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