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.