How Employers Can Do Everything Right

Discrimination, Documentation, Litigation, Management, Termination, Training, , , ,

University Medical Center in Lubbock won a big victory in an age discrimination case by doing everything right (suggesting to me that they followed the advice of their employment lawyers). Employers can learn eight important lessons from the Fifth Circuit Court of Appeals decision issued in the case of Salazar v. Lubbock County Hospital District d/b/a University Medical Center (opinion issued December 7, 2020).

Age discrimination cases are difficult for employers to win because the elderly make very sympathetic plaintiffs and the judges and jurors themselves are often older. But this case gives a blueprint to managers of how to dispassionately and carefully handle the termination of a poor-performing employee.

The allegations that plaintiff Rosemary Salazar asserted in this case sound really bad for the employer in an age-discrimination claim. Salazar had worked at the hospital for 27 years before she was fired in 2017 for poor performance and failure to change her behavior. She was 57 years old at the time of her termination and alleged not only was her firing discriminatory, but also that the same supervisor in her department fired three other long-time employees who were over the age of 60.

Salazar also claimed that she had been given good performance evaluations and that she had “received numerous raises for her job performance.” Finally she said that the employer did not follow its own progressive disciplinary policy in terminating her.

How did UMC manage to get a win the summary judgment motion and the appeal in this case? In a word: documentation.

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“No Vaccination Passports”: What Does Abbott Mean?

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Texas Governor Greg Abbott signed an Executive Order on April 5, 2021, purporting to ban “vaccination passports” in Texas. But Texas employers are asking, “What does this mean for my business?”.

Abbott has said that in Texas “vaccinations are voluntary and never forced.” He continued by saying:

Government should not require any Texan to show proof of vaccination and reveal private health information just to go about their daily lives. That is why I have issued an Executive Order that prohibits government-mandated vaccine passports in Texas. We will continue to vaccinate more Texans and protect public health — and we will do so without treading on Texans’ personal freedoms.

https://gov.texas.gov/news/post/governor-abbott-issues-executive-order-prohibiting-government-mandated-vaccine-passports

Of course, that press statement only addresses the government’s role and says nothing that clarifies how private Texas businesses are supposed to respond.

“Vaccination passports”, in the form of written documentation of having received a vaccination, have been used for years to prevent global travelers from spreading diseases. They are also required in most public schools (although Texas allows parents to sign an written opt out form because of vaccination objections).

Your college student probably had to prove vaccination for meningitis before moving into a dormitory. Few Texans cried “governmental overreach” when that meningitis vaccination requirement assured that their 18-year-old son or daughter would be protected from a potentially fatal disease that rapidly spreads in communal environments such as dorms.

Indoor sports arenas, performing arts centers, and live music venues have been hoping that vaccination passports would allow those venues to assure the public that they are once again safe to come back to live performances while sitting 18″ from the person in the next seat for a couple of hours.

But like masks, COVID-19 vaccinations have become a political hot potato. Gov. Abbott, seeking to appease a very vocal minority, generated headlines that proclaimed “Abbott Bans Vaccination Passports”. Once you dig down into the actual wording of Gov. Abbott’s Executive Order, you find that only these actions are prohibited:

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How the Stimulus Bill Benefits Small Employers

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The Families First Coronavirus Response Act has expired as of December 31, meaning that employers are no longer obligated to provide two weeks of emergency paid sick leave to employees who miss work because they are sick with COVID-19 or were exposed and quarantined.

However, employers may still voluntarily provide this paid sick leave through March 31, 2021, and claim the federal payroll tax credit if they do so.

The same holds true for paid family leave if schools are completely closed (which rarely has been happening in the Panhandle of Texas). If an employer voluntarily pays up to 10 weeks in paid family leave while still following the FFCRA rules about who is eligible for this leave, the employer can get the federal government to absorb the cost of that leave through the tax credit mechanism.

This tax credit extension during the first quarter of 2021 is just one part of the new stimulus bill signed into law on December 27 that affects employers. To be clear, if an employee has already used up the 80 hours of emergency paid sick leave or 10 weeks of paid family leave during 2020, this tax credit extension does not mean that you as an employer can take a tax credit for any additional COVID-related leave given to that employee in 2021.

The helpful Paycheck Protection Program has been funded again in the new stimulus bill, but there is a new twist to it that may be very beneficial to small businesses who continue to be adversely affected by the pandemic. A business can apply for a second PPP loan, even if you received one in 2020, as long as you can show that you had at least one bad revenue quarter in 2020.

These “Second Draw” PPP loans are available if you can demonstrate:

  1. You employ no more than 300 employees; and
  2. You have used all of your earlier PPP loan; and
  3. You had gross receipts in one quarter of 2020 that were at least 25 percent less than the same quarter in 2019.

Another piece of good news coming out of the stimulus bill is that Congress corrected a ridiculous IRS opinion that said while your PPP loan(s) were going to be taxed as income to your business, you couldn’t deduct the business expenses that you paid with the loan proceeds. That has now been clarified to reflect Congress’ original intention—the loan proceeds will not be taxed as income and the expenses that you paid with them (payroll, rent, utilities, etc.) will be deductible as normal business expenses.

Congress also simplified that forgiveness process even more for PPP loans under $150,000. You’ll now have to just self-certify that you spent the PPP loans as required by law.

Congress also addressed unemployment insurance for the 20 million Americans who are still out of work. Under the CARES Act passed in the spring of 2020, in addition to state unemployment benefits (which are very skimpy in Texas), the federal government provided an additional $600 per week through July 31, 2020. After that expired, the unemployed were left with just their state benefits. Under the new stimulus bill, the feds are adding $300 per week to state unemployment payments for 11 weeks, through March 14, 2021. The new bill includes a return to work reporting requirement, meaning that the states must allow employers to report when a worker refuses an offer to return to his/her job without good cause.

If you were one of the few employers who deferred their employees’ payroll taxes from September – December 2020 under President Trump’s vague Executive Order issued in August, you will now have to increase their withholding to pay back those deferred amounts. Your employees have until the end of 2021 to get those amounts repaid. The December stimulus bill extended that deadline from April 30, 2021 to December 31, 2021. Some employees were hoping for complete forgiveness of these deferred taxes, but alas, an extended time to repay was all they received.

Finally, employers may be happy to learn that business meal deductions have returned to their previous 100% level for 2021 and 2022. So once this pandemic has subsided, you can fully deduct your celebratory meals with your clients.

What did the new stimulus bill not do?

  • There will be no $2000 per person stimulus checks. The $600 check is it, and it phases out at higher incomes.
  • Liability protections for businesses from lawsuits for COVID-related injuries did not make it into the final bill.
  • Help for states and municipalities whose tax revenue has declined but who have had enormous COVID-related expenses was not approved.

Can an Employer Require COVID-19 Vaccinations of Employees?

Discrimination, Medical, Personnel Policies, Termination, , , , ,

Vaccinations for the COVID-19 virus began to be administered here in Amarillo for the first time on Tuesday, December 16, to hospital workers, and now employers are asking if they can require their employees to get vaccinated when vaccines become available to more of the public.

In general, the answer is, yes, an employer can require employees to get vaccinated in order to provide employees and customers a safe environment. Medical and dental offices, schools, food production facilities, nursing homes and other high-risk workplaces will likely mandate vaccinations for their employees. But should other employers require COVID-19 vaccinations?

Duty to Provide a Safe Workplace

A Texas employer currently can legally require vaccinations to provide a safe workplace for their workers. No Texas law prohibits this. As for the relevant federal agencies, the Occupational Safety and Health Administration requires employers to provide safe workplaces. And the Equal Employment Opportunity Commission has just indicated in new guidance that it will not object to employers mandating vaccinations.

OSHA’s general duty clause requires that each employer furnish to its employees a workplace that is free from recognized hazards that could cause death or serious physical harm. A fully vaccinated workplace could provide that safety to your employees. And that mandate could protect you as an employer from federal intervention with the new administration in Washington, D.C. Employers can expect increased enforcement by OSHA under the Biden administration, so mandatory vaccinations will give your company a defense to any allegation that you did not make your employees safe from the recognized dangers of COVID-19.

The EEOC has recently issued guidance supporting mandatory vaccination. In new Equal Employment Opportunity Commission guidance on vaccinations released December 16 (question K5), the EEOC says that an employer can impose on its employees “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace”.

Disability and Religious Objections

Texas employment is generally “at will”, meaning among other things, that an employer can set its own policies and an employee who does not like those policies can quit. Under current Texas law, that holds true with mandatory vaccinations, as long as Texas employers carefully handle two types of legal objections—disability and religious accommodation.

On Wednesday, the EEOC issued specific guidance about vaccinations at work (section K). As expected, the EEOC says that employers will be allowed to mandate COVID vaccines, with those two exceptions: (1) religious objections (Christian Scientists and some branches of Islam come to mind) under Title VII based on a sincere religious belief; and (2) disability (such as Guillain-Barré Syndrome) under the Americans with Disabilities Act.

Being an anti-vaxxer is not a religion, so that belief will not be enough to claim an exemption. Courts have confirmed in the past that social, political or economic philosophies are not protected under Title VII protection of religion, so unless an employee has a sincere religious objection or a legitimate disability, you don’t have to accommodate an employee’s failure to cooperate by allowing him/her to opt out of the vaccinations.

You do have to be careful as you address religious or disability objections to vaccination. The EEOC wisely points out in its new guidance (question K5):

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability [or religious objection] and know to whom the request should be referred for consideration.  Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). 

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COVID-19 Wildfire in the Texas Panhandle

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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:

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Employees and Covid-19

Ten Ways to Get Sued by Employees During a Pandemic

Compensation, Discrimination, Documentation, Employee Rights, Medical, Personnel Policies, Termination, , , , , , , , , ,

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:

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

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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?

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Supreme Court Outlaws Discrimination Against LGBT Employees

Discrimination, Documentation, Employee Rights, Hiring, Personnel Policies, Termination,

The United State Supreme Court ruled today in Bostock v. Clayton County that employers may be sued for sex discrimination by LGBT employees under Title VII of the Civil Rights Act of 1964. This opinion resolves a long-time disagreement between the various federal circuit courts and unwieldy patchwork of laws that had protected LGBT employees in some states but not others, and Texas cities like Austin, Dallas and Houston, but not Amarillo.

The Court combined three cases, one in which a male county employee was fired for conduct “unbecoming” a public employee when he joined a gay softball league, one in which a private employer fired an employee just days after he mentioned he was gay, and one where a funeral home fired an employee who presented as male when hired, but later stated that she was going to live, dress and work as a female going forward.

After reviewing each of these job terminations, the Court decided 6-3 in an opinion written by Trump-appointee Justice Neil Gorsuch that an employer who fires an individual based in part on being gay or transgender (and by natural extension, bisexual or lesbian) violates Title VII’s prohibition on discrimination on the basis of sex. “An employer who fires an individual merely for being gay or transgender defies the law”, Gorsuch wrote.

The Court pointed out several important rules for employers to know (these apply to any discriminatory job decision, whether it is based on race, age, national origin, disability, religion, etc.):

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PPPFA Reboots Forgiveness Rules

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On Friday, June 5, the PPP Flexibility Act (“PPPFA”) was signed, which amends the CARES Act and helps small businesses with additional options for spending and seeking forgiveness of their Paycheck Protection Program loans. Rather than write a whole new post on the changes under the PPPFA, including my rants about how late this legislation arrived to help my clients who borrowed PPP money in early April,  I’ve just edited my May 27 post to incorporate the changes.

Two weeks ago, the Small Business Administration posted interim rules and the application for employers to complete when seeking forgiveness of their Paycheck Protection Program (“PPP”) loan. This guidance provided employers with many of the answers we have been waiting for since the CARES Act was passed in March. But then the PPPFA was passed and much of that guidance is already obsolete.

But here are the current forgiveness tips based on blending what the PPPFA states and the guidance issued by the SBA two weeks ago. I summarize these for you with the disclaimer that these could change as the SBA issues new interim rules and a new application for PPPFA forgiveness.

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SBA Finally Provides PPP Forgiveness Guidance

Compensation, Documentation, , ,

Late last week, the Small Business Administration posted interim rules and the application for employers to complete when seeking forgiveness of their Paycheck Protection Program (“PPP”) loan. This guidance, which for many businesses comes almost at the end of the 8-week covered period for spending PPP funds, provides employers with many of the answers we have been waiting for since the CARES Act was passed in March.

Of course, that means that this guidance may be too late for some of us to correct actions we already took when we first received the PPP funds. But there are some strategic decisions that you can still make if you act quickly.

The basics of the loan forgiveness have been explained in more detail and in layman’s language in the U.S. Chamber of Commerce’s Guide to PPP Loan Forgiveness, which I highly recommend that you download. But here are some basic forgiveness criteria that we have been waiting on:

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