Commentary & Opinion – Page 6

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 12, 2020June 29, 2023

Breaking down the potential liabilities in Ohio’s new mask rules

essential workers; workers' compensation, mask

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

Each business will be required to post a Face Covering Requirement sign (version 1 / version 2) at all public entrances of the store.
Each business will be responsible for ensuring that customers and employees are wearing masks.
A new Retail Compliance Unit, comprised of agents led by the Bureau of Workers’ compensation, will inspect to ensure compliance.
First violations will receive a written warning, and a second will result in a 24-hour closure of the business.

construction, mask, mobile technology, COVID-19

First and foremost, before the disabled and their advocates start screaming that this order violates the ADA, it doesn’t. Yes, Title III of the ADA requires that businesses that are open to the public make exceptions to mask rules for those with disabilities that prevent them from wearing a mask. That accommodation, however, need not be letting them inside the business unmasked. You can offer online ordering and curbside pickup. You can have shoppers at the ready to make purchases on-call and bring them outside to the customers, or otherwise meet the customer outside to transact business. As long as your service is made “readily accessible” for someone with a disability, you’ve met your obligation under the ADA, and there are many ways to accomplish this without letting someone inside maskless.

The same applies to employees. Title I of the ADA allows employers to modify work rules as a reasonable accommodation for an employee’s disability. If a mask causes an issue for someone with a disability, the solution is to offer that individual an accommodation. Maybe you segregate the employee so that he or she does not come into contact with anyone else. Maybe you permit that employee to work from home. Maybe you grant a leave of absence until the risk abates. The point is that the employer and the employee have options other than allowing them to work freely without a mask.

Secondly, the combination of numbers two, three, and four have me concerned if an employer is going to place compliance and enforcement responsibility on its employees.

For reasons that still befuddle and escape me, some people become hostile when told to wear a mask. Yet, your employees are not professionally trained in diffusing hostile situations. Don’t leave it up to your untrained employees to try to enforce these rules and potentially deal with escalating hostilities and violence. You wouldn’t send an amateur to defuse a bomb, lest you risk an explosion. This situation is no different. (It also might violate OSHA’s General Duty Clause.) Instead:

Deploy trained personnel (ideally security, but at least someone at a management level) to enforce this mandatory mask rule and ensure 100 percent compliance within your business; and
Train all other employees not to engage and instead to summon a designated responder.

This rule is long overdue. We all agree that masks are the number one thing we must do to slow the spread of COVID-19. Let’s mask up and all do our part.

November 11, 2020

Working in an office instead of working from home doubles the risk of contracting COVID-19

coronavirus, remote work, COVID-19, remote workforce

You are literally making COVID-19 worse if you are refusing to permit employees to work from home.

According to a recently published CDC study, employees who work in an office setting are nearly twice as likely to contract COVID-19 than employees who work from home.

ABC News summarizes the study’s methodology and findings:

Researchers interviewed roughly 310 people who took a COVID-19 test in July, about half of whom tested positive, and compared them to a control group of people who tested negative. The majority of both groups, all adults, held full-time, non-essential jobs outside of critical infrastructure and had similar community exposure to COVID-19 independent of work.

The groups had some differences in behavior: Only a third of the COVID-19 group reported working from home or teleworking at least part of the time before their diagnosis, while half of the control group participants reported at least sometimes working remotely. In the two weeks prior to getting sick, members of the COVID-19 group were more likely to report that they exclusively went to the office or to school than control group members were. Researchers also found an association between going to the office regularly and attending church or religious gatherings.

What does this data tell us? In the words of the CDC, “Businesses and employers should promote alternative work site options, such as teleworking, where possible, to reduce exposures.”

Unless you absolutely need employees to perform their work from your workplace, let them work from home. COVID numbers are not getting any better.

In fact, they are getting exponentially worse and are predicted to continue to do so until plateauing as late as January or even February. We all have a role to play in stopping the spread of this deadly virus.

Allowing employees who are able to work remotely to do so is just about the least you can do.

November 9, 2020

COVID-19 and no-fault attendance policies

Can you “point” an employee under a no-fault attendance policy for a coronavirus-related absence? For example, an employee sick with COVID-19 or awaiting test results, quarantined because of an exposure, or at home because a child needs care?

For the uninitiated, no-fault attendance policies operate by having workers accumulate “points” for missing work, arriving late or other attendance-related issues; after the accumulation of a pre-determined number of “points,” employees face discipline or even termination.

During the ongoing COVID-19 pandemic, these policies are not only unnecessarily cruel, but they also might be illegal.

Generally speaking, if a law protects the absence (i.e., the FMLA or the ADA), then it is unlawful under such law to assign a point under an attendance policy for the absence. While there have not been any such cases decided under the FFCRA, one can safely assume the same logic applies. Thus, for employers with less than 500 employees, it would be illegal to assign no-fault points for absences related to:

A federal, state, or local quarantine or isolation order related to COVID-19;
Self-quarantine or isolation related to COVID-19 based on the advice of a health care provider;
The seeking a medical diagnosis for COVID-19 after experiencing symptoms;
The caring for an individual subject to an order described in (1) or isolation/quarantine as described in (2); and
The care for one’s child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19.

Even if the FFCRA does not protect an employee’s absence an employer must still consider whether some other law, such as the FMLA, ADA, or GINA, offers similar protection.

In other words, pointing employees for COVID-related absences is fraught with risk. It’s also unnecessarily cruel. We are all trying to do our part to halt the spread of this rapidly accelerating virus. This including isolating, quarantining, and taking care of others who are at risk or unable to care for themselves. This pandemic needs compassion and flexibility, not strict adherence to rigid policies.

November 6, 2020

Coronavirus Update 11-6-2020: Accountability

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

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

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

Otherwise, why have these rules at all?

November 5, 2020

OSHA levies $2 million in COVID-related citations and penalties

Are you tired of the endless din of vote counts and election news? Let’s get back to the uplifting topic of the ongoing COVID-19 pandemic.

OSHA recently announced a spate of COVID-related citations totaling $2,025,431 in fines.

What issues is OSHA seeing across employers?

Failing to implement a written respiratory protection program;
Failing to provide a medical evaluation, respirator fit test, training on the proper use of a respirator and personal protective equipment;
Failing to report an injury, illness or fatality;
Failing to record an injury or illness on OSHA recordkeeping forms; and
Failing to comply with the General Duty Clause

That last one is the OSHA/COVID kick in the you-know-whats. OSHA’s General Duty Clause requires that each employer “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” It’s of vital importance during a pandemic because OSHA lacks any specific standards on infectious disease or viral prevention. For this reason, most employers’ COVID-related failures will be related to failures to meet their “general duty” to keep their employees safe.

What does this mean in practice? These steps, recommended by OSHA in its Guidance on PreparingWorkplaces for COVID-19, is a good starting point for OSHA COVID-19 compliance:

Require workers to stay home if they are sick
Follow CDC rules on isolation for those with COVID-19 and quarantine for those within close contact with those with COVID-19
Inform and encourage employees to self-monitor for signs and symptoms of COVID-19 and report any that they have
Mandate face masks or other facial coverings
Establish rules that allow for six feet of physical distancing whenever practical, or install barriers when it is not
Promote frequent and thorough hand washing
Immediately isolate anyone symptomatic at work
Prohibit the use of shared equipment
Consider flexible work arrangements such as staggered shifts and schedules, and telecommuting
Maintain regular housekeeping practices, including routine cleaning and disinfecting of surfaces, equipment, and other elements of the work environment

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.