In the past week, Micron moved away from it's prior "Pandemic Emergency Preparedness Plan" (PEPP) to new a new plan that has only two levels depending on some indeterminate COVID case criteria in the surrounding area. Those two levels are "Peak" and "Non-Peak" and drive different safety measures among it's employees. For unvaccinated employees, this meant that new "temporary accommodations" were needed.
The New Accommodation
Many MERF members received new temporary accomodations on March 22nd. The temporary accommodations read as follows (with a few variations based on previous accommodation).
We are following-up on our prior correspondence providing you with a temporary leave of absence as an accommodation, based on your request in response to Micron’s COVID-19 mandatory vaccination requirement.
Your work site will soon return to a Non-Peak safety level, and as a result, your accommodation is changing. Your leave of absence is ending, and your new accommodation is that you will be able to return to working on-site starting on or after Tuesday, March 22, 2022. You should communicate with your direct manager regarding to begin the process to bring you back on-site, including to arrange a mutually agreeable date for your return to work on-site. You may expect that your Micron system access will be restored within 48 hours.
Upon your return to working on-site, Micron is providing you with the following temporary accommodation:
Twice per week on-site testing for COVID-19 prior to beginning work
Wearing a mask at all times
A daily COVID-19 safety survey
After your return to working on-site, Micron will regularly reevaluate whether it is able to continue providing you with this return- to-work temporary accommodation, based on any changing applicable federal, state, or local guidance, circumstances relating to the COVID-19 pandemic, site safety management level and/or relevant business circumstances. By providing this return-to-work temporary accommodation, Instead, Micron has decided to provide this temporary accommodation to you based on the current unique facts and circumstances relevant to you and your request for accommodation. For any questions, please contact your supervisor, People Partner or employeerelations@micron.com.
What this means for MERF Members
MERF cannot provide legal advice. What is provided below is only meant to serve as guidance to assist you with filing a complaint with the EEOC; it is not legal advice. The EEOC will provide you with legal advice after you file your complaint.
The MERF Boards believes a Constitutional right to a reasonable religious exemption may have been violated at the outset by Micron’s original “accommodation” because it imposed an indeterminate unpaid LOA, which constituted constructive termination. For many MERF members, the original Micron Accommodation contained three (3) elements:
Leave of Absence (LOA)
Without pay
For an indeterminant period of time
In Sambrano et al. v United Airlines, (5th Cir, No.11159 file 02/17/22) the Court concluded: “Plaintiffs are not merely seeking to prevent or undo the placement on unpaid leave itself but are also challenging the ongoing coercion of being forced to choose either to contravene their religious convictions or to lose pay indefinitely. In such cases, when an employee is subjected to ongoing coercion because of a protected characteristic, the irreparable harm factor of the preliminary injunction analysis is satisfied.” (emphasis supplied by the Court)
The revised, new accommodation provides employment and pay, but is still indeterminant, since it is subject to pending changing conditions. Micron refers to this notice as “your new accommodation,” and is also referred to as a “return-to-work temporary accommodation.” While still indeterminate, it may be held to be a “reasonable” accommodation, since it does provide employment and pay, subject to certain other test taking and mask wearing.
Does this new temporary accommodation absolve Micron of claims of constitutional violations arising from the initial constitutional violation? Likely not, since the claimed violations had already occurred with the imposition of the initial accommodation. Hence, one may return to work and still maintain his or her EEOC complaint for the irreparable violation of the First Amendment constitutional right ,for reimbursement of lost wages, and for any other related damages that are claimed to have occurred under the initial “accommodation.”
Micron is strictly prohibited by law from retaliating against an employee for exercising his or her rights under Title VII of the Civil Rights Act.
Key Takeaway
While the new accommodation from Micron is likely constitutional, the board believes we still have a strong case for violation of our constitutional rights and urges members to continue filing with the EEOC and/or IHRC