Coronavirus – Page 3

September 10, 2020

Coronavirus Update: The coming wave of Covid-related age discrimination lawsuits

The EEOC has sued Ohio State University for age discrimination, alleging that the school discriminated against a 53-year-old human resources generalist because of his age by assigning a substantial substantial portion of his duties to a short-tenured co-worker 25 years his junior.

“If a termination is age-discriminatory, disguising it behind a supposed reduction in force will not change that,” says EEOC Regional Attorney Debra Lawrence in discussing the filing of the lawsuit.

What does this lawsuit, which challenges a termination that occurred all the way back in March 2018, have to do with the COVID-19 pandemic?

According to this article in the ABA Journal, it is reasonable to expect a flood of age discrimination lawsuits from COVID-19 and the economic downturn it has caused.

“My clients are being told they’re laid off because of COVID and are asking why the kid they trained for two years still has a job,” says Stephen Console of Console Mattiacci Law in Philadelphia, who’s filed about 30 age and disability discrimination cases with administrative agencies since the pandemic started. “The question is what criteria they’re using to say who stays and who goes.”

Employers need to be vigilant in laying off older workers. “High risk for Covid” and “highly compensated” might by proxies for age discrimination. Moreover, if your RIF includes most or all of your older workers and retains most or all of your younger workers, it’s going to look like you are using COVID-19 to mask a discriminatory intent. Simply, you cannot use a COVID-19 reduction in force to purge your workplace of older workers. The EEOC and the plaintiff’s bar are watching.

September 1, 2020

Vaccines — can an employer require them; should an employer require them?

There are currently more than two dozen COVID-19 vaccines in development worldwide as pharmaceutical companies race to perfect a viable vaccination to halt the ongoing pandemic.

When (and it’s a big when) one or more vaccines becomes available, can an employer require it of their employees as a condition of employment?

When the EEOC initially published its guidelines on pandemic preparedness 11 years ago (in response to the H1N1, aka Swine Flu pandemic) it answered this question with a “yes.”

In response to the COVID-19 pandemic, the EEOC reissued its guidance.

May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII.

ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Here’s the thing. While the EEOC says that employer can’t require “all” of its employee to take a vaccine, an employer actually can require a vaccination subject to reasonable accommodation exceptions for ADA disabilities and sincerely held religious beliefs.

But just because an employer can mandate vaccines for most employees doesn’t necessarily mean that it should. Instead, I fall back to the EEOC’s closing statement about “encouraging employees” to get vaccines.

Mandating what employee does with his or her body feels too invasive and Big-Brothery to me. I’d prefer that employers arm employees with the knowledge they need to make an informed choice about the benefits of inoculations, and then strongly encourage employees to make the scientifically and medically responsible choice.

August 26, 2020

Coronavirus Update: New DOL guidance explains employers’ obligation to track compensable telework time

timeclock, wage and hour, schedule, timesheet rounding

With more employees working from home than ever before (thanks to COVID-19), employers are facing the new reality of tracking working time for remote workers and paying for that time.

The DOL recently published a new Field Assistance Bulletin explaining the obligation of employers to pay for non-exempt employees’ “working time” and the obligation of those employees to track this time. It’s not a change in the law, but instead a great reminder of the obligations the FLSA imposes on employers and employees.

An employer is required to pay its employees for all hours worked, including work not requested but suffered or permitted, including work performed at home. If the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked. An employer may have actual or constructive knowledge of additional unscheduled hours worked by their employees, and courts consider whether the employer should have acquired knowledge of such hours worked through reasonable diligence. One way an employer may exercise such diligence is by providing a reasonable reporting procedure for nonscheduled time and then compensating employees for all reported hours of work, even hours not requested by the employer. If an employee fails to report unscheduled hours worked through such a procedure, the employer is not required to undergo impractical efforts to investigate further to uncover unreported hours of work and provide compensation for those hours. However, an employer’s time reporting process will not constitute reasonable diligence where the employer either prevents or discourages an employee from accurately reporting the time he or she has worked, and an employee may not waive his or her rights to compensation under the Act.

What does this mean:

Generally an employer must pay a non-exempt employee for all time during which the employer knows, or should know through the exercise of reasonable diligence, the employee is working.
If an employer has reasonable reporting rules detailing an employee’s responsibility to report the employee’s working time, an employer must pay the employee for all such time reported.
However, if an employee fails to report time pursuant to those rules, the employer is excused from any obligation to pay for that unreported time. An employer is not required to undertake efforts efforts to investigate, uncover, and pay for unreported time.
An employer cannot, though, prevent or discourage employees from reporting working time to avoid paying for it.

What should you be doing now? Dust off your handbook and make sure it contains a policy explaining to employees their obligation to report working time and advising that they will not be paid for unreported time. Absent such a policy, you are responsible to exercise reasonable diligence to discover time employees are working, an exercise that will almost certainly miss time and result in exposure for unpaid time/overtime.

August 25, 2020August 25, 2020

Coronavirus update: This example of WFH is WTF

Alison Green, who pens the super engaging and helpful Ask A Manager blog, reached out to me to help with a reader question.

You should jump over to Alison’s post to read the whole bonkers scenario, but the TL;DR is that an employee’s spouse asked about the legality of an employer-installed app on her work-from-home husband’s phone that audio recorded everything happening in the home (whether work related or not).

My answer:

First things first. Legal or illegal I’d get away from that employer right now. Do not pass go. Do not collect $200. Just get your resume in order and start job hunting ASAP. This is a horrible HR practice that tells me this is not an employer I want to work for any longer

As for the legality of the practice, it depends on the state in which you live. Recording or otherwise listening to the conversations of others are covered and regulated by state wiretap statutes. These laws come in two flavor – one-party consent laws, and two-party consent laws.

Most state wiretap statutes are one-party consent laws. This means that as long as one of the parties to the conversation has consented to the recording, no law has been violated. In the scenario presented, I’d want to know whether the husband has consented (expressly or implicitly) to the recording. If so, in a one-party consent state, no statute has been violated. I would still, however, have concerns over a common law invasion of privacy tort claim since the employer is unreasonable intruding into the private lives of your family, legal wiretap notwithstanding.

A minority of states (11 to be precise — California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington, plus Hawaii, which requires two-party consent if the recording device is in a private residence) have two-party consent laws. This means that unless all parties being listened to or recorded have consented to it, an illegal wiretap is occurring. If you are in one of these states, the recording described would likely be illegal, since the spouse and anyone else within earshot of the phone other than the employee would not have provided consent. In this case, I’d raise the issue with the company, and if you can’t get satisfaction, I’d talk to an attorney.

A recent story in the New York Times asked if COVID-19 has forever changed the office. It has, and largely for the better. For example, lots of companies who were resistant to work-from-home have had to bend.

But this example bends so far that it breaks the employer/employee relationship.

If you have so little trust in your employees that you need to monitor everything they do by eavesdropping on conversations in their homes, you shouldn’t be in the business of employing others. You are simply not suited to be an employer. The employer/employee relationship is one of mutual trust, and without that trust there is no relationship of value, period.

August 24, 2020July 24, 2024

Coronavirus update: Back to school

Today is my kids’ first day of school. Not virtual school. Not distanced learning. Not a hybrid model. In-person school. I just returned home from dropping them off for their respective first day of high school and middle school.

We are blessed to have the resources to send our kids to small, independent private school that is uniquely positioned to open for full-time in person learning in the midst of a pandemic. With approximately 400 students in the entire school across grades K-12, class sizes are already naturally small. With a 93-acre campus, many classes will be held outside. With no cafeteria, lunch time is greatly simplified. It’s the perfect school to educate in-person while we live with COVID-19. And it has a great plan to keep my kids, the rest of the students, and its faculty and staff as healthy and safe as reasonably possible.

But this will be a different school year. Everyone will be masked. There will be no interscholastic sports. Certain classes have to be modified. For example, my daughter was accepted into its School of Fine Arts as musical theater major, yet there won’t be any group singing for the foreseeable future. And for the school year, my wife and I will be the bus (something made easier by the fact that we are both working from home, as the school is 25 minutes from home in the opposite direction of both of our workplaces).

Which brings me to the point for today’s post. This school year will require all employers to be flexible, understanding, and empathetic. Gone are the days when parents will be able to send kids who wake up with a cough to school. Employees will have children at home with them, who will need varying degrees of support and hand holding through the work/school day. Employees will serve as transportation to and from school. Employees will have to drop everything when the school calls to let them know that a child is ill, or when a sick child is at home or, worse, hospitalized. Many schools that are open close during the school year.

Those employers who provide nimbleness and compassion will have an engaged and thankful workforce. Those who only offer rigidity and animosity will foster resentment and lose employees. I know which type of employer I want to be and for which I’d want to work. Be that employer.

As for me, I hope this is the only first-day-of-school when my kids’ smiling faces are hidden behind COVID masks.

Finally, today I was going to write a treatise of the legal issues back-to-school raise in a COVID world, but my friend Jeff Nowak beat me to it at his FMLA Insights blog. I cannot more highly recommend his thoroughly excellent post on this topic.

August 19, 2020June 29, 2023

Hoffer Plastics’ ‘family first’ philosophy puts people over profits

Like many companies facing massive disruption as COVID-19 spreads across the world, Hoffer Plastics Corp. had to make hard decisions.

Among the tough choices was fulfilling its customers’ needs while simultaneously protecting the health and welfare of its employees. As a global supplier of custom injected plastic parts used in everything from baby food pouches to lawnmowers, deadlines still had to be met despite the growing pandemic.

Most of the company’s 350 employees were working in three shifts at Hoffer’s 360,000-square-foot plant in the Chicago suburb of South Elgin. They couldn’t simply tuck a laptop under their arm and manufacture blender parts or speaker covers from their dining room table. They had to clock in every day as COVID-19 spread, seeking direction and support from company leaders.

Also read: Cut hours of admin work each week and automate how your staff clocks in and out.

Hoffer’s executive team acted quickly to calm workers’ anxieties by relying on an enduring “family first” philosophy that has served the company from its humble beginnings in 1953 to an internationally recognized, award-winning plastics manufacturer today.

Employees are part of the family

As a family-owned and operated company, Hoffer’s leadership has consistently applied family values to its operations. And its employees, most of whom are hourly, are considered to be an extension of the Hoffer family.

The company is now led by second-generation family member William Hoffer along with his children, known as the “G-3” (for third generation) in executive leadership roles. Daughter Charlotte Hoffer Canning is Hoffer Plastics’ chief culture officer and has been instrumental in leading the organization through the pandemic.

“I may be biased but family was our advantage in these last six months,” said Hoffer Canning, the granddaughter of founders Bob and Helen Hoffer. “Our first core value is family, and family chooses one another over everything else. The focus of our decisions was on the safety and well-being of our people.”

Protecting jobs

As company leaders, Hoffer Canning added that their primary duty was to look after the welfare of their employees.

“The most important thing for us was to remain clear that it was our job to protect people over profits, and remain visible and transparent about the decisions we were making,” she said. “We were all navigating the unknown, but we were on the same page that we wanted to keep people employed.”

In the early days of the pandemic Hoffer executives met consistently to establish their approach to addressing employee concerns and keeping the business operational. As chief culture officer, Hoffer Canning was keenly aware of employee morale.

“Aside from communicating regularly, often two or three times a week, we made sure to lead our teams with empathy, recognizing that everyone is in very different places with how they are experiencing and responding to the pandemic,” Hoffer Canning recalled.

Listen, learn and lead

Simply listening to their employees was among the most important factors considering that each of them had their own perspectives regarding COVID-19, Hoffer Canning said.

“We knew that we had to understand that everyone was having very different experiences in their lives,” she said. “Our first choice was to listen closely, be supportive and empathic in places we could be. We checked in, held listening sessions and added a corporate chaplain to visit with our people. Our attitude was that we could get through it together.”

Case study: Building a safety policy was vital to Shawmut Design and Construction’s health

Considering all the challenges that accompany social distancing and employee safety in a manufacturing plant, the design of Hoffer’s sprawling 24-acre facility became an advantage as leaders reconfigured the building’s layout.

“We have a mature facility, and our building is segmented into focused factories, which has been viewed at times as a disadvantage in manufacturing today,” Hoffer Canning said. “Over the past few months, it has actually been an advantage and assisted greatly with many regards to maintaining proper social distancing. The only place we struggled with social distancing were the break rooms but we now have plexiglass barriers on our tables to maintain a safe environment for eating as well as break times.”

Keeping three shifts operational

Despite the potential roadblocks COVID-19 presents in a large manufacturing facility, Hoffer has maintained its pre-pandemic pace.

“We run three shifts and have run three shifts all the way through COVID-19, of course with new protocols in place,” Hoffer Canning said. “Because we follow good manufacturing practices very closely, our workforce was already used to following safety and health guidelines.”

Unlike many manufacturers that have been forced into layoffs, Hoffer is hiring.

“We are finding great candidates to join our team,” Hoffer Canning said. “Some of the positions require more experience than others, but our main focus is on hiring for ‘humble, hungry and smart.’ We will give you the tools, train you and from there, it’s up to you to work your way up.”

Whether you have a staff of 10 or 10,000 employees, building schedules is easier and faster with Workforce.com’s scheduling software platform. See employees’ availability as you go, be on top of wage costs and customize the way you manage attendance based on your unique requirements.

August 17, 2020

COVID-19 and protected concerted activity

employment law, labor law, overtime records

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?

According to this recent Advice Memo [pdf] published by the NLRB, the employer wins and the employee loses.

Although Charging Party discussed the gown issue with Charging Party on March 30, 2020, prior to drafting letter to the Employer, there is no evidence that the object of the conversation was initiating or inducing or preparing for group action in the interest of employees, as opposed to simply discussing that the nurses now had to share gowns. Further, Charging Party letter is solely focused on personal disgust at the notion of sharing gowns and fear for own and family’s safety, which believed to be at risk. …

Even if we credit Charging Party that a group discussion and plan of action to not share gowns that evening occurred, there is no evidence that the plan went any further than that.… [T]he employees here never took their concerns to management as a group. And, although Charging Party spoke to Charging Party about discharge which appears to have motivated Charging Party to take a stand that evening during shift, there is no evidence that they formed a plan of action together. Nor is there evidence the Employer considered Charging Party’s solo speech and refusal to work to have been concerted.

Furthermore, although Charging Party discussed the gown sharing issue with coworkers on March 30, Charging Party alone confronted management regarding the issue on March 29 and 30 and did not claim on those dates to be speaking on behalf of anyone. While Charging Party invited two employees in the parking lot to join a protest that evening, Charging Party informed them that it … would move forward with or without them. Nor is there evidence that any other employee formed a plan with Charging Party to refuse to work.… No employee requested Charging Party to act on their behalf or authorized to do so; simply decided on their own to represent coworkers.

These conclusions are consistent with the Board’s latest statements on lone-wolf activity, that a “lone wolf” can only engage in concerted activity, that “the totality of the circumstances … support[s] a reasonable inference that in making the statement, the employee was seeking to initiate, induce or prepare for group action.”

That said, employers should tread very carefully before terminating an employee for raising safety-related issues related to the current pandemic (or otherwise). The termination could violate OSHA. It could violate state law. And, in the correct circumstances, it could violate the NLRA (this case notwithstanding). It also sends the wrong message to your employees—that you don’t care about their safety, which is the absolutely wrong message to send while we are living with COVID-19.

August 11, 2020June 29, 2023

States should follow Illinois’ lead in making it a felony to assault an employee over a mask rule

essential workers; workers' compensation, mask

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.

The law amends the definition of “aggravated battery” to specifically include an offense targeted at an employee who is “performing his or her duties, including, but not limited to, relaying directions for healthcare or safety from his or her supervisor or employer or relaying health or safety guidelines, recommendations, regulations, or rules from a federal, State, or local public health agency.” In layman’s terms, a customer who attacks an employee because that employee is trying to enforce a COVID-19 mask or other safety rule faces two to five years in prison.

According to a statement put out by the office of Illinois Governor J.B. Pritzker, “This provision sends the message that it’s vitally important for workers to be both respected and protected while serving on the front lines.”

Other states should follow Illinois’ lead and enact similar legislation. Employees need protection from these dangerous reactions to basic health and safety rules. I don’t believe your employees should be your front-line enforcers or mask and other safety rules. As I wrote three months ago, employers shouldn’t “leave it up to untrained employees to try to enforce these rules and potentially deal with escalating hostilities and violence.” Instead, employers should “deploy trained personnel (ideally security, but at least someone at management level) to enforce a mandatory mask rule in your business, and also train all other employees not to engage and instead to summon a designated responder.”

Still, even in the best of circumstances an employee may be put in harm’s way by an irrationally dangerous customer. No employee should face the risk of bodily injury just for telling someone to wear a mask. Laws like that enacted by Illinois send the message that this special brand of misbehavior should not and will not be tolerated.

August 10, 2020June 29, 2023

Quarantine of Indians’ pitcher is a teachable moment in handling irresponsible employees during this pandemic

COVID-19, coronavirus, public health crisis

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.

Bravo to the Indians for doing what they feel they have to do to keep their employees safe and the team playing games.

Your business may not be able to dictate how your employees spend their free time, but you can hold them to consequences if they choose to act irresponsibly when “off the clock.”

We are living through a pandemic. Every employee has a responsibility to their employer, their co-workers, and the business to make sure that they do what they can to avoid brining COVID-19 into the workplace, and every employer has the same responsibility to take reasonable steps to prevent an at-risk employee from entering the workplace when it’s discovered.

These are strange times for sure, and I will not fault any employer that errs on the side of caution in how it manages its employee respective to mitigating workplace coronavirus exposures. I’m not advocating for, or in favor of, employer monitoring of employee off-duty conduct. If, however, irresponsible, reckless or dangerous behavior comes to an employer’s attention, it shouldn’t ignore it in the name of privacy either.

August 5, 2020June 29, 2023

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.

As to the cost of the testing itself, we look to the Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security (CARES) Act, and the Americans with Disabilities Act (ADA).

Both the FFCRA and the CARES Act contain requirements that group and individual health insurance plans cover COVID-19 diagnostic testing without cost-sharing, co-pays, or deductibles. This requirement not only includes the cost of the test itself, but also the cost of any related office, urgent care, emergency room, or telehealth visits.

Second, if for some reason an employee is not covered by applicable health insurance, EEOC guidance strongly suggests that the ADA requires employers to cover the costs of COVID-19 testing. The EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA provides that an employer must pay for all medical-exam related costs when an employer requires the examination because the employer reasonably believes the employee poses a “direct threat.” According to the EEOC, “COVID-19 poses a direct threat.” Therefore, the ADA would require an employer to cover the costs of diagnostic testing related to keeping that direct threat out of the workplace.

What about compensation for taking a COVID test? Is the time an employee spends taking a COVID-19 test (including the time spent traveling to and from the testing site) “working time” such that it must be compensated? The answer to this question is likely “yes.” While there is little guidance on this issue, we can look to a 1997 opinion letter by the Department of Labor’s Wage and Hour Division, which states, “[A]ttendance by an employee at a meeting during or outside of working hours for the purpose of submitting to a mandatory drug test imposed by the employer would constitute hours worked for FLSA purposes, as would attendance at a licensing physical examination during or outside of normal working hours.” If time spent submitting to a mandatory drug test or a physical or examination counts as “hours worked” for which an employer must compensate an employee, then it’s safe to assume that a required COVID-19 test falls into the same category.

Simple questions, complex answer. Bottom line, pay for the testing if the employee lacks health insurance to cover it, and pay the employee for the time spent related to the testing. It’s not only the law, but it’s also just the right thing to do.