Category: Commentary & Opinion

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Crying ‘discrimination’ because you refuse to wear a mask isn’t just silly, it’s offensive

COVID-19, coronavirus, public health crisis

Please watch this short video and then let’s talk.

This woman claims discrimination because she refuses to wear a mask in public.

“Stand back,” and “You don’t care about other people,” are just a couple of the attacks this woman has received because she refuses to cover her mouth and nose.

Technically, this is discrimination in that she is being treated differently than mask-compliant folks. But this isn’t Discrimination.

The type of discrimination we worry about is the invidious discrimination individual suffer because of some innate trait over which they have no control and/or a fundamental individual liberty—race, sex/gender, LGBTQ status, religion, national origin, disability, age, etc.

The type of this discrimination about which this woman is complaining is discrimination of her own choice—her selfish choice to purposely avoid and ignore the most basic of safety and health measures everyone (or at least everyone with common sense and a rational belief in science) agrees is necessary to protect us during the COVID-19 pandemic.

Discrimination against marginalized groups is a major problem in our country. Let’s not trivialize it by elevating these complaints to its level.

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Could White House employees file an OSHA complaint?

coronavirus

Monday night saw President Donald Trump dramatically return to the White House after his three-day stay at Walter Reed Medical Center for COVID-19.

We saw Marine One land on the White House lawn, President Trump emerge and walk up the stairs to the White House, remove his mask for a photo op, enter his home with his mask still in his pocket, reemerge for a reshoot, and again enter the White House maskless.

It’s that last part I want to talk about. HuffPost asks if White House employees could lodge an OSHA complaint about the President’s COVID recklessness? I’d answer that question with a solid and resolute “thumb’s up.” The bigger question, however, is whether OSHA would do anything about it.

OSHA, the federal agency responsible for employee health and safety, presumably also regulates the health and safety of White House employees. I know of no OSHA standard that exempts them.

That said, OSHA also does not have a specific standard addressing viral pandemics. Instead, it regulates this outbreak via its general duty clause: “Each employer shall furnish to each of [its] 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 that “general duty clause” that could cause the White House fits if its employees take their COVID complaints to OSHA.

According to the Associated Press, Secret Service agents and White House staff are seriously pissed.

Several [Secret Service agents] who spoke with The Associated Press expressed concern over the cavalier attitude the White House has taken when it comes to masks and distancing. Colleagues, they said, are angry, but feel there’s little they can do.…

[T]hree former employees … expressed concern about the health of current workers, but were too afraid to speak publicly. Many are Black or Latino, among the demographic groups that have been more vulnerable to the virus.

Disgruntled employees are the employees most like to file a complaint with a federal agency such as OSHA. And at this moment in history, it seems like there are a large number of disgruntled employees working inside the White House.

Of course, as the HuffPost aptly points out, “Given the retributive nature of the Trump administration, any worker who wants to call in OSHA should be concerned about retaliation. Workers can file complaints anonymously to protect themselves, but those are less likely to receive a thorough investigation than ones with a name attached.” Perhaps this will be this administration’s saving grace on this issue — the fear of anyone to do anything about it. That and the fact that OSHA is not all that likely to investigate or fine its boss.

Additionally, OSHA doesn’t have the best record investigating COVID-related issues. According to former OSHA head David Michaels, “This is far and away the most significant worker safety crisis in OSHA’s history, and OSHA has failed to step up to the plate. OSHA has failed to use really any of its powers to address it . …  It’s hard to take OSHA seriously.”

What hasn’t OSHA done?

  • It hasn’t issued any temporary standards to address issues specific to the COVID pandemic.
  • It hasn’t done anything more than issue voluntary guidance with little to no legal risk or ramifications for noncompliance.
  • It hasn’t launched many investigations over COVID-related complaints—OSHA has only opened 184 investigations stemming from the 8,856 complaints it’s received related to COVID-19 (an inspection rate of less than 3 percent).
  • It hasn’t levied any significant fines or penalties, unless you consider the $13,494 fine levied against Smithfield Foods stemming from one the countries worst workplace coronavirus outbreaks.
Our nation has failed its COVID-19 test in many glaring ways. OSHA is just one example. The White House’s current messaging on the ongoing pandemic is emblematic of the safety issues that many employers are handling (and handling better than the White House) on a daily basis.
Don’t act like the White House. Require masks at all times. Promote good hand-washing hygiene.
Enforce a minimum of six feet of physical distancing. Mandate isolation for COVID+ employees and quarantine for those in close contact with anyone COVID+.
Your employees are trusting you to keep them safe. Do not fail this test.
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Fired for COVID-19 or fired for irresponsibility?

COVID-19, coronavirus, public health crisis

Prada v. Trifecta Productions, filed a few weeks ago in federal court in Ann Arbor, Michigan, asks whether an employer can legally fire an employee with COVID-19 based on the perception that the employee’s out-of-work activities placed the business at risk.

The facts are fairly simple. Nicolas Prada worked as a waiter and assistant manager at Tomukun Noodle Bar. On  June 24 he began experiencing COVID-19 symptoms and stayed home from work. He tested positive three days later. After 14 days of isolation, Prada texted his employer about being medically cleared to return to work.

During a follow-up phone call, Prada claims the restaurant’s owner interrogated him about his activities before falling ill. According to the complaint, “Mr. Yon asked Plaintiff how he contracted the virus,” interrogated him about whether he had “been out partying and acting irresponsible,” told him “there was evidence on social media of Plaintiff being in a crowd,” and that he should “begin looking for work” because for “PR reasons” it was best for him “not to come back to work.”

Prada quit the next day, and later sued for interference and retaliation under the FFCRA.

In a vacuum, Prada had a right to job restoration under the FFCRA. However, there is at least one key fact missing from his complaint — was he “out partying and acting irresponsibly” before contracting the virus. If so (and it’s a big if), his employer had a legitimate non-discriminatory and non-retaliatory reason for terminating his employment.

I’m not sure I’d terminate in these circumstances, but I can understand why an employer might. Here’s what I wrote two months ago discussing the Cleveland Indians’ suspension of two pitchers for violating team rules during a road trip by leaving the hotel to party:

Your business may not be able to dictate how your employees spend their free time, but you can hold them to consequences if they choose to act irresponsibly when “off the clock.” We are living through a pandemic. Every employee has a responsibility to their employer, their co-workers, and the business to make sure that they do what they can to avoid bringing COVID-19 into the workplace, and every employer has the same responsibility to take reasonable steps to prevent an at-risk employee from entering the workplace when it’s discovered.

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

In this case Prada had served his isolation, and according to his complaint was medically cleared to return to work. The risk this employer was mitigating was not the risk of an employee bringing an active virus into the workplace, but according to the complaint, the public relations risk of an employee being seen partying on social media. For a public-facing employer, I’m not going to backseat-drive its decision.

This will be a fascinating case to watch, which I’ll be updating everyone as it winds its way through the courts.

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Your employees should never learn about positive COVID-19 test from anyone but you

antibody testing

Ninety percent of the [White House] complex most certainly learned about it in the news, as has been the case ever since. There are reports that COVID is spreading like wildfire through the White House. There are hundreds and hundreds of people who work on-complex, some who have families with high-risk family members. Since this whole thing started, not one email has gone out to tell employees what to do or what’s going on.

If your employees are learning about a positive COVID-19 diagnosis from anyone other than from an official communication from you as their employer, you have failed in your duty as their employer.

They should not learn from other employees. They should not learn from social media. They should not learn from the professional media. Period. The should only learn from you.

What should this communication look like? Let me suggest the following.

Dear Employees:

It saddens us to inform you that one of your co-workers has tested positive for COVID-19. The law prevents us from telling you the identity of that co-worker, but we want to assure you that we will continue to support this employee as your co-worker heals from this virus, and we will welcome them back to join you at work once it is safe to do so.

We are doing everything within our ability and resources to keep you as safe and healthy as possible at work. Still, with many cases of COVID-19 transmitted before anyone knows they have been exposed, and with you only being at work for a fraction of you day, we cannot 100 percent guarantee the virus won’t enter our workplace.

We continue to require that you self-assess daily for your own potential COVID-19 symptoms (fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, or diarrhea). If you have any of these symptoms, please let us know, and do not return to work until you are fever-free for at least 24 hours, your other symptoms have improved for at least 24 hours, and at least 10 days have passed since your first symptoms.

Anyone who has been in “close contact” with our ill employee has been separately and privately notified, and will be required to quarantine for at least 14 days from their last close contact.

We are also continuing to take the following steps to help ensure, as best as possible, your health and safety here at work:

  • Employees are required to wear masks or other facial coverings at all times while at work, unless you granted a specific exception (such as for safety, a medical reason, or because you are working alone in a closed office).
  • Employees are required to maintain six feet of physical distance from others at all times.
  • Employees must diligently wash their hands and otherwise use hand sanitizer (which we are providing in intervals around the workplace).
  • Employees must self-assess their own health before reporting to work, and no employee is permitted to come to work if they have any of the known symptoms of COVID-19.
  • Lunch room and other common areas are closed until further notice.
  • Each employee is responsible for cleaning their own work station at the end of each shift.
  • We are deep cleaning the entire workplace on a weekly basis.

Additionally, because of the unfortunate positive test, we had the facility deep cleaned and sanitized prior to anyone being allowed to reenter after we learned of the positive test.

Our commitment to your health and safety is our top priority. If you have any questions or concerns, please contact ______________. Our door is always open.

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COVID-19, hazard pay and overtime

Wage and hour compliance is complicated enough for employers. Layer a pandemic on top of wage and hour compliance, and you have an absolute nightmare for companies.

Consider, for example, hazard pay.

Suppose you are a private-sector employer that decides to offer your employees a monetary incentive to return or remain at work during the pandemic. Must you include this hazard pay in the regular rate when calculating the overtime premium for non-exempt employees receiving this payment?

According to the Department of Labor, the answer is yes.

Yes. Payments your employer provides you to perform work constitutes compensation for employment that must be included in the regular rate, subject to eight exclusions described in section 7(e) of the FLSA. None of those exclusions apply to the incentive payments described above.

The answer changes, however, if the payments are made pursuant to a state or local government program, directly from the government or indirectly passed through the employer.
Bottom line? Wage and hour issues are complex; pandemic wage and hour issues are even more complex. If you have any doubt whatsoever about whether you are correctly paying your employees, reach out to your friendly neighborhood employment lawyer for guidance.
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The 9th nominee for the Worst Employer of 2020 is … the COVID denier

COVID-19, workforce management WFM 2.0, ethics

The human resources manager for a New Hampshire company is suing her former employer after she sent an email about COVID-19 to employees and required two employees to stay home for one week after going on vacations to China and Malaysia.

She claims company officials told her she was being fired for “exaggerating ‘the China Virus.’”

The New Hampshire Union Leader has the details:

Debra Di Nola worked for Freudenberg-NOK Sealing Technologies Inc., a German company, since 2014. …

On Jan. 29, two managers asked Di Nola to advise them on two employees returning from China and Malaysia, respectively, out of concerns about COVID-19. After looking into recommendations from the Centers for Disease Control and Prevention and the state Department of Health and Human Services, Di Nola required the two employees to stay home for a week, according to the suit.

Di Nola claims a vice president of the company said “he could not work with her and did not trust her” during a meeting on Feb. 11. She was asked to leave.

“(The vice president) accused Dr. Di Nola of exaggerating ‘the China virus,’” the suit reads.

A few days later — Feb. 17 — the vice president fired Di Nola. The suit claims the vice president escorted Di Nola out of the building as other employees arrived for work.

For its part, the employer claims that it fired Di Nola for legitimate non-discriminatory performance reasons, including her lack of attention to detail, her relationship with a subordinate, her lack of engagement with employees and her repeated exaggerations and misrepresentations.
Nevertheless, if you fire an employee for exaggerating “the China virus,” you might be the worst employer of 2020.
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What one debate question would you ask each candidate?

president, Joe Biden
On Sept. 29, a mere 16 miles from my home, President Trump and Vice President Biden will step in front of the cameras to make their respective cases to America in the first of three debates. Eight years ago, some of my blogging friends and I got together to propose the debate questions we’d ask each of the candidates if we had the power to do so. Given the current state of our Republic and what’s at stake when we vote, we thought it would be a good idea to revisit this collective idea and do it again.
Here are my “one questions” for President Trump and Vice President Biden.

For President Trump
Last week, you said the following during a White House press briefing, about your intent to uphold a peaceful transfer of power following the election: “[G]et rid of the ballots and you’ll have a very … there won’t be a transfer, frankly. There’ll be a continuation.” Our democracy—in fact, any democracy—is premised on the people choosing their elected representatives and the loser of an election ceding and allowing for a peaceful transition of power. On the contrary, a “continuation” of a regime without counting ballots is the hallmark of a dictatorship, not a democracy. Mr. President, this evening will you commit, without exception, that come January 20, 2021, that if Congress declares Joe Biden, and not you, the winner of the 2020 Presidential election, you will step aside and allow for the peaceful transition of power as has occurred every four years since 1793? And if not, why not?
For Vice President Biden

To date, COVID-19 has killed more than 200,000 Americans. If the numbers and trends merey hold steady, by Inauguration Day that number will increase by more than another 100,000. Some models project the death toll will be even higher. We’d be approaching, if not surpassing, the number of U.S. combat casualties in both World Wars combined. Can you please tell the American people the steps you will take from day one in office to contain this deadly virus and decrease the tragic trajectory of death and loss?

For the questions that my employment law/HR blogging friends would ask, head over to the following:

Kate Bischoff — tHRive Law & Consulting Blog

Suzanne Lucas — Evil HR Lady

Jeff Nowak — FMLA Insights

Dan Schwartz — Connecticut Employment Law Blog

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Comorbidities, COVID-19, and your employees

health care, employee health

Let’s talk about comorbidities. A comorbidity is the simultaneous presence of two chronic diseases or conditions in a patient. In the case of COVID-19, certain comorbidities are known to increase one’s risk for a more severe illness.

According to the CDC, people with any of the following underlying medical conditions are at increased risk for severe illness from COVID-19:

  • Cancer
  • Chronic kidney disease
  • COPD (chronic obstructive pulmonary disease)
  • Immunocompromised state (weakened immune system) from solid organ transplant
  • Obesity (body mass index [BMI] of 30 or higher)
  • Serious heart conditions, such as heart failure, coronary artery disease, or cardiomyopathies
  • Sickle cell disease
  • Type 2 diabetes mellitus

Additionally, people with any the following might be at an increased risk for severe illness from COVID-19:

  • Asthma (moderate-to-severe)
  • Cerebrovascular disease (affects blood vessels and blood supply to the brain)
  • Cystic fibrosis
  • Hypertension or high blood pressure
  • Immunocompromised state (weakened immune system) from blood or bone marrow transplant, immune deficiencies, HIV, use of corticosteroids, or use of other immune weakening medicines
  • Neurologic conditions, such as dementia
  • Liver disease
  • Pregnancy
  • Pulmonary fibrosis (having damaged or scarred lung tissues)
  • Thalassemia (a type of blood disorder)
  • Type 1 diabetes mellitus
What does this mean for you and your employees? It means that for the duration of this pandemic, you likely need to maintain two sets of work rules—one for employees with comorbidities and one for those without. Employees with one of the listed underlying disabilities (or pregnant employees) might need an exception in an in-person work requirement or attendance policy, a separate work area, or more frequent breaks to remove a mask.
It does not, mean, however, that you can force or mandate a separate set of rules on disabled or pregnant employees who do not request them. The law does not allow employers to impose paternalist policies on these employees. In fact, the workplace discrimination hate paternalism. Good intentions do not excuse discrimination. An employer acting from a place of good intentions to protect disabled or pregnant workers from a potentially deadly exposure of COVID-19 is still discriminating if that’s not the employee’s choice. Only the employee can make that choice.
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DOL proposes rules to ease employer classification of workers as independent contractors

employment law, labor law, overtime records

The Department of Labor announced Sept. 22 a proposed rule amending its regulations on how to determine whether a worker is an employee covered by the Fair Labor Standards Act or an independent contractor not covered by the FLSA. This proposed rule is significant because the FLSA lacks clear guidance on these important definitions, which has left employers struggling, scrambling, and risk-taking to properly classify workers for purposes of paying overtime and other wage/hour obligations.

In this rulemaking, the DOL proposes to:

  • Adopt an “economic reality” test to determine a worker’s status as an FLSA employee or an independent contractor. The test considers whether a worker is in business for themselves (independent contractor) or is economically dependent on a putative employer for work (employee)
  • Identify and explain two “core factors”: the nature and degree of the worker’s control over the work; and the worker’s opportunity for profit or loss based on initiative and/or investment. These factors help determine the economic realities if a worker is economically dependent on someone else’s business or is in business for themselves; and
  • Identify three other factors that may serve as additional guideposts in the analysis: the amount of skill required for the work; the degree of permanence of the working relationship between the worker and the potential employer; and whether the work is part of an integrated unit of production.
You can download the entire proposed rule here, and it is open for public comment for 30 days.
As explained by Wage and Hour Division Administrator Cheryl Stanton, “The rule we proposed today continues our work to simplify the compliance landscape for businesses and to improve conditions for workers. The department believes that streamlining and clarifying the test to identify independent contractors will reduce worker misclassification, reduce litigation, increase efficiency, and increase job satisfaction and flexibility.”
I could not agree more. These business-friendly rules would be a significant benefit to employers seeking guidance on a crucial issue that continues to be the focus on costly class action litigation nationwide.
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The CDC continues to create a mess for employers on testing, and a word on RBG

concerted activity

On Sept. 18, the CDC yet again updated its guidance for COVID-19 testing. If you’re keeping count, this is the CDC’s fifth set of testing rules.

What’s changed?

Due to the significance of asymptomatic and pre-symptomatic transmission, this guidance further reinforces the need to test asymptomatic persons, including close contacts of a person with documented SARS-CoV-2 infection.

This change is huge. Just four weeks ago, the CDC had updated the same guidance to state: “If you have been in close contact (within 6 feet) of a person with a COVID-19 infection for at least 15 minutes but do not have symptoms, you do not necessarily need a test unless you are a vulnerable individual or your health care provider or State or local public health officials recommend you take one.” Now, the agency says the exact opposite.

  • If you have been in close contact, such as within 6 feet of a person with documented SARS-CoV-2 infection for at least 15 minutes and do not have symptoms.
    • You need a test. Please consult with your healthcare provider or public health official. Testing is recommended for all close contacts of persons with SARS-CoV-2 infection. Because of the potential for asymptomatic and pre-symptomatic transmission, it is important that contacts of individuals with SARS-CoV-2 infection be quickly identified and tested. Pending test results, you should self-quarantine/isolate at home and stay separated from household members to the extent possible and use a separate bedroom and bathroom, if available.

Make no mistake, this change was absolutely necessary and should have been the default all along. Because of the prevalence of asymptomatic and pre-symptomatic carrying of the virus, many do not know that they even have COVID-19, and therefore we can’t isolate to prevent further community spread without testing. It just would have been nice, however, if the CDC came to this realization sooner than six months into the pandemic.

As a result, you may have more employees missing work, and more employees seeking paid leave under the FFCRA. But that’s okay because the only way we can defeat this virus until we have a safe and reliable vaccine is to stop it from spreading in the first place.

I’d be remiss if I did not say a word or two about the passing of Ruth Bader Ginsburg.

Friday felt like an absolute gut punch. A good friend said it best on Twitter, in the hours after RBG’s passing:

God bless her for her steadfast service to the ideals of America and especially for the idea that little girls can do and aspire to whatever a little boy can. You lived your truths, exceptionally. Love you RBG.

RBG was the most significant jurist for women’s rights in the history of our nation. She is and will continue to be a hero to many, and she will surely and sorely be missed both for who she was and for what she stood and will continue to stand.
Rest in peace Justice Ginsburg. You held on as long as you could. You are now heaven’s great dissenter.