Thursday, June 18, 2020

Coronavirus Update 6–18–2020: Errata—employers cannot require antibody tests of employees, says EEOC


Two months ago I suggested that the EEOC would conclude that employers could require COVID-19 antibody tests as a condition of employment. Yesterday, based on updated guidance from the CDC, the EEOC said the exact opposite. Given the inherent unreliability of COVID-19 antibody tests, I'm happy to have been wrong.

Wednesday, June 17, 2020

Does Title VII protect employees whose spouses are pregnant?


A male Disney employee has filed suit against his former employer, claiming that Disney unlawfully discriminated against him because of his wife's pregnancy. 

According to Steven Van Soeren's complaint, Disney fired him after he took two weeks of paternity leave following the birth of his child, and after supervisors advised him during his wife's pregnancy on the wisdom of having a child. (As an aside, Van Soeren claims that his supervisors learned of the pregnancy by hacking his computer.)

Tuesday, June 16, 2020

Everything you need to know about Bostock v. Clayton County—the #SCOTUS LGBTQ discrimination decision—in five quotes


June is Pride Month. If you thought the month's biggest LGBTQ news was Nickelodeon tweeting that SpongeBob was part of the LGBTQ+ community, you have another thing coming. Yesterday, in Bostock v. Clayton County, the United States Supreme Court clearly, decisively, and unequivocally held:
 
An employer who fires an individual merely for being gay or transgender violates Title VII.

The Bostock majority opinion is 33 pages long. I'll break it down for you in five key quotes.

Monday, June 15, 2020

BREAKING NEWS: U.S. Supreme Court holds that Title VII protects LGBTQ employees 🏳️‍🌈


In a landmark ruling issued this morning, the U.S. Supreme Court held that Title VII's prohibition against sex discrimination also prohibits employers from discriminating against LGBTQ employees. The 6-3 decision majority included conservative Justice Neil Gorsuch (who authored the opinion) and Chief Justice John Roberts joining the Court's four liberal justices.

I'll have my full analysis on this case tomorrow. Suffice it to say that June 15 is a historic day for civil rights.

Coronavirus Update 6–15–2020: COVID-19 is not an excuse for age discrimination


Consider these headlines:


While there's still a lot we don't know about COVID-19, one of the things we do know for sure is that is much more greatly impacts people age 65 and above

Friday, June 12, 2020

Coronavirus Update 6–12–2020: sanctimony (and masks) #MaskingForAFriend


Yesterday, I asked a simple question: Do you voluntarily wear a mask or other facial covering when out in public? Thank you to the hundreds upon hundreds who responded. Here are the results:

  • Yes, always: 23.6%
  • Yes, except when I’m socially distant from others outdoors: 48.8%
  • Yes, but only when indoors: 18.6%
  • No, never: 8.9%

Thursday, June 11, 2020

Coronavirus Update 6–11–2020: OSHA issues guidance on cloth face coverings at work


I continue to struggle with comprehending how masks and facial coverings became one of the key coronavirus issues that's divided our nation. Click here for the latest actual science on the issue of whether masks help stop the spread of COVID-19. (TL;DR: they most certainly do.)

OSHA has now waded into the mix by issuing a list of Frequently Asked Questions on cloth face coverings.

The highlights? 

Wednesday, June 10, 2020

Coronavirus Update 6–10–2020: President Trump signs Paycheck Protection Program Flexibility Act of 2020, extending PPP loan forgiveness


The Paycheck Protection Program Flexibility Act of 2020, which President Trump signed into law on June 5, makes several key business-friendly changes to the small business loans made under the CARES Act's Paycheck Protection Program.

Tuesday, June 9, 2020

Coronavirus Update 6–9–2020: Northeast Ohio restaurants sue to block reopening guidelines


What is a state's ability to regulate businesses during a pandemic? This question is one that will be answered in a lawsuit filed yesterday by eight local restaurants against Ohio Director of Health Dr. Amy Acton. The lawsuit claims that Ohio's reopening rules and guidelines for restaurants are unconstitutional, vague, and could subject them to liability from patrons if not strictly followed.

Not to do the Attorney General's job for him, but let me offer a quick rebuttal to each of these arguments.

Monday, June 8, 2020

Coronavirus Update 6–8–2020: “I was terminated for refusing to wear a ‘Trump 2020’ face mask."


Ohio requires that all employees wear face masks or other face coverings as a condition to any business reopening that (subject to a few limited exceptions). The only rules are that the mask cover the employee's nose, mouth, and chin. There are no other requirements about the nature of the mask or face covering, including its design or style.

One southern Ohio business, The Village Inn restaurant in Farmersville, is testing the mask-requirement waters by requiring its employees to wear "Trump 2020" masks.


Worse, it's firing employee who refuse. 

Friday, June 5, 2020

Coronavirus Update 6–5–2020: Cleveland is not the “butthole of the world"


Earlier this week, Frank Jackson, Cleveland's four-term mayor, said that "Cleveland's perceived to be the butthole of the world." (You can watch here.)

The Mayor certainly isn't going win any civic promotional awards for his comment. In an effort to prove that Cleveland isn't the "butthole of the world," let me offer 10 reasons why I love Cleveland, my home town for the past 26 years.

Thursday, June 4, 2020

Coronavirus Update 6–4–2020: Can you force employees who participate in George Floyd protests to quarantine without pay?


Yesterday I discussed the legalities of placing on an unpaid leave of absence employees who engaging in leisure mass gatherings outside of work.

What about employees who you discover gathered in mass to protest George Floyd's murder and racial injustice? There are legitimate concerns that the mass protests taking place in cities around the country will cause an acceleration of COVID-19 spread and a spike in cases. Can you place protesting employees on an unpaid leave of absence to quarantine before they return to work?

The TL;DR answer is "yes." 

Wednesday, June 3, 2020

Coronavirus Update 6–3–2020: Do “Lake of the Ozarks” employees sent home from work qualify for paid sick leave under the FFCRA?


Last week I discussed how to handle employees who are not social distancing outside of work. My thoughts were spurred by videos of employees partying over the Memorial Day weekend at Lake of the Ozarks and elsewhere around the country.

I said the following: 

I would also place any employee who violated social distancing rules outside of work (whether the information is volunteered on a self-assessment or discovered through a viral video) on a mandatory two-week unpaid leave of absence and require a quarantine as a condition of continued employment.

It looks like I might have a reader in Lincoln County, Missouri. 

According to KSDK, employers are mandating unpaid leaves of absence and quarantines for employees who spent their holiday weekend amid the throngs at Lake of the Ozarks, The story also quotes an attorney who says that placing an employee on an unpaid leave of absence, under those circumstances, might violate the FFCRA's requirements for paid sick leave for an employee "advised by a health care provider to self-quarantine due to concerns related to COVID-19."

I completely disagree, and the Department of Labor has my back.

Take a look at Question 77 to the DOL's FFCRA Questions and Answers:

May I take paid sick leave or expanded family and medical leave under the FFCRA if I am on an employer-approved leave of absence?

It depends on whether your leave of absence is voluntary or mandatory. If your leave of absence is voluntary, you may end your leave of absence and begin taking paid sick leave or expanded family and medical leave under the FFCRA if a qualifying reason prevents you from being able to work (or telework). However, you may not take paid sick leave or expanded family and medical leave under the FFCRA if your leave of absence is mandatory. This is because it is the mandatory leave of absence—and not a qualifying reason for leave—that prevents you from being able to work (or telework).

In other words, if an employee's leave of absence is the employer's choice, as is the case in the Lake of Ozarks example, then the employee does not qualify for FFCRA paid sick leave, because it's not a COVID-19 medical recommendation or quarantine that's preventing the employee from working but the leave of absence. It's no different from a furlough, for which employees also do not qualify for FFCRA paid leave. As long as you place an employee on leave before they tell you they've been advised by a health care provider to self-quarantine because of COVID-19 concerns, you shouldn't have to worry about paying the employee for that leave under the FFCRA.

* Photo by Shane on Unsplash
 

Tuesday, June 2, 2020

Coronavirus Update 6–2–2020: Justice Department indicts employee for COVID-19 workplace fraud


In mid-April the FBI warned employers to be on the lookout for fake COVID-19 diagnoses, doctors' notes, and other coronavirus-related documents from employees. The Justice Department has now indicted the first employee for committing this new breed of fraud.


Monday, June 1, 2020

I am at a loss for words…


I cannot ignore the appalling tragedies we experienced over the past week, first through the murder of George Floyd, and then through the riots and destruction left in its wake. 

Yet, I cannot find the words.

So, I'll simply share those of the two greatest civil rights leaders our world has ever know.

Martin Luther King, Jr.: "Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that."
And Nelson Mandela: "No one is born hating another person because of the color of his skin, or his background, or his religion. People must learn to hate, and if they can learn to hate, they can be taught to love, for love comes more naturally to the human heart than its opposite."

And leave you with a song.
 

☮️ ❤️ & 🙏

Friday, May 29, 2020

Coronavirus Update 5-29-2020: Friday olio — an A+ set of reopening guidelines, a webinar, and a playlist


A few shares for your Friday. 

First, on Wednesday the CDC published sweeping recommendations for reopening office buildings. According to the CDC, employers should, among other COVID-19 changes, take employee temperatures and check their symptoms upon arrival, space desks six feet apart or install shields between them, bar seating in common areas, and mandate face coverings. The CDC is also recommending updates to HVAC systems and abolishing communal perks like coffee pots and bulk snacks. 

Thursday, May 28, 2020

Coronavirus Update 5-28-2020: Is your business ready for the COVID-19 golden age of union organizing?


Among the many lessons we will learn from the COVID-19 pandemic is its demonstration of the importance of union membership for essential workers.

Of all the injustices exposed by the pandemic, the risks faced by non-union workers have become the most apparent. Non-union workers are being asked to risk their safety with little or no protections of their own.
Gary Perinar (executive secretary-treasurer of the Chicago Regional Council of Carpenters), The importance of unions is more obvious than ever during the COVID-19 pandemic, Chicago Sun-Times, Apr. 30, 2020

One of the unexpected byproducts of the COVID-19 pandemic is a corresponding rise in union organizing. This crisis has magnified attention on key labor union agenda items and talking points such as worker safety and higher pay. Unions have not been shy about pressing these issues not only for current members but also more importantly for potential members.

Wednesday, May 27, 2020

Coronavirus Update 5-27-2020: Is McDonald’s really a public nuisance?


As I've written in the past, it's difficult bordering on impossible for an employee to sue their employer based on an alleged COVID-19 exposure at the business. First, they have to overcome the issue of workers' comp exclusivity. And if they can manage to clear that, they still have the causation problem of proving that the exposure of this highly transmittable virus happened at work (as opposed to anywhere else in the world). 

There's nothing like a pandemic, however, to spark the creativity of lawyers. Workers and their families have filed a class-action lawsuit against McDonald's Corporation seeking to have the fast-food conglomerate's alleged failure to comply with health guidance and provide PPE declared a public nuisance.

Tuesday, May 26, 2020

Coronavirus Update 5-26-2020: When an employee isn’t social distancing outside of work


How did you spend your Memorial Day weekend? Mine was way more mundane than years past. I watched my nephew receive his high school diploma and pre-record his valedictory address in an individual, family-only ceremony. We walked the dogs a bunch. We went to Lowes, masks on faces (the first store in which I've been inside other than a grocery store in over two months). I BBQed for my wife and kids. 

Other people chose less COVID-appropriate holiday weekend activities.


Scenes like this one were repeated all over the country. Will you be surprised when COVID-19 cells spring up in two weeks linked to these mass gatherings? Because they will, and I won't be.

Here's my question. What do you do if you see one of your employees in one of these social-gathering viral videos? Do you welcome him or her back into the workplace today with open arms? 

Friday, May 22, 2020

Coronavirus Update 5-22-2020: We really don’t want our employees being “Tisons"


Social media is congratulating Tison, a Costco employee who turned away an angry customer who refused to wear a mask, a condition required by Costco to shop in its stores.