“Regarded as” under the ADA, UC benefits and the domino effect, financial challenged in HOA/condo associations, LGBT rights, and more in Our Social Media Posts This Week – July 26 – Aug. 1, 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 7/26/20, we saw that the Court revived driver’s suit with a reminder about ADA’s ‘regarded as’ prong. William, a truck driver, took 2 months of medical leave for a lung biopsy procedure. Six months after he returned to work, he took 2 vacation days for a respiratory infection. How did the company reward him? It fired him and … see the post. William sued, alleging that he was fired because the company regarded him as disabled. The trial court dismissed the claim. The basis for the dismissal is in the post. On appeal, the Third Circuit (the federal appellate court that governs PA and NJ) reversed. Some might say the decision was on technical grounds, but it really was making sure all parts of the statute – including the exception in the ADAAA – are taken into consideration. See the post for the court’s analysis so that you understand how this works.

TAKEAWAY: Whether an employee is eligible for ADA protection is a hurdle, but often not a great one – consult an employment lawyer to see whether the hurdle has been overcome and how to proceed.

The post on Monday 7/27/20 reminded us that the extra $600/week in unemployment benefits would end before 7/31 (in PA and many other states) – and how that will affect everyone. The law that put in place the federal unemployment payments provided that it would end on or before 7/31. Of course, that date was a Friday. However, many states’ UC cycles (including PA) end Saturday or Sunday, meaning that the last payment to people in those states was 7/25 or 7/26. After that ends, people go back to the amount they would otherwise get in their state. How much that might be is noted in the post. But the effect goes beyond that decrease in payments to the recipients – see the post for how broad it might be.

TAKEAWAY: Some people may be more likely to return to work now that the federal UC payment has ended – but that depends on so many other factors too (as noted in the post).

The post on Tuesday 7/28/20 taught us that COVID presents extraordinary financial challenges to condo and homeowner associations (not just individuals). Members of a planned community association pay periodic assessments; those funds are used to fulfill the association’s obligations, including maintenance, repair and replacement of common elements, which include amenities. Those obligations do not stop during the pandemic; even if an amenity is not open, there is still ongoing maintenance and upkeep. For example, most associations are responsible for at least some landscaping (and other things noted in the post). The grass did not stop growing when COVID hit. Members must keep paying the assessments. A few tips as to how associations can handle members with financial issues due to COVID are in the post.

TAKEAWAY:  Community associations must fulfill their obligations, and that means members must continue to pay assessments, even during the pandemic. Consult an attorney well-versed in community association law for any questions on payments or collections.

The post on Wednesday 7/29/20 we learned that the US Supreme Court extended Title VII protections to LGBT employees. We then asked (rhetorically) what that means to you. The Court decided Bostock v. Clayton County, Georgia on June 15, 2020. The issue was whether Title VII includes sexual orientation and gender identity within the prohibition of discrimination on the basis of sex. The issue was actually a consolidation of 3 cases. What the actual namesake Bostock case was about is noted in the post. The Court decision was 6-3; Justice Gorsuch, the most recent addition to the Court, wrote the majority decision. Part of the decision says, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” More of Gorsuch’s decision is in the post. And why did 3 Justices dissent? See the post. How the Gorsuch opinion addressed the dissent and limited the majority opinion is also in the post.

TAKEAWAY: The Bostock decision will be far-reaching and require employers to reexamine policies and procedures and actions, but the issues specifically left open (see the post) will continue to generate litigation until the Court also decides them.

The post on Thursday 7/30/20 noted that your office is reopening and asked: Do you have to go back?  Well, maybe. The post talks about some of your options. You have been in a bubble working remotely. But now your boss wants you to leave that bubble and return to the work location. What if COVID cases are on the uptick or other things questioned in the post? There is no federal law specifically dealing with this issue. Rather, there is a patchwork of state (and possibly local) laws – and some federal laws that may come into play at certain points. What an employee cannot do is noted in the post. Some tips for employees, such as asking for details and coming with ideas, acting as a group, and more, are also in the post. These tips also let employers know the types of things that concern employees so that they can be prepared to answer questions.

TAKEAWAY: Everyone must be prepared for a return to the workplace, whenever it might occur – a plan must be in place and the appropriate health and safety protocols adhered to by all. Applicable statutes, such as the CARES Act and the ADA, may also come into play. Contact an employment layer for assistance.

The post on Friday 7/31/20 asked: Is everyone who had COVID-19 now disabled under the ADA? We all need to know so that rights and obligations are (more) certain. Even for those who recovered from COVID, there are long-term effects, including physiological and neurological changes, some of which are predictable (lung damage) and others not (as noted in the post). Science/medicine does not yet know if those effects are temporary or permanent. So the question arises as to whether those things qualify people as disabled under the ADA. The answer depends on the Q&A listed in the post. The follow-up question then is what obligations employers have if they know an employee had COVID and recovered, but they don’t know the long-term effects? The provisions of the ADA may come to the forefront in several ways, a few of which are used as examples in the post.

TAKEAWAY: The EEOC permits the provision of accommodations on an interim or trial basis while awaiting documentation or guidance from professionals; that might be good to keep in mind now. Consult an employment lawyer too.

Finally, in the post yesterday 8/1/20, we learned that a Title VII retaliation claim resulted in a $4,000,000 verdict. Not settlement, verdict. The female plaintiff worked as the manager of a telemarketing department. She supervised 48 other employees. She was involved in the employer’s defense of a sexual harassment claim by another employee. She also did some investigation on her own; what she discovered is in the post. She took that information to the HR department and said she could no longer be involved in the defense. How the employer responded is in the post. A mere 2 days later, she was terminated. The reason given by the employer is in the post. She sued (what a surprise!). A verdict came back for $4M.

TAKEAWAY: Don’t hide your head in the sand when adverse information comes to light – and certainly don’t take action against someone based on that information. It could end up being a very expensive action.

Skip to content