Robinson, Parks, Tibbets, Gribble, Trout, and Netherton Named to the 2023 Missouri Kansas Super Lawyers List.

We are pleased to announce that six of the Hite Fanning Honeyman team have been selected to the 2023 Missouri Kansas  Super Lawyers list. Partners Jim Robinson, Linda Parks, Gaye Tibbets, Don Gribble, Randy Troutt and Stephen Netherton are being recognized for their service in their particular field:

Super Lawyers, part of Thomson Reuters, is a research-driven, peer-influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Attorneys are selected from more than 70 practice areas and all firm sizes, assuring a credible and relevant annual list.

The annual selections are made using a patented multiphase process that includes:

• Peer nominations

• Independent research by Super Lawyers

• Evaluations from a highly credentialed panel of attorneys

The objective of Super Lawyers is to create a credible, comprehensive, and diverse listing of exceptional attorneys to be used as a resource for both referring attorneys and consumers seeking legal counsel.

Please join us in congratulating our team on their recognition.

For more information about Super Lawyers, go to SuperLawyers.com

Hite, Fanning & Honeyman recognized as one of the United States Best Law Firms®.

Today, Best Lawyers®, the oldest and most respected Purely Peer Review® research and recognition company in the legal profession, announced that Hite, Fanning & Honeyman is recognized as one of the United States Best Law Firms®. We are thrilled to be recognized for our work and dedication to the practice of law.

As explained by Best Lawyers Megan Edmonds, “the rankings are based on proven methodology that relies on qualitative and quantitative data on legal skillset, achievements and client successes collected through a submission process managed by Best Lawyers.” This is the fourteenth year for the rankings and a total of 2,202 firms received United States Best Law Firm accolades. 

“These rankings – our first independently published rankings and 14th edition – serve as a true North Star for the industry,” said Best Lawyers CEO Phillip Greer. “We know that the legal profession–like so many industries today–is undergoing a transformation led by proliferating technology, global demands and evolving social norms. Through these rankings, we can not only identify the gamechangers for law firms today, but also focus on key issues such as integrating AI and addressing DE&I that are positioning them and the profession for future success.”

The 2024 rankings, which are distributed to more than 30,000 C-Suite and in-house counsel through the standalone publication, were evaluated from the largest participation pool to date, which incorporate more than 97,000 client submissions, more than 2.8 million Best Law Firms votes on ballots and more than 13.7 million evaluations of more than 23,000 firms. The rankings highlight a unique combination of high-quality law practices and the full breadth of legal expertise that has always been differentiated by the credibility and transparent rankings process developed by Best Lawyers.

The 2024 Best Law Firms rankings can be accessed at www.bestlawfirms.com.

Briana M. Hogan Joins the Firm as a New Associate

The firm is pleased to announce that Briana Hogan has joined us as an associate. She will be focusing on medical malpractice cases and we know that her science and medical background will serve her clients well. Briana will be working with partner Don Gribble and they will be a great team!

Briana attended Washburn University School of Law and received her Juris Doctorate in 2023. During law school, she served on the Washburn Student Bar Association and was awarded the CALI Excellence for the Future Award in Corporate Compliance. Brianna also interned with the Kansas State Board of Healing Arts allowing her to increase her knowledge of the medical field.

Prior to law school, she attended the University of Louisiana at Monroe studying biology and chemistry. During her undergraduate academic career, she was a ULM Presidential Scholarship recipient, on the Dean’s and President’s List, and was an officer and member of the Tri-Beta Biological Honor Society. Briana also played 4 years of college softball and was an Academic All-American!

When Briana is not at work, she enjoys spending time with her family. In fact, her sister is also an attorney! She also loves playing with her mini-Australian shepherd, Everett and still enjoys playing softball. A new activity is learning to play golf. 

2024 Best Lawyers Recognize Hite Fanning Honeyman

Hite Fanning Honeyman is proud to announce inclusion on the 2024 list of Best Lawyers in America©. The recognized attorneys are chosen based on peer review of their professional expertise and must be currently practicing. The nationwide list is divided by geographical region and then by practice area.

Member of Hite Fanning Honeyman recognized are:

Don D. Gribble II
Medical Malpractice Law - Defendants

F. James Robinson, Jr.
Voted the 2024 "Lawyer of the Year" for Litigation in Banking and Finance in Wichita
Bet-the-Company Litigation
Commercial Litigation
Litigation - Banking and Finance

Gaye B. Tibbets
Employment Law - Individuals
Employment Law - Management
Litigation - Labor and Employment

Jon E. Newman
Employment Law - Individuals
Employment Law - Management
Insurance Law
Workers' Compensation Law - Employers

Linda S. Parks
Banking and Finance Law
Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law
Commercial Litigation
Litigation - Bankruptcy
Real Estate Law

Randy J. Troutt
Medical Malpractice Law - Defendants

Richard L. Honeyman
Personal Injury Litigation - Defendants


Scott M. Hill - Recognized for the first time in 2024 edition of Best Lawyers
Banking and Finance Law
Business Organizations (including LLCs and Partnerships)
Closely Held Companies and Family Businesses Law
Commercial Transactions / UCC Law

In addition, for the second year in a row, 2024 Best Lawyers: Ones to Watch© selected”

Stephen H. Netherton
Health Care Law
Medical Malpractice Law - Defendants

We are honored to recognize these attorneys and know that our clients are in good hands.

Congratulations to Olivia Black

Associate Olivia Black has been recognized as one of Wichita’s Young Professionals in Legal for 2023. Olivia practices in the areas of civil litigation defense and medical malpractice. A background in the Health Sciences serves her clients well as they navigate the legal system. She is definitely an attorney who brings knowledge and compassion to her work and we are proud to have her on the Hite, Fanning & Honeyman team.

Wichita Bar Association Selects Scott Hill to serve as WBA PRESIDENT for 2023-2024

Managing Partner Scott Hill has been selected to serve as the President of the Wichita Bar Association for 2023 - 24. Scott also sits on our own Executive Management Committee in addition to working with clients in the areas banking, bankruptcy, business transactions, business litigation and real estate. 

Scott’s leadership skills have served him well over the years as he has taken on many active roles in the bar community.  Scott served as WBA Young Lawyers President from 2006-2007 and later was elected the Kansas Bar Association Young Lawyers President from 2008-2009. Scott served as Secretary/Treasurer of the Kansas Bar Foundation from 2018-2019, President-Elect of the Kansas Bar Foundation from 2019-2020, and President of the Kansas Bar Foundation from 2020-2021. He served on the Kansas Bar Association Board of Governors from 2008-2009 and 2020-2021. Scott is a fellow of both the Kansas Bar Foundation and the American Bar Foundation. 

Scott has also served in leadership roles on many WBA committees and received WBA President’s Awards in 2011 and 2019 for his service to the Technology Committee and the Bar-o-Meter Committee, and a Kansas Bar Association Outstanding Service Award in 2018 for his work for the Kansas Bar Foundation’s IOLTA program. 

Hite Fanning Honeyman is proud to have Scott on the leadership team and recognized for his commitment to the practice of law and to the legal community.

Winning for Kansas Families

The trial team of partners Gaye Tibbets and Don Gribble along with associate Pam Saenz brought home a significant win for an injured Kansas family.  In 2018, a Kansas farmer suffered near fatal injuries in a farming accident.  For four years, international manufacturer CNH Industrial America LLC (a member of the Case New Holland corporate family) denied fault, blamed the farmer, and attempted to avoid any responsibility for the accident.  After a jury trial that lasted more than a week, a federal jury determined that CNH was primarily responsible and rendered a total verdict of $6,477,084.00.  After comparative fault, the net to the farmer and his family exceeded $3,750,000.00.  Once again, the HFH team worked tirelessly against great odds to ensure that firm clients received justice. 

Disclaimer: Every case is different and results may vary.  Past results and outcomes in specific cases do not mean that all cases of similar facts would result in the same outcome. Verdicts may be reduced by fees, expenses and subsequent appeals.  The firm cannot guarantee that any particular result for any type of case.

2022 Super Lawyers

November 15, 2022

The 2022 Super Lawyers have been announced and we are thrilled to be recognized for our work. Super Lawyers, a rating service of lawyers from more than 70 practice areas. Those recognized as Super Lawyers have not only had significant professional achievements but who are being recognized by peers. Super Lawyers are selected throughout the United States and represent excellence in the profession.

This year we have been notified that the following attorneys from HFH are being recognized:

Don D. Gribble, practices medical malpractice law

Linda S. Parks, one of our attorneys handling business and corporate law

Jim Robinson, bringing his experience to business litigation,

Randy J. Troutt, a well-respected medical malpractice attorney 

Gaye B. Tibbets, brings her non-inconsiderable knowledge to employment and labor clients

Stephen H. Netherton, practices medical malpractice law

Promoting Public Trust and Confidence in Courts Vital to Our Future

Promoting Public Trust and Confidence in Courts Vital to Our Future

By Forrest James “Jim” Robinson Jr.

We continue to see a trend of eroding public trust and confidence in courts that should alarm us all. Courts exist to uphold the rule of law. Properly functioning courts depend on the public’s trust and confidence. Society’s rules and norms are largely voluntary. We expect people will comply, not just because of possible penalties for non-compliance, but also because people perceive courts to be fair and impartial.

Surveys tell us that eroding public trust and confidence is undermining courts’ foundation. 

Each year, the National Center for State Courts conducts a national survey on how the public perceives courts. The center’s 2022 State of the State Courts survey in late October 2022 found the public’s confidence in state courts declined from 76% in 2018, to 64% in 2021, and to 60% in 2022. Similarly, the public’s confidence in the U.S. Supreme Court declined from 73% in 2012, to 63% in 2021, to 53% in 2022. 

Other surveys produce consistent findings. Results from a September 2022 Pew Research Center survey found the public is almost evenly split in its views of the Supreme Court: 48% held a favorable view of the court while 49% held an unfavorable view. A June 2022 Gallup poll found the public’s confidence in the Supreme Court was 25%, down from 36% in 2021 and five points lower than the previous low recorded in 2014. 

A 2022 Annenberg Public Policy Center survey found that only 40% of Americans believe the Supreme Court justices “set aside their personal and political views and make rulings based on the Constitution, the law, and the facts of the case,” down 19 points from 2021. A 2021 Annenberg survey found that 34% of Americans would consider abolishing the Supreme Court if it issued a decision that most Americans disagreed with, up from 20% in 2019.

The NCSC’s 2022 survey provides a quick snapshot of an eroding respect for the judiciary, but it does not specifically identify the causes. Even so, the Center’s polling firm noted the Supreme Court’s recent abortion decision and the sensed politicization of the Court were likely driving down the numbers.

The center’s findings show that liberals and moderates who once held the percentages up are now dragging them down. In 2017, there was almost no difference in respondents’ views of the Supreme Court based on ideology. Since then, confidence in the Supreme Court has fallen three points among conservatives, 25 points among moderates, and 45 points among liberals. The survey found similar, but smaller, trends in views of state courts.

As for race, confidence in the Supreme Court dropped nine points among white voters and 19 points among Black voters. Confidence in state courts declined two points among white voters and seven points among Black voters. 

The largest shift in public confidence is due to racial, gender, and socio-economic bias. Responding to a question about whether state courts were “fair and impartial,” in 2021 42% said that state courts were not doing well, and that increased to 49% in 2022. 

Equally troubling, on whether courts deliver “equal justice for all,” in 2014 62% said the courts were doing well or very well while 35% said the opposite. In 2022, 43% said the courts were doing well or very well, while 49% said the opposite. On this measure, the gulf between white respondents and people of color is wide. In 2022, 46% of white respondents said courts are doing well or very well while just 38% of Hispanic respondents and 30% of Black respondents said the same.

The survey revealed a new low on the question of whether courts were unbiased in their decisions. In 2019, the survey showed a net 11-point positive agreement with the statement, but that dropped to a net 3-point disagreement in 2022.

On a positive note, the 2022 survey shows growing confidence in remote court appearances. Also, strong majorities believe the judicial system does a good job of holding judges accountable. 

Now, more than ever, we must champion civics education about the importance of the rule of law and the role of courts. We must disarm organized disinformation attacks. The public needs to understand that state courts are far removed from the Supreme Court battles that make national headlines. As the NCSC’s polling firm notes, we must “emphasize the ability of state courts to better reflect the values and customs of the communities they serve and the historic preference of the country’s founders for state constitutions and state courts as the first line of defense for our rights and liberties.”

With so much work ahead, inaction is dangerous, and complacency allows the slide in trust and confidence to continue.

Forrest James “Jim” Robinson, is a senior partner at Hite, Fanning & Honeyman LLP, Wichita. He engages in a broad litigation and counseling practice spanning trial and appellate courts at the state and federal levels. He has been inducted into the D.C.-based National Center for State Courts’ Warren E. Burger Society, which honors persons who have made an extraordinary commitment to the administration of justice. In 2018, he was appointed by the Kansas Supreme Court to the Kansas Judicial Council.

 National Center for State Courts, State of the State Courts // 2022 Poll, https://www.ncsc.org/consulting-and-research/areas-of-expertise/court-leadership/state-of-the-state-courts.

 Pew Research Center, Positive Views of Supreme Court Decline Sharply Following Abortion Ruling, https://www.pewresearch.org/politics/2022/09/01/positive-views-of-supreme-court-decline-sharply-following-abortion-ruling/.

 Gallup, Confidence in U.S. Supreme Court Sinks to Historic Low, https://news.gallup.com/poll/394103/confidence-supreme-court-sinks-historic-low.aspx.

 Annenberg Public Policy Center, University of Pennsylvania, Over Half of Americans Disapprove of Supreme Court as Trust Plummets, https://www.asc.upenn.edu/news-events/news/over-half-americans-disapprove-supreme-court-trust-plummets.

 Annenberg Public Policy Center, University of Pennsylvania, 1 in 3 Americans Say They Might Consider Abolishing or Limiting  Supreme Court, https://www.annenbergpublicpolicycenter.org/1-in-3-americans-say-they-might-consider-abolishing-or-limiting-supreme-court/.

This article was originally published in the Kansas Bar Journal, January/February 2023, Vol. 92, No. 1, and is posted with the permission of the Kansas Bar Association.

Bilingual Attorneys Part of the Firm’s Next Generation

This fall, the firm welcomed D. Pamela Saenz and Peter Qiu as new associates following law school graduation.  Unique to this class of attorneys is that they are both bilingual.  Peter’s parents were both Chinese born moving to United States in the early 1990s, with Peter being the first generation in his family to be born and raised in the United States.  Born in New York City, Peter has lived in New York, Georgia, Mississippi and Louisiana before settling in Kansas during fourth grade.   Peter spent his final years of grade school and  middle school and high school in the Hutchinson, Kansas area.  Peter then attended Washburn University (BA 2017) and the University of Kansas School of Law (JD 2021).  Peter was able to study abroad in Beijing, China following his first year of law school at the University of Kansas School of Law where he studied Chinese corporate law, labor law, constitutional law, and many others. 

Peter is fluent in both Mandarin and English, with Mandarin being the primary language spoken in Peter’s home growing up.  His Mandarin fluency which makes him invaluable with international clients and cases.  But this trait is equally as attractive with local clients and cases, with Peter able to serve central Kansas’s noticeable Chinese population.  Through Peter’s life experiences (including working in a family-owned restaurant throughout his life), Peter believes that many Asian business owners that are not native English speaking tend to avoid retaining lawyers when prudent because of the cultural and linguistic differences.  Peter hopes his experiences can help better serve these populations.

Pam is a first generation Hispanic-American, with her father immigrating from Mexico and her mother immigrating from Honduras in the 1990s.  Her parents, having met in Wichita, have called Wichita home for Pam’s entire life.

Spanish is Pam’s first language since it was the only language her parents could speak at the time of her birth.  However, once in school, English overtook her communication both inside and outside her home as she and her family worked to assimilate.  As a result, while she always understood Spanish, she was not very comfortable speaking Spanish during a large part of her childhood.  Pam began taking formal Spanish classes in high school and majored In Spanish in college.  It was through these formal teachings that she learned to read, write, translate, and interpret Spanish, and gained confidence in her Spanish-speaking abilities.

Being the child of immigrants, Pam saw firsthand how difficult it was for her parents, relatives, and family friends to obtain services in Spanish—be it at doctor’s appointments, banks, county offices, or nearly anywhere else. This became a strong motivating factor for her to attend law school – the desire to provide competent representation for Spanish-speaking individuals in the language in which they felt most comfortable.  Pam felt the impact of her bilingualism when she worked as an office assistant for an immigration attorney, and in law school when she served as an intern for the Washburn Law Immigration & Family Justice Clinic. These opportunities allowed her to build trust with clients and avoided the complications of coordinating and communicating through an interpreter.  Now as a lawyer, there is a significant Hispanic population in Wichita that Pam looks forward to assisting.

Super Lawyers Recognizes 6 Hite, Fanning & Honeyman Lawyers

We are proud to announce that we’ve been recognized by Super Lawyers,a rating service of lawyers from more than 70 practice areas. Those recognized as Super Lawyers have not only had significant professional achievements but who are being recognized by peers. Super Lawyers are selected throughout the United States and represent excellence in the profession.

This year we have been notified that the following attorneys from HFH are being recognized.

Don D. Gribble, who practices medical malpractice law

Richard L. Honeyman, a seasoned lawyer in business litigation

Linda S. Parks, one of our attorneys handling business and corporate law 

Jim Robinson, bringing his experience to business litigation

Randy J. Troutt, a well-respected medical malpractice attorney 

Gaye B. Tibbets, who brings her non-inconsiderable knowledge to employment and labor clients.

And, we are proud to announce that Stephen H. Netherton, who practices medical malpractice law, has been recognized as a Rising Star!

Congratulations to everyone! 

Jingle all the way 2021!

The firm continues to support the community with their recent sponsorship of The Jingle. This annual holiday event benefits Ronald McDonald House Charities, providing the families of children in local hospitals a place to call home while they are away from home. This year the event was virtual and spread out over a few days allowing for silent auction bidding. So guests got to relax at home, have a refreshment and bid at their leisure! We are proud to have been a part of the fundraiser and look forward to a real celebration next year!

Mackenzie Baxter brings her talents and compassion to Ronald McDonald House Charities.

Associate Mackenzie Baxter recently joined the Board of Directors for Ronald McDonald House Charities Wichita. The mission of RMHC is to create, find, and support programs that directly improve the health and well-being of children and their families. We know that Mackenzie will be an asset to the organization and we appreciate her making time to be a part of our community outside of work.

Partner Linda Parks receives Lifetime Achievement Award

Partner Linda Parks was recently recognized with the Lifetime Achievement Award from Washburn Law School. Of course, this came as no surprise to the HFH team! We have seen Linda excel in her profession every day, and in every way that she commits her talents to the firm and her clients. 

Linda Parks was a founding partner with Hite Fanning when it began in 2000 and brings her leadership style to the position of managing partner. Linda  practices in the areas of business transactions, banking, commercial real estate, creditors rights, and estate planning and is also a United States Chapter 7 bankruptcy trustee. She advises financial institutions on multi-million-dollar loan transactions, loan purchases and sales, contractual matters, and day-to-day operational matters.

She has served on the Washburn University School of Law Alumni Association board of governors. In 2019, the governor of Kansas appointed Parks to chair the Court of Appeals Nominating Commission for the state. She was appointed to the Blue Ribbon Commission in 2011 by the chief justice of the Kansas Supreme Court to assist with examining the state’s judicial branch and court structure. In the American Bar Association, she currently serves on the board of governors. She served in the House of Delegates from 2000-05 and 2009-15. She has served on the Steering Committee for the Nominating Committee, the Select Committee, the Commission on Homelessness and Poverty, the Commission on Mental and Physical Disability, and the Commission on Domestic and Sexual Violence. She was president of the Kansas Bar Association in 2007-08 and is a fellow of the Kansas Bar Foundation. Parks was also a founding member of the Kansas Women Attorneys Association, having served as its first president from 1994-96. KWAA awarded her the Jennie Mitchell Kellogg Attorney of Achievement Award in 2000. Parks received the Wichita Women Attorneys Association Louise Mattox Attorney of Achievement Award in 1997. 

(reprinted from https://www.washburnlaw.edu/alumni/awards/lifetime/2021.html?fbclid=IwAR1XXUdsDK58xYbJm4rFLV7cx85bSDJGSBQKSqF2U5P7o2xzVjNRcIfiO-A#parks)

Religious Exemptions to COVID-19 Vaccine Mandates

The EEOC Offers Religious Exemption Guidance

The US Equal Employment Opportunity Commission (EEOC) posted updated and expanded technical assistance addressing religious exemptions to employer COVID-19 vaccine mandates.  The EEOC provided details of its view of employer obligations under Title VII when evaluating religious objections to COVID-19 vaccination mandates.  Some larger employers have been inundated with addressing protected versus unprotected claims of mandate exemptions, while still attempting to safeguard employees’ stated religious beliefs.  The EEOC’s latest updates attempt to clarify for employers how to handle accommodation requests. Here are some highlights.

EEOC guidance explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar.  The EEOC would prefer employers ordinarily assume an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance. As stated, when an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer can request additional supporting information. In that instance, employers can make inquiries into the nature or sincerity of a purported religious belief. Employees who fail to cooperate with these employer inquiries risk losing a subsequent failure to accommodate claim.

There is some burden on employees to advise their employers a conflict exists between their religious beliefs and a vaccine requirement. The employee must provide some notice to qualify for an accommodation.

Undue Hardship

After consideration of all possible reasonable accommodations, it may not be possible to accommodate all those seeking religious exemption without undue hardship.  If an employer can demonstrate undue hardship, Title VII may not require accommodation.  

The Supreme Court has held that it is an undue hardship where the cost of accommodating an employee’s religious belief is more than a “de minimus,” or minimal, cost or hardship. For example, employers can consider economic costs, workplace safety such as the spread of COVID-19 to other employees or to the public; if the employee works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public. The answer to the undue hardship question may be different for each employee.  An example is an administrative employee who can work at home versus a manual laborer that exclusively works indoors.

An assumption that a lot more employees could seek a religious accommodation to the vaccination requirement in the future is not evidence of undue hardship.  However, the EEOC says that the employer may consider the cumulative cost or burden of granting accommodations to other employees which can be a significant factor for some employers. To this factor can be added the risk that an unvaccinated employee will spread COVID-19 to other employees or the general public, the nature of an employee’s workplace, whether the employee works in a solitary or group environment, and the contact the employee has with other employees or members of the public, especially medically vulnerable individuals.

Employers should remember the law does not require them to provide the employee’s preferred accommodation but can choose the one that works best for the business.  Each request should be evaluated on a case-by-case basis.

Conclusion

The EEOC guidance is somewhat helpful in its discussion of acceptable criteria to consider when evaluating requests for religious accommodation to COVID-19 mandates such as the right to request additional information from employees when there is an objective reason to doubt the religious nature or sincerity of a religious accommodation request. Further, the EEOC’s confirmation that employers may rely on the cumulative impact of multiple requests when conducting an undue hardship analysis is helpful. 

Jon Newman, Partner – Hite, Fanning & Honeyman L.L.P. 

 newman@hitefanning.com  - 316-265-7741

D. Pamela Saenz Joins the Firm as a New Associate

The firm is pleased to announce that Pam Saenz has joined us as an associate. She will primarily practice in the area of employment law, which includes corporate investigation, corporate management and worker’s compensation issues. Pam also brings her fluency in Spanish to the firm which will serve her well with international cases and clients.

Pam received her Juris Doctor from Washburn University School of Law, where she held a variety of leadership roles in the Hispanic American Law Students Association and  the Genders and Sexualities Alliance and participated on the Jessup International Law Moot Court Team. Pam also served as both a legislative intern and legal interns for several firms. Her internships allowed her to work directly with clients while also honing her research skills and allowing her to successfully compile a breadth of experiences.

Prior to law school, Pam earned her undergraduate degree from Wichita State University, studying international studies and participating in several organizations and serving as president of her women’s fraternity. 

Not only is she smart and talented, Pam has been a fun member of our team and we look forward to enjoying her company on firm outings and activities! Come by and welcome Pam to the firm!

Peter Qiu Comes on Board as an Associate

Peter Qiu joins us as an associate after spending time working as one of summer associates and we could not be more pleased. Peter will be working with the civil litigation team, which serves clients in the areas of general litigation, aviation law, oil and gas law, healthcare and business...just to name a few.  Peter is also fluent in Mandarin which makes him invaluable with international clients and cases.

After earning his Bachelor of Arts degree in Political Science from Washburn, Peter attended University of Kansas School of Law. While balancing his academic studies, he was also involved with many activities that reinforced his legal education, such as the Kansas Journal of Law and Public Policy, Mock Trial Council, Asian Law Students Association, and American Constitution Society among others. Peter offers a good combination of a strong academic understanding of law with relevant hands-on experience working for several law firms and legal organizations while in law school. Peter also studied abroad in China and Japan.  

Peter has been a good addition to the firm and has been an enthusiastic supporter of firm activities and charitable endeavors. When he isn’t working, he enjoys international travel and playing tennis, pool and gaming. We are happy to have you here, Peter!

Mandating COVID-19 Vaccines in the Workplace

COVID-19 VACCINES AND THE WORKPLACE

Jon Newman

Hite, Fanning & Honeyman LLP

MANDATING COVID-19 VACCINES IN THE WORKPLACE

As COVID-19 vaccinations became more available, and the dynamics of the pandemic changed, employers are now dealing with issues associated with returning employees.  Employers are considering mandatory vaccinations and related issues.  There are scenarios where employers can mandate that employees get COVID19 vaccinations, but this is dependent on following certain laws, polices, and employees’ legal protections.  Employers must still comply with various complex employment laws.  Some examples of applicable protections are the Americans with Disabilities Act and Title VII and any similar Kansas laws.

On May 28, 2021, the EEOC issued updated guidance regarding workplace COVID-19 vaccination policies and employee accommodations (the “Updated Guidance”).  Subject to compliance with the various legal requirements such as accommodations, the EEOC’s Updated Guidance confirmed employers can enact a mandatory vaccination policy for all of its employees who physically enter the workplace.  This should not violate the laws that the EEOC deals with such as the ADA, Title VII of the Civil Rights Act (“Title VII”), or the Genetic Information Nondiscrimination Act (“GINA”).  There are Kansas equivalate statutory schemes such as the Kansas Act Against Discrimination (KAAD).

However, the EEOC states “employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”  A cautious employer with a mandatory vaccine program should periodically evaluate whether its policy disproportionately and negatively impacts employees in protected categories. 

With a mandatory vaccine policy, the law requires reasonable accommodations to employees who cannot get the vaccination due to disability or sincerely held religious beliefs or pregnancy.  Therefore, as in other cases, the employer should perform an individualized assessment regarding possible accommodations when these scenarios occur.  

Sometimes the issue of direct threat is implicated in the ability to accommodate.  A direct threat is a significant risk of substantial harm to the health or safety of that employee or others, which cannot be eliminated or reduced by a reasonable accommodation.  The employer should evaluate the duration of the risk, nature of severity of potential harm, likelihood of harm, and imminence of potential harm, such as whether the unvaccinated employee expose others to the virus at work.

If a direct threat exists, the employer must have an interactive process regarding possible reasonable accommodations absent undue hardship.  If the direct threat cannot be reduced by accommodation, the employer can exclude the employee from the workforce.  An example of accommodation would be performing work remotely.  

As part of a vaccination policy, the EEOC concludes asking for proof of COVID-19 vaccination is not a disability related question.  However, follow up questions might be.  This is  particularly true when follow up questions elicit information about a disability, triggering the requirement that the questions comply with the law, such as the ADA and be “job-related and consistent with business necessity.”  

On July 26, 2021, the U.S. Department of Justice’s Office of Legal Counsel issued an opinion that Emergency Use Authorization status does not prevent public and private employers from imposing vaccine requirements.

The first court to address an employer mandating vaccination allowed a hospital to suspend unvaccinated employees without pay.  The court said in its order that the employees were not forced to be injected with the vaccine.  The court reasoned that the employees had the choice to work elsewhere just as the employer had the choice to require vaccines. Bridges v. Houston Methodist Hospital, No. H-21-1774 (S. D. Tex. June 12, 2021) 

https://www.documentcloud.org/documents/20860668-houston-methodist-lawsuit-order-of-dismissal.

The United States Supreme Court allowed Indiana University to require students to be vaccinated against the coronavirus when It did not accept the case.  Eight students had sued the university, saying the requirement violated their constitutional rights to “bodily integrity, autonomy and medical choice.” But they conceded that exemptions to the requirement — for religious, ethical and medical reasons — “virtually guaranteed” that anyone who sought an exemption would be granted one.  Supreme Court Justice Amy Coney Barrett turned down the students’ request for emergency relief without comment.  

COVID-19 VACCINATION INCENTIVE PROGRAMS

The majority of employers have not enacted mandatory vaccine polices.  Others are adopting incentive programs to increase the number of vaccinated employees.  The EEOC’s updated guidance confirms these programs are acceptable subject to certain requirements.  

Employers may offer incentives both as rewards and penalties, for voluntarily vaccination, if the incentive is not so substantial as to be coercive.  Incentives that are relatively small in the context of employees’ situation are less likely to be coercive versus significantly impactful incentives, effecting job status, pay rate, etc. which run a higher risk. For example, Wells Fargo offers paid time off and Walmart offers $75 in cash and paid time off to those employees that get vaccinated. Some additional examples used by employers have been direct compensation, paid time off, and gift cards to employees who receive vaccinations.  Also, the impact of any payments on wage and hour laws such as the Fair Labor Standards Act, Kansas Wage Payment Act, calculation of overtime, or related issues should be considered.       

The nature of COVID vaccinations and the workplace invariably involves medical information and related inquires.  In vaccination programs administered by the employer or its agent, disability related questions might be asked.  If there is a large incentive tied to that, employees may feel coerced to provide disability related information.  Therefore, employers who themselves administer the COVID-19 shots to employees or those that have contracts with a third-party for vaccine administration should be particularly cautious as to level of incentive.

Employers who have incentive programs for employees voluntarily showing proof of vaccination acquired elsewhere, are at lower risk.  Therefore, according to the EEOC, employers not involved in giving the shots and those that do not contract with third parties to do so, do not have the same limitations on levels of incentives.  The basis is that in those situations, the likelihood of asking disability related questions is much lower.  The EEOC has expressly stated that requesting proof of vaccination is not a disability-related inquiry covered by the ADA and does not run afoul of GINA because the fact that an employee received a vaccination is not protected genetic information.

SINCERELY HELD RELIGIOUS BELIEFS

Another issue where liability can exist involves those employees who should not get the shot because of sincerely held religious beliefs.  Simply disqualifying these classes of employees from the incentive could be discriminatory.  Therefore, employers need to build into their incentive program an alternative mechanism.  

Under Title VII of the Civil Rights Act of 1964 (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.” 42 U.S.C. § 2000e-2(a)(1)-(2).  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.” 42 U.S.C. § 2000e(j).   “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”.  Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).   

Title VII requires employers to accommodate those religious beliefs that are “sincerely held.”  Dockery v. Maryville Acad., 379 F. Supp. 3d 704, 718 n.18 (N.D. Ill. 2019) (while the validity of a religious belief cannot be questioned, the threshold question of sincerity . . .  must be resolved in every case).  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.  See Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 443 (5th Cir. 2011) (reciting prima facie case for harassment because of religion without reference to inquiry into sincerity of religious belief); Dixon v. Hallmark Cos., 627 F.3d 849 (11th Cir. 2010) (analyzing sincerity of religious belief only with respect to failure-to-accommodate claim, not with respect to discriminatory termination claim).

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.  

ACCOMMODATIONS OF ALREADY VACCINATED EMPLOYEES

Sometimes vaccination does not end the ADA analysis.  There are instances where employers have been asked for accommodations by already vaccinated employees.  The issue of accommodations comes up when employees receive requests for accommodations because of an underlying disability that places the employee at higher risk of severe illness from COVID-19 infection.  The EEOC Guidance says requests such as these should be processed like any other accommodation request under the ADA.  Specifically, like other ADA situations, this typically includes seeking information from the employee’s health care provider with the employee’s consent explaining why an accommodation is needed. 

GATHERED INFORMATION SHOULD BE HELD CONFIDENTIAL

As discussed, EEOC issued guidance clarifying that an employer’s inquiry into an employee’s vaccine status is not a disability-related inquiry under the ADA.  However, the information gathered by the employer may be confidential medical information and any related confidentiality rules should be followed.  When requesting COVID vaccine documentation, employers should advise employees not to provide additional medical information other than the vaccination card evidencing vaccination.  The ADA requires all medical information about a particular employee be stored separately from the employee's personnel file.  An employer may store all medical information related to COVID-19 in existing medical files.  This would include an employee's statement that he has the disease or suspects he has the disease, or the employer's notes or other documentation from questioning an employee about symptoms.  The employer is supposed to maintain confidentiality of logs of temperature checks.

CONCLUSION 

The COVID-19 pandemic has had and continues to have a dramatic impact in the employment law arena.  There are many factors employers must consider when making employment related decisions, especially in a global pandemic, and employers must remain mindful of the everchanging legal obligations to their employees.  The EEOC and CDC are trying to assist employers by providing much needed guidance to employers on how to remain compliant with federal employment related laws and regulations.  

______________________________

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. Equal Employment Opportunity Commission, (Updated May 28, 2021), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws 

28 C.F.R. § 35.139.

29 C.F.R. § 1630.14.

COVID-19 Vaccine Incentives, Vaccines.gov, https://www.vaccines.gov/incentives.html (last visited June 10, 2021).  

Id. 

Equal Emp't Opportunity Comm'n, Compliance Manual § 12-IV (January 15, 2021), https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination.   

Can employers require the Covid-19 vaccine?

Employers are facing some new challenges during the current pandemic that may lead to legal questions. One such concern is if employers can require employees to get the Covid-19 vaccine, especially since it is still in an early phase of approval. Our own Gaye Tibbets was invited to share her thoughts on KAKE-TV recently as local medical staff questioned the legality of requiring the vaccine.
Tibbets explains that, while the pandemic has caused lots of one-of-a-kind situations, the simple answer is yes. Employers can require it as long as legitimate medical conditions and religious beliefs are accommodated and that there is a good business reason for it. Essentially employers such as hospitals and care homes can mandate the vaccine even though it has not been completely  approved by the FDA.

"...it seems obvious, especially with some employers like hospitals or care homes, those places that that is important. That they're trying to minimize a risk with the only tools available now. It's not like people are requiring this vaccination, and there's an approved one available," said Tibbets.

For the entire story, please use the link below.

https://www.kake.com/story/44424028/covid-and-the-workplace-can-employers-legally-make-you-take-a-vaccine-not-yet-fully-approved

HFH Recognized by 2021 Chambers & Partners

Great news! HFH is honored to be recognized by 2021 Chambers & Partners for our attorney's work in General Commercial Litigation. The firm has been named a Band 2 firm, with special acknowledgement of Jim Robinson (Band 1) and Don Gribble (Band 3). Additionally, Gaye Tibbets was named a Band 2 attorney for her Labor & Employment Work. We are so proud of our talented team! Check us out at https://chambers.com/law-firm/hite-fanning-honeyman-llp-usa-5:77574 for Chambers’ profiles on the firm and attorneys.