In the post on Sunday 9/13/20, and In this COVID era, we saw that the USDA seeks to permanently speed up poultry plant line speeds. Why do you care? Because the faster the lines move, the faster workers have to perform repetitive tasks, sometimes with sharp tools. COVID-19 has amplified the concerns since quick line speeds tend to require close contact between workers, making social distancing difficult. So, what did the USDA do this past spring amid the COVID outbreak? See the post. A union then sued and legislation was introduced in response. The USDA then stopped what it had done, only to add to its Spring 2020 agenda a proposed rule that would permanently increase poultry line speed limits. Money talks – see the constituency of the committee advising on this as noted in the post. Some history behind poultry line speeds – and how that should have impacted this proposed rule – is in the post.
TAKEAWAY: While this is playing out relative to poultry plants, its lessons apply to any workplace where employees are in close contact for long periods. Employers and employees need to be COVID-safe.
The post on Monday 9/14/20 told us that the EEOC provides guidance on opioid use by employees. The Guidance is regarding the use of codeine, oxycodone and other opioids by employees and how they could stay employed. This is important to employers and employees as it pertains to the ADA. Even though it was addressed to health care workers and employees, the Guidance gives helpful information to businesses relative to a variety of rights and obligations regarding opioid use and the workplace. What is the number one thing the Guidance acknowledges? See the post. Ah, but then an employer must delve deeper. If the opioid use is legal, the employer cannot automatically terminate, but must consider those things noted in the post. Also, what an employer need not do as an accommodation under the ADA is noted in the post (and is similar to other areas of accommodation). And when should employees request accommodation? See the post. The steps an employer should take if it believes an employee is using legal opioids – especially if they may affect the ability to perform the essential functions of the job – are in the post.
TAKEAWAY: Employers must be able to distinguish illegal from legal opioid use and engage in the accommodation process for the latter if needed. Consult employment law counsel for assistance in walking this tightrope.
The post on Tuesday 9/15/20 showed us that the recession leads to increased workplace ageism against women. Yep, Older women receive 40% fewer job interviews, a number that worsens as women age. As discovered by the research noted in the post, down markets just intensify the awfulness, because age discrimination spikes along with the unemployment rate. Is there more? Yes. Older workers get illegally fired more often during a recession – and then lawsuits increase. More details on this are in the post. And all that is despite the existence of the protections of the ADEA. So, what can be done? Private employers can behave more like public-sector (government) employers (for the reason noted in the post). Also, in a time of lower unemployment, employers are hiring more (of course), so the things noted in the post matter more.
TAKEAWAY: Discrimination on the basis of age in hiring and terms or conditions of employment is illegal – make sure you have no part of it, whether intentional or otherwise.
The post on Wednesday 9/16/20 told us that a condo association was charged for denying a disabled resident a service dog. HUD charged a NJ condo association with housing discrimination (violation of the Fair Housing Act) for allegedly not allowing a resident to have a service dog. Not an emotional support dog, but a service dog. There is a long history here. In April 2014, the disabled resident requested permission from the management company for a service dog. The following month the management company asked for certain information (noted in the post); the resident responded as also noted in the post. A few months later, the request was denied, but the resident got the dog anyway. The management company then sent 2 letters informing the resident that dogs were not permitted under the condominium rules and threatened fines if he did not get rid of the dog. The resident responded to each letter – see the post. Then in May 2016 there was more action on this: the management company sent all residents a letter about the allowance of service dogs (and the reason as noted in the post) and it received a letter relative to the resident’s accommodation request (details of which are in the post). HUD’s charge will follow the process noted in the post. What can be awarded as a result is also noted in the post.
TAKEAWAY: There are few occasions when condo or homeowner associations should not permit a resident to have a service dog. Consult a community association lawyer relative to service dogs and emotional support animals.
In the post on Thursday 9/17/20 we saw that a man sued Maison Kaiser for discrimination, then says its lawyer might be In KKK. Akeel Jamiel went to work for Maison Kaiser , then alleged racism and sued. As part of the case, the Judge wanted Jamiel to produce discovery to Maison Kaiser’s attorney. He said his computer had crashed. The attorney then noted that Jamiel had filed a complaint that she had arranged from him to be stalked and more (you won’t believe this!) noted in the post. Then it became procedural …
TAKEAWAY: Employment litigation often takes some odd twists – having an experienced lawyer on your side helps.
The post on Friday 9/18/20 was about vacation (and long weekend) hot spots: managing employee travel during a pandemic. The question is how can employers manage the risk of employees returning from vacation travel and potentially putting other employees or customers at higher risk of catching COVID-19? The CDC and Department of State both have resources for travelling – see the post. Much of what is out there applies to remote workers; that, of course, is not feasible in the manufacturing or similar sectors such that production sites, new engineering protocols, production methods, health screening protocols, and other measures have been implemented to protect employees while maintaining essential operations. All employers, however, have things they can do to limit the entry of COVID into the work environment. They include reviewing current safety and leave policies, consider whether to require greater disclosures about employee travel plans, and more as listed in the post. This is not employers acting like Big Brother, but rather fulfilling their obligation under Section 5(a)(1) of the Occupational Safety and Health Act to ensure the workplace is free from recognizable hazards likely to cause death or serious physical harm. Considerations vary with each workplace but should include those things noted in the post.
TAKEAWAY: Employers can require employees to provide what might otherwise be deemed personal information if there us relevance to workplace safety; get legal assistance to stay on the right side of legal with what is required.
Finally, in the post yesterday 9/19/20, we learned that workplace whistleblower protections inch forward amid pandemic. Employees are more concerned than ever about workplace safety in this era of COVID. As a result, whistleblower complaints have increased. Because of a delayed response by OSHA to the influx of whistleblower complaints spurred by COVID-19. Many states are taking the action noted in the post. Since the beginning of lockdowns in early March, workers across the country have been reported as getting fired or facing other retaliation for raising safety concerns; some examples are in the post. While there is existing protection for whistleblowers in some states, federal law usually does not apply in the private sector. What does apply is noted in the post.
TAKEAWAY: Employers should not put employees in a position of being scared to be in the workplace due to COVID (or other health and safety) concerns and yet unable to act as a result of competing fear of adverse action by the employer.