Coronavirus Update 9-21-2020: the CDC continues to create a mess for employers on testing; and a word on RBG

Last Friday, the CDC yet again updated its guidance for COVID-19 testing. If you're keeping count, this is the CDC's fifth set of testing rules.

What's changed? 

Due to the significance of asymptomatic and pre-symptomatic transmission, this guidance further reinforces the need to test asymptomatic persons, including close contacts of a person with documented SARS-CoV-2 infection.

Coronavirus Update 9-18-2020: advocacy for others as protected conduct under the ADA

In Kirilenko-Ison v. Board of Education of Danville Independent Schools, the 6th Circuit Court of Appeals held that an employee who engages in advocacy with their employee regarding the rights of a disabled third-party engages in activity that the ADA protects from retaliation. 

That case involved two school nurses fired alleged for advocating for the rights of their disabled students. It's not difficult, however, to see how this holding translates to a situation involving, for example, COVID accommodations for employees

Coronavirus Update 9-17-2020: The pandemic plight of working moms

There is no doubt that the COVID-19 pandemic has been tough on employees. A recent report published by Policy Matters Ohio illustrates just how tough it's really been.

• Ohio had fewer jobs in April 2020 (4,704,000) than at any time in the past 30 years.
• At the height of COVID-related unemployment, 31.7% of Ohio workers were out of work because of employer layoffs, furloughs, and closures.
• Unemployment peaked at 17.3%
• While unemployment and jobless numbers are starting to rebound, there are still nearly 600,000 fewer jobs in Ohio now than at the start of millennium. 

As bleak as these overall statistics are, I want to focus on another aspect of the report—the plight of working mothers.

According to the report, working moms have taken the brunt of the wave of employees working from home.

• Working moms with young children reduced their work hours four to five times as much as fathers did nationally, widening the work hours gap between men and women by 20-50%. 
• The current recession has increased the gender pay gap by five percent, seven points higher than what we typically experience in other recessions (in which the gender pay gap is normally reduced by two percent). 

What does this mean?

Men and women are about equally likely to be able to work from home, but the burden of new unpaid care work falls especially heavily on women.… Added child-caregiving responsibilities are competing with women’s paid work and in some cases forcing women out of the labor force altogether, with consequences for their careers that could be permanent. Women may never recover the career losses they face to support their families’ child care needs through the crisis. The pay gap with men, which has been narrowing over recent decades, could be wrenched open once more for years to come.

What is an employer to do?

1. Remind supervisors and managers that family responsibility discrimination is illegal. While Title VII does not expressly include “family responsibility” as a protected class, the EEOC has long held that Title VII’s prohibits discrimination against parents as parents if you are treating some more favorably than others (e.g., dads better than moms, or men better than moms). There are also, a few states that expressly prohibit parental discrimination. If, for example, you have to make decisions about layoffs, you should be considering whether working parents are disproportionately included.


2. Consider accommodations to aid working parents. Work from home is already an accommodation, but there are others that could help here. Modified work schedules (which the Department of Labor favors in its FFCRA guidance), designated breaks, and the provision of additional work supplies such as laptops and printers could all ease the burden on parents working from home. Our goal here should be helping employees figure out solutions to get their job done, not harming employees (and the business) by erecting barriers that prevent it.

* Photo by Leonard Beck on Unsplash

Coronavirus Update 9-16-2020: Federal court holds state indefinite Covid-closure orders are unconstitutional

In County of Butler v. Wolf, Judge William S. Stickman IV of the United States District Court for the Western District of Pennsylvania (a recent appointee of President Trump) held that state-imposed shutdown orders that closed businesses, required people to stay home, and placed limits on public gatherings—all aimed at stopping the spread of the COVID-19 pandemic—were "well-intentioned" but unconstitutional.

At issue was a series of business closure and stay-at-home orders issued by Governor Tom Wolf of Pennsylvania shortly after the start of the COVID-19 pandemic.

Judge Stickman concluded these orders were unconstitutionally overbroad.

Coronavirus Update 9-15-2020: Is your business ready for the coming “tidal wave” of COVID-19 employee lawsuits?

• A Texas man sues, claiming he wasn't allowed to keep teleworking after the office reopened
• A Kentucky worker sues after being fired for complaining about a lack of face masks at work
• An older New York employee sues, claiming he was laid off because he was in a "vulnerable" COVID age group

These are but a few of the dozens (and exponentially growing) lawsuits that employees have filed all over the country over COVID-related concerns.

Coronavirus Update 9-14-2020: DOL issues revised FFCRA regulations; what’s changed and what hasn’t?

In early August, a New York federal district court judge issued an order invaliding several key provisions in the DOL's FFCRA regulations. Last Friday evening, the DOL responded with revised regulations that left most of its prior regulations intact, while also make a few common-sense amendments. 

Here's what the DOL did, and did not, change in response to the court's order, and why.

Coronavirus Update 9-11-2020: The anatomy of a losing legal argument

Deborah Kofler worked for Sayde Steeves Cleaning Service as a residential and commercial cleaner. Beginning on April 1, Kofler requested paid leave under the Families First Coronavirus Response Act to care for her two minor children who were at home beacause of COVID-19 related school closures. One week late Sayde terminated her employment.

Kofler sued for retaliation under the Fair Labor Standards Act.

In responding to Kofler's lawsuit, Sayde sought dismissal, arguing that Kofler is alleging retaliation under the FFCRA and did not plausibly allege that she engaged in protected activity under the FLSA.

Coronavirus Update 9-10-2020: The coming wave of Covid-related age discrimination lawsuits

The EEOC has sued Ohio State University for age discrimination, alleging that the school discriminated against a 53-year-old human resources generalist because of his age by assigning a substantial substantial portion of his duties to a short-tenured co-worker 25 years his junior. 

"If a termination is age-discriminatory, dis­guising it behind a supposed reduction in force will not change that," says EEOC Regional Attorney Debra Lawrence in discussing the filing of the lawsuit.

What does this lawsuit, which challenges a termination that occurred all the way back in March 2018, have to do with the COVID-19 pandemic? 

Coronavirus Update 9-9-2020: The 8th nominee for the “worst employer of 2020” is … 🎶 it’s corona after all 🎶

It's a world of sickness
A world of tears
It's a world of death
And a world of fears
There's so much that we share
That it's time we're aware
It's corona after all

Disneyland is "The Happiest Place on Earth" … unless you're among the group of employees claiming that it forced them to work while they were sick with COVID-19.

Diversity training is the opposite of “anti-American"

Late last week, Russell Vought, the Director of the Office of Management and Budget, issued a memo directing that from this point forward, the federal government will spend zero federal dollars for diversity training for its employees. Why? Because President Trump has concluded that diversity training is "divisive, anti-American propaganda."

Coronavirus Update 9-4-2020: “Normal"

Last Saturday, for one glorious evening, I felt "normal." I dined out at a restaurant for the first time in nearly six months.

Colleen and I celebrated our 17th anniversary. Plan A was to import Maine lobsters, smoke them on my grill, and enjoy them with a great bottle of Italian wine I had picked up our our favorite wine shop. That plan fell apart, however, when I learned that FedEx won't guarantee Saturday delivery to my home. 

So we moved to Plan B. We cautiously and nervously decided to brave a restaurant for an outdoor meal.

Coronavirus Update 9-3-2020: County health department fires five for quarantine order violation

Erie County, Ohio, has fired five health department employees for violating a quarantine order. What happened? Fox 8 provides the details:

Five Erie County General Health District employees are now out of a job after allegedly attending a pool party thrown by a worker, who was supposed to be quarantined.

"I am not going to tolerate it as a health commissioner and the board isn't going to tolerate it as our appointing authority," said Erie County Health Director Peter Schade. "How can we expect folks to follow an order when our own staff didn’t do it?"

Schade said the incident happened in early July after three workers were exposed to COVID-19 and placed on work quarantine orders.

Coronavirus Update 9-2-2020: Ohio set to activate COVID-19 liability shield for businesses

Both houses of Ohio's legislature have passed legislation that will grant a liability shield to businesses for claims related to COVID-19 exposure or infection.

The legislation, which Governor DeWine has indicated he will sign into law, would grant immunity from civil actions for damages based in whole or in part that an injury, death, or loss to person or property was caused by the exposure to COVID-19, unless one can prove that the exposure was by reckless conduct, intentional misconduct, or willful or wanton misconduct on the part of the person or entity sued.

Coronavirus Update 9-1-2020: Vaccines — can an employer require them; should an employer require them?

There are currently more than two dozen COVID-19 vaccines in development world wide, as pharmaceutical companies race to perfect a viable vaccination to halt the ongoing pandemic. 

When (and it's a big when) one or more vaccines becomes available, can an employer require it of their employees as a condition of employment? 

Coronavirus Update 8-28-2020: New music Friday / Old 97’s, “Twelfth”

"You know that feeling when you reunite with an old friend and it feels like nothing's changed? That feeling of comfort and camaraderie is kind of what it's like listening to Old 97's." That's how Raina Douris, the host of WXPN's World Cafe, recently described my favorite band when introducing her interview with their frontman, Rhett Miller. It's as if she read my mind every time I hear an Old 97's song.

Last Friday, Old 97's released their twelfth studio album, appropriately titled, "Twelfth." I've listened to it at least that many times since it released, and it already stands among their best (which from me is very high praise).

A pisser of an invasion-of-privacy case: Ohio Supreme Court find no cause of action when employer watches an employee give a urine sample for a drug test

Is the privacy of an at-will private-sector employee invaded when a representative of the employer watches him or her give a urine sample for a workplace drug test?

Yesterday, in Lunsford v. Sterilite of Ohio, the Ohio Supreme Court answered this question in the negative.

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.