Coronavirus Update 3-20-2020: How are you feeding your soul?

What did you do to feed your soul this week? I’ve been sheltered at home with my family. We’ve decided to self-quarantine because our 11-year-old son’s congenital heart defect makes him high risk. Aside from working (a lot), I’ve turned to a few things to fill my soul with some much-needed joy.

Center square ftw!

Coronavirus Update 3-19-2020: The Families First Coronavirus Response Act is law

Five days.

That’s all it took for both parties in both houses of Congress to work together, along with the White House and President Trump, to pass important relief legislation for American workers. We need more cooperation like this to see our country thru this crisis.

BREAKING NEWS: Senate passes Families First Coronavirus Response Act

This afternoon, by a margin of 90 - 8, the Senate passed the Families First Coronavirus Response Act. It will now go to President Trump for signature. The law will be identical to the amended bill passed by the House Monday evening. It will become effective in 15 days after President Trump signs it (as he has said he will).

For the next two weeks, businesses will have to get their FMLA and sick leave houses in order. Policies will be needed to be reviewed, amended, and drafted. Forms will need to be created. And new posters will have to be hung in the workplace.

Coronavirus Update 3-18-2020: “Gag and vote for it anyway,” and an EEOC update

It looks like the Families First Coronavirus Response Act is one step closer to becoming law … just not quite yet.

During a lunch meeting of Senate Republicans yesterday, Majority Leader Mitch McConnell told his constituency they should pass the bill. He did so, however, in the most Mitch McConnell way possible.

A number of my members think there were considerable shortcomings in the House bill. My counsel to them is to gag and vote for it anyway.

Coronavirus Update 3-17-2020: House guts the Families First Coronavirus Response Act before sending it to the Senate

For the time being, I have rebranded the Ohio Employer Law Blog as the Coronavirus Law Blog. I’ll be using this space to offer daily updates on what is happening regarding this public health emergency. Everything is moving and changing so quickly, and, frankly, nothing else seems to matter right now. When we all come out the other side, I will happily resume your regularly scheduled updates on worst employers and everything else.

So here’s where are on the morning of March 17, 2020 (Happy St. Patrick’s Day).

Answering the six questions I’ve received most about the Families First Coronavirus Response Act

In the past 48 hours, I’ve received a lot of emails and other correspondence asking questions about the Families First Coronavirus Response Act. Most of them fall into one of six categories.

1. I am a small business, and if I have to pay family and sick leave for my employees, I’ll go out of business. What am I supposed to do?


2. I work for a [large employer]. They don’t provide any paid time off. What am I supposed to do if I get sick, or a family member gets sick?


3. How does the interaction between the FFCRA’s paid family leave and paid sick leave work?


4. I understand the tax relief provision, but I operate a non-profit that doesn’t pay any taxes. What relief is there for us?


5. What about self-employed people? What relief is there for us?


6. If a business is forced to close because of COVID-19, what relief is there for its employees who lose their jobs, either temporarily or permanently?

BREAKING: House passes broad coronavirus stimulus and relief package, including paid sick and family leave

It’s been 12 days since I asked if coronavirus the thing that will finally make paid family and sick leave a national reality. Twelve days in the COVID-19 news cycle feels like 12 years. Regardless, I am happy to report that in the very early hours of this morning, by a bipartisan vote of 363-40, the House passed the Families First Coronavirus Response Act, sweeping legislation that will provide myriad emergency relief to businesses and individuals, including paid family and sick leave.

Shortly after the House passed the bill, President Trump tweeted his support, virtually assuring a swift run through the Senate and his signature.

WIRTW #591 (the “new (ab)normal” edition)

This has been one strange and disorienting week. I haven’t felt this disjointed since 9/11.

No basketball (pro or college).

No hockey.

No baseball.

No James Bond.

No large scale concert tours.

No Broadway shows or Disney parks.

No St. Patrick’s Day parades.

No Rock & Roll Hall of Fame inductions.

And, in Ohio, no mass gatherings of more than 100 people (to include auditoriums, stadiums, arenas, large conference rooms, meeting halls, cafeterias, or any other confined indoor or outdoor space, but not offices, restaurants, factories, or retail or grocery stores). And no school at least for the next three weeks.

And, to top it off, Tom freakin’ Hanks has coronavirus (my personal breaking point).

So what now? Our new normal is very abnormal. And it’s going to stay this way, at least for the immediate future.

As it stands, the best advice remains to practice social distances, stay home if you’re ill, follow the recommended hand washing and other “good hygiene” protocols, and don’t travel unless you absolutely (and I mean absolutely) have to.

Finally, above all else, please be flexible, understanding, and kind. If there was ever a time to prioritize the human issues, it’s now. Illnesses, quarantines, and closed schools will strain the workplace. I promise you that they are straining your employees more. The more nimble and empathetic we can be, the less this will hurt.

One last thing. When the time comes (and it will come) when we can resume our pre-coronavirus lives, get out and support small businesses, live music, the travel industry, and everyone else whose livelihood was impacted by COVID-19. They are really going to need it.

Here’s what I read this week:

A thank you and a mission statement

Tomorrow, I was to receive my award from the Cleveland-area chapter of the National Association of Social Workers as its Public Citizen of the Year. Sadly, but understandably, coronavirus caused the event to be postponed. Since I will not have the opportunity to deliver my remarks (and I’m not sure when I will), I’m sharing them here.

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6th Circuit gives employers relief on the evidence employees must present to prove off-the-clock work

The difficulty in defending certain wage-and-hour cases is that employers are often asked to prove a negative. “I worked __ number of hours of overtime,” says the plaintiff employee. “Prove that I didn’t.” If the hours are for unclocked work, the employer often lacks documentation to refute the employee’s story. Which, in turn, leads to a case of "I worked / no you didn't." That, in turn, creates a jury question, the risk of a trial, and a settlement (since very few employers want to risk paying the plaintiff’s attorneys’ fees if the employee wins).

In Viet v. Le, the 6th Circuit Court of Appeals provides employers much needed relief from these extorting lawsuits.

Coronavirus resource update 🦠😷

As Ohio recorded its first three official coronavirus cases, I thought now is as good a time as any to share some COVID-19 resources I recently prepared, participated in, or will be participating in.

First, I recorded an episode of the SpheraNOW podcast where I discuss the risks and best practices for employers during this outbreak.

Is an employee entitled to FMLA leave to care for the children of a family member with coronavirus?

Among other qualifying reasons, the FMLA allows an eligible employee to take 12 weeks of annual unpaid leave to care for a family member with a serious health condition. Family member, however, does not mean any family member. It only applies to an employee’s spouse, son, daughter, or parent.

The FMLA’s definition of “son or daughter” not only includes a biological or adopted child, but also a child of a person standing “in loco parentis” (one who has day-to-day responsibility for caring for a child without a biological or legal relationship to that child).

Suppose, however, an employee’s family member contracts COVID-19. Is that employee entitled to FMLA leave to care for that family member’s minor children during the period of incapacity? According to Brede v. Apple Computer (N.D. Ohio 1/23/2020), the answer is “no.”

WIRTW #590 (the “win some, lose some” edition)

Life is often about competition. For example, I litigate for a living. Trials have winners and losers. We also compete for jobs, for college admissions, and for sports titles. And competition requires a winner and some losers.

Some things, however, we do just for the experience, even if that experience is built around competition.

Last weekend, my daughter’s band, Fake ID, competed in the finals of the Tri-C High School Rock Off. Even though they did not win the competition, they won the event. They played three songs (including two of their own originals) on stage at the Rock & Roll Hall of Fame in front of more than a thousand people. They earned a lot of new fans. They befriended other bands with whom they will be able to plan future gigs. As a finalist, they got to record a song in an amazing recording studio at Tri-C (stay tuned; their first single is coming soon, and I’ll be asking all of you to pre-save it on Spotify).

Before we dropped Norah off at the Rock Hall for the pre-event activities, I told her to have fun and play a great set, and that nothing else matters. She understood, and if you ask her she will tell it was mission accomplished. 

Here’s what I read this week.

Accidents will happen: “Not every mistake amounts to actionable employment discrimination”

Mistakes happen. Including in the context of employment decisions. But not every mistake amounts to actionable employment discrimination. That’s the lesson of this case, where Robyn Smith’s employer fired her after it wrongly concluded that she had been stealing from one of the company’s clients.

So starts the 6th Circuit’s opinion in Smith v. Towne Properties Asset Management Co.

What “Sexy Vixen Vinyl” teaches us about porn at work

If you’re Fox News reporter Brit Hume, you have a lot of explaining to do. Yesterday, the venerable journalist carelessly tweeted out his internet exploration of “Sexy Vixen Vinyl.”

Can an employer require an employee with a serious health condition to take FMLA leave?

Yesterday, in response to my post about coronavirus and paid sick leave, a commenter on LinkedIn asked whether an employer can force a sick employee to take FMLA leave.

The answer is a qualified “yes.”

Is coronavirus the thing that will finally make paid sick a national reality?

As of this morning, there are 88 confirmed cases of coronavirus in the United States, with two deaths. According to the CDC, one of the best measures people can take to prevent the spread of the virus is to stay home from work when they are sick. Yet, as noted by CNN, “for workers who don’t have paid sick leave, staying home when they aren’t feeling well can be financially devastating.”

WIRTW #589 (the “Coronavirus” edition)

Does the Coronavirus freak you out? Do you think it’s the beginning of the end for the human race, way over-hyped by the media, or somewhere in between? I’m in the “somewhere in between camp,” but it doesn’t mean that your business shouldn’t be preparing for the inevitable when this virus starts clustering in the US.

Thus, I’ve gathered the best thoughts on how to prepare from some of the best bloggers around the internet.

PLEASE, I’m freaking begging you, DO NOT use social media to determine applicants’ race and gender

Almost as long as social media has existed, employers have searched social media to dig up dirt on prospective employees. There is nothing illegal about these searches … provided you don’t use the information unlawfully. For example, to discriminate on the basis of a protected class.

If Lisa McCarrick, a former Amazon manager, wins her lawsuit against the online retailer, Amazon is going to learn this lesson the hard way.

Meet the new boss, same as the old, old boss—NLRB issues long-awaited final rule on “joint employment”

Yesterday, the NLRB announced its long-awaited final rule governing joint-employer status under the National Labor Relations Act.

The rule clarifies that for an employer to qualify as a “joint employer” it must “possess and exercise such substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees.”