PLEASE don’t tell your employees which candidate to vote for

This post at the Evil HR Lady Facebook group caught my attention yesterday:

Florida company's president warns employees their jobs could be in danger if Trump loses election

Coronavirus Update 10-19-2020: The 10th nominee for the “worst employer of 2020” is … the callous car dealer

I continue to shake my head at the callousness of employers during this pandemic. Consider this example from The Oregonian, which earns its spot as the 10th nominee for the Worst Employer of 2020.  

A finance manager at a used car dealership in Portland was fired by his boss during a staff meeting for questioning the company’s alleged cover-up of a coronavirus cluster, a lawsuit claims.  

Coronavirus Update 10-16-2020: The benefit of being prepared

When you get the call, you better be prepared. This maxim holds true in business, in the law, and in life in general.

Our favorite local wine bar has been hosting outdoor, socially distant concerts since shortly after the State of Ohio allowed it to reopen. Last Friday, their booked artist canceled last minute, which led to a 4:00 pm phone call for Norah to fill in. 

I had to quickly work through the stress of a 14-year-old who did not know if she could pull off a three-hour solo gig on 90 minutes' notice. I reminded her that she's spent the last six months writing originals and playing covers in her bedroom, in the backyard, and on Zoom for the Rockin' the Suburbs "Friday Night Hootenanny." Thus, she made her setlist, we packed her gear into the car, and off we went.

What we’ve got here is a failure to communicate

An employee suffers an injury that prevents her from operating a motor vehicle. With no means of transportation to travel to and from her workplace, the employee calls off work, believing that her absences were excused. They weren't, and the employer fires her for excessive absences.

She sues, claiming disability discrimination, in part because of the company's failure to accommodate her inability to drive.

Coronavirus Update 10-14-2020: Reporting an employee who tests positive

When an employee tests positive, an employer has certain reporting obligations. These obligations fall into two categories—reporting to OSHA and reporting to your state or local health agency under state law.

OSHA

While OSHA has remained largely silent on mandates for businesses related to COVID-19, it has published specific guidance on when an employer must record and report COVID cases at work.

Coronavirus Update 10-13-2020: You are doing something very, very wrong if your employees are terrified to come to work

According to Deadspin, NFL players are terrified of COVID, but are afraid to speak up for fear of angering the NFL.

"I looked at my son. I looked at my family, and I just didn't think it was worth it," Jaguars player Lerentee McCray, a seven-year veteran, told me this summer after opting out. "I could catch it and bring it home to them. Or I can get it and even if it doesn't kill me, it could destroy my career long-term. I feel really weird not playing football right now, but can't. I can't risk doing something so dangerous and maybe hurting the people I love."

In the end, most players decided the money was worth the risk. So, they play.

Yet there's been a definite shift in that attitude over the past few months and even weeks, several told me in various interviews, as the virus spreads through locker rooms. Most requested anonymity for fear of angering NFL owners and the league office.

Why I call myself the 'Master of Workplace Schadenfreude'

If you and I are connected on LinkedIn (and if we're not, please correct that mistake immediately), you may have noticed that my headline describes me as a the "Master of Workplace Schadenfreude." 

I'm often asked, "Jon, what the heck does that mean?" Today, I have the answer.

People I don’t understand

Earlier this week I saw the following (brilliant) ad put out by a group calling itself Dog Lovers For Joe.

It reminded me of a list I've been compiling for the past several years. I had originally called it "People I Don't Trust." Subsequently, however, I've swapped "trust" for "understand."

Coronavirus Update 10-8-2020: Crying “discrimination” because you refuse to wear a mask isn’t just silly, it’s offensive

Please watch this short video and then let's talk.

Entitled anti-masker says "I am discriminated against every single day in my county now... sometimes multiple times a day." GOOD pic.twitter.com/WmCWlAaDqD

— Fifty Shades of Whey (@davenewworld_2) October 6, 2020

This woman claims discrimination because she refuses to wear a mask in public. 

Coronavirus Update 10-7-2020: Could White House employees file an OSHA complaint?

Monday night saw President Donald Trump dramatically return to the White House after his three-day stay at Walter Reed Medical Center for COVID-19. We saw Marine One land on the White House lawn, President Trump emerge and walk up the stairs to the White House, remove his mask for a photo op, enter his home with his mask still in his pocket, reemerge for a reshoot, and again enter the White House maskless.

It's that last part I want to talk about. HuffPost asks if White House employees could lodge an OSHA complaint about the President's COVID recklessness? I'd answer that question with a solid and resolute "thumb's up." The bigger question, however, is whether OSHA would do anything about it.

Coronavirus Update 10-6-2020: Fired for COVID-19, or fired for irresponsibility

Prada v. Trifecta Productions, filed a few weeks ago in federal court in Ann Arbor, Michigan, asks whether an employer can legally fire an employee with COVID-19 based on the perception that the employee's out-of-work activities placed the business at risk.

The facts are fairly simple. Nicolas Prada, worked as a waiter and assistant manager at Tomukun Noodle Bar. On  June 24, 2020, he began experiencing COVID-19 symptoms and stayed home from work. He tested positive three days later. After 14 days of isolation, Prada texted his employer about being medically cleared to return to work. 

Coronavirus Update 10-5-2020: Your employees should never learn about positive test from anyone but you

Ninety percent of the [White House] complex most certainly learned about it in the news, as has been the case ever since. There are reports that COVID is spreading like wildfire through the White House. There are hundreds and hundreds of people who work on-complex, some who have families with high-risk family members. Since this whole thing started, not one email has gone out to tell employees what to do or what's going on.

– Anonymous White House Senior Official

If your employees are learning about a positive COVID-19 diagnosis from anyone other than from an official communication from you as their employer, you have failed in your duty as their employer. 

Friday follow-up: Covid quarantine/isolation, politics at work, and crab people

With the shocking news that Donald and Melenia Trump have tested positive for COVID-19 (along with Hope Hicks, one of Trump's top advisors and key inner-circle members), I thought it is a good time to review the CDC's rules for quarantine (how long you must stay away from others when you've been exposed to someone with Covid) and isolation (how you must stay away from others when you have Covid).

7 tips to manage political discussions at work

Did you watch the Presidential Debate Tuesday night? Do you think it showcased the best of America? If you do, I think you were tuned to the wrong channel. In fact, I'd argue that it was the low point of American presidential campaign history, if not all of Amerian presidential history.

Our country is broken. We are more divided than we have been in 155 years. This division also exists among your employees. Approximately half will be Red/Republican/Trump and the other approximate half will be Blue/Democrat/Biden. Given our 24/7 news cycles, social media, and the overall unavoidability of this election, these issues will bleed into discussions among your employees at work, and outside of work on social media and otherwise. 

Coronavirus Update 9-30-2020: Covid, hazard pay, and overtime

Wage and hour compliance is complicated enough for employers. Layer a pandemic on top of wage and hour compliance, and you have an absolute nightmare for companies.

Consider, for example, hazard pay.

Coronavirus Update 9-29-2020: The 9th nominee for the “worst employer of 2020” is … the covid denier

The human resources manager for a New Hampshire company is suing her former employer after she sent an email about COVID-19 to employees and required two employees to stay home for one week after going on vacations to China and Malaysia. 

She claims company officials told her she was being fired for "exaggerating 'the China Virus.'"

What one debate question would you ask each candidate?

Tomorrow night, a mere 16 miles from my home, President Trump and Vice President Biden will step in front of the cameras to make their respective cases to America in the first of three debates. Eight years ago, some of my blogging friends and I got together to propose the debate questions we'd ask each of the candidates if we had the power to do so. Given the current state of our Republic and what's at stake when we vote, we thought it would be a good idea to revisit this collective idea and do it again. 

Here is are my "one questions" for President Trump and Vice President Biden.

Coronavirus Update 9-25-2020: The show must go on

This year has been challenging for everyone. COVID-19 has forced everyone to be innovative with everything. Case in point, high school theater. 

Tonight and tomorrow Norah will make her theater debut in Lake Ridge Academy's performance of The Brothers Grimm Spectaculathon. Norah is playing multiple roles, including what I'm told is a hilarious Crab Person and Little Red (I believe it's red as in the color of her MAGA hat, and not red as in the color of her hood).

Coronavirus Update 9-24-2020: Comorbidities, Covid-19, and your employees

Let's talk about comorbidities. A comorbidity is the simultaneous presence of two chronic diseases or conditions in a patient. In the case of COVID-19, certain comorbidities are known to increase one's risk for a more severe illness.

DOL publishes proposed regulations that would make it easier for employers to classify workers as independent contractors

Yesterday, the U.S. Department of Labor announced a proposed rule amending its regulations on how to determine whether a worker is an employee covered by the Fair Labor Standards Act or an independent contractor not covered by the FLSA. This proposed rule is significant because the FLSA lacks clear guidance on these important definitions, which has left employers struggling, scrambling, and risk-taking to properly classify workers for purposes of paying overtime and other wage/hour obligations.

“Religious freedom” ≠ freedom to discriminate (but sometimes it must be accommodated anyway)

The EEOC has sued an Arkansas Kroger after it fired two of its employees for allegedly objecting to its new dress code that required employees to wear an apron that contained rainbow-colored heart insignia. 

According to the EEOC, the women believed the insignia endorsed LGBTQ values, which contradicted their personal religious beliefs. As an accommodation, one offered to cover the insignia and the other offered to wear a different apron without it. The EEOC says that Kroger refused their accommodation requests, disciplined them, and ultimately fired them.  

Coronavirus Update 9-21-2020: the CDC continues to create a mess for employers on testing; and a word on RBG

Last Friday, the CDC yet again updated its guidance for COVID-19 testing. If you're keeping count, this is the CDC's fifth set of testing rules.

What's changed? 

Due to the significance of asymptomatic and pre-symptomatic transmission, this guidance further reinforces the need to test asymptomatic persons, including close contacts of a person with documented SARS-CoV-2 infection.

Coronavirus Update 9-18-2020: advocacy for others as protected conduct under the ADA

In Kirilenko-Ison v. Board of Education of Danville Independent Schools, the 6th Circuit Court of Appeals held that an employee who engages in advocacy with their employee regarding the rights of a disabled third-party engages in activity that the ADA protects from retaliation. 

That case involved two school nurses fired alleged for advocating for the rights of their disabled students. It's not difficult, however, to see how this holding translates to a situation involving, for example, COVID accommodations for employees

Coronavirus Update 9-17-2020: The pandemic plight of working moms

There is no doubt that the COVID-19 pandemic has been tough on employees. A recent report published by Policy Matters Ohio illustrates just how tough it's really been.

• Ohio had fewer jobs in April 2020 (4,704,000) than at any time in the past 30 years.
• At the height of COVID-related unemployment, 31.7% of Ohio workers were out of work because of employer layoffs, furloughs, and closures.
• Unemployment peaked at 17.3%
• While unemployment and jobless numbers are starting to rebound, there are still nearly 600,000 fewer jobs in Ohio now than at the start of millennium. 

As bleak as these overall statistics are, I want to focus on another aspect of the report—the plight of working mothers.

According to the report, working moms have taken the brunt of the wave of employees working from home.

• Working moms with young children reduced their work hours four to five times as much as fathers did nationally, widening the work hours gap between men and women by 20-50%. 
• The current recession has increased the gender pay gap by five percent, seven points higher than what we typically experience in other recessions (in which the gender pay gap is normally reduced by two percent). 

What does this mean?

Men and women are about equally likely to be able to work from home, but the burden of new unpaid care work falls especially heavily on women.… Added child-caregiving responsibilities are competing with women’s paid work and in some cases forcing women out of the labor force altogether, with consequences for their careers that could be permanent. Women may never recover the career losses they face to support their families’ child care needs through the crisis. The pay gap with men, which has been narrowing over recent decades, could be wrenched open once more for years to come.

What is an employer to do?

1. Remind supervisors and managers that family responsibility discrimination is illegal. While Title VII does not expressly include “family responsibility” as a protected class, the EEOC has long held that Title VII’s prohibits discrimination against parents as parents if you are treating some more favorably than others (e.g., dads better than moms, or men better than moms). There are also, a few states that expressly prohibit parental discrimination. If, for example, you have to make decisions about layoffs, you should be considering whether working parents are disproportionately included.


2. Consider accommodations to aid working parents. Work from home is already an accommodation, but there are others that could help here. Modified work schedules (which the Department of Labor favors in its FFCRA guidance), designated breaks, and the provision of additional work supplies such as laptops and printers could all ease the burden on parents working from home. Our goal here should be helping employees figure out solutions to get their job done, not harming employees (and the business) by erecting barriers that prevent it.

* Photo by Leonard Beck on Unsplash

Coronavirus Update 9-16-2020: Federal court holds state indefinite Covid-closure orders are unconstitutional

In County of Butler v. Wolf, Judge William S. Stickman IV of the United States District Court for the Western District of Pennsylvania (a recent appointee of President Trump) held that state-imposed shutdown orders that closed businesses, required people to stay home, and placed limits on public gatherings—all aimed at stopping the spread of the COVID-19 pandemic—were "well-intentioned" but unconstitutional.

At issue was a series of business closure and stay-at-home orders issued by Governor Tom Wolf of Pennsylvania shortly after the start of the COVID-19 pandemic.

Judge Stickman concluded these orders were unconstitutionally overbroad.

Coronavirus Update 9-15-2020: Is your business ready for the coming “tidal wave” of COVID-19 employee lawsuits?

• A Texas man sues, claiming he wasn't allowed to keep teleworking after the office reopened
• A Kentucky worker sues after being fired for complaining about a lack of face masks at work
• An older New York employee sues, claiming he was laid off because he was in a "vulnerable" COVID age group

These are but a few of the dozens (and exponentially growing) lawsuits that employees have filed all over the country over COVID-related concerns.

Coronavirus Update 9-14-2020: DOL issues revised FFCRA regulations; what’s changed and what hasn’t?

In early August, a New York federal district court judge issued an order invaliding several key provisions in the DOL's FFCRA regulations. Last Friday evening, the DOL responded with revised regulations that left most of its prior regulations intact, while also make a few common-sense amendments. 

Here's what the DOL did, and did not, change in response to the court's order, and why.

Coronavirus Update 9-11-2020: The anatomy of a losing legal argument

Deborah Kofler worked for Sayde Steeves Cleaning Service as a residential and commercial cleaner. Beginning on April 1, Kofler requested paid leave under the Families First Coronavirus Response Act to care for her two minor children who were at home beacause of COVID-19 related school closures. One week late Sayde terminated her employment.

Kofler sued for retaliation under the Fair Labor Standards Act.

In responding to Kofler's lawsuit, Sayde sought dismissal, arguing that Kofler is alleging retaliation under the FFCRA and did not plausibly allege that she engaged in protected activity under the FLSA.

Coronavirus Update 9-10-2020: The coming wave of Covid-related age discrimination lawsuits

The EEOC has sued Ohio State University for age discrimination, alleging that the school discriminated against a 53-year-old human resources generalist because of his age by assigning a substantial substantial portion of his duties to a short-tenured co-worker 25 years his junior. 

"If a termination is age-discriminatory, dis­guising it behind a supposed reduction in force will not change that," says EEOC Regional Attorney Debra Lawrence in discussing the filing of the lawsuit.

What does this lawsuit, which challenges a termination that occurred all the way back in March 2018, have to do with the COVID-19 pandemic? 

Coronavirus Update 9-9-2020: The 8th nominee for the “worst employer of 2020” is … 🎶 it’s corona after all 🎶

It's a world of sickness
A world of tears
It's a world of death
And a world of fears
There's so much that we share
That it's time we're aware
It's corona after all

Disneyland is "The Happiest Place on Earth" … unless you're among the group of employees claiming that it forced them to work while they were sick with COVID-19.

Diversity training is the opposite of “anti-American"

Late last week, Russell Vought, the Director of the Office of Management and Budget, issued a memo directing that from this point forward, the federal government will spend zero federal dollars for diversity training for its employees. Why? Because President Trump has concluded that diversity training is "divisive, anti-American propaganda."

Coronavirus Update 9-4-2020: “Normal"

Last Saturday, for one glorious evening, I felt "normal." I dined out at a restaurant for the first time in nearly six months.

Colleen and I celebrated our 17th anniversary. Plan A was to import Maine lobsters, smoke them on my grill, and enjoy them with a great bottle of Italian wine I had picked up our our favorite wine shop. That plan fell apart, however, when I learned that FedEx won't guarantee Saturday delivery to my home. 

So we moved to Plan B. We cautiously and nervously decided to brave a restaurant for an outdoor meal.

Coronavirus Update 9-3-2020: County health department fires five for quarantine order violation

Erie County, Ohio, has fired five health department employees for violating a quarantine order. What happened? Fox 8 provides the details:

Five Erie County General Health District employees are now out of a job after allegedly attending a pool party thrown by a worker, who was supposed to be quarantined.

"I am not going to tolerate it as a health commissioner and the board isn't going to tolerate it as our appointing authority," said Erie County Health Director Peter Schade. "How can we expect folks to follow an order when our own staff didn’t do it?"

Schade said the incident happened in early July after three workers were exposed to COVID-19 and placed on work quarantine orders.

Coronavirus Update 9-2-2020: Ohio set to activate COVID-19 liability shield for businesses

Both houses of Ohio's legislature have passed legislation that will grant a liability shield to businesses for claims related to COVID-19 exposure or infection.

The legislation, which Governor DeWine has indicated he will sign into law, would grant immunity from civil actions for damages based in whole or in part that an injury, death, or loss to person or property was caused by the exposure to COVID-19, unless one can prove that the exposure was by reckless conduct, intentional misconduct, or willful or wanton misconduct on the part of the person or entity sued.

Coronavirus Update 9-1-2020: Vaccines — can an employer require them; should an employer require them?

There are currently more than two dozen COVID-19 vaccines in development world wide, as pharmaceutical companies race to perfect a viable vaccination to halt the ongoing pandemic. 

When (and it's a big when) one or more vaccines becomes available, can an employer require it of their employees as a condition of employment? 

Coronavirus Update 8-28-2020: New music Friday / Old 97’s, “Twelfth”

"You know that feeling when you reunite with an old friend and it feels like nothing's changed? That feeling of comfort and camaraderie is kind of what it's like listening to Old 97's." That's how Raina Douris, the host of WXPN's World Cafe, recently described my favorite band when introducing her interview with their frontman, Rhett Miller. It's as if she read my mind every time I hear an Old 97's song.

Last Friday, Old 97's released their twelfth studio album, appropriately titled, "Twelfth." I've listened to it at least that many times since it released, and it already stands among their best (which from me is very high praise).

A pisser of an invasion-of-privacy case: Ohio Supreme Court find no cause of action when employer watches an employee give a urine sample for a drug test

Is the privacy of an at-will private-sector employee invaded when a representative of the employer watches him or her give a urine sample for a workplace drug test?

Yesterday, in Lunsford v. Sterilite of Ohio, the Ohio Supreme Court answered this question in the negative.

Coronavirus Update 8-26-2020: New DOL guidance explains employers’ obligation to track compensable telework time

With more employees working from home than ever before (thanks to COVID-19), employers are facing the new reality of tracking working time for remote workers and paying for that time.

The DOL recently published a new Field Assistance Bulletin explaining the obligation of employers to pay for non-exempt employees' "working time" and the obligation of those employees to track this time. It's not a change in the law, but instead a great reminder of the obligations the FLSA imposes on employers and employees. 

Coronavirus Update 8-25-2020: This example of WFH is WTF

Alison Green, who pens the super engaging and helpful Ask A Manager blog, reached out to me to help with a reader question.

You should jump over to Alison's post to read the whole bonkers scenario, but the TL;DR is that an employee's spouse asked about the legality of an employer-installed app on her work-from-home husband's phone that audio recorded everything happening in the home (whether work related or not).

Coronavirus Update 8-21-2020: Back to school

Today is my kids' first day of school. Not virtual school. Not distanced learning. Not a hybrid model. In-person school. I just returned home from dropping them off for their respective first day of high school and middle school.

We are blessed to have the resources to send our kids to small, independent private school that is uniquely positioned to open for full-time in person learning in the midst of a pandemic. With approximately 400 students in the entire school across grades K-12, class sizes are already naturally small. With a 93-acre campus, many classes will be held outside. With no cafeteria, lunch time is greatly simplified. It's the perfect school to educate in-person while we live with COVID-19. And it has a great plan to keep my kids, the rest of the students, and its faculty and staff as healthy and safe as reasonably possible.

BLM vs. MAGA at work

Depending on your political perspective, Goodyear is either being praised or criticized after this slide from diversity training at its Topeka, Kansas, plant went viral.

BLM or LGBT messages on clothing okay; MAGA, Blue Lives Matter, All Lives Matter, or other political symbols not okay.

Coronavirus Update 8-19-2020: Government watchdog says OSHA whistleblower claims up, investigations down during pandemic

According to a report released yesterday by the Office of Inspector General, since the start of the COVID-19 pandemic, OSHA has been flooded with complaints by employees that their employers retaliated against them for making virus-related complaints. Yet, because of staffing shortages within OSHA's whistleblower protection program, the agency has been severely hampered in its ability to promptly investigate claims, resulting in significant investigatory delays.

Coronavirus Update 8-18-2020: Phishing attacks are yet another COVID-19 issue that needs to be on your radar

According to the Detroit Free Press, cybercriminals are exploiting the COVID-19 pandemic to try to access people's computers and steal their data.

The scheme? 

Coronavirus Update 8-17-2020: COVID-19 and protected concerted activity

Let's suppose you're a health care organization that terminates an employee after the employee refuses to wear a shared isolation gown and after the employee starts a group discussion with co-workers about the risks and dangers of shared gowns.

If that employee files an unfair labor practice charge with the National Labor Relations Board alleging that the termination unlawfully violate his right to engage in protected concerted activity under Section 7 of the National Labor Relations Act, do you win or lose the case?

Coronavirus Update 8-14-2020: Just call me Bob Villa

If you would have told me six months ago that I'd spend my summer building useful things out of wood, I'd have asked if you were drunk or high. But, 2020. So, after successfully conquering a dog house, my wife and I decided to tackle chairs for our new deck.

Fifteen days from now we will celebrate our 17th wedding anniversary. Colleen brought it my attention that the traditional 17th anniversary gift is furniture. Why not spend a weekend of togetherness building some?

Coronavirus Update 8-13-2020: The 7th nominee for the “worst employer of 2020” is … the no-mask mandator

Meet Billy Woods, the sheriff of Marion County, Florida. He loves youth ranches and senior services, and hates face masks.

Earlier this week, Sheriff Woods prohibited his approximately 900 employees from wearing masks or facial coverings while on duty. The Ocala StarBanner quotes the email he sent to his employees, "[W]hen you are on-duty/working as my employee and representing my Office – masks will not be worn." (His directive also includes anyone entering any of his buildings.) 

In the meantime, central Florida is among the hottest of COVID-19 hot spots, and on the same day Sheriff Woods sent his email, Marion County hit its high for the number of COVID-19 deaths in a single day.

Coronavirus Update 8-12-2020: Elevator anxiety

Has COVID-19 caused you to have elevator anxiety, as in a fear of being inside of a 7' x 5' box with other people? According to a not-quite scientific Twitter poll with over 4,000 responses, more than six in 10 workers will not use an elevator to get to their office.

POLL (a retweet would be nice):

Do you use an elevator to get to where you live?
Would you be ok with using an elevator to get to work?

(Assume ~3ft of spacing, and everybody wearing masks.)

— Felix Salmon (@felixsalmon) August 5, 2020

These results beg the question, are elevators safe despite our apparent (and in my mind perceived justified) reluctance to use them?

Coronavirus Update 8-11-2020: States should follow Illinois’ lead in making it a felony to assault an employee over a mask rule

Elmo, Big Bird, Cookie Monster … and assault? 

Sesame Place is the latest employer to have an employee assaulted for trying to enforce a mask rule. It joins more likely suspects such as Target, WalMart (which has said that for the protection of its employees it will not require them to enforce mask rules), and McDonald's (of which 44% of its employees report being physically of verbally assaulted by a non-mask-wearing customer). 

Illinois is now the first state to enact a law targeted at this abhorrent behavior.  

Coronavirus Update 8-10-2020: Indians quarantine of pitcher Zach Plesac is a teachable moment in handling irresponsible employees during this pandemic

The Cleveland Indians have sent pitcher Zach Plesac back to Cleveland from their current run of road games for breaking the team's COVID-19 protocols. 

According to Cleveland.com, MLB security personnel caught the pitcher returning to the team's hotel early Sunday morning after he had gone out with friends. The team has its own coronavirus code of conduct, which in part required Plesac to obtain permission before leaving the hotel. According to ESPN, the Indians hired a car service to return Plesac to Cleveland so that he would not share an airplane with his teammates and potentially place them at risk. The team's management has said that he will remain quarantined until he receives two negative tests.

Coronavirus Update 8-7-2020: Errata — CDC changes guidance on when someone can break COVID-19 isolation

Neil deGrasse Tyson once said, "I love being wrong because that means in that instant, I learned something new that day." Earlier this week, I learned something new.

In discussing who pays for employment-related COVID-19 tests, I noted that CDC guidelines recommend that a positive employee not return to work for either of: 1) it's been at least 10 days since symptoms first appeared; three days with improved respiratory symptoms; and three days fever free (without fever reducing medication); or 2) the receipt of two negative tests at least 24 hours apart.

As several of my readers pointed out, however, those guidelines recently changed.

Coronavirus Update 8-6-2020: Congress must pass the Save Our Stages Act #saveourstages

Today I'm taking a brief detour from the employment-law implications of COVID-19 to discuss an issue near and dear to my heart—the devastating impact COVID-19 has had on independent music venues. I am urging you to contact your Representative and Senators to implore them to pass the Save Our Stages Act. 

Coronavirus Update 8-5-2020: Who pays for employer mandated COVID-19 tests?

The inevitable has happened. One of your employees has tested positive for COVID-19. You do what you're supposed to do. You clean and sanitize your workplace. You communicate with your other employees to let them know that you've had someone test positive. You reinforce all of your coronavirus safety rules, protocols, and procedures. And you require the COVID-positive employee to isolate and not return to work per CDC guidelines.

Those guidelines recommend that a positive employee not return to work for either of: 1) being three days fever-free, respiratory symptoms have improved, and it's been at least 10 days since symptoms first appeared; or 2) the receipt of two negative tests at least 24 hours apart. You opt for the latter, believing that negative tests will provide you and your employees better confidence that COVID-19 will not reenter your workplace when that employee returns.

Who pays for these coronavirus tests?

We have several of federal statutes, old and new, that guide the answer.

Coronavirus Update 8-4-2020: NY federal judge invalidates key parts of FFCRA regulations

Yesterday, a New York federal judge issued an order invalidating several key aspects of the Department of Labor's regulations interpreting the paid sick leave and expanded FMLA provisions of the Families First Coronavirus Response Act.

Judge J. Paul Oetken of the United States District Court for the Southern District of New York found that the DOL exceeded its authority in enacting each of the following of the DOL's regulatory interpretations of the FFCRA:

Coronavirus Update 8-3-2020: How have employers responded to COVID-19?

A recent survey of businesses reveals a variety of trends about COVID-19 in the workplace.

• Nearly 6 out of every 10 employers has had an employee test positive for COVID-19 (double the number from April).


• 92 percent require on-site employees to wear masks in common areas and mandate physical distancing.

Coronavirus Update 7-31-2020: 41,214 reasons not to fire employees who request FFCRA leave

A San Jose, California, manufacturer has reached an agreement with the Department of Labor's Wage & Hour Division to pay 17 employees $41,214 for wrongly denying their requests for paid coronavirus sick leave under the Families First Coronavirus Response Act. Specifically (and much worse than that description sounds), the employer terminated each of the 17 employees after they requested paid leave under the FFCRA. 

According to the DOL, "The employer's action resulted in a violation of the FFCRA."

No kidding!