JOIN US: TUESDAY, JULY 21, 2020 | 12:30PM EST

Four months ago, the Dow was close to 30,000, employment rates were at historic highs, the coronavirus was still “novel,” and millions had not yet taken to the streets in global protests against police brutality and racial inequality. The workplace we now return to exists in this supercharged social and political climate, with new rules, laws, risks, and social issues creating new and uncharted waters for employers to navigate.

Join Kelley Drye’s Labor and Employment partners Barbara HoeyMark Konkel, and Kimberly Carter as they identify risks and share pragmatic solutions to these new challenges. Topics will include:

  • Politics, speech, and activism in the workplace
  • The changing role of HR
  • What “diversity” means now
  • New employment laws
Click here to register

Here’s the scenario – Your Ambulatory Clinic just reopened in May, and since then one of the RN’s, let’s call her Rita, has been late multiple times, and is often on her phone when she should be working. When she was called in by the Director, Rita said, “I have been late because I feel this place is unsafe. Patients are coming in without face masks, we don’t have sanitizer at the desk, and this is just not a safe work situation. I want to make a complaint.”

  • Does Rita have a claim?
  • Can Rita sue?
  • Can you still give Rita the lateness warning?

The answer to all of these questions is YES. Rita may have a claim, she can sue, and finally, yes you should still give her the lateness warning. Healthcare providers beware, this type of complaint may well become more prevalent.

Continue Reading Not What The Doctor Ordered – A New Whistleblower Law for NY Healthcare Employers

As the number of COVID-19 infections in certain states continues to rise, so does the number of states added to the tristate area travel advisory.  Eight additional states were added to the existing list, including the following: California, Georgia, Iowa, Idaho, Louisiana, Mississippi, Nevada and Tennessee.  Travelers from these states, as well as Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Texas, and Utah, will be required to quarantine for 14 days when going to New York, New Jersey, or Connecticut.

Travelers will not be eligible for New York COVID-19 paid sick leave benefits if they engage in non-essential travel to the states with high infection rates.

See our coverage of the original travel advisory here.

This week, in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109, the National Labor Relations Board overruled a 2016 decision, and held that an employer does not have a duty to bargain over employee discipline with a union prior to reaching a first collective bargaining agreement.

Under Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016), an employer, with limited exceptions, was required to provide a union with notice and opportunity to bargain about discretionary elements of an existing disciplinary policy before imposing “serious discipline” on any union-represented employee who was not yet covered by a collective bargaining agreement.  An employer’s failure to engage in such bargaining would violate Section 8(a)(5) of the National Labor Relations Act even when the employer did not change a preexisting disciplinary policy or practice but, instead, merely continued to exercise discretion consistent with that policy or practice when determining whether and how to discipline employees.  The usual remedy for this violation would include reinstatement and backpay for disciplined employees, unless the employer could prove that the discipline was imposed “for cause.”

The issue presented in 800 River Road was whether to follow to the holding of Total Security, and to thus affirm the judge’s finding that the employer violated the Act by disciplining four employees without first providing the Union with notice and an opportunity to bargain.  River Road overruled Total Security and reinstated the law as it existed for 80 years prior to Total Security, holding that an employer does not have a duty to bargain over discipline with a union prior to reaching a first contract.  The Board applied this decision retroactively to all pending cases.

The decision can be found here.

 

In a press conference earlier today, the Governors of New York, New Jersey and Connecticut announced that travelers to the tristate area from states with spikes in COVID-19 infection rates would be required to quarantine for 14 days. The joint travel advisory applies to individuals traveling to the tristate area from the following states: Alabama, Arizona, Arkansas, Florida, North Carolina, South Carolina, Washington, Utah, and Texas.

However, this list of states is subject to change based on the metrics set forth by the joint travel advisory.  Any person arriving from a state with a positive test rate higher than 10 per 100,000 residents over a 7-day rolling average or a state with a 10% or higher positivity rate over a 7-day rolling average, will be required to quarantine.

Continue Reading Quarantine Mandated For Travelers To Tristate Area, Effective June 25, 2020

In May, the Equal Employment Opportunity Commission (“EEOC”) announced that FedEx Ground Package System, Inc. (“FedEx”) will pay $3.3 million dollars and provide programmatic relief to resolve a disability discrimination charge against the company.

Allegations against FedEx

In its Complaint (Equal Employment Opportunity Comm’n v. FedEx Ground Package Sys., Inc., 15-cv-00256 (Western District of Pennsylvania, February 25, 2015) the EEOC alleged that FedEx violated the Americans with Disabilities Act (“ADA”) by discriminating against deaf and hard-of-hearing individuals who applied for and/or worked in the package handler positions with the company.  To be hired for such positions, applicants must be at least eighteen years old and pass a criminal background check.  Applicants attend a mandatory sort-observation tour (where they see an active package handling shift, observe loading and unloading delivery vehicles, the conveyor systems, scanning, sorting, and the routing of packages), and participate in an interview.

Continue Reading EEOC Delivers Hefty Fine for Disability Discrimination

In a long awaited landmark ruling by Justice M. Gorsuch, the Supreme Court ruled that Title VII protects gay and transgender workers. The Opinion provides:

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear . . . An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

Justice Gorsuch was joined by Chief Justice Roberts and by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.

Continue Reading The Answer is Clear—Title VII Will Protect Gay and Transgender Workers

U.S. employers are now in the thick of bringing employees back to physical offices, facilities and plants. Some of the myriad issues they must address are pure HR: how to deal with employee fears, for example, or how to figure out if an employee who is immunocompromised is entitled to telework as a form of disability accommodation. Some of the issues, however, are far more basic but at the least as important: how do we ensure physical safety? Happily, the Occupational Safety and Health Administration (“OSHA”)—initially criticized for failing to provide definitive guidance on maintaining a safe workplace in a COVID world—has issued guidance on the use of “face coverings” (yes, masks) in the workplace.  This post summarizes the key takeaways from OSHA’s guidance.

Continue Reading OSHA Issues Guidance Regarding Face Coverings In The Workplace

On June 3, the Internal Revenue Service (“IRS”) issued Notice 2020-24 providing temporary relief from the physical presence requirement for participant elections that are required to be witnessed by a plan representative or a notary public, including spousal consents.  The relief covers the period from January 1, 2020 through December 31, 2020 (the “Relief Period”).  While specifically intended to facilitate the payment of coronavirus-related distributions and plan loans under the CARES Act, as described in our Advisory of April 3, 2020, Notice 2020-24 applies to any participant election that requires the signature of an individual to be witnessed in the physical presence of a plan representative or notary.

Continue Reading IRS Issues Temporary Relief from Physical Presence Requirement for Spousal Consents Under Retirement Plans

Today the EEOC updated its Technical Assistance Questions and Answers (Q&A), “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

Among the updates, the EEOC  provides Q&A guidance regarding: requests for accommodation (Q&A D.13, G.7); pandemic-related harassment in the context of telework (Q&A E.4); return to work guidance (Q&A G.6, G.7); and other questions related to age discrimination (Q&A H.1), pregnancy discrimination (Q&A J.1), and sex discrimination involving employees with caretaking or family responsibilities (Q&A I.1).

The EEOC also touches on an issue that all employers will undoubtedly face as employees return to work, namely, whether an accommodation is required for an employee who is not disabled, but whose family member may be at high risk for contracting COVID-19 due to an underlying condition. The EEOC’s June 11 Q&A D.13 states:

Continue Reading EEOC Updates COVID-19 Technical Assistance Publication with Q&A