Sorry Dude: Title VII Does Not Protect An Expectant Father From Pregnancy Discrimination

Photo by Anna Shvets on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

Yes, you read that right–an expectant father cannot assert a claim for pregnancy discrimination under Title VII of the Civil Rights Act of 196, as amended. And we know this because an expectant father in New York tried to assert such a claim under Title VII and New York law, and the lawsuit was dismissed. (Van Soeren v. Disney Streaming Serv. , S.D.N.Y., 19 Civ. 10196 (NRB), 10/16/20). Not surprisingly, the Court held that Title VII’s prohibition on discrimination on the basis of pregnancy applies to employees who are actually pregnant, and not to spouses of pregnant employees.

Based on the facts alleged in the lawsuit (and the case was dismissed on a motion to dismiss, so we only have the plaintiff’s side of things), the plaintiff, Van Soeren, worked in a pretty toxic work environment. He alleged that various supervisors and co-workers “sham[ed],” “harass[ed],” and “treated [him] differently from all other employees at the Company” as a result of his “familial status vis a vis his spouse’s pregnancy.” For example, before plaintiff had disclosed his wife’s pregnancy to anybody at work, a co-worker said to plaintiff that he “shouldn’t have a kid,” and in another instance stated, within hearing distance of plaintiff, “I don’t know why he [plaintiff] decided to have a kid.” Another employee asked plaintiff whether he had a good reason for having a child. In one instance, presumably once plaintiff told his co-workers that his wife was pregnant, another co-worker sprayed baby powder on plaintiff. When Van Soeren returned to work after paternity leave, that same co-worker allegedly made a comment to plaintiff about still birth and improperly developed fetuses. Charming.

So while the plaintiff’s co-workers were definitely obnoxious, their actions did not amount to pregnancy discrimination against the plaintiff. At best, the plaintiff had a claim of discrimination on the basis of “familial status,” which is not covered by Title VII.

Even though the plaintiff failed to state a claim for pregnancy discrimination, an employer should not tolerate the kind of conduct allegedly directed at this plaintiff by his co-workers. If these folks are making negative comments about children and childbirth to a man, it is likely they may say the same things to a pregnant woman–and that could lead to a valid claim under Title VII. Furthermore, this kind of workplace bullying is not likely to enhance employee morale or productivity.

Keep in mind also that a new father may still have rights under the FMLA or state leave laws if he works for a covered employer.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Employee or Independent Contractor? DOL Issues Proposed Worker Classification Rule

Photo by Karolina Grabowska on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

Worker classification is a hot issue issue right now. The recent California law that classifies most workers as employees has completely upended the gig economy in that state, so it is no surprise that the law is being challenged by a number of business groups.

Under federal law, whether an employer classifies a worker as an employee or an independent contractor can have major economic consequences, especially if the worker is misclassified. For example, wrongly misclassifying an employee as an independent contractor can result in liability under the Fair Labor Standards Act (FLSA) for unpaid minimum wage and/or overtime compensation. Multiplied by two if the misclassification is considered a willful violation of the FLSA.

Today, the U.S. Department of Labor (DOL) announced a proposed rule offering what it claims to be clarity to determine whether a worker is an employee under the Fair Labor Standards Act (FLSA) or an independent contractor.

 In the proposed rule, the DOL would:

  • Adopt an “economic reality” test to determine a worker’s status as an FLSA employee or an independent contractor. The test considers whether a worker is in business for themselves (independent contractor) or is economically dependent on a putative employer for work (employee);
  • Identify and explain two “core factors,” specifically: (1) the nature and degree of the worker’s control over the work; and (2) the worker’s opportunity for profit or loss based on initiative and/or investment. These factors help determine if a worker is economically dependent on someone else’s business or is in business for themselves;
  • Identify three other factors that may serve as additional guideposts in the analysis including: (1) the amount of skill required for the work; (2) the degree of permanence of the working relationship between the worker and the potential employer; and (3) whether the work is part of an integrated unit of production; and
  • Advise that the actual practice is more relevant than what may be contractually or theoretically possible in determining whether a worker is an employee or an independent contractor.

As a practical matter, this Proposed Rule is intended to be more employer-friendly than the guidance of the previous administration on the same issue. It is not clear if this Proposed Rule will be enacted as a Final Rule before the election. If enacted before the election, a change in administration after the election likely will result in further change.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Telecommuting as a Reasonable Accommodation Under the ADA: The Pandemic Trial Run

Photo by Andrea Davis on Pexels.com

In the times before COVID-19, there were people (like the author) who telecommuted, but we were definitely in the minority. Now, thanks to the pandemic, many more people have been working remotely, and doing so successfully. And according to some new EEOC Guidance, successful telecommuting could be considered something of a trial run for those employees who ask to work remotely after the pandemic as a reasonable accommodation under the Americans With Disabilities Act (ADA).

This is a new Q & A from the EEOC’s “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws:”

Q: Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request? (9/8/20; adapted from 3/27/20 Webinar Question 22)

A: Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.

In a nutshell: if an employee with a disability had requested telecommuting as a reasonable accommodation before COVID-19, and that request was denied on the grounds that the employer did not think telecommuting would be workable, and then that employee successfully telecommutes during the pandemic, now the employer may no longer have grounds to deny the telecommuting as a reasonable accommodation after all of this pandemic stuff is over. Why? Because the pandemic telecommuting operated as a “trial run” that showed that the employer’s initial concerns about teleworking may be unfounded. At a minimum, the employer cannot simply deny the request to work remotely on the ground that it was denied previously. Instead, the employer must work through the interactive process with the employee to determine what accommodation is reasonable.

Although I am always reminding employers to be consistent in their treatment of employees, this is an exception to that rule. An employer may need to treat a disabled employee differently from other employees because the disabled employee needs accommodations that other employees do not. The interactive process by which an employer, the disabled employee, and the employee’s health care provider discuss and decide upon a reasonable accommodation requires an individualized assessment of the employee’s abilities and needs.

The takeaway: The duty to provide reasonable accommodation is a fundamental statutory requirement under the ADA. An employer should respond expeditiously to a request for reasonable accommodation. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible.  Similarly, the employer should act promptly to provide the reasonable accommodation. Unnecessary delays can result in a violation of the ADA.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

DOL Issues New Guidance: No FFCRA Paid Leave If School Is Open But Parent Chooses Remote Learning

Photo by Pixabay on Pexels.com

Yesterday, the Department of Labor issued some new guidance on the paid leave provisions of the Families First Coronavirus Relief Act (FFCRA). The new guidance addresses the availability of paid leave to parents who are choosing to let their children go to school remotely.

By way of background, the FFCRA requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. These provisions will apply from the effective date through December 31, 2020.

Generally, the Act provides that employees of covered employers are eligible for:

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of paybecause the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
  • Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

According to the updated guidance, if a child’s school is closed due to the pandemic, and the parent must stay home with the child, the parent is eligible for paid leave under the FFCRA. However, if the school is open for in-person learning, but offers remote learning to those parents who choose not to send their children to the school, the parents who choose the remote learning are not eligible for paid leave under the FFCRA:

Q: My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)
A: No, you are not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID–19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If your child is home not because his or her school is closed, but because you have chosen for the child to remain home, you are not entitled to FFCRA paid leave. However, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her.

https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Likewise, if the school is open for in-person learning on alternate days, a parent would be eligible for paid leave on those days that the school is closed.

Therefore, if an employee is requesting FFCRA paid leave to care for a child who is not at school, the employer should inquire as to whether the school is open for in-person learning. It may also be a good idea to check the school district’s website for particulars.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

The Cost of Ignoring Racist Behavior in the Workplace

Photo by cottonbro on Pexels.com

What is the cost of ignoring racist behavior in the workplace? For a California company, it is $1.25 million dollars.

Air Systems Inc., a subcontractor for the construction of Apple Inc.’s new headquarters in Cupertino, California, paid $1.25 million dollars to eight employees to settle a lawsuit brought by the EEOC that alleged race discrimination in violation of Title VII. Among the allegations: ASI management refused to discipline a White co-worker who repeatedly taunted Black workers with a racist word; the company allowed racist graffiti to remain at the construction site; and it did nothing to address a noose that was hung at the site when it was reported to management.

The Consent Decree entered as part of the settlement also provides substantial non-monetary relief: ASI must retain an Equal Employment Opportunity Consultant to monitor ASI’s compliance with Title VII and the Decree; it must conduct training of its employees; and it must submit regular reports to the EEOC. Basically, ASI will have the EEOC all up in its business until December 31, 2022.

The Black Lives Matter movement has shined a spotlight on the issue of race discrimination. Now, more than ever, companies that ignore complaints of race discrimination, racist comments, and racially charged symbols such as nooses, do so at their peril. Indeed, companies need to be proactive in their training and messaging to employees that racist comments and behavior will not be tolerated in the workplace.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Hey Georgia Businesses: Is Your COVID Warning Sign Compliant?

As I discussed in an earlier blog post, this month, Georgia enacted a COVID immunity law. Georgia businesses will generally be protected from liability over COVID-19 exposure except in cases of gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm. In addition, Georgia businesses that post a warning sign will be entitled to additional protection from liability due to a rebuttable presumption of assumption of the risk by a claimant.

Many businesses are posting the COVID Warning Sign. And what they have discovered is that the sign is very large. The sign must be printed in at least one-inch Arial font placed apart from any other text. One inch Arial font translates to about 72 point font. In other words, this is not a little sign you can print off your computer and tape to a door. It is a big sign that is best done professionally by a sign business.

Some businesses are concerned that the presence of the sign will scare off customers. However, so many businesses appear to be posting these signs that it is likely that folks will stop really noticing them. Because this sign is essentially telling the public “Hey, don’t sue me if you contract the COVID,” it makes sense to go ahead and post one so you can cover your assets.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Do You Know What Your Managers Are Doing on Social Media?

Photo by Pixabay on Pexels.com

With so many people working and playing at home, it is no wonder that many of them are utilizing some form of social media to keep in touch with others. That includes your managers.

Why should you care about what your managers are doing on social media? Because what they say and do can reflect upon your company. And because to a plaintiff’s lawyer, your manager’s social media posts or activity can be considered evidence. To be used against your company.

Which means that your managers need to understand that whatever they post, share, or follow can be reflection on them and the company they work for, especially if their profile includes the name of their employer. That post that a manager “shares” that expresses disdain for the Black Lives Matter movement? Do you want to see that as evidence in a lawsuit for race discrimination filed by one of your employees? Or that video denouncing gay marriage? That may also show up as evidence in a discrimination lawsuit. Even if they do not become evidence, they may cause some people to stop doing business with your company.

Even more dangerous are the posts where a manager threatens or harasses an employee online. Your policy against harassment should make it clear that emails, texts, and social media posts that harass another employee (or third party) are prohibited. And it is usually not a good idea for managers and supervisors to be “friends” with their subordinate employees.

The manager’s position and industry also matter. It just doesn’t look good for a male teacher to be “following” hundreds of very young women on TikTok. Or for a safety coordinator to follow pages dedicated to the love of illegal drugs. Optics, people.

So what is an employer to do? The first step is to have a comprehensive written Social Media Policy. You should revisit and modify that policy as social media evolves. The policy should provide guidelines for social media use, both professionally and personally. A competent employment lawyer can draft a policy that will fits the needs of your organization.

In addition, the company should regularly communicate to its supervisors and managers that they should not post, share, or do anything on social media that would violate any company policies, such as:

  • the policy against harassment,
  • the company’s ethics policy,
  • the policy against violence, or
  • the EEO policy.

And that there will be consequences if they violate this policy.

Finally, it is also a good idea to have a computer and internet policy that spells out the types of sites employees can and cannot visit, and that advises all employees that they have no expectation of privacy in any company owned computers or internet use. Even when such a policy is in place, I am always amazed at how many employees download porn on their company owned computers. Which just makes my job as defense counsel more difficult.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Georgia Now Has A COVID Immunity Law

Photo by Nandhu Kumar on Pexels.com

Yesterday, Georgia Governor Brian Kemp signed into law S.B. 359, which will protect businesses and other organizations in Georgia from potential lawsuits over Covid-19 exposure. The law takes effect immediately.

Georgia businesses, and healthcare facilities and providers in particular, will generally be protected from liability over COVID-19 exposure except in cases of gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.

Furthermore, businesses can provide additional protection from liability by posting or printing specific warnings, which will create a rebuttable presumption of assumption of the risk by a claimant.

The rebuttable presumption of assumption of the risk is created by printing the following warning on any receipt or proof of purchase for entry, including but not limited to an electronic or paper ticket or wristband, issued to a claimant by the individual or entity for entry or attendance, includes a statement in at least ten-point Arial font placed apart from any other text:

Any person entering the premises waives all civil liability against this premises owner
and operator for any injuries caused by the inherent risk associated with contracting
COVID-19 at public gatherings, except for gross negligence, willful and wanton
misconduct, reckless infliction of harm, or intentional infliction of harm, by the
individual or entity of the premises.

Alternatively, businesses and healthcare facilities or providers can post the following sign at a point of entry to the premises, in at least one-inch Arial font placed apart from any other text:


Warning
Under Georgia law, there is no liability for an injury or death of an individual entering
these premises if such injury or death results from the inherent risks of contracting
COVID-19. You are assuming this risk by entering these premises.

Seven other states–Kansas, Louisiana, Mississippi, North Carolina, Oklahoma, Utah, and Wyoming, have passed similar measures. Other states, including Nevada, Ohio and Tennessee, are considering similar legislation. Senate Republicans are trying to include immunity on a federal level in the next coronavirus relief package. Stay tuned for more developments!

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Maintaining the Confidentiality of Employee Health Information During the Pandemic

Photo by Andrea Piacquadio on Pexels.com

In order to take the CDC recommended precautions to minimize the spread of COVID-19 in the workplace, employers must gather information about employee health. What can they gather, and what should they do with it? For answers, we look to the the Americans with Disabilities Act (ADA). The ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:

  •  An employee’s ability to perform essential job functions will be impaired by a medical condition; or   
  • An employee will pose a direct threat due to a medical condition.

 This reasonable belief “must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination.

Not surprisingly, the EEOC has concluded that based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard, which justifies making inquiries to determine if employees are infected with COVID-19.  Therefore, employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19.  Currently these symptoms include, for example, fever, chills, cough, shortness of breath, or sore throat.

Employers may also receive information from employees regarding certain health conditions that may make them or close family members more vulnerable to complications from COVID-19.

What’s an employer to do with all of this health information? Keep it confidential.

The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.

It is also a good idea to limit access to confidential employee health information to a few trusted management level employees, such as a Human Resources Manager or Safety Manager, and if your company has one, a company nurse. Remember, if someone doesn’t know about an employee’s health condition, she can’t use that knowledge as a basis to discriminate against the employee.

What happens if employees ask whether a certain employee has tested positive for COVID-19? The correct response is to say that you cannot give out confidential health information. Even if it is a small workplace, and folks may guess that the employee who has been out for 14 days may have COVID-19, do not be tempted to confirm any rumors.

Keep quiet, and keep washing those hands!

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Home Alone: Current CDC Guidance on At-Home Isolation for Persons Infected with COVID-19

Photo by Pixabay on Pexels.com

Many states continue to see rising numbers of persons with positive COVID-19 tests, which means that workplaces in those states are dealing with employees who are infected with COVID-19. The CDC recommends that employees who test positive for COVID-19 (using a viral test, not an antibody test) should be excluded from work and remain in isolation if they do not need to be hospitalized. But for how long?

Recently, the CDC has updated the recommendations for discontinuing home isolation as follows:

Persons with COVID-19 who have symptoms and were directed to care for themselves at home may discontinue isolation under the following conditions:

  • At least 10 days have passed since symptom onset and
  • At least 24 hours have passed since resolution of fever without the use of fever-reducing medications and 
  • Other symptoms have improved.

[However, for patients with severe illness, duration of isolation for up to 20 days after symptom onset may be warranted. Consider consultation with infection control experts.]

Persons infected with SARS-CoV-2 who never develop COVID-19 symptoms may discontinue isolation and other precautions 10 days after the date of their first positive RT-PCR test for SARS-CoV-2 RNA.

Be aware that the recommended isolation time for employees who have been exposed to COVID-19 is longer than that for those infected with COVID-19. CDC recommends 14 days of quarantine after exposure based on the time it takes to develop illness if infected. Thus, it is possible that a person known to be infected could leave isolation earlier than a person who is quarantined because of the possibility they are infected.

Wash your hands, wear your mask, and be safe out there!

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.