Coronavirus Update 6–29–2020: Judge hands McDonald’s a whopper of a rebuke for its COVID-19 response

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.

Last 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.

Coronavirus Update 6–26–2020: New music Friday—Norah (en français), and a brand new Old 97’s song @suburbspod #FridayNightHootenanny

Since early May, Norah has spent her Friday nights jamming on the Rockin' the Suburbs podcast's Friday Night Hootenanny. Each Friday at 8 pm, the podcast hosts a virtual jam session via Zoom (sign up here). People can join just to listen or to share a song or two. Each week Norah's been sharing songs from the songbook she's been crafting during quarantine. Last Friday, she played her latest, a song she wrote entirely in French. (Fun facts: Norah has been taking French since kindergarten, she won the "Best Overall French Student" award at her recent middle school graduation, and I can feel her teenage face cringing as I type this.) 

The song is called, "Pas de Pluie, Pas de Fleurs" (No Rain, No Flowers). It's completely beautiful and blew me away. The Rockin' the Suburbs hosts were kind enough to share the video with me, and I'm now sharing it with you.

Coronavirus Update 6–25–2020: Are employees taking paid leave under the FFCRA? — the results

The results are in from my survey on the prevalence of employee leave under the FFCRA. Of those employers that are covered by the FFCRA:

• 86 percent have an FFCRA policy
• 59 percent train employees on the FFCRA
• 74 percent have had an employee take leave under the FFRCA

Coronavirus Update 6–24–2020: Are employees taking paid leave under the FFCRA?

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. 

Coronavirus Update 6–23–2020: Must you accommodate an employee with a high-risk family member?

A bit of personal news: I have requested the opportunity to work from home for the fall semester because of my daughter’s heart condition. I found out this afternoon that it was rejected because it is my child’s condition and not mine.

— Jason Helms (@helmstreet) June 17, 2020

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?

Coronavirus Update 6–22–2020: Ohio ends unemployment benefits to employees who refuse to work (with some key exceptions)

The state of Ohio will begin denying unemployment benefits to employees who refuse to work because of coronavirus. 

Governor DeWine issued an Executive Order last week directing the Ohio Department of Jobs and Family Services to deny unemployment benefits to employees who refuse to return to work after recall to the same position held before the state's Stay at Home Order took effect.

Coronavirus Update 6–19–2020: How to communicate when an employee tests positive

Positive COVID-19 tests are sadly the reality of 2020, and likely at least part of 2021. Nationally, 2.23 million of us have tested positive for coronavirus. If your employees have been fortunate enough so far to avoid the virus, the odds are good that before this pandemic is over one or more of your employees will test positive.

Before we discuss the right way to communicate a potential workplace exposure to your employees, let's explore the wrong way, via one of my favorite punching bags, the WWE. 

Coronavirus Update 6–18–2020: Errata—employers cannot require antibody tests of employees, says EEOC

Two months ago I suggested that the EEOC would conclude that employers could require COVID-19 antibody tests as a condition of employment. Yesterday, based on updated guidance from the CDC, the EEOC said the exact opposite. Given the inherent unreliability of COVID-19 antibody tests, I'm happy to have been wrong.

Does Title VII protect employees whose spouses are pregnant?

A male Disney employee has filed suit against his former employer, claiming that Disney unlawfully discriminated against him because of his wife's pregnancy. 

According to Steven Van Soeren's complaint, Disney fired him after he took two weeks of paternity leave following the birth of his child, and after supervisors advised him during his wife's pregnancy on the wisdom of having a child. (As an aside, Van Soeren claims that his supervisors learned of the pregnancy by hacking his computer.)

Everything you need to know about Bostock v. Clayton County—the #SCOTUS LGBTQ discrimination decision—in five quotes

June is Pride Month. If you thought the month's biggest LGBTQ news was Nickelodeon tweeting that SpongeBob was part of the LGBTQ+ community, you have another thing coming. Yesterday, in Bostock v. Clayton County, the United States Supreme Court clearly, decisively, and unequivocally held:

 

An employer who fires an individual merely for being gay or transgender violates Title VII.

The Bostock majority opinion is 33 pages long. I'll break it down for you in five key quotes.

BREAKING NEWS: U.S. Supreme Court holds that Title VII protects LGBTQ employees 🏳️‍🌈

In a landmark ruling issued this morning, the U.S. Supreme Court held that Title VII's prohibition against sex discrimination also prohibits employers from discriminating against LGBTQ employees. The 6-3 decision majority included conservative Justice Neil Gorsuch (who authored the opinion) and Chief Justice John Roberts joining the Court's four liberal justices.

I'll have my full analysis on this case tomorrow. Suffice it to say that June 15 is a historic day for civil rights.

Coronavirus Update 6–15–2020: COVID-19 is not an excuse for age discrimination

Consider these headlines:

• Older Workers Grapple With Risk of Getting Covid-19 on the Job
• Older Workers Returning to Office Fear Both Virus and Job Loss
• Age, Pregnancy Discrimination Concerns Raised Ahead of Returns to Worksites

While there's still a lot we don't know about COVID-19, one of the things we do know for sure is that is much more greatly impacts people age 65 and above. 

Coronavirus Update 6–12–2020: sanctimony (and masks) #MaskingForAFriend

Yesterday, I asked a simple question: Do you voluntarily wear a mask or other facial covering when out in public? Thank you to the hundreds upon hundreds who responded. Here are the results:

• Yes, always: 23.6%
• Yes, except when I’m socially distant from others outdoors: 48.8%
• Yes, but only when indoors: 18.6%
• No, never: 8.9%

Coronavirus Update 6–11–2020: OSHA issues guidance on cloth face coverings at work

I continue to struggle with comprehending how masks and facial coverings became one of the key coronavirus issues that's divided our nation. Click here for the latest actual science on the issue of whether masks help stop the spread of COVID-19. (TL;DR: they most certainly do.)

OSHA has now waded into the mix by issuing a list of Frequently Asked Questions on cloth face coverings.

The highlights? 

Coronavirus Update 6–10–2020: President Trump signs Paycheck Protection Program Flexibility Act of 2020, extending PPP loan forgiveness

The Paycheck Protection Program Flexibility Act of 2020, which President Trump signed into law on June 5, makes several key business-friendly changes to the small business loans made under the CARES Act's Paycheck Protection Program.

Coronavirus Update 6–9–2020: Northeast Ohio restaurants sue to block reopening guidelines

What is a state's ability to regulate businesses during a pandemic? This question is one that will be answered in a lawsuit filed yesterday by eight local restaurants against Ohio Director of Health Dr. Amy Acton. The lawsuit claims that Ohio's reopening rules and guidelines for restaurants are unconstitutional, vague, and could subject them to liability from patrons if not strictly followed.

Not to do the Attorney General's job for him, but let me offer a quick rebuttal to each of these arguments.

Coronavirus Update 6–8–2020: “I was terminated for refusing to wear a ‘Trump 2020’ face mask."

Ohio requires that all employees wear face masks or other face coverings as a condition to any business reopening that (subject to a few limited exceptions). The only rules are that the mask cover the employee's nose, mouth, and chin. There are no other requirements about the nature of the mask or face covering, including its design or style.

One southern Ohio business, The Village Inn restaurant in Farmersville, is testing the mask-requirement waters by requiring its employees to wear "Trump 2020" masks.

Worse, it's firing employee who refuse. 

Coronavirus Update 6–5–2020: Cleveland is not the “butthole of the world"

Earlier this week, Frank Jackson, Cleveland's four-term mayor, said that "Cleveland's perceived to be the butthole of the world." (You can watch here.)

The Mayor certainly isn't going win any civic promotional awards for his comment. In an effort to prove that Cleveland isn't the "butthole of the world," let me offer 10 reasons why I love Cleveland, my home town for the past 26 years.

Coronavirus Update 6–4–2020: Can you force employees who participate in George Floyd protests to quarantine without pay?

Yesterday I discussed the legalities of placing on an unpaid leave of absence employees who engaging in leisure mass gatherings outside of work.

What about employees who you discover gathered in mass to protest George Floyd's murder and racial injustice? There are legitimate concerns that the mass protests taking place in cities around the country will cause an acceleration of COVID-19 spread and a spike in cases. Can you place protesting employees on an unpaid leave of absence to quarantine before they return to work?

The TL;DR answer is "yes." 

Coronavirus Update 6–3–2020: Do “Lake of the Ozarks” employees sent home from work qualify for paid sick leave under the FFCRA?

Last week I discussed how to handle employees who are not social distancing outside of work. My thoughts were spurred by videos of employees partying over the Memorial Day weekend at Lake of the Ozarks and elsewhere around the country.

I said the following: 

I would also place any employee who violated social distancing rules outside of work (whether the information is volunteered on a self-assessment or discovered through a viral video) on a mandatory two-week unpaid leave of absence and require a quarantine as a condition of continued employment.

It looks like I might have a reader in Lincoln County, Missouri. 

According to KSDK, employers are mandating unpaid leaves of absence and quarantines for employees who spent their holiday weekend amid the throngs at Lake of the Ozarks, The story also quotes an attorney who says that placing an employee on an unpaid leave of absence, under those circumstances, might violate the FFCRA's requirements for paid sick leave for an employee "advised by a health care provider to self-quarantine due to concerns related to COVID-19."

I completely disagree, and the Department of Labor has my back.

Take a look at Question 77 to the DOL's FFCRA Questions and Answers:

May I take paid sick leave or expanded family and medical leave under the FFCRA if I am on an employer-approved leave of absence?

It depends on whether your leave of absence is voluntary or mandatory. If your leave of absence is voluntary, you may end your leave of absence and begin taking paid sick leave or expanded family and medical leave under the FFCRA if a qualifying reason prevents you from being able to work (or telework). However, you may not take paid sick leave or expanded family and medical leave under the FFCRA if your leave of absence is mandatory. This is because it is the mandatory leave of absence—and not a qualifying reason for leave—that prevents you from being able to work (or telework).

In other words, if an employee's leave of absence is the employer's choice, as is the case in the Lake of Ozarks example, then the employee does not qualify for FFCRA paid sick leave, because it's not a COVID-19 medical recommendation or quarantine that's preventing the employee from working but the leave of absence. It's no different from a furlough, for which employees also do not qualify for FFCRA paid leave. As long as you place an employee on leave before they tell you they've been advised by a health care provider to self-quarantine because of COVID-19 concerns, you shouldn't have to worry about paying the employee for that leave under the FFCRA.

* Photo by Shane on Unsplash

 

Coronavirus Update 6–2–2020: Justice Department indicts employee for COVID-19 workplace fraud

In mid-April the FBI warned employers to be on the lookout for fake COVID-19 diagnoses, doctors' notes, and other coronavirus-related documents from employees. The Justice Department has now indicted the first employee for committing this new breed of fraud.

The Justice Department provides the details:

I am at a loss for words…

I cannot ignore the appalling tragedies we experienced over the past week, first through the murder of George Floyd, and then through the riots and destruction left in its wake. 

Yet, I cannot find the words.

So, I'll simply share those of the two greatest civil rights leaders our world has ever know.

Martin Luther King, Jr.: "Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that."

And Nelson Mandela: "No one is born hating another person because of the color of his skin, or his background, or his religion. People must learn to hate, and if they can learn to hate, they can be taught to love, for love comes more naturally to the human heart than its opposite."

And leave you with a song.

 

☮️ ❤️ & 🙏

Coronavirus Update 5-29-2020: Friday olio — an A+ set of reopening guidelines, a webinar, and a playlist

A few shares for your Friday. 

First, on Wednesday the CDC published sweeping recommendations for reopening office buildings. According to the CDC, employers should, among other COVID-19 changes, take employee temperatures and check their symptoms upon arrival, space desks six feet apart or install shields between them, bar seating in common areas, and mandate face coverings. The CDC is also recommending updates to HVAC systems and abolishing communal perks like coffee pots and bulk snacks. 

Coronavirus Update 5-28-2020: Is your business ready for the COVID-19 golden age of union organizing?

Among the many lessons we will learn from the COVID-19 pandemic is its demonstration of the importance of union membership for essential workers.

Of all the injustices exposed by the pandemic, the risks faced by non-union workers have become the most apparent. Non-union workers are being asked to risk their safety with little or no protections of their own.

Gary Perinar (executive secretary-treasurer of the Chicago Regional Council of Carpenters), The importance of unions is more obvious than ever during the COVID-19 pandemic, Chicago Sun-Times, Apr. 30, 2020

One of the unexpected byproducts of the COVID-19 pandemic is a corresponding rise in union organizing. This crisis has magnified attention on key labor union agenda items and talking points such as worker safety and higher pay. Unions have not been shy about pressing these issues not only for current members but also more importantly for potential members.

Coronavirus Update 5-27-2020: Is McDonald’s really a public nuisance?

As I've written in the past, it's difficult bordering on impossible for an employee to sue their employer based on an alleged COVID-19 exposure at the business. First, they have to overcome the issue of workers' comp exclusivity. And if they can manage to clear that, they still have the causation problem of proving that the exposure of this highly transmittable virus happened at work (as opposed to anywhere else in the world). 

There's nothing like a pandemic, however, to spark the creativity of lawyers. Workers and their families have filed a class-action lawsuit against McDonald's Corporation seeking to have the fast-food conglomerate's alleged failure to comply with health guidance and provide PPE declared a public nuisance.

Coronavirus Update 5-26-2020: When an employee isn’t social distancing outside of work

How did you spend your Memorial Day weekend? Mine was way more mundane than years past. I watched my nephew receive his high school diploma and pre-record his valedictory address in an individual, family-only ceremony. We walked the dogs a bunch. We went to Lowes, masks on faces (the first store in which I've been inside other than a grocery store in over two months). I BBQed for my wife and kids. 

Other people chose less COVID-appropriate holiday weekend activities.

This video is on Snapchat in the Lake of the Ozarks? Unreal. What are we doing? pic.twitter.com/m0qsEQ4KLp

— Max Baker (@maxbaker_15) May 24, 2020

Scenes like this one were repeated all over the country. Will you be surprised when COVID-19 cells spring up in two weeks linked to these mass gatherings? Because they will, and I won't be.

Here's my question. What do you do if you see one of your employees in one of these social-gathering viral videos? Do you welcome him or her back into the workplace today with open arms? 

Coronavirus Update 5-22-2020: We really don’t want our employees being “Tisons"

Social media is congratulating Tison, a Costco employee who turned away an angry customer who refused to wear a mask, a condition required by Costco to shop in its stores.

Kevin and Karen get shopping cart taken away at #Costco || ✌🏼 #wearethepeople #COVID19 #coronavirusuk #COVIDIDIOTS pic.twitter.com/LDeB1hDz9L

— ONLY iN LVNV ➐ (@OnlyInLVNV) May 18, 2020

Coronavirus Update 5-21-2020: Ohio judge grants Pyrrhic victory to gyms closed by Stay at Home Order

The 1851 Center for Constitutional Law sued the State of Ohio on behalf of 35 gyms forced to close because of Ohio's Stay of Home Order, claiming that the forced closure violated their constitutional rights. Yesterday, Judge Eugene Lucci of the Lake County Court of Common Pleas agreed. He issued a preliminary injunction temporarily halting the State's application of the Stay at Home Order against them.  

Coronavirus Update 5-20-2020: Governor DeWine’s “Ohioans Protecting Ohioans” advisory is a colossal miscalculation

This past weekend offered a perfect coronavirus storm in Ohio. The weather on Saturday was postcard-perfect, and restaurant and bar patios were open for business. This combination caused scenes like this one on the banks of the Cuyahoga River:

Some serious social distancing goin on in the flats #secondwavecomin pic.twitter.com/JNsx7mVBQo

— Pete Marek (@PeteMarek) May 16, 2020

Governor Mike DeWine reacted swiftly to these reports by assembling "a large contingent of law enforcement and health officials from across state agencies and from our local communities" to spot-check and investigate restaurants and bars. He further made clear that restaurants that ignore his reopening requirements could face prosecution and lose their liquor license. 

Yesterday, however, Governor DeWine also stated that the State is now moving from requirements imposed on people to strong recommendations for people to follow.  

Coronavirus Update 5-19-2020: Lawsuit highlights risk of businesses not reopening safely and correctly

An employee has sued a Utah protein bar company after she contracted COVID-19. She claims that she became ill because her employer ignored her safety-related complaints and did not take sufficient steps after other co-workers first got coronavirus. You can read her lawsuit here.

Coronavirus Update 5-18-2020: House proposes significant expansions to FFCRA paid leave

Late Friday, the House of Representatives passed the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, H.R.6800. Among other things, it proposes significant clarifications and expansions to the Emergency Family And Medical Leave and Emergency Paid Sick Leave provisions of the Families First Coronavirus Response Act.

What are these proposed changes?

Coronavirus Update 5-15-2020: One that got away … and one that didn’t

There's no such thing as bad publicity. Or at least that's how the saying goes. 

Monday evening I received the following Twitter DM from TMZ Live: "Hey, have any interest in being on TV to comment on a story for TMZ Live via Skype?" Never one to turn down a chance to be a TV, I replied and started the ball rolling towards the segment I was to record via Skype on Wednesday. 

In hindsight, I should have asked for more specifics about the topic I'd be asked to discuss. I assumed that because I curate my online presence around being an employment lawyer (and lately a COVID-19 lawyer) they had reached out because they had a topic in their queue that touched on my professional background. 

I severely miscalculated.

Coronavirus Update 5-14-2020: Workers’ Comp waivers aren’t just a bad idea, they are also almost certainly illegal

Consider this headline from the Las Vegas Review-Journal: Restaurant, fearing coronavirus lawsuit, creates liability waiver. The article goes on to describe a Las Vegas restaurant, Nacho Daddy, which is requiring its employees to sign a waiver of liability before it will allow them to return to work. Says the company's co-owner and president, Paul Hymas, “If someone’s not comfortable with COVID being out there, then they probably shouldn’t be working."

I am not a Nevada lawyer. I know nothing about Nevada employment laws. But, if Nevada is anything like Ohio, workers' compensation is employee's exclusive remedy for any injuries an employee suffers related to work, and an employer would be immune from any other injury claims. 

Coronavirus Update 5-13-2020: Workplace virus screening tools aren’t perfect, but they are at least part of a solution

How do you protect your employees during a pandemic? This is the question this New York Times article asks. As states reopen and businesses recall employees from furlough or temporary work-from-home arrangements, employers are trying to figure out exactly how to best ensure (without guaranteeing) the health and safety of their employees.

Some options highlighted by the NYT piece? Apps that let employees log symptoms, daily health self-assessments, mandatory temperature checks, and immunity badges for those with COVID-19 antibodies. 

Coronavirus Update 5-12-2020: You have every right to be a 𝘤𝘰𝘷𝘪𝘥𝘪𝘰𝘵, and we have every right to fire you for it

"Covidiot: A person who acts like an irresponsible idiot during the Covid-19 pandemic, ignoring common sense, decency, science, and professional advice leading to the further spread of the virus and needless deaths of thousands."

A Dallas law firm has terminated the employment of a document services manager after it discovered his threatening, offensive, racist, and very public Facebook post taking issue with mandatory face masks.

"No more masks. Any business that tells me to put on a mask (Whole Foods on Lomo Alto) in Dallas will get told to kiss my Corona ass and will lose my business forever. It's time to stop this BULLSHIT. Do I have to show the lame security guard outside of a ghetto store my CV19 test results? I will show him my Glock 21 shooting range results. With Hornady hollow points. Pricey ammo, but worth it in this situation. They have reached the limit. I have more power than they do.....they just don't know it yet."

Coronavirus Update 5-11-2020: The 6th(!) set of FAQs from the DOL on the FFCRA

Consider the following scenario.

An employee has been working from home productively and without issue since the state Shelter in Place order took effect. Now, however, he is requesting paid sick leave and expanded FMLA under the FFCRA to care for his children because their school is closed because of COVID-19. You want to: (a) ask the employee why he is unable to continue working from home or if he has pursued alternative child care arrangements; and (b) deny the leave request without a reasonable explanation.

If you carry through with your plan, will you violate the FFCRA?

According to the most recent FAQs published by the Department of Labor, the answer is yes.

Coronavirus Update 5-8-2020: Can you legally refuse to return to work to someone at “high risk” for COVID-19 complications?

As you start recalling employees to your physical workplace from remote work-from-home arrangements or furlough, you are concerned about an employee who has an underlying medical issue that the CDC says places him at a higher risk for complications from coronavirus.

Can you refuse to return this employee to work?

According to recently updated guidance from the EEOC, the answer might be “yes.”

Coronavirus Update 5-7-2020: Things I miss 😢

These are the top 10 things I miss (in no particular order):

1/ Seeing family and friends in person. (happy birthday Mom!)

2/ Hugs and handshakes.

3/ Dining out.

Coronavirus Update 5-6-2020: How do parents return to work without available childcare?

Childcare is the issue that has gotten the least attention in discussions about employees returning to work. As states begin to slowly reopen and return employees to work, working parents are left wondering who will care for their children if schools, daycares, and camps are closed.

Coronavirus Update 5-5-2020: Ohio encouraging employers to report AWOL employees to ODJFS

Last week I asked how employers could encourage employees to return to work when unemployment benefits pay them more than their jobs. One suggestion I offered was to hit employees with the stick of unemployment-benefit termination.

Employees who refuse return-to-work offers might be disqualified from collecting further unemployment benefits (unless their refusal is because of coronavirus), and you can advise employees that refuse a recall that you will be asking the state to terminate their benefits. 

Late last week, the State of Ohio provided a clear reminder to employers of the validity of this threat.

Coronavirus Update 5-4-2020: Handling employee mental-health issues in a world and workplace changed by coronavirus

May is Mental Health Awareness Month, which is as good a time as any to bring up an issue that has been weighing heavily on my mind — the looming mental health crisis that our employees are facing and will continue to face in a world and workplace changed by coronavirus.

Coronavirus has altered all of our lives, and all employees are dealing with stress, anxiety, and isolation.

Coronavirus Update 5-1-2020: Some Friday links to share

Just a couple of links to wrap up another looooong week in the world of COVID-19.

First, the video from Tuesday’s Zoominar.

Coronavirus Update 4-30-2020: The last and absolutely final (I hope) word on masks in Ohio businesses

Next Saturday (May 9) will mark the (lucky) 13th anniversary of the Ohio Employer Law Blog (NKA the Coronavirus Law Blog). Never did I ever think that I’d have reason to write five different posts in the span of 48 hours on the issue of whether employees are, or are not, required to wear masks or other facial coverings in the workplace. Blogging in the times of coronavirus, however, is certainly unique.

Yesterday, Lt. Governor John Husted provided what I believe (and hope) is the final word on the rules surrounding masks and other face coverings for businesses.

Coronavirus Update 4-29-2020 number 2: Ohio flips (again) on mandatory masks for employees

Adding to the profound confusion on the mask requirements for reopening businesses, Ohio appears to have changed its mind for the third time in the past 48 hours on whether masks will be required for employees.

It now appears that masks are required for employees and recommended for visitors and customers.

Coronavirus Update 4-29-2020: Governor’s DeWine’s explanation for why masks are only “recommended” falls woefully short

I tuned in yesterday to Governor DeWine’s 2 pm briefing to learn why Ohio had changed its stance on face masks and coverings from “mandatory” to “recommended best practice.” His explanation falls way short.

The Governor offered two explanations, both based on feedback he received from constituents in the hours after his original pronouncement.

1. Masks are offensive to some, who don’t like the government telling them what to do.
2. Masks can be problematic for people with disabilities.

Coronavirus Update 4-28-2020 number 2: Ohio’s reopening plan 𝗿𝗲𝗰𝗼𝗺𝗺𝗲𝗻𝗱𝘀 masks for all employees

“Life moves pretty fast. If you don’t stop and look around once in a while, you could miss it.”

 – Ferris Bueller

This morning, I wrote an entire post about the wise policy choice the State of Ohio made in mandating masks or facial covering for everyone entering a business moving forward. Then I conducted a webinar for over 200 people during which I spoke at length about this face-covering requirement.

What happened next? Ohio changed its mind.

Coronavirus Update 4-28-2020: Ohio’s reopening plan includes 𝗺𝗮𝗻𝗱𝗮𝘁𝗼𝗿𝘆 masks for all employees

Yesterday, Governor DeWine announced his plan to “responsibly” reopen Ohio, which will happen in phases.

• May 1: Healthcare procedures that don't require an overnight hospital stay, dentists, and veterinary offices
• May 4: Manufacturers, distribution, construction, and general office environments
• May 12: Consumer, retail and service providers
• Restaurants, bars, salons, and daycares will remain closed until further notice.

Ohio’s coronavirus microsite has all of the requirements and recommended best practices for each business sector.

Generally, the state is requiring five protocols for all businesses as a condition to reopening:

Coronavirus Update 4-27-2020: Bringing your employees back to work when unemployment pays them more than you do

At 2 pm today, Governor DeWine will announce his plan for restarting Ohio’s economy (currently expected to begin on May 2). One huge issue, however, is how businesses can incent their employees to return to work if unemployment is paying them more than you will.

Including the CARES Act’s $600 unemployment bonus that expires on July 31, an employee earning maximum unemployment benefits from the State of Ohio earns $1,247 per week, the equivalent of an hourly rate of $31.17 or a yearly salary of nearly $65,000. My guess is that most of your employees do not earn this much. It’s one of the worst unintended consequences of the CARES Act—employees are making more money unemployed than they did employed.

Thus, how do you incent your employees to come off unemployment and return to work, either because you are reopening or you need to end their furlough? You can either use the stick or the carrot.

Coronavirus update 4-24-2020: A coronavirus DOL settlement, and listen to me discuss empoyers’ preparations for reopening our economy

It did not take long for the Department of Labor to announce its first-ever settlement of a claimed violation of the Families First Coronavirus Response Act.

The DOL’s press release provides the details:

Coronavirus update 4-23-2020: Your employees walk out in protest over coronavirus-related working conditions. Now what?

This week, Amazon workers are protesting what they view as unsafe working conditions. 300 workers from 50 facilities will skip their scheduled shift to protest Amazon’s treatment of warehouse workers.

According to United for Respect, the worker rights group organizing the protest, says that the Amazon employees are hoping to accomplish the following.

Coronavirus update 4-22-2020: I was (mostly) correct on the intersection between employer-provided paid leave and leave under the FFCRA

Last week I took a stab at making sense of the messy and unclear rules surrounding the substitution of employer-provided leave (which, for the sake of simplicity, I’ll refer to as (“PTO”) for paid sick leave (“EPSL”) and expanded Family and Medical Leave (“EFMLA”) under the Families First Coronavirus Response Act.

I was (mostly) correct.

Yesterday, the Department of Labor published its 5th set of FAQs discussing the FFCRA. Question 86 squarely addresses and clarifies the intersection between employer-provided paid leave and leave under the FFCRA.

Coronavirus update 4-21-2020: Can and should employers require antibody testing as a return-to-work condition?

We all want to get back to work as safely and as quickly as possible. One thing that would allow us to do this with confidence is widespread antibody testing—a quick blood test to reveal if one carries the COVID-19 antibodies from which an employer can presume exposure, immunity, and a reasonable degree of safety for an employee to return to work.

This testing, however, raises two critical questions.

1/ Can employers legally require it?
2/ Should employers rely on it as an indicia of safety?

Coronavirus update 4-20-2020: What a business operating in the time of coronavirus CANNOT look like

On Friday I shared my thoughts on the measures businesses absolutely must take as a condition to reopening when governors restart their economies.

Today, I am sharing the consequences that will happen if states and businesses get this wrong.

NPR reports on the Smithfield Foods pork processing plant in Sioux Falls, South Dakota, which has become a hot spot of coronavirus transmission. That facility has seen 634 of its 3,700 total employees positive. Sadly, the first employee recently died.

Coronavirus update 4-17-2020: Preparing your workplace for a restarted economy … plus a podcast and some music

President Trump has been talking for weeks about restarting the economy and getting employees back to work. Last night he unveiled his three-phased guidelines to reopen the country. (I’m ignoring the scary fact that WWE Chairman Vince McMahon was one of its key architects.) And now governors around the country (with whom the actual reopening authority actually rests) are joining the conversation.

Yesterday, Governor Mike DeWine of Ohio (who has been internationally praised for his forward-thinking handling of the coronavirus crisis in my state) announced that businesses in Ohio will begin slowly reopening starting May 1.

It’s unclear yet which businesses will be first to reopen (let me suggest non-essential manufacturing) or what standards they will be required to meet as a condition to opening and remaining open.

Coronavirus update 4-16-2020: FBI warns companies about employees faking coronavirus diagnoses

Given the amount of time I spend on this blog pointing out the awful things that employers do to their employees, I thought I’d flip the script and focus my glare on a group of horrible employees.

According to CNN, the FBI has advised businesses that employees are faking positive coronavirus diagnoses with phony doctors’ notes and other fraudulent documentation.

Coronavirus Update 4-15-2020: Declaring professional wrestling an essential business demeans the sacrifices all essential workers are making

Have you taken the “Florida Man challenge”? It’s a hoot. You type “Florida man” along with your birthdate to discover the head-scratching things Floridians have done on that date.

For example, “Florida Man February 13” (my birthday) yields this gem: Florida Man Carrying Steroids and Marijuana Crashes Van While Attempting to Flee Cumby PD.

And if you take the challenge for today, winner winner chicken dinner: Florida Man High on Flakka Has Sex with Tree and Calls Himself Thor.

It should therefore not come as any surprise to learn the state from which this headline originated: DeSantis Deems Pro Wrestling “Essential Business” Amid Statewide Stay-at-Home Order.

Coronavirus Update 4-14-2020: Telecommuting as a reasonable accommodation

Telecommuting has become the coronavirus norm. The CDC recommends that employees who can work from home do so, and state Stay at Home orders are requiring telework whenever possible.

The larger questions, however, are whether COVID-19 will change our national outlook on the viability of telework, or when his crisis ends will businesses return to their pre-coronavirus telework hostility?

I hope it’s the former but I fear it’s the latter. And if it’s the latter, Tchankpa v. Ascena Retail Group, which the 6th Circuit decided in the midst of the growing coronavirus outbreak and just five days before the WHO declared a viral pandemic, gives us some insight into the future issues.

Coronavirus Update 4-13-2020: Trying to make sense of the substitution of employer-provided leave for EPSL and EFMLA under the FFCRA

One of the more confounding sets of rules under the FFCRA is when employers can require employees to substitute an employer’s own provided leave (which, for the sake of convenience I’ll refer to throughout as “PTO”) for paid leave —the 80 hours of paid sick leave (“EPSL”) or the 12 weeks of expanded family and medical leave (“EFMLA”)—mandated by the Families First Coronavirus Response Act.

Today I am going to make an attempt to explain these rules, but I’ll fully admit that it’s still not 100 percent clear to me. The text of the FFCRA seems to suggest that an employer can never require the substitution of PTO. The DOL’s proposed regulations, however, muddy the waters, which were muddied even further by an amendment to those proposed regulations published last Friday, which deleted language from the regulations’ explanatory discussion relating to the substitution of PTO for EFMLA.

So let’s try to sort it all out.

Coronavirus Update 4-10-2020: The top 5 things I’m doing besides working

How are you filling your non-working time? We used to fill our time running our kids all over the place for various lessons, rehearsals, and gigs. Now, however, we have a lot of down-time, with nothing to do. So how am I filling my time when I’m not working? (Which, btw, I’ve been doing a lot of over the past month.)

Coronavirus Update 4-9-2020: CDC issues new guidelines for the return of essential workers to work after a coronavirus exposure

Last night, the Center for Disease Control issued new guidelines for when an essential employer should permit a critical infrastructure employee to return to work after a coronavirus exposure (defined as a household contact or having close contact within 6 feet of an individual with confirmed or suspected coronavirus for up to 48 hours before the individual became symptomatic).

The guidelines are a substantial departure from how I’ve been advising my clients for the past month.

Coronavirus Update 4-8-2020: Employers, if you are requiring your employees to wait in line for a coronavirus fever check, please pay them for waiting

Bloomberg Law asks whether employers are “responsible for paying workers for the time it takes to record their body temperatures before entering the workplace.” To me, this question doesn’t require a legal analysis but a common-sense application of basic decency. If your employees are queuing before entering work because you are requiring them to pass a temperature check, pay them … period.

Since this is a legal blog, however, I might as well look beyond common sense and examine the laws impacted by this issue—the ADA and the FLSA.

Coronavirus Update 4-7-2020 number 2: FFCRA loopholes (and another Zoominar)

Senator Patty Murray (D-Wash.) and Congresswoman Rosa DeLauro (D-Conn.) have sent a scathing letter to Secretary of Labor Eugene Scalia calling out the DOL for contradictions they see between the text of the Families First Coronavirus Response Act and the agency’s interpretive guidance.

Among the issues that they red-flagged: