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!

Coronavirus Update 7-30-2020: Ohio needs to fix its unemployment system, 𝗻𝗼𝘄

The State of Ohio has temporarily frozen its Pandemic Unemployment Assistance benefits, as the Ohio Department of Jobs & Family Services investigates what it believes are more than 275,000 fraudulent claims that have flooded the system.

The CARES Act created Pandemic Unemployment Assistance (PUA) for individuals who are self-employed, seeking part-time employment, or who otherwise would not qualify for regular unemployment benefits because of a coronavirus related reason. 

Coronavirus Update 7-29-2020: SAFE TO WORK Act would offer employers a significant shield from employee COVID-19 lawsuits

Earlier this week, Senate Republican introduced their $1 trillion COVID-19 economic stimulus package. Among other proposals the bill contains the SAFE TO WORK Act [pdf], which would provide employers a significant shield from liability for lawsuits related to coronavirus exposure by requiring gross negligence or willful misconduct that actually causes a personal injury before liability could attach. 

Employers would receive significant protections from employment-related COVID-19 lawsuits brought by employees. 

Coronavirus Update 7-28-2020: Do you know what to do when an employee tests positive?

Yesterday, the Miami Marlins announced that 14 members of its organization—12 players and two coaches—have tested positive for coronavirus. Most appallingly, however, is a report that the team decided via text message to play its scheduled Sunday game in Philadelphia despite the rash of positive tests. Ignoring the irresponsible selfishness of that decision, it also almost certainly violates Major League Baseball's 100-plus page COVID-19 operations manual, which instructs teams how to handle a positive test. I can guarantee that "tell no one; play your game anyway" is not the recommended best practice.

Other than, "Don't do what the Marlins did," what can we learn from this fiasco in how to handle a positive test among your workforce?

Coronavirus Update 7-27-2020: If your employee treats COVID-19 like a hoax

At the always fabulous Ask a Manager, Alison Green posts the following question:

One of my employees has been vocal about the coronavirus being a hoax. I had to have a talk with him during our last few days in the office at the end of March because he was openly criticizing and mocking coworkers for "being afraid of the flu" and practicing social distancing. While the rest of us isolated and worked at home, he went on two different vacations out of the state and did not isolate upon returning as required.

We're now phasing people back into the office, and he believes that all of the safety guidelines are violating his freedom. He still won't practice social distancing without being told, he will not wear a mask without being told, and he even planned another vacation when the company has asked us not to travel except in the case of emergencies. … 

I am at an absolute loss regarding how to get this employee to take these safety precautions seriously when he still sees the coronavirus as a political issue instead of a public health issue. I am very worried that he will bring the virus into the office and get others sick. Do you have any advice for handling this employee and protecting the rest of my staff?

Coronavirus Update 7-24-2020: New music Friday … live from the Rock Hall

In-person live music has been in short supply over the past four months. Like many, I’ve missed it very, very much. Last Sunday, however, I got to experience live music for an hour, on the plaza in front of the Rock & Roll Hall of Fame. 

School of Rock's Junior House Band (in which Norah has played for the past five years, and which will come to end for her after this summer as she ages out) played a stripped-down and socially distant acoustic set of some of their covers. School of Rock also opened the gig to members of the band who wanted the opportunity to play their original music. Needless to say, Norah jumped at the chance to debut not one, not two, but three of her original songs: "Boys Like You," "Tone Deaf Explanations," and "Pas de Pluie, Pas de Fleurs" (written and sung in French). 

If you're going to debut your original music, it might as well be at the Rock & Roll Hall of Fame. Enjoy! I know we did. 

Everyone have a healthy, safe, socially distant, and masked weekend.

Coronavirus Update 7-23-2020: The FFCRA implications of schools reopening

With schools set to reopen over the next four to six weeks, your employees will be asking for time off from work if their children will be distancing learning for any part of the upcoming school year. The FFCRA provides for up to 80 hours of paid sick leave and 12 weeks of expanded FMLA Leave (the latter 10 of which are paid) for employees who are caring for their child(ren) whose school has been closed because of COVID-19 precautions.

The question of whether employees are entitled to take leave under the FFCRA for children who are distance learning this school year will depend on why they are distancing learning this year.

Coronavirus Update 7-22-2020: Telemedicine and the FMLA

Earlier this week, the Department of Labor published a three new sets of FAQs—COVID-19 and the FLSA, COVID-19 and the FMLA, and updated FAQs on the FFCRA.

By and large the FAQs don't break new ground. But one of the FMLA questions caught my attention.

Non-Coronavirus Update 7-21-2020: Employment law issues I missed covering during the pandemic

Today, I thought I put COVID-19 on a virtual pause and take a look at some employment law issues I missed covering over the past couple of months. Here are 10 stories that jumped to mind.