Employment Law Attorneys
Fear of Covid-19 At Work: How to Apply For Disability Benefits Through Your Employer

Fear of Covid-19 At Work: How to Apply For Disability Benefits Through Your Employer

In this episode of the Employee Survival Guide we discuss how to apply for disability benefits through your employer if you fear for your personal safety at the workplace due to Covid-19.  Whether you have an anxiety or panic disorder  or you are trying to protect your vulnerability due to Covid-19, Employment Attorney Mark Carey will give you a short guide about how to apply for your employer’s Short Term Disability benefits and Long Term Disability benefits under a federal statute called ERISA (Employee Retirement Income Security Act). Mark will also discuss the very important overlap with the Family Medical Leave Act, the Americans With Disabilities Act and state antidiscrimination laws. He will show you how protected you actually are against your employer unfairly terminating you for taking a much needed disability leave of absence due to Covid-19.   For more information, please contact Carey & Associates, P.C. at 203-255-4150 or email at info@capclaw.com.

The Workplace of Tomorrow: A New Path

The Workplace of Tomorrow: A New Path

Employers should seriously consider the current “relationship” they have with their employees.  Employees are the backbone of each company and employers could not exist without them. Trust- that’s what employees want right now and presumptively have always wanted it.   Now that the blinders are coming off due to Covid-19, employers must realize they cannot abuse employees and treat them like a number. There are currently Forty million plus (40,000,000) job terminations during this pandemic, this is not exactly what I would call building trust with your employees.  These recently terminated employees (“Your Ex-Employees”), are real people of all races and backgrounds, with emotions, goals, financial issues just like you.  If you give employees a real sense of security in their jobs, they will reword their employers tenfold- with #EmployeeTrust and increased EBITDA (aka profitability).

Employers- show your employees they can trust you at all times– that you got their backs in times of trouble. Here are a couple of suggestions:

  1. Provide a termination for cause employment agreement-ignore your management lawyer’s advice not to follow this suggestion;
  2. Make sure employees feel confident they will not get sick when they come back to work- give them everything they need and write if off on your PPP and SBA money you just received;
  3. If employees want to work from home and/or the office, just let them- but remind them you do pay rent in an office they should use;
  4. Buy them necessary computer gadgets to work remotely – anywhere;
  5. Build a sense of a strong community experience amongst employees;
  6. Immediately fire any employee, manager or not, who exhibits any discriminatory bias against anyone- this will deter the bad actors- as we are all in this together;

This list of perks employers can provide to develop and ensure employee trust is endless and specific to your company, but you get the main idea.  Yes, employees need perks too!

If you would more information about this topic, please contact Carey & Associates P.C. at 203-255-4150 or email to info@capclaw.com.

Employee Survival Guide Podcast Episode: Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status

Employee Survival Guide Podcast Episode: Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status

This episode of the Employee Survival Guide discusses a landmark U.S. Supreme Court decision granting employment protection to transgender and homosexual employees.  Your host Attorney Mark Carey will run you through the case analysis and the impact on your employment rights and what you can do to protect yourself from employment discrimination based on your sexual orientation.

How to Negotiate a Severance Agreement With Your Employer

How to Negotiate a Severance Agreement With Your Employer

This episode of the Employee Survival Guide discusses a very important topic of how to negotiate a severance package with your employer.  Your host Attorney Mark Carey will run you through his tactics and strategies of how to negotiate a successful severance agreements.  Mark’s knowledge covers more than 24 years negotiating severance employment agreements for employees and executives.

They Denied My Unemployment Claim…Now What?

The good news is that the enhanced unemployment benefits available in response to COVID-19 provides unprecedented and supplemental financial relief to employees. The bad news is that you applied for these generous benefits, but you have received a denial from the CTDOL.  So now what are your options? First, you must believe that the determination denying your benefits was in some way erroneous. Perhaps certain information was missing or reported incorrectly, or perhaps the fact finder at the CTDOL just made an improper or misguided determination. Regardless of the reason for the denial, if you believe the decision was WRONG, then you should take the next steps to reverse the decision and get your benefits as soon as possible. In almost all instances, if an unemployment determination is reversed, you will get your full benefits retroactively, assuming you continue to file weekly claims. So, what is the process for getting the CTDOL to reconsider your application and approve your benefits? This same process would be filed in all other states, but check your state department of labor website by using the following LINK.

YOU MUST FILE AN APPEAL:

You have 21 days after the date of the DOL’s written decision to file your appeal. Here are the different ways you can file your appeal:

  • File by mail, fax, or online at www.ctdol.state.ct.us/appeals/apfrmnt.htm.
  • Fill out an appeal form. You can get a blank form at an American Job Center or an Appeals Division office.
  • Write a letter. Include your name, address, social security number, date of the fact finder’s decision, and the reason you think the decision is wrong.

It is critical that you keep meticulous written records and copies of everything involving your appeal. In addition, we advise that you continue to file your weekly claim, even though the determination has been made to deny unemployment benefits because if you win the appeal, you will only get money for the weeks you filed a claim. It is also important that you file the appeal within the 21 days or you may be barred from having your appeal heard unless you can convince the CTDOL that you had good cause or reason to have missed the 21 day filing period.

WHAT HAPPENS NEXT:

Unemployment appeals will result in a hearing. While we are in unchartered waters given the overload of unemployment applications in response to COVID-19, it still appears that the hearing appeal process used by the DOL before COVID remains in place.

WHAT YOU NEED TO KNOW ABOUT YOUR UNEMPLOYMENT APPEAL HEARING:

A hearing is almost like a mini trial conducted  by a “referee.” These hearings are usually done in person at the offices of the CTDOL, but given current circumstances, they will likely be conducted for the foreseeable future by phone or some other video conference technology such as Zoom. In addition, unemployment appeal hearings are almost always completed in a day or less.

Once you file your appeal, the Appeals Division will mail you a notice with the date, time, and place of your hearing as well as the issues the referee will ask about. If you do not get this notice within 30 days, you should contact the Appeals Division. You should also contact the Appeals Division if you need to change the date or if you require an interpreter, or if you have any other questions, hardships, or concerns. Again, under normal times, the Appeals Division has been very approachable and responsive, but with COVID, the process might not be as user friendly as it’s been in the past.

PREPARING FOR YOUR HEARING:

While applying for unemployment benefits is something that most people are able to do on their own and without counsel, we do advise that you consult with an attorney related to your appeal hearing and ideally that you have an attorney present with you at your appeal hearing. Because unemployment benefits have been so greatly expanded in response to COVID-19, there is a lot more money at stake. You want to win this appeal and employment attorneys will be able to prepare you and represent you at the hearing in order to increase the likelihood of success.

With or without counsel, you will want to prepare for the hearing by organizing and bringing with you all the documents, exhibits and other evidence to support your case. Such evidence or documents might include any communications regarding the separation from your employment, your earnings, the circumstances surrounding your change in employment status, personnel records etc. These documents will be presented by you and examined by the referee at the hearing. In addition, you are the party witness to your appeal and you will be sworn in and questioned. However, you are entitled to bring supporting witnesses to the hearing and if that is the case, you should be prepared with a list of questions for that witness that will help support your position. You may also want to prepare a list of questions to ask the employer’s witness. In most instances, the referee will ask the witness questions, but you may be given a chance to question the witness yourself in order to cover anything that the referee might have missed. In addition, you should be prepared with some sort of a written “opening and closing statement” as the referee may ask at the beginning and then again at the end if you have any opening or closing remarks. Of course, these are all tasks that ideally would be done by your counsel if you have one present with you at the hearing.

HEARING TIPS:

  • Arrive 20 minutes early
  • Bring pen and paper
  • Be organized
  • Bring prepared notes and documents
  • Stay calm, demonstrate respect for the referee and do not interrupt or speak until it is your turn
  • Be persuasive
  • Be honest
  • Be prepared

AFTER THE HEARING:

The referee will take some time to review what was stated and presented at the hearing and will usually render a decision within 2-4 weeks. The referee’s decision will be mailed to you, however, in light of COVID-19, it is possible decisions may be emailed. So be certain to check both in the weeks following your hearing. If you win the appeal, you should continue to file, and the checks will follow. However, if you lose the appeal, you are permitted to APPEAL the appeal. You need to file that appeal with the Board of Review in person, by fax or by mail. This further appeal process requires you to submit a statement in support of your position and to explain why you believe the appeal hearing determination was erroneous. Again, this is a task best done by experienced employment attorney, but if you are going to do this yourself, it is important that you read the referee’s decision carefully and identify any mistakes in the decision or the reasoning behind the decision. You are also permitted to include with your statement any additional “proof” or other information that was not available to you at the time of your appeal hearing. The board will read and review your statement and make a decision based on your statement. You will most likely not be granted another hearing, so that is why it is so important that your appeal statement must be persuasive, compelling and legally sound. After all, this is your last chance to get those unemployment checks!

For more information about this article or to speak to one of our Employment Lawyers, please contact Carey & Associates, P.C. at 203-255-4150 or by email to info@capclaw.com.

WSJ Article- When Co-Workers Test Positive for Covid-19: What You Need to Know

WSJ Article- When Co-Workers Test Positive for Covid-19: What You Need to Know

The Wall Street Journal (July 13, 2020) reported the following story with an interview with Employment Attorney Mark Carey, Carey & Associates, P.C.  The story is reprinted herein in its entirety.

By Lauren Weber

“Somebody at my workplace tested positive for Covid-19. What are my employer’s legal obligations? What do they have to disclose to the rest of us employees and in what time frame?”

The bottom line

Your employer should immediately inform co-workers who have been exposed (federal and state agencies offer guidance on exposure criteria), while protecting the confidentiality of the affected employee, so colleagues can quarantine for the recommended 14 days, employment lawyers say. While the Centers for Disease Control and Prevention have made these recommendations clear, they are guidelines, not laws. Employers also have some obligations under the Occupational Safety and Health Act of 1970’s “general duty” clause, as well as under some state regulations.

The details

Workers have a right to be free from “recognized hazards” that could cause death or serious injury, according to the “general duty” clause enforced by the Occupational Safety and Health Administration. OSHA may find that employers who didn’t inform employees immediately—and therefore didn’t tell them to quarantine—were violating their obligations, which could subject employers to fines or other enforcement actions. Keep in mind that OSHA is a small agency, and it has rarely flexed its enforcement muscles during the pandemic. Through July 9, it has received 6,442 Covid-19-related complaints and issued only one citation, an agency spokesperson said.

While workers can try to sue their company for negligence if they test positive for Covid-19 after being exposed by a co-worker, the employer will likely argue that the claim is covered, if at all, under the workers’ compensation system, says Jennifer Merrigan Fay, a Boston-based employment lawyer. Precedents haven’t yet been set, so it isn’t clear how courts will interpret OSHA and other standards in light of a highly contagious virus.

Some state laws require that employers report positive Covid-19 cases quickly to public-health authorities so that contact tracing with colleagues and others can take place. Depending on location, the employer here may have violated a state law or executive order if it didn’t inform the appropriate authorities, says Ms. Fay. New York and Massachusetts, for example, have reporting requirements.

Employers must balance confidentiality laws, which are enforced by the Equal Employment Opportunity Commission, with the rights of workers to be in a safe workplace, which is enforced by OSHA. Employers should not disclose the name or identifying details of the person who tested positive, says Connecticut-based attorney Mark Carey, even if workers can figure out the person’s identity themselves. “The immediacy of communication is paramount, but so is confidentiality,” he says.

When employers don’t inform workers of their exposure, they are likely afraid of the risk to operations, Mr. Carey says. They may also be concerned about having to pay wages to workers in quarantine. The Families First Coronavirus Response Act requires that employers with fewer than 500 workers cover two weeks of paid sick leave to those who have to quarantine. (Larger employers are subject to the longstanding Family and Medical Leave Act, which provides workers with unpaid leave.) But these aren’t reasons to delay or avoid disclosing important information to workers, Ms. Fay and Mr. Carey say.

Employee Survival Guide Podcast Episode: Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status

Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status

By Mark Carey and Fran Slusarz,

The Supreme Court just issued a ground-breaking Bostock decision making it unlawful for employers to discriminate on the basis of a person’s sexuality or gender identity. About half the states already had laws protecting LGBTQ employees, but this decision extends employment rights to all LGBTQ folks in America and opens the federal courts to them. In this quarantine Pride Month, devoid of parades and parties, the Bostock decision is certainly something to celebrate!

On the day the Bostock case was being argued (October 8, 2019), we predicted the now historic outcome in an article stating, “…the Court will hold that sexual orientation discrimination and discrimination based on transgender status constitute sex discrimination under Title VII of the 1964 Civil Rights Act because adverse employment decision discriminating against the LGBTQ community are being made ‘because of sex’ of the employee.” Honestly, there was only one direction the Bostock holding could go, granting protected status under Title VII.

A Monumental and Unpredicted Decision for LGBTQ Employees

The decision is monumental and unpredictable for several reasons. First, it provides equal treatment to LGBTQ employees in their employment and provides tools to fight against employment discrimination. Sexual Orientation carries as equal a significance as race, national origin and religion, under Title VII.  Second, the Supreme Court’s decision demonstrates what we have been complaining about for a long time, employment law is NOT political and should not be politicized. Employment law is bi-partisan and protects everyone.  Here, conservative justices (Gorsuch, Roberts) joined with the Court’s liberal wing (Bader-Ginsburg, Breyer, Sotomayor, and Kagan) to expand Title VII protections to a whole new class of employees.  We are all equal under Title VII, contrary to current popular media depiction that as a country we are inherently unequal and divided during this election season.

Three Cases, Almost Identical Facts, and Different Outcomes

The Bostock decision actually involves three separate cases with almost identical facts and different outcomes. Frankly, advocates could not have dreamed up the perfect test cases for securing LGBTQ employment rights if they tried. They each involve long-term employees who were fired from their jobs after their employers learned they were homosexual or transgender, and for no other reason. They involve both public and private employers.

Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate for more than a decade. The county won national awards for the work he did leading the department. When “influential members of the community” made disparaging remarks about Mr. Bostock’s participation in a gay softball league, he was fired for conduct “unbecoming” a county employee. The Eleventh Circuit dismissed his case, holding that Title VII to the Civil Rights Act does not prohibit employers from firing employees for being gay.

Donald Zarda was a skydiving instructor with Altitude Express in New York. After several years with the company, Mr. Zarda mentioned to a female student that he was “100% gay” to allay any discomfort she may have felt about their tandem jump – she was going to be extremely close to Mr. Zarda, strapped to the front of his body. Days later, he was fired. The Second Circuit held that Title VII prohibited employers from firing an employee for being gay.  Mr. Zarda died before his case reached the Supreme Court and his estate continued his legal battle.

Aimee Stephens worked for R.G. & G. R. Harris Funeral Homes in Garden City, Michigan for six years. During her tenure, she presented as male. When she informed her employer that she planned to “live and work full-time as a woman” upon her return from an upcoming vacation, the funeral home fired her saying, “this is not going to work out.” The Sixth Circuit’s decision was consistent with Second Circuit: Title VII prohibited employers from firing an employee for being transgender. Ms. Stephens died last month, yet her estate carried her fight to fruition.

The New Rule Banning Sexual Orientation Discrimination

Justice Gorsuch, who wrote the opinion for the 6-3 decision, wrote:

“An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors beside the plaintiff’s sex contributed to  the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer-a statutory violation has occurred. Title VII’s message is ‘simple but momentous’: An individual employee’s sex is ‘not relevant to the selection, evaluation, or compensation of             employees.’…

An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.

At bottom, these cases involve no more than the straight-forward application of legal   terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that ‘should be the end of the analysis.’”

How Can You Protect Yourself After Bostock?

If you are a LBGTQ employee and believe you are experiencing unfair treatment at work, we have the following strategies your employer may not want you to know about.  First, very quietly write down your factual narrative in chronological order on a computer you do not use or access for work.  Writing out your story is part of the investigative process that lawyers use to determine liability and how we advise clients. If you are getting the sense you are being set up for a performance improvement plan (PIP) or termination, your employer and their employment attorneys are already examining and trying to control your factual narrative, but they will never tell you that.   Second, quietly gather all offending and supportive emails, text messages, slack message etc. and preserve them.  The content of these documents should appear in your factual narrative in some form. Third, do not tell your supervisor or HR that you have potential claims until you speak to an employment attorney in our office.  Your supervisor and HR personnel do not represent you and work only against you on behalf of the employer.  They will always deny this fact. Third, you need to decide if you are going to remain employed or seek a severance package from the employer.  We have an obligation to keep you employed for as long as possible for your income purposes. More importantly, you may be able to gather corroborating or direct evidence of discrimination by remaining employed; your employer will not predict you are secretly investigating them and trying to set them up. Yes, you can do that.  Fourth, you never want to quit your job as you cannot collect unemployment benefits and it is more difficult to demonstrate a constructive discharge (i.e. anyone would leave on similar circumstances and file a charge).  Fifth, after we put your case together, we will then place the employer on notice that it is discriminating against you because of your sexual orientation and attempt to negotiate your exit package.  Sixth, avoid litigation at all costs, due to the expense and time involved; yes lawyers do give that sort of advice and we do it every day.

We have had many sexual orientation claims over the past twenty-four years, including several complicated transgender cases. We are more than familiar with all of the employer’s strategies and we can quickly assess the liability in your case.  For more information please contact Carey & Associates, P.C. at 203-255-4150 or send an email to info@capclaw.com.

They Denied My Unemployment Claim…Now What?

They Denied My Unemployment Claim…Now What?

The good news is that the enhanced unemployment benefits available in response to COVID-19 provide unprecedented and supplemental financial relief to employees. The bad news is that you applied for these generous benefits, but you have received a denial from the CTDOL.  So now what are your options? First, you must believe that the determination denying your benefits was in some way erroneous. Perhaps certain information was missing or reported incorrectly, or perhaps the fact finder at the CTDOL just made an improper or misguided determination. Regardless of the reason for the denial, if you believe the decision was WRONG, then you should take the next steps to reverse the decision and get your benefits as soon as possible. In almost all instances, if an unemployment determination is reversed, you will get your full benefits retroactively, assuming you continue to file weekly claims. So, what is the process for getting the CTDOL to reconsider your application and approve your benefits? This same process would be filed in all other states, but check your state department of labor website by using the following LINK.

YOU MUST FILE AN APPEAL:

You have 21 days after the date of the DOL’s written decision to file your appeal. Here are the different ways you can file your appeal:

  • File by mail, fax, or online at www.ctdol.state.ct.us/appeals/apfrmnt.htm.
  • Fill out an appeal form. You can get a blank form at an American Job Center or an Appeals Division office.
  • Write a letter. Include your name, address, social security number, date of the fact finder’s decision, and the reason you think the decision is wrong.

It is critical that you keep meticulous written records and copies of everything involving your appeal. In addition, we advise that you continue to file your weekly claim, even though the determination has been made to deny unemployment benefits because if you win the appeal, you will only get money for the weeks you filed a claim. It is also important that you file the appeal within the 21 days or you may be barred from having your appeal heard unless you can convince the CTDOL that you had good cause or reason to have missed the 21 day filing period.

WHAT HAPPENS NEXT:

Unemployment appeals will result in a hearing. While we are in unchartered waters given the overload of unemployment applications in response to COVID-19, it still appears that the hearing appeal process used by the DOL before COVID remains in place.

WHAT YOU NEED TO KNOW ABOUT YOUR UNEMPLOYMENT APPEAL HEARING:

A hearing is almost like a mini trial conducted  by a “referee.” These hearings are usually done in person at the offices of the CTDOL, but given current circumstances, they will likely be conducted for the foreseeable future by phone or some other video conference technology such as Zoom. In addition, unemployment appeal hearings are almost always completed in a day or less.

Once you file your appeal, the Appeals Division will mail you a notice with the date, time, and place of your hearing as well as the issues the referee will ask about. If you do not get this notice within 30 days, you should contact the Appeals Division. You should also contact the Appeals Division if you need to change the date or if you require an interpreter, or if you have any other questions, hardships, or concerns. Again, under normal times, the Appeals Division has been very approachable and responsive, but with COVID, the process might not be as user friendly as it’s been in the past.

PREPARING FOR YOUR HEARING:

While applying for unemployment benefits is something that most people are able to do on their own and without counsel, we do advise that you consult with an attorney related to your appeal hearing and ideally that you have an attorney present with you at your appeal hearing. Because unemployment benefits have been so greatly expanded in response to COVID-19, there is a lot more money at stake. You want to win this appeal and employment attorneys will be able to prepare you and represent you at the hearing in order to increase the likelihood of success.

With or without counsel, you will want to prepare for the hearing by organizing and bringing with you all the documents, exhibits and other evidence to support your case. Such evidence or documents might include any communications regarding the separation from your employment, your earnings, the circumstances surrounding your change in employment status, personnel records etc. These documents will be presented by you and examined by the referee at the hearing. In addition, you are the party witness to your appeal and you will be sworn in and questioned. However, you are entitled to bring supporting witnesses to the hearing and if that is the case, you should be prepared with a list of questions for that witness that will help support your position. You may also want to prepare a list of questions to ask the employer’s witness. In most instances, the referee will ask the witness questions, but you may be given a chance to question the witness yourself in order to cover anything that the referee might have missed. In addition, you should be prepared with some sort of a written “opening and closing statement” as the referee may ask at the beginning and then again at the end if you have any opening or closing remarks. Of course, these are all tasks that ideally would be done by your counsel if you have one present with you at the hearing.

HEARING TIPS:

  • Arrive 20 minutes early
  • Bring pen and paper
  • Be organized
  • Bring prepared notes and documents
  • Stay calm, demonstrate respect for the referee and do not interrupt or speak until it is your turn
  • Be persuasive
  • Be honest
  • Be prepared

AFTER THE HEARING:

The referee will take some time to review what was stated and presented at the hearing and will usually render a decision within 2-4 weeks. The referee’s decision will be mailed to you, however, in light of COVID-19, it is possible decisions may be emailed. So be certain to check both in the weeks following your hearing. If you win the appeal, you should continue to file, and the checks will follow. However, if you lose the appeal, you are permitted to APPEAL the appeal. You need to file that appeal with the Board of Review in person, by fax or by mail. This further appeal process requires you to submit a statement in support of your position and to explain why you believe the appeal hearing determination was erroneous. Again, this is a task best done by experienced employment attorney, but if you are going to do this yourself, it is important that you read the referee’s decision carefully and identify any mistakes in the decision or the reasoning behind the decision. You are also permitted to include with your statement any additional “proof” or other information that was not available to you at the time of your appeal hearing. The board will read and review your statement and make a decision based on your statement. You will most likely not be granted another hearing, so that is why it is so important that your appeal statement must be persuasive, compelling and legally sound. After all, this is your last chance to get those unemployment checks!

For more information about this article or to speak to one of our Employment Lawyers, please contact Carey & Associates, P.C. at 203-255-4150 or by email to info@capclaw.com.

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

The U.S. Equal Employment Opportunity Commission has issued the following critical guidance that lawyers and judges are using today and you should as also.  Please use the following link to the following information below reprinted in its entirety:

Technical Assistance Questions and Answers – Updated on May 5, 2020

  • All EEOC materials related to COVID-19 are collected at www.eeoc.gov/coronavirus.
  • The EEOC enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act (which include the requirement for reasonable accommodation and non-discrimination based on disability, and rules about employer medical examinations and inquiries), Title VII of the Civil Rights Act (which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy), the Age Discrimination in Employment Act (which prohibits discrimination based on age, 40 or older), and the Genetic Information Nondiscrimination Act.
  • The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.
  • The EEOC has provided guidance (a publication entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act [PDF version]), consistent with these workplace protections and rules, that can help employers implement strategies to navigate the impact of COVID-19 in the workplace. This pandemic publication, which was written during the prior H1N1 outbreak, is still relevant today and identifies established ADA and Rehabilitation Act principles to answer questions frequently asked about the workplace during a pandemic. It has been updated as of March 19, 2020 to address examples and information regarding COVID-19; the new 2020 information appears in bold.
  • The World Health Organization (WHO) has declared COVID-19 to be an international pandemic. The EEOC pandemic publication includes a separate section that answers common employer questions about what to do after a pandemic has been declared. Applying these principles to the COVID-19 pandemic, the following may be useful:

A. Disability-Related Inquiries and Medical Exams

A.1. How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic? (3/17/20)

During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

A.2. When screening employees entering the workplace during this time, may an employer only ask employees about the COVID-19 symptoms EEOC has identified as examples, or may it ask about any symptoms identified by public health authorities as associated with COVID-19? (4/9/20)

As public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms. Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.

A.3. When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic? (3/17/20)

Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.

A.4. Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19? (3/17/20)

Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.

A.5. When employees return to work, does the ADA allow employers to require a doctor’s note certifying fitness for duty? (3/17/20)

Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? (4/23/20)

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

B. Confidentiality of Medical Information

B.1. May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee’s temperature or the employee’s self-identification as having this disease, or must the employer create a new medical file system solely for this information? (4/9/20)

The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.

B.2. If an employer requires all employees to have a daily temperature check before entering the workplace, may the employer maintain a log of the results? (4/9/20)

Yes. The employer needs to maintain the confidentiality of this information.

B.3. May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19? (4/9/20)

Yes.

B.4. May a temporary staffing agency or a contractor that places an employee in an employer’s workplace notify the employer if it learns the employee has COVID-19? (4/9/20)

Yes. The staffing agency or contractor may notify the employer and disclose the name of the employee, because the employer may need to determine if this employee had contact with anyone in the workplace.

C. Hiring and Onboarding

C.1. If an employer is hiring, may it screen applicants for symptoms of COVID-19? (3/18/20)

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.

C.2. May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam? (3/18/20)

Yes. Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever.

C.3. May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it? (3/18/20)

Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.

C.4. May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it? (3/18/20)

Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.

C.5. May an employer postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19? (4/9/20)

No. The fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer. However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.

D. Reasonable Accommodation

In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.

D.1. If a job may only be performed at the workplace, are there reasonable accommodations for individuals with disabilities, absent undue hardshipthat could offer protection to an employee who, due to a preexisting disability, is at higher risk from COVID-19? (4/9/20)

There may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19 and who therefore requests such actions to eliminate possible exposure. Even with the constraints imposed by a pandemic, some accommodations may meet an employee’s needs on a temporary basis without causing undue hardship on the employer.

Low-cost solutions achieved with materials already on hand or easily obtained may be effective. If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.

Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.

D.2. If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, may he now be entitled to a reasonable accommodation (absent undue hardship)? (4/9/20)

Although many people feel significant stress due to the COVID-19 pandemic, employees with certain preexisting mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic.

As with any accommodation request, employers may: ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.

D.3. In a workplace where all employees are required to telework during this time, should an employer postpone discussing a request from an employee with a disability for an accommodation that will not be needed until he returns to the workplace when mandatory telework ends? (4/9/20)

Not necessarily. An employer may give higher priority to discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now. The employer may be able to acquire all the information it needs to make a decision. If a reasonable accommodation is granted, the employer also may be able to make some arrangements for the accommodation in advance.

D.4. What if an employee was already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an additional or altered accommodation? (4/9/20)

An employee who was already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship. For example, an employee who is teleworking because of the pandemic may need a different type of accommodation than what he uses in the workplace. The employer may discuss with the employee whether the same or a different disability is the basis for this new request and why an additional or altered accommodation is needed.

D.5. During the pandemic, if an employee requests an accommodation for a medical condition either at home or in the workplace, may an employer still request information to determine if the condition is a disability? (4/17/20)

Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee has a “disability” as defined by the ADA (a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment).

D.6. During the pandemic, may an employer still engage in the interactive process and request information from an employee about why an accommodation is needed? (4/17/20)

Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one he requested or any other. Possible questions for the employee may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position (that is, the fundamental job duties).

D.7. If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, may an employer provide a temporary accommodation? (4/17/20)

Yes. Given the pandemic, some employers may choose to forgo or shorten the exchange of information between an employer and employee known as the “interactive process” (discussed in D.5 and D.6., above) and grant the request. In addition, when government restrictions change, or are partially or fully lifted, the need for accommodations may also change. This may result in more requests for short-term accommodations. Employers may wish to adapt the interactive process – and devise end dates for the accommodation – to suit changing circumstances based on public health directives.

Whatever the reason for shortening or adapting the interactive process, an employer may also choose to place an end date on the accommodation (for example, either a specific date such as May 30, or when the employee returns to the workplace part- or full-time due to changes in government restrictions limiting the number of people who may congregate). Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a pre-existing disability that puts her at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.

Employees may request an extension that an employer must consider, particularly if current government restrictions are extended or new ones adopted.

D.8. May an employer ask employees now if they will need reasonable accommodations in the future when they are permitted to return to the workplace? (4/17/20)

Yes. Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens. Employers may begin the “interactive process” – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed.

D.9. Are the circumstances of the pandemic relevant to whether a requested accommodation can be denied because it poses an undue hardship? (4/17/20)

Yes. An employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.

D.10. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant difficulty” during the COVID-19 pandemic? (4/17/20)

An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.

D.11. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant expense” during the COVID-19 pandemic? (4/17/20)

Prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer’s overall budget and resources (always considering the budget/resources of the entire entity and not just its components). But, the sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration. Also relevant is the amount of discretionary funds available at this time – when considering other expenses – and whether there is an expected date that current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted). These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic. For example, even under current circumstances, there may be many no-cost or very low-cost accommodations.

D.12. Do the ADA and the Rehabilitation Act apply to applicants or employees who are classified as “critical infrastructure workers” or “essential critical workers” by the CDC? (4/23/20)

Yes. These CDC designations, or any other designations of certain employees, do not eliminate coverage under the ADA or the Rehabilitation Act, or any other equal employment opportunity law. Therefore, employers receiving requests for reasonable accommodation under the ADA or the Rehabilitation Act from employees falling in these categories of jobs must accept and process the requests as they would for any other employee. Whether the request is granted will depend on whether the worker is an individual with a disability, and whether there is a reasonable accommodation that can be provided absent undue hardship.

E. Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics

E.1. What practical tools are available to employers to reduce and address workplace harassment that may arise as a result of the COVID-19 pandemic? (4/9/20)

Employers can help reduce the chance of harassment by explicitly communicating to the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.

Practical anti-harassment tools provided by the EEOC for small businesses can be found here:

  • Anti-harassment policy tips for small businesses
  • Select Task Force on the Study of Harassment in the Workplace (includes detailed recommendations and tools to aid in designing effective anti-harassment policies; developing training curricula; implementing complaint, reporting, and investigation procedures; creating an organizational culture in which harassment is not tolerated):
    • report;
    • checklists for employers who want to reduce and address harassment in the workplace; and,
    • chart of risk factors that lead to harassment and appropriate responses.

E.2. Are there steps an employer should take to address possible harassment and discrimination against coworkers when it re-opens the workplace? (4/17/20)

Yes. An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information. It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.

F. Furloughs and Layoffs

F.1. Under the EEOC’s laws, what waiver responsibilities apply when an employer is conducting layoffs? (4/9/20)

Special rules apply when an employer is offering employees severance packages in exchange for a general release of all discrimination claims against the employer. More information is available in EEOC’s technical assistance document on severance agreements.

G. Return to Work

G.1. As government stay-at-home orders and other restrictions are modified or lifted in your area, how will employers know what steps they can take consistent with the ADA to screen employees for COVID-19 when entering the workplace? (4/17/20)

The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.

Direct threat is to be determined based on the best available objective medical evidence. The guidance from CDC or other public health authorities is such evidence. Therefore, employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time.

For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace. Similarly, the CDC recently posted information on return by certain types of critical workers.

Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.

G.2. An employer requires returning workers to wear personal protective gear and engage in infection control practices. Some employees ask for accommodations due to a need for modified protective gear. Must an employer grant these requests? (4/17/20)

An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).

However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII.

G.3. What does an employee need to do in order to request reasonable accommodation from her employer because she has one of the medical conditions that CDC says may put her at higher risk for severe illness from COVID-19? (5/5/20)

An employee – or a third party, such as an employee’s doctor – must let the employer know that she needs a change for a reason related to a medical condition (here, the underlying condition).  Individuals may request accommodation in conversation or in writing.  While the employee (or third party) does not need to use the term “reasonable accommodation” or reference the ADA, she may do so.

The employee or her representative should communicate that she has a medical condition that necessitates a change to meet a medical need.  After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.

G.4. The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19.  An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation.  How does the ADA apply to this situation?

First, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.

If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing him at “higher risk for severe illness” if he gets COVID-19.  Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation.

The ADA direct threat requirement is a high standard.  As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to his own health under 29 C.F.R. section 1630.2(r). A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence. The ADA regulation requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.  Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and his particular job duties.  A determination of direct threat also would include the likelihood that an individual will be exposed to the virus at the worksite.  Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing, also would be relevant.

Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace – or take any other adverse action – unless there is no way to provide a reasonable accommodation (absent undue hardship).  The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions.  This can involve an interactive process with the employee.  If there are not accommodations that permit this, then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework).  An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.

G.5. What are examples of accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self? (5/5/20)

Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace.  Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others.  Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position).  In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

These are only a few ideas.  Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace.  An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations.  As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.

For further information please contact our Employment Lawyers at Carey & Associates P.C. at 203-255-4150 or email to info@capclaw.com.

 

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