On June 23, 2020, the Department of Labor (“DOL”) released an interactive online tool that guides employees through a series of questions to determine their eligibility for paid sick leave or expanded family and medical leave under the Families First Coronavirus Response Act (“FFCRA”). The online tool is available here. According to the DOL website, a similar tool for employers will be available soon.
No Mandatory Antibody Testing
The U.S. Equal Employment Opportunity Commission (EEOC) has announced that COVID-19 antibody tests cannot be required before employees are permitted to return to the workplace. Since an antibody test constitutes a medical examination under the Americans with Disabilities Act (ADA), it is only permitted when it is “job related and consistent with a business necessity.” Relying on the Centers for Disease Control and Prevention’s (CDC) guidance that antibody tests “should not be used to make decisions about returning persons to the workplace[,]” the EEOC concluded that the testing is neither. As a result, mandatory antibody testing is prohibited by the ADA.
SCOTUS Rules that Title VII Protects Employees from Discrimination on the Basis of Sexual Orientation and Gender Identity
In a landmark decision, the Supreme Court of the United States held that the protections provided by Title VII of the Civil Rights Act of 1964 apply to gay, lesbian, and transgender employees. Title VII offers protection to workers from being discriminated against based on their race, color, religion, sex, or national origin. Some lower courts interpreted “sex” to only apply to biological sex. Other courts held that the term “sex” included protections against discrimination for sexual orientation and gender identity. Today’s ruling makes it clear that under Federal law, employers may not discriminate against employees based on sexual orientation or gender identity. Continue reading
Free Speech in the Workplace
by Tyson Gorman, with significant contributions by 2020 Summer Associate, Joseph Profancik
So far, the year 2020 has once again exceeded our wildest expectations. On the heels of tragedy in Minneapolis and Louisville, protests across the nation have erupted in unprecedented support of social justice. Earlier this week, Starbucks made headlines after they refused to allow their employees to sport any paraphernalia that supported the “Black Lives Matter” movement. In a memorandum that sought to justify its actions, the company stated that “there are agitators who misconstrue the fundamental principles of the ‘Black Lives Matter’ movement — and in certain circumstances, intentionally repurpose them to amplify divisiveness.” Continue reading
EEOC’s Updated Return to Work Guidance
On June 11, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated its Q&A’s regarding COVID-19 and the Americans with Disabilities Act (ADA), the Rehabilitation Act and other EEOC laws. In particular, parts of the new guidance address specific issues that may arise as older workers, pregnant employees, and those with high-risk family members return to the workplace. Continue reading
Can An Employee Refuse to Wear a Mask?
In its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, the Equal Employment Opportunity Commission (“EEOC”) confirmed that, during a pandemic, an employer may require employees to wear personal protective equipment that is designed to reduce the transmission of infection, including face masks or gloves. As businesses reopen, many employers are requiring employees to wear masks. And some state and local governments are requiring or recommending that masks be worn in public. So what can an employer do if an employee refuses to wear a mask? Continue reading
What If My Employees Don’t Want To Return To Work?
Michelle D. Wyrick and Joseph Profancik, a 2020 Summer Associate
As the country sets its sights on reopening the economy, many Americans are understandably hesitant to return to work. Although most states claim that COVID-19 has seen its peak, the number of daily infections reminds us that the virus is still looming all across the nation. Nevertheless, states such as Florida and Tennessee, with numerous states following in their footsteps, have significantly loosened their restrictions and allowed businesses to open their doors once again. As businesses reopen, they will likely face some of the following questions from some employees who are hesitant to return to work.
What if My Employees Don’t Want to Return to Work Because They Make More Money on Unemployment?
In response to the bleeding economy, Congress recently prescribed the CARES Act, which, among other things, allocates an additional $600 per week to unemployment recipients. In many cases, Americans are currently bringing in more money while on unemployment than if they were working. As a result, some Americans may be incentivized not to return to work. In fact, the Department of Labor anticipated such a response and reminded states that they have the obligation to detect waste and fraud in the unemployment insurance system. Many states, including Tennessee, have set up websites for employers to report employees who refuse to return to work.
But can an employee actually refuse to return to work despite the reopening? As an initial matter, the Department of Labor has stated that refusing to return to work, solely because a claimant is taking in more money while unemployed, is not a qualifying refusal. In order to receive unemployment benefits, an individual must be willing and able to work, so a refusal such as this could result in the termination of benefits.
What if My Employees Are Afraid to Return to Work?
Nevertheless, if an employee is afraid to return to work because they fear exposure to COVID-19, the employee may still qualify for unemployment benefits, depending on the circumstances. Kentucky, like several other states, has determined that individuals who leave work “due to a reasonable risk of exposure to infection (self-quarantine) or to care for a family member affected by the virus” have good cause for not working. Likewise, the Occupational Safety and Health Act of 1970 (the “OSH Act”) protects an employee from discriminatory action if the employee in good faith refuses to work under conditions that he reasonably fears will subject him to serious injury or death where he has no other recourse. To be clear, the OSH Act does not give an employee an unqualified right not to return to work. It does, however, prohibit an employer from treating the employee less favorably than similarly situated employees. Whether an individual continues to be eligible for unemployment benefits if she claims she can’t return to work because of risk of exposure to the coronavirus likely depends on the measures an employer has taken to make the workplace safe, including complying with OSHA’s Guidance on Preparing Workplaces for COVID-19 and the Centers for Disease Control’s Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019, and what accommodations have been offered to the employee to reduce the risk of exposure. Kentucky has indicated that if an employer provides reasonable accommodations for employees at their workplace or offers an option to telecommute, the employee must work if it is offered by the employer.
An employee may not simply choose to continue to collect unemployment benefits once he has been called back to work. However, if an employee expresses fear of returning to work because of potential exposure to COVID-19, it will be important for employers to ensure that they have taken appropriate steps to protect employees’ safety as recommended by current guidance and that they have considered the availability of reasonable accommodations under the circumstances.
