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 2/13/2022 we saw that Charter Senior Living is to pay $31,000 to settle EEOC disability discrimination suit. Let’s look at the facts (according to the suit). Charter employed a caregiver who passed a pre-employment physical and then worked for weeks without incident … until the director found out the caregiver had nerve damage in her right hand. Charter then required another physical exam. What the examiner did that led to Charter refusing to let the caregiver return to work, and ultimately firing her, is in the post. Oh, and by the way, Charter did not evaluate whether the nerve damage impacted the caregiver’s ability to perform her job duties. When conciliation failed, the EEOC filed suit in federal court (in Ohio). Now the matter has settled with Charter agreeing to the monetary relief mentioned previously and additional relief noted in the post (which is equally important).
TAKEAWAY: Remember that the ADA includes situations where an employer regards an employee as being disabled; know what is legally required before bumbling down a dark and possibly expensive rabbit hole.
The post on Monday 2/14/2022 explained that an employee who was fired after telework request loses discrimination and retaliation claims. A program review specialist began to work for the TX Dept. of Agriculture in June 2012. She had lupus, anemia and other illnesses which required absences and occasional FMLA leave. Her job included on-site inspections (the purpose of which is in the post). In January 2016 she returned to work after a long-term medical leave. At that time she requested accommodations: to work remotely and to have a compressed workweek. The TDA granted the latter request but not the former (due to her job duties and its policy which is noted in the post). The employee says she was not given a reason for denial of the telework accommodation request and had previously been allowed to telework from 2012 until her medical leave in 2015. In August 2016 she received a written warning (the bases of which are in the post). She submitted a rebuttal and TDA took action (noted in the post). There were further disciplinary issues in October 2016 and April 2017 (detailed in the post). She was terminated in August 2017, after which she brought suit alleging various claims. TDA filed to dismiss; less than all claims were dismissed. TDA then filed for summary judgment on the remaining claims (FMLA retaliation and discrimination under the Rehabilitation Act); the court granted that motion. The employee appealed. Her arguments on appeal are noted in the post. Why the appellate court rejected her arguments is explained in the post.
TAKEAWAY: Document, document, document, and follow the applicable policy. Always and evenly.
The post on Tuesday 2/15/2022 told us that Associations settle a suit over shared utility, valet expenses. One association is a hotel-condo, the other a condo. They share utility, parking and beach service expenses. In 2013 a condo association purchased (through a bankruptcy sale) another portion of the building, the hotel facilities. There was allegedly an agreement in place prior to that as to division of expenses – see the post. Then in 2019 the Hotel Condo Association sued, claiming that in 2014 the Condo Association unilaterally changed the Declaration’s provisions for cost-sharing (and increased the amount due by the Hotel Condo Association). The Condo Association said that it had the authority to make the change due to ownership of the hotel facilities; the Hotel Condo Association’s response is noted in the post. What else the Condo Association allegedly did contrary to the provisions of the Declaration is in the post. Interestingly, the Condo Association filed a counterclaimed, alleging that the Hotel Condo Association benefitted from the restructured shared expenses (as explained in the post). The parties settled in December 2021 and dismissed the suit.
TAKEAWAY: Governing Documents apply regardless of the dollar amount involved; know and follow the documents and consult a community association lawyer to protect your interests.
The post on Wednesday 2/16/2022 was about the OSHA “Vax-or-Test ETS: Where do we go now? By now you should know that on January 13th the Supreme Court stayed the ETS; employers now must deal with what if any action to take. Should they rescind policies put in place to comply with the ETS? Can they retain the polices despite the stay? What do they do with information they collected (pursuant to the ETS) as to employees’ vaccination status? First, the Court only stayed implementation of the ETS and remanded it to a lower court but did not invalidate the ETS. Subsequently, however, OSHA withdrew the ETS. But the questions remain so let’s address them. First, an employer can indeed rescind a vaccine mandate put in place solely to comply with the ETS. Next, even though the ETS has been withdrawn, the employer can still proceed with its vaccine mandate (as it always could) and merely address any requests for exemption for medical reasons under the ADA and religious reasons under Title VII. And what should employers do with information gathered pursuant to the ETS on employee vaccination status? See the post. Other provisions of the ETS that had a monetary effect (such as providing up to 4 hours’ PTO for employees to get vaccinated and let employees use paid sick leave – accrued or other, see the post – to recover from vaccine side effects) are no longer in effect, but municipalities or states may have enacted ordinances/statutes. Of course, the employer can also do this voluntarily (which might be a good thing in this time of the Great Resignation).
TAKEAWAY: Knowing the options relative to vaccine mandates, and how to follow whatever path is chosen, is a good conversation to have with an employment lawyer BEFORE making final, irreversible decisions.
In the post on Thursday 2/17/2022 we saw a worker received $67K following manager’s alleged race harassment. This concerns another suit by the EEOC for alleged violations of Title VII. The EEOC alleged that the special meats store’s manager used derogatory language, including racial slurs, when speaking to an employee. The supervisor even used one slur repeatedly and in front of other employees. What did the employer do about it? See the post. Eventually the employee resigned. And eventually the EEOC sued. Now the store will pay the employee the referenced monetary relief (for what is noted in the post) and provide other non-monetary relief as noted in the post.
TAKEAWAY: Harassment and hostile work environment (examples of which are discussed in the post) are legal issues – consult an employment lawyer to ensure your workplace includes neither (or that any such incidences are wiped out and affected employees compensated).
The post on Friday 2/18/2022 discussed homeowners’ vs co-op vs condo insurance -know what you need and why. That’s right, all insurance is not equal. And all insurance does not cover all situations, so you need to have in place the correct insurance coverage. With ownership of a home in a homeowners’ or condo association, you own the home. To the contrary, in a co-op, you own part of the entity that owns the building (but not the unit itself). In a co-op you buy the right to live there and use the amenities. Insurance for homes in homeowners’ and condo associations therefore cover different things than co-op insurance (see the post for details on co-op insurance). But there is also a difference between insurance for homes in a homeowners’ versus condo association. While you own your home in both situations, there is less to insure with a condo, so it is more like a co-op in that regard (with the association’s insurance covering other parts as noted in the post). Owners in condo and co-op associations might also want to look at additional insurance as discussed in the post due to how the coverage works. So finally, what does insurance on a home in a homeowners’ association cover? Normally (but it can differ – read your policy carefully!) the entire home, liability for accidents that occur on or in the property, and more as noted in the post (along with the average coverage levels based on type of home, i.e., single family detached, condo or co-op).
TAKEAWAY: Get the right insurance for your living situation – and make sure the association has in place the insurance required by the Declaration or Bylaws. Consult a community association lawyer on this important matter before you need to use the coverage.
Finally, in the post yesterday 2/19/2022, we learned that older job seekers face a record-high roadblock: age discrimination. Still. The post says that the Great Resignation is also turning into the Great Reshuffle because (1) older Americans who retired earlier than planned thanks for the pandemic are reentering the workforce or (2) older employees are finding their skills more in demand due to the shortage of workers. Recent studies show how employers prioritize sills and education – see the post. But those same older people with the necessary skills see more and more discrimination on the basis of their age. Yes, this seems counter-intuitive when they have the skills that the employers need, but it is happening. How employers go down the road is noted in the post along with one way the applicant/employee can respond.
TAKEAWAY: In many ways skilled older workers have the upper hand today as employers seek to fill many open positions. But discrimination still rears its ugly head, so know that to look for – and what NOT to do or say – whether you are employer or employee/applicant. Get advice from an employment lawyer if you are unsure.
York, Pennsylvania 17403