|Name||Compliance Webinar: Leaves Due To, and In Spite Of, COVID-19|
|Description||September 24, 2020 The ReedGroup Compliance Team provided practical information on COVID-19-related leaves and the pandemic’s effect on existing leave laws. They explored return-to-work issues, including: • ADA reasonable accommodations • Time off to care for children learning from home • Leave eligibility concerns caused by furloughs, reduced hours, etc. Our team also highlighted new lawsuits alleging violations of COVID-19-related leave laws. And, believe it or not, there are some non-COVID-19 leave laws that have been enacted or amended in recent months about which the Compliance Team provided updates.|
And we will get started. So good afternoon, everyone, and thank you for joining regroups third quarter compliance update. Our webinar today is leaves due to. And in spite of covid-19. Next slide, please. I'm James Venable and I am vice president of absence and accommodation compliance here at regroup in joining me for the webinar as Sue woods, our senior compliance counsel. And we'll be providing you an update on the latest developments in covid-19 leave laws. Next slide, please. Before we start, as we do before every webinar, a disclaimer, this webinar is for educational purposes only and is not meant to provide legal advice. If you have any questions about the information we share today, we ask you to please consult your own attorney. Next slide, please. So for our agenda today, during these webinars, we typically provide an update on any leave related laws and regulations that may have passed since our last quarterly webinar. But because there's been so many new developments in the covid-19 space, we thought it would be good to focus on those developments and then provide a separate update on general leave laws, which we'll schedule in a few weeks. And of course, share that date with everyone. So that you can all attend. So for our agenda today, we will be looking at covid-19 developments. We will provide some updates and share some of the tricky questions that have come up with regard to those laws in the lead management space. In the second part of our webinar, we'll share some of the litigation. That's resulted from all of this new covid-19 regulations. And fortunately or unfortunately, depending on which side you're on, there's a lot of. Next slide, please. And so with that, I am going to turn it over to Sue. Great, thank you so much, James, I appreciate it. And thank you all for joining us today. I'm going to start out by focusing on new guidance in the area of federal laws and rules that are related to covid-19. Next slide, please. We feel that the federal law updates are going to apply to most of you who are listening to the webinar today. I'm going to start out with the Americans with Disabilities Act, or the ADA, as you all know it. As you probably know, it does apply to private employers with 15 or more employees, as well as most public employers, governmental employers and public agencies. So the addas area of employment law, as you. I'm sure know, prohibits discrimination against qualified individuals with a disability. And it does require employers to make reasonable accommodations for known disabilities that will allow it a disabled employee to perform the essential functions of their job absent an undue hardship on the employer. The FDA also, however, restricts when and how much medical information an employer may obtain from its employees or applicants, and that's an area that's been really prevalent. And the subject of a lot of tricky questions right now during the current pandemic in particular, about what sort of questions employers may ask their employees about COVID symptoms, whether they can require tests, those sorts of things, without violating the ADA. So that's what I'm going to talk about on this slide here. According to the eeoc, the Equal Employment Opportunity commission, which is the US Agency that enforces the ADA. They have put out numerous guidance documents that are meant to instruct employers on what is permitted during the COVID pandemic and what is not allowed under the ADA. So let's focus first on what is allowed. So employers are permitted to ask employees if they have been diagnosed with covid-19, if they have been tested and what the test results might be, as well as do you have symptoms. And primarily, the EEOC relies on the guidance from the CDC as to the type of symptoms that are associated with covid-19. So employers are best suited by following the CDC'S list of symptoms when asking employees about whether they have experienced those sort of symptoms. So what about testing and other screening methods for covid-19, I know a lot of employers need to enact certain procedures in order to protect not only their employees, but also customers that may come into the workplace, that sort of thing. So why is testing an ADA issue? Well, any mandatory medical test that an employer wants to impose on its employees must be job related and consistent with business necessity in order to not violate the Aida. So what about taking the temperatures of employees, say, as they enter the workplace that the eeoc, EEOC has said is fine, it's OK for employees to have their temperatures taken by the employer, even though taking a temperature is considered a medical exam under the ADA. But here, the EEOC does rely on the CDC'S guidelines, which says that taking a temperature can help determine whether an employee is experiencing symptoms of COVID. Now, the CDC does also qualify that by saying, you know, somebody may not have a temperature and still have COVID. So it's not the end all determination factor, but it is permitted without violating the ADA for an employer to take temperatures. What about other sorts of testing, can an employer require an employee to be tested for covid, say, before they return to the workplace or perhaps they've been out sick and the employer does not know what their illness was. And they want to have them cleared by a doctor before returning to work. That the EEOC also says is OK. And that it is OK to require the COVID test before employees do return to the workplace. Contact tracing is gets into the area of the ADA around the confidentiality of medical information. Right so contact tracing is trying to trace those people who have been exposed to someone who was positive to COVID or experiencing symptoms and notifying those folks that may have been exposed. So that they can take precautions to limit the exposure to other individuals. So the EEOC says there are some instances where an employer may reveal information about someone who has either tested positive or exhibited symptoms as long as the employer is not revealing the employee's identity, who is ill or has COVID. Right so let's talk about that a little bit more specifically. So what the EEOC says is acceptable is essentially to say to your employee staff, someone who is exposed to our shipping department, for example, was covid-19 positive without revealing the name of who that person who was exposed. That's acceptable. But saying Joe Smith came into our shipping department and exposed everyone to COVID is not permissible because it's revealing the employee's identity. Now, in reality, the EEOC admits that there are many circumstances where the other employees will be able to figure out who the employee was that may have exposed folks. And the fact that your employees are smart and are able to figure that out is OK. It just the employer should not be revealing that confidential medical information about the employee who is Bill. What about travel? So the EEOC says it is fine for employers to ask about where employees have traveled. Well, why why is that important? Well, the CDC and some states and local health organizations are recommending that folks who have traveled to certain locations quarantine themselves after they return from those locations. And so it is OK for employers to ask employees where they have traveled to see if they're within those certain locations and even if their travel was for personal reasons. This EEOC says that asking where a person has traveled is not a disability related question. So that is permissible. So let's go to the next column of what's not allowed under the ADA. Well, it's not allowed to ask if a family member has covid-19 or has experienced symptoms and why not? That's related to Gina, the genetic information non-discrimination act, which prohibits employers from asking about family member health history and that sort of thing. But here's the fine line. And it's a very fine line, in my opinion. Employers may ask whether an employee has come in contact with anyone who has been diagnosed or who has exhibited symptoms of covid-19. What's the difference there? You're not asking about their family members medical condition. You're asking a broader question whether they the employee has been exposed to anyone which could be nonfamily, it could be neighbors, it could be in a grocery store or whatever, so that it is not allowed to ask about the family members scenario. What about singling out a particular employee for testing you? Employers are not supposed to single out individual employees to be tested unless there's objective evidence they can rely on as to why they singled that person out. Objective evidence in this scenario can be say the person is exhibiting symptoms, right? They've got a cough or a fever and things like that. That would be an objective evidence that would warrant singling out a particular employee for testing. But otherwise, the recommendation is to apply any testing rules across the board to similarly situated employees and apply them in a consistent, non-discriminatory manner. And finally, on this slide, it is not permitted to reveal or confirm that an employee, a particular employee, has tested positive or has symptoms. Again, that goes to the confidentiality rule and you should not be revealing to other employees a particular employee's medical condition. Let's go to the next slide, please. And there. We're going to talk about reasonable accommodations under the ADA, so the EEOC also has provided us with some guidance on reasonable accommodations during covid-19 and one has to do with teleworking. And there are a lot of employers have been asking, what about the precedent that may have been set during the early stages of covid, where a lot of employers allowed most or all of their employees to work from home? And does that set a precedent that they will have to continue to offer teleworking or remote work as a reasonable accommodation going forward? And there the EEOC has said no, when the employer does reopen for in-person work, that, it need, not the employer need not continue to allow folks to work from home just because they have for a period of time. Now, the two bullet points here kind of make the distinction that you should keep in mind, right? If an employee has no disability, there is no accommodation under the ADA that they're required to you're required to provide. So nondisabled employee has no consideration for an accommodation because they're not disabled. So you don't have to consider the prior work from home as any sort of precedent there. However, if an employee does have a disability, then the best course of action is to engage in the interactive process, as you always would do under the ADA to determine reasonable accommodations. That reasonable accommodation may be something that will be able to accommodate the person to allow them to return to work for in-person work. And the employee cannot rely on the fact that other employees were allowed to work remotely during the early stages of COVID as any sort of violation of the ADA if you choose not to permit that disabled employee to continue to telework. In addition, the EEOC made clear that even if an employer had excused certain essential job functions when it either closed its workplace or started remote work, it does not need to consider those permanent changes to the job. So you can continue to include the essential functions of particular circumstances going forward. Next slide, please. What about protective equipment and employees who fear they will contract COVID by returning to the workplace? We get a lot of questions on that. And hear if it's OK for an employee employer, rather, to require protective equipment, whether it be masks or gloves, or any other sort of protective gear in the workplace. However, for disabled employees, you do need to engage in that interactive process to see if there's any other modifications or alternatives. If the employee is unable to comply with that protective gear requirement. What about the fear of contracting covid? Again, if an employee is disabled with a condition, say, COPD or some respiratory condition, that might place them at higher risk of severe illness should they contract covid-19, the employee is permitted to ask for a reasonable accommodation and that triggers the interactive process. Again, it does not mean that the employer needs to. Accept whatever the employee requests of employees requesting telework, but you can adequately protect that employee by, say, installing plexiglass around their desk or having them work in a schedule where they don't come in contact with other employees, something like that. That's perfectly acceptable as well. So you need to engage in that interactive process. And a note that was raised by the EEOC is that just fear of exposing a family member who may be at higher risk does not trigger the ADA reasonable accommodation process because the employee themselves is not disabled. So I hope that helps on that one. Next slide, please. Let's talk about the Family Medical Leave Act or the FMLA and a couple of changes that have been made on that. So the deal has provided guidance that relates to determining whether someone has a serious health condition under the FMLA. As most of you probably know, the definition of a serious health condition for FMLA purposes requires either inpatient care or continuing treatment by a health care provider. And that continuing treatment definition includes generally either treatment two or more times within a 30, the first 30 day periods of incapacity or a single in-person visit to the doctor with continuing care. And this temporary change is to specify that a telemedicine visit can be substituted for the in-person treatment visit under the ADA to determine if someone has a serious health condition. As long as that tell them is telemedicine. Visit includes an exam or evaluation by the health care provider, is performed by videoconference and is permitted or accepted by the state licensing authorities. This change is in effect until December 31 of this year, unless the DOL does extend it because COVID continues longer than that. Next slide, please. Now we have a polling question, so I hope you're paying attention. We'd like to get your feedback on this. So you have a group of production workers who were furloughed for approximately 12 weeks due to covid-19, as you recall them, to work in small numbers. One of the recalled workers, Kate, request to use FMLA leave to care for her parent who has been diagnosed with cancer. Kate is a long time employee, but she has only worked 1,180 hours in the last 12 months due to the Furlough. And you need to know what you should do. And we'd like you to answer this polling question. A either deny her FMLA leave because she does not meet the 1,250 hour requirement or be approved for FMLA leave. If she would have met the 1,250 hour requirement prior to going on Furlough. We'll give you a few seconds to vote on that, please. Everyone voted. Pam, I'm wondering if you can see the results here. And provide us with the percentage who voted a versus B. But I think I'm having a technological glitch here. We'll see if Pam can advance that information. There we go. Sir, do you see it, too? It looks like we have 41 people answered B and 30 answered a. Oh, so pretty close, actually, not overwhelming on either side, so the correct answer there is actually a the employee does not meet the 1,250 hour requirement. Thanks for that, Pam. And it is acceptable to all not acceptable. It is required, rather, that you are looking and making the eligibility determination when their leave is to begin. And so if they have been furloughed, those furloughed hours do not count as hours worked when calculating the 1,250 hour of requirement. So if they don't meet, the hours worked. When their leave is to begin, then they are not eligible. Next slide, please. So here are some other guidance from the diesel on furloughs that the time on Furlough itself should not be counted against FMLA or the full year leave if an employee is subject to that. So in other words, you would not be recommending FMLA while the person is out on Furlough. Second employer may not extend a Furlough because an employee may need leave. In other words, employers should not be just extending employee's Furlough according to the deal. Well, if they would not be eligible for FMLA upon return and you want to try to give them the leave that they need. And finally, the last one addresses the polling question we just answered, and that is that employees do not accrue time towards the 1,250 hours while they're on Furlough because they are not actually working those hours. Next slide, please. Quick review on foukara that went into effect on April 1 and is currently effective through December '31 and again, it applies just to private employers with 499 or fewer employees, as well as certain public employers, so that the we've gone into the leaves that are required under the SEC in the past. So I'm not going to focus on that. But I do want to update you on some changes. So next slide, please. Here's a rule update, so as you probably know, in August and early May when the FCA was first enacted, the deol published rules related to how to implement the FCA. The in early April, the New York attorney general filed a lawsuit challenging the dolls SEC rule alleging that the rule unlawfully narrowed workers rights under the FCC legislation. And so in August, early August, the Southern District of New York Federal court ruled that four provisions of the diesel's SEC rules were unlawful and they invalidated those portions of the rules. And those rules had to do with whether work needs to be available for the employee, for them to be able to take FCC related leave the expansive definition of a health care provider that allows employers to exempt those health care providers from FCC coverage, the requirement that employers must agree to it, intermittent use of the Emergency FMLA and the requirement that employees. Provide a document supporting their leave prior to taking the lead. So what did the deol do in response to that federal court ruling? Well, it revised its rule and really created some questions because it essentially doubled down on a number of these provisions effective September 16. Their rule essentially reaffirmed and provided additional support for why employees may take five related leave only if work is otherwise available to them. It really the deol took the position that we do not decrement FMLA when an employee is furloughed or otherwise not able to work. So why should they be entitled to a leave at that time? And in addition, it would treat those employees who are furloughed for an F CRA qualifying reason differently from employees who are furloughed and do not have enough CRA qualifying reason for leave. So it reaffirmed that work must be available to an employee. Secondly, it reaffirmed and clarified that an employee must have employer approval for using intermittent FCA leave. And the reason for that is that the employers need to know if there is a reason that the employee has advanced notice and is able to provide that to the employer. Then the employee, the employer must agree in advance that the use will be permitted. Third, they revised and narrow the definition of health care providers. So that not as many folks will be able to be exempted by their employer. For CRA leave, it essentially relies on the definition of in the FMLA for a health care provider or anyone else who is employed to provide diagnostic preventative treatment or other services that are integrated into providing patient care. So if anybody has been exempting health care providers from fekri leaves, you should take a look at whether those employees do, in fact, meet the new definition under this rule. Finally, the revised rule clarify that employers and employees must provide required documentation as soon as practicable, practicable and as well as corrected an inconsistency regarding advance notice to take the emergency leave. As I mentioned, if an employee knows, say, of their child's school closure, a day or two in advance, they are required to provide their employer with that advance notice that they need to use the FCA leave for a school closure. Next slide, please speaking of school closure, Liz, we know that this has been really prevalent lately because schools are now reopening or getting back into session. So new deol guidance on when the school closure leaves are permitted really rely on the key question of whether the child would be permitted to attend school in person. If the answer to that question is yes, the child is permitted to attend school, then f Sarah does not apply. If the child is not permitted to attend school on a particular day, then the school closure would apply. And here are the scenarios, right? If if school is completely closed and all students are learning from home, then the FAFSA applies. If you have a hybrid school situation where, say, certain groups of employees are going on Mondays and Wednesdays in person and not on Tuesdays and Thursdays or Fridays, then the employee who is taking care of their child due to that school closure is eligible for FAFSA just on the days that their child is not permitted to attend school. Now, the difference, though, is if a school is actually open, but it is the parent who chooses not to send a child to school, say they're fearful. They don't want their child to be exposed to someone else, then the SEC does not apply because the school is, in fact, still open. And they've got a couple of reminders for you there. But we'll continue to the next slide, please. We want to have time to talk about some state law developments and some rules on the states related to covid-19 next slide, please. California enacted a supplemental paid sick leave program, it is effective through the end of the year or until the expiration of the Emergency Paid Sick leave, whichever is later, it really was intended to fill the gap left by the FFCRA era. So that it applies to employers with 500 or more employees nationwide, as well as covering those types of employees who are or could be declared exempt under the fiora. It mandates 80 hours of supplemental paid sick leave for a full time employee prorated for a part time employee for the leave reasons of being quarantined or under an isolation order due to COVID. A health care provider has advised the employee to self quarantine due to covid, or the employer prohibits the employee from working because of concerns that employee is going to transmit COVID to someone else in the workplace. Please note that the California supplemental paid sick leave does not provide leave to care for a child whose school is closed and there are some notice requirements. And when you get the slides, you'll be able to link onto these links that provide a copy of the California. Notice that's required to be posted in your workplace. Next slide, please. Colorado, Colorado enacted a healthy families and workplace act, and it has two provisions, one is COVID related. The other is non COVID related. So focusing just on the COVID related paid sick leave effective between July 15. And the end of this year, all Colorado employers, regardless of size, must provide up to 80 hours of paid sick leave for covid-19 related reasons. Again, the same reasons, essentially, as we discussed under California. But this one does also include caring for a child during a COVID related school closure. We will give you more information in our next webinar about the non COVID paid sick leave requirements under the California law. But just be aware of this paid sick leave component that relates to COVID right now. Next slide. Organize family Leave Act or floor has had a school or a place of care closure leave in place for almost the beginning of COVID pandemic, but they adopted recently a permanent rule. So that the ofl a sick child leave to care for a child during a public health emergency related to the closure of the child's school or place of care will now be a permanent rule and a permanent reason for an employee to take job protected leave under this unpaid family Leave Act. It also defines child care providers to include unpaid caregivers that can include family members, neighbors and that sort of thing. There are specific documentation requirements, so be sure to consult that rule before requiring documentation related to this. Next slide, please. Puerto Rico also enacted a paid leave program. For those that are ill or exposed to covid-19, including up to five working days of paid leave, but it applies only to non-exempt employees and only to those employees after they have exhausted all other available accrued leave, such as sick leave and vacation. Next slide, please. Finally, we wanted to also update you in a couple of types of COVID related reasons under state laws that don't provide for specific leads, but they do require some job protection related to absences. So numerous states, as you'll see in the map here, have been enacting some laws that provide job protection to employees who need to be absence because of a quarantine or being under an isolation order due to a public health emergency. And so while it doesn't specify that an employer needs to provide a certain. A number of days of leave or a number of days of absences due to this reason, it does say you cannot terminate employees because of those absences. So if you have operations in any of the states here in that have been highlighted, be sure to check out those state laws before you take any sort of adverse employment action. The absences and the next slide, I think, is the last one we may have under the state laws. And that is just to highlight that certain states are also requiring that employers make accommodations for vulnerable person. That's hard to say vulnerable persons. And that can we're seeing mostly through executive orders where the governors of a particular state are enacting an executive order to require certain high risk workers to be provided reasonable accommodations. Washington state is one of those where it specifically says employers must provide accommodations to high risk workers, as that is defined by the CDC. Idaho also says that employees in vulnerable populations must be permitted to remain quarantined and must be provided special accommodations if they cannot work from home. We've listed the states where the executive order really mandates that sort of accommodation. But there are many other numerous states where the state strongly advises or encourages employers to provide accommodations to vulnerable populations, although it is not required. So next slide, please. I think that's the end of our COVID update on both the federal and state level and not. I'm going to turn it over to James, who's going to talk about litigation. Thanks so. So before we jump into the litigation, next slide, please, please, we'll do another polling question. So here's the question. Which leave reasons? Are you having the most difficult difficulty administering a quarantine without diagnosis? Be caring for someone else who is quarantine. See caring for a child because of school or daycare closings, due to public health and the sheltering place orders. We'll give you a couple of minutes to answer that. OK, Pam, do we have a result? Yes, we do. It looks like the majority of our participants elected a year. And then with a close second, they also answered c, a few with a B and a few for d, you know, and you're going to probably C see a lot more going forward into the school year, especially with regard to the hybrid closings and openings and virtual earnings that Sue talked about. And I'm glad to see that there are not many sheltering in place orders right now because that actually is something that shouldn't be happening right now. But who knows? We might have another outbreak. Hopefully that won't be the case. Next slide, please. So as Sue discussed, there's been lots of legislation and regulations, and with that comes lots of litigation, and this slide shows the locations of the covid-19 cases in various states across the country. Obviously, these numbers have probably changed since the slide was put together because folks are filing claims. All the time, and so and as you can imagine or expect, the legislation, the litigation, rather, is predominantly occurring in the regions with the highest incidence of covid-19 and infection. So that's where you're seeing a lot of the litigation. So if you're in one of these states, that's where you should look to see where that number is and see where the litigation is flowing. So let's discuss some of the examples of cases that have been brought and what employers need to look out for. Just a caveat. Most of these cases have not been decided. It's not clear whether the plaintiffs will prevail. It's not clear as to whether the factual allegations are true, that defendants are going to have the opportunity to put forward a defense to rebut those allegations. But I think going through these cases will give you a good sense of the types of issues that come up. And so you should be thinking about them. Even if we don't know what the outcome is, the cost of defending these suits is very expensive. So employers should be taking all steps as possible to minimize their risk. Next slide, please. So the first case we'll talk about is Donahue versus America insurance, America's insurance associates Inc, the plaintiff in this case, claims her employer forced her to take an unpaid, protected, unprotected leave to care for her child, whose school was closed due to COVID. She'd initially ask the employer to work from home as other employees without school age children were allowed to do. The employer denied the request and suggested she seek local child care services, which charge $95 a day. When she asked to use accrued PTO time, her employer put her on an unpaid leave, which she said led to her having to resign or quit her position, which is a constructive discharge, under the law. At least that's one of the allegations she has. So one of the things I wanted to bring up about this case, two issues. It's pretty clear based on, you know, some of the information that's shared that she's probably entitled to protection under paid leave, under her child's school closure. A couple of other things that came up was the request for telo work. And then the use of PTO, as Sue said, especially in the case of ADA accommodations, if the workplace is open, everybody's come back to work. And unless you need an accommodation, you know, the employer can have people come back to work. However, in this case, it sounds like teleworking options are still available. Now, the employer may be pushing back and saying, well, because you put in that request for child care, we think you want to use teleworking to take care of your children, which is not allowed. But at the end of the day, you have to be thinking about if she says that's not the case. And you're allowing other people to telework, that might be something you want to explore. The other thing is the PTO, PTO, obviously, those usage is guided by the company's policy. And again, you want to be treating people the same. So when you have a case like this. And one of the things I really want people to be mindful of these cases. And as they start to come out and get before juries and judges, there's going to be a lot more sensitivity than in other cases because you could have a jury that could be presiding over a case where no one themselves or no one in their family has experienced the claims that the person is alleging. With covid-19, you're going to have a lot of people who have experienced the same things that those plaintiffs have experienced. And there's going to be a lot of sympathy. And so you want to be make you want to be making sure that you don't have bad facts where you've got somebody who, you know, who's entitled to that leave and you're telling them to go out, get child care. And it's $95 an hour and you're not being flexible. You're not treating people the same with regard to their PTO program. And again, not saying that's what happened in this case. But these are things you want to be thinking about, because if you do have to go to a jury, you're going to probably have more sympathetic people because they're going to have experienced some of these same issues. And you're going to be looking people are going to be looking at how flexible you were and trying to accommodate a person in this situation, because there are a lot of people are going to be in these situations and people are going to be looking to see how flexible you were. Next slide, please. This case, Inkster versus New York City Health and hospitals, the plaintiff in this case had a compromised immune system due to diabetes in a couple of other conditions, which she argued put her at a higher risk for contracting covid-19 in the workplace. She was granted the combination to work for home for five days per week, which was later. The employer later revoked it and reduced it to two days per week, and as a result, her salary was reduced. And so she's now she's alleging disability, discrimination, and retaliation. Now, sue talked about. She talked about that CDC list of certain medical conditions, underlying medical conditions that make you more susceptible to covid-19. There's a long list of conditions. Immuno compromised immune systems are on that list, diabetes on that list, respiratory conditions. It's a long list. And it's being updated all the time. And I think it was actually updated again, this week or last week. So you want to be looking at that. So it's clear this person is in one of those buckets, is entitled to an ADA accommodation. In this case, the employer granted it 5 days a week to work from home, but later revoked it. And so just as again, not saying that the employer, the facts are as alleged that the employer did this. But if you see a situation like this in your workplace, you always want to be mindful that if you have to revoke an eight year accommodation, one will change it or modify it. Can't put the person in a worse condition. In this case, when they modified it, it reduced your salary. Obviously, that's she's worse off. The other thing, employers do still have the ability to make an undue hardship argument that the accommodation can't be granted because it creates an undue hardship. In this case, where you've got accommodations that have been going on for a while and all of a sudden you revoke it got you better have a really good reason for why you're doing that. so that's probably going to be the crux of this case. The employer is going to have to show why they revoked it, why they reduced it. It's clear she had a salary reduction as a result of that. And as I said earlier, this is going to be somebody, if the facts are, as alleged, very sympathetic to a jury. Next slide, please. Pacheco versus Yorkshire or Yorkshire building services, in this case, the plaintiff obtained occult blood test, because he had a newborn child and he just wanted to be sure that he didn't have the virus. He tested positive and informed his supervisor, his employer, who directed him to self quarantine. He took a second test that came back negative, but before he got the negative test, he was terminated from his employment. He then alleges that the employer said he was no longer needed. And this was before he got the negative test back. So like any other employment action that takes place after employee exercises their rights under law, and here the employer, the employee exercised their right under the fikret. And you take or employer takes on a negative employment action that's going to be that's going to raise a red flag. So one of the things you have to be thinking about is if you have to take this action, do you have documentation? Again, these are just alleged facts that the employer terminated. This person for some other reason, maybe violation of company policy. You better have the documentation that strongly supports it because it's very close on the heels of them exercising their rights, protected rights that they have under that law. So, again, in most of these situations, employees are going to be given the benefit of the doubt because there's so the Nexus is so close to the negative employment action where the person is trying to exercise their rights under the law. So you want to be mindful of making those types of decisions after someone is put in a request for a leap of viqueira or exercising their rights under any other type of legal law. Next slide, please. McPhee versus nation's client resolution in this case, the plaintiff requested leave to care for her grandfather. This is very similar. And I put these two cases in because, again, these are nexus cases, close connection, close proximity cases. And she had put in a leave to care for her grandfather, who tested positive for covid-19. Absolutely in allowable leave under the fretwork. Shortly after words which she had asked for leave, she was separated. Again, the timing of this case, the fact pattern is going to be very suspicious. Again, if the facts bear out to be what the plaintiff is alleging, everyone's going to be looking at. OK, if it wasn't for this, what's the risk that this comes right after she request time to take care of her grandfather because he's been diagnosed with covid-19. So, again, making sure you're mindful of making those types of decisions. This case is going to be one of the best examples, these two cases of an employer mounting a defense to say, hey, it wasn't related to their COVID claim, it was related to these other issues. And we've got some documentation to support that. Next slide, please. This case, Lang versus 24 hour medical staffing services, so this is a safety equipment case and sue talked a little bit about that in the context of the ADA. The plaintiff in this case was a nurse who claim that the employer created an unsafe work environment because they did not provide the appropriate safety equipment necessary to keep employees safe from covid-19. She was a nurse. She worked very closely with covid-19 patients. And after her complaint, her contract wasn't renewed. So she's sued. And the question is going to be, you know, what's the fact pattern here in terms of the request, the safety equipment that's being requested? Was it provided. This is this is not an ADA situation, but it does fall into the Osha bucket, perhaps. And I'll talk about that later on when we talk about agency complaints. So so employers are going to have to be mindful of. Safety equipment that they provide employees to keep them safe and to talk a little bit about all of the return to work steps people are taking, employers are taking temperatures, infrared body scans, testing, providing gloves and masks. All these things might come into play in a case like this because it might be something the employer might say, hey, look at what we've done. We've done everything we can. We followed safety guidelines. And so on and so forth. The other reason I wanted to bring up this case is in the workers compensation context, there are about 22, 23 or more states who have passed legislation that provides a presumption to people who work in the for first responders who are medical providers and essential workers who work with folks who have covid-19. So this nurse would fall into that bucket. If you are someone who works in those categories. And you come down with covid-19 in these states where these workers compensation statutes have been passed, you can get a presumption that that covid-19 diagnosis was the result of working in that environment. And so this is going to be another area that employers are going to have to be thinking about in the context. Now, we have to have a safe workplace because we might have people who come down with covid-19, and that exposes us to a worker's compensation claim. So be mindful of that. Some states are actually thinking about extending that protection. Beyond that first responder or medical provider group to other workers. And we'll keep you up to date. If that comes to pass. Next slide, please. Christie versus Costco wholesale corp. sue talked extensively about this in terms of the privacy issue in this case involves a kitchen sink of claims, defamation, invasion of privacy, wrongful termination, negligence and intentional infliction of emotional distress. The plaintiff in this case had been quarantined. And when he returned to work, his allegation is that his managers and co-workers harassed him because they believed he had covid-19. He alleges that he was called coronavirus boy in that rumors were rampant in the workplace that he had covid-19. And when you're looking at this type of case like this, this is a lot to unpack here. But as Sue talked about earlier, there's a really big issue here in terms of privacy. When you've got somebody who's got who's sharing this information with you a positive diagnosis or they suspect they might have it, there is really it's on the employer to make sure that the employee's information is kept confidential, not only with an h.r., but also with the management team, obviously with the employee goes out and tells everybody about it. That's something the employer can't control. But if the employer is seen as the source of this information in the workplace, that's going to be a big issue. And again, these are still allegations not yet to be proven, but something for folks to be thinking about. The other part of this case is the harassment piece. If, in fact, this did occur and managers are seeing it, the employee really is going to have to take some proactive steps to ensure that that's not going on, disciplining people, whatever, retraining, whatever you need to do. But that's going to be another aspect, because even if it's proven that you did not share this information, the harassment is another claim, another aspect of the claim that could go forward. And you could the employer could find themselves liable for the claims that the employee is making. Next slide, please. Party versus demko, in this case, this was a plaintiff who is alleging that they were terminated in violation of FMLA after they tested positive for covid-19 in this case, the employee said that they began to feel ill, had to go to the emergency room, was later determined that they had to be quarantined for two weeks. However, the employer subsequently terminated them because they claim that they did not file or report the claim in a timely fashion. Now, in these cases, obviously, if this person is in the emergency room, if this person is for whatever reason, not able to provide that documentation, the FMLA allows you to take time off if it's unforeseeable and you don't get that notice to the employer in time. So this is going to be a very fact specific case in terms of the timing of the notice, why the person didn't provide the information, if that's going to be the defense that the employer relies on, obviously. Again, don't know if all of the facts are as alleged, but everyone should be thinking about, you know, what's our flexibility? Someone says they're an emergency room of someone is quarantine and they don't get the documentation. Is the first thought to go out and separate them because they have not gotten the documentation earlier on. This was a really big issue. Documentation was a really big issue because people couldn't get in to see their doctors. And so that's kind of loosened up a little bit. And people are able to get into the documents to see their doctors. But there may be other reasons why that person didn't comply with the notification requirements. And you want to be open to be reviewing anything that might be mitigating under those circumstances. Next slide, please. Idaho law versus arber E in this case, the plaintiff informed her employer that she had been in contact with the person who tested positive for covid-19. Her employer demanded she return to work, claiming that she was low risk and they were too short staffed to have her out. The next day, she informed her employer that she had, in fact tested positive for covid-19 and needed to self quarantine. Well, the employer at least that she alleged legis fired her five days later. And she sued for fit for Africa in retaliation. Obviously, this person had protection. The argument, if it turns out that this was the argument that she was that the employer was too short staffed to have her out, was not going to be a very good defense. So, again, when you're looking at bad facts or facts that are going to be hard to explain to a jury, having somebody who is saying that, hey, you know what, I might have covid-19 and they'd like to take some time. The regulations do allow a person to take the time out to get that test. And during that time frame, they are protected even if it comes back negative. In this case, it looks like as they turn out to be true, the employer did not give her that time, wanted her to come back. And then after she tested positive, they fired her. Not a good fact pattern, if that turns out to be the case. Next slide, please. I'm going to run through these really quickly. Pamela Smoot versus 3c body shops. Plaintiff in this case was a customer service rep. She had a preexisting condition. She suffered from COPD. She used a nebulizer and she was unable to work whenever she had a coughing flare up. And she requested intermittently and up to one day a week. And then subsequently requested an ADA accommodation to work from home. The plaintiff claims that the request was denied. And that she was subsequently terminated. And she alleges retaliation and violation of the ADA, as Sue said, talked about earlier. And I've mentioned this condition, respiratory condition. COPD clearly falls into that box of conditions of where somebody would be entitled to an accommodation under the law. So the question that you want to be able to answer is you engaged in the interactive process? Did you do that? Do you have an undue hardship argument as to why you did not grant this accommodation? There was another question about working from home. Obviously, if folks are still working from home, it's going to be hard to argue that undue hardship if you've got other people working from home, still teleworking. So, again, when you're looking at this type of situation where you can have somebody who clearly falls into that protective bucket is clearly entitled to an ADA accommodation, you're going to have to be asking yourself, have you done the things that you need to do in terms of the interact process and analyze whether there's an appropriate accommodation, if the accommodation request is to work from home? You've got people working from home hard to argue undue hardship argument. But we'll see what happens in this case, as it plays out. Next case. Next slide, please go up. Quivira versus garagiola ink. This is a documentation case. The plaintiff alleges that the defendant refused to allow her to provide sufficient information regarding her entitlement to leave under fiachra. She claims she was terminated after she requested. As as Sue mentioned, there's been a decision where the DOL has spoken on this. The employee has to get that documentation as soon as possible. But again, you want to be able to say that you just didn't fire the person that you requested the documentation. They didn't get it to you and you fired them the next day. You want to be mindful again, that there will be situations where you might want to mitigate and allow that employer employee at a time. They need to get that information to you. Next slide, please. I want to talk quickly about agency actions that got 5 minutes left to walk through this next slide, please. So there are two other agencies that you want to be on your radar screen, as you all know, employers can file a complaint with the DOL. They can also go to Osha and file a complaint. And when you look at the number of claims that have been filed at Osha between February 2020 and may 2020, there were 1,600 covid-19 whistleblower related complaints. That's a lot of complaints. And again, want to be mindful of what you're doing in the workplace to keep people safe. Because people can just walk down Osha offices or on not on every corner, but there are a lot of Osha offices and people that they don't feel like they're being allowed to work in a safe work environment. They can go down and file a claim with Osha. Same thing with the darwell. Most of the claims consist of retaliation, allegations, non-payment of wages and workplace safety violations. Next slide, please. So I put in these three cases, deol versus risk and insurance consultants Inc employees awarded back pay. Next slide, please. Do well versus mundo, the chloris, I'm probably not pronouncing that correctly, the employer failed to provide paid leave under Figueroa. Next slide, please. And then deol versus church's chicken franchise employee awarded $1,060. Now, the reason I put these cases in, you may look at those cases and say, well, that's not a lot of money. And that's true. The awards at the dollar usually reinstatement and some amount of back pay. But the most important thing, at least from a brand reputational company, reputational standpoint, reputation standpoint, is that all of these three cases that I notice, they were on $1 website. So you don't want to be on the dollar website as having violated the fiachra want to be mindful that, yes, the remedies available to people are not necessarily excruciating. You know, you have to reinstate somebody. You have to pay back pay. But I think the real issue is or concern for employers is ending up on that website. And they usually actually do an announcement when they get an award or have somebody respond to a complaint that's favorable to the person making the allegation. Next slide, please. So here are the additional resources, we have a Coronavirus Resource center that we update on a regular basis, please refer to that. We also advise people, employers, HR professionals, everybody to continue to monitor developments at the CDC. They're always updating, making updates as more science comes out that when coronavirus first came onto the scene, the list of folks, at least list of conditions or people impacted in terms of that pre-existing medical condition was a lot shorter than it is now. It's much longer. So they're updating on a regular basis saying the doll is Sue talked about their regulations being issued all the time, especially as they start to get more information and see how things are playing out in the workplace. They're going to continue to make revisions to regulations to adapt to the things that are happening in the workplace. And obviously, when you talk about what happening at the state level, some of the states are getting involved in litigation at Southern District of New York. They're out there making challenges to the law. And so employers have to keep an eye on that to see that particular law, if it's a successful challenge, is impacting them. And then they have to go back and make some adjustments to what they thought was the proper practice. The key is to really stay up on these resources. And make sure that you are up to date on a, you know, daily, if not weekly basis. Next week's. Here is the compliance here, the compliance team bios for me, sue woods and Sarah Weiser, we have our contact information there. Obviously, if you ever have any questions, want to contact us, please feel free to do so. Our information is there. And next slide, please. And that's it. I'm sorry, rushed to those slides very quickly. But we always want to be mindful of people's times and make sure that we get people out. At the time that we've said, we thank you for joining the webinar today. We'll be having another webinar, as Sue said, to cover those non COVID related leave laws and will announce that in a couple of weeks. And then obviously, we have our fourth quarter webinar at the end of the year. So wish everyone. Thank you again. Wish everyone stay safe and healthy, and we'll look forward to seeing you at our next quarterly webinar. Thank you.
VideoAsk allows you to have asynchronous video conversations with your customers. Learn more here!