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Join us on December 8 from 10:00 am until 11:30 am CST for a webinar presentation in which we will assess the implications of yesterday’s national election results (which are still up in the air at the time of this publication) and other issues affecting employers in 2021.
LMVT attorneys will review:
There will be ample time for questions and discussion. This presentation is complimentary, so save the date for December 8. Stay tuned for registration information to this webinar, which will be sent in future LMVT e-blasts.
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How appropriate that during this season, we have received several questions from employers about employees who have a COVID-related absence after having exhausted traditional FMLA and/or the Emergency FMLA or Emergency Paid Sick Leave authorized by the Families First Coronavirus Response Act.
Our recommendation is that employers evaluate on an individualized basis how each of these situations should be handled. It is not strictly necessary to treat everyone the same. Assume that in a department with a limited number of employees, you have accommodated an employee who has no leave remaining by permitting that employee to remain on an extended leave for an agreed-on period.
Now, another employee in the same department has made the same request. However, you need for that work to be done and you cannot permit the second employee to go on leave. You have the right to deny leave to the second employee based upon the needs of the business. In situations where the second employee is of a different protected class than the first employee, has engaged in protected conduct, and/or seeks leave related to a pregnancy or disability related limitation, the analysis needs to be especially thorough and communication proactively crafted.
Also, an extended leave does not have to be either for the duration the employee requests or indefinitely. An employer may tell an employee that it will try to accommodate the leave for as long as possible but if the employer can no longer accommodate the leave, the employee needs to be notified that the employer will move forward with filling the position. So, in the example above with two employees needing leave, an employer could also or alternatively recall the first employee, as long as its reasons were based on business justification, and not unlawful preference.
As in all matters of employee relations, communication is key. Whether you are granting an extended leave, a part-time schedule, or a work from home arrangement, be sure you have communicated clearly to the employee about entitlements and expectations from the alteration. Where applicable, it’s important to be specific that such alternative working or leave arrangements are specific to changed business circumstances and/or involve modifications to essential job functions and thus are necessarily limited.
For those employees who are approaching exhaustion of available FMLA, EFMLA, EPSL, and/or employer-provided leaves, communicate clearly about that well before the time of exhaustion, even if you will be extending the leave so that, should circumstances change, you and the employee are on the same page about where the employee stands regarding available leave under local, state, or federal law and employer policy.
The gig economy has resulted in state and federal oversight and regulation regarding whether an individual is an independent contractor or an employee. Although Uber, Lyft, Doordash, and similar companies have been at the forefront of these challenges, employers generally face these considerations when determining the status of an individual who is not hired as a regular employee.
Currently, the Department of Labor uses an “economic realities” test to determine independent contractor status. This test involves seven factors, with no factor given more weight than any other. This has led to great confusion if the worker tests just slightly more on the employee side of the scale for four out of the seven factors, but tests strongly as an independent contractor on the remaining three factors, does that mean the employer breaks the law if it classifies him as an independent contractor?
On September 22, the DOL issued a Notice of Proposed Rulemaking that would change the “economic realities” test to consider the individual’s two core factors: the nature and degree of the individual’s control of the work and the individual’s opportunity for profit or loss based upon the individual’s initiative and/or investment. If both factors are met, the individual is an independent contractor. If the answer to one of those two core questions is yes, then the analysis includes the amount of skill that is required, the continuity of the working relationship (is it permanent, or does it end on a fixed date or upon completion of the project?), and whether the work is part of an employer’s overall process and production. If the answer to the two core factors questions is no, the individual is an employee.
This change to the configuration and emphasis of the independent contractor test would apply to the Wage and Hour Division of the DOL and would not displace common law tests used to determine if workers are entitled to protection under other laws, like Title VII or the NLRA, nor would it replace classification tests applied by taxation authorities.
While the CDC had earlier indicated that it had no basis to conclude that pregnant women were particularly adversely affected by COVID-19, the latest study, based on a larger data sample, indicates that pregnant women were three times more likely to be admitted to an ICU due to COVID than non-pregnant peers, even after adjustments were made for age, race, ethnicity, and underlying health conditions.
The death rate for pregnant COVID patients, while still very low, was appreciably higher, which marked another change from what previous studies had found. The difference in death rate between pregnant COVID patients and symptomatic non-pregnant women was 1.5 per 1,000 vs. 1.2 per 1,000.
What this means for employers is that they may need to more closely evaluate requests for accommodations by pregnant employees, including mandating and enforcing mask-wearing rules and physical gathering and meeting limitations.
The EEOC recently concluded Fiscal Year 2020 (September 30th) with 24 lawsuits filed during September alone. However, for FY 2020, the EEOC filed only 90 lawsuits, a decline from 144 lawsuits the year before. With the EEOC adjusting to COVID-related work schedules, we expect the Commission to ramp up litigation during FY 2021, especially if there is a change in administration at the White House.
The EEOC’s primary focus on litigation has involved employee medical issues (pregnancy, ADA), harassment, and retaliation. We expect those trends to continue in 2021, in addition to the EEOC’s focus on the impact of workforce reduction decisions. This will not be limited to one protected class alone. For example, if workforce reductions occur based on a “last hired, first fired” approach and minorities and women are adversely affected by it, the EEOC may consider that business decision as having a discriminatory impact based upon race or gender.
To the extent individuals who are laid off or terminated are in the protected age group, we expect age discrimination claims to increase and the EEOC to scrutinize those carefully.
Employees today are feeling isolated from their employer, disconnected from workplace culture and friendships, and riding a rollercoaster of angst about job and financial security on the one hand and exhaustion from unpredictable or excessive overtime or other irregular scheduling on the other (even if the irregular scheduling is at the employee’s request).
Although we are all in the same storm of COVID, we are not all in the same boat. In a year that has been extraordinary between the combination of COVID, social justice and unrest, and political tensions and uncertainty, pause to communicate with your workforce building on the theme of Thanksgiving.
Thank those who work with your organization for how they have handled themselves individually and as a team throughout this tumultuous period. Express to them that as you will give thanks over the holiday, what you are thankful for include: the opportunity to work with your fellow employees in an effort to reach everyone’s personal and family objectives.
In essence, it is a time of year to show that in the big picture, there is much to be thankful for, and at work that thanks begins with your employees.
The question of mandatory vaccinations has been raised for several years with regard to healthcare employers, but due to the highly contagious nature of COVID, the question now arises as to whether all employees may be required to get the COVID vaccine, assuming one is developed.
Generally, employers may require that all employees take this vaccine due to the risk of contagion to other employees, customers, and other third parties. If an employee cannot take a vaccine due to bona fide medical or religious reasons, the employer has the right to require substantiation of those reasons and should then consider if other accommodations may be available. Especially in the first year of a COVID vaccine (which would optimistically occur during our second year of experience with the virus), we expect most employers will adopt policies similar to those used by healthcare providers mandating flu vaccines, where the standard accommodation is a face covering.
However, changes in our knowledge of the virus, mutations in the virus itself, or the sensitivity or demands of a particular work environment may make this default accommodation unworkable. Should that occur, remember that under the Americans with Disabilities Act, “reasonable accommodation” does not require what is required under the FMLA the employee does not have to be placed in a comparable position with no change in pay or schedule. If the difference in responsibilities, pay or schedule is significant, the employee may claim constructive discharge or retaliation, but the employer has more latitude to address accommodation than with the FMLA.
We are often asked “can the employee sue us” based on an employer’s exercise of employer rights, such as the mandatory vaccine. Such claims should be limited by application of the workers’ compensation exclusivity bar, or possible claims prosecuted by OSHA if the employer pursued vaccination in an unusual or unsafe way (and irregular administration could conceivably lead to an employee’s ability to bring claims outside of the workers’ compensation system in some states which permit tort claims against employers for willful misconduct). As with any mandatory medical procedure, employers need to conduct due diligence regarding the vaccine provided and who will administer it. Also, it will be helpful for employers to roll out the vaccine as an opportunity for employee safety at work and away from work, in essence, to sell the need for the vaccine.
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