Seyfarth Synopsis: Today we will begin posting a monthly summary of our employment law blogs, as a way to keep you connected and aware of our latest thought leadership. As always, readers are encouraged to reach out to our authors with any comments or questions raised from the blog.

Heat Illness – A Phantom Menace: Sweatt Blogs on Safety Measures and Heat Illness in the Workplace

Seyfarth Synopsis: OSHA Administrator Loren Sweatt recently blogged related to heat illness in the work place as “forecasters are calling for above-average heat in some parts of the country and scorching temperatures in July and August.” Sweatt suggests six items to keep in mind as employers prepare for a hot summer.

EEOC Update: The Commission Announces Two New Pilot Programs For Conciliation And Mediation Processes

Seyfarth Synopsis:  On July 7, 2020, the EEOC announced in a press release two new six-month pilot programs aimed at increasing voluntary resolutions of discrimination charges. One of the new programs seeks to increase the effectiveness of the conciliation process at the Commission, and the other will create more opportunities to resolve matters through the EEOC’s popular mediation process. The details of the EEOC’s latest programs are a critical “must read” read for all employers dealing with EEOC charges.   

Boy, I Need a Vacation: FAQs Regarding Employee Travel and PTO

Seyfarth Synopsis: Between states reopening and summer vacation beginning, employers have wondered what say they have over their employees’ use of PTO. Below are some of most frequently asked questions from employers about employee vacation in light of the pandemic.

OSHA Updates FAQs on Face Masks in the Workplace

Seyfarth Synopsis: The Occupational Safety and Health Administration (OSHA) has updated its frequently asked questions and answers to advise employers about the use of face masks in the workplace.

Happy Birthday to Us! Employment Law Lookout Blog’s Seventh Year Anniversary – A Look Back at our Top Posts

Seyfarth Synopsis: Seven years ago today The Employment Law Lookout Blog launched its twice weekly publications. Now as we enter a new year — we wanted to celebrate this milestone by taking a look back at our seven most popular posts of “all time.”  (As compiled by our marketing team and based on number of hits/reads.) But first — and because this has always been a team effort — to all of our authors we say “good job and well done.” To all of our readers we say “thank you — very much” for following the ELL Blog. We look forward to continuing to bring you the latest and the best thought leadership blogs on employment law and liability issues and equally exciting topics! Now…. Who wants cake?

Seyfarth Team Launches Part 2 of its ADA 30: 30 Tips for 30 Years Video Series

Seyfarth Synopsis: The ADA Title III team launches the second installment of its 3-part video series containing 30 tips for businesses on how to better serve individuals with disabilities. This video covers reasonable modifications to normal policies, practices and procedures.

GoT’s All-Seeing Three-Eyed Raven: The Gig Economy in California

Seyfarth Synopsis: The controversy surrounding AB 5 unveiled a clear need for a new avenue of classifying so-called gig workers to combine the certainty of employee designations with the flexibility of gig jobs. What are the promises of and prospects for a hybrid classification that would provide workers with some employee benefits while also providing workers and companies some of the freedom and efficiencies observed in a gig economy? Can we see what the future will hold? This post explores some possibilities.

Seventh Circuit Affirms Summary Judgment in Disability Suit Where No Evidence that Disability Was “But For” Cause of Position Elimination

Seyfarth Synopsis: In McCann v. Badger Mining Corporation, — F.3d. — (7th Cir. 2020), the Seventh Circuit affirmed summary judgment and held that no jury could conclude that plaintiff’s position would not have been eliminated “but for” her disability.

Blog Series – Managing a Future Tele-Workforce

Seyfarth Synopsis: In part one of a series concerning managing the future tele-workforce, below are some tips to navigate reasonable accommodation requests and monitor the performance of employees who will likely be working remotely in greater numbers in the future.

Updated Massachusetts Guidance Clarifies Lodging Providers’ Responsibility For Ensuring Guest Compliance With Travel Order

Seyfarth Synopsis: As we previously reported, on July 24, Massachusetts Governor Charlie Baker issued an Executive Order announcing a $500 daily civil fine, effective August 1, for individuals traveling into the Commonwealth who fail to comply with the State’s mandatory 14-day quarantine requirement.

By Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis:  On August 3, 2020, the EEOC announced in a press release that it will resume issuing charge closure documents, or “Notices of Right to Sue.” The Commission had previously suspended issuing closure documents as a result of the COVID-19 pandemic in an effort to help preserve the rights of charging parties and employers. The EEOC’s latest announcement indicates that they are pushing to get back to “business as usual.”

On March 21, 2020, the EEOC announced that it would cease issuing charge closure documents, also known as Notices of Right to Sue (“Notices”), in response to the difficulties facing parties in light of the COVID-19 pandemic. Since March, Notices have only been issued upon request of the charging party. As charging parties generally have 90 days from the issuance of a Notice to pursue their claims in court, the suspension of the Notices has meant a downturn in the filing of discrimination and harassment lawsuits against employers over the past several months.

The EEOC’s August 3 announcement now indicates that EEOC managers and supervisors are reviewing charge resolution recommendations and that the EEOC will begin issuing Notices for charges held in suspense and for charge resolutions that occur on and after August 3, 2020.  The Notices that have been held in suspense will be issued over the course of the next six to eight weeks, beginning with those that have been in suspense the longest.  The EEOC has also noted that all Notices will be issued by mail.

Implications For Employers

Now that the EEOC is resuming its issuance of Notices, employers with pending EEOC charges should be on the lookout for Notices closing the charge process to arrive by mail. Once a Notice is issued, a charging party has 90 days from receipt to file their claims in court. Accordingly, employers will also likely see an uptick in discrimination and harassment claims filed in court over the next several months.

This announcement is the latest in a series of high priority press releases issued by EEOC over the past few months. The ongoing changes at the Commission are a must-watch for employers, as they have considerably impacted the charge investigation and resolution processes at the EEOC.

By John Ayers-Mann, Daniel B. Klein, and Robert A. Fisher

Seyfarth Synopsis: As we previously reported, on July 24, Massachusetts Governor Charlie Baker issued an Executive Order announcing a $500 daily civil fine, effective August 1, for individuals traveling into the Commonwealth who fail to comply with the State’s mandatory 14-day quarantine requirement.

Pursuant to the Order, the Department of Public Health (DPH) issued updated guidance clarifying how out-of-state travelers are expected to comply with the Order. In addition to the DPH Guidance, the State updated its sector-specific guidelines for several sectors to include guidelines consistent with the Travel Order.

In general, the sector-specific guidelines were updated to emphasize an employer’s responsibility to strongly discourage travel to high-risk locations and ensure that employees engaged in business-related travel were aware of and complied with the Order.

Additionally and of particular note for hotels, the guidance for lodging providers added clarity regarding a lodging provider’s responsibilities relative to their guests’ compliance with the new Order. Under prior guidance, lodging providers were urged, but not required, to inform guests at the time of their reservation and check-in of the State’s travel guidance. The updated guidance now requires lodging providers to inform guests at the time they make a reservation and again upon check-in about the out-of-state travel order and the guests’ obligation to quarantine for 14 days after arrival, or until they receive a negative test result, unless they meet an exemption under the Order. The new sector-specific guidance also encourages lodging providers to post signage on their websites and near their check-in desks with information about the State’s requirements for out-of-state travelers. Importantly, the updated guidance stops short of requiring lodging providers to monitor and enforce the self-quarantine requirements imposed by the Order.

In addition, the updated sector-specific guidance for indoor and outdoor events urges event venue operators to notify their clients of the Order, encourage their clients to inform out-of-state guests of the Order, and post information on their website about the requirements for out-of-state travelers.

We will continue to keep you apprised of any other significant developments in or changes to the Commonwealth’s sector-specific guidelines

Those with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Christina Jaremus, Patrick D. Joyce, Louisa Johnson, and Katherine Mendez

Seyfarth Synopsis: In part one of a series concerning managing the future tele-workforce, below are some tips to navigate reasonable accommodation requests and monitor the performance of employees who will likely be working remotely in greater numbers in the future.

Despite a recent spike in COVID-19 cases around the country, especially in the West and Southeast, states continue to give employers a green light to begin re-staffing their physical offices. However, pandemic preparedness has spurred a monumental shift from physical offices to remote workforces that many believe may be here to stay. Downsizing office space and offering employees the option to work remotely as a permanent alternative eliminates the time and money spent commuting to a physical office each day, saves employers office space expenses, simplifies employee health and safety, and, overall, affords employees more control over their own time. But managing a tele-workforce comes with its own challenges that implicate accommodation laws, workers’ compensation and safety laws, and wage-hour laws, among others.

Future blogs in this series will discuss key issues regarding workers’ compensation and safety that should be considered for a tele-workforce; wage-hour considerations, such as tracking and paying for remote worktime, tracking meal and rest breaks of non-exempt tele-workers, and reimbursable business expenses for remote workers; and finally, technology applications for remote workers, such as data privacy, employer network control, and employee surveillance.

Part One:  Reasonable Accommodations and Performance Management

A.  Determining Which Employees Should Be Permitted to Tele-Work

If physical presence in the office is an essential function of an employee’s job, an employer is generally not required to permit the employee to work remotely as an accommodation. But the shift to tele-work spurred by the pandemic will result in employers likely facing in the future a growing number of requests to work from home as accommodations for disabilities.

Before deciding to deny these requests based on the assertion that physical presence in the workplace is an essential job function — particularly if all or part of the Company’s workforce managed (and maybe even flourished) working remotely over the past several months — employers may want to reevaluate the essential functions of these positions to make sure this argument still holds water.

While employees are still quarantined at home, employers should take some time to clearly document which positions are not capable of being performed effectively from home based on specific problems and performance issues that may have arisen during the mandatory stay-at-home period. This documentation will help to bolster the employer’s position that certain requests to work from home are not reasonable in the long-term future because they were tested during the quarantine and could not be performed with success remotely.

B.  Home Office Equipment for Tele-Workers

If an employer provides special office equipment to employees who meet the ADA’s definition of disability, the employer may be hard-pressed to argue that offering the same accommodation to an employee working from home is not reasonable. For example, providing an ergonomic chair or keyboard necessitated by an employee’s disability would likely be a reasonable accommodation whether the employee is working from home or in an office.

In addition, though not mandated by the Occupational Safety and Health Administration, employers may want to consider the health and safety and productivity benefits of ensuring employees have an ergonomic home workspace. We will discuss these issues in more detail in one of our upcoming blogs in this series.

C.  Flexible Work Schedules And Performance Management for Tele-Workers

Other reasonable accommodation requests may be more complicated to administer when an employee is working remotely. For example, if an employer provides alternative work schedules, and some flexibility in those schedules, to employees working in an office, supervisors can easily monitor the time the employees are actually working by monitoring the employee’s physical presence in the office.

To ensure accountability of employees working in a remote environment, it becomes more important to have a defined work schedule, even if it is an unusual schedule that has large periods of non-working time during the day and contains working periods after standard business hours. For non-exempt (i.e., overtime eligible) remote workers who “clock in” and “clock out” in an electronic timekeeping system, the time records can be used to verify that the tele-worker is adhering to the agreed-upon schedule.

For those remote employees, such as exempt-classified workers, whose adherence to the agreed-upon work schedule cannot be monitored through detailed timekeeping records, employers may want to consider asking employees to regularly or periodically submit work logs to demonstrate that they are meeting expectations concerning their periods of availability and overall work hours.

Another way to monitor productivity is to ask employees to consent to the installation of software to monitor their productivity. As Axios author Erica Pandley discussed in her article 1 Big Thing: Surveilled at Work, many companies “have asked their newly remote employees to install software that tracks their mouse movements or keystrokes or which webpages they visit as a way  to ensure they’re being productive…”  Employees’ attitudes towards such surveillance may be less antagonistic in exchange for flexibility, freedom, and safety assurances associated with being permitted to work remotely. Of course, for some employers, such personal monitoring may clash with the company’s culture or be viewed as too detrimental to employee morale. Thus, this is an option to consider in the context of your specific company’s culture and workforce.

Another option that should be more universally feasible is active performance management. With employees in an office environment, supervisors often use regular meetings or one-on-one time to assess whether employees are meeting goals. With remote employees, this can be more easily overlooked. Therefore, supervisors should be vigilant about scheduling regular face time with their remote employees to ensure they are staying up to date with positive (and negative) employee performance. And management should consider whether there are alternative more metrics-driven key performance indicators that could be used in evaluating employees’ performance. Where it makes sense, more data-based metrics allow employee performance to be measured objectively so that performance of remote employees is gauged on the same accountabilities as employees who are regularly in the office.

In parts two and three of this series, we will provide thoughts about workers’ compensation and safety issues that should be considered for a tele-workforce and wage-hour considerations, such as tracking and paying for remote worktime, tracking meal and rest breaks of non-exempt tele-workers, home office health and safety, and reimbursable business expenses of remote workers.

Those with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations or Workplace Policies and Handbooks Teams.

By Samantha L. Brooks and Erin Dougherty Foley

Seyfarth Synopsis: In McCann v. Badger Mining Corporation, — F.3d. — (7th Cir. 2020), the Seventh Circuit affirmed summary judgment and held that no jury could conclude that plaintiff’s position would not have been eliminated “but for” her disability.

In McCann, the plaintiff alleged that she had been discriminated against on the basis of age and disability when her former employer eliminated her position in October 2015 and failed to accommodate her. The District Court granted the employer’s motion for summary judgment on all counts.  Plaintiff appealed only her claim that her position was eliminated because she was disabled.

Plaintiff was employed by Badger Mining Corporation’s (Badger) predecessor, Atlas Resin Proppants (Atlas), as a laboratory technician in the research and development laboratory.  Plaintiff’s performance reviews for the years 2013 and 2014 were acceptable, but her supervisors noted some shortcomings, including dealing with conflict, communication, and dispute resolution. Badger merged with Atlas in April 2015. After the merger, Plaintiff was assigned and trained to perform “batch mixing.” Shortly thereafter, however, it was determined that Plaintiff was not satisfactorily performing her batch mixing responsibilities and another employee was assigned to perform batch mixing.

In September 2015, Plaintiff sought treatment for pain and numbness in her hands. On September 21, Plaintiff emailed her supervisor and human resources, stated that she had been diagnosed with two different conditions, and that she would require time off for additional follow-up tests, appointments, and possibly surgery. This email was the first notice to Badger about plaintiff’s hand conditions.

Unbeknownst to Plaintiff, in the late summer and early fall of 2015, Badger had been exploring cost-cutting measures and other measures to increase efficiency. Ultimately, Badger determined that 33 positions across three different facilities needed to be eliminated, including one position in the research and development department where plaintiff worked. The head of the research and development department, after reviewing the plaintiff’s performance reviews from 2013 and 2014, and based on her own knowledge and observations of plaintiff’s performance, including the difficulties plaintiff had with batch mixing, decided that plaintiff’s position would be eliminated. Plaintiff was notified on October 26, 2015.

The Seventh Circuit held that plaintiff failed to establish that her position would not have been eliminated and she would not have been terminated “but for” her disability, and that she failed to establish that defendant’s explanation for elimination of her position was pretext for disability discrimination.

Specifically the Court noted that, although plaintiff disputed the negative assessments of her performance, her supervisor’s belief that the performance was poor “was genuinely held.” Additionally, the record supported defendant’s contention that one co-worker was retained instead of plaintiff because plaintiff struggled with mixing batches of materials required for plaintiff’s department, while the co-worker could mix batches without need for detailed instructions and constant guidance.

Importantly, while plaintiff first disclosed the date of her hand condition close in time to the date of her termination, this “suspicious timing,” alone, did not defeat summary judgment where the need for cost cutting measures and position eliminations was being discussed prior to plaintiff’s disclosure.

Employer Takeaways

Document, document, document! Employers must remember to document performance deficiencies or mistakes. If employers need to justify a personnel action or if litigation ever arises, it will be important to have a contemporaneous record of performance issues.

Those with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations or Workplace Policies and Handbooks teams.

By Scott P. Mallery

Seyfarth Synopsis: The controversy surrounding AB 5 unveiled a clear need for a new avenue of classifying so-called gig workers to combine the certainty of employee designations with the flexibility of gig jobs. What are the promises of and prospects for a hybrid classification that would provide workers with some employee benefits while also providing workers and companies some of the freedom and efficiencies observed in a gig economy? Can we see what the future will hold? This post explores some possibilities.

In the exceptionally popular Game of Thrones series, the third eye of the indispensable Three-Eyed Raven symbolizes perception beyond ordinary sight, or a third way. This need for future thinking and a third way has become increasingly more important in California when it comes to worker classifications.

By now, everyone knows all about AB 5: its legacy, its controversy, the numerous legislative exceptions it has inspired, the myriad court battles it has provoked, and the responsive initiative that has qualified for the November 2020 ballot. Indeed, not only have we written extensively on the measure, we also have our own tag dedicated exclusively to the issue. So what is the future of the gig economy in California? Is there a workable “third” way of classifying workers in the gig sector. While answering that question requires prescience beyond the mortal ken, we will put on our best “Three-Eyed Raven” hat to foresee some possible roads the future of the gig economy may take.

“I Have Been Many Things. Now, I Am What You See”—Piecemeal Legislative Changes

Many California gig businesses maintain they cannot survive if they must classify their drivers as employees under AB 5. The measure’s author, Lorena Gonzalez, insists the bill is not so bad for business. But if so why, then, are there a variety of stand-alone bills that would provide exemptions for at least 16 different industries?

Is a scattershot approach to legislation really the best solution? And must we choose between (a) dismantling the ABC test and AB 5 and (b) leaving AB 5 in place to require that all gig sector employees be classified as employees? Is there instead a third way—a hybrid classification that would provide the flexibility of the gig economy while ensuring that workers reap at least some benefits of employee status? This elusive third way has been discussed for years, but the controversies over AB 5 controversy may finally force the issue.

Meanwhile, the pandemic and the government’s response thereto—through the CARES Act and otherwise—may have played its own part in forcing the issue. The pandemic left gig workers particularly vulnerable, as independent contractors are normally ineligible for unemployment compensation. But the CARES Act gave them eligibility, limited by prior earnings.

“It Is Beautiful Beneath The Sea. But If You Stay Too Long, You’ll Drown”—Making A Dramatic Change

Drastic legislative changes to the employment marketplace have precedents. Industrial-era jobs were transformed during the Industrial Revolution when labor unions were empowered to negotiate for higher wages, shorter hours, and safer working conditions. Many believed these changes were too radical, but we’ve become accustomed to them. We may have seen a modern analog when the House passed the historic, $3 Trillion HEROES Act, which would make fundamental changes in the workplace.

“Look For Me…Beneath The Tree…North!”—Elusive “Third Way” Of Classifying Workers

So what would a “third classification” look like? One legislative option is SB 1039, authored by Senator Cathleen Galgiani. SB 1039 would “develop a modern policy framework that facilitates independent work for those who voluntarily choose it by creating a third classification of workers with basic rights and protections relative to work opportunities.” The stated rationale is that AB 5 has made it “increasingly obvious that a binary system for classifying workers as either independent contractors or employees is outdated and inapposite of the current reality of the labor market and work opportunities presented in the gig economy and the desire of workers seeking flexible working conditions.”

Despite SB 1039’s stated intentions, its substance has yet to take shape. Those crafting the measure might look to New York’s Freelance Isn’t Free Act, which took effect in May 2017. The Act requires an employment-type contract whenever a freelancer completes $800 worth of work, and provides freelancers with additional monetary remedies if a hiring party tries to avoid paying. The Act establishes a complaint procedure to be administered by the City and provides for a private right of action.

The Act does not, however, provide the employee benefits AB 5 does—such as a minimum wage, workers’ compensation, unemployment insurance, paid sick leave, and paid family leave. To address these concerns, SB 1039 could be amended to include such protections without going so far as pulling gig sector workers out of the IC designation and imposing on companies all the cascading Labor Code burdens that come along with an “employee” designation. For example, an amendment could tie benefits to hours worked, or to certain duties performed, or some combination of both.

“You Will Never Walk Again, But You Will Fly”—The Future Of Work

SB 1039 also refers to Governor Newsom’s Future of Work Commission, established via executive order. Although the pandemic has paused the Commission’s work, the Commission previously explored models to improve access to benefits tied to employment (e.g., paid time off, healthcare, training) for workers who have been excluded from certain benefits. Subjects that the Commission has investigated include portable benefits models and small groups that contribute to a centralized organization that provides access to benefits. Indeed, portable health benefits is one potential solution the Tech sector has suggested to ensure that gig workers have access to medical benefits. Once the Commission returns to work, its progress will be a good barometer for the future of the gig economy in California.

Undoubtedly, gig companies provide services that many consumers want, and many Californians want the flexibility these gig jobs offered prior to enactment of AB 5. In light of these realities, we hope to see the California Legislature find that sweet middle ground that promises some of the benefits of an employee classification while allowing for the flexibility typically associated with gig professions.

“The Time Has Come…Leave Me!”—Workplace Solutions

So what should employers consider, given the uncertain future of gig workers? Employers that use independent contractors must be sufficiently agile to adapt to a new classification—one that could cause additional administrative duties, but one that would also save resources and create efficiencies. With change likely to come, employers should be reviewing their practices regarding independent contractors to ensure they are in line with AB 5 now, and to prepare for legislative change. Just as the Three-Eyed Raven must move from mortal body to mortal body, employers must also be prepared to adapt to a potential third way of classifying workers.

Edited by Michael Wahlander

Seyfarth Synopsis: The ADA Title III team launches the second installment of its 3-part video series containing 30 tips for businesses on how to better serve individuals with disabilities. This video covers reasonable modifications to normal policies, practices and procedures.

Take a look at Part 2 of our video series!

If you enjoyed Part 1 of ADA 30:  30 Tips for 30 Years video, you are in for a treat because our attorneys worked hard to make Part 2 even more entertaining – while still providing you useful tips. This video addresses the obligation of businesses to make reasonable modifications to their policies, practices, and procedures to ensure access to their goods, services, and privileges by individuals with disabilities and contains tips about service animals, miniature horses, emergency evacuations, event ticketing, hotel reservations, food allergies, non-traditional mobility devices, and so much more.

An audio description of Part 2 is available here.

We hope you enjoy the video and maybe learn something new.

By Erin Dougherty Foley and Craig B. Simonsen

Seyfarth Synopsis: Seven years ago today The Employment Law Lookout Blog launched its twice weekly publications. Now as we enter a new year — we wanted to celebrate this milestone by taking a look back at our seven most popular posts of “all time.”  (As compiled by our marketing team and based on number of hits/reads.) But first — and because this has always been a team effort — to all of our authors we say “good job and well done.” To all of our readers we say “thank you — very much” for following the ELL Blog. We look forward to continuing to bring you the latest and the best thought leadership blogs on employment law and liability issues and equally exciting topics! Now…. Who wants cake? 

Number 1: Temporary Disabilities – No Need To Worry About The ADA, Right? Think Again, by Lawrence P. Postol. (Published: February 6, 2014.)   In this blog, the author notes that if an employee had a temporary condition such as a broken leg or acute bronchitis, employers after the 12 weeks of Family Medical Leave Act (FMLA) leave ended, often required employees to return to work or be terminated from their employment. “In the first Court of Appeals decision to address this issue, Summers vs. Altarum Institute Corp., No. 13-1645 (4th Cir. January 23, 2014),  the United States Court of Appeals For The Fourth Circuit (Fourth Circuit)  held that after the 2008 Americans with Disabilities Act Amendments Act (ADAAA), the ADA now protect persons with temporary disabilities which are ‘severe.’”

Number 2: ADA Stress Claims – They Will Drive You Nuts, by Lawrence P. Postol. (Published: October 29, 2013.)  In this blog, the author notes that it doesn’t take much these days for an employee to prove that a condition qualifies as a covered disability under the ADA. “Essentially any chronic condition which significantly limits a bodily function is going to qualify, and cognitive thinking and concentration are bodily functions. In most cases, chronic stress and anxiety disorders are covered by the ADA. What’s an employer to do when an employee requests an accommodation due to chronic stress, particularly if the stress is from their work?”

Number 3: The Legality of Tracking Employees By GPS, by Karla Grossenbacher. (Published: January 26, 2016.)  In this blog, the author notes that technology has dramatically increased employee accountability in the workplace. For example, “in an office environment, employees are expected to respond to emails immediately because they are either sitting in front of their computers or carrying a mobile device on which they can access their email. As for employees who work outside the office, the availability of employer-issued phones and, alternatively, the proliferation of BYOD policies, has resulted in off-site employees being generally just a phone call away. In specific industries in which employees drive motor vehicles while conducting business for the employer, yet another method of accountability exists: Global Positioning Systems (GPS).”

Number 4: Cell Phones at the Workplace: Protecting Employee Safety, by Mark A. Lies, II and Adam R. Young. (Published: October 13, 2016.)  In this blog, the author’s note that as OSHA’s enforcement relating to employee cell phone use gains more notoriety, it “can be expected that it will have a significant collateral impact on law enforcement at all levels to address this hazard. Bring Your Own Device programs and employee cell phone use present a range of employment and labor liabilities for employers: smartphones can be a forum for employees to engaged in protected concerted activity, an opportunity for unauthorized overtime work, and a tool to access inappropriate images and harass coworkers. Yet the biggest challenge posed by cell phones is their inappropriate use.”

Number 5: Bullying in the Workplace – What Employers Need to Know,  by Arielle Eisenberg and Craig B. Simonsen. (Published: December 10, 2015.)  In this blog, the author’s ask and discuss what happens when an employee reports a bullying incident on the plant floor or in the office, or for that matter, while at the company’s holiday party? Is that something that corporate management need to be concerned about? “A workplace bullying claim, to be valid under current federal law, must be couched as either discrimination or hostile work environment. Although simple run of the mill bullying on its own is not actionable, employers have a number of incentives to prevent workplace bullying such as minimizing turnover rate and increasing productivity.”

Number 6: New OSHA Rules on Drug-Testing, Retaliation Claims, and Accident Reporting, by Mark A. Lies, II, Patrick D. Joyce, Adam R. Young. (Published: June 24, 2016.)  In this blog, the author’s note that OSHA’s new final rules on discrimination and injury and illness reporting, 81 Fed. Reg. 29624, called into question mandatory post-accident drug screenings and safety incentive programs, open the door to new retaliation citations, and will require employers to post OSHA logs electronically.

Number 7: Employer Intent Is Immaterial In FMLA Interference Claims, by Nadia Bandukda. (Published: April 8, 2014.)  In this blog the author notes that the Family and Medical Leave Act (FMLA) arms employees with two types of causes of action against employers. First, its “retaliation/discrimination” provisions prohibit employers from discharging or discriminating against employees for “opposing any practice made unlawful” by the FMLA. Second, the FMLA’s “interference” provision states that it is “unlawful for any employer to interfere with,  restrain, or deny the exercise of or the attempt to exercise” any right provided by the FMLA.

We hope you’ve enjoyed this trip down memory lane! Again — Thank you!
Stay Safe and Stay Well.

For more information on any of these blogs and topics, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By James L. Curtis, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Occupational Safety and Health Administration (OSHA) has updated its frequently asked questions and answers to advise employers about the use of face masks in the workplace.

We had blogged previously about face masks at work. See DOL Issues FAQs About Face Coverings, Surgical Masks, and Respirators in the Workplace, Nothing Comes Close To The Golden Coast: California Requires Masks, New York Issues Executive Order Requiring Employers to Provide Essential Workers with Face Masks, and New CDC Face Mask Guidance Raises Liability Issues.

Now the OSHA FAQs indicate that “OSHA generally recommends that employers encourage workers to wear face coverings at work. Face coverings are intended to prevent wearers who have COVID-19 without knowing it (i.e., those who are asymptomatic or pre-symptomatic) from spreading potentially infectious respiratory droplets to others. This is known as source control.” Consistent with the Centers for Disease Control and Prevention (CDC) recommendation for all people to wear cloth face coverings when in public and around other people, “wearing cloth face coverings, if appropriate for the work environment and job tasks, conserves other types of personal protective equipment (PPE), such as surgical masks, for healthcare settings where such equipment is needed most.”  OSHA explains that:

Employers have the discretion to determine whether to allow employees to wear cloth face coverings in the workplace based on the specific circumstances present at the work site. For some workers, employers may determine that wearing cloth face coverings presents or exacerbates a hazard. For example, cloth face coverings could become contaminated with chemicals used in the work environment, causing workers to inhale the chemicals that collect on the face covering. Over the duration of a work shift, cloth face coverings might also become damp (from workers breathing) or collect infectious material from the work environment (e.g., droplets of other peoples’ infectious respiratory secretions). Workers may also need to use PPE that is incompatible with the use of a cloth face covering (e.g., an N95 filtering facepiece respirator).

OSHA concludes that where cloth face coverings are not appropriate in the work environment or during certain job tasks, “employers can provide PPE, such as face shields and/or surgical masks, instead of encouraging workers to wear cloth face coverings. Like cloth face coverings, surgical masks and face shields can help contain the wearer’s potentially infectious respiratory droplets and can help limit spread of COVID-19 to others.”

While OSHA offers face shields as an alternative where face coverings are not feasible, no federal agencies have certified face shields as an equally effective alternative means of protection.  The CDC explains that “it is not known if face shields provide any benefit as source control to protect others from the spray of respiratory particles. CDC does not recommend use of face shields for normal everyday activities or as a substitute for cloth face coverings.”

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Lisa Lehmann Nichols and Scott P. Mallery

Seyfarth Synopsis: Between states reopening and summer vacation beginning, employers have wondered what say they have over their employees’ use of PTO. Below are some of most frequently asked questions from employers about employee vacation in light of the pandemic.

Introduction

As Seyfarth has noted throughout the pandemic, businesses seeking to reopen must square reopen plans with the vast maze of guidance issued by jurisdictions across the nation. With an already-struggling economy in the backdrop, reported cases of COVID-19 have spiked, forcing many business that expended resources to attempt to reopen to close their doors once again. Despite crises upon crises, and a million other thin lines employers must balance upon, we have also moved in to summer time. Employees may now worry less about contracting COVID-19 and, in the process, catch a new bug: the travel bug. Indeed, according to some contact tracers, the desire to gather and get out of the confines of the home after quarantine has in part caused the spike in reported cases. While most were required to remain home, many employees accumulated large amounts of PTO during the stay-at-home orders. Which begs the question: What say do employers have, or not have, over an employees’ use of PTO. We at Seyfarth have asked questions (FAQ) from employers regarding employee travel and PTO, as well as some suggestions:

I’m worried that too many of my employees will want to take vacation at the same time after stay-at-home orders end. What should I do?

Employers who are concerned about employees taking PTO during the same time period may be able change their policies and/or exercise existing discretion allowed in policies to deny requests.  Employers should first check the language in their policies and any bargaining agreements to ensure they have the right to discretionary changes in those policies.  Also, if an employer has a use it or lose it policy, and does not allow an employee to take accrued time, that can be problematic and could result in the need for a limited carryover for a period of time. For what carryover your specific jurisdiction requires — or does not require — please feel free to reach out to Seyfarth for additional guidance.

Below are some tips as to how to modify your vacation policy based on business needs, keeping as always in mind compliance considerations:

  • If your company is financially able, entice employees to give up PTO by offering to cash out their unused PTO.
  • Notify employees of blackout dates for PTO when there is either limited or no PTO available. Note: if you previously approved an employee’s vacation during a blackout period, make sure to honor that approval.
  • Implement an employer-sponsored leave-sharing program that would allow an employee to donate accrued PTO to benefit other employees who are in need of taking more leave than they have available. See also IRS guidelines for major disaster leave-sharing plans and medical leave-sharing plans. Of note, some employers may receive backlash for such a program, particularly large employers.
  • Consider proactively creating or reducing accrual caps. Note: check to see what PTO is legally required in your location before making reductions, and know that certain jurisdictions do not allow you to change caps if it will result in the loss of already accrued and earned time.

I am worried changing my vacation policy will result in backlash, what can I do?

Inevitably, many employees will be unhappy with reductions to PTO policies or an inability to take the time when they want. An employer may reduce the backlash by (1) choosing the least intrusive means possible for reducing PTO that is consistent with applicable law and (2) being candid with employees about the company’s financial situation and the reason for the PTO reduction (this is especially true if your company has taken a big hit during the pandemic).

May I limit the places where employees go for vacation (or protest) if I’m worried about them potentially spreading COVID-19 at work?

No. Employers may not restrict where employers go for vacation and may (see below) not restrict employees from attending protests during their PTO.

Employers who are concerned about the spread of COVID-19 may want to create a policy that if employees choose to travel to areas where there is a high-risk for contracting coronavirus, they will be subject to a 14-day quarantine period before returning to work. It is important that employees know of this policy ahead of time. The employer may want to consider linking its travel restrictions with travel advisories from the Centers for Disease Control and Prevention (CDC) and State Department. In addition, some states mandate a 14-day quarantine for travelers entering the state from areas of increased risk.

Additionally, employers may be able to require returning employees undergo a temperature check and other screening to determine whether an employee is experiencing COVID-19 symptoms or has been exposed to the virus. See EEOC FAQ.

May I require employees who have recently attended large events, such as weddings or protests, to quarantine before returning to work?

A mandatory quarantine period is not recommended for employees who attend large events unless the employees also traveled to high-risk areas as described above. Instead, according to the EEOC, employers can check employees’ temperatures and require  testing for the virus prior to returning to the workplace. Employers may also want to send an email recommending that employees who choose to attend large events get tested for coronavirus and/or self-quarantine. Employers can provide testing resources to ease the financial burden and potential backlash (for example, many cities are offering free coronavirus tests to protestors and are even recommending a 14 day quarantine after attending large events).

It should be noted that, in this space, there is a broad smattering of state statutes that may, or may not, permit an employer to discipline an employee for attending large events where COVID-19 could possibly be contracted. We advise you reach out to your favorite Seyfarth attorney for state specific questions.

Generally speaking, can an employer discipline an employee for conduct on their own time?

This questions draws the most famous of all lawyer responses: it depends. The pandemic has raised the saliency of this question. Unfortunately, there is a broad smattering of off-duty conduct statutes that vary widely from state to state and locality to locality without a precise pattern. Despite this variation, some common threads are evident.

First, the analysis should always begin with the premise that — apart from Montana — employment in the United States is “at will,” allowing either party to terminate the employment relationship at will. Obviously, an employer cannot terminate an employee for a discriminatory reason, i.e., based on an employee’s age. Second, though very rare, some jurisdictions provide for a right to privacy-seclusion, wrongful discharge tort, and similar common law claims. Third, many states have off-duty conduct statutes of one type or another, but the vast majority of these are in fact very narrow in what they protect. Those states that do govern off-duty conduct are almost invariably limited by a proviso that the protection will not apply if the conduct in question has a demonstrable adverse impact on the employer’s business or is otherwise unlawful. Fourth, some jurisdictions have enacted statutes protecting off-duty political activity and demonstrations with a political slant. These are typically very narrowly drafted, and heavily fact dependent. It is important to have all of the facts and understand applicable laws before proceeding with any disciplinary action.

For additional guidance on a particular factual scenario, we recommend you reach out to your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Counseling & Solutions or Absence Management and Accommodations Teams.