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 3/13/2022 we learned that a Tyson Foods employee can pursue a COVID-19 mask medical leave lawsuit against former employer. [Once again the link was broken: here it is: http://ow.ly/JtC850InqqA ]. Moussa Soulemane, the employee, had worked at a Tysons beef processing plant. He alleged that he was fired for taking medical leave after the company instituted a mask mandate. He sued under the FMLA for both interference and retaliation. Tyson moved for dismissal; the basis is noted in the post. The trial court denied the motion, noting that Soulemane suffered from a previously-diagnosed lung condition affecting his breathing and that a doctor advised him not to wear a mask and gave him notes to be off work. The post contains the judge’s reasoning for denial of the requested dismissal (and a roadmap as to what employers should NOT do if they intend to deny eligibility for FMLA protection).
TAKEAWAY: Know the law – including what qualifies an employee for protection under the FMLA – and how it applies in this era of COVID and mask mandates. Consult an employment law attorney to protect your interests.
The post on Monday 3/14/2022 was about pregnancy discrimination and rights at work. The first thing to know is what laws may apply. They are the Pregnancy Discrimination Act (PDA), Americans with Disabilities Act (ADA), and Family Medical Leave Act (FMLA). The PDA applies to employers with 15 or more employees. Examples of actions against pregnant employees that would violate the PDA are in the post. The PDA guarantees pregnant persons the same treatment as other employees who have a temporary disability and might need a reasonable accommodation. An example of how that might play out is in the post. Note that if a pregnant employee is treated differently than a non-pregnant employee with a disability, then the employer must provide a non-discriminatory reason for the different treatment. And what about a pregnant employee’s rights under the ADA? There are none as to the pregnancy itself (as it is not defined as a disability), but pregnancy-related conditions (such as those noted in the post) are disabilities that are protected under the ADA (and may lead to the need for reasonable accommodation. Finally, what about FMLA rights for pregnant employees? As long as the employer has enough employees (as noted I the post) and the employee otherwise qualifies (again, see the post), then up to 12 weeks of unpaid leave are to be granted to the employee, whether in one large chunk or intermittently.
TAKEAWAY: Employees and employers must know what rights and obligations apply to pregnant employees – double-check the law and consult an employment lawyer.
The post on Tuesday 3/15/2022 showed us an insurer wins ruling in rescission of HOA policy. Owners and board members take heed. The federal appeals court ruled in favor of an insurer seeking to rescind its policy for an HOA because the HOA did not disclose in its policy application a situation likely to give rise to a claim. Let’s dig a bit more. Specialty Insurance sued the Lake Lindero HOA in federal court, alleging that it concealed facts on its insurance policy application. Because of that , Specialty wanted the policy rescinded and a declaration that it had no duty to defend or indemnify the association is state court litigation (the underlying issue for which is noted in the post). The trial court ruled in favor of Specialty and the HOA appealed. The appellate court affirmed. The facts which it cited in support of the ruling, and which should give every association pause, are in the post. Whether or not a claim or suit had been filed, there was a possibility under the facts, such that the association should have noted that on its application.
TAKEAWAY: Condo and homeowner associations should carefully fill out insurance policy (renewal) applications to ensure that coverage gets placed and remains in place. Consult a community association lawyer if you are not sure how to respond to a question on the application/renewal.
The post on Wednesday 3/16/2022 was about the HOA (and condo) homefront: Is it ok for an association to allow volunteer labor? This question (and the corollaries – will insurance cover any claims arising from a homeowner helping out the association and are owners themselves liable?) comes up quite often, so know the answer. Remember first and always that the person is acting in the capacity of whatever they are doing, i.e., plumber, electrician, landscaper, whatever, and not owner or Board member. The possible effect of that person causing damage to person or property is discussed in the post. And what if the person doesn’t cause harm, but just does not do a good job? Wil the association act as noted in the post? The answers to these questions must be obtained and discussed before allowing the person to provide the service.
TAKEAWAY: Know the effects on and to your association based on how services re provided, regardless of whether you are paying the person providing the service or they are working for free. Consult a community association lawyer for assistance.
Continuing the condo/HOA theme, the post on Thursday 3/17/2022 was a Condo (and HOA) Adviser: Unsure if your association is operating properly? Here’s what to look for. The starting point is applicable law and then the association’s governing documents (Declaration/Covenants, Bylaws, and Rules & Regulations). And then other things may come into play as noted in the post, so what owners see (or don’t see) may be perfectly legal and permissible. Or not. Owners so have the right under applicable law (and possibly the governing documents) to review some records; that also might help answer questions or allay fears of inappropriate operations.
TAKEAWAY: Owners of units in a community association are entitled to transparency and information, but that does not mean everything that is available. Consult a community association lawyer with questions.
The post on Friday 3/18/2022 told us the City says no to man’s Coca-Cola vending machine – that’s life in a planned community or condo/HOA!. Eric DeKarver loves anything Coca-Cola. He even has a Coca-Cola vending machine in his driveway for neighbors to enjoy. Watch and listen to the video embedded in the post. He enjoys giving away the Coke products especially to neighborhood kids. But the City and his HOA have a different view of the machine. The applicable regulation is discussed (and displayed) in both the video and the post. Instead of paying the daily fines that can accrue, or otherwise fighting this, Eric listed the machine for sale.
TAKEAWAY: Know the various rules and regulations that apply to your home, whether imposed by the munici-pality or condo/homeowners’ association.
Finally, in the post yesterday 3/19/2022 we saw that American Freight Furniture, Mattress, Appliance to pay $5 Million to settle nationwide EEOC sex discrimination suit. That’s a lot of money, but it is a national company with broad reach (350 stores in 40 states and Puerto Rico). So what happened? The EEOC alleges that since at least 2013, the company engaged in a nationwide pattern or practice of discrimination against qualified female applicants for sales and warehouse jobs. How did the company do that? Managers threw out job applications and more as noted in the post. And things managers said? Some examples are also in the post. The EEOC filed suit in federal court in Alabama when conciliation failed. Now the case has settled. American Freight will make the monetary payment as well as appointing a coordinator to implement its EEO policies and procedures and oversee compliance with the settlement agreement. The company will also do the other non-monetary things noted in the post that are integral to the settlement.
TAKEAWAY: Don’t take adverse action against an employee or applicant based on a protected characteristic including sex – you will lose in both the court of public opinion and real courts.
York, Pennsylvania 17403