Category: Commentary & Opinion

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Coronavirus Update: The FFCRA implications of schools reopening

onboarding

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.

Also read: How do you reopen schools without teachers?

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.
  1. If a school is open for in-person learning and a child is distance learning by choice through an online option the school offers, the child’s parent is not entitled to FFCRA leave. In this case, the school is not closed; its physical location is open and the parent is choosing a remote learning option. Therefore, the employee does not have a qualifying reason for child care leave under the FFCRA. Note, however, that certain parents in this scenario still might qualify for FFCRA leave if the child is distance learning upon the advice of a health care provider to self-quarantine because of concerns related to COVID-19.
  2. If a school is requiring full-time online instruction or distance learning, the employee will qualify for child care leave under the FFCRA, provided that the employee certifies to the employer that no other suitable person will be caring for the child(ren) during the period for which the employee takes FFCRA leave. According to the DOL’s FFCRA FAQ’s, “If the physical location where your child received instruction or care is now closed, the school or place of care is ‘closed’ for purposes of paid sick leave and expanded family and medical leave. This is true even if some or all instruction is being provided online or whether, through another format such as ‘distance learning,’ your child is still expected or required to complete assignments.”
  3. If a school provides a mix of in-person and distance learning (e.g., a student attends class in-person in the morning and online from home in the afternoon, or in-person two days per week and remotely three days per week), an employee could take intermittent FFCRA leave, but only with the agreement of the employer. Under the FFCRA, intermittent leave is not a right and is only available if the employer permits it. Note, however, that the DOL “encourages employers and employees to collaborate to achieve flexibility.”
These issues will absolutely arise once children return to school. Best to figure out now how you are going to handle, because your employees will be requesting FFCRA leave for their children’s distance learning during the upcoming school year.
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Coronavirus Update: Telemedicine and the FMLA

telemedicine

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.

12. Due to safety and health concerns related to COVID-19, many health care providers are treating patients for a variety of conditions, including those unrelated to COVID-19, via telemedicine. Telemedicine involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices. Under these circumstances, will a telemedicine visit count as an in-person visit to establish a serious health condition under the FMLA?

Typically, for a non-inpatient medical issue to qualify as a “serious health condition” under the FMLA, one must receive either in-person treatment by a health care provider two or more times within 30 days of the first day of incapacity, or in-person treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under their supervision.

Does a telemedicine visit count as one of these “in-person” visits? According to the DOL, the answer is “yes” (at least for the rest of 2020).
Yes. Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits, and will consider electronic signatures to be signatures, for purposes of establishing a serious health condition under the FMLA. To be considered an in-person visit, the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities. This approach serves the public’s interest because health care facilities and clinicians around the nation are under advisories to prioritize urgent and emergency visits and procedures and to preserve staff personal protective equipment and patient-care supplies.
Telemedicine has served a crucial role during this pandemic to ensure that individuals receive the medical care that they need without needlessly exposing themselves to COVID-19 by visiting a health care provider in person. I’m thrilled to see that the DOL is adapting by counting certain telehealth visits as “in-person” visits for purposes of the FMLA.
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Should employers be testing employees for COVID-19?

COVID-19, coronavirus, public health crisis
Fortune magazine asks: “Why some companies are screening employees for COVID-19, while others have opted out?” This is a legitimate question.

Let’s start with the law. Does the law (in this case, the ADA) permit an employer to test employees for COVID-19? Yes, an employer absolutely may administer a COVID-19 test before permitting employees to enter the workplace.

From the EEOC:
[E]mployers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.
Just because employers can test doesn’t mean they should test. Why shouldn’t an employer test even though the law allows for it?
1/ Because these tests only measure a small slice of time, and therefore are not a reliable indicator of whether an employee is bringing COVID-19 into the workplace. Unless you are going to test every employee every day (see no. 2 below for why this isn’t feasible or practical), a negative test only establishes that an employee does not actively have the COVID-19 virus within their system at the time the test was administered.
2/ Because tests aren’t necessarily reliable. A team from John Hopkins Medicine has concluded that COVID-19 tests have a false negative rate of at least 20% if used too early after infection. If one in five employees who tests negative for COVID-19 is carrying the virus, why test at all?
3/ Because tests are expensive and not available in a large enough quantity. Testing every employee every day will cost an employer a small fortune, while at the same time unnecessarily using testing resources that could be put to better use (i.e., for those who actually have COVID-19 symptoms). It’s for this same reason (among others) that I believe restarting professional sports right now is crazy. Those players are being tested every single day, using up valuable testing resources that are in too short supply as is.
What should an employer do instead of testing? All employers should require employees to self-monitor for COVID-19 symptoms, and upon the presentation of any such symptoms, report to the employer and isolate per CDC guidelines. Thereafter, the employer should contact its local department of health, contact trace, and quarantine those who were in close contact as needed. That’s about the best you can hope to do to help stop this virus from spreading in your workplace. The law allows you to require testing if you want, but why bother?
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The 6th nominee for the “Worst Employer of 2020” is … the Working Mom Sacker

remote workers, stressed out

Let this woman’s Instagram post sink in, and then let’s talk about why it’s wrong to fire a mom working from home (allegedly) because she has to spend some time tending to her children.

 

 

View this post on Instagram

 

| 28 days ago I finally had enough of the 𝗱𝗶𝘀𝗰𝗿𝗶𝗺𝗶𝗻𝗮𝘁𝗶𝗼𝗻 that my boss was giving me for him not being okay with hearing my kids in the background on calls.|😭😡😖💔 . He wanted me to figure out a way to keep the kids quiet 😣. I went to Human Resources with proof of what was going for the last 3 months and 7 days later AFTER that 𝗜 𝗴𝗼𝘁 𝗳𝗶𝗿𝗲𝗱!!!! 😭 They told me that I should be happy that the outcome to my career there could have been worse. I’m crying as I type this…😭 I was told I had a bright future. That I was doing very well in my position! 💔💔💔😭💔😭 . The last 3 months I have worked around the clock from home while watching my two toddlers😭. I have met all the deadlines they have asked me for, even the unrealistic ones. The situation that I had endured the last 3 months is beyond stressful😭. How does a company that says that they understand and will work around the schedule of parents do the complete opposite with their actions? 😭 I’m devastated. I have poured hours, tears, sweats, delayed giving my child a snack when he wanted one because my boss needed me to do something right away. And what did I get in return? 𝗙𝗜𝗥𝗘𝗗!!! 😭😭😭😭😭 😭😭😭😭😭😭😭😭😭😭😭 . They can keep the 𝗵𝘂𝘀𝗵 money they offered to not bring this up🚫🛑✋! No working mother should be discriminated against , especially during these times for not being able to keep my 𝟭 𝘆𝗲𝗮𝗿 𝗼𝗹𝗱 𝗾𝘂𝗶𝗲𝘁 for a business call 😡For not being able to turn something around in 5 minutes when my baby wants a snack😡. We are in tough times right now. This situation would have been temporary. None of my clients had issues with my kids in the background. 𝗜’𝗺 𝗴𝗼𝗶𝗻𝗴 𝘁𝗼 𝗳𝗶𝗴𝗵𝘁 𝗳𝗼𝗿 𝗲𝘃𝗲𝗿𝘆 𝗺𝗼𝗺 𝘁𝗵𝗮𝘁 𝗵𝗮𝘀 𝗴𝗼𝗻𝗲 𝘁𝗵𝗿𝗼𝘂𝗴𝗵 𝘁𝗵𝗶𝘀 ! 𝗜𝘁’𝘀 𝗻𝗼𝘁 𝗼𝗸𝗮𝘆!!!💪. IT’S NOT OKAY to have to feel that your boss is making you pick your work over your kids during these times!!!𝗜𝘁’𝘀 𝗡𝗢𝗧 𝗢𝗞𝗔𝗬!!! #justice

A post shared by Hi, I’m 𝗗𝗿𝗶𝘀| MODERN CALI MOM (@moderncalimom) on

10 News San Diego fills in the details:

A San Diego mother says working from home during the coronavirus pandemic cost her her job. She claims she was fired because her kids were making noises in the background of her teleconference calls …

Like many parents, Rios was unable to find childcare for her four-year-old daughter and one-year-old son. Despite juggling parenting and working from home, Rios claims she was able to complete all her tasks. She adds that her clients never complained about her kids being in the background of her conference calls. The only complaints, she says, came from her male, direct superior.

“I said, ‘Do you want me to lock my kids in the room? My one-year-old in the room? Do you want me to do that?’ And… he responded and said, ‘Figure it out.’” Rios said.

She says she tried to arrange calls to be during her children’s afternoon naptimes but claims her boss continued to ignore and demean her.

“He would purposely overlap schedules,” Rios said.

According to research conducted by Stanford economist Nicholas Bloom, 42 percent of the U.S. labor force is currently working from home full-time. It an ideal way to stay safe and promote physical distancing during the COVID-19 pandemic, but it’s less than ideal for other reasons, especially if you have young children at home. For example, we’ve all seen more than one viral video of a child interrupting a Zoom meeting. (Personally, I had one interrupted by my dogs loudly fighting over a toy. After my apology, my clients said it was the best distraction they had all week.)

worst employer of 2020

Work from home calls for understanding, compassion, and flexibility, not hard lines in the sand, deceit, and termination. If an employee is working well from home, being productive and timely, and putting out a quality work product (as Ms. Rios says she was), let it be. There will come a time when everyone could return to the office, but now is not that time. Work from him is going to be the “new normal” for many for the foreseeable future. If we can’t work with it, we are going to lose too many good employees.
Moreover, it’s just plain illegal to fire a woman based on her parental responsibilities if you don’t hold similarly situated male employees to the same standard. As Suzanne Lucas writes at Inc.com: “If you enforce hours and quiet backgrounds for females but not for males, you’ll violate sex discrimination laws. So, you can’t call it cute when Joe’s baby shows up on film but unprofessional when Caroline’s toddler shows up. It’s all or nothing.”
No working mother should be discriminated against. That’s called sex discrimination. It’s also flat-out wrong to fire an employee in these circumstances, and it might just make you the worst employer of 2020.
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Tesla fires workers for staying home after giving them permission to stay home

reopen businesses

“Carlos, there is no need to feel that you are going to lose your job. If at this time you do not feel comfortable returning to work, you can stay home without penalty and take the time unpaid.”

That email, sent from Tesla’s acting human resources director to a now terminated employee, will be central to that employee’s wrongful termination lawsuit pending against the automaker.

The employee claims that Tesla retaliated against him because he pressured the company to release information about its health and safety protocols following reports of employees testing positive for coronavirus after returning to work in late May.

The timing does not look great for Tesla. The “you can stay home without penalty” email came one day before the employee spoke out against Tesla at a news conference about conditions at the plant and his fear of returning to work … and one day prior to Tesla emailing the employee to tell him his job was at risk.

Within hours of that news conference, Tesla’s human resources department emailed a “Failure to Return to Work” notice, advising of termination without an immediate return to work. The employee (and a co-worker who received a similar notice and also openly questioned the company’s safety during the pandemic) opted to remain on unpaid leaves because of their health and safety concerns. They claim their terminations are in retaliation for their vocal questioning of their employer’s commitment to safely reopening and operating its manufacturing plant.

Also read: Lawsuit highlights risk of businesses not reopening safely and correctly

There is nothing inherently unlawful about ending an employee’s leave of absence and requiring their return to work (even during this pandemic). However, when an employer ends the leave within hours of an employee openly and vocally challenging health and safety issues, retaliation becomes a real concern.

Whistleblower retaliation is one of the biggest legal risks facing employers during this pandemic. OSHA, the National Labor Relations Act, and myriad state laws protect employees from retaliation for raising health and safety concerns at work. Instead of risking a lawsuit by removing a “difficult” employee from the workplace, employers should view them as an opportunity to improve. Why are they raising issues? How do they feel unsafe? What can we do to improve and make all employees feel safer? If we are doing everything we can to provide as safe of a workplace as possible, how do we communicate that fact to employees?

Also read: When employees return to work, consider these guidelines

Far from an opportunity to terminate, employee health and safety complaints (always, but especially during this pandemic) present an opportunity to listen, improve, and strengthen your relationship with your employees. Employers that do not understand this opportunity are risking dangerous and costly retaliation lawsuits.

Also read: COVID-19 and workers’ compensation

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Employee claims his remote work request got him fired

remote workers, stressed out

An employee suffers from high blood pressure and lives with his 81-year-old mother. He’s an engineer and began working from home for his employer in mid-March when his state shut down non-essential businesses. His employer, however, remained open, and several weeks later required him to return to in-person work in the office. He refused, requesting continued work from home. The company refused that request and fired him for job abandonment. The employee sued for disability discrimination.

The employer argues that the employee’s high blood pressure is not a disability warranting accommodation, and it has no obligation to accommodate the employee because he lives with his elderly mother.

Also read: Permanent working from home works well if you have the right technology

As to the latter argument, the employer is likely correct—it doesn’t have to accommodate an employee because of the employee’s association with someone with a disability, even if that family member falls into one of the COVID-19 high-risk groups.
I also think, however, that this employer may have issues with the denial of the employee’s work-from-home request for his own alleged disability. It’s possible that this employee was entitled to work from home as a reasonable accommodation. We don’t know, however, because the employer never asked for any medical information from the employee as to the need for the request.
According to Tchankpa v. Ascena Retail Group, “Employers are entitled to medical documentation confirming the employee’s disability and need for accommodation.” If on-site attendance is presumed to be an job essential function (as noted by the Tchankpa court) then an employer would have to consider offering an accommodation to meet that essential function. Telework might be one such accommodation. But the employer won’t know that unless it engages in the interactive process with the employee.
And that’s where this employer failed. The employee asked for an accommodation and the employer refused it without consideration and without gathering the necessary information from the employee.
So, yes, you might be able to deny an employee’s work from home request. To be clear, in most cases I don’t think you should. But it is possible. You just have to do it the right way, which will always include the interactive process to determine if the employee is disabled and if the request is medically indicated to permit the employee to perform the essential functions of the job. For high-risk employees with a doctor’s note, however, denying the request takes a huge legal risk.
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CDC now recommends that people wear cloth face coverings in public

COVID-19, coronavirus, mask

As COVID-19 cases spike nationwide, and the CDC warns that we have “way too much virus” to control the pandemic, that same agency just released new guidance recommending that people wear cloth face coverings when in public.

The highlights:
  • CDC recommends that people wear cloth face coverings in public settings when around people outside of their household, especially when other social distancing measures are difficult to maintain.
  • Cloth face coverings may help prevent people who have COVID-19 from spreading the virus to others.
  • Cloth face coverings are most likely to reduce the spread of COVID-19 when they are widely used by people in public settings.
  • Cloth face coverings should NOT be worn by children under the age of 2 or anyone who has trouble breathing, is unconscious, incapacitated, or otherwise unable to remove the mask without assistance.
workforce management procedures, covidFor reasons that still baffle me, the use of cloth face coverings is a political issue, and not a science issue. Since this issue has become politicized to the point of endangering people’s lives, let’s look at, and debunk, the counterarguments people use against wearing masks in public.
1. A mask won’t stop me from catching COVID-19.
You are correct. A mask won’t stop you from catching COVID-19. But they will stop you from spreading it to someone else. The science is clear and irrefutable—if a majority of us wear masks when in public, we’d reduce the spread of this virus to an acceptable level, and if all of us do so we’d effectively stop the spread outright. If you don’t want to wear a mask for yourself, wear one to protect your family members, your friends, your co-workers, and others.
2. I’m not sick. 
Just because you don’t feel sick doesn’t mean that you’re not carrying COVID-19. It could also mean that you are a pre-symptomatic or asymptomatic carrier of the virus who could still nevertheless transmit it to someone else. You aren’t wearing the mask to protect yourself; you’re wearing it to protect others.
3. I’m not high-risk for Covid-19 complications.
Just because you are younger or lack any of the underlying medical conditions that places you at higher risk of Covid complications doesn’t mean that those you come into contact are as well. Think of your friends and family members, the friends and family members of your co-workers, and the friends and family members of those with whom you come into contact at the grocery store or anywhere else in the world. Again, you aren’t wearing the mask to protect yourself; you’re wearing it to protect others. (Do you sense a theme here?)
 
4. I have a constitutional right not to wear a mask.
No, you don’t, no more than you have a constitutional right to enter a business without wearing a shirt or shoes, to drive without a seatbelt, or to smoke on an airplane. The government can require you to wear a mask when outside of our house to protect the health and safety of others during a pandemic, period. If a government can’t maintain rules to keep us healthy and safe, why have a government at all?
5. Wearing a mask will harm my health. 
No, it won’t. People incorrectly claim that masks decrease the wearer’s oxygen intake, increase their inhalation of toxins and carbon dioxide, and cause their immune system to shut down. These claims are simply not true. If they were, doctors, nurses, and other medical staff in operating rooms would be falling ill daily. If you have a legitimate disability that a facial covering would negatively impact, the ADA might provide you some relief in the form of a reasonable or public accommodation. Otherwise, science simply does not support the claim that masks will harm the health of a healthy person. Moreover, if you think it’s hard to breath wearing a mask, you’ll really think it’s hard to breathe with your lungs drowning in fluid while on a ventilator.
6. Masks are part of a government conspiracy to control me and my actions.
Seriously? Do I even need to discuss this argument? Talk to me when you remove your tinfoil hat.
The bottom line: wear a mask.
If we simply wash our hands, and maintain an appropriate amount of social distance and wear a mask when around others, we’d all be able to go about some semblance of our normal lives. And since that’s all what we all want to do, why do some make this issue so damn hard?
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Judge hands McDonald’s a whopper of a rebuke for its COVID-19 response

chief people officer McDonald's

A month ago I reported on a novel lawsuit filed against McDonald’s Corporation in which the plaintiffs sought to have the fast-food conglomerate’s alleged failure to comply with health guidance and provide PPE to its employees declared a public nuisance.

chief people officer McDonald'sLast week, the judge granted the plaintiffs a preliminary injunction, concluding that they were likely to succeed on the merits of their claims. In so ruling, he concluded that the company fell short in its obligation to keep safe its employees and its customers.

Also read: When employees return to work, consider these guidelines

An issue in the case was McDonald’s exception to its face-covering and social distancing policy, which states, “Please note that individuals may be closer to each other than 6 feet, and pass each other momentarily, as long as it’s not for a period of 10 cumulative minutes or more.”

The court did not find that policy was reasonable (or likely to be lawful) under any set of circumstances during this pandemic.

McDonald’s has created an environment that leads employees, including managers, to believe they can take off their masks and stand within 6 feet of each other as long as they do not do so in excess of 10 minutes. This increases the health risk for the employees, their families and the public as a whole and conflicts with the Governor’s Order on social distancing potentially undoing any good it has done as we fight this incredibly contagious disease. …
“Trying your best” in a pandemic can still cause substantial interference with the public health in a pandemic, especially when employees are not expected to remain 6 feet apart for periods of less than ten minutes. Defendants’ inability to ensure that employees are appropriately covering their face when not 6 feet apart is unreasonable given the magnitude of the potential consequences. …
McDonald’s social distance training is not in compliance with the Governor’s Order, nor has the Court been made aware of any CDC guidance that supports McDonald’s 10 minute exception to social distancing protocol. …
This potentially hazardous combination contradicts the Governor’s Executive Order and Illinois public safety guidelines on social distancing which require people to maintain a 6 foot distance from each other or wear a mask. The current McDonald’s environment leads employees, including managers, to believe they can take off their masks and stand within 6 feet of each other as long as they do not do so in excess of 10 minutes. This increases the health risk for the employees, their families, and the public as a whole and conflicts with the Governor’s Executive Order.
This is the opinion of one judge in one state court on a novel legal theory. However, it does illustrate that employers are taking some (a lot of?) legal risk if they ignore, flout, misstate, or misapply state or local safety and reopening rules. Learn the rules for your jurisdiction, and train your managers and supervisors on them so that they can enforce them to keep everyone as safe (and legally compliant) as possible.
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Are employees taking paid leave under the FFCRA?

employment law

According to a recent poll conducted by the National Partnership for Women & Families, less than one in five employees have either taken or plan to take paid sick or paid family leave under the FFCRA.

Of the 19 percent who has actually taken, or intend to take, paid FFCRA leave:

  • 9 percent say they are using new leave protections for their own illness or isolation.
  • 8 percent say they are using new leave protections due to a family member’s isolation/illness.
  • 7 percent say they are using new leave protections to care for a child due to child care or school closure.
  • 6 percent said they took leave, but not because of the new policy.
Yet, a higher number, more than one in four employees, have no idea that this paid leave even exists or are unsure if they will use it. Of this 28 percent of employees:
  • 17 percent said they were unaware of the new protections.
  • 11 percent are not sure if they will use the new protections.
These numbers seem low to me. So I’ve created my own poll, which you can take below.

I’ll publish the results tomorrow.
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Must you accommodate an employee with a high-risk family member?

ADA, coronavirus, acommodate

One of the questions I have received most from clients during this pandemic comes in some variation of the following: “An employee [does not want to come into work/wants to work from home/wants a leave of absence] because s/he lives with someone who is at high risk for coronavirus complications. What do we do?”

In other words, must you accommodate an employee for the employee’s close family member’s disability?

According to the EEOC, the answer is, “No.”

Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?

No. Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.

For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.

According to me, however, the answer is, “It depends” (on how you’ve historically treated similar requests by similarly situated employees).
The ADA not only protects employees with disabilities, but it also protects employees associated with individuals with disabilities. There is, however, one critical difference between these two types of protections. The former imposes on employers an obligation to offer reasonable accommodations, while the latter does not. This difference, however, does not mean that employers in all cases can deny accommodations to employees associated with individuals with disabilities.
If an employer has a history of accommodating employees similarly situated to an employee requesting an accommodation for an employee associated with someone at risk for coronavirus complications, the employer would be open to claim of disparate treatment by denying the employee’s accommodation request. Thus, an employer must scrutinize its decision to deny an accommodation request for an employee’s family member against similar requests by other similarly situated employees to avoid a claim of disparate treatment.
Of course, the ADA is a floor and not a ceiling. An employer is always free to accommodate any employee’s request for any reason. As the EEOC points out, “[A]n employer is free to provide such flexibilities if it chooses to do so.” Further, during the pandemic, the DOL “encourages employers and employees to collaborate to achieve flexibility and meet mutual needs.”
Moreover, there are myriad business reasons why an employer might choose to grant an accommodation in this case.
  1. It’s the ethically or morally correct thing to do.
  2. It will help you to retain a quality employee.
  3. Granting the accommodation will create goodwill, strengthening the employee’s loyalty to your company.
  4. You will avoid the potential for bad press or negative social media if you deny the request, or worse, fire an employee seeking an accommodation under these circumstances.
For these reasons, I generally favor granting the accommodation. Unless there is a legitimate and overriding business reason to deny an accommodation request to an employee who, during the COVID-19 pandemic, seeks remote work or a leave of absence because he or she does not want to endanger a high-risk family member, grant the request. It’s the right thing to do, and, depending on the circumstances, it might also be the legal thing to do.