claims except for a particular portion of her claim under the Nebraska Fair Employment Practices Act (NFEPA). It remanded the retaliation claim based on her reporting of the Medicaid discrepancies to state court.

The federal court also found Hy-Vee and Agostino weren’t proper parties and dismissed all claims against them.

8th Circuit’s Decision

Starkey appealed the trial court’s decision on all claims except for one filed under Title VII of the Civil Rights Act of 1964, which she abandoned on appeal. Amber appealed the district court’s partial denial of summary judgment on the NFEPA claim.

Age bias claims tossed. The 8th Circuit upheld the trial court’s summary dismissal of Starkey’s age discrimination claims. After noting there was no direct evidence of age bias and assuming she could establish an initial prima facie (or minimally sufficient) case, it found Amber articulated a legitimate, nondiscriminatory reason for eliminating her position in the newly restructured financial department and demoting her, specifically the need to put a stronger emphasis on accounting and more effectively implement the new operating system.

In addition to the fact the company needed to prioritize accounting skills and experience to operate the new system, Starkey had candidly admitted “(a)ccounting is not for [her].” The court noted it would not second-guess the employer’s business judgment, particularly when it was based, at least in part, on the third-party consultant’s recommendations.

Therefore, to prevail on the age claim, Starkey would’ve had to show the stated reasons were a mere pretext (or cover-up) for age discrimination, i.e., “but for” her age, she would not have been demoted. The court quickly rejected her assertion that since other employees over the age of 40 were terminated and younger employees absorbed her job duties, she was a victim of age bias. The court found all the accused parties were entitled to summary judgment on her age-based claims.

COBRA claim fails. The 8th Circuit likewise upheld the dismissal of Starkey’s COBRA claim since she hadn’t pointed to any facts showing an interference with her attainment of benefits or that she was harmed in any way by any lack of notice. Starkey admitted she (1) knew about her COBRA rights, (2) wouldn’t have elected the coverage anyway, and (3) had enrolled in her husband’s less expensive employer plan in which she had no out-of-pocket medical expenses.

Hostile environment, emotional distress charges also thrown out. Finally, the 8th Circuit found the trial court had properly dismissed Starkey’s claims for hostile environment and intentional infliction of emotional distress based on the demotion. She hadn’t alleged sufficient facts to establish outrageous conduct and severe emotional distress, as Nebraska law requires.

Retaliation claims survive. The 8th Circuit found all of Starkey’s retaliation claims under the NFEPA should be remanded (or sent back) to state district court to analyze and determine whether her activity was “protected conduct” and whether it would apply the “manager rule” in the context of a retaliation claim under the state statute. The manager rule has become an emerging trend in many courts. It provides that a management employee who, in the course of her normal job performance, disagrees with or opposes her employer’s actions doesn’t engage in protected activity. Lana L. Starkey v. Amber Enterprises, Inc., et al., Case No. 19-3688 (8th Circuit, 2021).

Lesson for Employers

Starkey’s case underscores the importance of developing a well-reasoned plan for any company or department restructuring that will involve the elimination of certain positions. You should develop and apply clear criteria for executing the restructuring.

Mark Schorr is the editor of the Nebraska Employment Law Letter and a frequent contributing author to HR Daily Advisor today, which goes out to more than 200K employers, HR pros, GC, etc., across the country

Managing Employee Arrests and Convictions

Question: One of our employees has been arrested but not convicted. It doesn’t appear he’s going to be released in the new future. Is it better to put him in an unpaid “leave” status or fire him?

The answer to this question depends on a number of factors. The law generally prevents employers from taking action, or refusing to hire employees, based solely on arrest records, as opposed to actual convictions. However, if you have additional evidence or information which corroborates the reasons for the actual arrest, which independent evidence would tend to establish that the employee is guilty of a crime which is job related and which would render him unsuitable for the position in which he is employed, you would be on solid ground in terminating the employee based upon the totality of the available evidence and information. Additionally, to the extent he will be absent for an extended period, if you have strict attendance policies, or no-fault attendance policies, you will have grounds to terminate the employee based upon violation of your attendance policies, as incarceration is not a legitimate excuse for an employee’s failure to show up for work in compliance with your attendance policies. If you determine that you will not terminate the employee, at the very least you should place the employee on unpaid leave pending resolution of his criminal case.

New Year’s Resolutions for HR Professionals – 2020 Checklist

The start of a new year is an excellent time for HR professionals to focus on key New Year’s resolutions in terms of proper Human Resources management. Although none of us typically follow through on every New Year’s resolution we make, the following provides a thoughtful checklist of resolutions and actions that should pay great dividends in the coming year, and potentially save costly resources down the road through avoidance of employment claims and litigation. Let’s get right to the checklist.

Employee Handbook & Policy Review: Conduct a thorough review of your employee handbook and other written policies to determine if revisions are necessary due to changes in employment laws at the state or federal level. Do your employee handbook and other policies sufficiently preserve your right to exercise management discretion to determine when employees can be terminated at will? Do you have an appropriate acknowledgement form on file for every employee to whom your employee handbook has been issued, which confirms receipt of the handbook and acknowledges that, absent a formal contract, employment is at will? Do you have an appropriate sexual harassment/workplace harassment policy? Has it been provided to all employees, and does it clearly articulate an internal mechanism to register complaints? If you are covered by the Family and Medical Leave Act (FMLA), are your FMLA policies up-to-date?

Review Employment Applications: Your employment application should be carefully reviewed on an annual basis, to ensure that you are only requesting valid job-related information, and not requesting any information about an applicant’s age, previous injuries, worker’s compensation claims or disabilities? Your application is critical, as the application itself can become the subject of an employment discrimination charge or legal action.

FMLA and ADA FORMS: Review your form library to ensure that you have all of the proper forms in place for utilization whenever an employee requests medical leave or accommodation for a disability. Are you possibility using outdated forms or handling requests on an inconsistent basis? This is simply a good time to review your policies and procedures in this area.

Wage & Hour Audit – Exempt Classification Review: Conduct a thorough audit of your exempt and non-exempt classifications, to ensure that your salaried employees who are deemed exempt from overtime truly meet all aspects of one of the recognized exemptions, and do all such employees who are “exempt” meet the “salary basis” test? Are your hourly employees subject to overtime properly recording all hours worked? Do you have sufficient procedures in place to ensure compliance with overtime requirements and regulations? Are you properly including non-discretionary bonuses in the regular rate for hourly employees for overtime calculation purposes?

Review Job Descriptions: Job descriptions are not a luxury, but rather a necessity. Accurate, up-to-date job descriptions are critical, not only with respect to establishing employee expectations and performance parameters, but also when it comes to complying with the Americans with Disabilities Act (ADA) and its various requirements.

Supervisory Training: When was the last time you conducted training for all supervisors on the basics of diversity and harassment in the workplace, wage and hour administration, FMLA and ADA requirements, etc.? If it has been more than 18 months to 2 years ago, now would be an excellent time to conduct supervisory training early in the new year.

Review Employee Evaluation Policies and Procedures: You should thoroughly review and examine how you are evaluating employees and grading performance. Employee evaluations can be an excellent management tool, but they can also become a major problem if not properly and effectively administered., e.g. we are often called upon to defend a disciplinary or termination decision, and although it is apparent that performance problems existed, the problems and issues were never accurately reflected on a recent performance evaluation. It is imperative that employee evaluations are performed on a timely and accurate basis to reflect the employee’s actual performance and any identified shortcomings.

The above checklist presents a few suggested New Year’s resolutions. No such checklist is ever complete, and everyone will undoubtedly want to expand on this list. Taking some time at the start of the year to focus on these issues will provide continuous benefits going forward.