Government Contractors: President Bans Certain Diversity Training

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President Trump’s new Executive Order prohibits government contractors from training employees on certain “divisive concepts.”

On September 22, 2020, President Trump issued an Executive Order which prohibits government contractors from conducting training which it calls “race and sex stereotyping and scapegoating.”  Here is a link to the Executive Order: Order on Race and Sex Stereotyping

What Training is Prohibited?

Every new federal contract must include a clause that prohibits training by government contractors for employees on the following “divisive concepts”:

  1.  One race or sex is inherently superior to another race or sex;
  2.  The United States is fundamentally racist or sexist;
  3.  An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
  4. An individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
  5. Members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
  6. An individual’s moral character is necessarily determined by his or her race or sex;
  7. An individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
  8.  Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or,
  9. Meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

The order also prohibits training that includes “race or sex stereotyping,” which means “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.”  Additionally, training cannot include “race or sex scapegoating,” which means “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.”

While not explicitly called-out, the Order appears to take square aim at stopping diversity training programs teaching about “white privilege” and/or critical race theory.

What Other Obligations Are Imposed On Contractors?

Federal contractors must flow-down the requirements of this Executive Order to their subcontractors and vendors.  It is not clear whether subcontractors must further flow-down these requirements to their subcontractors.

Contractors must post a notice about these training obligations in “conspicuous places” available to employees and job applicants.  Each contracting officer is supposed to give that notice to the contractors.  Contractors must also provide the notice to any applicable labor union.

When Does the Order Become Effective?

The Order’s training prohibitions are supposed to be placed into ever new contract issued on or after November 21, 2020.  It is not clear whether the requirements will be placed into contract renewals.

What Are the Consequences of Violating the Order?

The Order does not mandate any specific penalty if a contractor conducts prohibited training.  Nevertheless, the contractual language notes the possibility of punitive measures such as terminating, suspending, or canceling contracts, and potentially debarring contractors.

What’s Next?

Almost certainly, this order is going to be challenged in court.  In the interim, government contractors should pay close attention to new contracts (and even contract renewals) to determine if the training provisions have been included.  If so, then contractors should carefully review any diversity training to ensure that they do not run afoul of this new order.

Should You Defer Your Employees’ Payroll Taxes?

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Employers can defer payroll taxes. But, is deferral a smart choice?

On August 8, 2020, President Trump issued a Presidential Memorandum authorizing employers to defer withholding, deposit and payment of payroll tax obligations.  The idea behind that memorandum was to “put money directly in the pockets of American workers and generate additional incentives for work and employment, right when the money is needed most.”  Here is a link to the memorandum: Payroll Tax Memorandum

The Internal Revenue Service is responsible for implementing the details of the memorandum.  On August 28, 2020, the IRS issued Notice 2020-65 to provide some additional guidance.  Here is a link to that notice: Notice 2020-65. Full disclosure:  I am not a tax attorney.  Nevertheless, the Presidential Memorandum is important to employers.  My accountant-friends at Anglin, Reichmann & Armstrong have published a client bulletin discussing Notice 2020-65 and it can be found here: Anglin Reichmann Update.

In summary, the memorandum allows employers to defer withholding payroll taxes from employee paychecks from September 1, 2020 to December 31, 2020.  In concept, this would result in more money in each employee’s pocket.  Other important aspects of the guidance include:

  1. Employees are entitled to defer on the 6.2% employee portion of payroll tax (i.e., Social Security tax).
  2. Only employees with pre-tax wages less than $4,000 per bi-weekly pay period are eligible for deferral.
  3. THIS IS ONLY A DEFERRAL. Employees must re-pay the deferred tax through payroll tax deductions between January 1, 2020 and April 30, 2021.

At this point, there are more questions than answers.

  1. The White House is hoping that the deferred payroll taxes will ultimately be forgiven.  But, only Congress has the power to authorize forgiveness. Nobody knows if that legislation will actually be passed.  If not, employees will face a double-tax at the start of 2021.
  2. What happens if an employer defers the payroll tax and then the employee leaves/quits/is terminated by the employer?  Potentially, the employer will be left holding the bag.
  3. If an employer adopts payroll tax deferral, will individual employees be able to opt out?

In my opinion, the current risks associated with payroll tax deferral outweigh the benefits.  Without a guarantee of forgiveness legislation from Congress, employees will receive no real benefit and face substantial monetary difficulties next year.  Employers get no real benefit and run the risk of paying deferred taxes for people who are no longer employees.

Like all COVID-related issues, payroll tax deferral is an evolving process.  Please follow this blog and my friends at Anglin, Reichmann for future updates.

 

DOL: Employers Should Use Reasonable Diligence & Document Telework

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Employers should use reasonable diligence to determine the amount of work performed by employees who telework.

In the age of COVID-19, many employers are allowing employees to work-from-home — also known as telework.  And, employers are required to pay hourly workers for all work they perform — whether at home or a specific job site.  Moreover, employers also have to pay for work they didn’t request  — unscheduled work.  But, how is an employer supposed to know exactly how much unscheduled work was performed from home?  On August 24, 2020, the United States Department of Labor’s Wage & Hour Division (“WHD”) issued guidance on that issue.  The guidance (known as Field Assistance Bulletin 2020-5) can be found at this link: FAB 2020-5.

Bulletin 2020-5 focuses on the concept of “reasonable diligence.”  Essentially, the bulletin says that employers should establish a system and use “reasonable diligence” to determine the amount of unscheduled work performed. But, the “reasonable diligence” standard also puts obligations on employees.   Employees who fail to follow reasonable time reporting procedures may not be entitled to be paid under the terms of the Fair Labor Standards Act.

As with almost all legal issues, the devil is in the details of each situation.  Employer’s can’t “bury their head in the sand” and ignore unscheduled work.  They also can’t implicitly or overtly discourage or impede accurate time reporting.  For example, employers shouldn’t tell employees:  “Don’t write down any work that you performed after 5:00.”  At the same time, employees can’t ignore well-published time keeping requirements and then complain about not being paid for unscheduled, unreported work.

So, how can employers engage in “reasonable diligence”?  Here are some basic steps:

  1. Employers should create a simple time-keeping policy that requires all hourly employees to document all scheduled or unscheduled work.
  2. Any time keeping policy should have a disciplinary component. Employers have to pay for unscheduled, and even unauthorized work.  But, in most circumstances, an employer can impose discipline if the time keeping policy is violated. IMPORTANTLY: NEVER WITHHOLD PAY WITHOUT CONSULTING A LAWYER.
  3. Employers should do more than just adopt a policy.  They should educate hourly employers and their supervisors on the requirements of the policy.  This can be done with e-mails, memoranda and/or employee meetings. Employers should keep any available documentation to prove that the time keeping policy was effectively disseminated.

Obviously, WHD’s guidance is aimed at ensuring that hourly employees are properly paid when they work from home.  Yet, the WHD guidance also dovetails nicely with the IRS’s guidance requiring employers to keep adequate documentation to support any award of paid leave under the Families First Coronavirus Response Act.  Here’s a link to a blog post that I wrote discussing the IRS’s requirements for documentation of telework: IRS Documentation Requirements.

 

Transgender Rights and Employee Bathrooms

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Employers should proceed cautiously if they want to deny transgender employees the right to use the bathroom of their choice.

In June, the United States Supreme Court issued its landmark decision in Bostock v. Clayton County, 140 S.Ct. 1731 (Jun. 15, 2020).  In Bostock, the Court found that discrimination against employees on the basis of sexual orientation or transgender status violates the sex discrimination prohibitions of Title VII of the Civil Rights Act of 1964.  Here is a more-detailed blog that I wrote on Bostock: Bostock – LGBTQ+ Decision.  A recent decision from the Eleventh Circuit Court of Appeals suggests that it might also be discriminatory to deny transgender individuals access to the bathroom of their chosen gender.  See Adams. v. School Board of St. Johns County, No. 18-13592, 2020 WL 4561817 (11th Cir. Aug. 7, 2020).

Adams Involves Schools and Students, Not Employers

Importantly, Adams is not a Title VII case.  Instead, it concerned the rights of a transgender student to be free from discrimination in a public school.  As a result, the student pursued discrimination claims under the Equal Protection Clause of the United States Constitution and Title IX of the Civil Rights Act.

The sole issue in Adams was the use of restrooms.  Drew Adams was assigned the female gender at birth but began to transition to the male gender.  He commenced ninth grade and presented as a boy.  For his first six weeks as a ninth grader, he used the boys’ restroom.  However, he was told that he could no longer use the boys’ restroom when two unidentified girls complained.  There were no complaints from boy students who shared the bathroom with Adams.  Nevertheless, the school system offered Adams two choices:  (1) use a single-stall gender-neutral bathroom; or, (2) use the girls’ facilities.  The school board believed that offering single-stall restrooms reconciled accommodations for transgender students with privacy concerns for non-transgender students.  Yet, Mr. Adams felt “alienated and humiliated” every time he was required to use the gender-neutral bathroom.

This is a case where facts played a huge role because the school board presented no facts indicating that any male student complained or that any “untoward” activities occurred in the bathroom.  As a result, two judges of the Eleventh Circuit repeatedly criticized the “hypothetical” dangers of allowing transgender students to use their chosen restrooms.

The majority also relied heavily upon Bostock when deciding Mr. Adams’s Title IX claim:  “Bostock confirmed that workplace discrimination against transgender people is contrary to the law.  Neither should this discrimination be tolerated in schools.  The School Board’s bathroom policy, as applied to Mr. Adams, singled him out for differential treatment because of his transgender status.  It caused him psychological and dignitary harm.  We affirm the District Court’s ruling that maintaining this policy violated Title IX.”  Adams, 2020 WL 4561817 at *16.

Lessons for Employers

Adams is extremely important for employers, even though it explicitly applies only to the relationship of schools and students.  At least two judges of the Eleventh Circuit believe that denial of access to a chosen bathroom is discriminatory.  As a result, if employers deny transgender employees the right to utilize their chosen bathroom, their risk-level under Title VII increases.

In my opinion, however, a mere denial of a chosen restroom should not amount to a violation of Title VII.  Usually, an employee can only succeed in proving discrimination under Title VII if he or she suffers an “adverse job action.”  And, a job action must be “materially” adverse.  In other words, if there is monetary risk associated with an action, it will probably be adverse.  Since denial of a bathroom doesn’t logically involve denial of money, it should not be enough, by itself, to support a successful Title VII claim.

Despite my views, the EEOC has on at least one occasion found that requiring a transgender woman to use a single-stall bathroom violated Title VII.  See Lusardi v. McHugh, EEOC Doc. 0120133395, 2015 WL 1607756 (Apr. 1, 2015).  The Lusardi decision originated on Redstone Arsenal in Huntsville.   Among other things, a transgender female Army employee was required to use a single-stall “executive” restroom rather than the restroom assigned to women.  The EEOC reviews discrimination complaints from federal agencies and determined that the bathroom assignment sufficiently altered the terms and conditions of Ms. Lusardi’s employment to violate Title VII.  A copy of the Lusardi opinion can be found here:  Lusardi Opinion

Viewed in tandem, the Lusardi and Adams cases should cause employers to think carefully if they decide to deny a transgender employee the opportunity to use their chosen bathroom.  Even if I am right, and denial of a bathroom does not, by itself violate Title VII, the denial could still be used against an employer.  For example, I think that denial of a chosen bathroom could be one piece of evidence to use in a sexual harassment/hostile work environment claim under Title VII.  Typically, an employee must show that their workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.  Denial of a bathroom might be one factor in finding a “severe or pervasive” work environment.

As I noted in the discussion of Adams, above:  facts matter.  It’s possible that a different result might be reached in a case where an employer can show that other employees using the restroom complained or that “untoward” conduct occurred.  In any case, employers need to consult with their attorneys before taking any action that treats a transgender employee differently.

Off Topic Post: Is There a “Cure” for COVID-19?

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Frank Lockwood at work — shortly before the fight of his life.

Many of my friends have shared or commented on a video making the rounds on social media from a group called “Frontline Doctors.”  At least one of the “shares,” explicitly called COVID-19 a “hoax.”  Apparently, some of my friends are upset that Facebook and Twitter are removing the video.  I hope that they have actually watched this video.  I have.

In the video, a doctor from Houston claims that there is a “cure” for COVID and no need to wear masks. According to her, hydroxychloroquine, combined with other regimens, is the solution.

In my opinion, those statements are irresponsible and openly encourage life-threatening conduct.  Therefore, I wholeheartedly endorse removal of those statements from social media platforms.

Some of my friends believe that we should have a public debate about the benefits of hydroxychloroquine.  That’s fine.  But, please don’t rely solely upon this one doctor’s opinion.

My brother is a true Frontline Doctor.  He is a family practice doctor in Stockbridge, Georgia.  He treats people with COVID-19.  He probably contracted COVID-19 performing his duty for patients.  When he got sick, he checked himself into a hospital where he knows the physicians who are treating him. Now, he’s on a ventilator fighting for his life.

If there was a “cure” for COVID, I choose to believe that my brother and/or his team of physicians would have used it. To think otherwise would condemn Frank and millions of other physicians in this country.  They would be endangering themselves and their patients by refusing to implement a simple remedy.

I’m not a doctor.  I’m not a researcher.  I have no way of personally knowing whether hydroxychloroquine helps to fight COVID.  But, I know a lot of physicians and I’ve been talking to them regularly as Frank has fought this virus.  None of them has suggested hydroxychloroquine would help.  And, some of them have explicitly said that it won’t help.  If I contract this disease, I’m going to place my life in their hands and follow their treatment.

Please, reach your own conclusions.  If you have physicians who are friends, talk with them.  To me, they are the best source of information.  I’m not qualified to know which studies on the internet are trustworthy.  (You may even review my timeline and see that I jokingly shared a link with some friends, who love Korean food, touting the remedial benefits of kimchi. It was later pulled by Facebook for spreading false information.)  Instead, I am relying upon my known, trusted sources of information to reach my conclusion.

If you reach the conclusion that hydroxychloroquine can provide benefits in treatment, I support you one-hundred-percent.  But, please, also try to determine if hydroxychloroquine is a “cure” for COVID-19.  Figure out if there is a need for social distancing.  Is there is a need to wear a mask in public?

When you get done, please pray for Frank.

 

Governor Ivey Issues Mask Order. (Sort of.)

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Kay Ivey issued an order requiring masks for Alabama. (Sort of.)

This morning, Alabama Governor Kay Ivey ordered Alabamians to wear masks in an effort to combat the spread of COVID-19.  Here is a link to the updated “Safer at Home” order:  Mask Order.  The order is effective at 5:00 PM tomorrow, July 16, 2020.  Here’s what you need to know:

Masks Are Required in Three Places

Every person is required to wear a mask that covers the nostrils and mouth if they are within six feet of another person in one of the following places:

  1.  An indoor space open to the general public;
  2.  A vehicle operated by a transportation service; or,
  3.  An outdoor space where ten or more people are gathered.

Exceptions Abound

This really wouldn’t be a COVID-19-related order from Kay Ivey if it didn’t contain plenty of exceptions and explicitly protect Alabama’s state religion — football.  So, here are the fourteen categories of people who don’t have to wear a mask:

  1. Any person six years of age or younger.
  2. Any person with a medical condition or disability that prevents him or her from wearing a covering. (Prepare for a proliferation of fake ADA mask preemption cards.)
  3. Any person while consuming food or drink, or seated at a restaurant to eat or drink.
  4. Any person who is obtaining a service (for example, a medical or dental procedure) that requires removal of the facial covering in order to perform the service.
  5. Any person who is required to remove the facial covering to confirm his or her identity, such as for security or screening purposes.
  6. Any person who is actively engaged in exercise in a gym or other athletic facility if he or she maintains six feet of separation form persons of another household.
  7. Any person who is directly participating in athletic activities in compliance with the order.  (Roll Tide.)
  8. Any person who is in a swimming pool, lake, water attraction, or similar body of water, though wearing a face covering or social distancing is strongly encouraged if safe and practicable. (Point Mallard is already closed for the season. So, this one doesn’t affect me.)
  9. Any person who is seeking to communicate with another person where the ability to see the person’s mouth is essential for communication (such as when the other person has a hearing impairment).
  10. Any person speaking for broadcast or to an audience if the person maintains six feet of separation from person from another household. (After all, Kay’s gotta be seen during her press conferences.)
  11. Any person who is voting, though wearing a face covering is strongly encouraged.
  12. Any person who cannot wear a facial covering because he or she is actively providing or obtaining access to religious worship, though wearing a face covering is strongly encouraged.
  13. Any first responder (including law enforcement officers, firefighters, or emergency medical personnel) if necessary to perform a public-safety function.
  14. Any person performing a job function if wearing a face covering is inconsistent with industry safety standards or a business’s established safety protocols.

Requirements for Employers

Governor Ivey’s order continues to place requirements on employers, who must “take all reasonable steps, where practicable as work duties permit, to protect employees by:”

  1. Encouraging use of masks and facial coverings;
  2. Maintaining six feet of separation between employees;
  3. Regularly disinfecting frequently used items and surfaces;
  4. Encouraging handwashing;
  5. Preventing employees who are sick from coming into contact with other persons;
  6. Facilitating remote working arrangements; and
  7. Minimizing employee travel.

Enforcement

When she announced the order, Governor Ivey said her plan was merely to “inform” people about masks, rather than arrests or fines.  She also said the order would be “difficult to enforce.”  In short, Kay would like you to wear a mask, but don’t sweat-it if you feel like infecting other people in the interest of maintaining your “freedoms.”

Groundbreaking Decision on LGBTQ Employee Rights

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On Monday, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from taking adverse employment actions based upon the sexual orientation or gender identity of an employee.  See Bostock v. Clayton County, Ga., 2020 WL 3146686 (Jun. 15, 2020).  The Bostock decision is a groundbreaking reversal of longstanding precedent in the Eleventh Circuit, which includes Alabama.  In the past, gay and lesbian employees have enjoyed very limited employment rights, while transgender employees enjoyed some protection.  Here is an old blog post providing a good overview of prior law for LGBTQ employees:  Emerging LGBT Issues in the Workplace

The Bostock case was initially decided by the Eleventh Circuit Court of Appeals.  Gerald Bostock worked as a child welfare advocate for Clayton County, Georgia.  After a decade of working for the county, and winning numerous awards, he began participating in a gay recreational softball league.  Shortly thereafter, community members made disparaging comments about Mr. Bostock’s sexual orientation and he was ultimately terminated for conduct “unbecoming” a county employee.  Mr. Bostock sued, and lost, in the United States District Court for the Northern District of Georgia.  On appeal, a panel of the Eleventh Circuit issued a one-page opinion upholding dismissal and adhering to longstanding precedent that “[d]ischarge for homosexuality is not prohibited by Title VII.” Bostock v. Clayton County Bd. of Comms., 723 Fed.Appx. 964 (2018) (quoting Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979).)

The Supreme Court reversed the Eleventh Circuit in a decision authored by Justice Neil Gorsuch.  Title VII prohibits discrimination on the basis of “sex.”  And, in the first paragraph of his opinion Justice Gorsuch concluded:  “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.  Sex necessarily plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Justice Samuel Alito, writing for a three-justice minority, argued that employers do not discriminate against LGBTQ employees on the basis of their “sex,” but on the basis of their conduct, which would not be prohibited by Title VII.  According to Justice Alito, if an employer terminates both men and women for being gay, it draws no distinction on the basis of sex.  But, Justice Gorsuch responded to that argument: “[I]t 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.”

While Bostock is a huge win for LGBTQ employees, it has not resolved all issues involving LGBTQ rights.  After all, Justice Gorsuch is a conservative.  Thus, he noted that employers with strong religious objections to LGBTQ employees might be protected by the Religious Freedom Restoration Act of 1993.  In fact, Justice Gorsuch noted that “[b]ecause the RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supercede Title VII’s commands in appropriate cases.”  But, because the RFRA was not before the Court, he made no express ruling on that issue.  As a result, there is a strong likelihood that we will see further decisions involving employers like Hobby Lobby whose religious beliefs influence their business plans.

Justice Gorsuch also declined to say whether an employer violates Title VII by requiring sex-segregated bathrooms, locker rooms and dress codes.  Instead, he expressly limited his opinion to a situation where an employer fires an individual merely for being gay or transgender.

 

OSHA Requires Employers to Determine if COVID-19 is Work-Related

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OSHA is requiring employers to determine if COVID-19 cases are work-related.

Are you an employer?  Did one of your employees contract COVID-19?  If so, you are required to determine if that COVID-19 is work-related.  That’s the new rule announced by the United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”).  Here’s a link to OSHA’s announcement:  OSHA COVID-19 Recording Guidance

This is a significant reversal of policy by OSHA.  Under the Occupational Safety and Health Act, employers are required to record and maintain records of occupational injuries and occupational illnesses.  By definition, an “occupational illness” is one that is work-related.  Earlier in the pandemic, many employers were concerned that they might be required to record the existence of all COVID-19 cases in their work force.  OSHA calmed many of those fears with guidance that it issued on April 10, 2020.  Here’s a link that guidance:  OSHA’s April Guidance

The April 10 guidance essentially adopted the common-sense position that employers aren’t epidemiologists and shouldn’t be required to determine if a COVID-19 case is work-related. Thus, OSHA said that it would not enforce its recording requirements and would not require employers to determine if COVID-19 was work-related, unless:

  1. There was objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
  2. The evidence was reasonably available to the employer. Reasonably available evidence included information given to the employer by employees, as well as information that an employer learned regarding its employees’ health and safety in the ordinary course of managing its business and employees.

Under the new guidance, effective May 26, 2020, employers will be required to act as amateur epidemiologists and determine whether COVID-19 cases in the work force are work-related.  Employers are required to record a COVID-19 case as an occupational illness if:

  • The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
  • The case is work-related as defined by 29 CFR § 1904.5; and
  • The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.  [If an employee misses days of work or receives medical treatment beyond first aid, this requirement is met.]

In determining whether a COVID-19 case is work-related, an employer is required to consider all “reasonably available evidence.”  While admitting that this determination cannot be reduced to a “ready formula,” OSHA provided the following-guidance:

  • COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
  • An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.
  • Certified Safety and Health Officers should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.

There is one small glimmer of hope for employers.  OSHA gave a favorable burden of proof for making the work-relatedness determination and recording requirements:  “If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.”  Also, employers with 10 or fewer employees and certain employers in low hazard industries have no recording obligations.

OSHA requires employers to create and maintain records of occupational illnesses.  But, typically employers are only required to report to OSHA instances that result in death, hospitalization or loss of an eye.  The new guidance does not change those reporting requirements, but the recording requirement could be substantial for many employers.

 

 

 

ADA: Short People Got No Reason to Sue

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The Lockwood family. Short. Tall. And just right.

I’m tall:  6’5″.  My wife is short:  5’1″ (on a good day).  As she likes to put it:  “I’m short, but mighty!!”  Thus, she should read this blog and be unsurprised that her stature does not give her any rights under the Americans with Disabilities Act.  See Colton v. FEHRER Auto. N.A., LLC, No. 4:19-cv-653-CLM, 2020 WL 2132026 (N.D. Ala. May 5, 2020).

Nicole Colton is 4’6″ tall. She was assigned by a temporary work agency to FEHRER’s plant in Gadsden, Alabama.  When Ms. Colton was assigned to the assembly line, her short stature limited her reach and her ability to perform the job.  Her requests for reassignment to a different position in the plant were refused and she was terminated because she was “not a good fit.”

Ms. Colton sued for disability discrimination under the Americans with Disabilities Act and FEHRER moved to dismiss her complaint.  United States District Court Judge Corey L. Maze found that her height did not meet the definition of a “disability.”  Importantly, Judge Maze did not rule that all short people are barred from the benefits of the ADA.  Instead, he focused on the ADA’s implementing regulations and found that only physical impairments involving “some type of disorder or pathology of the body” qualify for protection.  Thus, Ms. Colton’s height was not a “disability,” but a physical “characteristic.”

Judge Maze also rejected Ms. Colton’s argument that she was “regarded as” disabled.  To satisfy that legal requirement, she was required to show “that FEHRER perceived that Colton’s height resulted from a physiological disorder or condition, thereby rendering her disabled under the ADA.”  But, Ms. Colton possessed no evidence to support such a showing.

Again, it is important to note that Judge Maze did not create a categorical rule denying all short people the protection of the ADA.  There are undoubtedly numerous physiological disorders or conditions that can result in decreased height.  But, people like my wife, who are just short because of genetics, will not receive protection.

 

Summer is Coming: You Know Nothing About COVID-19 Paid Leave

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Are employers required to provide paid leave to employees with child care issues during Summer break?

Under the Families First Coronavirus Response Act (“FFCRA”) employees are entitled to paid leave if their child’s school is closed because of COVID-19.  The exact language of the regulation is:

The Employee is caring for his or her Son or Daughter whose School or Place of Care has been closed for a period of time, whether by order of a State or local official or authority or at the decision of the individual School or Place of Care, or the Child Care Provider of such Son or Daughter is unavailable, for reasons related to COVID-19 ….

29 C.F.R. § 826.20(a)(v)(emphasis added).  Well, what happens during a school’s regularly-scheduled Summer Break?

Employers might be tempted to deny paid leave because schools are no longer closed “for reasons related to COVID-19.”  I strongly recommend you do not take that approach.  The exception for child care is more expansive than just closure of a school.  Instead, employees are also entitled to paid leave if the child’s “Place of Care” or “Child Care Provider” is unavailable.  The definitions of those terms are expansive.

The term “Place of Care” means a physical location in which care is provided for the Employee’s child while the Employee works for the Employer. The physical location does not have to be solely dedicated to such care. Examples include day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.

29 C.F.R. § 826.10(a)(emphasis added).

So, if an employee would normally send their child somewhere for care during the Summer, and that place is closed because of COVID-19 concerns, they are still entitled to paid leave.

Plenty of employees also rely upon friends and family to provide child care during the Summer.  Those friends and family fall within the definition of “Child Care Provider”:

The term “Child Care Provider” means a provider who receives compensation for providing child care services on a regular basis. The term includes a center-based child care provider, a group home child care provider, a family child care provider, or other provider of child care services for compensation that is licensed, regulated, or registered under State law …. Under the Families First Coronavirus Response Act (FFCRA), the eligible child care provider need not be compensated or licensed if he or she is a family member or friend, such as a neighbor, who regularly cares for the Employee’s child.

29 C.F.R. § 826.10(a)(emphasis added). So, if an employee would normally rely upon a family member or friend for child care during the Summer, but that person is unavailable because of COVID-19, the employee is still entitled to paid leave.

The best approach to resolving Summer Break issues is to have a discussion with your employee.  How do you normally care for your child during the Summer?  What is different this year from previous years?  If the employee provides a COVID-19 related explanation for lack of child care, they are probably entitled to paid leave.  In that instance, employers have obligations under the FFCRA to document the reasons for Summer leave.

Here is link to FFCRA regulations: FFCRA Regs. If you have further questions on child care and COVID-19 paid leave, contact your attorney.