Category: Legal

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How much does it cost an employer for not following COVID-19 safety rules?

construction, mask, mobile technology, COVID-19

OSHA has cited a Missouri auto parts manufacturer for failing to implement and enforce coronavirus protections, which ultimately lead to an employee’s death. The details, from OSHA’s news release.

Two machine operators … who jointly operated a press tested positive for the coronavirus just two days apart, in late August 2020. The two workers typically labored for hours at a time less than two feet apart; neither wore a protective facial mask consistently. Ten days later, two more workers operating similar presses together tested positive. On Sept. 19, 2020, one of the press operators fell victim to the virus and died.

The total penalty was $15,604. For someone who died during a global pandemic because of his employer’s irresponsibility.

Since the pandemic started, OSHA has issued citations arising from more than 300 inspections for violations relating to coronavirus. The average penalty is $13,101.27.

While I understand that OSHA lacks a specific standard covering most COVID-19 issues, these numbers seem awfully low. Look, I’ll be the first one to tell you that more government regulation and control is a bad thing.

But, if employers aren’t motivated by the carrot to take COVID-19 seriously (that being, having a healthy and safe workplace with employees who believe you care about their welfare), then perhaps they need the stick. Some $13,000, or $15,600 when someone dies, however, seems like a pretty small stick.

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The COVID-19 vaccine and race discrimination

employment law

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.
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EEOC releases guidance on the COVID-19 vaccine

COVID-19, vaccine, flu

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.
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Coronavirus update: Don’t be this a-hole

COVID-19, coronavirus, public health crisis

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.

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Coronavirus update: Vaccines

COVID-19, vaccine, flu

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

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

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

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

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CDC cuts recommended quarantine period from 14 days to 7 – 10 days (sort of)

COVID-19, coronavirus, public health crisis

Yesterday, the CDC amended its guidance on the duration of quarantine for individuals in close contact with someone else positive with COVID-19. We need to pay close attention to the fine print. All of the headlines are reporting that the CDC has shortened its recommended COVID-19 quarantine period. That’s not, however, what happened.

Previously, the CDC recommended a 14-day quarantine period in all cases for someone in close contact. Now, however, the agency has made available the option to shorten quarantine as follows:
  1. Quarantine may end after Day 10 without testing and no reported symptoms during daily monitoring.
  2. When diagnostic testing resources are sufficient and available, quarantine may end after Day 7 with a negative test and no reported symptoms during daily monitoring.
  3. Persons can discontinue quarantine at these times only if: (a) there is no clinical evidence of COVID-19 detected during daily symptom monitoring during the entirety of quarantine up to the time at which it is discontinued; (b) daily symptom monitoring continues through Day 14; (c) persons strictly adhere to all recommended mitigation measures (masking, physical distancing, etc.) through Day 14; and (d) if symptoms develop the person should immediately self-isolate and contact their healthcare provider.
Despite this optional shortening of the quarantine period the CDC still advises, “Persons can continue to be quarantined for 14 days without testing per existing recommendations,” which “maximally reduces risk of post-quarantine transmission risk and is the strategy with the greatest collective experience at present.”
The CDC made these changes based on scientific evidence of diminishing spread from one percent down to near zero percent during days 11 – 14 without testing and days 8 – 14 after a negative test, and further based on the concern that “a 14-day quarantine can impose personal burdens that may affect physical and mental health as well as cause economic hardship that may reduce compliance.”
That said, in the middle of a deadly surge of this virus I’ll opt to keep the spread as close to zero as we can. Despite this new guidance, I think that in most cases businesses should still keep exposed employees out of work for the full 14-day quarantine. We need to be doing everything we can to slow the current surge. To me, a one-percent risk of transmission is one percent too high if we can reduce it to zero merely by waiting at home for a few more days.
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Vote for the Worst Employer of 2020

It’s officially election season for the Worst Employer of 2020.

Since it is 2020, however, this can’t be a normal Worst Employer election. This year we have two categories: Worst Employer, and Worst Employer COVID-19 Edition.

Here’s how voting will work. Each category has five nominees. You’ll rank each from 1 (worst) – 5 (least worst). Simply drag and drop into your preferred ranking. You should rank all five because positions count in the tabulation.

The nominee with the most points wins (or loses, depending on your perspective). Polls are open until 11:59 pm on December 15, at which point I’ll count the votes, certify the results, and announce the winners.

Follow this link for a refresher on this year’s 10 nominees.

The poll is available via this link, or via the embed below. Happy voting, and good luck to all of the nominees. May the worst employers win.

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Coronavirus update: Thankful

thanksgiving, soup

It’s clear that 2020 has certainly been a year like no other. People are sick and dying. Hospitals are filling up. Our essential workers are stressed and tired.

I’m tired, too. Part of what’s making me tired is continuing to hear people complain about “2020” when we have so much for which to be thankful.

Here’s my list of everything for which I have been and continue to be thankful during the pandemic.

  1. That no one in my very immediate world has become severely ill with COVID-19, or worse has died from it. I pray every day that I can still say this six months from now.
  2. That my wife and I remain gainfully employed.
  3. My daily lunches and walks with my wife, the absolute best perk of us both working from home.
  4. My kids, who have endured the pandemic, and being stuck in the house with mom and dad, as best as they can.
  5. My dogs, who will have absolutely no idea what to do with themselves when we finally go back to work outside of the home.
  6. The slower pace of life and all of the family time I’ve been able to enjoy as a result.
  7. That I’ve been able to work from home since March without anyone batting an eye.
  8. Fast WiFi.
  9. Zoom, which has allowed me to stay connected to family and friends even though I can’t visit with them IRL, and to continue to conduct business without the risk of in-person meetings, hearings, and depositions.
  10. A dry spring, summer and fall, which allowed me to see some family and friends IRL and in small groups.
  11. Democracy.
  12. My renewed love of cooking.
  13. My kids’ school, and its commitment to safety and remaining open for full-time in-person instruction.
  14. The Rockin’ the Suburbs Friday Night Hootenanny, which continues to provide my daughter a valuable virtual outlet to share her music weekly with a group of very appreciative listeners. (Pro tip: it’s free to join, and you can just sit back and listen if you have no music to share.)
  15. The scientists who worked tirelessly to deliver the COVID-19 vaccines we desperately need.
  16. Essential workers who risk their lives every day so that we can continue to live ours.
  17. Season 2 of The Mandalorian, the best show currently on TV and a Friday bonding ritual with my son that I very much look forward to.
  18. Jackbox, which has provided hours upon hours of entertainment on family game nights while allowing my kids to demonstrate their mastery of four-letter words in the safe space of our home.
  19. Curbside pickup.
  20. Red wine, gin, and bourbon.
I’ll be off the remainder of this week, and will return after the Thanksgiving weekend to open the polls for voting for the Worst Employer of 2020.
Everyone, please have a healthy and safe holiday. If you are considering getting together with family or friends for a meal or otherwise, please reconsider. I live in abject fear that if we do not behave with the appropriate level of respect for this virus, responsibility for our role in limiting its spread, and care for others we will lose all hope of controlling this virus until vaccinations reach a critical mass sometime in mid-2021.
By then, a half million of us will be dead, millions will be grieving those losses, and millions more will be suffering long-term debilitating health issues. We can still beat this virus, but it will take a concerted effort from all of us to do so.

 

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The 12th nominee for the “Worst Employer of 2020” is … the Bad Bettor

Do you remember that scene from The Deer Hunter where Christopher Walken plays Russian roulette in a betting parlor, while the patrons place bets on whether he’ll live or die with every pull of the revolver’s trigger? That’s what I thought of as I read the allegations in Fernandez v. Tyson Foods, and not in a good way.

According to the lawsuit, while COVID-19 was running rampant through Tyson’s Waterloo, Iowa, facility, the Plant Manager “organized a cash buy-in, winner-take-all betting pool for supervisors and managers to wager how many employees would test positive for COVID-19.”

That’s just the tip of the iceberg of allegations in this wrongful death lawsuit, originally filed by the family of the late Isidro Fernandez, one of at least five employees who died of the virus. Indeed, according to their local health department, more than 1,000 workers at the plant, representing over one-third of the total workforce, contracted the virus. The lawsuit claims that Tyson Food demonstrated a “willful and wanton disregard for workplace safety.”
The recently filed amended complaint, which includes allegations concerning the betting pool, adds even more meat to the bone of these unsafe working conditions.
  • Despite the rampant spread of the virus within the plant, Tyson Foods required its employees to work long hours in cramped conditions without personal protective equipment and without following other workplace-safety measures.
  • In mid-April, just before the betting pool was created, the county sheriff visited the plant and reported that the working conditions inside “shook [him] to the core.”
  • An upper-level manager directed employees and supervisors to ignore COVID-19 symptoms, not to get tested, and to continue working, and supervisors falsely denied the existence of any confirmed cases or positive tests among the workforce.
  • Tyson paid $500 attendance bonuses, which actually incentivized sick employees to continue working.
  • All the while, managers avoided the plant floor for fear of contracting the virus, and executives lobbied Iowa’s governor for COVID-related liability protections.
For it’s part, Tyson Foods vehemently denies these allegations and suspended all managers accused of taking part in the betting pool (seven months after the fact).
If you place bets on which of your employees will contract a deadly virus, while you continue to take active steps that expose them to a greater risk of contracting that virus, you might be the Worst Employer of 2020. And thank you to all of my readers who sent me this very worthy nominee.
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Disclosing human capital data is now an SEC requirement

scheduling; time and attendance; forecasting

Thanks to the new U.S. Securities and Exchange Commission rules that went into effect Nov. 9, publicly traded companies are required to disclose human capital information such as workforce cost, human capital ROI and turnover rate, among others. 

There is no grace period, so publicly traded companies must begin disclosing this human capital information starting with their Nov. 30, Dec. 31 or Jan. 31 quarterly or annual public financial statement, noted David Vance, executive director for the Center for Talent Reporting, in a blog post on Chief Learning Officer.

What this means for publicly traded companies is: they must be prepared with the right data for their next public financial release. The SEC does not require specific metrics but wants appropriate information for employee attraction, development and retention at minimum. 

There’s leeway in the metrics you can report

Various resources and reports suggest what types of measurements employers can rely on. Vance suggested the following in Chief Learning Officer:

Attraction: Time to fill, time to fill critical positions, percentage of positions filled internally, percentage of critical positions filled internally.

Development: Total cost of training and development, percentage of employees who receive training in compliance and ethics, percentage of employees who receive any training, average hours of formal training per year, percentage of leaders who receive training, percentage of leaders who receive leadership development.

Retention: Turnover, turnover for critical positions.

Additional recommended metrics: Employee engagement score, leadership trust score, diversity by gender, age, disability, race or national origin, leadership diversity, pay equity, human capital ROI, total workforce cost, number of full time employees, contingent/contract and temporary workers.

The idea behind this is so that potential investors or stakeholders have all the information they need about a company before they make their investment or voting decision. A PwC report clarified that specific metrics aren’t required so that these human capital disclosures “will be tailored to a company’s own business or industry using management’s judgment and that they may evolve over time.”

Human capital disclosure has been gaining traction the past few years, with the International Organization for Standardization passing the first-ever standard for human capital reporting in November 2018. The decision prompted HR analytics expert Jac Fitz-enz to explain what this means for the field of HR. “An ethical code, a body of research, specialized education and performance standards are the basis of a profession. The adoption of ISO standards supports human resources’ claim to be a profession,” he said. 

Even as far back as 2015, Deloitte Consulting Managing Director and workforce management expert Lisa Disselkamp said, “To say workforce management outcomes affect shareholder value and business strategy is no understatement.” 

Collecting human capital data 

The right workforce management software can help organizations collect appropriate metrics for SEC disclosure. Workforce.com allows organizations to easily compile metrics including:

  • Level of compliance with wage and hour laws.
  • Employee feedback scores.
  • Employee star ratings and performance scores.
  • Data security for employees.
  • Employee retention rates.
  • Absence management and absence rate (i.e., rate of not showing up).
  • Schedule flexibility.
  • Payroll error rate and amounts.

Human capital data collection is simple with this tool. Data on employee feedback scores or schedule flexibility can give employers insight on employee engagement or satisfaction. Plus, employers can easily keep track of how many hourly employees they have in the system versus contract or contingent workers. Rates of employee absenteeism can inform organizations on how engaged employees are and how to help predict turnover.

Don’t fall behind on your new reporting requirements. If you’re in the market for a new workforce management software, Workforce.com can provide those needs while also giving managers access to key human capital metrics.