In the post on Sunday 7/5/20, we talked about recent college grads benefitting from impact of landmark ADA. According to a national survey, recent college grads with disabilities are just as likely as those without disabilities to hold jobs – suggesting a benefit from the ADA. And what did the survey show relative to career preparation by connecting with mentors or completing college internships? See the post. Differences did start to show once the survey got past the initial employment, including in the types of jobs obtained, hours per week worked, and more as noted in the post. There was also a difference in the type of position – see the post.
TAKEAWAY: People with disabilities can perform just as well as those without disabilities – give them a chance (and any required accommodation).
The post on Monday 7/6/20 talked about a hidden COVID-19 risk factor: your boss. Perhaps, but anecdotal evidence suggest that this may be true. The post cites as but two examples a Walmart employee in Washington who was fired after having used up attendance “points” recovering from what was thought to be COVID-19 and a grocery-store employee who alleged that she was discharged for quarantining due to a potential case of COVID (see the post for the outcome of the case she filed). And even other examples are in the post. FFCRA was supposed to help avoid this, but the loopholes are large. For example, companies with over 500 employees ae not included and those under the limit can claim an exemption. How the FFCRA leave provisions work is explained a bit in the post (if you haven’t read enough about it from our other posts this week and blogs over the past few months!). Also explained in the post are the two laws that typically govern leave in a non-pandemic world: the FMLA and ADA (including to what employers they apply and what they provide). And what if neither of those laws apply, or any leave under those laws has been exhausted? The employee is left with whatever applicable state law might provide – or the good graces of the employer. Employers, on the other hand, want to be kind to employees, but also need their operations to continue. The yin and yang are not always aligned.
TAKEAWAY: Many things play into leave for COVID-related reasons at this time; in the future, some will still be around, as will COVID, so employers must know their rights and obligations. Enlist the services of an employment lawyer to guide you through this minefield.
The post on Tuesday 7/7/20 taught us about temporary worker FFCRA leave rights and joint employer challenges. The theme from our post yesterday continues … The FFCRA became effective 4/1/2020. It provides certain emergency paid sick leave and emergency family and medical leave. FFCRA applies to employers with fewer than 500 employees. But who is to be counted? The post tells you. And how to treat someone who works for a staffing agency under a joint employer theory, if applicable. And what determined if an entity is a joint employer? If it hires or fires the employee, supervises, and controls the work schedule or conditions of employment to a substantial degree, and the 2 other things noted in the post. Joint employer status requires an individual, case-by-case analysis. But that’s not the end of the inquiry. If the worker is entitled to leave from the joint employer, who pays for the FFCRA leave? The agreement between the 2 employers might determine the answer. If not, then the post explains what the joint employer may want and need to do relative to FFCRA leave (and the associated tax credit). Finally, while the joint employer may have 500 or more employees and thus not required to provide FFCRA leave, there are still provisions of the FFCRA that apply as noted in the post.
TAKEAWAY: No matter the size of the employer, there are parts of the FFCRA that apply relative to leave – know how the law applies to your business. Consult an employment lawyer to guide you.
The post on Wednesday 7/8/20 covered the post-COVID-19 ‘new normal’ for condo and homeowner associations. We asked: what changes have been made in your association and will they remain? Associations with units all in one building, or with several large buildings, have a n elevated interest, but almost all associations have common amenities that require COVID-19 considerations. The items and amenities to be looked at include fitness centers, elevators, and more as noted in the post. For example, if you are on a stairwell or in an elevator, you can’t always maintain the recommended 6 feet of social distance. What about opening a door to the association’s clubhouse? Any common space must be disinfected more frequently and sanitizing supplies (such as those listed in the post) should be placed in common areas for residents’ use. Other ways associations can protect residents from infection (and, let’s face it, the association from increased legal risk) include canceling or postponing in-person activities or moving them to a virtual environment, rearranging seating if in person, limiting use, and more as listed in the post.
TAKEAWAY: As stated in the post, an association “is not required to reopen common areas and amenities when the state lists the stay-at-home order. It is important for an association to review federal and state reopening guidelines when deciding to reopen. They must consider if they are even able to meet the requirements to open.” Consulting a community association lawyer is a good start.
The post on Thursday 7/9/20 noted summer is here … [but] let’s just keep working? In the pre-pandemic world, many people would be taking vacations and traveling (or staycations). Now, though, in this pandemic world, that is happening less and less; instead, people with work are staying put to do the work. What they are doing with their earned vacation time is in the post. Other things impacting the decision to remain working include that summer camps are often closed (leaving parents to see if there is applicable leave under the FFCRA as noted in our prior posts this week, here and here) and the impact of teens not having jobs to go to this summer. See the somewhat dismal statistics in the post.
TAKEAWAY: COVID-19 is disrupting many things – know what your business must offer to employees and how their decisions can affect the business.
The post on Friday 7/10/20 explained that the EEOC says employers cannot restrict older employees due to COVID-19, even to be nice. Employers may think they are being considerate of older employees who may be at higher risk of contracting COVID-19 when they limit their participation in certain ways. But what is intended as consideration may actually be illegal, so be careful. The ADEA prohibits discrimination against those 40 and older. You cannot treat an older employee in the COVID-19 high-risk category differently than younger employees just because of the high-risk status (even if you are merely thinking of their health). What you CAN do, however, is noted in the post (as are a few other things you cannot do).
TAKEAWAY: Yes, even though it seems strange, the law can stop an employer from doing what it thinks would protect an employee’s health if the underlying action is different than as applied to younger employees. Tread carefully.
Finally, in the post yesterday 7/11/20, we saw that those face mask ADA exemption cards are just dangerous nonsense. You’ve probably seen the cards (or an article with their contents); the content is listed in the post. Let’s debunk the myth that the cards perpetuate. First, the ADA only applies to people who are actually disabled. Just saying the acronym ADA (and waving a magic wand or the exemption card) does not make the ADA applicable. Examples of why a person who is actually disabled might not be able to wear a mask include COPD, asthma, and more as noted in the post. And if a disabled person cannot wear a mask, can s/he have access to every single establishment without wearing the mask? Not necessarily – for the reason noted in the post. There are ways that businesses can accommodate the truly disabled who cannot wear masks – most are no different than what is already offered to the general public (see the post) – but the business can ask for documentation of the need for accommodation if it is not self-evident.
TAKEAWAY: The purpose of the ADA is to held disabled people who truly need help, not to help able-bodied people skirt reasonable guidelines (or gubernatorial orders) that protect the public. Know what businesses can ask of you and what you can ask of them.