Effect of long COVID on work; FMLA leave discussions; quitting an HOA; service charges & tips as wages; and more in Our Social Media Posts This Week, July 3 – 9, 2022.

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.

long covid: a get out of work free card?

In the post on Sunday 7/3/2022, we asked about Long COVID: a get out of work free card? An employee who contracted COVID had symptoms that do not subside after a few weeks. The employee struggles with lingering headaches, fatigue, brain fog, and shortness of breath, with no end in sight. Yep, the employee probably has long COVID. Is the employee correct that because her long COVID is a disability under the ADA and a serious health condition under the FMLA, she’s entitled to work from home indefinitely and take intermittent leave each time her symptoms spike? And what if the employer wants her to return to work in person and is hesitant to grant leave every time she has a headache or fatigue? Can the employer require that she return to work in person and terminate her if she does not? What protections does she have under the ADA and FMLA? There are several things the employer must consider when employees assert that they have long COVID including, first, if the employee is disabled under the ADA. Recent EEOC Guidance says that long COVID may be a disability if symptoms “substantially limit a major life activity.” What does that mean and how does an employer determine if it applies? See the post. And if the employee is determined to be disabled under the ADA, the next question if whether there is a reasonable accommodation that won’t impose an undue hardship on the employer’s business. An example of how that analysis might work is in the post. Then the employer must consider if the employee has a serious health condition that permits FMLA leave. What qualifies as a serious health condition and how the employer would work through this question are also in the post.

TAKEAWAY: Long COVID is a real thing, and one that employers must know about and for which they need to have a plan in place. Meet with your employment lawyer on this.

hapy independence day – and how it affects a business

The post on Monday 7/4/2022, here, here and here, was a wish for a Happy Independence Day!  As We noted that even though state and federal employment laws don’t take the day off, it is ok to relax  and … see the post.

TAKEAWAY: Employers must balance the need for business operations with employees’ need to relax – be generous and you will be richly rewarded by your employees’ performance.

managerial liability: exercise care when discussing protected leave under the FMLA

The post on Tuesday 7/5/2022 was about managerial liability: exercise care when discussing protected leave under the FMLA. Most laws only impose liability on employers, not on individual supervisors and managers. But the Family and Medical Leave Act is different; it allows for liability against both the employer and manager in an individual capacity. In a federal court ruling issued June 1st, the issue was whether the FMLA can be violated by a manager simply discouraging an employee from requesting FMLA leave, even if the employer does not ultimately deny the request. Let’s look at the background facts. The plaintiff was a corrections officer at the Cook County, Illinois Sheriff’s Department. After being diagnosed with work-related PTSD, he called a manager to discuss a leave of absence. The officer didn’t have enough FMLA leave to cover the doctor-recommended leave, so he proposed a mix of FMLA, sick and annual leave. The manager’s response? See the post. Later the officer retired and sued, claiming FMLA interference and constructive discharge. The trial court ruled against the officer, but on appeal the FMLA interference claim was revived, with he court holding that a jury should decide the matter. The appellate court’s analysis in getting to that ruing is discussed in the post – and is instructive to employers.

TAKEAWAY: Managers must be trained as to what they can and cannot say to or discuss with employees; that must be part of the employer’s risk management process that is planned with an employment lawyer.

sorry, you can’t just quit your hoa (plus reserve studies).

The post on Wednesday 7/6/2022 confirmed that Sorry, you just can’t quit your HOA (plus reserve studies). OK, so you own a home in a condominium or homeowners’ association. But you no longer want to abide by the Declaration, Bylaws or Rules & Regulations (the Governing Documents). Too bad – you are bound to comply. Unless there is something in applicable state law or those documents to the contrary – see the post. And speaking of state law and the Governing Docs, what do they say about a reserve study? What is it, and where an association’s obligation to obtain one might appear, are noted in the post.  

TAKEAWAY: Whether solely an owner or also a Board member and/or officer, know the provisions of your association’s Governing Documents and get guidance from a community association lawyer.

hoa revokes $26K in cat-feeding fines, but condoowner still unhappy with decision.

The post on Thursday 7/7/2022 told us that an HOA revoked $26K in cat-feeding fines, but condo owner still unhappy with decision. The Board reversed its prior fines in late June after a hearing involving condo owner Pamela Cooper. The Board’s decision was in a letter to Cooper with other conditions as noted in the post. Cooper said she doesn’t know if she will adhere to the board’s direction because while rescission of the fines seemed nice at first glance, it doesn’t address the underlying problem (which is also noted in the post). The HOA had fined Cooper $100 a day for 259 days in a row. The way Cooper sees it, there is a conflict between state law and the association’s Bylaws – see the post. The association’s public comment is detailed in the post.

TAKEAWAY: The Board of a condo or homeowners’ association has a duty to enforce the Governing Documents, but those must fall when contrary to applicable state law. To stay legal, consult a community association lawyer.

federal apellate court rules service charge is not a tip, may be used to satisfy wage obligations

The post on Friday 7/8/2022 taught that a federal appellate court rules a service charge is not a tip, may be used to satisfy wage obligations. The issue was whether tips can be used to satisfy an employer’s wage obligations under the Fair Labor Standards Act (FLSA) overtime exemption. What was the background before the court? The employer, an upscale steakhouse in Miami, added a non-negotiable 18% service charge to customers’  final bills. Customers could also add an additional voluntary gratuity by writing in the amount on the final receipt or by leaving cash. From November 2017 through April 2018, employees were paid an hourly rate, an overtime wage and a pro rata share of the collected service charges. How the proration worked is noted in the post The employer also distributed the additional gratuities noted on credit card receipts to tip-eligible employees. The pay structure changed slightly on April 30, 2018; the restaurant eliminated the hourly rate and instead satisfied its wage obligations exclusively through the service charges. How the employer justified the change (and on what law it was based) is noted in the post. State law between 2017 -2019 required wages ranging from $8.10 – $8.46 per hour. During that period, the employer paid employees $23.68 – $51.58 per hour. In January 2019, some tipped employees challenged the employer’s compensation scheme in a collective action brought under the FLSA. The basis of the suit is in the post. Even though the plaintiffs’ portion of the service charges exceeded the statutory wage requirements, and some employees earned over $100,000 per year, they argued that the employer was in violation of the FLSA because the service charge was a tip (and how that violates the FLSA is in the post). The employer’s argument in favor of summary judgment is also noted in the post. The district court granted summary judgment to the employer, and the employees appealed. That ruling was affirmed on appeal. The court determined that the service charge was part of the employees’ regular rate of pay ( as defined in the FLSA and noted in the post). The court’s analysis of the FLSA and DOL regulations is in the post. And, continued the appellate court, because the service charges were not tips, it was irrelevant whether the employer paid some of that money to nontipped employees. Another argument by the employees, and the basis, is also in the post. The appellate court also discounted that argument, noting that the employer’s tax forms are irrelevant (why is in the post). The employees’ final argument was that the service charge was not mandatory because managers had discretion to remove the charge on the bills of dissatisfied customers. The appellate court recharacterized the issue (as noted in the post) and ruled against the employees (on the basis also noted in the post).

TAKEAWAY: Employers must know what goes into their employees’ pay and how the law characterizes it – get legal assistance if there is a question.

becton dickinson & company agrees to pay $499K to resolve alleged sex discrimination in hiring

Finally, in the post yesterday 7/9/2022 we saw that Becton Dickinson & Company agrees to pay $499K to resolve alleged sex discrimination in hiring. DOL’s Office of Federal Contract Compliance Programs (OFCCP) entered into a conciliation agreement relative to allegations involving the medical technology manufacturer’s three subsidiaries. The settlement proceeds will be divided among 125 qualified female applicants. The company will also provide non-monetary relief as noted in the post. So how did this come about? A routine OFCCP compliance evaluation found that the company discriminated against the female applicants when they applied for various positions in certain time frames as noted in the post. OFCCP determined that the company’s actions violated the contents of which are noted in the post).

TAKEAWAY: Remember that employers who contract with the federal government have additional legal compliance obligations – and that violations can be costly.

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