Category Archives: Medical

COVID-19 Wildfire in the Texas Panhandle

COVID-19 infections in the Texas Panhandle are raging like a wildfire, so what is an employer’s duty to prevent its spread and what procedures should be followed with COVID-positive employees, quarantines, and employees whose off-duty behavior is pyromaniacal?

As of Friday, October 30, Amarillo’s hospitals are alarmingly full of patients suffering from COVID-19. Our hospitalization rate yesterday was 27.4%, meaning that our area has exceeded the governor’s 15% threshold (to shut down bars, stop elective surgeries and reduce occupancy of businesses and restaurants to 50%) for 13 days. El Paso is the only spot in Texas faced with worse effects of the pandemic at this time.

Our local officials and physicians are exceedingly alarmed about our overburdened hospitals, begging Panhandle citizens to stay home as much as possible and wear a mask when in public, along with practicing social distancing, hand-washing, etc. We all have to “decrease our social calendars and increase our COVID-consciousness,” Amarillo Mayor Ginger Nelson said, because our infections are not arising from large hotspots like prisons or meatpacking plants, but from birthday parties, baby showers and other small community-spreading events. And city officials are saying that the next six weeks of holiday celebrations could make a bad situation even worse.

Despite COVID fatigue, it is clear that hoping for “herd immunity” to COVID-19 in our area is not an option because our hospitals are already overwhelmed. Waiting for everyone to develop immunity to this disease is like passively watching a wildfire burn thousands of acres today and believing that if 2021 turns out to be a wet year, that future precipitation will help extinguish the current blaze.

City leaders are begging employers to take the lead to educate and monitor their employees. Some employers are returning to remote work options that were common in the spring of 2020. If employees are to remain in the workplace, your business should be enforcing Governor Abbott’s mask order, GA-29, which requires masks be worn inside commercial establishments whenever employees are less than six feet apart. It only makes good business sense to follow these mandates to try to reduce the absenteeism of your employees and lost productivity, not to mention avoiding the cost of providing paid time off to your sick and quarantined employees. I’ve already counseled some small employers who did not have enough healthy employees, so they had to close the business for several days.

But while enforcing good health and safety practices inside your business is important right now to prevent as much spread of COVID-19 as possible, you are still going to have to deal with some employees who become infected or have had direct exposure to the virus. I’ve previously addressed the six steps for dealing with these infections and exposure. However, there has been an avalanche of new information and protocols since I last wrote about employer COVID procedures, so here is an updated summary:

Continue reading COVID-19 Wildfire in the Texas Panhandle
Employees and Covid-19

Ten Ways to Get Sued by Employees During a Pandemic

Even though the idea has been in the news recently, at the current time there is no absolute liability immunity for Texas employers from COVID-19-related claims made by employees who are exposed to the virus in your workplace or otherwise harmed during the pandemic. You can be sued for many different legal failures as an employer during this crisis, so you should know what the law expects of you right now.

The law firm of Fisher Phillips is maintaining a fascinating database of COVID-19-related cases filed so far in 2020. Their database shows that 38 COVID lawsuits have been filed in Texas for claims such as unsafe workplaces, discrimination, paid leave violations, retaliation and even wrongful death. I have no doubt those claims will continue to increase as employers struggle with all of the safety guidance and other rules burying them during this crisis.

I’ve narrowed the possibilities of a Texas employer getting sued during this global pandemic down to these ten mistakes:

Continue reading Ten Ways to Get Sued by Employees During a Pandemic

Six Steps for Responding to COVID-positive or COVID-exposed Employees

Almost every day I get a call from a different employer asking how their company should respond to the news that an employee is either symptomatic, COVID-positive or has had direct exposure to a person who has the virus. Now that the coronavirus is spreading through community contact rather than just in certain workplace hot spots like the meatpacking plants, many more employers are experiencing the workplace dilemmas caused by ill or exposed employees.

What are the recommended steps that a company needs to take to respond well to that employee and to keep its other employees safe?

Continue reading Six Steps for Responding to COVID-positive or COVID-exposed Employees

Texas Employer Requirements for the “Great Reopening”

Governor Greg Abbott is allowing retail businesses to reopen for curbside and home delivery on Friday, April 24, and is talking about allowing many other businesses, like hair salons, to reopen soon. But Texas employers should know that there are many requirements to protect your employees and customers from COVID-19 that you must address before you reopen.

The Department of State Health Services has condensed the “retail to go” requirements down to two pages here, and employment lawyers like me expect that similar precautions will be required as other businesses start to serve customers again.

The first decision an employer in the Texas Panhandle must face is whether to reopen at all. Gov. Abbott specifically said on Wednesday, April 22, in radio interviews, “there are some counties where the coronavirus outbreak is still progressing too rapidly, and they may not be able to fully participate in the initial phase of reopening until they get the spread of the coronavirus in their county under control.” Guess which counties he specifically named? Moore, Potter and Randall. Yes, friends, we are now a hot spot in Amarillo. The virus is not “under control” here, according to our governor.

Our area is seeing the kind of spike in COVID-19 cases that should make you at least carefully consider waiting to reopen. However, if you decide that economically you must open your retail business for curbside and delivery, or another business once allowed, here are the minimum requirements for employers, according to the DHSH guidance regarding the Texas Retail to Go Order:

Continue reading Texas Employer Requirements for the “Great Reopening”

Webinar for Texas Employers on CARES and FFCRA

Today, Texas employment attorney Vicki Wilmarth and health insurance benefits expert, Josh Butler, presented a webinar entitled Texas Employer’s Guide to Coronavirus Legal Issues.

Even if you missed the webinar live, you can watch the free 1-hour presentation for an overview about the Families First Coronavirus Response Act (“FFCRA”) (paid leave law) and Coronavirus Aid, Relief and Economic Security Act (“CARES”) (stimulus bill) on your own time. https://youtu.be/BGJCnHOJp18

You can also view the slides from the webinar here.

COVID-19 Paid Leave Laws Affect Small Employers

Congress has passed and President Trump has signed a new law that requires small employers to provide paid leave to employees for two weeks of sick leave and as many as 10 weeks of leave to take care of kids whose schools have closed.

This Families First Coronavirus Response Act (“FFCRA”) goes into effect on April 1, 2020. It requires all employers with less than 500 employees, including very small employers and nonprofits, to pay employees whose absences are caused by the COVID-19 epidemic. The DOL has created a fact sheet and an FAQ to help employers understand these laws better.

Here are a few highlights of the FFCRA law:

Paid sick leave for two weeks is available to all full-time, part-time, temporary, seasonal, and other kind of employee if the employee has to miss work for one of the following reasons:

  1. Employee is subject to government quarantine; or
  2. Employee has been advised by healthcare provider to self-quarantine; or
  3. Employee is experiencing symptoms and seeking a diagnosis; or
  4. Employee is caring for an individual subject to quarantine or self-quarantine as advised by healthcare provider; or
  5. Employee is caring for children under 18 because schools or “caregivers” are unavailable; or
  6. Employee is experiencing any other condition that is substantially similar to COVID-19, as specified in HHS regulations to come.

Paid Family and Medical Leave is available for up to 10 more weeks (after using up 2 weeks of unpaid time or 2 weeks of Emergency Paid Sick Leave as spelled out above) to all full-time, part-time, temporary, seasonal or other kind of employee if the employee has worked for the employer for at least 30 days and then has to miss work for this one reason:

  • The employee is unavailable to work or telework because the employee is caring for a child under the age of 18 because that child’s school or childcare facility is closed because of the coronavirus.

The paid sick leave has to be paid at the employees’ regular hourly rate (including commissions, tips and piece rates, but not overtime rates) if the employee is absent for reasons #1-3, above. The paid sick leave and the paid family and medical leave have to be paid at 2/3 of the employee’s regular hourly rate if the employee is absent for reasons #4-6, above. There are also daily and total caps on the amounts you have to pay the employees for these absences.

Employers with less than 50 employees are subject to these FFCRA paid leave laws, even though you have never before been required to comply with Family and Medical Leave Act or any paid leave law. There is a provision that the Secretary of Labor can exempt a business when giving the leave would “jeopardize the vitality of the business.” In other words, if granting this paid leave could make your company go out of business, and you can prove that in your financials, you might not have to provide this paid leave. You don’t have to get the Secretary of Labor’s permission for this exemption by filing anything, but you will have to be able to document the correctness of your decision after the fact.

This law is not retroactive, meaning you don’t have to pay for leave taken before April 1, 2020, if it wasn’t your company policy to pay employee absences.

However, you also can’t make employees apply your paid time off policy before using this emergency paid sick leave or family leave. It is the employee’s choice alone on how to coordinate their PTO and these paid leave laws.

The good news for employers is that the employer gets a tax credit on payroll taxes for 100% of these amounts paid to employees for emergency sick leave and paid Family and Medical Leave. On the next Form 941 that will be due by July 31, 2020, the IRS will add a line for the employer to take the tax credit. If the amount you paid out to your employees for these paid leave laws exceeds the payroll taxes that you owe, then you are supposed to be able to get a refund from the IRS within 2 weeks after filing your Form 941.

We are still waiting for the Secretary of Labor to provide more guidance through regulations. He should also be providing us with notices, posters and other explanations to give to your employees.

There are also other employment laws that a company has to consider in this crisis, which are summarized here.

Can I Drug Test My Texas Employees for Marijuana?

As 2020 begins, many Texas employers are wondering if they can still drug test their employees for marijuana use. Several states have legalized recreational marijuana and most states allow medical marijuana. So what is a Texas employer to do?

After all, Texas sort of, kinda, decriminalized weed in the 2019 legislative session. When they legalized hemp because it is a drought-resistant agricultural crop, the Texas Legislature effectively said that cannabis with less than 0.3 percent concentration of THC, the psychoactive ingredient that gets you high, is “legal hemp”, while anything above that threshold is illegal marijuana.

However, making the determination of THC concentrations takes sophisticated equipment that the police departments and private testing labs don’t have yet. Many Texas police departments and district attorneys have announced they are not even bothering to prosecute possession of use of small amounts of marijuana. Therefore, it is, for all practical purposes, very difficult to determine if your employees are engaged in legal or illegal activities when it comes to weed.

In addition, the Texas Legislature expanded “compassionate use” (medical marijuana) in Texas, so that specialty doctors can prescribe medical marijuana to treat multiple sclerosis, Parkinson’s disease, ALS, terminal cancer, autism, and many kinds of seizure disorders. Past state law only allowed those very few patients diagnosed with intractable epilepsy to be prescribed medical cannabis products, which in Texas may only contain low levels of THC. Now, many more of your employees may be legally prescribed medical marijuana and you have to worry about violating the Americans with Disabilities Act when testing for marijuana.

Finally, CBD oil, which is a hemp-derived product, is legal in Texas and is being sold on every street corner. Unfortunately, there is little regulation of CBD products, so they may contain surprise ingredients like THC. The Fort Worth Star Telegram recently reported on lawsuit filed by a CBD consumer against a CBD oil manufacturer because he lost his truck-driving job after testing positive for marijuana when he used CBD oil for his aching back.

So do you as a Texas employer still test for marijuana? Yes, legally you still can. Think of weed like alcohol. It is may be more legal than it was before, but it can still impair your employees’ job performance and judgment, so you are entitled to know if your employee is stoned.

Continue reading Can I Drug Test My Texas Employees for Marijuana?

Paid Sick Leave Required in Some Texas Cities

Do you as an employer provide your employees in Texas at least six to eight days of paid sick leave every year? If you have employees who work in Dallas or San Antonio, you are about to be required to do so. You should be immediately adding a paid sick leave policy that complies with municipal ordinances that take effect August 1, 2019 in those two cities.

If you have an employee who works at least 80 hours per year in the city limits of Dallas or San Antonio, the new ordinances require you as the employer (if you employ five or more people anywhere) to provide that employee with one hour of paid sick leave for every 30 hours that the employee works within those city limits. It doesn’t matter if your business isn’t based in one of those cities, just whether your employee performs work there.

Of course, offering this paid sick leave only to your employees who work in San Antonio and Dallas could create workforce animosity and claims of discrimination among your other employees, so employers making changes to their policies need to carefully consider whether a company-wide sick leave policy revision is the smartest move at this point.

Here are the general details of the two municipal paid sick leave ordinances in Dallas and San Antonio. You should ask your employment lawyer to help you include the specifics in your revised written sick leave policy if you have Dallas and San Antonio workers:

  • If you have 15 or more employees, then you must allow your Dallas and San Antonio employees to accrue at least 64 hours of sick leave per year. For smaller employers (5-14 employees employed anywhere), the total amount of paid sick leave required per year is 48 hours.
  • The paid sick leave laws apply to full and part-time employees, so those of you who don’t provide benefits to part-time employees in Dallas and San Antonio will need to revise your policies.
  • These ordinances say that employees can use their paid sick leave as soon as it is accrued. So if you require an initial probationary or orientation period in which paid time off can’t be used, you’ll have to rethink your policy in that regard.
  • This paid sick leave can be used for more than employee’s own mental or physical health problems. The employee can take the paid time off for a family member’s illnesses, any family member’s victimization (such as domestic violence or sexual assault), and for doctor’s appointments for the employee or a family member. “Family member” is defined broadly and includes blood relatives as well as anyone who has such a close association with the employee to be considered family (such as a live-in partner).
  • You have to allow carry over of accrued but unused paid sick leave to the next year if you use the accrual method. However, if you provide all of the paid sick leave the employee will be entitled to at the beginning of the year, then you don’t have to allow carry over (this is also much easier to administer than the accrual method).
  • You can’t retaliate against an employee for using the sick leave he/she is entitled to.
  • Enforcement won’t go into full effect on these ordinances until April 2020, but you should be amending your policies now to comply with the August 1, 2019 effective date.

These ordinances have not been without controversy. The business lobby in Texas is fighting hard against these paid sick leave laws. A similar one in Austin is currently enjoined by a court battle, headed to the Texas Supreme Court, and won’t be taking effect as scheduled. But the court battle will take significant time and the 2019 Texas Legislative session ended last month with the lawmakers failing to pass any bill to standardize these municipal ordinances statewide or prohibit cities from passing them, so there is little chance that Dallas and San Antonio’s laws won’t go into effect in August, even if they are challenged in court later.

Even if you don’t have Dallas and San Antonio employees, I think all Texas employers must consider offering paid sick leave right now. Not only are states and cities all over the country requiring this, but employees are coming to expect this benefit.

Plus such a change can benefit an employer in a time of historically low unemployment in this state. It seems that almost every employer that I represent tells me that he/she can’t hire and keep good help. So shouldn’t you be offering some kind of paid sick leave to improve your hiring and retention? Maybe it would be helpful to adopt a policy that would comply with these city ordinances as part of a more comprehensive review and beefing up of your benefits to attract and retain high-quality employees.

Even Walmart (long regarded as one of America’s worst employers) recognized in 2019 the value of providing its hourly employees with 48 hours of paid sick leave per year in addition to regular paid time off. In fact, Walmart’s new company-wide paid sick leave policy looks surprisingly similar to the ordinances just passed by Dallas and San Antonio. Walmart wasn’t being altruistic, of course. It just made the move to standardize its policies to comply with a nationwide patchwork of new state and municipal laws requiring employers provide paid sick leave.

Written Policies to Protect Your Business During the Opioids Epidemic

With the current opioids epidemic raging across America, including in the Panhandle of Texas, employers are asking me if they can drug test current employees for prescription medications such as hydrocodone. Can a Texas employer try to prevent a workplace accident or death by testing when opiate use is suspected, or do you just have to hope that employee won’t hurt someone?

You have to consider the Americans with Disabilities Act when deciding if you are going to drug test your employees and how you should react to a positive test. The ADA protects an employee’s rights to lawfully take over-the-counter and prescription drugs to treat a disability.

However, the ADA doesn’t protect current substance abusers. So, since abuse of prescription drugs isn’t protected, how an opiate was obtained, how it is being taken, and if the employee is too impaired to work safely become crucial questions if your employee appears impaired.

Usually, I get a call from an employer about drug testing when an employee is falling asleep on the job, is slurring words, seems disoriented, has difficulty performing routine tasks, and/or is excessively absent, belligerent or erratic. At that point, drug testing may be appropriate, but I have to ask if the employer has laid the groundwork to do the drug testing and to respond appropriately to a positive test.

As with most employment law issues, you have to protect your business with well-written policies long before you are faced with an employee who appears to be high on Vicodin. Continue reading Written Policies to Protect Your Business During the Opioids Epidemic

Requiring a “Full Recovery” May Violate Disability Law

Have you ever asked an employee for a doctor’s note confirming that the employee is “fully” recovered from an injury or illness as a condition to returning to work? If so, you may be violating the Americans with Disabilities Act (“ADA”).

I have often talked employers off the ledge of demanding that an employee present a “full release”. Ever since George H.W. Bush signed the ADA into law in 1990, it has been risky to assume that an employee must return to “full” duty after surgery, a serious illness or an injury. The employer must try hard to put the disabled employee back to work, but job duties may have to be modified, reassigned or eliminated to reasonably accommodate the worker.

The Equal Employment Opportunity Commission’s guidance, “Employer-Provided Leave and the Americans with Disabilities Act”, released last year, states that an employer is in violation of the ADA “if it requires an employee with a disability to have no medical restrictions—that is, be 100% healed or recovered—if the employee can perform her job with or without reasonable accommodation unless the employer can show providing the needed accommodations would cause an undue hardship.”

Whole Foods was recently sued for not putting Yolanda Toolie back to work when she returned from a spinal fusion with a 10-pound lifting restriction. She says that Whole Foods made her stay on unpaid leave for almost six months until she was fully cleared by her doctor, instead of finding a way to accommodate her restricted ability. After a second surgery, she alleges that Whole Foods fired her because she wasn’t eligible for Family and Medical Leave (which she would have qualified for if she had been allowed to work after the first surgery without the requirement of a “full recovery”).

If these allegations have any merit, Whole Foods could have avoided this suit if it had gone through the reasonable accommodation process with Toolie, a deli clerk, and found a way to put her back to work despite her lifting restriction. Maybe someone else could have lifted the product boxes while she operated the slicer, for example, or maybe she could have transferred to the Whole Foods bakery, where the heaviest thing she would have lifted was a loaf of gluten-free organic brown rice bread.

Putting an employee on indefinite unpaid leave is the accommodation of last resort, since the employee will not receive a salary while not working. Instead of telling an employee to stay home until he is back to 100%, the following reasonable accommodation process should be followed: Continue reading Requiring a “Full Recovery” May Violate Disability Law