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.

Wednesday, December 1, 2021

Florida and Feds in Vaccine Mandate War - So Far Florida Wins

 I posted previously about OSHA's vaccine mandate. Now, OSHA has temporarily suspended enforcement, due to the 5th Circuit Court of Appeals' entry of a temporary injunction against enforcement. OSHA will appeal, but in the meantime, states like Florida are hurrying to implement let's-kill-our-constituents laws to ban vaccine mandates.

Florida has passed a law banning private corporations from mandating vaccines in the workplace unless they allow exceptions for religion and disability, mask-wearing, having immunity, periodic testing, and pregnancy (federal law already has exemptions for religion, disability and pregnancy):

 A private employer may not impose a COVID-19 96 vaccination mandate for any full-time, part-time, or contract employee without providing individual exemptions that allow an employee to opt out of such requirement on the basis of medical reasons, including, but not limited to, pregnancy or anticipated pregnancy; religious reasons; COVID-19 immunity; periodic testing; and the use of employer-provided personal protective equipment. 

The law details how to claim each exemption, and imposes fines on employers for noncompliance.

In the meantime, there is also the issue of mandates for healthcare workers. So far, the Administration has continued to enforce such mandates. The Supreme Court refused to enjoin enforcement. However, the 5th Circuit, which does not include Florida, did enjoin enforcement in 10 states, and another court which enjoined enforcement in Kansas. If resisting vaccine mandates for healthcare workers isn't the most idiotic and dangerous thing I've ever heard of, it's close. I certainly don't, as a consumer/patient, want any healthcare worker who isn't vaccinated anywhere near me.

Then there's the mandate for federal contractors. One court has enjoined enforcement in Ohio, Kentucky, and Tennessee.

So, there's a mishmash of state laws, and there are a bunch of folks challenging every single vaccine mandate. Vaccines save lives, so the folks pushing these challenges are going to get people killed. But right now, it looks like the mandates are losing. 

Hopefully the Supremes will decide that the federal government does indeed have the right and duty to protect its citizens. Otherwise, anti-vaxers will start challenging other vaccines. Welcome back polio, smallpox, and other diseases we thought were gone. 

Let sanity commonsense prevail.

Friday, November 5, 2021

OSHA Requires Vaccines or Testing For Employees of Large Employers

 OSHA has issued an emergency temporary standard to address COVID in the workplace. This standard is in addition to the previously-issued guidelines on mitigating COVID. The emergency standard applies only to workplaces with 100 or more employees, whereas the guidelines apply to all employers. However, the standard is mandatory and the guidlines are just recommendations for best practices. A summary of the standard is here.

When does it start: I keep seeing articles saying the standard doesn't start until January 4, but I believe this is only partially correct. It says this about when it starts:

The ETS is effective immediately upon publication in Federal Register [this will be November 5]. To comply, employers must ensure provisions are addressed in the workplace by the following dates: 

  • 30 days after publication: All requirements other than testing for employees who have not completed their entire primary vaccination dose(s)
  • 60 days after publication: Testing for employees who have not received all doses required for a primary vaccination 
So, as I read this, all requirements other than the testing kick in on December 5, and the testing requirement starts January 4.

Preemption: This standard preempts state and local laws to the contrary. So it should immunize employers from Florida and other states' penalties for demanding proof of vaccines.

No retaliation or discrimination: Employers are prohibited from discharging or in any manner discriminating against any employee for reporting a work-related injury or illness; from discriminating against employees for exercising rights under, or as a result of actions required by, the ETS; and from retaliation for filing an occupational safety or health complaint, reporting a work-related injury or illness, or otherwise exercising any rights afforded by the OSH Act.

Here's what the standard requires no later than December 5:

Vaccine policy: Employers must have a mandatory vaccine policy that allows employees to opt out, but requiring employees opting out to be tested weekly and to mask.

Vaccine status: Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.

Paid time off: Employers must give 4 hours paid time off to obtain the vaccine and "reasonable" paid time off/sick leave to recover from side effects of the vaccine.

Notification of positive test: Employers must: (1) require employees to promptly provide notice when they receive a positive COVID19 test or diagnosis; (2) immediately remove any employee with COVID from the workplace, regardless of vaccination status; (3) keep removed employees out of the workplace until they meet criteria for returning to work.

Masks for unvaccinated: Employers must require unvaccinated employees to wear masks that cover both nose and mouth when indoors or when occupying a vehicle with another person for work purposes. A face shield can be worn in addition to a mask, but not instead of. The employee can wear a respirator instead of a mask.

No mask prevention: Employers must allow any employee, customer, or visitor, vaccinated or not, to wear a mask unless a mask would create a serious workplace hazard such as interfering with the functioning of equipment.

Information to employees: Employers must provide employees, in a language and at a literacy level the employees understand: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know AboutCOVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Records available to employees: Employers must make available to the employee or a representative the employee's vaccine documentation and test results. Even more interesting, employers have to make available to employees or representatives the aggregate number of fully vaccinated employees at the workplace along with the total number of employees at that workplace.

Here's what the standard requires no later than January 4:

Weekly testing for unvaccinated: Employers must mandate employees who aren't vaccinated to have weekly COVID testing. Employers do not have to pay for this testing. 

This means that low income employees will have few options, even if they qualify for a disability or religious exemption. The vaccine is free, but testing is not. Employers can voluntarily assume the costs, but don't have to, with exceptions. 

Employment agreements could require employers to pay for testing. Unions may have collective bargaining agreements that require employers to pay, which is another great argument for unionizing. 

There could also be state and local laws requiring employers to pay. Not in Florida, of course, because the Florida legislature and governor aren't about to help employees anytime soon.

For information on what exemptions apply and whether you can be fired for refusing to be vaccinated, see my post Can My Employer Make Me Get Vaccinated?

Wednesday, July 21, 2021

Loss Prevention Is Lying To You

I posted this about a decade ago, and apparently it still needs to be said so I'm reposting and updating it. 

So you're called into the back room. It's a tiny one with no windows and only one door. In the room is someone who identifies himself as being from Loss Prevention. He seems so nice. He tells you he's there to help you save your job. If you only tell him what he wants to hear, you can go back to work.

He's lying! Don't fall for it. Everything you say can and will be held against you. Be careful.

He asks you some questions that make it clear you're being accused of doing something wrong. Maybe it's stealing from the company. Maybe just punching in wrong. Maybe giving unauthorized discounts. Maybe a violation of some policy. He says he's trying to help you, so you tell him everything. Yes, you did use a plastic spoon from the deli and didn't pay for it. Yes, your boss gave you a candy bar and said it was going to be destroyed anyhow, so you took it and ate it. Yes, you used your employee discount to buy something for your best friend. Yes, you forgot to punch in, so you went in and wrote down your best estimate of the time you came in.

That wasn't very careful, was it? You've just confessed to doing something wrong. Maybe even a crime. But he's so nice. He tells you the only way you can save your job is to write down everything he tells you to write.

He's really lying now. Say no! Tell him that you will be glad to write your own statement in your own words, and tell him you'll provide it to him the next day. If he says you need to write what he says or be fired, you're already gone. Don't believe him for one teeny, tiny second.

He tells you to write down what you did, only the way he puts it sure makes it sound worse than it was. He conveniently leaves out how your boss told you to do it or said it was okay. He leaves out how others of, say a different race or sex, do it all the time and suffer no consequences. He has you write down that you understand you violated company policy. Maybe he even has you write down that you agree to pay the company some amount of money. Then he tells you to sign it.

Tell him to pound sand. Do not do this. If you do it, you're fired, and possibly arrested.

Let's say you believe this guy and write it all down. What's going to happen next? He grabs it, maybe leaves the room for a couple minutes, then tells you that you're fired. You're escorted out like a criminal.

If you are called into a meeting with Loss Prevention, that's a meeting where you need to be very aware that you are being accused of doing something wrong and you're probably being fired. They are not your friend. When in doubt, tell them you want to leave and speak to an attorney. Yes, they can fire you for leaving, but that's way better than admitting to something you didn't do, or admitting to a crime. You can always write up your response to the accusations calmly after you've had a chance to think straight later and send them to HR.

Never, ever admit to something you didn't do. Anyone who tells you doing so will save your job is lying to you.

Wednesday, July 14, 2021

Biden Moves To Curtail Noncompete Agreements, But They Aren't Illegal (Yet)

 I've had some clients get very excited about the news that President Biden's new executive order seeks to curtail noncompete agreements. And it is exciting. It just isn't a magic wand that made noncompete agreements suddenly disappear. Here's what it says about noncompetes:

Section 1. Policy.

A fair, open, and competitive marketplace has long been a cornerstone of the American economy, while excessive market concentration threatens basic economic liberties, democratic accountability, and the welfare of workers, farmers, small businesses, startups, and consumers.

The American promise of a broad and sustained prosperity depends on an open and competitive economy. For workers, a competitive marketplace creates more high-quality jobs and the economic freedom to switch jobs or negotiate a higher wage. For small businesses and farmers, it creates more choices among suppliers and major buyers, leading to more take-home income, which they can reinvest in their enterprises. For entrepreneurs, it provides space to experiment, innovate, and pursue the new ideas that have for centuries powered the American economy and improved our quality of life. And for consumers, it means more choices, better service, and lower prices.

Robust competition is critical to preserving America’s role as the world’s leading economy.Consolidation has increased the power of corporate employers, making it harder for workers to bargain for higher wages and better work conditions. Powerful companies require workers to sign non-compete agreements that restrict their ability to change jobs. And, while many occupational licenses are critical to increasing wages for workers and especially workers of color, some overly restrictive occupational licensing requirements can impede workers’ ability to find jobs and to move between States.

. . . 
Sec. 5. Further Agency Responsibilities.

(a) The heads of all agencies shall consider using their authorities to further the policies set forth in section 1 of this order, with particular attention to:

(i) the influence of any of their respective regulations, particularly any licensing regulations, on concentration and competition in the industries under their jurisdiction; and(f) To better protect workers from wage collusion, the Attorney General and the Chair of the FTC are encouraged to consider whether to revise the Antitrust Guidance for Human Resource Professionals of October 2016.

. . .

(g) To address agreements that may unduly limit workers’ ability to change jobs, the Chair of the FTC is encouraged to consider working with the rest of the Commission to exercise the FTC’s statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.

As you can see, the President is asking the FTC and other agencies to look into curtailing the use of noncompete and other anti-competitive agreements and practices. But he didn't make them disappear with the stroke of a pen. First, there will be new agency regulations. Then there will be litigation, because noncompetes are generally governed by state law, which doesn't just go away. So, for now, assume that your noncompete agreement will be vigorously enforced by your employer and govern yourself accordingly. 

Yes, there are defenses to noncompete agreements. The one thing they are not allowed to be used for is preventing competition (yes, I know that's what they're called and what they're actually being used for, but this would violate antitrust laws). Employers have to have legitimate reasons other than preventing competition, like protecting trade secrets, customer goodwill, specialized training not generally available, etc. if they want to enforce noncompetes. The laws vary by state, so talk to a lawyer in your state if you have questions about a noncompete agreement.

Wednesday, June 30, 2021

Can My Employer Make Me Get Vaccinated?

This is a question I get a lot these days. Yes, employers can force employees to be vaccinated, with exceptions. Some exceptions that come to mind are religious, disability, and pregnancy. 

Yes, employees can be terminated for refusing to vaccinate, unless they fall within a legal exception. If they do fall within an exception, then the issue will be whether there is a hardship on the employer. If the employer can prove there is a hardship, they may still be able to terminate, even with an exception.

Same answer on hiring. However, employers aren’t going to be allowed to ask potential employees if they are vaccinated during the interview process. I believe this will play out similarly to any other medical issue. What I think will happen is the employers will be able to make a conditional offer of employment, and then the employee will have to disclose whether or not vaccinated, and whether or not there is an exception.

The EEOC has issued a pretty comprehensive guidance on COVID, and it includes vaccines. It addresses issues like disabilities, etc. For instance:

Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? 

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.

 Florida has banned some businesses from demanding proof of vaccinations from employees. I believe some other red states have done so as well. SMH. In other states without the ban, employers may be allowed to demand proof. 

Even Florida doesn't seem to have banned all employers from demanding proof. The statute says:

381.00316 COVID-19 vaccine documentation.—
1122 (1) A business entity, as defined in s. 768.38 to include
1123 any business operating in this state, may not require patrons or
1124 customers to provide any documentation certifying COVID-19
1125 vaccination or post-infection recovery to gain access to, entry
1126 upon, or service from the business operations in this state.
1127 This subsection does not otherwise restrict businesses from
1128 instituting screening protocols consistent with authoritative or
1129 controlling government-issued guidance to protect public health.
1130 (2) A governmental entity as defined in s. 768.38 may not
1131 require persons to provide any documentation certifying COVID-19
1132 vaccination or post-infection recovery to gain access to, entry
1133 upon, or service from the governmental entity’s operations in
1134 this state. This subsection does not otherwise restrict
1135 governmental entities from instituting screening protocols
1136 consistent with authoritative or controlling government-issued
1137 guidance to protect public health.
1138 (3) An educational institution as defined in s. 768.38 may
1139 not require students or residents to provide any documentation
1140 certifying COVID-19 vaccination or post-infection recovery for
1141 attendance or enrollment, or to gain access to, entry upon, or
1142 service from such educational institution in this state. This
1143 subsection does not otherwise restrict educational institutions
1144 from instituting screening protocols consistent with
1145 authoritative or controlling government-issued guidance to
1146 protect public health.
1147 (4) The department may impose a fine not to exceed $5,000
1148 per violation.
1149 (5) This section does not apply to a health care provider
1150 as defined in s. 768.38; a service provider licensed or
1151 certified under s. 393.17, part III of chapter 401, or part IV
1152 of chapter 468; or a provider with an active health care clinic
1153 exemption under s. 400.9935.
1154 (6) The department may adopt rules pursuant to ss. 120.536
1155 and 120.54 to implement this section.

So, as I read this, Florida government employers and educational institutions may not demand proof of vaccination from employees, but private employers may ask employees for proof (but possibly not if the employees are also patrons or customers of the business). Healthcare providers are exempt and may demand proof from anyone.

Nothing in this statute keeps anyone from asking the question, only from demanding proof, so even those employers who aren't allowed to demand proof can fire employees if they find out they lied about vaccines. And there's real reason for employers to want to know this information, because OSHA has different safety standards for workplaces with 100% vaccinated employees versus those with only partially vaccinated workplaces. 

In general, employers can ask if you've been vaccinated, and can demand you be vaccinated, with some exceptions.

Wednesday, June 23, 2021

Am I Entitled to Paid Sick Time For Side Effects From My COVID Vaccine?

Many employers are mandating vaccines for employees returning to work. But are they required to pay you for the time you take off work to get the vaccine and for any side effects? Most likely not, but there are some jobs and some states where you might be entitled to this.

In general, there is no law requiring any sick leave in my home state of Florida, much less paid sick leave. Other states, like New York, Pennsylvania, New Jersey, and California, offer some protections for certain employees so keep an eye on those state laws. 

If you are a federal employee you may be protected under the American Rescue Plan Act. That law provides paid leave for up to 600 hours of leave for federal employees who are suffering side effects from the vaccine, under quarantine, caring for someone under quarantine, and even for getting the vaccine.

For employees of other employers, they ceased being required to give you paid leave for COVID-related illnesses under The Families First Coronavirus Response Act as of December 31, 2020. However, for small and midsize companies, if they choose to give employees paid leave for up to 10 days, which includes leave for vaccine side effects, they get a tax credit. So it makes sense for employers to offer this. Still, it's voluntary. 

Family and Medical Leave applies if you’ve been employed at least a year and they have at least 50 employees within 75 miles of your work location. However, for you to have a qualified serious health condition as required for protected leave, you had to be incapacitated for 3 days and visit a doctor at least once. Most folks have side effects for only 2 days or less, so this probably doesn’t apply to you. If it does, you were entitled to up to 12 weeks of leave, and your employer had to restore you to the same or an equivalent position and cannot hold that leave against you.

If you are in a unionized workplace, the collective bargaining agreement should protect you from being punished for being out sick. Just make sure you do everything required of you when you call out.

 If the company offers sick leave, they should allow you to use it for this purpose. If they required a vaccination for you to return to the workplace, then they should also understand that side effects for a couple days are expected.

Even if they don’t voluntarily offer sick leave for this, punishing employees who are doing the right thing by getting vaccinated is a jerk move. Employers should really consider how their policies affect morale and workplace health and safety. If you are sick from the vaccine, I suggest following the employer’s sick leave policy and making sure you call out timely. Read your handbook if they have one and make sure you follow all the requirements for calling out sick so you don’t give them an excuse to punish you.

Wednesday, June 16, 2021

Can Florida Employees Can Be Fired For Testifying Against Employers?

 Florida has a statute that was clearly intended to protect employees who testify against employers: 

92.57 Termination of employment of witness prohibited.—A person who testifies in a judicial proceeding in response to a subpoena may not be dismissed from employment because of the nature of the person s testimony or because of absences from employment resulting from compliance with the subpoena. In any civil action arising out of a violation of this section, the court may award attorney s fees and punitive damages to the person unlawfully dismissed, in addition to actual damages suffered by such person.

Every lawyer I knew in Florida for 35 years has thought this protected witnesses who testified in depositions under subpoena. But a Florida appeals court ruled this year that a deposition is not a "judicial proceeding" and thus employees can be fired for testifying against their employers.

So is that it? Can employers retaliate against employees for testifying against them, even if they are subpoenaed to do so?

Not so fast, evil employers. Because employees are still protected under several anti-retaliation statutes. First, if they are testifying about race, age, sex, national origin, religious, disability or other illegal discrimination or discriminatory harassment, they are protected under anti-retaliation provisions of Title VII, the Americans With Disabilities Act, the Age Discrimination in Employment Act, and/or the Florida Civil Rights Act.

Second, the Florida Whistleblower Act protects employees who are fired for objecting to or refusing to participate in illegal activity of their employer. So if you are called to testify, make sure you say you object to whatever it is that they did that was a violation of a statute, government regulation, or ordinance. This also includes discrimination, but covers a myriad of other legal violations. Unfortunately, if it's just something like a breach of contract or other common law violation, you aren't protected under this statute.

There are lots of whistleblower laws out there, so if you are called to testify in a deposition and your testimony will hurt your employer, you will want to get some legal advice as to how to protect yourself before you go.

And the Florida legislature needs to fix this statute, because firing someone who is subpoenaed should be illegal, whether for a deposition or an actual court hearing.