| Special #59 - August 11, 2020 |
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Live Webinars for August Presenter Pete Tosh Webinars: $49.00 USD This Friday! Transitioning from a Traditional Manager to a Strategic Leader Date - Friday, August 14, 2020 Time - 11:00 AM – 12:00 PM EDT
Effectively Leading a Customer Service Team Date - Thursday, August 20, 2020 Time - 11:00 AM – 12:00 PM EDT
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| HR and Employment Law News |
| - Constangy.com News & Analysis : Governor Kemp Signs Georgia COVID-19 Pandemic Business Safety Act August 7, 2020
By Attorney Sarah Phaff
- Podcasts News & Analysis : COVID-19: Where are we now? 8.11.20 By Attorneys Susan Bassford Wilson PARTNER / ST. LOUIS office & Cherie Silberman PARTNER / TAMPA office
- Constangy.com Blog: Discrimination lawsuits are back, baby! BY ROBIN SHEA ON 8.7.20
POSTED IN DISCRIMINATION
- HRDive BRIEF: Relationships, well-being top leadership concerns amid pandemic AUTHOR Aman Kidwai
PUBLISHED Aug. 11, 2020
- ¶47,186 New Q&As provide roadmap for ADA accommodations for opioid addiction — AGENCY GUIDANCE, by Pamela Wolf, J.D.
Aug. 10, 2020
- HRDive BRIEF: Many employers skipping COVID-19 liability waivers, survey shows AUTHOR Kate Tornone
PUBLISHED Aug. 10, 2020 |
| | | Constangy.com News & Analysis : Governor Kemp Signs Georgia COVID-19 Pandemic Business Safety Act
August 7, 2020 Gov. Brian Kemp signed the Georgia COVID-19 Pandemic Business Safety Act on August 5, 2020, limiting Georgia businesses’ liability for certain claims related to COVID-19. However, the act requires Georgia businesses to take specific steps to gain the protections offered by this act.
Georgia’s COVID-19 Pandemic Business Safety Act
As we previously reported, Georgia’s law provides that
“No healthcare facility, healthcare provider, entity, or individual, shall be held liable for damages in an action involving a COVID-19 liability claim against such healthcare facility, healthcare provider, entity, or individual, unless the claimant proves that the actions of the healthcare facility, healthcare provider, entity, or individual, showed: gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.”
An entity includes, among others, corporations, companies, and religious and educational organizations.
Further, the law provides a rebuttable presumption of assumption of risk by the claimant if certain measures are implemented by the entity or individual, which means that a claimant would need to overcome this presumption to assert one of the specified types of COVID-19 claims. However, like similar statutes passed in other states such as North Carolina, this rebuttable presumption does not apply to claims of gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm. Further, the act only applies to causes of action that accrue before July 14, 2021, and presumably does not modify or supersede the application of Georgia’s workers’ compensation laws or, as applicable, other employment laws. As we have reported before, although workers' compensation laws vary by state, generally it will be difficult to prove compensability in Georgia because the occupational disease statute excludes diseases to which the general public is exposed. Employers with questions regarding workers' compensation claims or other employment laws, should seek guidance from their workers’ compensation counsel.
The types of COVID-19 liability claims that are covered by the act include
- Transmission, infection, exposure, or potential exposure of COVID-19 to a claimant at any healthcare facility or on the premises of any entity, individual, or healthcare provider, resulting in injury to or death of a claimant;
- Transmission, infection, exposure, or potential exposure of COVID-19 to a claimant caused by actions of any healthcare provider or individual resulting in injury to or death of a claimant;
- Acts or omissions by a healthcare facility or healthcare provider in arranging for or providing healthcare services or medical care to the claimant resulting in injury or death of the claimant for COVID-19 or where the response to COVID-19 reasonably interfered with the arranging for or the providing of healthcare services or medical care at issue to the claimant; or
- Manufacturing, labeling, donating, or distributing personal protective equipment or sanitizer where certain criteria are met.
What steps should Georgia employers take now?
To gain the protections of this act, individuals and entities must post a sign at a point of entry in “at least one-inch Arial font placed apart from any other text,” which contains the following disclaimer:
“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.”
The rebuttable presumption is also available to health care facilities or health care providers as long as they take the same steps to warn individuals entering the premises.
Additionally, businesses that issue any receipt or proof of purchase (including an electronic or paper ticket or wristband for entry or attendance) must include the following warning 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.”
In addition to immediately implementing these notice procedures, Georgia employers should continue to follow Gov. Kemp’s executive orders and monitor the guidance provided by agencies such as the Centers for Disease Control and the Occupational Safety and Health Administration.
For more information about this act or other COVID-19 developments, please contact the Constangy attorney of your choice.
For a printer-friendly copy, click here.
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| | | | Podcasts News & Analysis : COVID-19: Where are we now?
8.11.20
So far in 2020, COVID-19 has forced businesses to do everything from redesigning their facilities to taking the temperature of every employee on a daily basis, and from furloughing the workforce to shutting down the workplace entirely. But where are we now? Listen for a discussion of updated FFCRA regulations, changing CDC and OSHA recommendations, the advisability of mandatory vaccines and employee waivers, and the comic stages of COVID-19.
This podcast is made available for educational purposes only, to give you general information and a general understanding of the law, not to provide specific legal advice or to establish an attorney-client relationship. This podcast should not be used as a substitute for competent legal advice from a licensed attorney in your state.
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| | | Discrimination lawsuits are back, baby!
BY ROBIN SHEA ON 8.7.20
POSTED IN DISCRIMINATION Read online @ constangy.com>>
The EEOC has started issuing right-to-sue letters again.
The Equal Employment Opportunity Commission announced this week that it had resumed issuing "right-to-sue" letters.
Issuance of the letters, which give charging parties 90 days to file lawsuits under the federal anti-discrimination laws, had been on hold since March 21 as a result of the coronavirus shutdowns. The suspension meant that people filing charges of discrimination couldn't sue their employers (that's good), but it also meant they have now had quite a bit of extra time to find lawyers and file lawsuits (that's bad).
The EEOC will issue the most-past-due letters first. According to the agency's news release, it will take six to eight weeks for all of the letters to be issued.
That means employment discrimination litigation -- which has been in suspended animation -- will be ramping back up. Hang on to your hats.
The EEOC enforces Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Equal Pay Act, and the Genetic Information Nondiscrimination Act.
(Dear Readers: I'm sorry for the light posting this week. Duty called.)
Tags: ADA, ADEA, Age Discrimination in Employment Act, Americans with Disabilities Act, EEOC, Equal Employment Opportunity Commission, Equal Pay Act, Genetic Information Nondiscrimination Act, GINA, Title VII
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| | | HRDive BRIEF: Relationships, well-being top leadership concerns amid pandemic
AUTHOR Aman Kidwai
PUBLISHED Aug. 11, 2020
Dive Brief: - While leaders are generally satisfied with their teams’ productivity during the coronavirus pandemic, they are concerned with their ability to forge personal relationships with team members and manage their well-being, according to a report by ExecOnline shared with HR Dive. The leadership training provider compared results from two polls, one from April and another from July, to see how managerial sentiment has changed since the start of the pandemic.
- The percentage of leaders citing "at-home productivity" as a barrier to effective leadership decreased from 45% to 31% between the April and July polling. Meanwhile, maintaining culture (38% to 45%) and building relationships (56% to 63%) were two barriers to effective virtual work that saw an increase between the two periods.
- ExecOnline also shared with HR Dive data about employee burnout, saying that more than 90% of leaders in a July survey were concerned about it, with 23% being extremely concerned.
Dive Insight:
After the pandemic-driven shift to remote work, employers focused on addressing peoples’ basic needs, such as job security, individual health and caring for family, including children or elderly parents. Lack of child care benefits was already a barrier for workers before the pandemic, one that has been exacerbated by the outbreak.
In fact, nearly half of employers in a Willis Towers Watson survey in May said they are expanding healthcare benefits and well-being programs. One-third plan to make changes to PTO or vacation programs.
Burnout was also a rising issue before the pandemic, though studies have found that flexibility in work schedules and carefully managing workloads can help. Managers also must be cognizant of new learning and development needs resulting from the move to remote work.
ExecOnline’s findings align with recent research on the impact of decreased workplace socializing, including potential harm to culture. Emtrain reported an 11% decline in employees rating their workplace culture as healthy and three-quarters of the workers in an April Smartsheet survey said they felt less connected to work. Sixty percent said they "feel less informed about what is going on within their company."
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| | ¶47,186 New Q&As provide roadmap for ADA accommodations for opioid addiction — AGENCY GUIDANCE, by Pamela Wolf, J.D.
Aug. 10, 2020 from GEA HR Answers Now
The EEOC on August 5 released two technical assistance documents (TADs) that address ADA concerns relevant to the opioid epidemic. In its press release, the federal antidiscrimination agency noted that "the increase of opioid use and abuse in recent years poses unique challenges to the workplace."
The TADs are in question and answer form, with one targeted to employees, and the other to health care providers:
The Q&As carry a warning that their contents "do not have the force and effect of law and are not meant to bind the public in any way," and that the guidance "is intended only to provide clarity to the public regarding existing requirements under the law."
Employee information. Among other things, the TAD targeted to employees clarifies that current illegal drug use is not a covered disability. The Q&As also clarify that people who are lawfully using opioid medication, are in treatment for opioid addiction, and are receiving Medication Assisted Treatment (MAT), or have recovered from their addiction, are protected from disability discrimination.
The TAD also answers questions about reasonable accommodations that may be available to employees who currently legally use opioids, as well as what to do if an employer has concerns about the employee’s ability to safely perform his or her job.
The Q&As are informative for employers as well as employees—here are some of the points they make:- Employers should give anyone subject to drug testing an opportunity to provide information about lawful drug use that may cause a drug test result that shows opioid use. An employer may do this by asking before the test is administered whether the person takes medication that could cause a positive result, or it may ask all people who test positive for an explanation.
- Where an employer thinks that a person’s opioid use, history of opioid use, or treatment for opioid addiction could interfere with safe and effective job performance, so long as the person is not using opioids illegally and is not disqualified for the job by federal law, the employer may have to give the person a reasonable accommodation before firing them or rejecting their job application based on opioid use. Reasonable accommodations may include a different break or work schedule (e.g., scheduling work around treatment), a change in shift assignment, or a temporary transfer to another position.
- An employer never has to lower production or performance standards, eliminate essential functions of a job, pay for work that is not performed, or excuse illegal drug use on the job as a reasonable accommodation.
- An employee may be able to get a reasonable accommodation because of an addiction to opioids (opioid use disorder or OUD), which is itself a diagnosable medical condition that can be an ADA disability. Although the employee may be able to get a reasonable accommodation for OUD, the employer may deny accommodations where the employee is using opioids illegally, even if they have an OUD.
- Where the employee has recovered from an opioid addiction but still needs a reasonable accommodation to help avoid relapse, the employee can get reasonable accommodations needed because of a disability that the employee had in the past, such as an altered schedule to attend a support group meeting or therapy session that will help the employee avoid relapse.
- Employees may get reasonable accommodations for a medical condition related to opioid addiction if the condition is a disability. Medical conditions that are often associated with opioid addiction, such as major depression and post-traumatic stress disorder (PTSD), may be disabilities, for example.
For health care providers. The TAD intended for health care providers lays out information on legal rights in the workplace. Medical providers are often key participants in the interactive process between employers and workers as employers seek to understand the employee’s condition and potential need for reasonable accommodation. In addition to describing the coverage limits under the ADA, the Q&A provides guidance to health care workers seeking to provide documentation of covered disabilities on behalf of their patients.
Source: Written by Pamela Wolf, J.D.
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| | | HRDive BRIEF: Many employers skipping COVID-19 liability waivers, survey shows
AUTHOR Kate Tornone @KateTornone
PUBLISHED Aug. 10, 2020
Dive Brief: Dive Insight:
Employers and business groups have been calling on Congress to pass legislation shielding them from certain lawsuits related to COVID-19.
Just last week, the U.S. Chamber of Commerce and others sent a letter to lawmakers seeking such protections for employers, schools and others. It would be "an enormous mistake" to exclude temporary liability protections from the next coronavirus relief package, the organization's executive vice president and chief policy officer, Neil Bradley, said in a July 31 statement. "The entire business community, universities and colleges, and local school boards across the country are all united in support for a liability safe harbor for those who adhere to public health guidelines. Inclusion of a safe harbor is critical to reopening schools and restoring our economy."
Without such a shield, however, some employers are considering or implementing liability waivers. In addition to the question of enforceability, such requirements also could discourage employees from returning to work, attorneys at law firm Fisher Phillips cautioned in a blog post. "They may also result in negative reactions and publicity concerns, as has occurred in several instances across the country already," they wrote. Schools, in particular, have garnered attention for requiring students to sign liability waivers, Education Dive reported.
Instead, the Fisher Phillips attorneys recommended, employers should focus on safety and training.
Follow Kate Tornone on Twitter
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Georgia Department of Public Health COVID-19 Daily Status Report: Updated 3pm daily
Update from 8/11/2020 - Confirmed Cases - 222,588
- Deaths - 4,351
- Hospitalizations - 21,031
- ICU Admissions - 3,832
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Georgia Employers' Association |
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