Tag: Coronavirus

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We are in the midst of a public mental health crisis; how employers can help

employers mental health; Millennials and mental health

Consider these statistics, courtesy of the National Institute of Mental Health, which recently examined mental health issues one year into the COVID-19 pandemic:

  • 31 percent of people report symptoms of anxiety or depression​.
  • 13 percent report having started or increased substance use​.
  • 26 percent report stress-related symptoms​.
  • 11 percent report having serious thoughts of suicide in the past 30 days​.
These grim numbers tell me that COVID-19 has created a national mental health crisis. At least some of your employees are struggling. Your challenge is what to do about it.
Here are four suggestions.
1. Check the benefits available to your employees. Do you have an employee assistance plan and are its mental health and counseling services are up to date? Are your health insurance plan’s mental health benefits easy to access and affordable? Do your employees know about state-offered resources, such as Ohio’s CareLine, a 24/7 community administered emotional support call service (800-720-9616)?
2. Revisit paid time off policies and consider providing employees the time they need to take care of themselves and their families. And understand that everyone’s situation at home is different. Some only have themselves to worry about, while others have families, older parents, etc. None of this is ideal, but for some, it’s less ideal than for others, depending on how much non-work responsibilities are on one’s plate.
3. Consider holding town halls or all-employee meetings that focus on mental health awareness. If senior leadership encourages education and communication around mental health issues, your employees will be more likely to access care if and when they need it. Leadership always starts from the top, and it’s vital that leadership leads on this issue.
4. Small gestures of kindness can go a long way. An extra day paid day off, a gift certificate for takeout meals or grocery deliveries or a surprise delivery of a mid-day snack can help employees feel appreciated and connected instead of overwhelmed and stressed.
Also, do not forget about or ignore your ADA obligations. The statute covers mental impairments no differently than physical impairments. If an employee is suffering from a mental illness you have an affirmative obligation to reasonably accommodate that employee, which might involve, for example, unpaid time off for the employee to obtain needed treatment.
Finally, do not ignore these issues or your employees who are living with them. Mental health illnesses are no different than other illnesses from which we suffer.
Treating them differently only increases the stigma that surrounds them and pushes individuals deeper into their illnesses and further away from the treatment they need.

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How much does it cost an employer for not following COVID-19 safety rules?

construction, mask, mobile technology, COVID-19

OSHA has cited a Missouri auto parts manufacturer for failing to implement and enforce coronavirus protections, which ultimately lead to an employee’s death. The details, from OSHA’s news release.

Two machine operators … who jointly operated a press tested positive for the coronavirus just two days apart, in late August 2020. The two workers typically labored for hours at a time less than two feet apart; neither wore a protective facial mask consistently. Ten days later, two more workers operating similar presses together tested positive. On Sept. 19, 2020, one of the press operators fell victim to the virus and died.

The total penalty was $15,604. For someone who died during a global pandemic because of his employer’s irresponsibility.

Since the pandemic started, OSHA has issued citations arising from more than 300 inspections for violations relating to coronavirus. The average penalty is $13,101.27.

While I understand that OSHA lacks a specific standard covering most COVID-19 issues, these numbers seem awfully low. Look, I’ll be the first one to tell you that more government regulation and control is a bad thing.

But, if employers aren’t motivated by the carrot to take COVID-19 seriously (that being, having a healthy and safe workplace with employees who believe you care about their welfare), then perhaps they need the stick. Some $13,000, or $15,600 when someone dies, however, seems like a pretty small stick.

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The COVID-19 vaccine and race discrimination

employment law

One issue the EEOC omitted from its technical guidance on the COVID-19 vaccine is the issue of race discrimination.

According to one recent study, 57% of African Americans say that they definitely or probably will not get the COVID-19 vaccine. Many point to their distrust of the federal government fueled by decades of medical studies on Black people, including the Tuskegee Experiment, which left hundreds of Black men untreated for syphilis between 1932 and 1972.
If you are going to adopt a mandatory vaccination policy for your workplace (which the EEOC says you can do, subject to reasonable accommodation exceptions under the ADA for medical issues and Title VII for sincerely held religious beliefs or observances), then you must account for the possibility of that policy having a disparate impact based on race. Otherwise, you might be setting yourself up for a potential race discrimination lawsuit.
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EEOC releases guidance on the COVID-19 vaccine

COVID-19, vaccine, flu

Yesterday, the EEOC published its guidance on the COVID-19 vaccine under the ADA and GINA, in the form of nine Q&As. You can read them in their totality here.

The TL;DR: yes, you can force employees to receive the COVID-19 vaccine as a condition of employment (although the should is an entirely different issue), subject to limits on reasonable accommodations for employees’ disabilities and sincerely held religious practices or beliefs and subject to limits on pre-vaccination medical questions.

That’s more or less aligned with everyone’s collective conventional wisdom on this issue. What is new in this guidance is the agency’s position on what to do with employees who refuse the vaccine for medical or religious reasons.

If an employer requires vaccinations when they are available, and an employee indicates that he or she is unable to receive a COVID-19 vaccination because of a disability, the employer must accommodate that request unless the employer can show that “an unvaccinated employee would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation’ … with a “determination that an unvaccinated individual will expose others to the virus at the worksite.” Even then, an “employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation … that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.” Moreover, a direct threat determination and an exclusion of an unvaccinated employee from the workplace does not necessarily equate to termination. An employer must in this case consider alternative accommodations, including remote work or an unpaid leave of absence.

Sincerely held religious practices or beliefs present a different problem for employees since Title VII does not offer a similar direct threat defense to an accommodation request. According to the EEOC, “If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.” As is the case under the ADA, however, this lawful exclusion does not necessarily equate to termination, and alternative accommodations should be considered.
The bottom line for employers? The COVID-19 vaccine is here and will be available within months for your employees. Now is the time to figure out how you will handle it for your employees. Will you require it or recommend it? Will you offer it on-site or send employees elsewhere for the vaccine? What will you do when an employee objects for medical or religious reasons? Planning is everything, and with an issue this important there is no reason to be caught unprepared.
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Coronavirus update: Thankful

thanksgiving, soup

It’s clear that 2020 has certainly been a year like no other. People are sick and dying. Hospitals are filling up. Our essential workers are stressed and tired.

I’m tired, too. Part of what’s making me tired is continuing to hear people complain about “2020” when we have so much for which to be thankful.

Here’s my list of everything for which I have been and continue to be thankful during the pandemic.

  1. That no one in my very immediate world has become severely ill with COVID-19, or worse has died from it. I pray every day that I can still say this six months from now.
  2. That my wife and I remain gainfully employed.
  3. My daily lunches and walks with my wife, the absolute best perk of us both working from home.
  4. My kids, who have endured the pandemic, and being stuck in the house with mom and dad, as best as they can.
  5. My dogs, who will have absolutely no idea what to do with themselves when we finally go back to work outside of the home.
  6. The slower pace of life and all of the family time I’ve been able to enjoy as a result.
  7. That I’ve been able to work from home since March without anyone batting an eye.
  8. Fast WiFi.
  9. Zoom, which has allowed me to stay connected to family and friends even though I can’t visit with them IRL, and to continue to conduct business without the risk of in-person meetings, hearings, and depositions.
  10. A dry spring, summer and fall, which allowed me to see some family and friends IRL and in small groups.
  11. Democracy.
  12. My renewed love of cooking.
  13. My kids’ school, and its commitment to safety and remaining open for full-time in-person instruction.
  14. The Rockin’ the Suburbs Friday Night Hootenanny, which continues to provide my daughter a valuable virtual outlet to share her music weekly with a group of very appreciative listeners. (Pro tip: it’s free to join, and you can just sit back and listen if you have no music to share.)
  15. The scientists who worked tirelessly to deliver the COVID-19 vaccines we desperately need.
  16. Essential workers who risk their lives every day so that we can continue to live ours.
  17. Season 2 of The Mandalorian, the best show currently on TV and a Friday bonding ritual with my son that I very much look forward to.
  18. Jackbox, which has provided hours upon hours of entertainment on family game nights while allowing my kids to demonstrate their mastery of four-letter words in the safe space of our home.
  19. Curbside pickup.
  20. Red wine, gin, and bourbon.
I’ll be off the remainder of this week, and will return after the Thanksgiving weekend to open the polls for voting for the Worst Employer of 2020.
Everyone, please have a healthy and safe holiday. If you are considering getting together with family or friends for a meal or otherwise, please reconsider. I live in abject fear that if we do not behave with the appropriate level of respect for this virus, responsibility for our role in limiting its spread, and care for others we will lose all hope of controlling this virus until vaccinations reach a critical mass sometime in mid-2021.
By then, a half million of us will be dead, millions will be grieving those losses, and millions more will be suffering long-term debilitating health issues. We can still beat this virus, but it will take a concerted effort from all of us to do so.

 

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The 12th nominee for the “Worst Employer of 2020” is … the Bad Bettor

Do you remember that scene from The Deer Hunter where Christopher Walken plays Russian roulette in a betting parlor, while the patrons place bets on whether he’ll live or die with every pull of the revolver’s trigger? That’s what I thought of as I read the allegations in Fernandez v. Tyson Foods, and not in a good way.

According to the lawsuit, while COVID-19 was running rampant through Tyson’s Waterloo, Iowa, facility, the Plant Manager “organized a cash buy-in, winner-take-all betting pool for supervisors and managers to wager how many employees would test positive for COVID-19.”

That’s just the tip of the iceberg of allegations in this wrongful death lawsuit, originally filed by the family of the late Isidro Fernandez, one of at least five employees who died of the virus. Indeed, according to their local health department, more than 1,000 workers at the plant, representing over one-third of the total workforce, contracted the virus. The lawsuit claims that Tyson Food demonstrated a “willful and wanton disregard for workplace safety.”
The recently filed amended complaint, which includes allegations concerning the betting pool, adds even more meat to the bone of these unsafe working conditions.
  • Despite the rampant spread of the virus within the plant, Tyson Foods required its employees to work long hours in cramped conditions without personal protective equipment and without following other workplace-safety measures.
  • In mid-April, just before the betting pool was created, the county sheriff visited the plant and reported that the working conditions inside “shook [him] to the core.”
  • An upper-level manager directed employees and supervisors to ignore COVID-19 symptoms, not to get tested, and to continue working, and supervisors falsely denied the existence of any confirmed cases or positive tests among the workforce.
  • Tyson paid $500 attendance bonuses, which actually incentivized sick employees to continue working.
  • All the while, managers avoided the plant floor for fear of contracting the virus, and executives lobbied Iowa’s governor for COVID-related liability protections.
For it’s part, Tyson Foods vehemently denies these allegations and suspended all managers accused of taking part in the betting pool (seven months after the fact).
If you place bets on which of your employees will contract a deadly virus, while you continue to take active steps that expose them to a greater risk of contracting that virus, you might be the Worst Employer of 2020. And thank you to all of my readers who sent me this very worthy nominee.
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Breaking down my county’s four-week coronavirus stay-at-home advisory

sick, stay at home, coronavirus

Yesterday afternoon, Cuyahoga County, Ohio’s largest, issued a four-week stay-at-home advisory. It took effect immediately, and is in addition to the 21-day 10 pm – 5 am statewide curfew Governor DeWine implemented yesterday and which takes effect tonight.

Let’s examine why it was issued, what is says and what it means for your business.

Why was it issued?

  • The county is experiencing a dramatic increase in the number of COVID-19 cases.
  • The positivity rate within the county has increased to 15 percent and is rising.
  • The county suffered 50 COVID-19 fatalities during the first two weeks of November.
  • The county is currently reporting 500 – 600 new COVID-19 cases per day over the past week, and modeling predicts it could rise as high as 2,000 new daily cases in the coming weeks.

What does it say?

  • All county residents are advised to stay at home to the greatest extent possible, and should only leave their homes for work, school, essential needs.
  • Employers are strongly encouraged to identify and accommodate as many employees as possible to work from home.
  • Businesses should transition as many functions as possible to an online format.
  • Schools that are currently implementing a hybrid or full in-person learning are advised to transition to online remote learning after the Thanksgiving holiday.
  • All  public or private gathering, meeting, or social event occurring outside of a residence or living unit is limited to no more than 10 individuals.
  • Parties, receptions, celebrations, and other similar events should be postponed.
  • Residents are strongly advised not to conduct or attend any indoor gatherings with guests who are not members of their household in a home or place of residence.
  • Residents that are exhibiting any signs and symptoms of COVID-19 must shelter in their place of residence, and people should otherwise follow CDC guidelines for isolation and quarantine.

What does it mean?

  • If your employees live in Cuyahoga County, more and more will need time off because their children will be home from school.
  • If your business is located in Cuyahoga County, you should give serious consideration to shifting to an all-remote model if possible, or at least permitting every employee who can work remotely to do so for at least the next four weeks.
  • This is just the beginning. We should expect similar advisories by local or state governments in the coming weeks as COVID-19 continues to surge out of control. Indeed, other counties in Ohio (e.g., Medina and Frankin) also issued their own stay-at-home advisories for residents and businesses, although neither of them recommends closing schools.
What are the penalties?
  • There aren’t any.
  • It’s an advisory, not an order.
Finally, I cannot mean this more clearly or earnestly, if everyone would have just behaved responsibly and with an ounce of compassion and empathy for their fellow humans from the beginning, we wouldn’t be in the position we now find ourselves.
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Coronavirus update: WFHH (work from home harassment)

workforce management software; hr tech

For last night’s dinner, I decided to use the leftover meatballs from the prior night’s spaghetti dinner to make meatball subs.

The only problem? No hoagie rolls, which led to the following conversation with my wife:

Me: I need to stop and get buns for dinner.
Her: Ooh, will you toast them?
Me: I’ll toast your buns alright.
Her: That’s sexual harassment!
Me: Take it up with HR.
All jokes aside, does a company’s obligation to take corrective action when it becomes aware of sexual harassment in the workplace extend to an employee’s home when that home is also the employee’s workplace?
A harassment complaint is a harassment complaint, regardless of the alleged perpetrator. An employer cannot treat a complaint by an employee against a non-employee any differently than an intra-employee complaint. Indeed, in the words of the Ohio Administrative Code:

An employer may also be responsible for the acts of nonemployees (e.g., customers) with respect to sexual harassment of employees in the work place, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such nonemployees.

There is no reason to think these protections don’t extend to employees who are working from home  … although the ability of another’s employer to control my conduct as a nonemployee in my own home is pretty much nonexistent.
Which begs the question: If my wife goes to HR to complain about me offering to toast her buns, what are the potential consequences? Let’s hope I don’t have to find out, but I’m guessing the risk is pretty low.
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Breaking down the potential liabilities in Ohio’s new mask rules

essential workers; workers' compensation, mask

During yesterday evening’s statewide address, and amid dangerously rising COVID-19 infections and hospitalization, Governor Mike DeWine, announced the reissuing and restating of Ohio’s mask mandate. The order now contains four specific rules for businesses to follow regarding mandatory masking.

  1. Each business will be required to post a Face Covering Requirement sign (version 1 / version 2) at all public entrances of the store.
  2. Each business will be responsible for ensuring that customers and employees are wearing masks.
  3. A new Retail Compliance Unit, comprised of agents led by the Bureau of Workers’ compensation, will inspect to ensure compliance.
  4. First violations will receive a written warning, and a second will result in a 24-hour closure of the business.
construction, mask, mobile technology, COVID-19First and foremost, before the disabled and their advocates start screaming that this order violates the ADA, it doesn’t. Yes, Title III of the ADA requires that businesses that are open to the public make exceptions to mask rules for those with disabilities that prevent them from wearing a mask. That accommodation, however, need not be letting them inside the business unmasked. You can offer online ordering and curbside pickup. You can have shoppers at the ready to make purchases on-call and bring them outside to the customers, or otherwise meet the customer outside to transact business. As long as your service is made “readily accessible” for someone with a disability, you’ve met your obligation under the ADA, and there are many ways to accomplish this without letting someone inside maskless.
The same applies to employees. Title I of the ADA allows employers to modify work rules as a reasonable accommodation for an employee’s disability. If a mask causes an issue for someone with a disability, the solution is to offer that individual an accommodation. Maybe you segregate the employee so that he or she does not come into contact with anyone else. Maybe you permit that employee to work from home. Maybe you grant a leave of absence until the risk abates. The point is that the employer and the employee have options other than allowing them to work freely without a mask.
Secondly, the combination of numbers two, three, and four have me concerned if an employer is going to place compliance and enforcement responsibility on its employees.
For reasons that still befuddle and escape me, some people become hostile when told to wear a mask. Yet, your employees are not professionally trained in diffusing hostile situations. Don’t leave it up to your untrained employees to try to enforce these rules and potentially deal with escalating hostilities and violence. You wouldn’t send an amateur to defuse a bomb, lest you risk an explosion. This situation is no different. (It also might violate OSHA’s General Duty Clause.) Instead:
  1. Deploy trained personnel (ideally security, but at least someone at a management level) to enforce this mandatory mask rule and ensure 100 percent compliance within your business; and
  2. Train all other employees not to engage and instead to summon a designated responder.
This rule is long overdue. We all agree that masks are the number one thing we must do to slow the spread of COVID-19. Let’s mask up and all do our part.
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Coronavirus Update 11-6-2020: Accountability

The NFL has fined the Las Vegas Raiders $500,000 and stripped them of a 2021 draft pick for “brazen and repeated violations” of the league’s COVID-19 protocols. The violations include repeated incidents of players and coaches not wearing masks and permitting players to attend a charity event maskless while mingling with the crowd. The fines and penalty came after repeated warnings (and prior fines) by the NFL.

If your business’s COVID-19 rules are to have any meaning, you need to be prepared to stand behind them with discipline and even termination if necessary. These are important safety rules that are absolutely necessary to beat back this virus, especially as cases are spiking and we are hitting record numbers on a daily basis.

Your employees must be held accountable for their COVID-19-related misconduct. If they aren’t wearing masks (or are wearing them improperly), congregating in groups, not maintaining appropriate physical distance, attending large gatherings, engaging in prohibited travel, coming to work sick, failing to report a positive test, failing to report an exposure to someone else who tested positive, or violating any other COVID-19 health and safety rule you need to be prepared to respond with discipline or termination (depending on the severity or repeat-nature of the violation).

Otherwise, why have these rules at all?