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EMPLOYMENT LAW UPDATE

EEOC issues COVID-19 vaccine guidance

By Mike O’Brien bio On Dec. 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance to include a section devoted to vaccinations. The EEOC’s guidance answers these and other COVID-19 vaccine questions: “Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?” “If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability?” “If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief?” “What happens if an employer cannot… . . . read more

HR Q&A

Does your law office owe employees paid sick leave when they self-quarantine?

By Lynne Curry bio Question: After I spent a weekend bar hopping, I felt remorseful, and self-quarantined so I wouldn’t bring COVID into my workplace and make others ill. I also took a COVID-19 test and luckily tested negative. Since my law office employer had moved everyone back on-site, I couldn’t work remotely and labeled my time off as sick leave. I just got my paycheck and apparently my employer has denied my sick leave. What’s my recourse? Answer: The Families First Coronavirus Response Act (FFCRA) allows most private sector employees up to 80 hours of paid sick leave in five instances. A health care provider advises the employee to self-quarantine; the employee is seeking a diagnosis for COVID-19 symptoms; the employee or someone the employee is caring for is… . . . read more

CYBERSECURITY

Disinformation endangers your company, not just democracy

By Doug Striker bio Did you hear about the rumor that COVID-19 was spread by mobile devices using the 5G network? It sounds so insane and far-fetched that no one would believe it, right? I mean, how in the world would a virus travel through a cell phone frequency band, into a cell phone or tablet, and then out of the device into a person’s body? But thanks to social media, fake news sites set up by bad actors, and Average Joes (like you and me) who click that “share” button all too readily, the rumor spread like wildfire, gaining so much traction that people were literally lighting cell phone towers on fire around the world. Why would someone spread such nonsense? And when I say “someone,” I not only… . . . read more

MANAGING THE OFFICE

Renting out extra space? Set up protective walls to avoid risk

With more law firm employees working from home during the pandemic, a firm may find itself living in too much space—and paying too much rent. One solution is to bring in a tenant. Usually the renter is a solo practitioner or a small firm, and the arrangement is good for everybody, because the firm collects the rent and the renter gets the amenities as well as the appearance of an association with the larger group. From a risk perspective, however, it’s a cause for concern. The firm has to look past the financial benefits to the danger spots. It has to think like a landlord and get signed documents and insurance policies. And more, it has to set up protections against the disasters specific to a law firm/law firm lease… . . . read more

EMPLOYMENT LAW UPDATE

How HR regulations could change under Biden administration

By Mike O’Brien bio Employers may be wondering how a Biden administration will affect workplace laws. Prior to the election, Biden’s campaign website gives some clues as to his priorities in this area. Biden lists the failure to pay minimum wage and overtime pay, forcing off-the-clock work, and misclassifying workers as problems resulting in billions of dollars a year in wage theft. To address those issues, he proposes a phased-in implementation of a $15 per hour federal minimum wage (including eliminating the tip credit). He also supports the adoption of a more stringent test for classifying workers as independent contractors, similar to the ABC test employed by California. This type of test would almost certainly result in many more workers being deemed employees and fewer being properly classified as independent… . . . read more

TOOL

Model Substance Abuse and Fitness for Duty Policy

Workplace substance abuse remains a major challenge for law offices. Although sound in principle, the traditional zero tolerance policy is ill-suited to the legal complexities of the modern world. This is especially true in states that have legalized marijuana. You can still take a clear and firm line on employee drug and alcohol abuse for the purpose of health and safety. But the policy also has to exhibit finesse and sensitivity to legal subtleties. One of the best ways to create an enforceable policy is to base it not on the legality of substance abuse but the undisputable fact that it renders employees unfit for duty to the detriment of safety. Here’s a Model Policy you can adapt.

COMPLIANCE

How to create a legally sound substance abuse policy

Make it all about fitness for duty, rather than zero tolerance Although it may sound good, zero tolerance may not be the best foundation on which to build a legally enforceable workplace substance abuse policy. This is especially true in states that have legalized recreational marijuana. The reason drug and alcohol use and impairment in the workplace cannot be tolerated isn’t so much that it’s illegal, but because it renders employees unfit to do their job. In addition to undermining the productivity you’re entitled to expect from your employees, this unfitness for duty may pose a health and safety dangers to not only the employee who’s high but others in the office. Here are 14 things to include in your Substance Abuse and Fitness for Duty Policy, along with a… . . . read more

TOOL

Model waiver of COVID-19 infection liability sign to post at your law office

As long as COVID-19 remains a threat, you run the risk of being sued by clients, vendors, guests and other visitors (“visitors”) who claim they contracted the virus at your office facility as a result of your inadequate safety measures. One way to limit liability is by conspicuously posting a sign at the entry of your facility indicating visitors’ agreement to waive their rights to sue you for COVID-19 infections by entering the office. Although there’s no guarantee that a court would enforce such a waiver, the Model Sign below uses fairly conservative language that has been found to be enforceable in other situations. Caveat: The inclusion of the phrase purporting to insulate you against your own negligence in Sections 3 and 4 is fairly risky and you may want… . . . read more

Contractors, COVID and stereotyping on HR radar

By Mike O’Brien bio DOL tries to clarify independent contractor definition The US Department of Labor (DOL) has proposed what it believes is a simplified definition of independent contractor (IC) for purposes of applying wage provisions of the Fair Labor Standards Act (FLSA), which applies only to employees. The new DOL proposal still focuses on the factors of economic reality, but tries to clarify how to apply them. DOL says employers first should focus on two core factors: (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. If both factors point to either employee status or IC status, that probably is the right classification. If not, DOL says three additional factors must be… . . . read more

Quiz

Office’s duty to protect returning employees from COVID-19 discrimination and harassment

SITUATION Fully recovered from his bout with COVID-19, Max is thrilled and excited to return to his custodian job after 14 days of mandatory home isolation. But almost immediately, he senses that something is wrong. His co-workers shun him and leave the room the moment he enters. And, while hygiene and handwashing are de rigueur for all maintenance staff, Max alone is required douse his hands in germicide and don rubber gloves each time he touches a piece of equipment. Worse, his supervisor harasses him and calls him “virus boy.” After weeks of putting up with it, Max complains to office management. But his complaints fall on deaf ears and he continues to be ostracized and made to take extraordinary safety and hygiene measures not required of anybody else. So,… . . . read more


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