Amazon sued again, intersection of FMLA and COVID-19, HOA/condo meetings & rules, vaccine incentives, and more in Our Social Media Posts This Week, March 21 – 27, 2021.

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 3/21/21 we saw that an Amazon employee sued, alleging racial discrimination and unequal pay. The suit was filed in late February by Charlotte Newman, a 38-year-old black woman. Newman was hired 4 years ago as a public policy manager (although she had applied for and said she was qualified for a higher-level position – see the post). How that played into her allegations is noted in the post (and referred to as “de-leveling”). Newman says she waited 3 years to get back to the position for which she originally applied and that she was sexually assaulted and harassed by a senior male employee (for which she filed a complaint and as a result of which he was fired). So, what is Newman’s current work status? See the post. Amazon said that it is investigating the allegations.

TAKEAWAY: Treat all employees the same at all times; don’t play games with their positions or pay.

The post on Monday 3/22/21 discussed 5 FMLA certification questions on the coronavirus and answers. You (should) know that the FMLA provides eligible employees with up to 12 weeks of job-protected, unpaid leave in a (rolling) 12-month period. So how does the pandemic come into play with or under the FMLA? First, is someone who tests positive for COVID-19 qualified for an FMLA leave? Probably: COVID would be deemed a serious health condition and we know that CDC recommends a quarantine of at least 10 days, so the question would be more the length of the leave. Next, does an employee who tested positive for COVID-19 need to have 2 or more visits in a treatment plan to qualify for FMLA protection and leave? Probably not as testing to determine if there is a serous health condition is not usually subject to the 2-visit treatment aspect. Three other questions that arise from the interaction of COVID and the FMLA are also in the post.

TAKEAWAY: Know the law and parties’ rights and obligations because the FMLA (and other laws) still apply even during the pandemic

The post on Tuesday 3/23/21 noted that virtual homeowners and condominium association meetings lead to increased attendance nationwide. At the start of the pandemic, association meetings ground to a halt since most were required by their Governing Documents to meet in person. So associations had to pivot by consulting attorneys for their legal options and then shifting to virtual meetings (if permitted). Some benefits of virtual meetings to both the association and owners are noted in the post. Another benefit? Attendance increased in most cases. For more, see the post.

TAKEAWAY: Do you know how PA law can help your association hold Board and general meetings virtually during the pandemic and thereafter? Consult a knowledgeable community association lawyer.

From the post on Wednesday 3/24/21 we saw that a man was told to take down his flag because it’s too noisy. Yep. This occurred in Fargo, ND, but because of the federal law it could be anywhere. Andrew Almer flew the American flag from his condo balcony for two years. He recently received a letter from the association telling him to remove the flag. Yes, the federal law applies – see the post. But there are exceptions – again, see the post. Is he removing the flag? Yep, see the post.

TAKEAWAY: Associations still have some leeway even in the face of state or federal laws – and that is dealt with in the Declaration, Bylaws or Rules/Regulations. Get legal assistance if needed.

In the post on Thursday 3/25/21 we learned that a court says the ADA did not protect an anemic worker. Martin was a call center customer service rep. She was fired after only 4 months. Martin sued, claiming disability discrimination. The trial court granted summary judgment to the employer; she appealed. The issue on appeal was whether Newman was a qualified individual with a disability under the ADA. The threshold was whether her impairment substantially limited a major life activity. Newman showed proof of anemia – she also alleged how that was a disability (see the post). The court then analyzed that and more, including what she did or did not do relative to her employer. All of that is in the post.

TAKEAWAY: The ADAAA has shifted the focus from whether an employee meets the definition of disabled to accommodation, but occasionally the threshold issue of disability does arise. Know the law.

The post on Friday 3/26/21 noted that vaccinations offer hope, but what should employers consider when designing COVID-19 vaccine incentive programs? For those employers who are not mandating vaccination, but want instead to incentivize it, there are questions that must be answered. The first is what is permissible as an incentive. It must be something that does not violate the ADA, GINA or Title VII. The EEOC issued guidance in January; a link is in the post. The guidance has been withdrawn but still serves as a good roadmap. There are also a lot of considerations for an incentivized vaccination program, including first and foremost those who will not or cannot get vaccinated as a result of medical conditions or religious beliefs. The same incentive rules apply and employers must also ensure that the incentive does not put the program into the wellness arena where provisions of HIPAA or GINA are implicated. See the post for more details on both of those.

TAKEAWAY: There are legal mines in the development of a COVID vaccine policy; consult a knowledgeable employment lawyer and follow the plan to a T.

Finally, in the post yesterday 3/27/21, we learned that employees paid $439M to resolve EEOC discrimination claims in 2020. That number includes both private and state and local government workplaces in the 2020 fiscal year. The EEOC received almost 67,500 charges and resolved just over 70,800 charges (reducing the backlog a bit). As for the breakdown of the charges, see the post. How the EEOC reduced the backlog is detailed in the post. And as for what to expect under the Biden administration, see the post.  

TAKEAWAY: Knowing what the EEOC has done and intends to do can be helpful for employers, especially as they try to stay on the right side of legal.