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 firstname.lastname@example.org.
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.
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.
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:
- Provide a termination for cause employment agreement-ignore your management lawyer’s advice not to follow this suggestion;
- 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;
- 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;
- Buy them necessary computer gadgets to work remotely – anywhere;
- Build a sense of a strong community experience amongst employees;
- 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 email@example.com.
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 firstname.lastname@example.org.
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 email@example.com.
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 firstname.lastname@example.org.
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 email@example.com.