Michigan Executive Order Clarifies COVID-19 Standard

On August 27, 2020, Michigan Governor Gretchen Whitmer issued Executive Order 2020-172. The Executive Order affirms that employers are prohibited from discharging, disciplining, or retaliating against employees who stay home when they or their close contacts are sick. 

However, the Executive Order redefines the “principal symptoms of COVID-19” as follows:

The principal symptoms of COVID-19 are (i) any one of the following not explained by a known medical or physical condition: fever, an uncontrolled cough, shortness of breath; or (ii) at least two of the following not explained by a known medical or physical condition: loss of taste or smell, muscle aches (“myalgia”), sore throat, severe headache, diarrhea, vomiting, abdominal pain.

This stricter standard of “not explained by a known medical or physical condition” makes clear that employees may be subject to disciplinary action if they remain home when COVID-like symptoms could be explained by a known medical or physical condition other than COVID-19 (e.g., allergies or a cold).  A prior Executive Order defined the principal symptoms as “fever, sore throat, a new uncontrollable cough that causes difficulty breathing, diarrhea, vomiting, abdominal pain, new onset of a severe headache, and new loss of taste or smell.”

Although the Executive Order gives employers a bit more room to address attendance issues in the pandemic environment, employers must keep in mind that applicable law still protects employees against discrimination and retaliation due to a disability, which could include conditions with similar symptoms that are not COVID related.

Executive 2020-172 is effective immediately.

USDOL Office of Inspector General Reports Rise in OSHA Whistleblower Claims During COVID-19 Pandemic

On August 14, 2020, the U.S. Department of Labor Office of Inspector General (“OIG”)—the Department’s watchdog—released a report finding that the COVID-19 global pandemic has significantly increased the number of whistleblower complaints received by the Occupational Safety and Health Administration (“OSHA”).  OSHA’s Whistleblower Program enforces 23 statutes that prohibit employers from retaliating against employees when they report employer violations of various workplace safety, consumer product, environmental, financial reform, and securities laws.

In the report, the OIG noted that the pandemic has resulted in a 30% jump in whistleblower complaints during the four-month period of February 2020 through May 2020 as compared to the same period in 2019—from approximately 3,150 complaints in 2019 to approximately 4,100 in 2020.  Of the whistleblower complaints filed from February 2020 through May 2020, approximately 1,600 (39%) were related to COVID-19, such as claims that someone was retaliated against for claiming violations of guidelines regarding social distancing or personal protective equipment.

The report also noted that a shortage of investigators, coupled with the increase in complaints, has caused delays in completing investigations.  The OIG made three recommendations to OSHA: filling a handful of vacant whistleblower investigator positions, considering an extension of its pre-pandemic pilot program nationwide to more efficiently screen complaints, and creating a “caseload management plan” that improves the agency’s ability to evenly divide up investigations among its investigators.

The report serves as a reminder to employers of just one of the many risks present in the current environment.  While whistleblower investigations might take longer than usual for the time being, the OIG report has brought COVID-19 workplace safety to the forefront and employers can expect OSHA to treat whistleblower complaints seriously.  What can employers do to protect themselves?  There is no fail safe solution, and in an environment like the current one, complaints are going to happen.   Listening to the concerns of employees and following guidance from the CDC, OSHA, and state authorities will help employers minimize the risk.

California 2020 Mid-Year Legal Update This Wednesday July 29

The legal landscape has changed radically since the start of 2020. While COVID-19 has profoundly impacted the Golden State, and the world, new employment laws are still driving change for California employers.

Join Jackson Lewis P.C. on Wednesday July 29 at 10:00 a.m. PST for a mid-year employment law webinar, where we will share critical mid-year updates, provide an overview of key rulings, and discuss pending new laws for 2021.

Topics

  • Mid-year reminders about local minimum wage increases and paid family leave benefits
  • New ordinances and requirements instituted as a result of COVID-19
  • Employment case updates, including status of independent contractors and employment arbitration agreements
  • Pending state legislation relating to employment and employee benefits

Webinars are CLE-accredited in California, Illinois, New York, Missouri and Texas. We are also accredited providers of HRCI and SHRM

For more information and to register, click here.

Updated EEOC Guidance: COVID-19 Antibody Testing Cannot Be Required to Return to Work

Earlier this month, the Equal Employment Opportunity Commission (“EEOC”) updated its Technical Assistance Questions and Answers on COVID-19 issues to state that employers cannot require antibody testing of its employees before they return to work.  The EEOC’s guidance came in response to the CDC’s earlier statement regarding antibody testing.  In adding Question A.7, the EEOC stated: “An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results ‘should not be used to make decisions about returning persons to the workplace,’ an antibody test at this time does not meet the ADA’s ‘job related and consistent with business necessity’ standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. ”  The full set of EEOC Technical Assistance Questions and Answers can be found here.

Employers should continue to check for updates from the EEOC, the U.S. Department of Labor, OSHA, and your State’s Department of Health.

Pandemic Leads to Accommodation Claims under Federal and State Laws

The New York District Office of the Equal Employment Opportunity Commission recently commented that it had received an increasing number of charges relating to the COVID-19 pandemic, all of which alleged violations of the reasonable accommodation mandate of the Americans with Disabilities Act (ADA).  While the number of filings was not disclosed, the New York State Division of Human Rights and the City Commission also indicated a growing number of such complaints, many alleging refusal to recall workers with disabilities due to health and exposure. As States around the country re-open their economies, compliance efforts should focus upon the anti-discrimination and accommodation provisions of the ADA and similar non-federal statutes.

Supreme Court Rules Title VII Protects LGTBQ+ Employees From Employment Discrimination

In a landmark ruling, the United States Supreme Court ruled that LGTBQ+ employees are protected from workplace discrimination under Title VII of the Civil Rights Act of 1964.  An article by our colleagues discussing the case and its implications can be read here.  A copy of The Court’s decision can be accessed here.

 

 

Assistant Nursing Director Claims COVID-19 Retaliation Against Nursing Home Employer

In what may be the beginning of a wave of post-COVID-19 lawsuits, a former Assistant Director of Nursing filed a whistleblower complaint against her employer, a long-term care facility. The lawsuit claims termination for raising concerns about alleged health and safety issues relating to, inter alia, staffing levels and the use of effective personal protective equipment.   Retaliation claims are asserted under state law, which will vary in scope and remedies across the country.

NLRB ALJ Reinforces Protection for Concerted Activity in Camp Counselor’s Termination

On March 25, 2020, a National Labor Relations Board Administrative Law Judge (“ALJ”) emphasized the broad reach of Section 7 of the National Labor Relations Act (“Act”) in non-union settings. Ground Zero Foundation d/b/a Academy for Creative Enrichment, Case 4-CA-245956. Charging Party was hired as a summer camp counselor, but was not paid for the ten minutes before the 8 am start or if the workday ended late due to trips. Without first filing a wage claim or complaining to the Company, she discussed the perceived underpayment with co-workers. She also texted with the president to complain about the rounding issue on behalf of both herself and the other counselors. At the end of the day, the president fired Hamill, saying: she was “a bad apple spreading negativity to the other employees”; Respondent’s handbook prohibited employees from discussing wages; Hamill should have spoken with the Company before raising the issue with other employees; and, she should been supervising the children on the bus rather than texting about her wage concerns. In a subsequent position statement, Respondent claimed Hamill was terminated for excessive use of her cell phone, neglect of campers, and insubordination (the last of which was never mentioned during the termination).

The ALJ found (a) the policy against co-workers discussing wages violated the National Labor Relations Act, (b) Hamill was engaged in protected concerted activity by raising the rounding issue among her co-workers and management, and (c) Hamill was unlawfully discharged for that protected activity – indeed, the ALJ found the evidence of this to be “overwhelming.” This was based not only on statements made during the termination meeting and other conduct by Respondent but also significant evidence of pretext, including shifting explanations for the termination, which indicated Respondent was trying to conceal its real reason.

This case provides important lessons to all employers. First, an employer cannot terminate an employee for raising collective concerns in an appropriate manner. Second, evidence of pretext undermining a defense arises from shifting explanations for discharge. Rebutting claims arising from adverse personnel decisions is effective when well-documented and consistent with past practice and lawful personnel policies.

Federal Court: Sweeping Accusations Alone Do Not Meet The Standard For Age Discrimination and Retaliation

As the Equal Employment Opportunity Commission’s  FY 2019 report reflects 21.4% of all employment charges handled in 2019 were for age discrimination; 41.4% of all charges allege retaliation. Recently, seven former directors of a grocery store chain filed suit alleging age discrimination and retaliation arising from alleged transfer to failing stores and denial of the same job opportunities as younger employees. Cesario v. Jewel Food Stores, Inc. A federal district court in Illinois dismissed the claims due to the absence of proof of adverse personnel actions. The lack of evidence was established, in part, by reinstatement after a medical leave and the lack of proof that age factored into a discharge decision. In the end, the Court held that “despite their sweeping accusations, they [plaintiffs] each fail to present enough evidence of Jewel’s discriminatory or retaliatory animus or adverse actions sufficient to support claims of discrimination or retaliation.”

A word to the wise. Personnel decisions should be supported by provable, documented business reasons. Internal dispute resolution procedures should be available to seek redress for what employees see as unfair adverse personnel decisions. And, lastly, a group claim waiver in an arbitration agreement could have avoided a seven-plaintiff lawsuit that likely would have ben confusing to a jury.

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