Oklahoma News & Analysis

  • Trump suspends entry of certain immigrants during pandemic

    On April 22, President Donald Trump signed an Executive Order (EO) suspending the entry of certain immigrants into the U.S. labor market during the economic downturn and recovery following the COVID-19 outbreak. The suspension is scheduled to last 60 days. Read on to learn which immigrants are affected by the proclamation.

  • Navigating uncharted waters: what employers should know about FFCRA

    In March, Congress passed the Families First Coronavirus Response Act (FFCRA) to provide paid leave to employees who must stay home to care for themselves or their families during the COVID-19 pandemic. The FFCRA is a big change for employers, to say the least. As you navigate the Act's uncharted waters, here are some facts and questions to get you started.

  • There are illegal drugs, and then there's marijuana

    A recent case from the Arkansas Court of Appeals serves as a reminder about dealing with employees found to have marijuana in their system after an accident. Now that Arkansas permits marijuana for medical purposes, employers and workers' compensation insurers must be careful in dealing with injured employees who test positive for marijuana.

  • Is 'Ok, Boomer' enough to show age discrimination?

    If a federal employer says "Ok, Boomer" to a job applicant, is that enough to show age discrimination? U.S. Supreme Court Chief Justice John Roberts asked a similar question during the oral argument of Babb v. Wilkie earlier this year, a case that now makes it easier to show federal employers have violated the Age Discrimination in Employment Act (ADEA).

  • Hospitalization justifies lack of response to employer inquiry

    Unemployment compensation will be denied when an employee engages in misconduct in connection with her work. This can include failure to comply with an employer's requirements for periodic reportingwhich, in turn, can include failure to provide requested information to the employer regarding absences. A recent case from the Arkansas Court of Appeals, however, demonstrates there are limits on how demanding employers may be.

  • Cutting-Edge HR

    How to help employees working remotely. With the COVID-19 pandemic sending many people home to work, employees are facing new challenges. What can managers do to help? A blog post from The Workforce Institute at Kronos suggests three ways to help workers adjust. Set clear expectations: Make sure everyone is on the same page, Workforce Institute board member Chris Mullen writes in the post. Have an open dialog about what's expected, and be empathetic to employees during the adjustment. Keep communication channels open: There is no such thing as overcommunicating at this time, Mullen says. Communication will help avoid misunderstandings, build trust, and increase effectiveness. Check in with employees: Remote work can lead to feelings of isolation. Mullen suggests setting up a 30-minute weekly meeting with each team member to understand the employee's needs.

  • Federal Watch

    New DOL rule requires more union financial reporting. The U.S. Department of Labors (DOL) Office of Labor-Management Standards (OLMS) announced a final rule in March requiring unions to file annual financial reports concerning their trusts. The rule requires all labor organizations with total annual receipts of $250,000 or more to file a Form T-1, under certain circumstances, for each trust of the type defined by the Labor-Management Reporting and Disclosure Act. Such labor organizations trigger the Form T-1 reporting requirements if, during the reporting period, theyeither alone or in combination with other labor organizationsselect or appoint the majority of the members of the trusts governing board or contribute more than 50% of the trusts receipts. Any contributions in accord with a collective bargaining agreement are considered the labor organizations contributions. The rule allows a union to voluntarily file the Form T-1 on behalf of one or more other unions if each of the unions otherwise would be obligated to individually file for the same trust.

  • HR Technology

    How well is your remote work plan working? When millions of workers took up working from home because of the coronavirus, they likely encountered at least a few snags, but software can smooth the way. A March 30 blog post from HR Tech Central looks at software that can make remote work more effective. What solutions are available? The post lists 11 different kinds of software to investigate to ease the transition from in-office to at-home work: collaborative whiteboard software, remote support software, audio conferencing software, video conferencing software, webinar software, screensharing software, remote desktop software, business instant messaging software, cloud content collaboration software, project management software, and task management software.

  • FAQtually speaking: How ADA, FMLA influence employers' coronavirus responses

    Employers are looking for any guidance they can find on how to address employees with coronavirus symptoms or requests for accommodations or time off in light of the Americans with Disabilities Act (ADA) and/or the Family and Medical Leave Act (FMLA). Remarkably, with uncharacteristic speed, the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Labor (DOL) have addressed some of the issues in new or updated FAQs or guidance.

    EEOC updates guidance on pandemics

    In 2009, the EEOC published "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act." The agency has updated the publication to reflect COVID-19's impact. Here are important excerpts.

    May an ADA-covered employer send employees home if they display COVID-19-like symptoms during a pandemic? Yes. The EEOC has determined that as of March 2020, COVID-19 meets the ADA's direct-threat standard, which creates an exception to ADA protection when an employee's qualifying disability is a "direct threat." In other words, the individual seeking protection creates a "significant risk of substantial harm to the health or safety" of himself or others that couldn't be eliminated by a reasonable accommodation.

    In the revised guidance, the EEOC has determined someone suffering from COVID-19 constitutes a "direct threat." Thus, someone testing positive for or displaying symptoms of the virus may be sent home. In addition, applicants, after a job offer, may have their start date delayed or the offer withdrawn if you need them to begin immediately.

    How much information may you request from employees who report feeling ill at work or call in sick? The EEOC has decided ADA-covered employers may ask employees who report feeling ill at work, or call in sick, questions about their symptoms to determine if they have (or may have) COVID-19. The symptoms include fever, chills, cough, shortness of breath, or a sore throat. In addition, the agency says employers may measure employees' body temperature. As with all medical information, however, the fact that an employee has a fever or other symptoms would be subject to the ADA's confidentiality requirements.

    When an employee returns from travel during a pandemic, must you wait until she develops symptoms to ask questions about exposure to COVID-19 during the trip? No. You may follow the advice of the Centers for Disease Control and Prevention (CDC) and state/local public health authorities regarding information needed to permit an employee's return to work after visiting a specified location, whether for business or personal reasons.

    May you ask employees who don't have symptoms to disclose whether they have a medical condition the CDC says could make them especially vulnerable to COVID-19 complications? While the EEOC hasn't made a specific declaration about COVID-19, its existing guidance on pandemics allows such questions if there is sufficient evidence the employee might face a direct threat when returning to work. With respect to the coronavirus, the EEOC has declared it meets the standard for a direct threat. Accordingly, you should be safe in asking employees if they have medical conditions or disabilities that would make them vulnerable to the pandemic.

    During a pandemic, may you require employees to adopt infection-control practices? Yes, you could require regular hand washing and personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of the virus.

    If you are hiring, may you screen applicants for COVID-19 symptoms? Yes. You may do so after making a conditional job offer, as long as you treat all entering employees in the same type of job the same way.

    DOL updates FAQs on FMLA

    The DOL's FAQs governing pandemics and the FMLA predate the recent passage of the Families First Coronavirus Relief Act (FFCRA) and must be read in conjunction with that statute. For example, the FFCRA provides coverage for employees who must stay home with children because schools are closed or a quarantine or isolation order has been issued. You should pay special attention to the DOL's position in the following FAQ.

    Can an employee stay home under FMLA leave to avoid getting pandemic influenza? The DOL's position is "no" because the FMLA protects only eligible employees who are actually incapacitated by a serious health condition. In other words, leave taken for the purpose of avoiding exposure to the virus isn't a serious health condition and wouldn't be protected.

    While the DOL's position is technically accurate, employers should be very careful. There are numerous times when employees wanting to stay home to avoid contagion might still be entitled to FMLA leave or an ADA accommodation even though they haven't yet been diagnosed or are asymptomatic.

    FMLA. Suppose the employees have a condition that makes them especially susceptible to contracting COVID-19. The information currently available points to diabetics, prediabetics, persons over 70, those with heart disease or undergoing cancer treatment, and the obese as being particularly vulnerable both to the coronavirus and complications leading to death. Thus, physicians may order them to stay home from work to limit their exposure. Such a prescription would technically be based on their underlying condition rather than the virus, but the effect would be the same ― they would likely qualify for FMLA leave.

    ADA. The same result might be reached under the ADA. Would allowing someone with a disability to use the Act to avoid contagion be a reasonable accommodation?

    The same would be true if the employee was a caretaker for someone in the vulnerable group whose likelihood of exposure would increase by interacting with the caretaker employee. And what if the individual isn't a caretaker per se but has a spouse or child in the most at-risk group? While you could contend the person should simply live elsewhere for the time being, it's questionable whether the courts and juries would agree you have the right to force people to move out of their homes because of their spouse's or child's susceptibility.

    Bottom line

    While additional guidance is helpful, you must still analyze each pandemic situation under the particular circumstances. You should strongly consider consulting with your attorney. Companies' finances will be strained enough because of the coronavirus without adding lawsuits, legal expenses, and settlements/judgments to the mix.

    Steve Jones is an attorney with Jack Nelson Jones, P.A., in Little Rock, Arkansas. You can reach him at sjones@jacknelsonjones.com.

  • Avoid retaliation, interference claims during COVID-19 pandemic

    During the COVID-19 pandemic, employers must ensure they aren't retaliating against employees in violation of federal, state, and local antidiscrimination laws. Because of the crisis, federal and state governments are expanding protections for employees under new legislation that either amends existing employment laws or creates new statutes benefiting workers. Nevertheless, the amended/new laws will likely apply the same standards (burdens of proof) for retaliation claims.