Employment issues after bankruptcy, COVID vaccinations as affecting workers’ comp, flag flying in condo/homeowner associations, and more in Our Social Media Posts This Week, Mar. 14-20, 2021.

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.

the tidal wave of coming personal and business bankruptcies
bankruptcies will affect employers and employees alike – know the implications

In the post on Sunday 3/14/21 we saw labor and employment issues in bankruptcy – employers and employees must be prepared for the coming wave. As the post notes, the start of the wave was the ~100,000 businesses that closed permanently and more than 57 million people who filed for unemployment since the start of the pandemic. And the numbers keep increasing. The coming tidal wave of bankruptcies – both business and individual – may implicate some of all of various employment laws and issues, including the WARN Act (which deals with how and when companies going into bankruptcy must let employees  know – more details are in the post), employee retention during bankruptcy (which includes the emotional side as well as the company’s plan going forward), employment agreements (which, if not fully performed, are called executory contracts and can be rejected by the person or business that has filed for bankruptcy protection – again more details are in the post), non-compete agreements (which may or may not be executory contracts and could affect, or be affected by, what happens to an employment agreement in which the non-compete provision is found – yes, more details are in the post), and more as in the post.

TAKEAWAY: A business’s bankruptcy may affect its employees, and an individual’s bankruptcy may affect the employer, so everyone needs to know the laws and issues – and perhaps consult a lawyer well-versed in both employment and bankruptcy law.

mandatory covid-19 vaccination affect on or by workers’ compensation

The post on Monday 3/15/21 was about a positive employer work order/rule versus a positive employee COVID-19 test: implications for workers’ compensation. In short, if an employee refuses to get a COVID-19 vaccine and contracts COVID at work, is that person entitled to workers’ compensation benefits? If the employer mandates COVID vaccines and an employee who does not get vaccinated later contracts COVID in the workplace and brings a WC claim, the employer may have a defense against liability. In order to have a valid defense, the employer must meet the criteria discussed in the post. There is also a flip side to a vaccine mandate relative to workers’ comp claims – see the post.

TAKEAWAY: Employers must carefully think through the risks and rewards as relates to mandated COVID vaccination and workers comp claims.

vaccine incentives for hesitant workers?

The post on Tuesday 3/16/21 suggested you consider COVID-19 vaccine incentives for hesitant workers – in all industries. The post arises in the construction context but applies across the board. You hopefully know by now that employers can mandate vaccination but have to know how to deal with requests for accommodation whether for religious or medical/disability reasons – see the post for more on that. Employers might also consider either an incentive but no mandate or adding an incentive to a vaccine mandate, but the incentive must be legal. That means not violating EEOC (including HIPAA) and wellness rules and regs. The post mentions some things to consider, including resources. One of the best incentives, that probably is most appreciated by employees and the easiest for employers, is also discussed in the post.

TAKEAWAY: The first decision is whether or not to mandate COVID vaccines, and the second is whether or not to offer an incentive for vaccination. Discuss both with an employment lawyer.

Employee fired 4 weeks after approved leave alleges ada & adea violations

From the post on Wednesday 3/17/21 we learned that a Johnson & Johnson worker who was fired 4 weeks after leave alleges  bias. Pultorak was an IT professional who went on leave for throat and lung cancer and lumbar spinal fusion therapy. He alleged that his job was given to a younger, less qualified person without a disability. He also alleged other things in support of his complaint under the ADA, ADEA and state law – see the post.  Timing can make or break a case. The employer did not respond to requests for comment. Stay tuned to see how this plays out.

TAKEAWAY: If an eligible/covered employee takes approved leave, the employer must be wary of taking adverse action against that employee, especially if the timing is suspicious. Yes, consult an employment lawyer.

condo/homeowner association footing the bill for vandalism by non-residents: fair?

In the post on Thursday 3/18/21 we saw that neighbors were stuck footing the bill after homeless vandals trash community pool again. We asked what would your Association do? Even with a fence surrounding the pool, vandals still get in. Many individuals, even some who don’t live in the community, have pitched in for clean-up. See the post for details. The HOA believes it will cost tens of thousands of dollars, a cost passed on to the owners. So how do planned communities protect their amenities? There is often a cost one way or another: to repair the damage such as this or to hire security to prevent this type of damage. This is something boards and owners must deal with together.

TAKEAWAY: There might be legal implications to actions taken against non-residents; consult with a community association lawyer.

wwii didn’t stop him – neither did an hoa telling him
to take down his american flag

The post on Friday 3/19/21 was about a Medal of Honor recipient who fought the HOA to keep his American flag flying. You probably think that flying the flag is an undisputable right? Not always. Colonel Van T. Barfoot (retired) defeated 3 Nazi tanks in WWII, had a flag flying outside of his home in Richmond, Virginia. He didn’t surrender to the Germans then and wasn’t about to surrender (his right to fly the flag) to the HOA now. Barfoot has an amazing history that is recounted in part in the post. But when it came to the flag, he was constrained by the rules of the planned community in which he resides. See the post for the applicable rule and how it played out here.

TAKEAWAY: We can’t say it enough: read your Governing Documents carefully – and then follow them! A community association lawyer can be of assistance.

gender discrimination doesn’t belong in any industry – and can get expensive

Finally, in the post yesterday 3/20/21, we saw that Villaume Industries will pay a $90,000 fine over ‘blatant gender discrimination’.  Why are those word in quotes? Because they were used by the state Department of Human Rights when discussing the allegations. This started in November 2019 when the agency learned Villaume has instructed an employment placement agency not to refer female applicants for open jobs. And what did the subsequent investigation turn up that resulted in the settlement (which stopped the ongoing investigation)? See the post. The employer agreed to the monetary penalty and, in addition, to hire at least one qualified woman for every three employees from its applicant pool over the next two years and more as noted in the post.

TAKEAWAY: Discrimination will come out – to save the headache and expense and more, just do it right from the start. Treat all employees and applicants the same.

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