COVID-19 and workplace rules/policies, FFCRA leave expiration, Association fines for sign removal, independent contractor versus employee, and more in Our Social Media Posts This Week, Nov. 29 – Dec. 5, 2020.

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.

rules and policies in the covid-19 workplace

In the post on Sunday 11/29/20, we learned that the COVID-19 workplace is not a time to forget your normal workplace rules and policies. Yes, the workplace may have changed, with some employees working remotely and others having been laid off, but the obligation of the employer to follow (most) applicable laws has not changed. For example, even though they are not in the normal workplace, employees working remotely are indeed working and, as such, must keep time records. What the employer should do as to those records is noted in the post. Likewise, other polices and rules will still apply, even to employees working remotely. Some examples are listed in the post. And if the policies are not followed, discipline must be administered as appropriate. How that should occur is noted in the post. And what about accommodating any disabled employees working remotely? Yes, still an employer’s obligation under the ADA. Just one example that you’ve probably not even thought of is in the post. Worker’s comp claims can occur to those working remotely, so look at that part of the post also. Finally, leave rules and policies, and leave under the CARES Act, must be adhered to and documented. Why that is important, and how it can play out, are in the post.

TAKEAWAY: Employees working remotely are still employed and therefore must follow applicable rules and policies. Employers and employees must know each other’s obligations and the ramifications of noncompliance.

FFCRA leave expires 12/31/2020 – what does that mean for you?

The post on Monday 11/30/20 reminded us that FFCRA leave is set to expire 12/31/2020 and asked if you know what that means for your business? In March 2020, the CARES Act went into effect. That got employers scrambling to come up to speed on their obligations and employees’ rights, including EPSL (emergency paid sick leave) and EFML (emergency Family & Medical Leave). And now we are less than a month from the end date of all of that (unless Congress extends it). So, what does expiration of the leave provisions of the FFCRA mean? That employers have no obligation to provide paid leave (or any leave?) for personal or child care issues related to COVID-19. What if employers choose to continue that paid leave? See the post. Also, employers would need to see if the employee is eligible for, and entitled to, any other job-protected leave. Examples are in the post (and should not be surprising). However, keep in mind the limits of any other types of leave as identified in the post.

TAKEAWAY: If you have employees taking advantage of EPSL or EFML, figure out how to remind them of its expiration and discuss a transition to another type of leave or wat will happen if no other leave will apply. Consult employment law counsel if needed.

is it ok to reMove a “wear a mask” sigN?

The post on Tuesday 12/1/20 asked: can an Association issue a fine for removal of a “Wear Your Mask” sign? Simple answer, probably. But let’s examine why. If the Association puts up any sign or flyer, it does so in or on common area.Making changes to common areas is probably prohibited by the Governing Documents and the repercussion of that could be as noted in the post.And not only could a fine apply, but there might be more – see the post. There are limits though as to what the Association can do once fined; again, see the post.

TAKEAWAY: Life in a planned community – one with a condominium or homeowners’ association – can be good but is subject to certain restrictions and rules. Know your rights and obligations – and talk to a community association lawyer if you are not sure.

proposed rule on independent contractor vs employee classification

The post on Wednesday 12/2/20 taught us about the Dept. of Labor’s proposed rule for independent contractor status under the FLSA. Yes, you need to know what might be changing. The proposed rule was announced in late September and deals with whether someone is an employee under the FLSA or an independent contractor. So, what does the proposed rule do? First, to adopt an ‘economic reality” rest that looks at whether the person is in business for themselves (independent contractor) or economically dependent on the employer (employee). It also identifies and explains two “core factors” that are discussed in the post. The factors help determine the economic reality. The rule also identifies three other factors as additional guideposts in the analysis; they are also listed in the post. Finally, the proposed rule talks about reality versus a contract – see how in the post.

TAKEAWAY: Employers are responsible for paying workers correctly – knowing how the worker is classified is part of that, so know the applicable law.

settlement for age discrimination against supermarket employee

In the post on Thursday 12/3/20 we saw that Jumbo Supermarkets will pay $20,000 to settle an EEOC age discrimination suit.  Jumbo operates in FL, but the applicable law applies nationwide, so pay attention. The suit alleges that a 57-year old cook manager arrived at work and found her replacement had been hired to do her job – and that the replacement was bout 20 years younger. And what do you think the GM told the employee when he terminated her? See the post (and then say “ugh”). The EEOC sued when conciliation failed. So now the case has settled and Jumbo agreed to more than just the monetary payment – see the post.

TAKEAWAY: Treat all employees the same, regardless of age (or other protected characteristic). It can get real expensive real fast if you act in a contrary way.

fmla and FFCRA as different bases for suit

The post on Friday 12/4/20 confirmed that FMLA and FFCRA leave present different bases for suit – and no, this was not a rehash of our post on Monday 11/30/2020. So, let’s say there is a nurse who became infected with COVID-19 and asked for paid FMLA leave. Her employer said no and fired her, so she sued (the bases are in the post). The judge ruled against the nurse on the first count – the reason why is in the post (and makes absolute sense). The employer was less pleased relative to the second count when its motion to diss was denied. The rationale for the judge’s ruling there is also in the post. And this was not the only time a court has allowed a retaliation count to go forward when the underlying claim failed. See the post for more examples of that.

TAKEAWAY: Once again it is clear that an employee need not succeed on an underlying claim to bring – and succeed on – a claim of retaliation. Consult employment law counsel to keep you on the straight and legal.

lowe’s sued for sexual orientation discrimination against high performer

Finally, in the post yesterday 12/5/20 we learned about a man suing Lowe’s for sexual orientation discrimination. Avid began to work at a particular Lowe’s store in July 2018. Before that, he had worked at a different store since 2015. He performed quite well – see the post. Until he got a new manager who made derogatory remarks about people with whom he didn’t want to work. David’s suit alleges that the manager discriminated against him because he is gay. What the manager did and said is in the post. At least HR did not let the manager follow through – see the post. .But that wasn’t the end of it; the manager then … (see the post).  

TAKEAWAY: Train managers what to say (and not say) and do (and not do) – make sure all employees are treated the same. And take action if there is any illegal discrimination.

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