Do you know? H1N1 and employees’ leave rights

The Department of Labor has published two guides for employers trying to navigate H1N1 and employees’ leave and pay rights (both PDFs):

• Pandemic Flu and the Family and Medical Leave Act: Questions and Answers
• Pandemic Flu and the Fair Labor Standards Act: Questions and Answers

Neither presents earth-shattering legal information. Having said that, the Department of Labor has done a nice job compiling useful tips for employers to turn to when an employee misses work because of the H1N1. Some of the more interesting nuggets are as follows:

FMLA

• The Department of Labor urges employees who themselves have H1N1, or who have family members with H1N1, to stay home. However, the DOL takes no position on whether H1N1 is covered under the FMLA as a “serious health condition.” Employers, though, are “encouraged to support these and other community mitigation strategies and should consider flexible leave policies for their employees.”
• The FMLA does not cover leave taken by an employee to avoid exposure to the flu.
• If an employee’s child’s school is closed, the FMLA does not require leave to care for a healthy child at home.
• Federal law does not require employers to provide paid leave to employees who are absent from work because they are sick with pandemic flu, have been exposed to someone with the flu, or are caring for someone with the flu.
• An employer may require an employee who is out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work, potentially subject to limits in the FMLA and ADA.

FLSA

• If a business temporarily closes because of H1N1, that employer is not obligated to pay non-exempt employees for any hours they do not work.
• An employer can require that an employee perform work outside of the employee’s job description to cover for an absent employee.
• An employer may encourage or require employees to telework (work from an alternative location such as home) as an infection control strategy. Employers do not have to pay the same wage for telework, unless required to do so by a collective bargaining agreement or other contract.
• Employers are not required to cover additional costs that employees may incur if they work from home (DSL line, computer, additional phone line, increased use of electricity, etc.)?

For more on H1N1 preparedness, I recommend the following earlier posts:

• Do you know? Handling employees with suspected swine flu
• Can employers require flu shots for their employees?
• EEOC chimes in on swine flu with guides on how to prepare and remain Title VII/ADA compliant

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

What to look for in an employment lawyer

I presented last week at a marketing group I recently joined. In briefly speaking about who I am and what I do, it got me thinking about what companies should look for when hiring employment counsel. Here are my thoughts.

1. Experience and knowledge in the area. When you need to terminate an employee, or when an employee lodges a harassment complaint, you want to be able to pick up the phone and receive immediate advice about how to handle the situation. You don’t want your employment attorney to tell you that he or she will have to look into the situation and get back to you in a week with an answer. Employment law complex, ever-changing, and difficult to dabble in. An investment in someone who knows the area is one of the the most important HR decisions you can make for your business.

2. Willingness to get to know your business. There are legal decisions and business decisions, and the latter will always influence the former. Your counsel cannot provide sound legal advice without putting in the time and effort to know your business and its operations.

3. Proactive, not reactive. There is nothing businesses like less than spending money on lawyers. Having said that, employers are often better off spending a few thousand dollars spotting issues before they become problems than spending many hundreds of thousands of dollars fixing problems later. Your lawyer should be counseling you in this direction.

4. Demonstrated track record of trying employment cases. The best way to get a fair result out of a case is to have a lawyer who has actually tried employment cases. Litigation often devolves into a high stakes game of chicken. If your attorney is not comfortable in front of a jury, it becomes increasingly difficult not to blink first.

WIRTW #104

This week’s review starts with a bunch of recent reports and statistics that shed some light on employment practices:

• Paul Secunda, at the Workplace Prof Blog, discusses a recent General Accounting Office study that “many employers do not report workplace injuries and illnesses for fear of increasing their workers’ compensation costs or hurting their chances of winning contracts.”

• The Washington DC Employment Law Update, on the EEOC’s Performance and Accountability Report FY 2009 [PDF]. What’s more interesting to me than the fact that the EEOC had its 2nd busiest year ever, is that it currently has a backlog of 85,768 pending charges. That number explains why you’re still waiting for a determination 6 or 9 months after you’ve submitted your position statement.

• Mark Toth’s Manpower Employment Blawg shares the latest jury verdict research in employment cases. 2 key stats – employers have the lowest win rate in discrimination cases in a decade (39%), and the median settlement amount jumped 20% last year, to $90,000.

David Yamada’s Minding the Workplace shares his most recent research on workplace bullying. Meanwhile, Joel Stashenko, writing at the New York Law Journal, shares a recent New York State case concerning a workplace bullying club.

H1N1 continues to dominate the headlines. Bill Allen, at the Washington Labor & Employment Wire, digests some recently introduced paid sick leave legislation that is intended to help employees cope with H1N1, and Steve Bruce, at the BLR HR Daily Advisor, thinks that the ADA will limit some of the questions you can ask employees about their current health (including whether they have the swine flu).

This week also brings a couple of really good posts on social media: Molly DiBianca, at the Delaware Employment Law Blog, shares her recent presentation on social media and hiring, and Stephanie Thomas cautions that using social networking sites for recruiting could lead to disparate impact discrimination claims because of the demographics of their typical user.

In other background check news, FYIscreening.com comments on the legality of DNA tests for hiring decisions (using DNA for any employment decision is now illegal), and Nolo’s Employment Law Blog discusses whether bankruptcy is a permissible factor in a hiring decision.

In other news about genetic testing, the FMLA Blog has an excellent summary of the impact of the Genetic Information Nondiscrimination Act on FMLA medical certifications.

The EFCA Report has a very thoughtful take on the constitutionality of the proposed Employee Free Choice Act.

Michael Maslanka’s Work Matters, on the propriety of zero tolerance work rules.

Christopher McKinney’s HR Lawyer’s Blog, on employment decisions based on conduct outside of the workplace.

Sindy Warren, at the Warren & Hays Blog, on family responsibility discrimination.

Melanie McClure, at Arkansas Employment Law, on pregnancy as a disability under the recently amended ADA.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

OSHA offers Black Friday guidance for retailers

Planning to hit next week’s Black Friday sales? Hoping to avoid being trampled like a Pamplona encierro? Luckily for you, our Department of Labor has come to your rescue. OSHA has release a fact sheet on Crowd Control Safety Tips For Retailers [PDF]. According to the Fact Sheet:

OSHA has prepared these guidelines to help employers and store owners avoid injuries during the holiday shopping season, or other events where large crowds may gather.

OSHA’s tips include:

• Having trained security personnel or police officers on site.
• Setting up barricades or rope lines for pedestrians and crowd control well in advance of customers arriving at the store.
• Making sure that barricades are set up so that the customers’ line does not start right at the entrance of the store.
• Preparing an emergency plan that addresses potential dangers.
• Having security personnel or customer service representatives explain approach and entrance procedures to the arriving public.
• Not allowing additional customers to enter the store when it reaches its maximum occupancy level and not blocking or locking exit doors.

Hopefully management of the store you’re visiting for that $99 HDTV looks at OSHA’s website. Happy and safe shopping.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

GINA takes effect Saturday, November 21

Next week, we will all gather around the dining room table and share what we are thankful for. Next week also brings employers something that they may not be thankful for – a new employment law to comply with. The Genetic Information Nondiscrimination Act, which President Bush signed into law 18 long months ago, finally takes effect Saturday, November 21. Let’s take a quick look at what GINA means for businesses with 15 or more employees (its coverage limit).

• GINA adds “genetic information” to the list of classes of employees protected by the federal employment discrimination laws.

• “Genetic information” is broadly defined to cover information about an employee’s genetic tests, the genetic tests of an employee’s family members, and the manifestation of a disease or disorder in an employee’s family members.

• Drug and alcohol tests are not considered covered “genetic tests.”

• GINA makes it unlawful for an employer to make an employment-related decision with respect to an employee because of genetic information.

• GINA also makes its generally illegal for an employer to request, require, or purchase genetic information about an employee or an employee’s family member. Key exceptions include inadvertently obtained genetic information, qualifying health or genetic services such as voluntary wellness programs, FMLA medical certifications, and commercially and publicly available documents. Practically, this means that employers can no longer ask employees for family medical histories.

• If an employer obtains genetic information about an employee, it must maintain the information on separate forms and in separate medical files and threat it as a confidential medical record of the employee, similar to the treatment of other medical information under the ADA.

• An employer is only permitted to disclose genetic information upon a specific written request, in response to a court order, to comply with the FMLA’s certification procedures, or other very limited circumstances.

• Employees have the same rights and remedies for alleged violations of GINA as they do for alleged violations of Title VII.

GINA is the most expansive employment discrimination law to take effect in the last 20 years. For more information, I recommend the EEOC’s informational page on GINA (which includes links to the statute and its proposed regulations), and Steven Greenhouse’s article from the November 15 New York Times.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Reliance on DOL opinions

Do you know that it is an absolute defense to a wage and hour claim that you relied on a written opinion of the Department of Labor in making your minimum wage or overtime payments? According to 29 U.S.C. 259:

[N]o employer shall be subject to any liability or punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation if he pleads and proves that the act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation, of the [Department of Labor].

The Department of Labor may not be the most friendly place for employers rights now (see Wage & Hour: Not Just Collective Actions Anymore), but its website is a wealth of wage and hour information for employers. It lists more than 200 formal opinion letters that provide a step-by-step guide on how to comply with the FLSA. And, if you rely on one of those letters in paying an employee, you have a defense to a minimum wage or overtime lawsuit.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Smoking as a disability redux

It takes a big man to admit when he’s wrong. I’m about to be a big man.

A little over a year ago I engaged in a debate with Michael Moore of the Pennsylvania Labor & Employment Blog about whether the ADA Amendments Act would protect nicotine addiction as a disability. At the time, I wrote as follows:

Whether or not something is a disability with or without remedial measures, however, is only one step in the analysis. The next step is to determine whether that disability “materially restricts” (using the language of the ADAAA) a major life activity. What major life activity does smoking or nicotine addiction materially restrict? Breathing? Maybe, but only if one’s lungs are compromised from years of smoking. At that point, a bronchial disease might qualify as a disability, but how will allowing employees to smoke reasonably accommodate that disability? If anything, an employer’s anti-smoking initiatives present a better accommodation for an employee’s breathing problems.

After reviewing the proposed regulations implementing the ADAAA, I have changed my opinion. I now believe that the ADA can protect an employee’s nicotine addiction, but for different reasons than I previously discussed.

The ADA does not just protect employees’ disabilities, but also protects employees who are “regarded as” having a physical or mental impairment. Critically, an employee is now protected under the “regarded as” prong regardless of whether or not the impairment limits or is perceived to limit a major life activity, and regardless of whether the employer believes the individual was substantially limited in any major life activity. The coverage of this protection is extremely broad. The only exception to the “regarded as” prong is when the impairment is transitory (lasting or expected to last for six months or less) and minor. Examples of such uncovered impairments include a sprained wrist, a broken limb that is expected to heal, the common cold, and the seasonal flu. Employers do not have to make reasonable accommodations for “regarded as” disabilities, but are still prohibited from taking adverse actions because of them.

At the ABA Labor & Employment Conference last week, I had the opportunity to ask Peggy Mastroianni, EEOC Associate Legal Counsel and author of the ADAAA’s proposed regulations, if the EEOC has a position on the coverage of smoking under the ADA. Her answer was that there is no formal EEOC position. The EEOC’s silence notwithstanding, the “regarded as” prong of the new ADA is sufficiently broad to possibly encompass actions taken against employees pursuant to employer anti-smoking policies.

What does all of this mean for employers? Employees can claim that anti-smoking policies violate the ADA. Addiction is a protected disability. Diseases related to or caused by smoking (cancers, lung diseases, asthma, and other respiratory conditions, for example) are also protected disabilities. Employees will claim that an adverse action taken pursuant to an anti-smoking policy is being taken because the employer regards the employee as disabled. Adverse actions taken against employees because of smoking should now be viewed as high risk, at least until courts begin weighing in on this controversial issue.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.