The Practical Employer – Page 3

December 7, 2020

Coronavirus update: Vaccines

We are days away from the FDA approving two different COVID-19 vaccines, and it is being reported that the first people could start receiving the vaccine as early as Friday, Dec. 11.

While I covered the topic of employer-mandated vaccines earlier this year, I understand that everyone doesn’t necessarily see or read every post I write. Thus, because of just how important this issue will quickly become for employers, today I’m directing you to my thoughts from three months ago: Coronavirus Update 9-1-2020: Vaccines — can an employer require them; should an employer require them?

The TL;DR: Employers can legally require that employees get vaccinated, subject to reasonable accommodation exceptions under the ADA for disabilities and under Title VII for sincerely held religious beliefs.

But can doesn’t necessarily mean should, and employers should be wary about requiring what employees do with their bodies; instead, employers should be strongly encouraging employees to get the COVID-19 vaccine when they qualify to do so.

November 23, 2020January 25, 2021

Coronavirus update: Thankful

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.

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.
That my wife and I remain gainfully employed.
My daily lunches and walks with my wife, the absolute best perk of us both working from home.
My kids, who have endured the pandemic, and being stuck in the house with mom and dad, as best as they can.
My dogs, who will have absolutely no idea what to do with themselves when we finally go back to work outside of the home.
The slower pace of life and all of the family time I’ve been able to enjoy as a result.
That I’ve been able to work from home since March without anyone batting an eye.
Fast WiFi.
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.
A dry spring, summer and fall, which allowed me to see some family and friends IRL and in small groups.
Democracy.
My renewed love of cooking.
My kids’ school, and its commitment to safety and remaining open for full-time in-person instruction.
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.)
The scientists who worked tirelessly to deliver the COVID-19 vaccines we desperately need.
Essential workers who risk their lives every day so that we can continue to live ours.
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.
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.
Curbside pickup.
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.

November 19, 2020

Breaking down my county’s four-week coronavirus stay-at-home advisory

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.

November 18, 2020

Coronavirus update: WFHH (work from home harassment)

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.

November 17, 2020

Retaliation under the FFCRA is as illegal as is retaliation under any other employment statute

MaryJo Delaney is suing her former employer after it demoted her from her management position following her return from a COVID-related layoff, for which she had volunteered so that she could stay at home with her 9-year-old son whose school was closed.

When her governor locked down the state early in the pandemic, her employer remained open as an essential business. It offered a voluntary layoff to anyone who wished to avoid the risk of contracting the virus. Delaney chose that option to care for her son.

She returned to work in May when the company recalled all laid-off employees. She requested to work limited hours, again because of her need to care for her son, but was told that reduced hours would result in a demotion. Instead, her employer permitted her to shift her hours to account for her child-care needs.

According to her complaint, however, her employer started to “overly scrutinize and nitpick [her] work performance and subject[ed] [her] to unfair criticism” upon her return to work. That criticism led to her demotion, which led to her resignation, which led to her lawsuit claiming violations of the Families First Coronavirus Response Act.

If your business has fewer than 500 employees, your employees have a right under the FFCRA to take leave to care for their child(ren) whose school is closed or whose childcare provider is otherwise unavailable because of COVID-19. If you interfere with that right or retaliate against an employee who takes such leave, you are violating the FFCRA.

That said, an employer isn’t powerless in this situation.

You can offer remote work for employees who can perform their jobs away from the workplace. If you make remote work available, an employee does not qualify for FFCRA leave.
You can offer a flexible work schedule to allow an employee to flex his or her hours around their childcare-related needs, which would also obviate an employee’s right to FFCRA leave.
If you have fewer than 50 employees, you might qualify for the small-business exception to the FFCRA’s childcare-leave provisions and may not have to offer such leave at all.

What you cannot do, however, is outright deny leave if an employee qualifies or retaliate against an employee who takes such leave. That’s illegal and will get you sued. Take heed, because as COVID number skyrocket, if this isn’t an issue with which you’ve had to deal, it’s more than likely that you will and soon.

November 16, 2020June 29, 2023

The 11th nominee for the Worst Employer of 2020 is … the horrific human traffickers

Today’s nominee for the Worst Employer of 2020 is beyond description. NBC Bay Area provides the details:

A Gilroy (CA) couple has been charged with human trafficking after forcing a man to work 15-hour shifts seven days a week for no pay at their liquor store and then locking him inside the store overnight, the Santa Clara County District Attorney’s Office said Monday.

The victim slept in a storage room and bathed in a mop bucket, authorities said.

Amarjit and Balwinder Mann, both 66, allegedly threatened the victim with deportation if he reported them to law enforcement. The Manns have been charged with felony human trafficking, witness intimidation and wage theft involving four victims, the DA’s office said. They face prison time if convicted.…

The victim had flown from India in 2019 expecting to travel to the U.S. with the couple. Instead, the Manns took his money and passport and put him to work without pay or a key to leave the store at night, investigators said.

You’d think I’d be numb to these atrocities by this point, but this level of cruelty just leaves me speechless.

Voting for this year’s Worst Employer will open on Dec. 1. This year, however, we will have two categories and two winners—The Worst Employer of 2020, and the Worst COVID Employer of 2020. Please come back then to make sure to cast your ballot.

November 4, 2020

If you care about the future of democracy, then we must count every single vote

As I type at 6:30 a.m. on the morning after, we still don’t know who won the presidency. There are nine states and 87 electoral votes undecided, and few of those states (Arizona, Wisconsin, Michigan, Georgia, and Pennsylvania) will ultimately determine the winner.

Yet, in the wee hours of the morning, Donald Trump took to a White House podium and stated his clear and unambiguous intent to go to the Supreme Court to stop the counting of outstanding votes, which he says is “a fraud on the American public.”

Let me make this as clear as possible. This is not about left/right, blue/ ed, or Biden/Trump. This is about the legitimacy and future of our democracy.

We need to make sure every vote that has been lawfully cast is counted. Otherwise, we will never know who legitimately wins this election. Whether it’s a Biden win or a Trump win, we need to know who actually wins. Otherwise, why have an election at all? If we can’t trust the results of our election as the will of our nation, why bother?

If you care about the future of our democracy and the future of our country, then we must count every single vote. Period. The fraud here isn’t in uncounted votes. The fraud is in not counting them at all and declaring a winner by disenfranchising millions of voters.

October 28, 2020

The 10th nominee for the Worst Employer of 2020 is … the whistleblower whacker

The Society for Human Resource Management describes itself as “the foremost expert, convener, and thought leader on issues impacting today’s evolving workplaces.” Physician, heal thyself!

According to a recent lawsuit filed against SHRM (as reported by The New Yorker), SHRM may have a huge whistleblower retaliation problem on its hands.

Here are the key allegations, which SHRM denies:

Bailey Yeager, a former director-level employee with a history of glowing performance reviews and promotions, expressed concern when the organization asked her in May for feedback about its proposal to return employees to the office after two months of working from home.
Expressing concern about potentially infecting her two daughters, she requested that she be allowed to continue working remotely “until returning to work is both more widespread regionally and there is a decline in the metrics regarding cases/hospitalizations.”
She also asked to see SHRM’s plans for reopening safely.
Two weeks later she, along with three other employees who had expressed similar concerns (including two with pre-existing medical conditions), were fired.
According to her OSHA complaint, SHRM CEO Johnny C. Taylor Jr. held a conference call during which he outlined plans to “outsource” job functions in departments in which employees had expressed resistance to returning to work in person.
Yeager’s complaint also alleges that Taylor bragged that he had spoken to his friend Eugene Scalia, the Secretary of Labor, and that an OSHA representative contacted Yeager to implore her to withdraw her complaint. (To be fair, it unclear if there is any nexus between Taylor’s call to Secretary Scalia and OSHA’s call to Yeager, but it is definitely implied in her complaint).

If you fire employees who reportedly dare ask for the ability to continue working from home, and potentially wield your influence with the federal government in an attempt to leverage the dismissal of the resulting lawsuit, while at the same time holding yourself out as the “foremost expert on issues impacting today’s evolving workplaces,” you might be the worst employer of 2020.

October 21, 2020October 21, 2020

Would you boycott a business based on the candidate it supports?

Over the weekend I got into an interesting discussion on Twitter with a couple of my favorite musicians, Brendon Benson and Caitlin Rose. Here’s the question:

I’d like to expand this topic further and ask, Would you boycott a business based on the candidate whom it (or more accurately, its owner) supports for president in this election?

I’ve created this anonymous one-question survey (with space to comment) to gather opinions.

Thanks for taking the time to answer. I’ll share the results in a future post.

October 14, 2020October 14, 2020

Coronavirus Update: Reporting an employee who tests positive

COVID-19, workforce management WFM 2.0, ethics

When an employee tests positive, an employer has certain reporting obligations. These obligations fall into two categories—reporting to OSHA and reporting to your state or local health agency under state law.

OSHA

While OSHA has remained largely silent on mandates for businesses related to COVID-19, it has published specific guidance on when an employer must record and report COVID cases at work.

Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers must record cases of COVID-19 in their OSHA logs, if:

The case is a confirmed case of COVID-19;
The case is work-related; and
The case involves death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or a significant injury or illness diagnosed by a physician or other licensed health-care professional.

You should assume numbers 1 and 3 are met when an employee reports a positive test. Criteria number 2—work-relatedness—will almost always be the tripping point for recording vs. non-recording.

According to OSHA, an employer must make a “reasonable determination” of work-relatedness in determining whether to record an employee’s positive test. In making this determination, OSHA relies on three factors:

The reasonableness of the employer’s investigation. OSHA does not expect employers to undertake extensive medical inquiries. Instead, OSHA usually considers it sufficient for an employer (1) to ask the employee how s/he believes s/he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential COVID-19 exposure.
The evidence available to the employer at the time it made its work-relatedness determination.
The evidence that a COVID-19 illness was contracted at work. OSHA states that the following information is relevant to this determination—
- COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
- An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
- An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
- An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
- An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.
- CSHOs should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.

Per OSHA, “If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.”

OSHA’s reporting rules also apply to confirmed workplace cases of COVID-19. That is, for confirmed work-related cases of COVID-19—

an employer must report to OSHA in-patient hospitalizations within 24 hours of knowing both that an employee has been in-patient hospitalized and that the reason for the hospitalization was a work-related case of COVID-19; and
an employer must report employee fatalities the occur within 30 days of the workplace incident (in this case, the exposure to COVID-19) and within 8 hours of the actual fatality.

Violations of these recording or reporting requirements are subject to OSHA’s traditional enforcement and penalties.

State Law

States have their own COVID-19 reporting requirements. For example, Ohio mandates that businesses “contact their local health district about suspected cases or exposures” of COVID-19. This reporting is critical so that the local health department can undertake the contact tracing necessary to identify close contacts and limit pre-symptomatic and asymptomatic spread.

Employers should check with their legal counsel on their state-specific reporting requirements.