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.

Monday, February 22, 2021

If My Office Is Closed Due To Winter Storms, Do I Get Paid?

With big storms hitting all over, even places like Texas that aren't used to snow closings, I thought I'd better re-run this ever-popular and necessary piece.

Whether you’re entitled to be paid when the office is closed depends on whether you are “exempt” salaried or not. Just being salaried doesn’t necessarily mean you aren’t entitled to overtime. It’s possible to be salaried and still non-exempt from the requirements of the Fair Labor Standards Act. Many employers misclassify employees as exempt to avoid paying overtime. If you work more than forty hours per week, it’s better to be non-exempt. But in the case of weather and emergency closings, it’s probably better to be exempt.

Exempt employees: If you’re exempt and you worked any portion of the work week, you have to be paid your entire salary, whether or not the office is closed for a natural disaster such as hurricane, snow, tornado, or flood. Further, Department of Labor regulations state, “If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.” This would include natural disasters, so if you are able to work after a storm then you must be paid even if you didn’t work any portion of the week. If you can’t get there on time or have to leave early due to the flooding but the office is open, they can’t deduct for any partial days you worked.

Vacation time and PTO: Your employer can deduct from your vacation time or PTO for the time taken. However, if you have no accrued vacation or PTO time available, they still can’t deduct from your pay if you’re exempt.

Non-exempt employees: If you are non-exempt, then your employer doesn’t have to pay for the time the office is closed. However, if your company takes deductions and you’re a non-exempt salaried employee it may affect the way overtime is calculated.

Who Is Exempt?: You’re not exempt unless you fall into very specific categories, such as executives, administrative employees, or learned professionals. Plus, your job duties must fall within those categories, not just your title. In addition, your employer must treat you as exempt by not docking your pay when you miss work. This is one of those rare times when it's better to be exempt, so it's the one time you can be glad that President Obama's overtime expansion was gutted.

Pay For Reporting To Work: If you report to work after a natural disaster, only to find out that the workplace is closed (assuming they didn’t notify you), many states have laws that require your employer to pay you a set minimum amount of time if you show up as scheduled. Florida has no such requirement and neither does Texas, (so maybe it’s a good time to start complaining to your legislators).

Disaster Unemployment Benefits: If you live in in an area declared a disaster area, you may qualify for disaster unemployment assistance. Here's where to start for Texas disaster unemployment assistance. I don't think any other areas have been declared yet, but here's where to start searching to see if you can get disaster unemployment assistance.

If you’re hit or have already been hit with a big storm, get in touch with your supervisor or manager as soon as possible to find out whether or not you’re expected to be at work. If you can’t get in touch with anyone, then only go in if it’s safe for you to do so.

Tuesday, February 16, 2021

Yes, You Probably Can Be Fired For Refusing a COVID Vaccine

 Many employers are mandating that employees get COVID vaccines, for good reason. COVID is a deadly disease that has killed hundreds of thousands of Americans and shut down many businesses. Employers want to get back to work. 

Private sector employers can likely mandate vaccines with exceptions:

Disability: Employees who have a disability that prevents them from being vaccinated will be entitled to a reasonable accommodation under the Americans With Disabilities Act and the Florida Civil Rights Act. 

Religion: Employees who have religious beliefs that prohibit vaccinations are entitled to a religious accommodation under both Title VII and the Florida Civil Rights Act. Pregnant employees whose medical professionals advise against vaccinations are also legally protected.

Other discrimination: also run the risk of a discrimination claim if they only require some, but not all, employees to be vaccinated. For instance, they cannot have a requirement that has a disparate impact based on race, age, sex, national origin or other protected status.

Liability for not mandating vaccines

On the flip side, employers who do not mandate vaccines face some potential liability for not maintaining a safe workplace. That would include both OSHA violations and potential liability to non-employees who are exposed due to the employer’s negligence, such as customers and family members of employees.

So yes, your employer can very likely fire you for refusing to get vaccinated. 

The EEOC has issued a pretty comprehensive guidance on COVID, and it includes vaccines:

K. Vaccinations

The availability of COVID-19 vaccinations may raise questions about the applicablilty of various equal employment opportunity (EEO) laws, including the ADA and the Rehabilitation Act, GINA, and Title VII, including the Pregnancy Discrimination Act (see Section J, EEO rights relating to pregnancy).  The EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.

ADA and Vaccinations

K.1. For any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (FDA), is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) a “medical examination” for purposes of the ADA? (12/16/20)

No.  The vaccination itself is not a medical examination.  As the Commission explained in guidance on disability-related inquiries and medical examinations, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”  Examples include “vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.”  If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.

Although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.  If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.”  See Question K.2.

K.2. According to the CDC, health care providers should ask certain questions before administering a vaccine to ensure that there is no medical reason that would prevent the person from receiving the vaccination. If the employer requires an employee to receive the vaccination from the employer (or a third party with whom the employer contracts to administer a vaccine) and asks these screening questions, are these questions subject to the ADA standards for disability-related inquiries? (12/16/20)

Yes.  Pre-vaccination medical screening questions are likely to elicit information about a disability.  This means that such questions, if asked by the employer or a contractor on the employer’s behalf, are “disability-related” under the ADA.  Thus, if the employer requires an employee to receive the vaccination, administered by the employer, the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.”  To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.  See Question K.5. below for a discussion of direct threat.

By contrast, there are two circumstances in which disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement.  First, if an employer has offered a vaccination to employees on a voluntary basis (i.e. employees choose whether to be vaccinated), the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary.  42 U.S.C. 12112(d)(4)(B)29 C.F.R. 1630.14(d).  If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions.  Second, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.  

The ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential.

K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)

No.  There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.  Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

ADA and Title VII Issues Regarding Mandatory Vaccinations

K.4. Where can employers learn more about Emergency Use Authorizations (EUA) of COVID-19 vaccines? (12/16/20)

Some COVID-19 vaccines may only be available to the public for the foreseeable future under EUA granted by the FDA, which is different than approval under FDA vaccine licensure. The FDA has an obligation to:

[E]nsure that recipients of the vaccine under an EUA are informed, to the extent practicable under the applicable circumstances, that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.

The FDA says that this information is typically conveyed in a patient fact sheet that is provided at the time of the vaccine administration and that it posts the fact sheets on its website.  More information about EUA vaccines is available on the FDA’s EUA page

K.5. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability? (12/16/20)

The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”  However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  29 C.F.R. 1630.2(r).  Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.  A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.  If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.  For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies. See also Section J, EEO rights relating to pregnancy.

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration.  Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense).  This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.  The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.  In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, www.askjan.org.  JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.  

Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but as explained further in Question K.7., there may be situations where an accommodation is not possible.  When an employer makes this decision, the facts about particular job duties and workplaces may be relevant.  Employers also should consult applicable Occupational Safety and Health Administration standards and guidance.  Employers can find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/.

Managers and supervisors are reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation.

K.6. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? (12/16/20)

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.  Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.  If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

K.7. What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief? (12/16/20)

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.  This does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

Title II of the Genetic Information Nondiscrimination Act (GINA) and Vaccinations

K.8. Is Title II of GINA implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination? (12/16/20)

No. Administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute. This includes vaccinations that use messenger RNA (mRNA) technology, which will be discussed more below.  As noted in Question K.9. however, if administration of the vaccine requires pre-screening questions that ask about genetic information, the inquiries seeking genetic information, such as family members’ medical histories, may violate GINA.

Under Title II of GINA, employers may not (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment, (2) acquire genetic information except in six narrow circumstances, or (3) disclose genetic information except in six narrow circumstances. 

Certain COVID-19 vaccines use mRNA technology. This raises questions about genetics and, specifically, about whether such vaccines modify a recipient’s genetic makeup and, therefore, whether requiring an employee to get the vaccine as a condition of employment is an unlawful use of genetic information.  The CDC has explained that the mRNA COVID-19 vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus of the cell, which is where our DNA (genetic material) is kept.” (See https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/mrna.html for a detailed discussion about how mRNA vaccines work).  Thus, requiring employees to get the vaccine, whether it uses mRNA technology or not, does not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information.

K.9. Does asking an employee the pre-vaccination screening questions before administering a COVID-19 vaccine implicate Title II of GINA? (12/16/20)

Pre-vaccination medical screening questions are likely to elicit information about disability, as discussed in Question K.2., and may elicit information about genetic information, such as questions regarding the immune systems of family members.  It is not yet clear what screening checklists for contraindications will be provided with COVID-19 vaccinations.

GINA defines “genetic information” to mean: 

    • Information about an individual’s genetic tests;
    • Information about the genetic tests of a family member;
    • Information about the manifestation of disease or disorder in a family member (i.e., family medical history);
    • Information about requests for, or receipt of, genetic services or the participation in clinical research that includes genetic services by the an individual or a family member of the individual; and
    • Genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology.

29 C.F.R. § 1635.3(c).  If the pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA.  However, if the pre-vaccination questions do include questions about genetic information, then employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves. 

GINA does not prohibit an individual employee’s own health care provider from asking questions about genetic information, but it does prohibit an employer or a doctor working for the employer from asking questions about genetic information.  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from their own health care provider, the employer may want to warn the employee not to provide genetic information as part of the proof.  As long as this warning is provided, any genetic information the employer receives in response to its request for proof of vaccination will be considered inadvertent and therefore not unlawful under GINA.  See 29 CFR 1635.8(b)(1)(i) for model language that can be used for this warning.

Wednesday, January 13, 2021

Can I Be Fired For Attending the Capitol Protest?

 I'm hearing a lot of muttering about free speech rights relating to the Capitol protest/attempted coup last week. A number of people have been fired by employers after storming the Capitol, and they are complaining about their rights being violated. 

So this raises the question: Can I be fired for attending the Capitol protest?

Short answer is yes, with some limited exceptions.

But if your question is: Can I be fired for storming the Capitol?

The answer is yes, yes, a thousand times yes.

The difference is attending a protest versus engaging in clearly illegal activity. Those that stormed the Capitol are guilty of crimes ranging from vandalism to burglary to sedition to felony murder, among other things, so emloyers can definitely fire you for committing a crime. Extra bonus firing if you wore company insignia while committing the crime.

For protesters who had the sense to leave when things got crazy, there are some possible protections. 

In some states, employers' threats to terminate employees based on politics may be illegal. Some states, like California, Colorado, New York, North Dakota and Louisiana, say it's illegal to retaliate against an employee for their legal off-duty participation in politics or political campaigns. California, Colorado and North Dakota also protect employees from being fired for legal off-duty activities, political or not. 

Illegal activities aren't protected at all, anywhere.

In general, remember that the First Amendment doesn't protect you at all in a non-government workplace, and government workers have little protection in such situations.

If your protesting landed you on the do-not-fly list and your job requires travel, that's a legitimate reason for employers to fire you even if there is some legal protection in your state otherwise.

In sum, all but a few of the protesters can be fired for attending last week's protest, and anyone who raided the Capitol can almost certainly be fired.

Once the insurgents are convicted, most states allow employers to discriminate against those with criminal records, so that's an extra bonus for them. 
 


Thursday, October 22, 2020

Give Yourself A Break

In these times of political turmoil and pandemic, employee stress levels are off the charts. So I'm here to tell you to give yourself a break.

Most people aren't taking their vacations this year, and I think that's a mistake. Even if it's a staycation, take some rest and relaxation time to chill, work on a hobby or catch up on reading. You don't want  to burn out. Especially now, it's a really bad time to lose your job. Stress leads to mistakes, and mistakes lead to firing.

You can also just stop doing some activities that are not absolutely necessary. That's a break in itself. As you can probably tell if you're a regular reader of this blog, I gave myself a break. I was super-stressed after lockdown for a number of reasons. So I stopped updating my Twitter feed for awhile, and stopped writing this blog for several months. Sometimes you just need to give yourself a little break from the extra stuff you do.

I've also taken one actual vacation this year, by driving instead of flying to North Carolina for two weeks this summer. We're doing it again in a few weeks. Yes, it's stressful to drive, but the change of location was worth it.

So give yourself a break. De-stress. If vacation or punting on unnecessary tasks doesn't do it for you, then you might need help. If you are paralyzed at work, prone to anger, or having thoughts of violence to yourself or others, please get help. There are counseling services offering free or low-cost services during the pandemic.

Not sure if you need help? Take an anxiety test or a depression test to find out. You aren't alone. Many of us are suffering right now. Do what you need to feel better.

Thursday, October 15, 2020

Can I Be Fired Because Of My Political Beliefs?

 It's election time, and in these emotionally-charged times there are lots of disputes arising in the workplace over politics. Can you be fired because of your political beliefs? Maybe. It depends on where you live. 

Here are some things employers can't do during this political season:

Limit Discussions On Which Candidates Would Improve Working Conditions: While employers can certainly prohibit general political discussions and political campaigning at work, the National Labor Relations Act says that private employers cannot prohibit discussions about workplace conditions. Therefore, if employees discuss an employer's lengthy email about why a candidate is better for them as workers, then the employer can't fire employees who voice that the employer's email is full of misleading and incorrect information and that the other candidate is very clearly the better choice for working Americans. On the other hand, employers can force you, as a captive audience, to attend meetings and listen to one-sided political pitches on behalf of candidates unless you live in Oregon, which has the Worker Freedom Act. New Jersey has a similar law.

Discriminate Based On Political Affiliation: Not all states have laws prohibiting this, but many do. States that don't have such laws may have county or city ordinances that specifically prohibit political affiliation discrimination. California, Colorado, New York, North Dakota and Louisiana say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns. Here in Broward County, it's illegal to fire employees based upon political affiliation. If you work for government, there's the good old First Amendment to protect you. Plus, the Civil Service Reform Act of 1978 prohibits political affiliation/activity discrimination against federal employees.

Discriminate Based on Race, Sex, Religion, National Origin, Etc.: If your employer limits political discussions by some, but not all employees, then they may run afoul of discrimination laws. Much of today's partisan politics is about religion, for instance. Women's issues and racial issues are hot topics in this political season. The presidential candidates are of two different religions. The vice presidential candidates are of different races and sexes. If your employer wants only one point of view expressed in your private sector job, the First Amendment won't help you but discrimination laws might. On the other hand, if you express racist or sexist views that reveal your propensity to engage in discrimination, your employer probably has a duty to fire or discipline you to protect coworkers.

Prohibit Labor Union Insignia: While employers can prohibit wearing of most political buttons, shirts and other campaign items, it can't prohibit union insignia. They could probably, for instance, prohibit a button that says, "Biden," but not one that says, "UNITE HERE for Biden."

Reimburse You For Political Contributions: If your employer says you should write a check to a candidate and agrees to reimburse you for it, they are breaking the law and could even go to jail.

Prohibit Time Off to Vote: Most states, but not all, require employers to let you take time off to vote.


State Laws That Might Help

In some states, employers' threats to terminate employees based on politics may be illegal. For instance, in Michigan, the laws prohibit direct or indirect threats against employees for the purpose of influencing their vote. It also prohibits tracking of political activity.

In Ohio, West Virginia, Pennsylvania and Kentucky, employers are prohibited from posting or handing out notices threatening to shut down or lay off workers if a particular candidate is elected.

In Oregon, it's illegal to threaten loss of employment in order to influence the way someone votes.

In Washington State, it's illegal to retaliate against employees for failing to support a candidate, ballot position or political party.

Some states, like California, Colorado, New York, North Dakota and Louisiana, say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns.

In Florida, it's a felony to "discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people."

In general, remember that the First Amendment doesn't protect you in a non-government workplace. Most states have no legal protection against political firings. So most employees have little or no legal protection.
  
Be careful out there, and don't forget to vote.

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.