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Tag: Disability

Top 10 Post COVID-19/Coronavirus Employment Law Issues

Published by Brett Holubeck on June 17, 2020
Image of a sign that says that "the world is temporarily closed" to demonstrate that most activities are shutdown until the post COVID-19 recovery begins.
Photo by Edwin Hooper on Unsplash

Businesses are slowly returning to normal from the COVID-19/Coronavirus pandemic. However, there are still a number of issues that are employers are facing. Of course, the most important issue for many employers is making sure that their business survives. Unfortunately, many businesses are also facing another issue: lawsuits. The potential liability for companies is continuing to accelerate. Here are the most likely lawsuits, administrative proceedings, and labor/employment law issues that employers will face in a post COVID-19 workplace.

1. WARN Act Lawsuits

As I stated in a previous article, the WARN Act generally requires employers with 100 or more employees to provide 60 days’ notice before the closure of a business or a mass layoff.

With the numerous layoffs that have occurred, accelerating bankruptcies, lockdowns continuing in many states, and businesses operating at reduced capacity or shutting down there will be a number of people that will not come back to work. Many people suspect that 40% of the layoffs will be permanent. 40 million people have lost their jobs. Unfortunately, the sheer number of layoffs means that there will be some layoffs that were not properly done. WARN Act lawsuits will accelerate.  

2. Worker Safety Lawsuits and OSHA Complaints

As I stated in my post about essential workers, employees want to be safe. Many are filing OSHA complaints and lawsuits because they do not feel safe.

a. OSHA Complaints Are Increasing

OSHA has issued over 5,000 complaints related to COVID-19. There will be a number of OSHA complaints that will continue after businesses begin to reopen. Many employees are concerned about their safety especially those that are vulnerable or work in high risk jobs. Companies should expect that there will continue to be a number of OSHA complaints due to companies not following all the safety protocols that OSHA and the CDC have put out. As a reminder here are the protocols from OSHA and the CDC have been released:

There are two important steps to employee safety and COVID-19. First companies need to follow the guidance to the extent that it applies at their workplace. Second, companies need to communicate with their employees about the safety steps. Employees need to know the procedures that they need to follow.  Employees also need to have channels that they can use to report workplace problems and safety concerns. Finally, employees that know that their company is taking steps so that they feel safe in the workplace are less likely to pursue lawsuits or complaints against a company.

b. Lawsuits About Personal Protective Equipment (PPE)

A number of employers have been sued for not providing enough personal protective equipment for employees including one against Smithfield  and another against a hospital.

The Smithfield plaintiffs’ suit was dismissed because they did not follow the proper channels for pursuing their claim (they should have gone through OSHA). While similar lawsuits are unlikely to succeed, companies should expect employees to continue to use all legal channels when they are not satisfied with the protective measures that their employer has taken.

3. Worker’s Compensation Lawsuits

Employers should expect a surge of worker’s compensation claims related to the coronavirus. It may be difficult for many employees to demonstrate that they got sick at work, but some states have made this easier through executive orders or other legislation that have basically enacted a rebuttable presumption that essential workers are presumed to have been infected while on the job. Bloomberg has a nice chart of which states have enacted such laws. For workers that are not essential or are not in one of the 8 states that have enacted such a law or regulation, it will be difficult to show that the employee actually got COVID-19 at work. This fact should reduce the number of successful claims in those states.

There continues to be conversations in Congress about protecting companies from liability, but nothing has passed yet.

4. NLRB Charges and Union Organizing

There are a number of signs that union organizing will increase as a result of COVID-19. Here are exhibits one, two, and three. Even nonprofit workers are turning to union organizing.

Union organizing and NLRB charges will continue to increase in the wake of COVID-19. Many unions have used the pandemic to strengthen their relationship with employees and seek to organize more employees. Many have been successful because employers have failed to take appropriate steps to protect employees or have not communicated with  employees about the steps that they have taken.

As a reminder, in some prior posts I wrote about what employers can and cannot do in a union organizing campaign and how to respond to an NLRB charge.

a. Employee Walkout Issues

There will continue to be employee walkouts because of the coronavirus. Stories about employees walking out because of concerns about safety are everywhere. As COVID-19 continues to cause problems and potentially a second wave of the Coronavirus comes, employers may see more walkout issues. This may especially be the case for workers that are more concerned about the virus because they are more susceptible to suffering from a severe reaction from it. Employers should remember that walkouts are likely protected under both the OSH Act (which may protect workers that refuse to perform a job if they are in imminent danger) and the National Labor Relations Act (which protects concerted protected activities by employees).

5. Employee Recall Lawsuits

As businesses reopen, there are a number of issues where employers could get into trouble. I wrote about employee recall issues recently. Specifically, I listed issues regarding the WARN Act, age discrimination, collective bargaining issues, and issues with the FFCRA once an employee is brought back. As businesses recall employees all of these issues, especially those related to discrimination, will become major concerns.

6. Refusal to Perform An Illegal Act

A Texas Supreme Court case called Sabine Pilot Service, Inc. v. Hauck states that an employer cannot fire an employee when they refuse to perform an illegal act.

In a recently filed case, an employee was required to come into the office to work. She claims that she was able to work from home and that the business was not an essential business and thus her employer was requiring to do an illegal act by requiring her to come to work. She claims that she was fired for refusing to come to work, which would have violated the stay at home order.

As businesses continue to reopen and restrictions continue to be placed on businesses, it may be the case that there will be additional lawsuits like this one.

7. FFCRA and Expanded Family and Medical Leave Lawsuits

When employees are finally able to resume working and meet with attorneys, it is likely that some of them will have potential claims against their employer for failing to follow the Families First Coronavirus Response Act (FFCRA). There may have been a number of people that have not been able to work because of childcare issues, their own illnesses, and being denied leave for other reasons (some of which may be legitimate). At least one employer has already been sued. Many companies will face similar lawsuits.  

8. Disability Discrimination Lawsuits

As I mentioned previously, employers have obligations to accommodate individuals based on a disability. As companies open up, it is likely that many people that may be more vulnerable to COVID-19 will seek accommodations from their employer. The most common accommodations include remote work or additional leave. The way that employers respond to these employee requests for a reasonable accomodation will be critical to avoiding potential lawsuits.

9. Employee Layoff Issues and Lawsuits

The sheer number of employees that have lost their jobs (more than 40 million) leaves a lot of room for lawsuits that typically follow a layoff. Excluding lawsuits related to WARN, here are some of the common issues that follow a layoff.

a. COBRA Notice Lawsuits

I wrote about COBRA notice problems in a recent post. There will be more COBRA lawsuits due to the difficulty that many companies have in providing appropriate notice to employees of their loss in health insurance coverage.

b. Non-Compete and Trade Secret Litigation

As people leave companies because of layoffs many will try to start their own companies or will be hired by competitors of their former employer. Some of these employees will inadvertently or purposefully try to take clients or trade secrets of their former employer. Companies should be careful when laying off workers that they eliminate employee access to various accounts and that no information is taken. Companies would do well to consider a severance agreement for employees with any confidential information to make sure that they return all confidential information and understand their responsibilities.

c. Failure to Pay Employees Properly

At least one company has been sued for failing to pay employees after the business was forced to shutdown due to COVID-19 and the employer lacked the funds to pay employees for their most recent work. It is likely that a number of wage and hour lawsuits will occur after the pandemic ends. Many employees were working remotely at time when many companies did not have many remote employees and may not have had the framework in place to track working time for these employees. The failure to correctly track time worked is likely to be a big concern for all companies that had hourly employees that were working remotely.

10. Remote Work Increases

Remote work is going to increase after the pandemic ends. Approximately 66% of workers were working remotely at the height of the coronavirus. This is compared to the approximately 5 million workers (or 3.6% of the workforce) that were working at home at least half the time in 2018. One survey from Gartner of CFO’s found that 74% of the surveyed CFO’s believed that 5% of their workforce would be permanently converted from office to remote employees after the pandemic ends. With as easy as it is to work from anywhere for office employees one should expect this trend to continue to accelerate.

Conclusion

Life after the pandemic will be very different than it was before. People are much more concerned about safety.  Travel is down and will stay that way for the foreseeable future. Some countries are discussing reducing globalization and diversifying their supply chains. In other words, the pandemic and the governments’ reaction to it are a major black swan event.

Companies need to be aware of the above issues in the immediate future as they navigate a post COVID-19 pandemic workplace. The only way for companies to grow after COVID-19 is for companies to adapt and seek ways to improve. Companies need to plan for the above problems and work with employees to succeed. With a recession already underway and uncertainty about how long it will take the economy to recover, planning is critical to the future success of companies.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.                                                                                                                                                                                   

Veterans in the Workplace

Published by Brett Holubeck on November 11, 2019
Image of a veteran saluting to represent the service of veterans and the impact of veterans in the workplace.
Photo by sydney Rae on Unsplash

It’s Veterans Day. A great day to honor all those that have served our country in the military. For employment lawyers, businesses, and Human Resource professionals, it is a great time to review some of the special requirements of employing veterans.

The Benefit of Employing Veterans

Companies love veterans. The Center for Talent Innovation found that efforts to hire veterans can “consume as much as 20 or 30 percent of recruiting budgets at some large corporations.” There are a number of reasons for the efforts that these companies put forth to hire veterans.

First, military veterans often gain valuable skills while they perform their service. Sometimes these are hard skills like working on airplanes, coding various programs, and engineering. Oftentimes, it is the soft skills that are gained through military service. Typical Army training includes a lot of activities that help improve discipline, communication and working with a team, and a ton of confidence through overcoming obstacles. All of these are transferable to the workplace.

Of course, some of this recruitment may be due to requirements for federal contractors and subcontractors. The Office of Federal Contract Compliance Programs requires these companies to make special efforts to recruit veterans as part of the requirements to complete affirmative action plans.

One other advantage is that employers can receive a tax credit for hiring veterans (it is going to potentially go away if it is not renewed by December 2019). Employers can get $1,500-$9,600 in tax credits for the first year of their employment.

Possible Disability Issues

Many companies that employ veterans have concerns about PTSD and other disabilities that affect many veterans. About twenty-nine percent of recent veterans report having a service-connected disability. This compares to the nearly one in five people in the US (approximately 56.7 million people) that have a disability. A quick reminder, most disabilities are relatively easy to accommodate. Two-thirds of disabilities require less than $500 to accommodate and one quarter cost nothing at all. Having a disabled person can even be an advantage in the workplace as they may bring a different and often valuable perspective that would otherwise be missed. And after all, what would the world be without Beethoven’s Ninth Symphony (composed when he was almost completely deaf), the music of Stevie Wonder and Ray Charles who were both blind, the inspirational story of Helen Keller (who as a deaf-blind woman lived a fascinating life and graduated from college nearly 90 years before the Americans with Disabilities Act was passed), and the challenges Franklin Delano Roosevelt faced from polio. The possibility of a disability should not deter companies from hiring veterans unless they cannot perform the job duties even with an accommodation.

PTSD and Veterans

One of the biggest challenges many companies face in employing veterans is Post-traumatic Stress Disorder (PTSD). PTSD is not limited to individuals in the military but can affect anyone. It affects approximately 3.5 percent of U.S. adults, and an estimated 1 in 11 people will be diagnosed PTSD in their lifetime. Studies have shown that around 11% to 20% of combat veterans have PTSD.

A person develops PTSD when they are directly exposed to death, threatened death, serious injury, or sexual violence. A person with PTSD has intense and disturbing thoughts that recur long after the traumatic incident that caused them ends and seeks to avoid any triggers that remind them of the traumatic event. These experiences can range from flashbacks; nightmares; intense sadness, fear or anger; and a sense of detachment from the world and other people. People with PTSD often seek treatment through therapy and medication.

How can employers accommodate PTSD at work? JAN has a great list of questions to consider to accommodate these individuals:

What limitations is the employee experiencing?

How do these limitations affect the employee and the employee’s job performance?

What specific job tasks are problematic as a result of these limitations?

What accommodations are available to reduce or eliminate these problems? Are all possible resources being used to determine possible accommodations?

Has the employee been consulted regarding possible accommodations?

Once accommodations are in place, would it be useful to meet with the employee to evaluate the effectiveness of the accommodations and to determine whether additional accommodations are needed?

Do supervisory personnel and employees need training?

Common accommodations for these individuals can include a flexible schedule and a modified break schedule. Employees with PTSD may be eligible for leave under the FMLA and the ADA. They may be eligible for intermittent leave under the FMLA based on the medical diagnosis of their doctors. As is common with accommodations, accommodating an individual with PTSD is likely a cost neutral accommodation (the accommodations involve changes to the workplace that do not require the employer to spend money, such as by purchasing special equipment, to accommodate the employee and allow them to work).

Service Dogs

Service animals cause many companies to panic. Many people have read about pets being claimed to be service animals when they lack any sort of training and are concerned about bringing animals into the workplace. However, services animals can be integrated into most workplaces relatively easily.

 As with any other request for an accommodation (and assuming that the ADA applies), an employer needs to go through the interactive process with the employee to accommodate their request. I’ve written about that here.

JAN has a great explanation of how to assess whether to allow these animals in the workplace as an accommodation.

What this means for employers: When an employee with a disability requests to use a service animal at work, you have the right to request documentation or demonstration of the need for the service animal (when the need is not obvious) and that the service animal is appropriately trained and will not disrupt the workplace. However, while documentation demonstrating that an employee has a covered disability may come from a health care provider, you may need to consider documentation from other sources that explains the need for the service animal and that shows the animal is appropriately trained.  Another option is to have a trial period; allow the employee to bring in the service animal on a trial basis to see if allowing the animal is effective and does not pose an undue hardship. There is no set time frame for a trial period, but one to six weeks might be enough time to assess the situation.

What this means for employees: In addition to documenting they have a disability, employees who use service animals need to be able to show that the service animal is needed for disability-related reasons and that the service animal is trained to be in a work environment without disrupting the workplace or otherwise behaving inappropriately. If your doctor recommended the service animal, then your doctor should be able to verify that you need the service animal for disability-related reasons. Regarding your service animal’s training, in some cases documentation from the service animal trainer would be helpful. In other cases, you may want to offer to demonstrate how the service animal behaves in the workplace.

Service dogs can serve a variety of functions including helping those with autism, individuals that are hard of hearing, limited mobility, diabetics, individuals with allergies, and those with a disease or condition that causes seizures, PTSD, and other issues. Many people fail to recognize that an individual with a service animal may have an “invisible” health issue that the dog is meant to accommodate or help with.

If there is an employee that is allergic to dogs, then the company should work with that individual to address the issue. Possible solutions can include ensuring that the service animal and the employee with allergies work in different parts of the building, that they have a different pathway to areas of the building than the service animal, and the use of portable air filters.

Of course, service animals may not be able to work in all environments and it may not be possible to accommodate an individual with a service animal. Anyone that must work in a sterile environment (think surgery) may not be able to have a service animal while they are in that area, places where food is prepared or food processing plants in the areas where the food is made (they must still be permitted in cafeterias and dining areas), and anywhere else where they may not be able to physically go (places that can only be accessed by ladders, etc.).

Where to Recruit Veterans

As I mentioned, many companies actively seek veterans. So where are the best places to recruit veterans?

Conclusion

Veterans have a lot to offer companies through the valuable training that they gained through their military service. There are a number of resources to help veterans find jobs, and there are a lot of resources to help employers interested in benefitting from the soft and hard skills many military members possess as a result of their service.

Lastly – Happy Veteran’s Day! Thank you so much to those of you who have served our country. We are thankful to have individuals like you who are willing and able to serve!

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

One in Five People Have a Disability: How Do Workplaces Accommodate Them?

Published by Brett Holubeck on September 28, 2018

Photo by james williams on Unsplash

Nearly one in five people in the US (approximately 56.7 million people) have a disability. Only 18.7% of people with a disability had a job compared to 65.7% of those without a disability. Disability issues are increasingly critical for companies to understand especially as the workforce continues to age. One out of every 4 US workers will be over 55 by 2024, which is important because 48% of persons over 65 have a disability. People are also working longer and nearly 40% of people aged 65-69 are still working. As the working population ages, more people in the workforce will have a disability.

What is A Disability Under the ADA

The Americans with Disabilities Act (ADA) protects employees from being discriminated against because they have a disability or their employer regards them as disabled. It applies to any company with more than 15 employees. Under the law, a person has a disability when they meet one of three conditions (not every medical condition is protected). Here is a helpful breakdown from the EEOC (a government agency that enforces workplace discrimination laws):

  • A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).

  • A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).

  • A person may be disabled if he [or she] is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).

Is Obesity a Disability Under the ADA?

Obesity is not only a major medical problem in the US, with nearly 40% of adults meeting the criteria for obesity and 7.7% being severely obese, it is also an evolving and changing area of disability law.

The 7th Circuit (covering Illinois, Indiana, and Wisconsin) will decide whether severe obesity (formerly known as morbid obesity) is a disability under the ADA. Generally, the standard has been that severe obesity is not a physical impairment (meaning it is not protected under the ADA) unless it is caused by an underlying disease or medical disorder. The 2nd, 6th, and 8th Circuits have all found that severe obesity is not a disability without some associated medical issue or disorder. If the 7th Circuit finds that obesity is a condition that is protected under the ADA, then numerous workplaces would need to prepare to accommodate these employees.

No matter what happens in the 7th Circuit, if you have an employee like Al Bundy, who actively insults customers and just about anyone around him, then you should probably consider terminating him or her.

The Interactive Process or Providing a Reasonable Accommodation to Disabled Workers

If an employee informs their employer that they have a disability (note the employee does not need to say the magic words of disability or ADA) or the need for an accommodation is obvious, then the employer needs to begin the interactive process to determine what accommodation it should provide. The company should also document that it received a request to accommodate the disability and provide a copy to the employee to show that the company is committed to accommodating the employee.

The law requires employers to provide a reasonable accommodation for an employee unless providing an accommodation would cause the employer to suffer an undue hardship (it is too difficult or expensive, which is a high standard to meet) or the person cannot perform the essential functions of the job. For example, the nurse in last week’s article could not perform one of the essential functions of her job: lifting patients.

During the process, the employer asks the employee questions to determine what accommodation the employee wants and what is the problem that needs to be corrected (what tasks the disability is hindering or preventing the employee from doing). Employers should stay away from questions about the exact medical condition that the employee has and medical details (usually).

An employer does not need to give the employee the exact accommodation that the employee wants but may choose which accommodation to provide as long as it engages in the interactive process with the employee and considers the employee’s needs. To accommodate an employee, an employer may need to purchase a device to help the employee complete their job, modify the employee’s work schedule, or offer them a vacant position. Courts also generally require companies to continue to assess the accommodation and make changes to the accommodation as needed (assuming that this is a condition that will change, or the employee informs the company that his or her condition changed). Some conditions need only a one-time accommodation. The employee or their doctor may also have informed the company that the employee’s condition will not change. Companies do not need to continue seeking information from the employee in these situations.

Employers should document the discussion about the accommodation that they provide and how the employer determined which accommodation to provide. The interactive process is never the same because workplaces, jobs, and disabilities are all unique. However, when done right, the employee and the company can both win. The employee is more productive, less stressed, and a better, more loyal member of the team. The employer shows its employees that it cares for them, it gets a more productive employee, and employee morale improves.

Conclusion

Accommodating an employee with a disability can and should be done. Most of the time, it can even be done with little or no cost to the company. The Job Accommodation Network has conducted surveys showing that 59% of respondents stated that accommodating their employee cost nothing, and 36% had a one-time expense which cost $500 on average. Working with an employee to find the right accommodation also can show the employee that the company cares about the employee, which increases the employee’s morale. Rather than something that HR dreads, accommodating a disability can be a chance for HR to do one of its primary tasks: supporting employees and making them more productive by putting the “human” back in Human Resources.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Brett Holubeck (of Houston, Texas) is the attorney responsible for this site.