Employment Law Attorneys
The Workplace of Tomorrow III: A New Path

The Workplace of Tomorrow III: A New Path

By Fran Slusarz

About a million years ago, I remember hearing that the Star Wars epic was meant to track the rise and fall of the Roman empire. It starts as a republic, becomes an empire as its boundaries grow and power is consolidated, becomes corrupt because power corrupts, and finally it falls. After the chaos, a new government starts the cycle again as a republic. I have no idea if this is true and, in any event, once Leia survived the vacuum of space with her Poppinsesque flying power it no longer mattered. But the New Path for The Workplace of Tomorrow is very different and we are going to show you why.  So, let me tell you about the Old Path first so you can get your bearings.

The Old Path

Once upon a time, a person could expect to work for one or two companies (at most) for their entire adult lives, earn a decent wage, and retire with a pension. Manual laborers were unionized and enjoyed income and job protection from the strength of their ability to bargain collectively. Office workers were not typically union members, but their identities as employees of particular companies were practically encoded at the DNA level. Men (and they were nearly all men) at IBM wore dark suits, white dress shirts, rep ties, and wing tips. Men at Procter & Gamble wrote P&G Memos. In those days, a man could start off working in the mailroom with a high school diploma and, if he were hard working, smart, and white, he could make it to the Executive Suite.

Technically, most of the non-union “Organization Men” were employees at-will. They could leave at any time, for any reason, and their employers would terminate their employment at any time and for any reason. It just didn’t happen very much. The sense of community and shared purpose that eludes modern businesses was alive and well on the Old Path. Those team-building activities we “enjoy” at company retreats were unnecessary because companies fielded baseball teams and bowling teams and engaged in a variety of other activities. The International Ladies Garment Workers Union had a famous chorus that recorded tunes, gave concerts, and showed off their chops in many memorable commercials of the ‘70s.

Better Start Swimming Or You’ll Sink Like a Stone

Things began to change as union membership decreased in the 50s and 60s. The turbulent economic times of the early ‘70s through early ‘80s (oil embargo, inflation, recession, rinse, repeat), followed by the corporate raiders throughout the 80’s effectively severed the symbiotic relationship between workers and management in America. Raiders would take on huge debt to take over control of a public company, and then strip assets from the company to pay their debt or otherwise profit. These takeovers invariably involved massive layoffs and reorganizations of the companies. “Flat organizational structures” became de rigeur as middle management all but disappeared and my high school classmates’ fathers became “consultants;” i.e., unemployed.

In the 30+ years since Black Monday, October 19, 1987 – the day the stock market crashed and lost 22.5% of its value – the connection between employer and employee has become more tenuous and opportunistic. Black Monday triggered an economic downturn and both parasitic layoffs. Same thing in the Dot Com Bust, the Great Recession, and now the Covid19 era.

The flipside of knowing your employer doesn’t have your back and your employment at- will can be terminated at any moment, is a lack of loyalty to your employer. In other words, employees do not trust their employers will protect them, even though the employer needs the employees now more than ever to – just survive. Ironic isn’t it?  I haven’t checked recent statistics, but GenX, Millennials, and GenZ are expected to change jobs 10-20 times in their adult working lives.

Enough with the History. Where’s this New Path?

I am not an at-will employee, nor do I breathe the rarified air of those with written contracts of employment for a specific period of time and who can only be terminated for cause. So, what am I? I am a traveler on the New Path.

Mark Carey, who has written on why at will employment is a bad rule and how it was invented by lawyer in 1877, puts his money where his mouth is. My employment is not terminable “at will,” it is terminable “for cause.” It means no one from my office has been laid off during the pandemic.  We are all in this together and I have a vested interest in the success of my employer. It means if I do my job, my employer will have my back. In exchange, I’ve agreed to stay with my firm unless I have good reason to leave (i.e., reduction in pay, demotion). The Thirteenth Amendment prevents Mark from enforcing my side of the deal, but the trust engendered in his commitment to me as his employee engenders my reciprocal promise to stay.

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.

The Employees’ Field Guide to Protesting: What you Need to Know Before the Rally

The Employees’ Field Guide to Protesting: What you Need to Know Before the Rally

By Fran Slusarz

It always surprises people when they learn that they really don’t have a right to say whatever they want at work or outside work. We all have rights to free speech under the First Amendment, but what that means is often misunderstood. Everyone’s heard, “You can’t yell ‘Fire!’ in a crowded theater,” but what does that mean for everyone who doesn’t work in crowded theaters?

Answer: not a heck of a lot.

What the First Amendment Is and Is Not

First, take a look at what the First Amendment actually says: “Congress shall make no law … abridging the freedom of speech….” The First Amendment is only concerned with what the government does. Government employers have protection for speech made in their capacity as private individuals, but not in their roles as government employee. If a government employee’s freedom of speech is abridged, the employee can bring a civil rights claim under 42 U.S.C. § 1983. But your private employer? The First Amendment has nothing to do with it. Private individuals and private companies can do what they want. Even terminate your employment.

This may seem counterintuitive – how can you be fired for doing something that is 100% legal and enshrined in the Constitution? Simple: just because the government cannot stop you from doing something does not mean your employer has to like it. For example, you can be a member of the KKK and the government cannot stop you and your brother klansmen from putting on pointy hoods, and sharing secret handshakes and racist screeds (one assumes). When your employer finds out, however, she can fire you because she finds your beliefs repugnant. Many who stomped around Charlottesvillle, Virginia, shouting Nazi slogans learned this the hard way.

But this same rule works against people who are bringing attention to concerns more in line with American ideals of life, liberty, and the pursuit of happiness. For example, in 2017, Lisa Durden, a college professor, was fired for appearing on Fox News and defending a Black Lives Matter party to which only Black people were invited. There’s no question that her statements were protected by the First Amendment, but some of her statements were viewed as inflammatory, outrage was duly sparked, and her employer wanted to distance itself from her.

Don’t Embarrass Your Employer

Like it or not, we are all ambassadors for our employers and how we act/what we do reflects on them. We live in a world where the Internet can find you in hours, as certain self-involved dog owner and bullying cyclist recently learned. Both lost their jobs because their actions reflected upon their employers, and their employers wanted nothing to do with them.

These are outrageous examples that illustrate an important lesson. If keeping your job is important to you, you must consider how publicly exercising your right to free speech reflects on your employer. A vocal gun control advocate can’t expect to keep his marketing job at Smith & Wesson.

If You’re Not the Designated Spokesperson, Don’t Speak for your Company

This seems obvious, but it includes not doing or saying anything that would make anyone else think that you are speaking for the company. For example, if you work for UPS, doff the brown uniform before you join the protest rally. Don’t hold a sign that says, “Company X Employees Against World Peace.”

Before law school, I worked in human resources for a Fortune 10. One day, all hell broke loose because a vice president of training and development wrote a letter to the Wall Street Journal on company letterhead, which WSJ printed. His letter included references to “gritty inner-city streets” and addressed racial issues. He was lucky. It was the late 90s and the hubbub was almost all internal. If that were today, he would have been fired the day after WSJ published his letter.

Nevermind Your Privacy Settings, Everything on the Internet is Public

This is where people make the most mistakes. You may think you are just venting to a group of friends and no one else will see it, but anything can be forwarded, or screenshot, or found in a Google search. Don’t write anything you wouldn’t want your boss to read and you don’t want published on The Daily Beast. If you’re unsure, stick with cat memes.

Last year, agents of U.S. Customers and Border Patrol discovered that their “private” Facebook group, where they shared jokes about dead migrants and sexist memes, wasn’t at all private. Various punishments ensued and Congress is investigating the group. This is not a good look on anyone. That any of the more active members are still employed is only because they are government employees and are entitled to due process. Private employees are not.

Back to Fairness, Why Isn’t What You Say “Off the Clock” Protected?

By design, the Constitution concerns itself only with what the government can and cannot do. The idea was that if the government involves itself too deeply in the day-to-day conduct of people’s lives, it is akin to tyranny. So, we are left with an imperfect situation where white supremacist groups are protected the same as pro-democracy groups, and your private employer can fire you for involvement in either.

Still, that doesn’t feel right. Is it possible to work around it, and protect employment rights for private employees who are exercising their First Amendment rights?

Answer: Yes. Some federal statutes already protect some speech, and some states protect  employees engaged in political activity.

OSHA, the NLRB, and Whistleblower Laws

As I discussed in my articles about preparing to return to work in CovidWorld and Whistleblower Laws, you have the right to a safe workplace and the right report unsafe working conditions without fear of reprisal. You also have the rights to discuss the terms and conditions of your employment with your co-workers and engage in concerted activity to change the terms and conditions. These protections are limited as to the subjects upon which you can speak, and to whom, but it is something.

State Laws

Some states have passed laws that specifically protect employees from adverse action based on pollical activity. Connecticut comes right out and prohibits discipline or discharge of an employee for exercising First Amendment Rights, provided the activity does not interfere with the employee’s job performance or the working relationship between the employer and the employee. Colorado, North Dakota, and Utah prohibit workplace discrimination based on “lawful conduct outside of work.” California and New York prohibit discrimination for “recreation activities” outside work, which can include attending political events. A handful of other states protect employees engaged in “political activities,” based on their party membership, and based on their “political opinions.”

In the current divisive political environment, it is unlikely that the federal government will pass a law adding employment protection for political activity, but laws change to reflect the people’s beliefs. Twenty years ago, marriage equality seemed like an impossibility. By 2004, same sex marriage was legal in Massachusetts, followed by Connecticut’s civil union law in 2005. Over the next 10 years, same sex marriage became legal in state after state, until the watershed moment in 2015, when the U.S. Supreme Court declared same-sex marriage to be legal throughout the United States.

A sea change of societal acceptance over 15 years, from something considered virtually impossible to something legal and generally accepted by most Americans is unprecedented. But don’t be discouraged. Pressure from the general public is already causing businesses to rethink their policies about political speech at work.

Earlier this month, Starbucks suffered serious social media backlash when it was learned they instructed employees that they could not wear Black Lives Matter shirts or paraphernalia because it might amplify divisiveness. Starbucks has since announced the creation of its own Black Lives Matter t-shirts for its employees to wear. Last week, when a Taco Bell franchise employee claimed he was fired for wearing a Black Lives Matter face mask, Taco Bell was quick to respond, apologizing for the action, stating that its employees are allowed to wear Black Lives Matter masks and that it supports the Black Lives Matter movement. I doubt any of us could have imagined this reaction three years ago, when Lisa Durden was fired.

One thing is certain, support for free speech protection for private employees is gaining traction in the United States. We certainly live in interesting times.

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

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.

The Workplace of Tomorrow II: Dystopia Rising

The Workplace of Tomorrow II: Dystopia Rising

By Fran Slusarz,

Last week, or 347 news cycles ago, I wrote that the post-COVID workplace will not be as bad as we feared. Most employers will do the right thing and provide a safe workplace for their employees. We may not have jetpacks, but the country would find its way. Today? I’m just not feeling it. After several solid days of civil unrest in the wake of the death of George Floyd in police custody, and with the government’s increasingly militaristic response to same, I can’t muster the optimism to tell you things will be all right.

With that as a backdrop, I present The Workplace of Tomorrow II: Dystopia Rising. Like any good trilogy, the second story ends with our heroes at their lowest, facing certain defeat. While reading this, despair not: The Workplace of Tomorrow III will have a happily ever after. Trust me. I’m a lawyer.

The Surveillance Workplace

While researching Montana’s Wrongful Discharge in Employment Act (much more on this to come), I discovered that as of October 1, 2019, it is unlawful in Montana for an employer to force the implantation of a microchip on its employees. The employee must consent, and the employer cannot fire or refuse to hire anyone who does not want to be treated like livestock or an errant pet. Several other states are considering similar laws. I was delighted to find states making autonomy over one’s body a priority, but I could not find the problem these laws are meant to solve. No employers are pushing for 24/7 tracking of its employees and there exist no grassroots #StopTheChip movement.

It’s easy to be cynical and cast the law as a pointless gesture that gives Montana’s elected officials a “win,” but it touches upon real concern people have about their privacy and, in particular, electronic surveillance.

Momentary Digression: I Own No Foil Hats

Let me digress for a moment and assure you that I am not a privacy freak. I consider myself concerned about privacy, but probably not as much as I should be. I put security stickers over my cameras when I’m not using them and I rarely use location services on my phone because the idea of Tim Cook keeping tabs on me is creepy. Sometimes – but not often – I use a web browser with a Virtual Private Network. By contrast, I know my Internet Service Provider knows every website that has ever been visited by any device on my wifi network and the records can be subpoenaed. I have a Google Nest Hub in my kitchen that sometimes speaks when no one asked it anything. I have a collection of 5 or 6 passwords that I use for everything. I always sign up for the membership card to get the sale price, I do not have Radio Frequency Identification-blocking anything, and I own no aluminum foil-lined garments or headgear.

Digression Completed. Let’s Continue

Now that you have the context, you can decide how to take the rest of this article.

Back when going to work involved going somewhere, employers could tell if their employees were working by confirming that they were where they were supposed to be at the appointed time. That’s not as easy with a remote and mobile workforce. As a result, many employers use software to track computer use, and can easily check what time you started working, what websites you visited, and for how long.

A lot of states require employers to inform their employees that their computer use will be monitored, but when was the last time you read your employee handbook or the bulletin board in the lunchroom with all the employment law notices? That last one is a particular challenge when your workplace has been shut down for 3 months.

My plea to you: don’t do ANYTHING on your work computer that you don’t want your mother to read. Do your mother and your lawyer a favor. Believe me, I’ve had to sit through depositions while a smug opposing counsel read sexually explicit messages my client sent some rando from his work computer.

Point Taken, But What’s This Got to Do With COVID-19?

Contact-tracing is a time-honored weapon in fighting epidemics and pandemics. If you can get in touch with people who have been exposed before they have the chance to infect others, you can limit the spread of the disease. When a disease hits the level of “community spread” – i.e., so widespread it is almost impossible to track how a person came in contact with the disease, and to whom the person may have spread it. This is where technology can help, and your privacy can become an issue.

Every day, most Americans carry around a device with which our movements can be tracked: our mobile phones. Although we tend not to think about it, we willingly permit private companies to track our movement throughout the day as our devices ping nearby cell towers. The government can access this information immediately under exigent circumstances (i.e., a kidnapping), or with a search warrant.

Over the last several months, private companies have been working on ways to use our screen addiction for the public good, by developing contract tracing apps and notification tools to combat the coronavirus pandemic. Using such an app would be voluntary, but convincing us to download something that is designed to track your every movement and report it to the government – public health officials – is outside the comfort zone of many, many people.

To ease privacy concerns, yesterday, June 1, 2020, the Senate introduced the Exposure Notification Privacy Act, a nonpartisan bill to regulate contract tracing and exposure notification apps. It would ensure that any data collected for coronavirus cannot be used for commercial purposes and that users can request that their information be deleted at any time. It’s a tightrope walk: the ability to contact trace electronically, on a grand scale, can do wonders for containing COVID-19 and, ultimately, reopening the country. But, as Republican Senator Bill Cassidy (LA), stated, “If you ask most people, ‘Do you trust Google to respect your privacy?’ … they don’t trust Google.” Nothing personal, Google, but my Nest Hub does speak out of turn. Who knows what it reports back to the baseship.

Employer Use of Tracking Apps

There is also a growing concern about how employers may use this technology. Remember those wacky microchip implantation laws? Well, it is grows from the fact that employers in some sectors have their employees use wearable tracking devices at work, ostensibly for efficiency and productivity. Amazon, for example, is famous for its tracking of warehouse employees, including the time they take in the bathroom, and terminating them if they fall under threshold.

You may not wish to have contact tracing software on your phone, but if you carry a phone issued by your employer, you may not have that choice. Indeed, employers are driving the development of contact tracing tech, with companies like PriceWaterhouseCoopers offering an app that helps businesses “access precise proximity information” and “receive near real-time information about whether your people may be at risk for exposure.”

Welcome to The Workplace of Tomorrow II: Dystopia Rising. A world where your employer knows where you are every minute of the day, every person with whom you interact, and how poorly you play Vegas rules solitaire. I look back at my earliest office job, where I transcribed dictation tapes on a Wang VS word processing terminal, and sigh.

For more information about this article or to speak with one of our employment attorneys, please contact Carey & Associates, P.C. at 203-255-4150 or send an email to info@capclaw.com.

The Workplace of Tomorrow: Not as Silly as They Predicted, Not as Bad as You Fear

The Workplace of Tomorrow: Not as Silly as They Predicted, Not as Bad as You Fear

By Fran Slusarz,

Mid-century was the golden age of futurism and if you are of a certain (ahem) age, you spent far too many hours on Saturday morning watching cartoons about The World of Tomorrow. Flying cars and jet packs featured prominently, along with voice activated appliances, innumerable tv screens, robots that sweep up after you: everything the middle-class, white, heterosexual, single income family could need. The best minds of the Boomer generation predicted Skynet would become sentient on August 4, 1997, and set out to destroy humanity shortly thereafter. The best minds of my generation were slightly kinder: our robot overlords let us think we lived in an imperfect dream world.

I’ve been thinking about these days of past future recently because we’re at a crossroads. Articles abound predicting what our workplaces will look like as businesses reopen, but all we know for sure is that it won’t be the same. Even after a vaccine for COVID-19 is widely available and herd immunity kicks in, some changes will be permanent. There is no hard reset to January 2020.

The Discrimination We Are NOT Seeing

When the pandemic first took hold in New York, we thought we would see rampant discrimination on the basis of COVID-19 status, risk of COVID-19 exposure, or risk of serious complications from COVID-19. Frankly, our only frame of reference was HIV/AIDS in the 1980s. We expected people to have the same irrational fear or working alongside someone who had been sick or may have been exposed.

While many people are, naturally, fearful of developing COVID-19, we are not seeing the fear of the individuals affected as we did at the height of the AIDS crisis. Instead, people are behaving compassionately and, despite the outliers we see in the news, accept inconveniences like hunkering down and wearing PPE because we recognize how deadly COVID-19 is. Fogged-up glasses are no big deal compared with the inability to breath.

Funny enough, I think we have to thank Princess Diana for this. One of her greatest legacies is that she humanized people with HIV/AIDS and help the world to recognize that the sick deserve our compassion even when the illness is scary.

The Undiscovered Country

The post-COVID workplace is the great unknown. While every employer is required to provide a safe workplace, for many industries compliance has consisted of little more than making sure exit routes are unlocked in case of fire. The closest thing to safety equipment I’ve used in 30 years of office work is dishwashing gloves. Tech employers that have never considered the risks of injury their employees face, now have to consider how to force social distancing in open, sit where you want, workplaces. Law firms have to consider the time a virus can survive on the coffee machine, or how frequently keyboards should be sanitized. The healthcare and construction industries are way ahead of the game since they’ve had to think about worker safety for more than a century.

Some of the changes employers need to make will be costly, inconvenient, or seemingly illogical and unnecessary. OSHA’s Guidance on Preparing Workplaces for COVID-19 has a lot of good information for how to minimize the risk of transmission in the workplace in general, but employers have to know to look for it and use it. One family member of mine, for example, works for an engineering firm that reopened its office last week. The owners do not think it is required to make any changes to ensure its employees are safe from COVID. My family member satisfies her own safety concerns with the knowledge that she spends most of the day alone in her office and the liberal use sanitizing wipes. Her employer, however, should be analyzing the workspace and how employees interact with each other to determine if temperature checks, masks, and an aggressive cleaning schedule should be implemented.

This knowledge gap leads us to believe that we will see an uptick in OSHA-related employment issues through the end of the year, as businesses reopen. Employees will want to know their legal rights before they file a complaint with OSHA, and some employers will retaliate against whistleblowers. Unless an employer does something remarkably stupid, I don’t expect the post-COVID workplace to be a breeding ground for class action lawsuits.

Overall, I’m optimistic about The Workplace of Tomorrow. I think employers will do their best to keep their employees safe even if it requires a little nudging, and people will continue to do what we can to avoid transmitting this deadly disease. We may not have flying cars and jetpacks, but we will have compassionate people who want to do the right thing. Not a bad trade-off.

If you would like more information about this article, please contact our employment attorneys at Carey & Associates, P.C. or send an email to info@capclaw.com.

Watch Out for Parasitic Layoffs: Companies are Dropping Headcount  to Boost the Bottom Line While No One’s Paying Attention

Watch Out for Parasitic Layoffs: Companies are Dropping Headcount to Boost the Bottom Line While No One’s Paying Attention

By Fran Slusarz,

It happens in every economic downturn. Companies that are doing just fine, thank you, go through rounds of layoffs to the cheers of Wall Street. Their stock value goes up because they cut expenses, and there’s no real consumer or job market backlash. So many companies are laying off workers that no one can keep track of which ones were on the brink of insolvency and which ones were riding the wave.

We see it in news and our firm has seen it in the calls we’ve gotten in the last few weeks. Last week, for example, IBM announced that it is laying off an undisclosed number of workers. Its CEO made a statement last month about uncertainty caused by COVID-19, but IBM’s current stock price is only about 6% off its price from one year ago today, and up nearly $30 per share from its low point on March 23, 2020. Bicycle shops across the US have backorders and waitlists they’ve never seen before, but we know of significant layoffs by manufacturers.

So what’s an undisclosed number of layoffs in the vast ocean of 38.6 million unemployed Americans?

I try to avoid falling into the trap of absolutes. Businesses exist to make money, so how can you fault them for doing so? Except, there is something patently unfair about firing people for no good reason at all. And mean-spirited about doing it at a time when it will be difficult for your former employees to find another job. And vulgar about using a the economic fall out of a global pandemic to deflect attention from their own opportunistic behavior.

If our Supreme Court says that corporations can have the religious beliefs of the humans who own them, then shouldn’t we expect them to behave ethically with regard to the humans who serve them?

Fortunately, some in business are beginning to recognize that “Greed is good,” isn’t the best of all possible worlds. The Business Roundtable, an association of CEOs from America’s largest companies, recently updated its Statement on the Purpose of a Corporation to recognize the company’s role in serving all stakeholders – shareholders and employees alike. If more companies adopt this approach, maybe we can disincentivize these parasitic layoffs. Maybe we can minimize the effects of economic downturns overall.

If you would like more information about whether your layoff was illegal, please contact our employment attorneys at Carey & Associates, P.C. or send an email to info@capclaw.com.

What If They Opened the Economy and No One Came?  Or, Why It’s Still Mostly Groundhog Day

What If They Opened the Economy and No One Came? Or, Why It’s Still Mostly Groundhog Day

By Fran Slusarz,

With all 50 states set to lift at least some restrictions as we head into Memorial Day weekend, it is the perfect time to look at what this means – and doesn’t mean – for America’s workers.

A reopening, however broad, isn’t going to magic us back three months. Most states are following variations on the staged openings recommended by the Centers for Disease Control and Prevention, but they are not mandatory and each state has been left to decide for itself how best to open.

This leaves us with a patchwork of rules and recommendations, and no universal path forward. We must proceed according to our home state’s rules, our employer’s health and business concerns, and our own risk tolerance.

Not Every Industry Will be Open

In deciding what to open and when, states must consider the continued need for social distancing. Certain industries are just not conducive to staying 6 feet apart from each other, which is why I won’t be reveling in my field-level GA tickets to the Foo Fighters this July 4th, and instead will be trying to keep my dogs calm amidst the neighborhood fireworks displays. Simply, if you are floor trader at a stock exchange, a National Football League player, or even a Foo Fighter, you can expect to wait a bit longer before your industry opens.

Even if Industry is Open, Your Job May Not Be

Just because the state decides your industry is “open,” doesn’t mean you are going back to work right away. Your employer has to decide if it makes sense to open. Yes, they are losing money by staying closed, but they can lose more money by opening before their customers are ready to come back. When the owners feel confident, they can generate enough sales to cover payroll, utilities, and supplies, they will reopen. But, again, it isn’t a simple 3-month rewind. Businesses will have to comply with new health and safety requirements when they open, which can involve providing PPE for their employees and instituting frequent, meticulous cleaning schedules, to limiting the number of customers they can serve. All these factors will affect when a business calls back their employees, and how many they call back.

Your Job May Not Exist Anymore

This is one of the grimmer realities and I won’t dwell upon it. Ask yourself this: how likely are you to sample food at your next trip to Costco? I’ve never seen the people who offer samples doing anything remotely icky and I doubt they will start. But that won’t matter.

Before you worry about all the jobs that may become obsolete, remember that COVIDWorld has invented a host of new jobs. Grocery stores never had PPE checkers or cart cleaners before March; doctors’ offices never had temperature checkers.

That Pesky Consumer Confidence

Statisticians work tirelessly to describe numerically how consumers feel about spending money, but it’s all common sense: a person who feels confident about the economy and their personal financial situation is more likely to spend money. Someone who is worried about the economy and personal finances spend less.

What does this mean for your job in COVIDWorld? It’s another challenge. Without a universal set of rules for business reopening, having to rely on mixed messages and a patchwork of practices, it will be hard for consumers to feel confident about spending money.  It means we all must follow social distancing and PPE rules so we can all can feel confident that we aren’t risking our lives by going out into the world. Then consumers will spend money and employers will recall their workers.

We must work together on this one. This time around, we don’t have the option of going to the Winchester, having a nice cold pint, and waiting for all this to blow over.

If you would like more information about returning to work and your employment rights, please contact Carey & Associates, P.C. at 203-255-4150 or send an email to info@capclaw.com.

Does Your Large Employer Owe You Paid Sick Leave and Enhanced FMLA Leave?

Does Your Large Employer Owe You Paid Sick Leave and Enhanced FMLA Leave?

By Fran Slusarz,

If you are as outraged as I am by the well-capitalized hospitality industry and publicly traded companies gobbling up Paycheck Protection Program (PPP) loans meant for small businesses desperate for a way to pay their employees, you know that yesterday was the deadline for those companies to return loan funds without risk of penalty. After all, each of the companies had to certify that the “[c]urrent economic uncertainty makes this loan request necessary to support [their] ongoing operations,” and chances are pretty good that many of these companies had cash reserves from which to draw.

Why does it matter? Because employers with fewer than 500 employees are obligated to provide up to two weeks of Emergency Paid Sick Leave to their employees and 10 weeks Enhanced Family and Medical Leave under the Families First Coronavirus Response Act.

Isn’t this obvious? Fewer than 500 employees is fewer than 500 employees? If PPP, then Paid Sick Leave and Enhanced FMLA. Simple, right? Wrong. The CARES Act had a special carve out for the hospitality industry. Instead of requiring fewer than 500 employees total, hospitality industry companies were eligible for PPP loans if they had fewer than 500 employees per location. This is how ShakeShack qualified. (ShakeShack, returned their PPP loan. Most did not.)

That seems unfair. If you take PPP funds because you are a small business, how can you claim you aren’t a small business when it comes to paying benefits to your employees?

How indeed. It is an unintended consequence of the Single Employer Doctrine. When you have two or more companies with interrelated day-to-day operations, common management, centralized HR functions, and common ownership, they can be treated as a single employer for some employment law purposes. Businesses with multiple locations often organize separate business entities for each location, but operate them as a single business.

Traditionally, employers worked to avoid being lumped together as a single employer with another entity because different employment laws kick in as the number of employees increase. But we’re in COVIDWorld now, and the single employer doctrine is flipped on its head: employers that want to avoid Emergency Paid Sick Leave and Enhanced FMLA will wish to aggregate themselves with as many related companies as they can to hit the magic number of 500 employees.

At this point, we have no way of knowing how courts will treat the Shrödinger’s paradox of having both fewer than and more than 500 employees at the same time, but courts tend to prefer consistency over illogical outcomes. As Maya Angelou said, “When someone shows you who they are, believe them the first time.” The companies who received PPP loans should expect the world to believe they have 500 employees, and should treat their employees accordingly.

Or not. I’ll find it entertaining to watch their lawyers argue both sides.

If you think you may be entitled to Emergency Paid Sick Leave or Enhanced FMLA leave but your employer says you aren’t, please give Carey & Associates, P.C. a call 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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