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, 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.

Thursday, June 10, 2021

OSHA Guidance For Workplaces With Unvaccinated Workers

 OSHA has issued its guidance for workplaces that still have unvaccinated workers. Among other things, they want employers to grant paid time off for workers to get vaccinated. Here's what they say on this:

Except for workplace settings covered by OSHA's ETS and mask requirements for public transportation, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces. 2

Employers should engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19, including:

  1. Grant paid time off for employees to get vaccinated. The Department of Labor and OSHA, as well as other federal agencies, are working diligently to ensure access to COVID-19 vaccinations. CDC provides information on the benefits and safety of vaccinations. Businesses with fewer than 500 employees may be eligible for tax credits under the American Rescue Plan if they provide paid time off for employees who decide to receive the vaccine and to recover from any potential side effects from the vaccine.

  2. Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work to prevent or reduce the risk of transmission of the virus that causes COVID-19. Ensure that absence policies are non-punitive. Eliminate or revise policies that encourage workers to come to work sick or when unvaccinated workers have been exposed to COVID-19. Businesses with fewer than 500 employees may be eligible for refundable tax credits under the American Rescue Plan if they provide paid time off for sick and family leave to their employees due to COVID-19 related reasons. The ARP tax credits are available to eligible employers that pay sick and family leave for qualified leave from April 1, 2021, through September 30, 2021. More information is available from the IRS.

  3. Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas. A key way to protect unvaccinated or otherwise at-risk workers is to physically distance them from other unvaccinated or otherwise at-risk people (workers or customers) – generally at least 6 feet of distance is recommended, although this is not a guarantee of safety, especially in enclosed or poorly ventilated spaces.

    Employers could also limit the number of unvaccinated or otherwise at-risk workers in one place at any given time, for example by implementing flexible worksites (e.g., telework); implementing flexible work hours (e.g., rotate or stagger shifts to limit the number of such workers in the workplace at the same time); delivering services remotely (e.g., phone, video, or web); or implementing flexible meeting and travel options, all for such workers.

    At fixed workstations where unvaccinated or otherwise at-risk workers are not able to remain at least 6 feet away from other people, transparent shields or other solid barriers (e.g., fire resistant plastic sheeting or flexible strip curtains) can separate these workers from other people. Barriers should block face-to-face pathways between individuals in order to prevent direct transmission of respiratory droplets, and any openings should be placed at the bottom and made as small as possible. The posture (sitting or standing) of users and the safety of the work environment should be considered when designing and installing barriers, as should the need for enhanced ventilation.

  4. Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE. Such workers should wear a face covering that covers the nose and mouth to contain the wearer's respiratory droplets and help protect others and potentially themselvesFace coverings should be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents. They should fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face. CDC provides general guidance on masks.

    Employers should provide face coverings to unvaccinated and otherwise at-risk workers at no cost. Under federal anti-discrimination laws, employers may need to provide reasonable accommodation for any workers who are unable to wear or have difficulty wearing certain types of face coverings due to a disability or who need a religious accommodation under Title VII. In workplaces with employees who are deaf or hard of hearing, employers should consider acquiring masks with clear coverings over the mouth for unvaccinated and otherwise at-risk workers to facilitate lip-reading.

    Unless otherwise provided by federal, state, or local requirements, unvaccinated workers who are outdoors may opt not to wear face coverings unless they are at-risk, for example, if they are immunocompromised. Regardless, all workers should be supported in continuing face covering use if they choose, especially in order to safely work closely with other people.

    When an employer determines that PPE is necessary to protect unvaccinated and otherwise at-risk workers, the employer must provide PPE in accordance with relevant mandatory OSHA standards and should consider providing PPE in accordance with other industry-specific guidance. Respirators, if necessary, must be provided and used in compliance with 29 CFR 1910.134 (e.g., medical determination, fit testing, training on its correct use), including certain provisions for voluntary use when workers supply their own respirators, and other PPE must be provided and used in accordance with the applicable standards in 29 CFR 1910, Subpart I (e.g., 1910.132 and 133). There are times when PPE is not called for by OSHA standards or other industry-specific guidance, but some workers may have a legal right to PPE as a reasonable accommodation under the ADA. Employers are encouraged to proactively inform employees who have a legal right to PPE as a reasonable accommodation for their disability about how to make such a request. Other workers may want to use PPE if they are still concerned about their personal safety (e.g., if a family member is at higher-risk for severe illness, they may want to wear a face shield in addition to a face covering as an added layer of protection). Encourage and support voluntary use of PPE in these circumstances and ensure the equipment is adequate to protect the worker.

    For operations where the face covering can become wet and soiled, provide unvaccinated and otherwise at-risk workers with replacements daily or more frequently, as needed. Face shields may be provided for use with face coverings to protect them from getting wet and soiled, but they do not provide protection by themselves. See CDC's Guide to Masks.

    Employers with workers in a setting where face coverings may increase the risk of heat-related illness indoors or outdoors or cause safety concerns due to introduction of a hazard (for instance, straps getting caught in machinery) may wish to consult with an occupational safety and health professional to help determine the appropriate face covering/respirator use for their setting.

  5. Educate and train workers on your COVID-19 policies and procedures using accessible formats and in language they understand. Train managers on how to implement COVID-19 policies. Communicate supportive workplace policies clearly, frequently, and via multiple methods to promote a safe and healthy workplace. Communications should be in plain language that unvaccinated and otherwise at-risk workers understand (including non-English languages, and American Sign Language or other accessible communication methods, if applicable) and in a manner accessible to individuals with disabilities. Training should be directed at employees, contractors, and any other individuals on site, as appropriate, and should include:
    1. Basic facts about COVID-19, including how it is spread and the importance of physical distancing (including remote work), ventilation, vaccination, use of face coverings, and hand hygiene.
    2. Workplace policies and procedures implemented to protect workers from COVID-19 hazards.

    For basic facts, see About COVID-19 and What Workers Need to Know About COVID-19, above and see more on vaccinations, improving ventilation, physical distancing (including remote work), PPE, and face coverings, respectively, elsewhere in this document. Some means of tracking which workers have received this information, and when, could be utilized, by the employer, as appropriate.

    In addition, ensure that workers understand their rights to a safe and healthful work environment, whom to contact with questions or concerns about workplace safety and health, and their right to raise workplace safety and health concerns free from retaliation. This information should also be provided in a language that workers understand. (See Implementing Protections from Retaliation, below.) Ensure supervisors are familiar with workplace flexibilities and other human resources policies and procedures.

  6. Suggest that unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces such as retail establishments, if there are unvaccinated or otherwise at-risk workers in the workplace who are likely to interact with these customers, visitors, or guests. This could include posting a notice or otherwise suggesting unvaccinated people wear face coverings, even if no longer required by your jurisdiction. Individuals who are under the age of 2 or are actively consuming food or beverages on site need not wear face coverings.

  7. Maintain Ventilation Systems. The virus that causes COVID-19 spreads between people more readily indoors than outdoors. Improving ventilation is a key engineering control that can be used as part of a layered strategy to reduce the concentration of viral particles in indoor air and the risk of virus transmission to unvaccinated workers in particular. Some measures to improve ventilation are discussed in CDC's Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace. These recommendations are based on ASHRAE Guidance for Building Operations During the COVID-19 Pandemic. Adequate ventilation will protect all people in a closed space. Key measures include ensuring the HVAC system(s) is operating in accordance with the manufacturer's instructions and design specifications, conducting all regularly scheduled inspections and maintenance procedures, maximizing the amount of outside air supplied, installing air filters with a Minimum Efficiency Reporting Value (MERV) 13 or higher where feasible, maximizing natural ventilation in buildings without HVAC systems by opening windows or doors, when conditions allow (if that does not pose a safety risk), and considering the use of portable air cleaners with High Efficiency Particulate Air (HEPA) filters in spaces with high occupancy or limited ventilation.

  8. Perform routine cleaning and disinfection. If someone who has been in the facility within 24 hours is suspected of having or confirmed to have COVID-19, follow the CDC cleaning and disinfection recommendations. Follow requirements in mandatory OSHA standards 29 CFR 1910.1200 and 1910.132133, and 138 for hazard communication and PPE appropriate for exposure to cleaning chemicals.

  9. Record and report COVID-19 infections and deaths: Under mandatory OSHA rules in 29 CFR 1904, employers are responsible for recording work-related cases of COVID-19 illness on OSHA's Form 300 logs if the following requirements are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related (as defined by 29 CFR 1904.5); and (3) the case involves one or more relevant recording criteria (set forth in 29 CFR 1904.7) (e.g., medical treatment, days away from work). Employers must follow the requirements in 29 CFR 1904 when reporting COVID-19 fatalities and hospitalizations to OSHA. More information is available on OSHA's website. Employers should also report outbreaks to health departments as required and support their contact tracing efforts.

    In addition, employers should be aware that Section 11(c) of the Act prohibits reprisal or discrimination against an employee for speaking out about unsafe working conditions or reporting an infection or exposure to COVID-19 to an employer. In addition, mandatory OSHA standard 29 CFR 1904.35(b) also prohibits discrimination against an employee for reporting a work-related illness.

    Note on recording adverse reactions to vaccines: DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not want to give any suggestion of discouraging workers from receiving COVID-19 vaccination or to disincentivize employers' vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904's recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022. OSHA will reevaluate the agency's position at that time to determine the best course of action moving forward. Individuals may choose to submit adverse reactions to the federal Vaccine Adverse Event Reporting System.

  10. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards: Section 11(c) of the OSH Act prohibits discharging or in any other way discriminating against an employee for engaging in various occupational safety and health activities. Examples of violations of Section 11(c) could include discriminating against employees for raising a reasonable concern about infection control related to COVID-19 to the employer, the employer's agent, other employees, a government agency, or to the public, such as through print, online, social, or any other media; or against an employee for voluntarily providing and safely wearing their own PPE, such as a respirator, face shield, gloves, or surgical mask.

    In addition to notifying workers of their rights to a safe and healthful work environment, ensure that workers know whom to contact with questions or concerns about workplace safety and health, and that there are prohibitions against retaliation for raising workplace safety and health concerns or engaging in other protected occupational safety and health activities (see educating and training workers about COVID-19 policies and procedures, above); also consider using a hotline or other method for workers to voice concerns anonymously.

  11. Follow other applicable mandatory OSHA standards: All of OSHA's standards that apply to protecting workers from infection remain in place. These mandatory OSHA standards include: requirements for PPE (29 CFR 1910, Subpart I (e.g., 1910.132 and 133)), respiratory protection (29 CFR 1910.134), sanitation (29 CFR 1910.141), protection from bloodborne pathogens: (29 CFR 1910.1030), and OSHA's requirements for employee access to medical and exposure records (29 CFR 1910.1020). Many healthcare workplaces will be covered by the mandatory OSHA COVID-19 Emergency Temporary Standard. More information on that standard is available on the OSHA website at [link]. Where the ETS does not apply, employers are required under the General Duty Clause, Section 5(a)(1) of the OSH Act, to provide a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm .

The full guidance, which includes other requirements for workplaces during COVID, is here

Thursday, April 1, 2021

Fired or Laid Off? Your Employer Now Has to Pay Your Insurance Costs Through September

 The American Rescue Plan has a lot to unpack. One of the provisions that has gotten the least amount of press attention is the fact that employers now have to pay your COBRA costs if you've been let go. This benefit starts April 1, 2021 and ends September 30, 2021. That's a heck of a lot of savings for unemployed workers.

Who is entitled: Anyone who loses their health insurance because they lost their job or had hours reduced, except those who voluntarily ended their employment. What is "voluntary" will probably be the subject of litigation. If you were forced to resign due to, for instance, discrimination, sexual harassment, or whistleblower retaliation, or your employer tells you that you have to resign, then that's constructive termination and you may still be eligible.

You didn't elect or coverage lapsed: If you already failed to elect COBRA or let it lapse because you couldn't afford it, don't despair. You can now elect COBRA. If you were entitled to elect COBRA continuation coverage before April 1, your insurance plan administrator has to send you notice within 60 days from April 1 of your entitlement to elect coverage now. If you are interested in a late election, I suggest contacting your plan administrator ASAP.

How much do you pay?: Zero from April 1 to September 30. After that, you have to pay your share of the premiums. Your employer will get a tax credit for paying it.

So, if you needed another reason not to quit, this is a biggie. If your employer tries to get you to sign something saying you quit voluntarily, better get some legal advice.

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.