Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Thursday, May 28, 2020

No, Small Employers Are Not Exempt from CARES Act Leave

I'm hearing about lots of employers with fewer than 50 employees claiming that it is their choice whether to grant CARES Act emergency sick leave or FMLA. That is simply incorrect. Employers with fewer than 500 employees have to comply with the CARES Act leave requirements. However, there are some exemptions allowed to employers with fewer than 50 employees that aren't given to larger employers.

Per the Department of Labor, in order to deny CARES Act sick leave or FMLA, the employer must be able to prove:
(1) Such leave would cause the small employer's expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;  
(2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or  
(3) the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.  
For reasons (1), (2), and (3), the employer may deny paid sick leave or expanded family and medical leave only to those otherwise eligible employees whose absence would cause the small employer's expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity, respectively.
These exemptions will not apply to most employees, so beware denying leave to  employees who don't fit these criteria. If a small employer decides to deny paid sick leave or expanded family and medical leave to an employee, the small employer must document the facts and circumstances that meet the criteria to justify the denial.

All covered employers are required to post this poster describing CARES Act rights.

Frankly, covered employers who deny this leave are pretty idiotic because they get dollar-for-dollar tax credits for all wages paid under this leave. 

For more on the leave requirements and penalties for violations, see the DOL website here.

Thursday, April 30, 2020

COVID-19 Makes The Need For Unions Clear

Due to coronavirus, millions of Americans have been laid off and more layoffs are coming. The global pandemic has made the need for unions crystal clear. Unions all over the U.S. have valiantly been fighting for workers.

Here is just some of what unions have done to help their members during the pandemic:



Unionize now

Bottom line is that our country has almost no social safety net left and very few protections for workers. Those working in non-unionized workplaces have little or no protection. Unions are necessary to balance power between workers and management. It isn't too late if your workplace doesn't have a union. How about taking the time during your furlough or layoff to start looking into unionizing when you get back to work?

The first thing I'd suggest is talking to a union about how to unionize. They have organizers who can help you. Find the union that matches your workplace. There are unions for just about any kind of work you can imagine. I wrote an article here about how to start a union. More useful information on how to form a union can be found here, here and here. If you find a union you are interested in, they may have their own how-to page on their website. There are laws about what is allowed, so don't just try to unionize without getting some help from a union.


Thursday, April 2, 2020

Disability Discrimination and Accommodations During Coronavirus Pandemic

The good news is, disability discrimination is still illegal. I'm seeing employers laying off or firing employees because they think they'll be a liability or are at risk because of COVID-19. That's flatly illegal and wrong.

EEOC has issued a pandemic guidance that answers some of the many questions employers and employees have regarding the interplay between the Americans With Disabilities Act and coronavirus. Here are some answers to some common questions.

Is my employer allowed to take my temperature? Normally, no. It's a medical examination. The ADA prohibits employee disability-related inquiries or medical examinations unless they are both job-related and consistent with business necessity. EEOC says, "Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:
  • An employee’s ability to perform essential job functions will be impaired by a medical condition; or
  • An employee will pose a direct threat due to a medical condition."
In EEOC's summary What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, they say: "Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever."

So short answer, yes, during this pandemic, they can take your temperature.

Can my employer ask about my symptoms?: Normally, they are not allowed to ask information that will lead to the disclosure of a disability. That changes during the pandemic. Based upon the above, yes, they can ask if you have any coronavirus symptoms.

I have a disability that makes me more likely to die or be hospitalized from COVID-19. Can I stay home? You could have your doctor fill out FMLA paperwork (regular, not the new emergency FMLA) and/or put in for a reasonable accommodation for your disability under the Americans With Disabilities Act. Both of those are still in effect and should apply to you.

If you stay home you may be entitled to paid sick time.

Federal, state and local governments are constantly issuing new rules on who has to stay home, which businesses are essential, and what benefits workers may get, so stay tuned and I'll try to update you on major changes.

Wednesday, March 25, 2020

Yes, Age Discrimination Is Still Illegal In A Pandemic

Things you didn't think you had to say but apparently do: age discrimination is still illegal. Doh! Apparently some employers are freaking out right now due to the coronavirus pandemic and firing or laying off older employees to "protect" them.

No. No. No.

You cannot, I repeat, cannot take any action against someone due to their age. I don't care if you think it's for their own good. Unless the government orders otherwise, forcing someone to go on leave, firing them, demoting them, laying them off, if done because of their age, is illegal.

I am seeing this already, and while I'd like to make a boatload of money because employers are being idiots, I'd much rather see my clients keep their jobs and keep their insurance during this difficult time.

So cut it out.

Now, let's talk about the flip side. I'm also seeing older employees wanting to take leave or work remotely due to COVID-19. Laws that still apply are FMLA and the Americans With Disabilities Act.

So if your doctor gives you a note saying a reasonable accommodation for a disability is remote work or a leave of absence, the employer should grant it. And if your doctor will fill out FMLA paperwork for you saying you need a leave of absence, and your company has at least 50 employees within 50 miles, and you've worked at least a year; or if your doctor thinks you fit in the temporarily expanded FMLA, and your company has fewer than 500 employees, and you've worked at least 30 days, you should be entitled to take that leave.

But just age alone doesn't entitle you to any accommodation, so without any doctor's note, the only other thing that will help you is if the employer is making you work in dangerous conditions without protective gear, report them to OSHA.

There may be more laws and ordinances that come out as this thing progresses, but that's where we are now.

Monday, March 23, 2020

New Paid Sick Leave And Family Leave Law For Coronavirus

Well, bowl me over. Finally, a somewhat pro-employee law is signed into law, and all it took was a global pandemic. The Families First Coronavirus Response Act (P.L. 116-127) became law on March 18, 2020.

Emergency Family and Medical Leave Expansion: If you are unable to work (or telework) due to a need for leave to care for your son or daughter under 18 years of age if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, and your employer has fewer than 500 employees or is a public agency, and you've worked at least 30 calendar days for the employer, then you qualify for up to 12 weeks of FMLA, and your job is legally protected. 

Now don't get me started on why Amazon is exempt and tiny businesses aren't. That's the power of lobbying. But hey, at least it's a start. 

You still have regular FMLA if you need to care for a sick family member, which applies to employers with 50 or more employees in a 75 mile radius of your location and you've worked at least a year. 

Unlike regular FMLA, they have to pay you, not less than two-thirds of your regular pay, up to $200/day and a maximum of $10,000 total. The first 10 days taken may be unpaid, but you may use other paid leave during that period, such as accrued vacation leave, personal leave, or medical or sick leave for unpaid leave. 

Which brings us to . . .

Emergency Paid Sick Leave:  You are entitled to up to two weeks of paid sick leave if you are unable to work or telework because of:
  • a quarantine or isolation order
  • have been advised by a healthcare provider to self-quarantine
  • have symptoms and are seeking a diagnosis
For the above, you get your regular pay up to $511/day and $5,110 maximum.
  • are caring for someone with any of the above, are caring for a son or daughter if the school or place of care of the son or daughter has been closed or the child care provider of your son or daughter is unavailable due to COVID-19 precautionsor, or
  • if you are experiencing any other "substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor."
For these, you get two-thirds of your regular pay, up to $200/day and $2,000 maximum.

This applies, again, if your employer has fewer than 500 employees or is a public agency, but there's no minimum period of employment.

Your employer can't demand you find a replacement, they can't make you use other sick or vacation time, and they can't discharge, discipline, or take other discriminatory action against you for taking this leave.

Caveats

If your employer is a health care provider or an emergency responder, they don't have to comply with any of this if they don't want to. The exemption is automatic for the paid sick leave and will be subject to a regulation exempting them for the FMLA. Employers with under 50 employees may also be exempt from the sick leave under some circumstances.

There may be more coming down the road. Some states are enacting more protections. And the federal government is allowing states to expand unemployment compensation at the federal government's expense. Of course, Florida has done nothing so far to help employees. But hey, miracles happen, as is evidenced by this new law. 

Stay safe and stay home if you can!

Friday, March 13, 2020

22 Signs You're About To Be Laid Off

Sometimes a layoff takes employees by surprise. But there are usually signs, if you are paying attention. Here are some signs the company may be cutting back:

  • Paychecks bounce or are late: If your paycheck bounces or is late once, okay, maybe a glitch. But if it happens more than once, it's fair to assume the company is in trouble. Don't let them get further and further behind. If they aren't paying you, start looking and get the heck out of there.
  • Vendor checks bounce or are late: If vendors start complaining they haven't been paid, the company is probably  having financial trouble.
  • Job postings: It's good to keep track of company job postings. If you see a posting that looks suspiciously like your job, but it has a different title or lower pay, you are probably going to be "eliminated."
  • Out of the loop: If you're suddenly excluded from meetings, told to hand over information about your projects to someone else, they suddenly want you to describe from A to Z every single thing you do and how, or they suddenly want you to turn over all your business contacts, you're probably about to be replaced.
  • Budget cuts: A company in trouble may cancel projects or put projects on hold, start watching every single paper clip bought, or limit business travel and entertainment. Maybe that coffee quality drops or is eliminated. Free sodas and snacks disappear. That's a sign there's financial trouble.
  • Losses or revenue drops: If you have access to the company financials, some big losses, a major customer loss, or a severe or lengthy drop in revenue can signal long term financial trouble. If the company's product becomes the equivalent of a horse buggy, if a big product flops or fails to launch, if there's bad press, if the stock price drops, the company is in trouble.
  • Hiring freeze: When anyone leaves, someone else has to absorb their job. Double the work for the same pay. Fun! Time to start looking.
  • Supervisors are leaving: If your boss gets laid off or leaves, it may be time to look elsewhere. A new boss could want their own team, and many times bosses leaving can signal financial or other trouble in the department. If your bosses start taking their personal items home, that's a sign they're headed out.
  • Whispers and closed door meetings: If management starts having secret meetings or whispering, there is something afoot. It probably isn't good. 
  • Reassignments and restructuring: If entire teams starting being reassigned, positions restructured, even if it isn't your department yet, that's a sign there is some trouble brewing.
  • You lose access to email: If your password stops working for emails and other company documents, it's possible HR had a miscommunication with tech about when to pull the trigger. It may well not be a glitch. If you ask about it and there seems to be a lot of confusion and stammering, you're already gone.
  • Training: You're told to train a new employee in every aspect of your job. That's your replacement.
  • Won't look at you: If management or even coworkers suddenly can't look you in the eye, avoid you, or stop talking when you're nearby, you're being let go.
  • They used the words: If bosses start discussing or hinting about layoffs, restructuring, cutbacks, outsourcing, offshoring, or other similar terms, believe them.
  • Prior layoffs: If there has been a round (or more) of layoffs already, assume you could be next.
  • Conference rooms booked: If all the conference rooms are booked, especially if by HR, and even more especially if tissue boxes appear in them, a mass layoff is coming.
  • Security: If security guards start appearing, or if there is a sudden police presence, today is possibly layoff day.
  • Boss gets weird: If your boss starts acting odd, gives you a bad vibe, loses interest in your projects, looks uncomfortable, they may know something you don't about your future.
  • Raises on hold: If the company freezes wages, that's a sign there's financial trouble.
  • They tell you: If you have write-ups or disciplines, you are on notice you might lose your job. If they send you a WARN notice, there's definitely going to be a layoff.
  • Merger or acquisition: If your company is merging or being gobbled up by another company, there will be consolidations and cutbacks. This is always a very risky time.
  • HR wants to meet: If you're called into a meeting with HR, and they don't tell you what it's about, you may be getting let go at that meeting.


With some of these, you have enough warning to start looking elsewhere. If you are blindsided, just listen and take in the information. Don't do anything drastic or sign a severance agreement. Ask for copies of anyting they want you to sign and read carefully. Take to a lawyer if you don't understand or think you have potential claims.





Friday, February 28, 2020

What Are Your Employee Rights Regarding Coronavirus?

I've shuddered everytime I've read about another coronavirus quarantine, because I assume lots of folks are losing their jobs when they don't return from vacation. So what are your rights if you're quarantined? What are your rights if you get coronavirus? And what are your rights if your coworkers have coronavirus? Well, there are few certain answers, but there are some laws that might help:

State laws on paid sick leave: Some, not a majority, of states require employers to offer paid sick leave. Anti-employee Florida has no such law.

FMLA: If you've worked at least a year and your employer has at least 50 employees within 75 miles of your work location, you may qualify for FMLA. If you're sick with coronavirus, you have a serious medical condition that is almost certainly covered. However, if you're quarantined but not sick, it's less clear. The only case I found regarding quarantine and FMLA was regarding an employee who was actually sick. If the quarantine is in a hospital or medical facility, then it may be covered under the inpatient section of FMLA. There’s also a continuous treatment provision, protecting “any period of absence to receive multiple treatments by a health care provider…for a condition that would likely result in a period of incapacity of more than three consecutive full calendar days in the absence of medical intervention or treatment.” So if the quarantine requires repeated medical testing, then I think there’s a good argument FMLA applies. If you do qualify, then you get up to 12 weeks of leave, paid to the extent you have accrued vacation or sick time, the rest of the time unpaid. And your job is protected when you return.


OSHA: Employers that make workers come in with coronavirus may be violating OSHA regulations. Here’s what OSHA says about coronavirus:
There is no specific OSHA standard covering COVID-19. However, some OSHA requirements may apply to preventing occupational exposure to COVID-19. Among the most relevant are: 
OSHA's Personal Protective Equipment (PPE) standards (in general industry, 29 CFR 1910 Subpart I), which require using gloves, eye and face protection, and respiratory protection. 
When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard (29 CFR 1910.134). 
The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1), which requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 
OSHA’s Bloodborne Pathogens standard (29 CFR 1910.1030) applies to occupational exposure to human blood and other potentially infectious materials that typically do not include respiratory secretions that may transmit COVID-19. However, the provisions of the standard offer a framework that may help control some sources of the virus, including exposures to body fluids (e.g., respiratory secretions) not covered by the standard.
State quarantine laws: There are laws in some states, not Florida of course, protecting employees from being discharged due to complying with a quarantine.


Violation of public policy: While Florida, being the anti-worker state it is, has no such protection, many states have a claim for wrongful termination in violation of public policy. So if your state has decided public policy would require coronavirus victims to stay home, this might protect you from termination.

Disability discrimination: It's unlikely that coronavirus will be considered a disability, but if you are unfortunate enough to end up with a chronic condition from it, you may be protected under state and federal disability discrimination laws.

Unfortunately, many workers are not protected by any laws in case of a pandemic. Most won't get paid leave. Most don't have job protection. If I had a magic wand I'd make Congress and the Senate and the President stop squabbling and pass a law protecting workers in a pandemic. Otherwise, nasty bosses will require sick workers to come in or be fired, or sick workers who can't afford time off will work, and the virus will spread. With something like a 1 - 3% mortality rate, coronavirus could make a big dent in a large company, and could decimate a small one, so bosses should think before being jerks about sick time.