| Special #54 - July 24, 2020 |
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Our Upcoming Live Webinars Cost only $49 each Webinar
1. Managing Toxic & Other Employees Who Have Attitude Issues Date - Wednesday, July 29, 2020 Time - 1:00 PM – 2:00 PM 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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| | | - ¶47,146 NLRB rules profanity-laced tirades, racist, sexist comments no longer protected — FEDERAL NEWS,
July 23, 2020
- ¶47,144 More FLSA, FMLA, and FFCRA guidance issued as workplaces reopen amid COVID-19 pandemic — AGENCY GUIDANCE, July 22, 2020- Constangy.com Blog: More FFCRA FAQs from the DOL! BY ROBIN SHEA ON 7.21.20- ¶47,145 Chamber weighs in on next round of COVID-19 relief — FEDERAL NEWS, July 22, 2020 - HRDive Article: Invisible disabilities top of mind for employers amid return to work AUTHOR Sheryl Estrada
PUBLISHED July 23, 2020
- HRDIVE NEWS BRIEF: COVID-19 tanked PTO requests, attendance platform finds AUTHOR Katie Clarey@kclarey21
PUBLISHED July 23, 2020
- Georgia Department of Public Health COVID-19 Daily Status Report
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| | | | ¶47,146 NLRB rules profanity-laced tirades, racist, sexist comments no longer protected — FEDERAL NEWS,
July 23, 2020 from GEA's HR answers now
Announcing a new standard for determining whether employees lose the protection of the Act by making abusive or offensive comments, including racist, sexist, or profane remarks, the NLRB has made it clear that Section 7 of the National Labor Relations Act will not excuse such conduct and that employers can lawfully discipline or discharge employees who engage in it. The Board had used three different approaches when reviewing offensive comments, depending on the situation—be it an outburst at the boss, social media comments, or heckling from the picket line—but these "setting specific" approaches conflict with antidiscrimination laws, the Board explained (and the EEOC weighed in as amicus to argue as much). The most common and time-worn of these tests is Atlantic Steel, used when employee outbursts are directed at management. But this four-factor framework, first adopted in 1979, "has failed to be an effective legal standard," the Board said, scrapping it. A single standard will now apply: Wright Line, the familiar burden-shifting approach used in NLRA discrimination cases (General Motors, LLC, July 21, 2020).
"This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace," said Chairman John F. Ring, in a NLRB press statement announcing today’s decision.
"For too long," he added, "the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.
"In adopting Wright Line in this context, the General Counsel will have to show that Section 7 activity was a motivating factor in the employee’s discipline or discharge, at which point the burden shifts to the employer to prove it would have disciplined or terminated the employee even absent the protected conduct. The employer can do so by presenting evidence that it has consistently disciplined other employees for engaging in similar abusive or offensive conduct.
General Motors. An ALJ in this case had found that the automaker unlawfully suspended an employee for a profane outburst, directed at his supervisor during a meeting in which he was engaged in protected union activity. In the ALJ’s view, the employee’s remarks were not sufficiently egregious to lose the protection of the Act. The law judge had looked to Plaza Auto Center, a 2014 Board decision, and concluded the remarks in question were less offensive than conduct found protected in that case. (However, two subsequent acts by the employee did forfeit statutory protections, the judge said: one in which he used racially charged language when talking to the manager, and another when he played loud music containing profane and racially charged lyrics each time the manager entered or left the room).
Briefs sought. Challenging the ALJ’s ruling, General Motors asked the Board to overrule Plaza Auto, as well as Pier Sixty, LLC, a 2016 ruling addressing an employee’s profanity-laced Facebook posts attacking his supervisor. Urging that the racially offensive nature of the employee’s language should be given greater scrutiny, the automaker also asked the Board to overrule Cooper Tire, another 2016 decision, which involved racist comments directed at workers crossing a picket line.
On September 5, 2019, the Board issued a call for briefs on this issue, which has long vexed employers trying to maintain civility and ensure a harassment-free workplace. The Board sought comments from the parties and interested amici regarding Plaza Auto Center, Pier Sixty, LLC, and Cooper Tire.
The tests set forth in Atlantic Steel and other precedents, the Board noted, reflected the view that employees should be afforded some leeway for impulsive (and unseemly) behavior when engaging in activities protected under the Act. But in the NLRB’s view, these rulings are "out of step with most workplace norms and were difficult to reconcile with antidiscrimination law." And they all too often meant that employees would get a pass for behavior that is "deeply offensive."
Source: Written by Lisa Milam, J.D.
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| | | | ¶47,144 More FLSA, FMLA, and FFCRA guidance issued as workplaces reopen amid COVID-19 pandemic — AGENCY GUIDANCE,
(Jul. 22, 2020) from GEA's HR answers now
On July 20, the Department of Labor announced that it has published more guidance for workers and employers on how the protections and requirements of the FLSA (19 questions), the FMLA (13 questions), and the Families First Coronavirus Response Act (FFCRA) (now 96 questions addressing definitions, eligibility, coverage, application, and enforcment) affect workplaces as they reopen amid the coronavirus pandemic. The Wage and Hour Division guidance includes commonly asked questions and answers (Q&As) that address critical issues in all three laws; this guidance has been periodically updated, but each guidance document is not separately dated.
Compliance assistance materials. The DOL said that the new guidance is the latest addition to that compliance assistance materials that the WHD has published. These materials include information about the FFCRA:
"The U.S. Department of Labor understands how critically American workers and employers need this information as they return to work" WHD Administrator Cheryl Stanton said in a release. "Continuing to provide it remains a top priority for the Wage and Hour Division. With so many workers and employers committed to the greatest comeback the American workforce has ever seen, we are providing ongoing guidance to help them better understand their rights and responsibilities to protect workers and help ensure a level playing field for employers as our economy recovers."
Additional information. WHD provides additional information on common issues employers and employees face when responding to the coronavirus and its effects on wages and hours worked under the Fair Labor Standards Act and job-protected leave under the Family and Medical Leave Act at https://www.dol.gov/agencies/whd/pandemic.
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| | | | Constangy.com Blog: More FFCRA FAQs from the DOL!
BY ROBIN SHEA ON 7.21.20
POSTED IN CORONAVIRUS, FAMILIES FIRST CORONAVIRUS RESPONSE ACT, PAID LEAVE
FYI! Read ASAP!
The U.S. Department of Labor has added to its long list of Frequently Asked Questions related to the Families First Coronavirus Response Act. The new material (FAQs 94-97) is not earth-shattering, and I suspect that most employers covered by the law could have guessed the correct answers before reading what the DOL has to say. See how you do on these. As usual, I'm using the DOL's numbering, and this blog post paraphrases the DOL guidance. You can read the real thing here.
94. Joe had to take two weeks of FFCRA leave to care for his elderly dad, who was having symptoms of COVID-19. Joe is ready to return to work, but you are worried about having him come into the workplace and possibly expose your other employees to COVID-19. Do you have any recourse?
You might. You can't "punish" Joe for taking FFCRA leave, but for the safety of your other employees, you can require him to either telework or work in a more physically isolated area until he tests negative for COVID-19. Of course, if and when he tests negative, you'd need to restore him to his regular position.
95. Mary took 80 hours of sick leave under the Emergency Paid Sick Leave Act in late April. Then her employer put all the employees, including Mary, on furlough. Mary has returned to work and wonders whether she is entitled to a new 80-hour allotment of Emergency Paid Sick Leave. Is she?
Of course not. The pre-furlough leave counts (assuming it was taken after April 1, when the FFCRA took effect). If the leave was not for a "school" situation, Mary has exhausted her paid leave allotment under the FFCRA. On the other hand, if she had taken less than 80 hours before the furlough, she would have been entitled to the remainder -- for a qualifying reason -- upon her return to work.
96. Mary's brother Harry took four weeks of paid leave starting April 2, while his kids' school was closed. He and his co-workers were furloughed in May. Harry is back now, but his kids are home because their summer camp is closed. Can Harry take FFCRA leave now, and if so, how much?
Yes! Eight more weeks! (The total leave allotment for a "school" situation is 12 weeks.)
97. Doris is calling her furloughed employees back to work at her retail store, Ye Olde Shoppe With Fewere Than 500 Employees. Ethel has three school-age children and, in all likelihood, will need to take FFCRA leave when she returns because all of the summer day camps are closed due to COVID-19. Can Doris just leave Ethel on unpaid furlough while she brings the other employees back to work? It's not like Ethel would be working anyway.
Nice try, but no. Doris would have to bring Ethel back and let her take FFCRA leave. Anything else would be considered discrimination or retaliation.
Did you get these all right? I bet you did!
Tags: Coronavirus, Department of Labor, Families First Coronavirus Response Act, FFCRA, Furloughs
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| ¶47,145 Chamber weighs in on next round of COVID-19 relief — FEDERAL NEWS,
(Jul. 22, 2020) from GEA's HR answers now
U.S. Chamber of Commerce CEO Thomas J. Donohue is pressing President Trump, House Speaker Nancy Pelosi (D-Calif.), and Senate Majority Leader Mitch McConnell (R-Ky.) for swift action to combat the COVID-19 pandemic and provide what it characterized as "economic relief to families, businesses, and communities across the country."
In a July 16 letter, the Chamber urges Congress to enact targeted and temporary measures that address five key areas: liability protections for employers against "unwarranted lawsuits"; more relief for small- and mid-size employers; financial assistance for child care and elementary schools; revised (lower) unemployment benefits and more job training for workers; and assistance for state and local governments.
Employer liability protections. Here, the Chamber is looking for "timely, temporary, and targeted" liability relief that would provide employers who follow public safety guidelines a safe harbor from "unwarranted lawsuits" and would "hold bad actors accountable."
The Chamber is calling for Congress to put in place temporary protections for the duration of the pandemic crisis and response that cover:
- Businesses and other entities "that work to follow government guidelines" against COVID-19 exposure claims.
- Healthcare providers and facilities on the front lines of the COVID-19 response.
- Manufacturers that repurposed production and distribution to provide PPE, sanitizers, and other needed countermeasures.
Small- and mid-size business support. Among other things, the Chamber believes that Congress should provide more targeted relief for industries, as well as small- and medium-sized businesses, that remain fully or partially shuttered because of social distancing requirements. The assistance should include an extension of the Paycheck Protection Program (PPP), expansion of the Employee Retention Tax Credit, locally administered aid, and targeted tax provisions.
As to the PPP, Congress should make the loan forgiveness process easier for the smallest small businesses by automatically forgiving loans under $150,000 or $250,000.
Turning to the CARES Act Employee Retention Tax Credit (ERTC) that provided an effective $5,000 refundable tax credit to employers negatively impacted by the economic fallout from the pandemic, Congress should increase the size of the credit, make the credit more flexible by allowing small and midsize employers to claim the credit, irrespective of whether the employee is "providing services," and expand the universe of eligible employers by reducing the reduction in gross receipts required to access the credit. Congress can also simultaneously make the expanded credit more targeted "by reducing the benefit for employers who are experiencing less of a revenue loss."
Although the CARES Act mostly focused on aiding small businesses with their payroll costs, for many, fixed expenses such as rent are a significant burden, according to the Chamber. At the same time, revenue is constrained as a result of social distancing requirements. Congress should consider "a modest addition to the ERTC for ERTC-eligible employers to cover a limited amount of fixed costs."
Unemployment benefits. Here, the Chamber believes that with more than 17 million unemployed, Congress "needs to support the unemployed while aiding in the return to work." The current additional $600 weekly benefit should be revised because "many workers presently earn more on unemployment benefits." The Chamber urged what it sees as a middle-ground approach:
- Provide a variable supplement to state unemployment benefits designed to replace 80 to 90 percent of an individual’s prior covered wages (after taking into account that payroll taxes are not collected on U.I. benefits) up to a maximum federal benefit of an additional $400 per week;
- For states unable to initially adjust their computer systems to calculate a replacement rate, provide a flat amount equal to half the maximum benefit (e.g., $200) per week for up to three months to provide time for computer system upgrades; and
- Phase down the additional benefit based on a state’s unemployment, providing the maximum benefit ($400) for unemployment rates above 15 percent and eliminating the bonus when unemployment falls below 7 percent.
"We have not yet beaten the coronavirus or achieved the economic recovery that we all desire," Donohue wrote. "With the benefit of our experience to date and fresh data, Congress should enact proposals that are timely, temporary, and targeted to current needs. The Chamber urges policymakers to be judicious in their approach. While it is critical that Congress provide meaningful assistance to the unemployed, employers that continue to be negatively impacted by social distancing requirements, and state and local governments, it is also critical that we avoid counterproductive policies that will delay economic recovery or diminish long-term growth."
Source: Written by Pamela Wolf, J.D.
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| | | | HRDive Article: Invisible disabilities top of mind for employers amid return to work
Employers have questions about accommodating employees with high-risk underlying disabilities and mental health impairments, an ADA expert said.
AUTHOR Sheryl Estrada PUBLISHED July 23, 2020
Since 1990, the Americans with Disabilities Act (ADA), a federal anti-discrimination law, has required employers to provide qualified individuals with disabilities reasonable accommodations, according to guidance from the U.S. Equal Employment Opportunity Commission (EEOC).
But when the disability and the type of accommodation required is not obvious, employers may need additional information or documentation to support workers' requests, according to EEOC. A number of disabilities that are not obvious, also referred to as invisible disabilities, are covered by the ADA, David Fram, director of ADA and Equal Employment Opportunity services at the National Employment Law Institute (NELI), told HR Dive in an interview.
A former ADA policy attorney for the EEOC, Fram conducts in-house ADA training and covers other EEO issues for employers at NELI. Amid the COVID-19 pandemic, as many organizations focus on a return-to-work plan to bring remote workers back to the office, Fram said he has been fielding many questions about employee accommodations. And questions regarding invisible disabilities top the list.
"In fact, most of the cases that we've seen, and most of the requests for reasonable accommodations that we've seen, in the employment context, have been by people with non-obvious disabilities," Fram said.
High-risk underlying disabilities and mental health
Invisible disabilities include conditions such as back impairments, chronic fatigue, diabetes, post-traumatic stress disorder and depression, to name a few, Fram said. "There are lots of neurological impairments that are not obvious impairments," he added.
In creating return-to-work strategies, employers have a lot of questions regarding accommodations for employees with high-risk underlying disabilities and mental health impairments, Fram said. "Employees who may have a neurological impairment or an immunodeficiency impairment" are at high risk to contact COVID-19, he said. So, they may need accommodations, he added.
Another category of concern is someone who may have a severe stress or anxiety disorder, Fram explained. "It's not a high-risk condition, but it's a severe stress disorder that is being exacerbated by the fear of getting COVID-19," he said.
The Centers for Disease Control and Prevention has warned about the fear and anxiety the pandemic can create. And, a work environment can have both positive and negative effects on an employees' mental health, William Kassler, chief medical officer of government health and human services at IBM Watson Health, told HR Dive in April.
There are safety modifications employers can incorporate into the workplace to help employees with high-risk underlying conditions and stress or anxiety issues, Fram said.
"It could be social distancing, or using Plexiglass dividers," he said. Better ventilation or "installing ultraviolet lights that experts are saying can help rid the worksite of some contaminants," Fram explained. "In many cases, it could be that the person needs leave because they just can't come to the workplace," he said. "Or, it could be that the person says 'I need work at home as the accommodation.'"
An employer is not obligated under the ADA to invite accommodation requests, Fram said. An individual decides to request accommodations, according to the EEOC. But from a best practices perspective, it's good for employers to be proactive, he explained. For example, if an employee is struggling to complete essential functions, an HR supervisor can start a conversation by asking a legally sound question like, "How can I help you?"
"I've always said it's a really good idea for employers to train their supervisors and managers because the one thing that they don't want is for somebody to say, 'You discouraged me from asking for an accommodation.'"
Using best practices while complying with the ADA
At PwC, a global network of professional services firms, compliance with ADA and the health and safety of employees is top of mind in return-to-work planning, Mike Fenlon, chief people officer, PwC US, told HR Dive in an email. The firm scored 100% on the 2020 Disability Equality Index, an annual benchmarking tool facilitated by the nonprofits Disability:IN and the American Association of People with Disabilities.
"There are many considerations to make as we reimagine the way we work, particularly for individuals with disabilities — both seen and unseen," Fenlon said. "A key piece of our return to work strategy is defining what an 'essential worker' may be — for us that could be a team working on a tax filing that needs to be manually processed." An essential worker at PwC could also be an employee whose productivity relies upon accessing resources that only exist in the office, he said.
"The flipside is understanding and working with individuals who have learned they actually perform better at home in a quiet, more focused environment because of neuro-differences or mental health issues," Fenlon said. When thinking about bringing employees back to the office, the firm is mindful of mental health and understands that needs among employees will vary, he said.
"The key to getting this right is working closely with coaches and managers to help lead inclusively," Fenlon said. "This means leading with more understanding and empathy, working to create spaces of psychological safety among teams, and providing the right accommodations to protect employees."
From a best practice perspective, an employer may want to talk to an individual about whether they have been more effective working from home, Fram said. But employers are not legally obligated to do so, he explained. By law, an individual wouldn't be entitled to work from home unless it's a proven necessity for their disability, he said. The arrangement must enable the individual to complete the essential functions of their job.
"The EEOC says that an employee's preferences are not really what matters," Fram explained. "What matters is — what do I need because of my disability?"
If an individual can't do the job in the workplace because of attention-deficit/hyperactivity disorder (ADHD), for example, and needs to work at home, that would be a possible ADA issue, he said. But, if the case is that the employee thinks they are more effective working from home, "that's probably not an ADA issue," Fram said.
In some cases, even if an employee has been working effectively from home during the pandemic, that's not conclusive evidence that productivity will continue, according to Fram. For example, the employer may have reduced some of the employee's essential functions amid telework, he said.
"That's why, I've been teaching employers, if you're letting somebody work from home, and they're not going to be doing all their essential functions — document that," Fram said. And, document that they will resume essential functions when returning to work as well, he added.
Creating stigma-free environments
PwC's efforts include a focus on inclusion. "Our disability inclusion journey began more than a decade ago as a grassroots effort when parents of children with disabilities encouraged the firm to focus on increasing disability inclusion in the workplace," he said. Since then, the firm has made this practice a "core tenant of our talent strategy" as people with disabilities are the largest diversity group in the U.S., Fenlon said.
In determining return-to-work strategies, what remains a constant is ensuring that "individuals with disabilities feel they belong within their teams," he said. PwC provides resources on "supporting staff with diverse abilities, training modules and podcasts and unconscious bias training," Fenlon said.
"We have to equip our managers so that they can truly act as allies to all their staffers and foster an environment where all abilities can excel," he added.
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| | | HRDIVE NEWS BRIEF:
COVID-19 tanked PTO requests, attendance platform finds
AUTHOR Katie Clarey@kclarey21
PUBLISHED July 23, 2020
Dive Brief:
- Employees made far fewer requests for paid time off (PTO) this spring compared to the same time last year, according to data collected through the time and attendance tool offered by HR platform Namely and released in June.
- While requests made in January and February mirrored those made the year prior, Namely said, PTO requests began to fall off in March. The trend continued into April.
- "With travel restrictions in place, it might seem counterintuitive to take time off; however, taking a break from work can be restorative," Namely CEO Larry Dunivan said in a press release. "Giving managers visibility into schedules in advance and communicating the ground rules to everyone ensures employees can leverage their PTO benefits."
Dive Insight:
Employers will need to anticipate several ripple effects caused by the reduction in employee requests for PTO, sources previously told HR Dive.
First, employers will need to consider how leave policies treat accrual of leave time. Companies with use-it-or-lose-it rules, for instance, may see hordes of employees applying for PTO at the end of the year, as the pandemic canceled many spring and summer vacations, Rich Fuerstenberg, senior partner at HR consulting firm Mercer, previously told HR Dive. Employers may opt to change PTO rollover rules, then, and extend the window in which workers can use their vacation days.
Of course, employers can encourage employees to take the time off, too, even if they're unable to jet off to distant lands. "Staycations" or other pandemic-friendly getaways can help workers refresh and return to work more engaged and productive, sources have said.
Follow Katie Clarey on Twitter
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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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Georgia Employers' Association |
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