Protection against employment discrimination claims, roadmap for reasonable accommodation, COVID19 FAQs for employers (or anyone), parents’ FMLA benefits to help with kids’ e-learning, and more in Our Social Media Posts This Week: Aug. 23-29, 2020.

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 8/23/20, we read about protecting your business from employment discrimination claims.  This is both for employees (so that you  know what to expect from your employer) and employers (to know how to fulfill your legal responsibilities to employees. First, know (at least some of) the potential types of discrimination. First, lets talk about age discrimination. Under federal law, the Age Discrimination in Employment act (ADEA), those age 40 and over are protected. Employers covered under the ADEA are defined in the post. Next, disability discrimination. This is where the Americans with Disabilities Act (ADA) and ADA Amendments Act (ADAAA) come in. The ADA offers protection to an employee who can perform the essential functions of a job with or without reasonable accommodation. Which employers are covered, and an exception to the duty to accommodate, are in the post. Race/color, national origin, religion, and sex are also bases upon which discrimination occurs; more details on who is protected are in the post.

TAKEAWAY: If an adverse action is taken against an applicant tor employee, it may be illegal discrimination; consult an employment lawyer to know the parties’ rights and obligations under law.

The post on Monday 8/24/20 taught us about a federal court ruling regarding reasonable accommodation – and providing a roadmap for employers. The case related to disability discrimination, reasonable accommodations, and retaliation involving an employee who was unable to return to work following expiration of FMLA leave. Here, Ethan was a truck driver employed by Martin Marietta Materials in one of its quarries. An essential function of his job, noted in a job description, was “driving and operating a heavy equipment vehicle to move rock product about the facility.” Ethan was also cross-trained on other positions, but how the plant manager described Ethan’s job is in the post. In December 2016, Ethan had an epileptic seizure for the first time in 5 years. He had a doctor’s note for a few days off; Ethan then asked about FMLA leave based on what the doctor was saying (as noted in the post). He was approved for FMLA leave. While he was on leave, his mother was in touch with HR about several things including accommodation for Ethan to return to work Ethan also was involved in reasonable accommodation discussions with the safety manager. How the employer responded is in the post. Yep, you guessed it, after termination Ethan filed suit. The big issue became reasonable accommodation and whether the employer fulfilled its burden in that process (including accommodation and undue hardship). The court’s analysis is generalized in the post and even includes Ethan’s disability discrimination, FMLA retaliation, and wrongful discharge claims. .

TAKEAWAY: Size does matter, at least with respect to what might be a reasonable accommodation or an undue hardship.

The post on Tuesday 8/25/20 noted that a large group is accused of not following COVID-19 guidelines at a resort. We warned that you should not let this happen with visitors to or residents of your Association. The resort at issue included condominiums and has a homeowner’s association. The church group is accused of not wearing masks in common areas and not socially distancing when appropriate. The Association management’s response is noted in the post.  

TAKEAWAY: Condo and homeowner associations must ensure the safety of residents in common areas; following applicable local, state and federal orders and recommendations, as well as the advice of a community association lawyer, is the best way to proceed.

The post on Wednesday 8/26/20 was about Coronavirus FAQs for employers (or anyone). The questions are in the areas of employment, medical documentation, telework, PTO, FMLA, travel, PPE, temporary shutdowns, customers, and contracts and force majeure. Let’s start with employment. It is common for employers to ask if they can send sick employees home. The simple answer is YES – as long as everyone is treated the same (i.e., not based on a protected characteristic as noted in the post) and if the employee has a disability, the items noted in the post hold true. There are also other bases noted in the post for sending home a sick employee. The second FAQ is what inquiries employers may make into an employee’s medical condition. Employers can ask about symptoms that are consistent with COVID-19 (including those listed in the post) and in the right circumstances can take employees’ temperatures. Another FAQ is whether the employer should notify other employees when one is confirmed COVID positive. The answer is yes, but how the notification should be done is discussed in the post (along with other steps the employer may need to take). Common questions in the other areas (medical documentation, telework, PTO, FMLA, travel, PPE, temporary shutdowns, and contract provisions) are also covered in the post.

TAKEAWAY: Employers have many obligations under local, state and federal laws, and COVID-19 provides an additional layer to know and abide by – consult an employment lawyer to keep you and your business on the straight and narrow.

The post on Thursday 8/27/20 discussed a timely issue: Can parents get FMLA benefits while helping kids with e-learning?  The answer is “maybe”. First, the school must be closed, or daycare not available, due to COVID-19. Also, the private employer must be between 50-500 employees. There are other exceptions, some of which are noted in the post. Also, if eligible, the benefit to which parents are entitled is listed in the post (pursuant to the CARES Act).

TAKEAWAY: COVID-19 has and continues to present tough choices for parents, especially now that school season has started. Consult an employment lawyer to know your rights or obligations.

The post on Friday 8/28/20 was about the dinner deadbeat (and yes this really does relate to the FMLA). This relates to a case in federal court in Illinois but is instructive for all of us. Melvin Brown was a firefighter. In early 2017, he was admitted to the hospital. He returned to work slightly over a month later, then was fired in June. He said the discharged was because he took FMLA leave. The fire department gave a different reason: see the post. The court then looked at the facts to determine if the employer’s reason was legally sufficient. The fire department had a ‘dinner fund”. In the morning, the members would talk about what they wanted for dinner that night and who would go get it; they would then all give money to that person to buy the food. Chris often did the shopping. At one point, he reported that Brown was not contributing and what he did about it (see the post). How that played into the court’s decision, and in whose favor it weighed, is in the post.

TAKEAWAY: as the post says, the FMLA protects against retaliation, but you still have to prove that the action complained of was retaliatory.

Finally, in the post yesterday 8/29/20, we saw that Management Services is to pay $42,500 to settle an EEOC pregnancy discrimination and disability lawsuit. Management Services is a property management company. The employee at issue was the community director of a large apartment complex. She started to have medical complications making her high-risk for preterm labor. The day Management Services took over management of the complex, it fired her. Her past performance record, comparison to other employees there, and contents of the doctor’s note she gave the employer are all noted in the post. She filed an EEOC charge; after conciliation failed, the EEOC filed suit on her behalf with a case involving the intersection of the ADA and Title VII’s pregnancy discrimination prohibitions. The settlement involves both monetary relief and the other items listed in the post.

TAKEAWAY: Employers need to know how to treat pregnant employees – what they can and cannot do. The best way is to consult an employment lawyer.

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