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 9/20/20, the question was: Are long-term coronavirus complications are considered disabilities under the ADA. What types of things do we already know may remain in the long-term as a result of COVID? Fatigue, shortness of breath, and more as noted in the post. Some of the complications mimic other medical conditions. Not only do they affect the person’s health, but also the ability to work. Relative to COVID, though, remember that the ADA protects eligible employees with disabilities who, with or without accommodation, can perform the essential duties of the position; it also protects those who have a record of having a disability or who are regarded as having a disability, so be careful not to step over those lines. In order that the ADA apply, the disability must result in a substantial limitation of a major life activity; some of the long-term complications form COVID may well qualify (see the short analysis in the post). If an employee is eligible and requests accommodation, then the employer must engage in the interactive accommodation process (just like with any other disability). What will be reasonable is fact specific. The steps in the process are enumerated in the post.
TAKEAWAY: COVID is not just a concern in the present, but also may play into the future of the workplace if lasting complications require accommodation. Be ready and have legal advice in hand.
The post on Monday 9/21/20 was about how businesses can reopen (and stay open) in compliance with the ADA. Yes, we know the ADA still applies in this COVID era, but employers still should follow CDC (and applicable state and local health authority) guidelines. Screening is the first (and probably easiest) step. Asking employees about symptoms (listed in the post), taking temperatures regularly (and possibly storing the data confidentially), and perhaps even testing employees (using the appropriate and legal test – the differences are discussed I the post) before they return to work. If someone exhibits symptoms or tests positive, follow the COVID plan that should be in place (see suggestions in the post). Screening is not limited to employees; it can also apply to applicants (as noted in the post). The ADA also applies if and when an employee requests reasonable accommodation due to qualifying COVID-related medical conditions – see our post from yesterday. What an employer cannot do is bar an employee form the workplace due solely to a condition for which accommodation is requested unless it poses a direct threat to the employee’s health (or other employees’ health) that cannot be reasonably accommodation without undue hardship. What goes into the direct threat analysis is noted in the post.
TAKEAWAY: The COVID overlay on an employer’s obligations under the ADA is not always simple; consult employment law counsel.
The post on Tuesday 9/22/20 talked about residents worried about quarantine rules in a 55+ community (and asked how your HOA or condo association handles this). This comes up when residents go out of state and return home or when residents have people from out of state visit them. The first place to look for an answer is guidance from the state Dept. of Health (or Governor’s orders). Then look to the association’s Governing Documents, including recently adopted Rules or Regulations that may deal specifically with COVID (such as those things discussed in the post). If the various guidelines, orders, and association restrictions are not being followed, take the steps identified in the post.
TAKEAWAY: Whether you are an owner, resident or Board member, a community association lawyer can be an asset, especially with this COVID overlay of normal association governance.
The post on Wednesday 9/23/20 told us that the Dept. of Labor has provided additional Guidance on paid leave due to school closures. This may affect many employees, so pay attention. Ok, so you are now an expert on the provisions of FFCRA, right? Well … leave issues have started blossoming as school has started. Some schools are fully in-person, others are fully remote, and still others use a combination. Almost all scenarios require one or both parents to make adjustments, even if not due to school but to child care before or after school. All of that has resulted in questions about how to apply the EFMLA portion of FFCRA. Recently the Department of Labor offered Guidance in that area. It covers eligibility for paid leave in the situations noted in the post. The post also has a link to the Guidance. Finally, as noted in the post, even with the DOL’s Guidance, the law is still complicated.
TAKEAWAY: FFCRA is a statute that seems to keep giving; peel away one layer and there are plenty more. Consult knowledgeable employment law counsel to advise as to your rights and obligations.
In the post on Thursday 9/24/20 we saw that the EEOC sued contractor CCC Group for racial harassment. Why? The company operated a construction site in NY. Allegedly white supervisors and employees regularly made unwelcome racist comments, used racial slurs, and more as enumerated in the post. Want more? Allegedly some of the harassment took place on a company radio channel for all to hear. Just one example: white employees bragged that their ancestors had owned slaves. More examples are in the post. It wasn’t just words. Also, alleges the EEOC, African American employees were given more physically demanding and dangerous work including those things noted in the post. Complaints were to no avail. When it couldn’t get the matter resolved, the EEOC filed suit in federal court.
TAKEAWAY: Treat all employees the same regardless of race (or any other protected characteristic). Period.
The post on Friday 9/25/20 took us back to COVID and the Regulations related to the FFCRA as revised by DOL. This was an extension of our post on Wednesday 9/23/2020. In brief, the changes relate to work availability (what is required in order that an employee qualify for EPSL or EFMLA – see the post), intermittent and incremental leave (when employer approval is required, how and when hybrid or remote school schedules come into play – again, see the post), and notice and leave documentation (when employees must provide documentation for and notice of a leave – all in the post).
TAKEAWAY: Even though FFCRA is set to expire 12/31/2020, you need to know all of its nuances and do it right now.
Finally, in the post yesterday 9/26/20, we read why the EEOC just slapped Kroger with a lawsuit (and Kroger’s history). The issue in the case surrounds the small, light blue, dark blue, red and yellow embroidered hearts Kroger implemented as part of its dress code in April 2019. What the hearts supposedly mean is in the post. Two employees thought the hearts violated their religious beliefs and would not wear (or cover up) the hearts. Kroger fired them (you saw that coming, right?). The suit was filed based on Kroger’s failure to accommodate – details on this are in the post. What the EEOC seeks as relief is also noted in the post and it goes beyond monetary relief. (And if that’s not enough for you, the post continues with a history of Kroger, including how old it is [over 100!], that it started out selling tea, that it may have bene the first grocer with an in-store bakery, the names/brands under which Kroger operates [even other than grocery-related], and more).
TAKEAWAY: Employers have an obligation to accommodate religious beliefs as long as there is no undue hardship; simple things (such as here) should not lead to lawsuits, so consult employment counsel.
York, Pennsylvania 17403