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 4/4/21 we asked: Is diabetes a disability? And if so, how to accommodate? Diabetes prevents the body from maintaining healthy levels of glucose in the blood (by limiting the function of the endocrine system). Normally, both Type 1 and Type 2 diabetes are considered disabilities under the law – albeit invisible ones – and that was clarified by the Americans with Disabilities Amendments Act of 2008. The law provides for accommodation for schoolchildren which will not be discussed here (but you can read about in the post). In the workplace, those with diabetes may be entitled to accommodation under the ADA, including the things listed in the post. Further, diabetes is considered a serious medical condition to protection under the FMLA might be triggered – see the post. That protection may also be available to parents of children with diabetes – again, see the post.
TAKEAWAY: Know what qualifies as a medical condition requiring accommodation under the ADA or entitled to protections and benefits under the FMLA – consult an employment lawyer.
The post on Monday 4/5/21 asked: Can workers reject the J&J vaccine? Religious objections explained. Why does this issue arise as to the J&J vaccine and not the others? Because this vaccine uses cloned cells from a fetus aborted in the 1980s. The threshold question is if employees can refuse to get vaccinated with the J&J vaccine on religious grounds? The simple answer is YES. The reason is noted in the post. Does the answer change if the church recommends avoiding the J&J vaccine (instead of outright banning people from getting it)? Well, maybe. The general play-by-play is in the post. And if an employee does refuse to get vaccinated for religious reasons, can the employer then refuse to accommodate? Maybe. What the employer has to show is noted in the post. And finally, is it an undue hardship for an employer if an employee waits for a different (Pfizer or Moderna) vaccine? Maybe. Things like those noted in the post will be considered.
TAKEAWAY: If you have or intend to require workers to get vaccinated, you must have in place a policy to deal with accommodating those who cannot for medical or religious reasons.
The post on Tuesday 4/6/21 told us that no, vaccine seekers, your condo is not a congregate living facility. The author of the article in the post lives in Philadelphia, so even though it is an opinion piece, it is pretty accurate legally. Philly’s definition of congregate settings (see the post) is the same or similar to other counties and the state. Condo associations are not included and do not seem to meet the definition. While there is common area(s), residents need not spend much time there, but rather pass through, keeping in motion, while between two places (one presumably being their unit). This is just one example of how state law (or regulations or recommendation) affects life in a planned community, in tis case a condominium association.
TAKEAWAY: Consult a community association lawyer for any questions about homeowners’ or condominium associations.
From the post on Wednesday 4/7/21 we stay in association life: couple ignored COVID rules, threatened to cough on residents. Ok, so what really happened? Steven and Nancy Iscowitz had COVID symptoms last July, got tested and learned a few days later they were positive. Their condo association had asked residents with positive tests to tell the management company, but said that identities would be kept confidential. The Iscowitzes complied the day after their test came back positive. So the association sent them a letter with specific requests/directions as noted in the post. The association also took other action – again, see the post. The Iscowitzes then sued the association (and management company), alleging false imprisonment. The association then sought a preliminary injunction based on the Iscowitzes’ behavior (see the post), but that was denied. The association and its agent have now filed a motion to dismiss the suit. They allege that while infected and infectious, the couple threatened to cough on residents, lounged in the pool area, and more as noted in the post. But that’s not all. The Iscowitzes have filed a motion for sanctions against counsel for the association and agent for making allegedly scandalous statements; more detail is in the post. And the cherry on the sundae? What happened mid-July last year – see the post.
TAKEAWAY: As we said in the post, have your COVID plan in place and enforce it. Get legal help if needed.
In the post on Thursday 4/8/21 we saw that 12 female employees allege sex discrimination by the sheriff’s office in a DOJ lawsuit. The complaint alleges that the females – current and former corrections officers and other positions – were subjected to a sexually hostile work environment by male inmates, including physical contact, threats of sexual violence, and more as noted in the post. The suit also alleges that the county and warden did not take the employees’ complaints seriously and did nothing. What is the basis for that allegation? What supervisory officers and jail administrators told the women as noted in the post. Also, when there were no repercussions to the offenders, the women did not submit further complaints. How long has this saga been going on? See the post.
TAKEAWAY: Any harassment or discrimination should be stopped, including investigating when complaints are made. No ostriches are allowed under the law.
what you need to know
The post on Friday 4/9/21 was about what to know about the FMLA during the coronavirus pandemic. Yes, this is for everyone! The FMLA provides up to 12 weeks of leave for eligible employees within a 12-month period, without pay. But perhaps the most important part of the FMLA – to employees – is the job protection afforded while on approved leave. Last year’s FFCRA (CARES Act) provided for some paid time off and a tax credit for employers; the paid time provision expired 12/31/2020, but the tax credits still exist for employers. The statutory reasons an eligible employee can take leave are detailed in the post. They are still valid. And the American Rescue Plan Act (ARPA) passed by Congress added another COVID-related basis – see the post. Further, if someone loses their job due to the pandemic, there is now a good option for them under ARPA – the post details what it is and how employers deal with it.
TAKEAWAY: We’ve said it before – know the law and your rights and responsibilities. Contact an employment lawyer.
Finally, in the post yesterday 4/10/21, we learned how COVID-19 has shifted the employment discrimination terrain. While employers used to only need to look at retaliation, protected activity and protected class as possible bases of suit by employees against whom adverse action was taken, that list has expanded due to the pandemic. The number of suits tying discrimination or retaliation to COVID-19 was large and is expected to grow in the future. So how does an employer terminate or lay off employees in this time? What if the employee was a poor performer, but had taken a leave due to COVID-19? Is COVID-19 a workplace injury? What if you mandate vaccinations and don’t accommodate those with medical or religious objections? And if you make vaccination voluntary, does that make your workplace unsafe and subject to whistleblower and OSHA complaints? All of these things are addressed in the post, plus more. What should an employer do? Well, reading the post is a good start.
TAKEAWAY: Employment, from application to hiring to discipline to termination, is even more of a legal minefield with the COVID overlay, so make sure to train your managers and get good legal assistance.
York, Pennsylvania 17403