Commentary & Opinion – Page 4

February 1, 2021

How many N-words create a hostile work environment?

Last week, the U.S. Supreme Court was asked to answer these questions:

Whether an employee’s exposure to the N-word in the workplace is severe enough to send his Title VII hostile-work-environment claim to a trier of fact.

Whether and in what circumstances racial epithets in the workplace are “extremely serious” incidents sufficient to create a hostile work environment under Title VII, rather than nonactionable “mere utterances.”

These questions stem from Collier v. Dallas County Hosp. Dist. (5th Cir. 2020), which held that an African-American employee had failed to create a question of fact for a jury on his race-based hostile work environment claim based on his allegation that he had seen the one instance of the N-word scrawled on the wall of the hospital in which he worked (along with a pair of swastikas

While recognizing the offensiveness of the graffiti, the appellate court affirmed the dismissal of Collier’s harassment claim.

Though disturbing, the particular facts of this case … are insufficient to establish a hostile work environment under our precedent. For example, we have found that the oral utterance of the N-word and other racially derogatory terms, even in the presence of the plaintiff, may be insufficient to establish a hostile work environment. …

The conduct that Collier complains of was not physically threatening, was not directed at him (except for the nurse’s comment), and did not unreasonably interfere with his work performance. In fact, Collier admitted that the graffiti interfered with his work performance by only one percent. Moreover, Collier does not argue that he felt humiliated by the graffiti, nor would the record support such an assertion. Accordingly, on the record before us, Collier’s hostile-work-environment claim fails because it was not “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

We do not yet know if the Supreme Court will take up this issue, which remains split among the various appellate circuits. Regardless of your potential liability, however, if the N-word rears its head in your workplace, you have one, and only one, appropriate response. Stop it from happening again, period. Investigate and if you can determine the responsible party, terminate. If you can’t determine the responsible party, send a strong and clear message to all employees that such language and misconduct is not tolerated, and offenders will be terminated.

All employees have the right to work in an environment in which they feel safe and free from the risk of harm. That word creates the exact opposite environment, and should never be allowed. Hard stop.

January 27, 2021

Tread carefully if offering employees financial incentives to get the COVID-19 vaccine

To a nation waiting for action, let me be clearest on this point: Help is on the way.

Those were the words of President Biden in announcing the ordering of 200 million additional COVID-19 vaccine doses, a hike in the distribution of doses to states, and a promise that there will be enough doses to fully vaccinate 300 million Americans by the end of summer.

It’s an ambitious plan, but it’s what we need to end a pandemic that has already claimed the lives of more than 425,000 Americans and will claim hundreds of thousands more before we close the book on COVID-19.

Vaccines, however, only work if people actually accept syringes in their arms. Too many of us say that they won’t.

According to one recent survey, 39 percent of Americans say that they either probably or definitely will not get the COVID-19 vaccine when it becomes available to them. Another survey pegs the number at 37 percent. While these percentages are trending down, and more of us say that we trust the vaccine and will get it, the needle on this issue isn’t moving quickly enough. According to Dr. Fauci, to reach herd immunity (the only thing that will end this pandemic), we need between 75 and 85 percent of the population to be vaccinated.

To overcome this vaccine hesitancy, some employers are offering their employees a financial incentive to obtain the COVID-19 vaccine when it becomes available. Retailers such as Trader Joe’s, Dollar General, and Instacart are offering small incentives such as a couple of hours of additional paid time off, or nominal (e.g., $25) stipends. Nursing homes, whose employees come in contact with our most vulnerable population, are offering similar incentives to their workers. Others are offering free marijuana (full disclosure: they are marijuana dispensaries).

If you are considering offering a financial incentive to entice your employees to obtain the vaccine when it’s available to them, I caution you to tread carefully to make sure that you do it within the bounds of our equal employment opportunity laws.

1. Vaccination rules must have exceptions for employees’ disabilities under the ADA and employees’ sincerely held religious beliefs under Title VII. For this reason, if you are offering employees a financial incentive to get vaccinated, you better be prepared to offer the same exact incentive to those who cannot get vaccinated because of one of these legally protected reasons.

2. Incentive programs must comply with the EEOC’s wellness program regulations. Admittedly, these regulations will not be final until March 8.

Given that COVID-19 vaccinations will stretch for months beyond that date, however, employers should be aware of these rules and the risks they pose. Under these proposed and soon to be final rules, employers may not offer any more than a “de minimis incentive” to encourage employees to participate in a wellness program such as one that incentivizes the receipt of the COVID-19 vaccine.

The EEOC does not define “de minimus,” but uses the example of a water bottle or a gift card of modest value as “de minimus” and a $50 per month reduction in annual health care costs, paying for an annual gym membership, or an airline ticket as “not de minimus.”

Employers are considering bribes because they work. We just need to make sure that we are doing so within the confines of the law. We don’t want to solve one problem only to create another.

January 25, 2021

Biden calls for unemployment benefits to employees who refuse to work because of COVID

employment law, labor law, overtime records

Late last week, President Biden signaled that part of his overall plan to provide economic relief for American families and businesses amid the COVID-19 crisis is to broaden the availability of unemployment benefits to employees who quit their jobs related to Covid.

Specifically, the president is “asking the U.S. Department of Labor to consider clarifying that workers who refuse unsafe working conditions can still receive unemployment insurance.”

Allowing employees who quit in the name of “safety” to receive unemployment benefits presents a potential staffing nightmare for employers, especially considering that the America Rescue Plan (Biden’s the $1.9 trillion stimulus package being debated on Capitol Hill) proposes an additional $400 per week unemployment payments through the end of September. In Ohio, for example, that payment would increase the maximum weekly unemployment benefit to $1,072 (equivalent to an hourly wage of $26.80 or an annual salary of $55,744). At those numbers, lots of employees might opt to leave their jobs and take an extended, well-compensated vacation until the pandemic ends.

Allowing employees to qualify for unemployment merely by “refusing unsafe working conditions, which would make the employees the masters of whether or not they qualify, I proposed that the DOL instead limit qualification to employees who have tangible evidence of a health or safety violation by the employer that does not allow the employee to practice social distancing, hygiene, wear protective equipment, or otherwise unreasonably exposes the employee to a greater risk of contracting COVID-19.” A great starting point is the new COVID guidance President Biden has ordered OSHA to draft and emergency temporary standards Biden has ordered it to consider.

We need to make sure that we have rules that strike the proper balance between employees who have a legitimate reason not to work because of COVID-19, and employees who simply don’t want to work. Merely allowing employees to make that decision in their own exercise of discretion, and paying them a substantial benefit as a result, does not strike any balance at all.

January 20, 2021

What employers can expect from Biden’s presidency: A temporary emergency OSHA standard for COVID-19

Today marks the one-year anniversary of the identification of the first COVID-19 case in the United States.

On Jan. 20, 2020, the state of Washington and the CDC confirmed that someone in Washington State had contracted the virus. Since then, 24,809,840 additional Americans have contracted COVID, and 411,520 have died from it.

All the while, OSHA, the federal agency charged with protecting health and safety in the workplace, has done very little to address the pandemic, and we still lack a national safety standard on keeping COVID-safe at work.

President Biden’s OSHA will fix this glaring omission. He has called on Congress “to authorize the Occupational Safety and Health Administration to issue a COVID-19 Protection Standard that covers a broad set of workers.”

What issues should we expect this OSHA standard to address?

Mandatory masking.
Mandatory physical distancing.
Required sanitization and housekeeping.
Standards for engineering and airflow.
Required employee training.
Increased reporting requirements.

Some of these, like masking and distancing, should be second-nature at this point, but sadly have become overly politicized and ignored by too many. I applaud anything President Biden does in an attempt to get his pandemic under control and save lives so that we all can get back to living ours.

January 19, 2021

Biden calls for extension and expansion of FFCRA

COVID-19, coronavirus, public health crisis

As you should hopefully be aware, the Families First Coronavirus Response Act (FFCRA), the federal law that provided paid leave to employees for COVID-related absences, expired on Dec. 31, 2020, with an option for employers to voluntarily expand leave through March 31, 2021. The problem, however, is that while this leave has expired or will soon expire, COVID-19 is not expiring any time soon.

Help, however, may soon be on the way, as part of President-elect Biden’s America Rescue Plan. A key part of that plan is a significant expansion of the FFCRA.

What would change?

The FFCRA would be reinstated and extended through Sept. 30, 2021.
The 500-employee cap on coverage would be lifted and all employers, regardless of size, would be required to provide paid leave for covered COVID-related absences.
The exemptions for health care workers, first responders and small employers would be eliminated.
The total leave entitlement would be expanded to 14 weeks.
Employers with less than 500 employees would be reimbursed for this paid leave through an extension of the already existing payroll tax credit. Employers with 500 or more employees would not receive the tax credit.

I applaud this expansion, which is sorely needed as we navigate this virus until we reach a vaccination critical mass. I also hope it is a step toward more broad-based paid sick and family leave for employees, an issue on which this country sadly lags behind every other industrialized nation in the world.

January 12, 2021

8 of the 10 deadliest days in U.S. history are because of COVID-19

While we’ve all been mentally overcome by the rebellion that unfolded at the Capitol and the civil war that I fear it started, COVID-19 continues to rage around the country. Hundreds of thousands are falling ill each day, hospitals are stretched to capacity, and thousands are dying daily.

The circle of people with COVID is closing in personally, and the number of calls I am receiving from clients with the question, “We’ve had an employee test positive; what do we do?” has increased exponentially. All the while, the rollout of the vaccine, which was supposed to save us from this pandemic, has been too slow and uneven.

The bottom line is that COVID-19 continues to win.

So please, let’s not forget that we are still in the middle of an awful pandemic even as our democracy is splintering. Wear your mask (over your mouth and nose), keep your distance, wash your hands and please stay home, especially, but not only, if you’re sick or have been exposed to the virus.

While the vaccine rollout has been mismanaged and mishandled, the vaccines still offer us a light of hope of a return to normalcy. I’d like to make it there, and I’d think you would, too.

December 17, 2020September 13, 2022

The COVID-19 vaccine and race discrimination

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.

December 17, 2020

EEOC releases guidance on the COVID-19 vaccine

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.

December 16, 2020

My one work rule to rule them all

Unify those far away workplaces with global mobility tools

George Carlin was a genius.

He just had a way of breaking down language into its most simple parts. Whether it was The 7 Dirty Words or The 10 Commandments, Carlin was just brilliant with language. For example, he dismantled each of the 10 Commandments into just two:

First:

Thou shalt always be honest and faithful, especially to the provider of thy nookie.

And second:

Thou shalt try real hard not to kill anyone, unless, of course, they pray to a different invisible man than the one you pray to.

I thought of this yesterday after stumbling upon a tweetstorm authored by Kate Bischoff reacting to the New York Times article suggesting that Jeffrey Toobin’s long and esteemed career justifies that he should get his job back despite his Zoom full monty faux pas.

After asking, “Is this even open to debate,” I settled on my one work rule to rule them all. Here it is:

Don’t be the asshole!

Don’t believe me?

Don’t cheat or steal = Don’t be the asshole.
Don’t sexually harass = Don’t be the asshole.
Don’t refuse to wear a mask or follow other safety rules = Don’t be the asshole.
Don’t no-call/no-show = Don’t be the asshole.
Don’t fight = Don’t be the asshole.
Don’t be insubordinate = Don’t be the asshole.
Don’t whip it out at work, or a Zoom call = Don’t be the asshole.
Don’t use the n-word = Don’t be the asshole.

If you don’t want to lose your job for something you do or say, don’t be the asshole. Employees, it’s really that simple.

December 15, 2020December 15, 2020

Coronavirus update: Don’t be this a-hole

According to Cleveland.com, a pair of Ohio parents are facing possible criminal charges after piling 60 maskless teenagers into a party bus to celebrate their son’s 14th birthday.

Police learned a parent had arranged for the party bus, which originated in Cincinnati…. The parent had posted an open invitation on social media, police say.

The parents involved have been identified and might face charges for violating the state’s orders on the coronavirus. Police say they are consulting with the prosecutor’s office about additional charges.

“Mount Healthy police will not tolerate blatant law violations especially when such action endangers our community, our officers, and public health,” the department said in a news release.

Don’t be this a-hole. No one needs to have a birthday party right now, especially one that requires people to cram into a party bus. This is the height of entitled stupidity.

Do your part to slow the spread of this dangerous virus. Wear a mask, maintain distance, wash your hands, avoid gatherings, stay home, and for God’s sake don’t hold a birthday party for your child and 60 of his friends that requires them all to cram maskless into a party bus.