In the post on Sunday 4/26/20, we learned that DOL issued a rule implementing the emergency FMLA and paid sick leave provisions under CARES. These provisions expire 12/31/20 unless further extended. So, what is required? Under the Emergency Paid Sick Leave Act (EPSLA), eligible employees get 2 weeks (up to 80 hours) of paid leave if needed as a result of the pandemic. The Emergency FMLA Act requires that eligible employees get up to 12 weeks leave to care for a child whose school or place of care or caregiver is unavailable due to COVID. Eligibility for EPSLA pay is discussed in the post. Likewise, eligibility for the EFMLEA is discussed in the post. Note that the EFMLEA is NOT an additional 12 weeks, but merely an additional basis for the leave. Small employers can be exempt from the EPSLA and/or EFMLEA as noted in the post.
TAKEAWAY: The pandemic has opened a strange new world, and in it employers are now required to follow new laws. Know your obligations.
The post on Monday 4/27/20 was about childcare accommodations and legal ramifications during COVID-19. Your child(ren) is/are out of school and the daycare is closed or the caregiver is not available. You may be an essential worker or working remotely from home. What do you do? In the first situation, you must discuss the matter with your employer. There are legal protections that may come into play if you cannot work. Further, you may need to discuss accommodations with your employer, including those thigs mentioned in the post. If you are working remotely, which itself is a type of accommodation, you may need more or other accommodations such as those noted in the post. Whether the employer can accommodate in either scenario is part of the interactive process that is legally required.
TAKEAWAY: Know what is and is not required relative to accommodation when it comes to the current pandemic – talk to an employment lawyer to be sure of rights and obligations.
The post on Tuesday 4/28/20 showed us that documentation of poor performance defeats supervisor’s race bias claim. We reminded you to document, document, document. Anthony started work for as a production supervisor for furniture manufacturer Haworth, Inc. in July 2016. A few months later, he was warned about his performance. On election night, Anthony, who is African American, overheard a racial slur about then-President Obama. Later that month, he received a final warning about performance. He had a meeting with HR to complain about racial bias. He was fired a few months later (the basis is in the post). He sued. The trial court ruled against him and was affirmed on appeal. The basis of the ruling is in the post and proves instructive.
TAKEAWAY: Train your employees to document any performance-related action. It may be needed in a future suit.
The post on Wednesday 4/29/20 was about defibrillators and dogs in condo and HOAs. No, this was not a joke. Defibrillators can save lives; the question is whether an association should have one or more in common facilities. There are so many things to consider, including where it will be stored, how many to get, and the other questions noted in the post. There are also risks as identified in the post. And then we get to dogs – loud dogs. This may be more of an issue in condominiums or associations with semi-detached or other attached units due to party walls. So, what can be done? Citronella collars for one (this author had never heard of them before either). They are detailed in the post. There are also a few other suggestions in the post that might help and avoid having the Association act.
TAKEAWAY: Association Boards want to do everything to protect residents, but they must think things through for legal ramifications – and discuss with a lawyer well-versed in community association law.
In the post on Thursday 4/30/20 we learned about common examples of sexual harassment in the workplace. You have been made more aware of this through the #MeToo movement. But do you know enough? Sexual harassment can include inappropriate touching, requests for sexual favors, and the other things noted in the post if it affects or interferes with employment. The post also gives more details on the 2 types of sexual harassment, quid pro quo and hostile work environment. Sexual harassment is not limited to one gender, nor must it be same sex.
TAKEAWAY: Make sure that employees know what they can and cannot say and do to employees – and discipline as necessary. Have an employment lawyer on call.
The post on Friday 5/1/20 told us that DOL says employers may require employees to use available paid leave during expanded FMLA leave. This is a follow-up or supplement to our post on Sunday 4/26/20 and is important. In normal times, employers may require that employees use up available paid time off concurrently with FMLA leave. But these are not normal times. So, the question is whether they may still require that with expanded FMLA leave (with the limits noted in the post). The answer is now yes for the reasons stated in the post. A good example of the interplay between EFMLEA, EPSL, and PTO is in the post.
TAKEAWAY: Know what is required under each of the new laws and what you may or ay not require of employees.
Finally, in the post yesterday 5/2/20, we read that Champion Fiberglass settled an EEOC suit for class hiring discrimination. This was a case or reverse discrimination where Hispanic and Spanish-speaking applicants were preferred. Let’s take a step back and look at the allegations in the suit. The EEOC alleged that the company systemically discriminated against non-Hispanic applicants by not hiring them, and not even considering them, due to race or national origin. For what positions? See the post. Also, and the opposite of what we usually see and hear about, the company allegedly preferred that certain employees speak Spanish and used almost solely one type of recruiting – see the post. When a non-Hispanic, non-Spanish speaking applicant responded to a posted sign … see the post. And the ironic part is that Spanish proficiency was not necessary to perform the job. So, the company settled for a large monetary sum (the amount is in the post) and other injunctive relief as listed in the post, including helping the EEOC locate victims of the alleged discrimination.
TAKEAWAY: Treat all employees and applicants the same way – discrimination based on a protected characteristic will land you in legal quicksand and it will be expensive (both monetarily and otherwise) to climb out. Get legal assistance.