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 9/27/20, we read about 5 common virus-related employment claims to know. First, discrimination claims. Now, this mostly concerns who to bring back or rehire. Just saying “COVID” is insufficient – there must be a valid, legal basis for all employment decisions (and, preferably), have written support for same). Keep in mind the things noted in the post when making these decisions. If it is a question of termination due to lack of need, then consideration should be given to a severance or separation agreement. Some things to consider as part of any such agreement are in the post. The second area to think about is workplace safety claims. Yes, each business should have in place a pandemic plan including, at the very least, social distancing, face coverings and health screenings of some type. But there is a myriad of local, state and federal guidance with which an employer may need to comply, and employees may be quick(er) to complain about non-compliance. Some examples, including a recent court case are in the post. Other areas are retaliation and whistleblower claims, employee leave claims, and federal or state WARN Act claims, all of which are addressed in the post and include cases that have been filed recently.
TAKEAWAY: Most employers try to do their best and protect employees, but it still may not prevent the filing of suit – consult an employment lawyer to make your case before you need to.
The post on Monday 9/28/20 was about whether the pollution exclusion bars insurance coverage for injuries arising out of viruses and bacteria. This is so important to so many people with closures due to COVID-19. Many insurance policies exclude coverage for viruses or bacteria and thus probably do not cover injuries from COVID. However, others don’t have that specific exclusion, but do exclude injury from pollution, so the question is whether that too bars coverage for COVID-related claims. The key may well be the definition of pollution as noted in the post. There have been some court cases in this area. A federal court in FL in 2009 dealt with an injury resulting from a virus in the community association’s swimming pool; how the exclusion was analyzed there is in the post. Likewise, in 2013 a federal appellate court has also addressed the issue. In the case noted in the post, the bacteria at issue was held not to be within the pollution exclusion, but for the reason noted in the post. There are several other cases in FL that have addressed the issue – they are noted in the post. They can form a guide to you if you need to make an insurance claim for injury due to COVID-19.
TAKEAWAY: Your insurance policy is a legal contract – get legal assistance in interpreting whether its provisions exclude coverage of injury due to COVID.
The post on Tuesday 9/29/20 told us the EEOC sued Red Roof Inn for disability discrimination. Why? A visually impaired employee at the hotel’s call center asked about a promotion. Red Roof Inns didn’t even let him find out more about the promotion (or apply for it). What they said as the reason is in the post. The EEOC characterized that response as “reckless indifference to the qualified employee’s federally protected rights”. The EEOC filed suit on behalf of the employee, requesting back pay and compensatory and punitive damages and more as noted in the post.
TAKEAWAY: When the need to accommodate arises, don’t reject it out of hand – you must at least try to accommodate before saying no as an undue hardship.
The post on Wednesday 9/30/20 we saw that an Association charged a homeowner $1,000 for trimming a neighbor’s bushes. Here the owner wanted to help out the homeowners’ association by doing some yard work. They didn’t see it the same way. Cutriss thought the bushes badly needed a trim. What he did before trimming them is in the post. Then he took action. The HOA then sent him a bill for $1,075, asserting the bushes he trimmed had to be removed and replaced because of how he cut them. The HOA didn’t comment, but other neighbors did – and what they said is in the post. Why the assessment was a serious problem for Curtiss is because of applicable law (see the post for an explanation).
TAKEAWAY: Know what you can and cannot do according to your association’s Declaration, Bylaws, Rules-Regulations, and applicable state law. Contact a community association lawyer for advice and guidance – before you take action that cannot be undone without great cost.
In the post on Thursday 10/01/20 we saw that Rural/Metro Corp / American Medical Response was sued by the EEOC for pregnancy and disability bias. The employer here is a company that provides emergency and non-emergency medical transport. The employee worked for the company as an EMT when she was pregnant. She started to have severe medical complications (including those noted in the post) and asked for light duty as an accommodation. She didn’t think it would be a big issue since the employer accommodates employees unable to temporarily perform regular duties. Boy was she wrong? Why? Well, the employer’s rationale is in the post (and wrong, evidenced by the EEOC suit). And that wasn’t all the employer did – see the post.
TAKEAWAY: Don’t discriminate against pregnant employees, but do work with them to see if the problem arising from the pregnancy can be accommodated.
The post on Friday 10/02/20 taught us that employers are not required to allow post-virus to telework per the EEOC. Yep. One might think that because employees were allowed to telecommute during (or based on) COVID, that telecommuting would automatically be an accommodation for disabled workers going forward. Not so, according to recent EEOC Guidance. The Guidance was emphatic on this point – see the post. And the rationale for that guidance makes sense under the requirements of the ADA – again see the post. However, keep in mind that how an employee performed during COVID while telecommuting must be factored into any later accommodation request; see the post for more detail.
TAKEAWAY: Employers still have an obligation under the ADA to reasonably accommodate an eligible employee when asked, but the things to consider as part of the accommodation process may have changed a bit under the COVID landscape. Get assistance from an employment lawyer.
Finally, in the post yesterday 10/03/20, we asked: Are employer’s Facebook recruiting practices exempt from age discrimination laws? Hopefully you know that employers using FB or other social media should be careful as to where and how they advertise open positions. A lawsuit filed in 2017 is why. It is a class-action suit that alleges T-Mobile’s Facebook recruitment practices violate the ADEA (along with CA laws). But it’s not just T-Mobile, its Facebook’s algorithm, and that may implicate so many other big corporations such as those listed in the post. In the pending suit, Linda, who had worked at a call center for 20 years and was age 45, was laid off. She went to Facebook looking for work. Her result was at odds with that of her daughter, age 26. She got some advice (see the post) and discovered what was happening (laid out in the post). This case may answer the question of whether the ADEA bars disparate treatment in recruiting (something left open by the Supreme Court’s 2019 refusal to hear a case finding no discrimination under the ADEA when external applicants were limited to a set number of years’ experience when other federal courts found to the contrary). So how is Facebook involved? It’s business model lets advertisers target an audience. But does that make Facebook liable for the purpose for which others use that ability (such as illegal age discrimination)? That question brings into the mix other federal laws also, such as that identified in the post. This isn’t Facebook’s first brush with this type of suit – it settled an earlier one as noted in the post.
TAKEAWAY: No matter how they go about it, employers should not discriminate on the basis of age in the hiring, discipline, or firing of employees. Period.
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