| Special #53 - July 22, 2020 |
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GEA's upcoming Live Webinars Register now! Cost only $49 each Webinar (Payments processed by PayPal)
1. Managing Toxic & Other Employees Who Have Attitude Issues Date - Wednesday, July 29, 2020 Time - 1:00 AM – 2:00 AM EDT
2. Creating a Strategic Plan that Addresses Your Organization’s Most Critical Issues Date - Thursday, July 30, 2020 Time - 1:00 PM – 2:00 PM EDT
3. Utilizing HR Metrics to Illustrate & Enhance HR's Contribution Date - Tuesday, August 11, 2020 Time - 1:00 PM – 2:00 PM EDT
4. Transitioning from a Traditional Manager to a Strategic Leader Date - Friday, August 14, 2020 Time - 11:00 AM – 12:00 PM EDT
5. Effectively Leading a Customer Service Team Date - Thursday, August 20, 2020 Time - 11:00 AM – 12:00 PM EDT
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- GA Chamber: Summary of Executive Order 07.15.20.01 for ‘Empowering A Healthy Georgia’
- Constangy.com Blog: Videoconferencing apps and litigation: Employers, be careful! BY ROBIN SHEA ON 7.17.20
POSTED IN DATA PRIVACY, ELAW, HR
- HRDive BRIEF: Workplace culture eroding amid pandemic, report says AUTHOR Sheryl Estrada
PUBLISHED July 20, 2020
- HRDive BRIEF: DOL wants to know: What's the 'ideal paid leave program'? AUTHOR Kate Tornone@KateTornone
PUBLISHED July 17, 2020
- Constangy.com Legal Bulletin: OSHA issues new FAQs on reporting coronavirus cases July 16, 2020
- ¶47,143 Five advice memoranda address COVID-19 issues; 11 others also released — AGENCY GUIDANCE, (Jul. 21, 2020)
by Pamela Wolf, J.D.
- Georgia Department of Public Health COVID-19 Daily Status Report
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Summary of Executive Order 07.15.20.01 for ‘Empowering A Healthy Georgia’
On July 15, 2020, Governor Brian Kemp issued executive order 07.15.20.01 addressing Georgia’s ongoing public health emergency and furthering the Governor’s initiative on “Reviving a Healthy Georgia”. In a previous Order, EO 06.29.20.01, the Governor extended the public health state of emergency through August 11th, 2020. The executive order from July 15 (“EO”) includes the following directives: Through July 31, 2020, all visitors and residents of Georgia shall continue to practice social distancing, are encouraged (but not required) to wear face coverings, are required to practice sanitation in accordance with CDC guidelines, and implored to avoid gatherings of more than 50 people in which social distancing cannot be practiced.
Georgia citizens in the following categories are asked to “shelter in place” (avoiding anything other than essential services, necessary travel, or engaging in gainful employment) until July 31, 2020:
- Those persons who live in a nursing home or long-term care facility, including inpatient hospice, assisted living communities, personal care homes, intermediate care homes, community living arrangements, and community integration homes.
- Those persons who have chronic lung disease.
- Those persons who have moderate to severe asthma.
- Those persons who have severe heart disease.
- Those persons who are immunocompromised. Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medication.
- Those persons, of any age, with class III or severe obesity.
- Those persons diagnosed with the following underlying medical conditions: diabetes, liver disease, and persons with chronic kidney disease undergoing dialysis.
Until July 31, 2020, citizens in one of the aforementioned categories are subject to a “shelter in place” order and are restricted as to when they may leave the home and how they may receive visitors, except in case of emergency. The following provisions for business operations are in effect through July 31, 2020. These provisions may or may not be extended by a future executive order:
• Restaurants & Dining Services (including banquet halls and private event facilities) that have resumed dine-in service shall implement measures which mitigate the exposure and spread of COVID-19 among its patrons and workforce. The EO lists 35 2 | P a g e measures that Restaurants and Dining Services shall abide by. Additionally, the Department of Public Health may extend inspection timelines for any restaurant with
a current “A” rating.
• Critical Infrastructure Businesses, as defined by the Department of Economic Development, shall implement measures which mitigate the exposure and spread of COVID-19 to the maximum extent practicable. Such measures may include, but shall not be limited to, 16 measures listed in the EO.
• Businesses that are NOT Critical Infrastructure may continue in-person operations. However, those businesses shall implement measures which mitigate the exposure and spread of COVID-19 among its work force. Such measures must include the 20 measures listed in the EO, and should,
when possible, include an additional 3 measures as listed.
• Grocery Stores and Food Establishments shall implement additional measures to prevent the spread of COVID-19, as practicable. These additional measures shall include 11 measures as listed in the EO.
• Gyms and Fitness Centers shall implement additional measures to prevent the spread of COVID-19, as practicable. Such measures shall include 17 measures listed in the EO.
• Body Art Studios, Estheticians, Hair Designers, Massage Therapists, and Tanning Facilities shall implement additional measures to prevent the spread of COVID- 19, as practicable. Such measures shall include 11 measures as listed in the EO.
• Movie Theaters may operate and shall implement additional measures to prevent the spread of COVID-19. Such measures shall include 7 measures as listed in the EO.
• Bowling Alleys shall implement additional measures to prevent the spread of COVID- 19. Such measures shall include 8 measures as listed in the EO.
• Bars may continue in-person operations. Bars, in addition to the requirements on “Non-Critical Infrastructure” shall take an additional 39 measures to prevent the spread of COVID-19. Such measures are listed in the EO.
• Operators of Amusement Rides (traveling carnivals, water parks, circuses, etc.) in addition to the requirements on “Non-Critical Infrastructure” shall take an additional 33 measures to prevent the spread of COVID-19. Such measures are listed in the EO.
• Healthcare Services shall adhere to the guidelines listed under “Critical Infrastructure” Businesses.
• Childcare Facilities shall maintain Worker- Child Ratios set forth by the Georgia Department of Early Care and Learning. Additionally, Childcare Facilities shall implement 13 measures to prevent the spread of COVID-19 that are listed in the EO.
• Summer Camps and Overnight Camps may operate in accordance with previous EOs. Summer camps shall implement measures to prevent the spread of COVID-19 among campers and such measures shall include but are not limited to 33 measures listed in the EO. Additional guidelines for Campers and 3 | P a g eWorkers can be found on pages 26 through 30.
• Conventions operators must abide by 21 COVID-19 mitigation efforts, listed in the EO. In addition to provisions for business operations and medically fragile Georgians, the Governor set out further guidelines for government operations in EO 07.15.20.01. Rules regarding foster homes and children’s custodial arrangements can be found on page 30. Provisions for the operation of summer schools and school districts can be found on pages 24 and 25. Provisions for the extension of some deadlines and waiver of some rules for Local Governments can be found on pages 30-31. Restrictions on local ordinances requiring face masks, PPE, etc. are on page 32. And provisions for the enforcement of the EO can be found on page 39-40.
Guidelines for Sports and Live Performance Venues
• Live performance venues are divided into three tiers based on their fire code capacity with corresponding requirements:
- Tier One is facilities holding 999 or fewer persons. The EO lists 23 COVID-19 mitigation measures the venue shall abide by.
- Tier Two is facilities holding between 1,000 and 4,999 persons. These facilities must abide by the mitigation efforts set out in Tier One and may, as practicable, use an additional 7 mitigation guidelines set out in the EO.
- Tier Three is facilities holding 5,000 or more persons. Professional Sports in Tier III facilities shall abide by the rules or guidelines that have been promulgated or approved by the respective professional league of the sport. For all other events, measures may be developed in conjunction with the performer(s), and, if applicable, the organizer(s), promoter(s), or sponsor(s) of the event. Such guidelines shall not be inconsistent with the guidelines provided by the Centers for Disease Control and Prevention to prevent the spread of COVID-19.
• Exemptions to Live performance venues rules include drive-in venues and performance venues with events closed to the public. Examples of this type of activity may include recording sessions for artists, live stream performances, practices, spectator-less competitions, and rehearsals.
• Professional Sports Teams and professional sports organizations that engage in practices, games, or other in-person operations shall operate solely pursuant to the rules or guidelines that have been promulgated or approved by the respective professional league of the sport.
• Collegiate and High School Sports Teams and organizations that engage in practices,
games, or other in-person operations shall operate solely pursuant to the rules or
guidelines that have been approved by the applicable conference or association.
• Amateur sports teams and amateur sports organizations that continuing in-person operation shall adhere to the guidelines for “non-Critical Infrastructure” organizations.
Link to GA Chamber webpage (PDF download):
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| | | ¶47,137 EEOC votes to undertake EEO-1 pay data study — FEDERAL NEWS,
July 20, 2020
by Pamela Wolf, J.D.
from GEA’s HR answers now
On July 16, the EEOC announced that the Commission has unanimously voted to fund a statistical study with the National Academies of Sciences, Engineering, and Medicine’s Committee on National Statistics (CNSTAT) to conduct an independent assessment of the quality and utility of the EEO-1 Component 2 data for FY 2017 and 2018, which was collected last year as the result of a court order. Component 2 is the pay data collection finalized under the Obama Administration, stayed by the Trump Administration, and subsequently reinstated by a federal district court in Washington, D.C.
The EEOC has not renewed this pay data collection for 2019.
The new CNSTAT project began on July 1, 2020, and is expected to be completed by December 31, 2021, according to the EEOC.
Component 2 pay data. The controversial addition to the EEO-1 report, which the Obama-era Commission formulated in partnership with the OFCCP, added aggregate data on pay ranges and hours worked to the form, in addition to the Component 1 data. The new information was to be reported for each of the 10 EEO-1 job categories and in each of 12 pay bands. Employers were required to count the number of employees they have in each pay band for each job category. If no employees were in a job category or pay band, employers were required to leave the cell blank. Notably, reporting of specific salaries of each individual employee was not required.
The new data was expected to improve investigations of possible pay discrimination, which remains a contributing factor to persistent wage gaps, the EEOC said when it announced the new data collection. At the time, the agency also pointed out that for purposes of self-assessment, employers could use published aggregated data to compare or benchmark their own data with data from other employers in their industry or geographical area.
Employers and other stakeholders pushed back hard against the new requirement, arguing, among other things, that it would require employers to revamp their information systems, would be unduly burdensome in other ways, and would not actually be effective in meeting its intended goals.
Pay data assessment. In announcing its new study of the EEO-1 Component 2 data collected for FY 2017 and 2018, the EEOC noted that the Information Quality Act requires the Commission to assess and assure the quality and utility of data collected by the agency. In order to meet those requirements, the assessment by CNSTAT will examine the fitness for use of the data, including the utility of pay bands in measuring pay disparities, as well as potential statistical and analytically appropriate uses of the data. The CNSTAT assessment will also inform the EEOC’s approach to future data collections, the EEOC said.
Independent panel of experts. CNSTAT will independently lead the study. It will assemble a panel of subject matter experts who will be screened for potential conflicts of interest throughout the life of the committee. The panel will hold public meetings to collect input from stakeholders, including representatives of organizations or interest groups, hold closed internal meetings to allow the panel to deliberate and formulate recommendations for the EEOC, and produce a final report, which will be sent through the National Academies’ independent review process before being released publicly.
The EEOC noted that CNSTAT members include experts in statistical and computational methods; survey research; economic, social, and demographic measurement; and other relevant fields, who serve pro bono for three-year terms. During its 47-year history, CNSTAT has released more than 270 reports, the fruit of the interdisciplinary groups of experts who provide their services as consensus panel members, workshop participants, and reviewers.
In 2012, CNSTAT reviewed methods for measuring and collecting pay information and issued a final report, "Collecting Compensation Data from Employers."
"I am pleased that CNSTAT will be conducting a thorough review of the EEO-1 Component 2 data collection," said EEOC Chair Janet Dhillon. "Not only will this independent assessment answer critical questions about the data that was collected, but will give the Commission valuable information as we consider the future of pay data collection."
Source: Written by Pamela Wolf, J.D.
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| | | Constangy.com Blog: Videoconferencing apps and litigation: Employers, be careful!
BY ROBIN SHEA ON 7.17.20
POSTED IN DATA PRIVACY, ELAW, HR
Looking pretty on camera is the least of our worries.
One of the very few good things about the early days of the COVID-19 pandemic was the fact that I could work at home, which also meant I could look like a bum all day. No makeup. It was awesome!
But now, I'm back at the office (which truly has been nice), and probably at least half of my conference calls are on Zoom or Microsoft Teams. Not only can I not be a bum any more, but I can't even "dress for work" any more. Now I have to "dress for TV," which is harder. I have to select the right clothes (at least from the sternum up), make sure my hair looks great (OK, OK, as good as it will ever get), and wear twice as much makeup to cover all the flaws that the webcam displays with such pitiless accuracy.
I'm slowly getting it. This week I discovered that I look nicer on camera if I have a necklace on. Good to know! I'll wear one from now on!
But my colleague and law partner, Zan Blue, emailed me this week about an issue that is even more serious than how I look on video: the use in litigation of calls recorded in videoconferencing apps, such as Zoom, Teams, Webex, or Google Meet.
Picture this scenario: A supervisor, the supervisor's boss, and a Human Resources manager -- all of whom are still working remotely and all of whom, like me, are new to video conferencing apps -- are on a video conference to talk about whether to take action against an alleged sexual harasser. The plan is for them to agree among themselves on how to proceed, and then the HR Manager will contact their lawyer and run it by him.
Right now, it's just the gang. They start out serious and (correctly) decide that there isn't enough evidence to justify taking action against the alleged harasser. Now that that's settled, they start chit-chatting about their kids, the weather, and a similar "he said/she said" sexual harassment case the company had a couple of years ago. That degenerates into some humor that starts out tasteless and descends into raunchy, and then the supervisor's boss lets fly a remark about the current alleged victim. Everyone laughs, and they sign off the call. The HR Manager calls the attorney, tells the attorney what they decided to do and why, and the attorney gives his blessing.
But what happens to that call?
Well, it turns out that the HR Manager thought it would be a good idea to record the call for future reference. Six months later the alleged victim is fired for poor attendance and sues the company for retaliation. Her attorney serves an e-discovery request that includes any non-privileged recordings related to the alleged victim, the investigation of her sexual harassment allegations, and the alleged harasser.
Uh-oh. Guess what they'll have to give the lawyer for the alleged victim.
You are correct.
Now, let's pretend we're back in 2019. Same scenario, except that they're meeting in person, or having a conference call on a landline. The same things are said. Would they have had the same problem?
Probably not. First, if they were meeting in person, they probably could have spoken freely, as long as they kept their door closed and made sure prying ears weren't around. And even though one can record an old-fashioned conference call on a telephone (telephone? how quaint!), that usually wasn't done unless it was a training session or seminar. Also, if you were inclined to record a regular phone call, you probably would have told everybody in advance.
What about email? Probably not a problem. I'd say that ever since 2015 or so, everybody in business knows better than to say something stupid in an email.
What about texting? Despite the discoverability of texts, I still see plenty of awful ones. I still think it's dangerous to discuss any important business or HR issues in a text. But it may be easier to stay on topic in a text as opposed to a phone call, you know your messages are recorded, and you at least have the ability to read and decide whether your thumb-typed misspellings, acronyms, and emoji are appropriate or inappropriate for a business setting.
The future is now.
The trouble with these videoconferencing apps is that, except for the fact that you have to constantly worry about how you look on camera, they "feel" a lot like being on a phone call. And that gives people a false sense of security, and privacy. Which sometimes makes them feel that they can say anything and that it won't go any further.
At the same time, the ease of recording a session can also make the recorder(s) feel like recording is no big deal. And it really does seem like a good idea to record a call when you're making a decision about something important. Taking notes is such a bother, and anyway, your handwriting is illegible.
But the sense of privacy coupled with the ease of recording is a toxic combination. Sort of like mixing Clorox (is that back in the stores yet? Please?) with ammonia.
So here are some ways you can protect yourself and your company from an e-discovery disaster as we all become more "remote":
• Consult with your IT department and legal counsel about retention of recorded videoconferences. The default setting on Teams, for example, is to keep chat data forever. But the default setting can be changed and customized. Teams also offers a variety of call recording options. (Not a product endorsement. I'm sure the other apps do the same.)
• Consider, with the advice of your attorney, adopting a policy about which types of conferences will be recorded and which will not. If you adopt such a policy, make sure everybody knows about the policy and complies with it.
• Don't record videoconferences unless you have to. When in doubt, ask your lawyer.
• If you do intend to record a conference, let everyone know in advance, in writing. You can include that in your Outlook invite.
• When the call begins, remind everyone that the call will be recorded.
• Once your business decision is made, stop the recording. (The chit-chat can continue, unrecorded.)
• If you have something really sensitive to discuss, include your attorney on the call. That won't guarantee that the call is privileged, but it won't hurt and might help.
• Make sure that recorded video conferences are included and adequately addressed in your document retention policy.
(Thanks, Zan!)
Tags: Data Privacy, Document retention, E-Discovery, Google Meet, Microsoft Teams, Videoconferencing apps, Webex, ZoomRobin E. Shea / Partner
336.721.6854
Robin has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, the Equal Pay Act ...
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HRDive BRIEF
Workplace culture eroding amid pandemic, report says
AUTHOR Sheryl Estrada
PUBLISHED July 20, 2020
Read online>>Dive Brief:
• Amid the COVID-19 pandemic, key issues in workplace culture, such as understood norms of behavior, are being impacted, according to Emtrain. The HR compliance training and data analytics company released a report July 15 which noted changes in employee sentiments over just a few months, including an 11% drop in rating the workplace culture as "healthy" in the area of preventing workplace harassment.
• The report compared the survey responses of more than 100,000 employees obtained before March 15 to data from surveys administered after March 15 of more than 20,000 employees, according to Emtrain. Since the shift to remote work, the report found a 10% decrease in employees saying "there are well-understood norms of behavior governing how people treat each other in their workplace." One positive change, however, was an 8% increase in employees seeing their coworkers exhibit social awareness.
• "Well-understood norms of behavior" is an indicator of overall workplace health, Emtrain founder and CEO Janine Yancey said in a statement. "To see that drop is a red flag." The report also noted a 7% increase in employees saying they feel a need to minimize their heritage or identity at work. This metric is an indicator of inclusion, according to a previous Emtrain report.
Dive Insight:
By mid-March, many companies pivoted to telework and states began issuing shelter-in-place orders. Communication and transparency from leadership matter even more during the pandemic, according to experts.
"Transparency for building trust is so important right now," Jeanne Schad, talent solutions and strategy practice leader at Randstad RiseSmart, said in a recent webinar. "Trust is how we're going to get work done quickly. When we need people to be productive right now, it's so important to build their trust."
Highlighting company values remains an important part of transparency, according to Schad. Trust is also developed when employers show compassion or empathy, Francesca Campalani, Randstad Enterprise Group vice president of global talent marketing, said.
On LinkedIn, engagement with pandemic-related posts from companies was higher than the engagement for an average company post, according to a LinkedIn report published April 21. Posts using words such as "health" and "support" tended to have the highest engagement. "In short, it looks like messages that put people first perform best," the report said.
Meanwhile, a June 22 report by the Center for Talent Innovation (CTI) found that a sense of belonging for all employees is crucial amid the pandemic and nationwide calls for racial and social justice. Employees who feel they can be their authentic selves are more likely to be engaged, according to CTI's report.
HRDive BRIEF
DOL wants to know: What's the 'ideal paid leave program'?
AUTHOR Kate Tornone@KateTornone
PUBLISHED July 17, 2020
Dive Brief:
• The U.S. Department of Labor (DOL) asked stakeholders for input on paid leave programs and potential changes to Family and Medical Leave Act (FMLA) regulations July 16 and July 17, respectively.
• In the paid leave request for information (RFI), the department’s Women’s Bureau asked employers and workers alike to describe "the features of an ideal paid leave program" — including duration and funding. It also asked employers about barriers to paid leave, and whether there are any key insights to be drawn from the temporary paid leave mandate in the Families First Coronavirus Response Act. The public may comment until Sept. 14.
• The second RFI came from the agency’s Wage and Hour Division. Among other things, the agency asked employers for information about challenges applying the FMLA's eligibility criteria and administering intermittent leave. The public may comment until Sept. 15.
Dive Insight:
While it’s notable that DOL is thinking about paid leave, the Women’s Bureau in a statement announcing the RFI said it is specifically "requesting comment on the effectiveness of current state- and employer-provided paid leave programs."
The information, the agency said, will help it "identify promising practices related to eligibility requirements, related costs, administrative models of existing paid leave programs and access to information about paid leave."
So the request doesn’t mean DOL has its sights set on a federal paid leave mandate, according to Morgan Lewis Partner Susan Harthill. "It will not lead to any rulemaking," she said, because the Women’s Bureau doesn’t have regulatory authority and even the larger DOL would need a congressional mandate to implement paid leave in the private sector.
Harthill, who previously served as deputy solicitor for national operations at DOL, said the data the Bureau receives is more likely to inform public policy. It could help Congress devise future paid leave proposals, she said, or inform state and local efforts; the Women’s Bureau has previously provided grants to help states analyze the effectiveness of their paid leave programs, for example.
The second RFI, which seeks information about potential changes to the agency’s FMLA regulations, has been in the works for some time, according to DOL’s regulatory agenda. Initially framed as an effort to reduce employers’ compliance burdens, the latest request remains in line with that effort, Harthill said
It’s unlikely, however, the agency could accomplish all necessary steps — namely, publishing a proposed and then a final rule — before the next presidential inauguration, Harthill said, meaning the fate of any such changes may depend on the outcome of the presidential election. "I don’t see any realistic path to promulgating a final rule before January 2021," she said. "They may be able to take what they get from an RFI and publish a proposed rule but there isn’t enough time to promulgate a final rule by January." And should the U.S. install a new president, the new administration likely would want to review the effort and decide whether to continue it, she said.
Harthill said employers and HR professionals should consider providing comments in response to one or both RFIs. "The whole point is to collect information," she said, "so if … any stakeholder that has an interest in this issue can consider submitting comments and providing information, that could be useful for rulemaking under the FMLA or informing public policy going forward."
Follow Kate Tornone on Twitter
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| | | | Constangy.com Legal Bulletin: OSHA issues new FAQs on reporting coronavirus cases
July 16, 2020
The Occupational Safety and Health Administration has issued new Frequently Asked Questions addressing when employers governed by the federal agency must report work-related cases of COVID-19. The most significant new information concerns the circumstances under which an employer must report to OSHA when an employee is hospitalized as a result of contracting COVID-19 at work.
Under § 1904.39(b)(6), employers are required to report an inpatient hospitalization only if the hospital admission “occurs within twenty-four (24) hours of the work-related incident.” Although the reference to a “work-related incident” seemingly refers to an event or accident, this is the only regulation that describes the specific circumstances under which an admission to a hospital must be reported. Therefore, before the new FAQ, employers understood that hospitalization for an illness, like COVID-19, would have to occur within 24 hours of the last exposure at work to whatever caused or contributed to the illness, which presumably would be the last day the employee reported to work.
With the new FAQ, OSHA has effectively disregarded its existing recordkeeping regulation and has created a new requirement. Under federal administrative procedures law, however, OSHA cannot create or change rules unless it first advises the regulated public of a proposed new rule and allows the public to weigh in on the proposal. As noted, OSHA has not done this, but has instead simply announced a new substantive requirement setting out when COVID-19-related hospitalizations must be reported.
Under the new FAQ, an employer must report COVID-19-related hospitalizations when the employer has knowledge that 1) the employee has been hospitalized 2) as a result of COVID-19. Thus, contrary to the existing recordkeeping regulation on reporting, which requires a case to be reported only if the hospitalization occurs within 24 hours of a work-related incident, the new FAQ requires employers to report COVID-19-related hospitalizations to OSHA no matter how many days passed since the employee was last exposed to coronavirus at work.
For example, in a typical scenario, an employee reports symptoms that may be related to COVID-19 and is directed to stay out of work. Days later the employer learns that the employee has been hospitalized, apparently due to worsening symptoms. The employer does not have actual knowledge whether the employee has tested positive for COVID-19 and may never receive actual notification of that status because of the privacy rule of the Health Insurance Portability and Accountability Act or other privacy protections. Under the new FAQ, when the employer learns that the employee has been admitted into a hospital as a result of COVID-19 and has presumably tested positive, the employer must report this case to OSHA within 24 hours, regardless of when the employee was last exposed to the virus at work. OSHA further notes that if an employee is hospitalized with what is apparently work-related COVID-19, but the case is not confirmed until after the hospitalization, the employer would have to report the case to OSHA within 24 hours of when the employer learned that the case of COVID-19 had been confirmed. OSHA says that a confirmed case means that “at least one sample tested positive for SARS-CoV-2.”
The FAQ does not afford as much clarity as the Agency may think, because, as noted, it is not clear that employers would receive any formal confirmation of a positive test.
For those of you who wish to stay out of trouble and avoid a citation for untimely reporting, it is prudent to report to OSHA within 24 hours of when you learn of a COVID-19-related admission to a hospital. But if you inadvertently miss this new deadline, we advise against conceding that there has been a violation of your obligation to report to OSHA when there has been a hospitalization. If that hospitalization occurred more than 24 hours after the “work-related incident,” then we believe that as a matter of law the rule in § 1904.39(b)(6) still controls and does not require reporting.
For a printer-friendly copy, click here.
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| | | | | ¶47,143 Five advice memoranda address COVID-19 issues; 11 others also released — AGENCY GUIDANCE,
(Jul. 21, 2020) by Pamela Wolf, J.D.
from GEA's HR answers now
On July 15, the National Labor Relations Board released 16 advice memoranda, all but two of them issued in 2020. Five of those advice memos, written in June 2020, address COVID-19 related issues—all were answered by the Division of Advice in emails from unidentified individuals. According to one of those memos, an employer may unilaterally take reasonably related actions during a pandemic but must negotiate over the decision and its effects "within a reasonable time thereafter."
COVID-19 issues. Generally, the pandemic-related advice memos addressed issues of COVID-19-related layoffs and temporary assignment offers to conduct testing or contact tracing; reasonable access during the pandemic; discharge following a request to work remotely due to COVID-19; and unilateral work-from-home and attendance policy changes related to the pandemic emergency.
Layoffs and offers of temporary assignment. In Children School Services (05-CA-258669), the June 30, 2020, memo addresses whether a government contractor that supplies nursing services within D.C. public schools acted unlawfully in response to the citywide closure of schools due to COVID-19, finding among other things that Section 8(a)(5) allegations concerning the employer’s layoff, and related offer of temporary work assignments in lieu of layoff, were without merit.
Layoffs. As to the layoffs, the Division concluded that the contractor’s actions were privileged by the collective-bargaining agreements under the Board’s 2019 MV Transportation, Inc. decision (368 NLRB No. 66). "Not only did the contract contain an entire article devoted to layoffs (which may or may not apply to these ‘temporary’ layoffs), but the management rights clauses also contained a general right to lay off," the memo states. "Thus, the decision to lay off the nurses while school was out was within the compass or scope of contract provisions granting the Employer the right to act unilaterally."
Temp assignment offers. Turning to the offer of temporary assignments in partnership with the D.C. government to perform COVID testing and/or contact tracing in lieu of layoff, the Division similarly concluded that the contractor’s action did not amount to a unilateral change. "Broad zipper clauses in the contracts likely foreclosed any obligation to engage in effects bargaining as to the layoffs or alternative work assignments in lieu of layoff," the memo said. "The contracts state that ‘any matters not specifically and expressly covered by this Agreement shall remain within the sole right and discretion of [the Employer]’ and that the Union ‘voluntarily and unqualifiedly waives any further bargaining and agrees that [the Employer] will not be obligated to bargain . . . with respect to any subject or matter referred to or covered in this Agreement or with respect to any subject matter or matter not specifically referred to or covered in this Agreement."
Even if the contractor did have an obligation to bargain, it engaged in pre-implementation bargaining over both issues, and the bargaining was sufficient to satisfy its obligations under the exigent circumstances present in this case, according to the memo.
Unrestricted reasonable access. The June 19, 2020, memo in RS Electric Corp. (14-CA-260142) deals with the interpretation of a contract that gives the union the right to access job sites "at any reasonable time." Here, the Division reiterated that the Board will not choose between two "equally plausible" interpretations of a contract. In this case, it was not at all clear that the union’s demand for immediate unrestricted access was reasonable in light of the COVID-19 pandemic, and the union did not try to bargain about the company’s view of reasonableness—that it needed a one-hour advance notice in order to prepare for safe access.
Alternatively, the contractual limit on access to "any reasonable time" gave the employer the right under the contract coverage test to require one hour advance notice, the Division said, citing MV Transportation, Inc.
Access on a single day. In a June 3, 2020, memo in United States Postal Services (14-CA-258516), the Division recommended dismissal of a Section 8(a)(5) charge in which the denial of access on a single occasion during the pandemic was due to an apparent misunderstanding between the parties that was quickly resolved the same day.
Fired after work-at-home request. In Larry Peel Co. (16-CA-259403), the June 15, 2020, memo addressed whether the employer lawfully discharged an employee who had requested to work at home due to COVID-19. At the threshold, the Division agreed that the employee was not engaged in protected concerted activity by texting with the controller about pandemic-related health and safety concerns on their personal cell phone if the controller was, in fact, a supervisor or manager. Here, the memo cites the Board’s 1978 Capital Times Co. decision (234 NLRB 309) that held that an employee was lawfully disciplined for individually refusing to cross a picket line established by non-statutory employees—because concerted activity must involve more than one statutory employee.
But even if the controller was an "employee" under the Act, the charge still lacked merit. Knowledge of protected concerted activity could not be shown because the employer was not aware of the texts, and the employee’s work-at-home request was individual in nature. Moreover, there was insufficient evidence of animus, and the employer would likely be able to establish that the decision was made before the employee requested a change in work location.
Unilateral policy changes. In a June 10, 2020, memo, the Division addressed whether the hospital violated Section 8(a)(5) by unilaterally changing its work-from-home and attendance policies in Mercy Health General Campus (07-CA-258425). The unilaterally implemented, expanded work-from-home policy did not apply to the unit employees. The policy change applied only to non-unit employees who could "fulfill all of their duties at home" since RNs (and other patient-facing employees) were never permitted to telework in view of their face-to-face patient-care duties. Accordingly, there was no change to the unit employees’ working conditions.
Further, under a Section 8(a)(3) analysis, there was no evidence or assertion of an anti-union motive under Wright Line.
Union-proposed attendance policy change. Turning to the hospital’s attendance policy, the memo notes that on about March 12, at the very beginning of the COVID-19 pandemic emergency, the union proposed that "[a]bsences resulting from potential risk of exposure to COVID-19 shall not result in any disciplinary action or other adverse consequences." Essentially agreeing, on March 15, the hospital issued a modified attendance policy, consistent with the union’s proposal, that would "temporarily pause all attendance and tardy-related penalties, including attendance and tardy-related corrective action."
While it’s unusual that the employer responded by issuing a policy essentially adopting the proposal without having first responded to the union that it was agreeing to the proposal, the hospital’s "actions are understandable in these circumstances where, as an acute-care hospital, time was of the essence in dealing with the emergency pandemic situation," the Division wrote.
Unilateral action during emergency. Even assuming that the hospital’s implementation of these two policies amounted to unilateral changes, "it is the General Counsel’s view that an employer should be permitted to, at least initially, act unilaterally during emergencies such as COVID-19 so long as its actions are reasonably related to the emergency situation," the memo states. "However, in addition, the employer must negotiate over the decision (to the extent there is a decisional bargaining obligation) and its effects within a reasonable time thereafter." Here, the hospital likely had no bargaining obligation in this situation, "where the unilateral changes appear to have been reasonably related to the pandemic emergency."
Source: Written by Pamela Wolf, J.D.
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| | | Georgia Department of Public Health COVID-19 Daily Status Report For: 06/03/2020 Updated 3pm daily
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