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 6/7/20, we reminded you to carefully evaluate selections in reductions in force during COVID-19. Yes, layoffs have been and continue to occur due to the pandemic. But how employers go about it is really no different than in “normal” times. Have a plan, including what parts of the business are affected and other items noted in the post. Then, when those answers are in place, see if there is any demographic (those sharing a protected characteristic) who are impacted more than others. That might or might not be illegal. If there is an adverse impact against one protected group, look at it under the microscope with the criteria mentioned in the post. And remember, having no intent to discriminate against that protected group doesn’t save an employer form liability as explained in the post.
TAKEAWAY: Do what you need to for your business but do it legally. Consult employer counsel to be sure.
The post on Monday 6/8/20 was about Coronavirus: what to do when employees refuse to wear PPE? This question will become more and more common as states loosen restrictions. Ok, you have decided to reopen the workplace and have developed a detailed plan, including that employees must wear certain masks and maintain social distance. But you’re not at the finish line because some employees refuse to follow that part of the plan. So, what do you do? This is (finally) an easy question and the answer is not “it depends”. The first answer is that unless there is a medical or religious reason the employee cannot wear the mask, you may discipline or even discharge that employee. But what if the reason is medical? You need to jump to the ADA and the accommodation process. See the post for an example. Similarly, religious reasons not to ear the mask may also be legally protected under Title VII. An example of how an accommodation in that area might work is also in the post. And keep in mind employees’ Section 7 rights in all workplaces (and any applicable CBA in a unionized workplace) as you traverse this alien terrain. The answer is even easier if the employee refuses to maintain social distance – there is usually no medial or religious reason, so you can probably move straight to discipline or discharge. Finally, keep in mind employees’ Section 7 rights in all workplaces (and the CBA in unionized workplaces) to stay on firm ground. The post mentions just a few of the many other issues that might arise.
TAKEAWAY: Navigating the employment laws in this time of COVID is not easy – but it is possible. Consult an employment lawyer to keep you on the straight and narrow.
The post on Tuesday 6/9/20 showed us that pretext was not shown in an FMLA retaliation claim against Tiffany (yes, we left the COVID area for the day!). Lisa worked at Tiffany’s manufacturing plant for several years. BY 2014, she was Director of Purchasing and Planning, reporting to the group director, Mary. At that time, Lisa learned she carried the BRCA2 gene mutation and had 2 surgeries. She took FMLA leave for the surgeries in 2014. While she was out, Tiffany hired Wayne to serve as VP of Manufacturing; he was Mary’s direct supervisor (and thus 2 levels above Lisa). When Lisa returned to work after her FMLA leave in May 2014, Wayne began to question her job performance. Lisa received her evaluation for 2013 – the result is in the post. Lisa took another leave in July 2014 related to the surgery; she did not have any more FMLA leave, but HR gave her an assurance noted in the post. At the end of 2014, Wayne put in place a new plan that affected Lisa’s job as noted in the post. Lisa’s 2014 evaluation came out – and what is said is in the post. By Fall 2015, Wayne was planning another restructuring that would affect Lisa’s department. How that played out is in the post. Lisa brought suit. She alleged disability discrimination and FMLA retaliation. Tiffany filed for summary judgment. The judge first looked at the disability claim, ruling in favor of Tiffany on the bases set forth in the post. He then looked at the retaliation claim and again ruled in favor of the Tiffany. The basis for his decision is also in the post. One interesting tidbit is that the case also included an offer of a new, lower-paying job; how the judge found that impacted the case is in the post.
TAKEAWAY: Yes, there can be legitimate, non-discriminatory reasons for adverse actions against employees. Make sure you have one before taking that action.
The post on Wednesday 6/10/20 was about a family fighting with an HOA over a water slide for their immunocompromised son. While this occurred in TX, it could happen in PA too. Here, Jonah was born with a failing kidney and had a CP diagnosis (along with other health conditions). All of that keeps him from public pools. So his family built a pool and 7-foot-tall water slide with waterfall in their backyard. In part, it is his physical therapy. However, the Association notified the family that the pool and slide violated the Governing Documents (as noted in the post) and gave them a year to remedy the violations. Jonah’s father said that the original plans were in compliance, but unforeseen problems occurred during construction that caused them to digress from those plans. What else Jonah’s father said – and his attitude and reaction to the letter from the HOA – is in the post.
TAKEAWAY: While rules enforcement may be an issue for any community association, accommodation may also come up. Consult a community association lawyer to help when these 2 intersect.
In the post on Thursday 6/11/20 we talked about grandchildren: a grand opportunity to create a legacy. The pandemic had made more people think about the downside (what happened when – not if – they die) and getting their estate plan in place (or updating an existing one). The root is not good, but the result (more estate planning) is good. State law has default provisions for what happens when someone dies without having a Will. But often people don’t want their estate to be distributed as state law dictates. A prime example is that state law often gives property to children, not grandchildren, but the grandparents want to leave something to the grands. That can be done as noted in the post. Also, to avoid the parents (of the grands) from contesting the Will, there are provisions that can be put in place (see the post). Finally, as noted in the post, leaving a bequest to a grandchild ensures that it gets to him or her – not always assured when leaving it to the parent.
TAKEAWAY: Make sure that what you want to happen with your estate will actually play out that way – consult an attorney who knows estate and probate law.
The post on Friday 6/12/20 contained a coronavirus and force majeure checklist. So, the first threshold is whether or not there are such provisions in the subject contract. If so, pull them out along with any applicable state law. Whether or not the provisions apply will be fact-specific, including the existence of the provision in the contract and the other things noted in the post. So the steps to take include seeing if indeed there is a force majeure or similar clause (an explanation of which is in the post), whether it might include the coronavirus (language to look for and who must prove what for a claim are noted in the post), and other steps listed in the post. This is a good checklist for business attorneys (and clients to discuss with their attorneys for situations now and those that might occur in the future).
TAKEAWAY: You can’t change a contract that is already in force, but you can see if it has terms favorable to your current situation. You can also know what terms to put in place in future contracts to protect you from similar events in the future. Get an attorney involved to ensure legal protection for you.
Finally, in the post yesterday 6/13/20, we saw that employee’s “unabated absenteeism’ ruled out ADA protection. Good lesson to learn. First, the background. Elizabeth’s employer adjusted her schedule to accommodate impairments; she nonetheless continued to miss work (50 times in one year!). She was suspended twice and eventually fired. Elizabeth sued, alleging in part a failure to accommodate in violation of the ADA. What the employer argued as to the effect of her absenteeism is in the post. The federal trial court agreed with the employer (with the bases for its ruling in the post). Elizabeth appealed. The appellate court also agreed – and its reasoning is also in the post.
TAKEAWAY: The ADA requires reasonable accommodation for the essential functions of a job, not that the essential functions be changed or removed. Attendance can be an essential function; a job description should detail how and why if it is an essential function.