WIRTW #572 (the “what did I miss” edition)

Did I miss anything big while I was away earlier this week?

• Argument analysis: Justices divided on federal protections for LGBT employees  — via SCOTUSBlog
• The Law is the Basement — via Kate Bischoff’s tHRive Law & Consulting Blog
• SCOTUS Oral Argument Recap: Is Justice Gorsuch the swing vote on LGBT workplace rights? — via Eric Meyer’s The Employer Handbook Blog
• Trump Appointee Gorsuch Plays Coy In LGBTQ Employment Rights Case — via NPR
• Justice Gorsuch emerges as an unlikely swing vote in the LGBTQ discrimination cases — via Vox
• The Supreme Court asks whether Title VII protects LGBT workers — via The Economist’s Democracy in America blog

In other news, I recently authored an article for Gusto discussing what AB5 (California’s recent law on independent contractor classification) means for small businesses operating in that state (including some practical tips for all employers dealing with contractor classification issues). You can access the article here.

Here’s what else I read this week:

A little kindness goes a LONG way

Earlier this week I was in Philadelphia with my family for my son’s cardiac procedure. During our visit, we stayed at the Sonesta Philadelphia (because I’m a hotel snob and it was the only non-big-chain hotel that offered a special rate for the families of CHOP patients).

At check-in, the desk clerk, Rachel, asked what brought us to Philly. “Nothing great,” I reported. “My son is having a heart procedure on Tuesday.” “So sorry to hear,” she responded. “Please let me know if we can do anything to make your stay more comfortable.”

WIRTW #571 (the “thoughts and prayers” edition)

I’ll be offline next week, as my family will be in Philadelphia for my son’s heart procedure.

Donovan was born with pulmonary valve stenosis, and on Tuesday he’s having a balloon dilation via cardiac catheterization to (hopefully) fix it.

While everyone likes to tell us it’s a routine procedure, we’ve learned with Donovan over the years that because of his genetic disorder anything medical is rarely simple. Moreover, if it doesn’t work, he’s almost certainly looking at open heart surgery in his future to replace the valve.

Thus, we are traveling to Children’s Hospital of Philadelphia (with a small detour first to New York City to take D-man to the Nintendo Store; he told me I better have a lot of room on my credit card) with hopeful thoughts and very anxious anticipation.

We’re taking all good vibes and prayers you have to send Donovan’s way.

I’ll post an update next week after his procedure.

Here’s what I read this week.

If at first you don’t succeed … Ohio will again try to fix its broken employment discrimination law

For lack of more artful description, Ohio’s employment discrimination law is an awful mess.

Among other problems, it exposes employers to claims for six(!) years; contains no less than four different ways for employees to file age discrimination claims (each with different remedies and filing deadlines); renders managers and supervisors personally liable for statutory discrimination; omits any filing prerequisites with the state’s civil rights agency; and contains no affirmative defenses for an employer’s good faith efforts to stop workplace harassment.

There have been several prior attempts to fix this law and harmonize it with its federal counterparts. All have died on the legislative vine.

Welcome House Bill 352 [pdf], introduced on October 1. It’s yet another business-friendly attempt at comprehensive reform of Ohio’s employment discrimination statute.

The 15th nominee for the “worst employer of 2019” is … the disability demoter

An employee tells you he might need to leave work on a moment’s notice to rush home to care for his disabled daughter (born with a severe neurological disorder, Rett Syndrome, which affects the ability to speak, walk, breathe, and eat, among other things).

Do you?

Why are so many employers discriminating against lactating moms?

Women were told to pump in their manager’s office or a meeting room without locks, where they were walked in on repeatedly. Many had to pump in view of security cameras. In two separate cases, restaurant workers were instructed to pump behind the bread racks, leaving them partly visible to colleagues and customers. 

Those who do find an appropriate space often don’t receive the time they need to fully empty their breasts. A McDonald’s worker was yelled at and ordered to return to work before she was done pumping. A Family Dollar worker asked for more time to pump and got demoted to part-time. A spa employee was required to sign a piece of paper agreeing that she wouldn’t take any more breaks. Her inability to pump caused her to leak milk from her breasts while she worked.

These are just a few of the stories of discrimination against lactating moms the Huffington Post recently shared. These employers are likely violating both Title VII (which would prohibit employers from denying breaks to these moms while granting breaks to others), and the Affordable Care Act (which specifically requires employers to provide lactation breaks).

Are hangovers the next frontier of your FMLA headaches?

A German court recently ruled that a hangover qualifies as an “illness.”

Which got me thinking … are hangovers the next frontier of your FMLA headaches?

Thankfully, the answer to this question is almost certainly “no.”

But it’s worth reviewing the FMLA’s definition of “serious health condition” to see how I reach that conclusion.