Coronavirus Update 8-26-2020: New DOL guidance explains employers’ obligation to track compensable telework time

With more employees working from home than ever before (thanks to COVID-19), employers are facing the new reality of tracking working time for remote workers and paying for that time.

The DOL recently published a new Field Assistance Bulletin explaining the obligation of employers to pay for non-exempt employees' "working time" and the obligation of those employees to track this time. It's not a change in the law, but instead a great reminder of the obligations the FLSA imposes on employers and employees. 

Coronavirus Update 8-25-2020: This example of WFH is WTF

Alison Green, who pens the super engaging and helpful Ask A Manager blog, reached out to me to help with a reader question.

You should jump over to Alison's post to read the whole bonkers scenario, but the TL;DR is that an employee's spouse asked about the legality of an employer-installed app on her work-from-home husband's phone that audio recorded everything happening in the home (whether work related or not).

Coronavirus Update 8-21-2020: Back to school

Today is my kids' first day of school. Not virtual school. Not distanced learning. Not a hybrid model. In-person school. I just returned home from dropping them off for their respective first day of high school and middle school.

We are blessed to have the resources to send our kids to small, independent private school that is uniquely positioned to open for full-time in person learning in the midst of a pandemic. With approximately 400 students in the entire school across grades K-12, class sizes are already naturally small. With a 93-acre campus, many classes will be held outside. With no cafeteria, lunch time is greatly simplified. It's the perfect school to educate in-person while we live with COVID-19. And it has a great plan to keep my kids, the rest of the students, and its faculty and staff as healthy and safe as reasonably possible.

BLM vs. MAGA at work

Depending on your political perspective, Goodyear is either being praised or criticized after this slide from diversity training at its Topeka, Kansas, plant went viral.

BLM or LGBT messages on clothing okay; MAGA, Blue Lives Matter, All Lives Matter, or other political symbols not okay.

Coronavirus Update 8-19-2020: Government watchdog says OSHA whistleblower claims up, investigations down during pandemic

According to a report released yesterday by the Office of Inspector General, since the start of the COVID-19 pandemic, OSHA has been flooded with complaints by employees that their employers retaliated against them for making virus-related complaints. Yet, because of staffing shortages within OSHA's whistleblower protection program, the agency has been severely hampered in its ability to promptly investigate claims, resulting in significant investigatory delays.

Coronavirus Update 8-18-2020: Phishing attacks are yet another COVID-19 issue that needs to be on your radar

According to the Detroit Free Press, cybercriminals are exploiting the COVID-19 pandemic to try to access people's computers and steal their data.

The scheme? 

Coronavirus Update 8-17-2020: COVID-19 and protected concerted activity

Let's suppose you're a health care organization that terminates an employee after the employee refuses to wear a shared isolation gown and after the employee starts a group discussion with co-workers about the risks and dangers of shared gowns.

If that employee files an unfair labor practice charge with the National Labor Relations Board alleging that the termination unlawfully violate his right to engage in protected concerted activity under Section 7 of the National Labor Relations Act, do you win or lose the case?

Coronavirus Update 8-14-2020: Just call me Bob Villa

If you would have told me six months ago that I'd spend my summer building useful things out of wood, I'd have asked if you were drunk or high. But, 2020. So, after successfully conquering a dog house, my wife and I decided to tackle chairs for our new deck.

Fifteen days from now we will celebrate our 17th wedding anniversary. Colleen brought it my attention that the traditional 17th anniversary gift is furniture. Why not spend a weekend of togetherness building some?

Coronavirus Update 8-13-2020: The 7th nominee for the “worst employer of 2020” is … the no-mask mandator

Meet Billy Woods, the sheriff of Marion County, Florida. He loves youth ranches and senior services, and hates face masks.

Earlier this week, Sheriff Woods prohibited his approximately 900 employees from wearing masks or facial coverings while on duty. The Ocala StarBanner quotes the email he sent to his employees, "[W]hen you are on-duty/working as my employee and representing my Office – masks will not be worn." (His directive also includes anyone entering any of his buildings.) 

In the meantime, central Florida is among the hottest of COVID-19 hot spots, and on the same day Sheriff Woods sent his email, Marion County hit its high for the number of COVID-19 deaths in a single day.

Coronavirus Update 8-12-2020: Elevator anxiety

Has COVID-19 caused you to have elevator anxiety, as in a fear of being inside of a 7' x 5' box with other people? According to a not-quite scientific Twitter poll with over 4,000 responses, more than six in 10 workers will not use an elevator to get to their office.

POLL (a retweet would be nice):

Do you use an elevator to get to where you live?
Would you be ok with using an elevator to get to work?

(Assume ~3ft of spacing, and everybody wearing masks.)

— Felix Salmon (@felixsalmon) August 5, 2020

These results beg the question, are elevators safe despite our apparent (and in my mind perceived justified) reluctance to use them?

Coronavirus Update 8-11-2020: States should follow Illinois’ lead in making it a felony to assault an employee over a mask rule

Elmo, Big Bird, Cookie Monster … and assault? 

Sesame Place is the latest employer to have an employee assaulted for trying to enforce a mask rule. It joins more likely suspects such as Target, WalMart (which has said that for the protection of its employees it will not require them to enforce mask rules), and McDonald's (of which 44% of its employees report being physically of verbally assaulted by a non-mask-wearing customer). 

Illinois is now the first state to enact a law targeted at this abhorrent behavior.  

Coronavirus Update 8-10-2020: Indians quarantine of pitcher Zach Plesac is a teachable moment in handling irresponsible employees during this pandemic

The Cleveland Indians have sent pitcher Zach Plesac back to Cleveland from their current run of road games for breaking the team's COVID-19 protocols. 

According to Cleveland.com, MLB security personnel caught the pitcher returning to the team's hotel early Sunday morning after he had gone out with friends. The team has its own coronavirus code of conduct, which in part required Plesac to obtain permission before leaving the hotel. According to ESPN, the Indians hired a car service to return Plesac to Cleveland so that he would not share an airplane with his teammates and potentially place them at risk. The team's management has said that he will remain quarantined until he receives two negative tests.

Coronavirus Update 8-7-2020: Errata — CDC changes guidance on when someone can break COVID-19 isolation

Neil deGrasse Tyson once said, "I love being wrong because that means in that instant, I learned something new that day." Earlier this week, I learned something new.

In discussing who pays for employment-related COVID-19 tests, I noted that CDC guidelines recommend that a positive employee not return to work for either of: 1) it's been at least 10 days since symptoms first appeared; three days with improved respiratory symptoms; and three days fever free (without fever reducing medication); or 2) the receipt of two negative tests at least 24 hours apart.

As several of my readers pointed out, however, those guidelines recently changed.

Coronavirus Update 8-6-2020: Congress must pass the Save Our Stages Act #saveourstages

Today I'm taking a brief detour from the employment-law implications of COVID-19 to discuss an issue near and dear to my heart—the devastating impact COVID-19 has had on independent music venues. I am urging you to contact your Representative and Senators to implore them to pass the Save Our Stages Act. 

Coronavirus Update 8-5-2020: Who pays for employer mandated COVID-19 tests?

The inevitable has happened. One of your employees has tested positive for COVID-19. You do what you're supposed to do. You clean and sanitize your workplace. You communicate with your other employees to let them know that you've had someone test positive. You reinforce all of your coronavirus safety rules, protocols, and procedures. And you require the COVID-positive employee to isolate and not return to work per CDC guidelines.

Those guidelines recommend that a positive employee not return to work for either of: 1) being three days fever-free, respiratory symptoms have improved, and it's been at least 10 days since symptoms first appeared; or 2) the receipt of two negative tests at least 24 hours apart. You opt for the latter, believing that negative tests will provide you and your employees better confidence that COVID-19 will not reenter your workplace when that employee returns.

Who pays for these coronavirus tests?

We have several of federal statutes, old and new, that guide the answer.

Coronavirus Update 8-4-2020: NY federal judge invalidates key parts of FFCRA regulations

Yesterday, a New York federal judge issued an order invalidating several key aspects of the Department of Labor's regulations interpreting the paid sick leave and expanded FMLA provisions of the Families First Coronavirus Response Act.

Judge J. Paul Oetken of the United States District Court for the Southern District of New York found that the DOL exceeded its authority in enacting each of the following of the DOL's regulatory interpretations of the FFCRA:

Coronavirus Update 8-3-2020: How have employers responded to COVID-19?

A recent survey of businesses reveals a variety of trends about COVID-19 in the workplace.

• Nearly 6 out of every 10 employers has had an employee test positive for COVID-19 (double the number from April).


• 92 percent require on-site employees to wear masks in common areas and mandate physical distancing.

Coronavirus Update 7-31-2020: 41,214 reasons not to fire employees who request FFCRA leave

A San Jose, California, manufacturer has reached an agreement with the Department of Labor's Wage & Hour Division to pay 17 employees $41,214 for wrongly denying their requests for paid coronavirus sick leave under the Families First Coronavirus Response Act. Specifically (and much worse than that description sounds), the employer terminated each of the 17 employees after they requested paid leave under the FFCRA. 

According to the DOL, "The employer's action resulted in a violation of the FFCRA."

No kidding!

Coronavirus Update 7-30-2020: Ohio needs to fix its unemployment system, 𝗻𝗼𝘄

The State of Ohio has temporarily frozen its Pandemic Unemployment Assistance benefits, as the Ohio Department of Jobs & Family Services investigates what it believes are more than 275,000 fraudulent claims that have flooded the system.

The CARES Act created Pandemic Unemployment Assistance (PUA) for individuals who are self-employed, seeking part-time employment, or who otherwise would not qualify for regular unemployment benefits because of a coronavirus related reason. 

Coronavirus Update 7-29-2020: SAFE TO WORK Act would offer employers a significant shield from employee COVID-19 lawsuits

Earlier this week, Senate Republican introduced their $1 trillion COVID-19 economic stimulus package. Among other proposals the bill contains the SAFE TO WORK Act [pdf], which would provide employers a significant shield from liability for lawsuits related to coronavirus exposure by requiring gross negligence or willful misconduct that actually causes a personal injury before liability could attach. 

Employers would receive significant protections from employment-related COVID-19 lawsuits brought by employees. 

Coronavirus Update 7-28-2020: Do you know what to do when an employee tests positive?

Yesterday, the Miami Marlins announced that 14 members of its organization—12 players and two coaches—have tested positive for coronavirus. Most appallingly, however, is a report that the team decided via text message to play its scheduled Sunday game in Philadelphia despite the rash of positive tests. Ignoring the irresponsible selfishness of that decision, it also almost certainly violates Major League Baseball's 100-plus page COVID-19 operations manual, which instructs teams how to handle a positive test. I can guarantee that "tell no one; play your game anyway" is not the recommended best practice.

Other than, "Don't do what the Marlins did," what can we learn from this fiasco in how to handle a positive test among your workforce?

Coronavirus Update 7-27-2020: If your employee treats COVID-19 like a hoax

At the always fabulous Ask a Manager, Alison Green posts the following question:

One of my employees has been vocal about the coronavirus being a hoax. I had to have a talk with him during our last few days in the office at the end of March because he was openly criticizing and mocking coworkers for "being afraid of the flu" and practicing social distancing. While the rest of us isolated and worked at home, he went on two different vacations out of the state and did not isolate upon returning as required.

We're now phasing people back into the office, and he believes that all of the safety guidelines are violating his freedom. He still won't practice social distancing without being told, he will not wear a mask without being told, and he even planned another vacation when the company has asked us not to travel except in the case of emergencies. … 

I am at an absolute loss regarding how to get this employee to take these safety precautions seriously when he still sees the coronavirus as a political issue instead of a public health issue. I am very worried that he will bring the virus into the office and get others sick. Do you have any advice for handling this employee and protecting the rest of my staff?

Coronavirus Update 7-24-2020: New music Friday … live from the Rock Hall

In-person live music has been in short supply over the past four months. Like many, I’ve missed it very, very much. Last Sunday, however, I got to experience live music for an hour, on the plaza in front of the Rock & Roll Hall of Fame. 

School of Rock's Junior House Band (in which Norah has played for the past five years, and which will come to end for her after this summer as she ages out) played a stripped-down and socially distant acoustic set of some of their covers. School of Rock also opened the gig to members of the band who wanted the opportunity to play their original music. Needless to say, Norah jumped at the chance to debut not one, not two, but three of her original songs: "Boys Like You," "Tone Deaf Explanations," and "Pas de Pluie, Pas de Fleurs" (written and sung in French). 

If you're going to debut your original music, it might as well be at the Rock & Roll Hall of Fame. Enjoy! I know we did. 

Everyone have a healthy, safe, socially distant, and masked weekend.

Coronavirus Update 7-23-2020: The FFCRA implications of schools reopening

With schools set to reopen over the next four to six weeks, your employees will be asking for time off from work if their children will be distancing learning for any part of the upcoming school year. The FFCRA provides for up to 80 hours of paid sick leave and 12 weeks of expanded FMLA Leave (the latter 10 of which are paid) for employees who are caring for their child(ren) whose school has been closed because of COVID-19 precautions.

The question of whether employees are entitled to take leave under the FFCRA for children who are distance learning this school year will depend on why they are distancing learning this year.

Coronavirus Update 7-22-2020: Telemedicine and the FMLA

Earlier this week, the Department of Labor published a three new sets of FAQs—COVID-19 and the FLSA, COVID-19 and the FMLA, and updated FAQs on the FFCRA.

By and large the FAQs don't break new ground. But one of the FMLA questions caught my attention.

Non-Coronavirus Update 7-21-2020: Employment law issues I missed covering during the pandemic

Today, I thought I put COVID-19 on a virtual pause and take a look at some employment law issues I missed covering over the past couple of months. Here are 10 stories that jumped to mind.

Coronavirus Update 7-20-2020: How do you reopen schools without teachers?

We want to reopen the schools. Everybody wants it. The moms want it, the dads want it, the kids want it. It’s time to do it.

– President Trump, July 7, 2020

It's sort of true that everyone wants schools to reopen. President Trump's message omits one key word—safely. Everybody wants the schools safely to reopen. And one of the current coronavirus topic du jour is what safely reopening schools looks like. No matter where you fall on the debate between the CDC and President Trump, there remains one issue that isn't getting nearly enough attention—the teachers.

Coronavirus Update 7-17-2020: It’s a scary world at there, and I’m not just talking about the virus

I thought it was an innocent enough tweet.

I would have lost my friggin’ mind if I was in that room and then that happened.

— Jon Hyman 😷 (@jonhyman) July 16, 2020

And then came the replies.

Coronavirus Update 7-16-2020: A letter to Ohio — we’re all in this together; let’s all start acting like it

To my fellow Ohioans,

Last evening, Governor DeWine scolded many of you for not doing your part in helping to stop the spread of coronavirus. I took it as a warning; if we don't start acting responsibly, he will have no choice but to mandate masks and even shut down parts of the state. If that happens, we will have no one else to blame but ourselves (or at least some of us).

For anyone who has refused to wear a mask in public, this is your fault.

Coronavirus Update 7-15-2020: OSHA updates its mealy-mouthed facial covering FAQs (again)

OSHA has, yet again, updated its Frequently Asked Questions to advise employers about the use of face masks in the workplace during the ongoing COVID-19 pandemic.

What does OSHA now recommend?

Coronavirus Update 7-14-2020: Should employers be testing employees for COVID-19?

Fortune magazine asks: "Why some companies are screening employees for COVID-19, while others have opted out?" This is a legitimate question. 

Let's start with the law. Does the law (in this case, the ADA) permit an employer to test employees for COVID-19? Yes, an employer absolutely may administer a COVID-19 test before permitting employees to enter the workplace. 

Coronavirus Update 7-13-2020: Hopelessness

Today's post was either going to discuss mandatory temperature checks for employees or reopening schools. Instead, however, today will be a mental health checkup, because mine hasn't been great.

Coronavirus Update 7-9-2020: The 6th nominee for the “worst employer of 2020” is … the working mom sacker

Let this woman's Instagram post sink in, and then let’s talk about why it's wrong to fire a mom working from home (allegedly) because she has to spend some time tending to her children.

View this post on Instagram

| 28 days ago I finally had enough of the 𝗱𝗶𝘀𝗰𝗿𝗶𝗺𝗶𝗻𝗮𝘁𝗶𝗼𝗻 that my boss was giving me for him not being okay with hearing my kids in the background on calls.|😭😡😖💔 . He wanted me to figure out a way to keep the kids quiet 😣. I went to Human Resources with proof of what was going for the last 3 months and 7 days later AFTER that 𝗜 𝗴𝗼𝘁 𝗳𝗶𝗿𝗲𝗱!!!! 😭 They told me that I should be happy that the outcome to my career there could have been worse. I’m crying as I type this...😭 I was told I had a bright future. That I was doing very well in my position! 💔💔💔😭💔😭 . The last 3 months I have worked around the clock from home while watching my two toddlers😭. I have met all the deadlines they have asked me for, even the unrealistic ones. The situation that I had endured the last 3 months is beyond stressful😭. How does a company that says that they understand and will work around the schedule of parents do the complete opposite with their actions? 😭 I’m devastated. I have poured hours, tears, sweats, delayed giving my child a snack when he wanted one because my boss needed me to do something right away. And what did I get in return? 𝗙𝗜𝗥𝗘𝗗!!! 😭😭😭😭😭 😭😭😭😭😭😭😭😭😭😭😭 . They can keep the 𝗵𝘂𝘀𝗵 money they offered to not bring this up🚫🛑✋! No working mother should be discriminated against , especially during these times for not being able to keep my 𝟭 𝘆𝗲𝗮𝗿 𝗼𝗹𝗱 𝗾𝘂𝗶𝗲𝘁 for a business call 😡For not being able to turn something around in 5 minutes when my baby wants a snack😡. We are in tough times right now. This situation would have been temporary. None of my clients had issues with my kids in the background. 𝗜'𝗺 𝗴𝗼𝗶𝗻𝗴 𝘁𝗼 𝗳𝗶𝗴𝗵𝘁 𝗳𝗼𝗿 𝗲𝘃𝗲𝗿𝘆 𝗺𝗼𝗺 𝘁𝗵𝗮𝘁 𝗵𝗮𝘀 𝗴𝗼𝗻𝗲 𝘁𝗵𝗿𝗼𝘂𝗴𝗵 𝘁𝗵𝗶𝘀 ! 𝗜𝘁'𝘀 𝗻𝗼𝘁 𝗼𝗸𝗮𝘆!!!💪. IT’S NOT OKAY to have to feel that your boss is making you pick your work over your kids during these times!!!𝗜𝘁'𝘀 𝗡𝗢𝗧 𝗢𝗞𝗔𝗬!!! #justice

A post shared by Hi, I'm 𝗗𝗿𝗶𝘀| MODERN CALI MOM (@moderncalimom) on Jun 23, 2020 at 5:13pm PDT

Coronavirus Update 7-8-2020: A tale of two mask orders

Yesterday, Ohio announced that face coverings will be required at all times when out in public in seven surging counties—Butler, Franklin, Hamilton, Huron, Montgomery, Trumbull, and my county, Cuyahoga. The mandate applies as long as a county remains designated a Red Alert Level 3 Public Health Emergency county per the state's new tiered Public Health Advisory System, and requires facial coverings: 

• In any outdoor public space when a person is unable to maintain physical separation of not less than six feet from others who are not members of the person's household.
• In any indoor space open and accessible to the public, including while waiting in line to enter such indoor space.
• Inside any public transportation and any ride-share vehicle when it is not possible to maintain physical separation of not less than six feet from others who are not members of the person's household.

Ohio's mandate takes effect at 6 p.m. today.

Similarly yesterday, Cuyahoga County proposed its own rule that would also require people to wear face coverings in the same places, regardless of whether the county is designated Red Alert Level 3.

That, however, is where the similarities end.

Coronavirus Update 7-7-2020: Do you know the difference between quarantine and isolation?

During the ongoing COVID-19 pandemic, we've heard the words "quarantine" and "isolation" used a lot. While a thesaurus might list them as synonymous, in this context they are not. 

According to the CDC, quarantine keeps someone who might have been exposed to the virus away from others and helps prevent the spread of disease that can occur before a person knows they are sick; isolation separates people who are infected with the virus from people who are not infected.

Because these terms serve different purposes during this pandemic, these also have different recommended courses of action.

Coronavirus Update 7-6-2020: Telsa fires workers for staying home after giving them permission to stay home … and after they complain about safety

"Carlos, there is no need to feel that you are going to lose your job. If at this time you do not feel comfortable returning to work, you can stay home without penalty and take the time unpaid."

That email, sent from Tesla's acting human resources director to a now terminated employee, will be central to that employee's wrongful termination lawsuit pending against the automaker.

Coronavirus Update 7-2-2020: Employee claims his remote-work request got him fired, sues

An employee suffers from high blood pressure and lives with his 81-year-old mother. He's an engineer and began working from home for his employer in mid-March when his state shut down non-essential businesses. His employer, however, remained open, and several weeks later required him to return to in-person work in the office. He refused, requesting continued work from home. The company refused that request and fired him for job abandonment. The employee sued for disability discrimination.

Coronavirus Update 7–1–2020: THIS is how you protect your employees

Mootown Creamery is an ice cream shop in my town. Consistent with Ohio's reopening rules, it requires its employees to wear masks while working. For the protection of her employees and customers, its owner also decided to require customers to wear masks while in the store.

Some, however, have been less than receptive to the mask requirement. Worse, they have taken their anger and frustration out on the store's teenage workers. 

Coronavirus Update 6–30–2020: CDC now recommends that people wear cloth face coverings in public

Your cloth face covering may protect them. Their cloth face covering may protect you.

As COVID-19 cases spike nationwide, and the CDC warns that we have "way too much virus" to control the pandemic, that same agency just released new guidance recommending that people wear cloth face coverings when in public. 

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