DOL Expands Self-Certification Pandemic Unemployment Assistance Eligibility for Employees Avoiding Unsafe Workplaces

 

Last week, the federal Department of Labor issued written guidance to state unemployment offices expanding eligibility of employees and independent contractors to self-certify and qualify for Pandemic Unemployment Assistance (PUA) and requiring the states to notify each individual whose prior PUA claim had previously been rejected of the new criteria (unless that individual filed a fraudulent claim based on identity theft). Of importance to employers is that employees will be able to apply for benefits for refusing to report for work based on the current or prospective employer’s failure to comply with COVID safety standards and these benefits will be retroactive to either December 6 or to when they filed an earlier claim for PUA prior to December 27, 2020.  The employees are able to self-certify their eligibility.   The DOL also expanded the eligibility of employees who were otherwise disqualified from PUA due to, among other things, insufficient qualifying wages, prior disqualifications or exhaustion of benefits when “their hours have been reduced or the individual was laid off as a direct result of the COVID-19 public health emergency.” The new guidance does not change the requirements that such employees not be able to telework with pay.   The DOL expects that states will need until the end of this month to modify their application systems.  As stated by the DOL:

Individuals who refuse to return to work that is unsafe or accept an offer of new work that is unsafe. The Department approves the following COVID-19 related reason for an individual to self-certify for PUA eligibility: “The individual has been denied continued unemployment benefits because the individual refused to return to work or accept an offer of work at a worksite that, in either instance, is not in compliance with local, state, or national health and safety standards directly related to COVID-19. This includes, but is not limited to, those related to facial mask wearing, physical distancing measures, or the provision of personal protective equipment consistent with public health guidelines.”

                 . . . .

An individual is generally denied unemployment benefits if the state determines that the work is suitable and the individual did not have good cause for refusing such work. This new COVID-19 related reason applies only to individuals who had already been receiving unemployment benefits but were determined to be ineligible or disqualified under state law because they refused an offer of work at a worksite that was not in compliance with local, state, or national health and safety standards directly related to COVID-19. This is a separate COVID-19 related reason from item (ii) of Section 2102(a)(3)(A)(ii)(I) of the CARES Act, which provides eligibility to an individual who quits their job as a direct result of COVID-19.

For example, an individual may self-certify under this new COVID-19 related reason who has previously been denied because the state law does not consider health and safety standards when assessing suitability or good cause, or who has previously been denied because the health and safety standards considered under state law are more restrictive than the local, state, or national COVID-19 health standards. Below are a few non-exhaustive scenarios. See Section 4.b.iv. of this UIPL for additional details regarding PUA effective dates.

o An individual was laid off in June 2020 and began receiving regular UC. The individual was recalled to work in October 2020. However, because the worksite was not in compliance with the local mask mandate, the individual refused to return to work. The individual was disqualified from continued receipt of regular UC under state law. The individual is now eligible to apply for PUA under this new COVID-19 related reason.

o An individual was laid off in October 2020 and began receiving regular UC. The individual received a new job offer in January 2021, however, the new worksite was unsafe due to non-compliance with physical distancing measures under state law. The individual was disqualified from continued receipt of regular UC under state law. The individual is now eligible to apply for PUA under this new COVID-19 related reason.

An individual is not eligible for PUA if they are otherwise eligible for regular UC (or PEUC or EB). Many states have provisions in their state UC law that consider work that unreasonably exposes an individual to health and safety risks to be unsuitable work. The state may determine, if it is consistent with the state’s law, that the work is not suitable. Or, the state may find the work is suitable but determine that the individual had good cause for refusing such work.1 In these circumstances, the individual must continue to receive unemployment benefits, provided they are otherwise eligible. The individual is not eligible for PUA using this new COVID-19 related reason if the individual was determined eligible for continued unemployment benefits for refusal of work under state law. Moreover, an individual who is allowed continued unemployment benefits and subsequently exhausts such benefits is not eligible for PUA using this new COVID-19 related reason.

 . . .

Existing PUA claims. For individuals with a PUA claim filed on or before December 27, 2020, the expanded COVID-19 related reasons provided in Section 4.a. of this UIPL are to be applied retroactively based on the effective date of an individual’s existing PUA claim. However, if the new COVID-19 related reason applied before the effective date of the individual’s existing PUA claim, the claim must be backdated to the date that the new COVID-19 related reason applied. For example, an individual may have filed a new PUA claim before December 27, 2020 with an effective date in April 2020 based on the previous COVID-19 related reasons available. With the addition of the new COVID-19 related reason, the individual actually may have first been eligible in February 2020. Because this existing PUA claim was filed on or before December 27, 2020, the state must backdate the PUA claim from April 2020 to February 2020 – when the individual first met the applicable COVID-19 related reason.

New PUA claims. For individuals filing an initial PUA claim after December 27, 2020, states must determine PUA effective dates for new PUA claims consistent with instructions provided in Section C.15. of Attachment I to UIPL No. 16-20, Change 4. For example, if an individual files a new PUA claim after the publication of this UIPL because of circumstances occurring in July 2020, absent a PUA claim already being on file and consistent with the Continued Assistance Act, the claim effective date may not be any earlier than December 1, 2020 (weeks of unemployment beginning on or after December 6, 2020), and retroactive benefits may not be awarded prior to that date.

Because of the rampant identity theft occurring with the self-certified PUA claims, the DOL recommends and is permitting certain security measures, including:

Cross match of state unemployment claim records with respect to individuals who self-certify that they refused work that is unsafe because of the COVID-19 public health emergency.

If the state identifies any discrepancies through this cross match (e.g., the individual does not have a previous unemployment claim or the individual was disqualified for a reason other than refusing work because of health and safety standards at the worksite), the state must review information already on file and take any action necessary to address the discrepancies.

 If the information on file with the state contradicts the individual’s PUA self certification (e.g., previous adjudication of the issue determined that the worksite was in compliance with health and safety standards or previous adjudication of the issue determined that the individual refused work due to a reason that was not because of unsafe working conditions), then the state has reasonable suspicion of fraud and must open an investigation to conduct fact finding to determine if the individual’s PUA eligibility is valid.

 Because the PUA self-certification may be different from the state’s provisions for suitable work and good cause (e.g., the new COVID-19 related reason accounts for local, state, and national health and safety standards directly related to COVID-19), it is possible for an individual to be denied unemployment benefits under state law for health and safety standards and be eligible for PUA.

 If the state does not identify any discrepancies through this cross match (e.g., the individual has a previous unemployment claim, the individual refused work because the worksite was not in compliance with health and safety standards, the individual was denied continued benefits, and the state record does not contain information which contradicts this self-certification), the state does not have reasonable suspicion of fraud to open an investigation.

 

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Rush to Termination and Sloppy Documentation Cost Employer a Summary Judgment in an ADA Case

 

Earlier this month, the Sixth Circuit reversed a summary judgment granted to an employer in an ADA lawsuit brought by the EEOC.  EEOC v. West Meade Place LLP, No. 19-6469 (6^th Cir. 2-8-21).  The employee suffered from anxiety attacks six months after being hired when new co-workers were rude to her and she requested intermittent FMLA leave.  After informing the plaintiff that she was not eligible for FMLA leave and that any leave would be unpaid, her manager told her that she would be terminated if she was unable to work, but that she could not return to work without a medical release.  The Court found that there were disputed facts and credibility issues as to whether the employee’s termination two days later was based on the manager’s perception that the plaintiff was disabled.  “[T]he ADA requires only that there was a perceived impairment, not necessarily that the employer perceived the disability to limit a major life activity.”

According to the Court’s opinion, the Nashville employer requested a voluntary medical history related to her ability to work from the plaintiff three days after she started work (instead of between her conditional job offer and start date).  She reported taking prescription drugs for anxiety.  When her new co-workers became rude to her, she reported their misconduct and called off work or leave early because of panic attacks.  She then sought FMLA leave.  The doctor’s statement indicated that she would need it for a few days a few times each year because of the panic attacks, but her managers reported that she insisted that she was entitled to twelve consecutive weeks with pay.   After being denied paid FMLA leave, the plaintiff sought to return to work immediately, but was told that she would need a medical release.

There are then three different versions of what transpired.  The plaintiff alleged that she told her doctor that she required a medical release or she would be terminated the next day.  The medical office called the employer and indicated that it was told the next day that she needed to be reassessed and then released to return without any medical restrictions or emotional distress.   In particular, the manager could not understand why she could require FMLA one day and then the next was ok to return to work.  The plaintiff was fired later that day for not being able to perform her job duties.

According to the manager, the plaintiff had initially shown her a note indicating that she needed to be off work for 12 weeks.  After FMLA leave was denied and she was told that she required a medical release to return to work, the plaintiff brought such a release the next day (which then disappeared from her personnel file).  When the employer called the physician to confirm, it learned that the doctor had not released the plaintiff to return to work and did not intend to do so.   The doctor also claimed to be operating a pain clinic.   The manager completed paperwork indicating that the plaintiff was terminated for being unable to work (so that she would get unemployment), but claims that she told other managers about the falsification of the medical release.  Nothing about the document falsification was relayed to the EEOC when the plaintiff filed her Charge of Discrimination.

The termination documents indicated that the plaintiff was unable to perform her job duties.  However, they also indicated that the plaintiff had relied on a physician in Indiana where her sister worked (which the plaintiff disputed).   The notes indicated that the physician’s office had refused to release the plaintiff to return to work without a reassessment.  When the manager relayed this to the plaintiff, she claimed to have called her physician’s office and obtained their consent for her to return to work.  She asked her manager to call a particular telephone number and ask for a particular person, who turned out to be the plaintiff’s sister.  (The plaintiff apparently admitted that she brought her sister into the discussion in order to better explain the plaintiff’s FMLA rights.). The manager then called the physician again to re-confirm that he would not release the plaintiff to return without a new evaluation.  After that, the manager lectured the plaintiff about falsifying medical releases.   When no release was provided, the employee was terminated. 

Remarkably, despite the FMLA request and reason for her termination, the employer argued that there was no evidence to show that it knew or perceived the plaintiff as disabled.   In particular, they point to the fact that the plaintiff stated that she wanted to immediately return to work as soon as she was informed that any leave of absence would be unpaid.  The Court had no difficulty finding that there was sufficient evidence to conclude that plaintiff may suffer a disability even if it was transitory.  (The employer apparently never raised the affirmative defense that any impairment was minor and transitory).   Notably, the medical office records reflect that the manager had specifically said that the medical release must state: “no emotional distress can happen.”  Also, it was disputed whether the plaintiff was motivated to return by the unpaid leave or by the undisputed denial of FMLA leave.  Thus, it was factually possible that the employer perceived her as disabled.   

Although—as West Meade argues—Jarvis may not have considered an anxiety disorder to constitute a disability, a “regarded as” claim under the ADA requires only that there was a perceived impairment, not necessarily that the employer perceived the disability to limit a major life activity. . . .

Additionally, as documented, Jarvis terminated Kean because Kean was “unable to do her job,” with no evidence that she was inhibited from doing her job by anything but her anxiety disorder. “To be sure . . . [the employer’s] knowledge of [Kean’s] medical issues—alone—is insufficient to carry the day,” . . . . but this perspective supports the EEOC’s argument not only that Jarvis was aware of Kean’s impairment, but also that Jarvis believed it would inhibit Kean from fully performing her job duties. This contradiction in Jarvis’s testimony creates a genuine issue of material fact.

The EEOC argued that the evidence showed that “but for” the employee’s admission of having an anxiety disorder and requesting an accommodation (i.e., a medical leave of absence), the employer would not have terminated her.  The employer relied on the evidence about the falsification of the medical release (i.e., either the missing note or the sneaky request to speak with the plaintiff’s sister). 

The Court indicated that the jury could interpret the conflicting evidence any number of ways and, therefore, only the jury could ultimately resolve whether the employer was motivated by the plaintiff’s anxiety or by the unusual events surrounding the plaintiff’s attempt to obtain a medical release in order to return to work.   

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Another Ohio Appellate Court Rejects Non-Compete Clause that Restricts Ordinary Competition

Last week, the Montgomery County Court of Appeals affirmed a declaratory judgment in favor of an employee that the non-compete agreement which he had signed just six months earlier was unenforceable because it sought to prevent regular competition instead of unfair competition.  Geloff v. R.C. Hemm's Glass Shops, Inc., 2021-Ohio-394.  The Court found that the employer failed to show that the employee had memorized or was familiar with its entire customer list or that this list was in fact confidential.  The employee was familiar with the identities of the customers he had serviced, but the employer had also publicized the names of some customers on its website.  Moreover, the fact that the employee learned the skills of a common trade during his employment did not make those skills a protectable interest or trade secret.  Because the non-compete clause was unenforceable, the trial court did not need to narrow it in order to make it enforceable.

According to the Court’s opinion, the plaintiff employee had been hired in 2015 as a glazier and was promoted to foreman in January 2019.   He signed a non-compete upon being hired and upon his promotion.  He resigned his employment six months later, joined the union and was assigned to a new employer, which hired him as a glazier.   His employer then threatened to file suit for breach of his non-compete (and presumably for tortious interference against his new employer), prompting the plaintiff to seek a declaratory judgment.  His new employer terminated his employment.  A year later, the trial court entered summary judgment in the employee’s favor.  The Court of Appeals affirmed.

The trial court concluded that the employer failed to show that the employee possessed confidential information because the identities of its customers were public knowledge.  The plaintiff only had knowledge of the customers which he served.  While he may have been aware of a customer list, there was no allegation that he memorized it or possessed a copy.  The employee’s “awareness of the identities of some customers, moreover, is not the equivalent of possession of a complete customer list.“  The plaintiff disputed that he had information about marketing, pricing, or customer acquisition techniques, etc.     Because the employer “itself voluntarily discloses the identities of certain customers on its website, presumably for promotional purposes, it cannot establish that the identities of individual customers are entitled to protection as trade secrets or otherwise confidential information.”

The court also rejected the employer’s argument that the employee’s training and experience as a field glazier constituted a trade secret..  “[S]uch experience and skills “cannot qualify as trade secrets if they are of common knowledge * * * in the trade.”

The Court also refused to enforce a six-state restrictive territory. The plaintiff had only been assigned outside Ohio twice during his four-year employment and the employer itself had only ever performed 30 projects outside Ohio.

The trial court found that [the employer] did not produce evidence suggesting that the Agreement’s restrictions were necessary to restrain [the employee], “a field installer of the products [that the employer distributes,” from engaging in unfair competition.  . . . [The employer] did not explain how [the employee’s] subsequent employment as an installer “in Ohio or within the other five * * * states” listed in the Agreement “[would] subjectively harm” [its] business, inasmuch as [it] did not establish that its out-of-state work was a significant component of its business overall, or more importantly, that the nature of [his] subsequent employment as an installer, as opposed to employment involving sales and marketing, constituted anything other than ordinary competition.

The employer did not understand why the trial court was influenced by the fact that the employee was not involved in sales. The employer

fails to distinguish between unfair competition and ordinary competition. The distinction depends on whether the “form of competition [a] covenant [not to compete] restricts is in its nature and character unfair” to the employer; if the form of competition is not unfair, then the restriction is unenforceable.  . . .The trial court reasoned that in the absence of any evidence that [the employee] worked subsequently in sales and marketing for a competitor of [the employer], and in the absence of any evidence that [he] “established his own business in direct competition” with [it], the enforcement of the Agreement would serve only to prevent [him] from working as an installer.

We concur with the trial court. [The employer] has not demonstrated that [the employee] engaged in unfair competition merely by installing glass products for a competing business, nor did [it] produce evidence showing that [he] possessed trade secrets or other confidential information that he could have used to give his subsequent employer or employers an unfair advantage over [it].

Further, “The trial court found, in effect, that the Agreement would not provide any benefit to [the employer], because the evidence on record did not show that [the employee] possessed any confidential information or trade secrets, or that [he] had engaged in unfair competition.
 Agreeing, the Court stated that “Absent evidence that [the employee] misappropriated confidential information or trade secrets, or otherwise engaged in unfair competition, enforcement of the Agreement would not discernibly benefit [the employer], whereas it would needlessly prevent [him] from working as an installer.”

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Columbus Adopts CROWN Ordinance

In December, the Columbus City Council amended its anti-discrimination ordinance to modify the definition of race discrimination at §2331.01 to include “traits historically associated with race, including, but not limited to, hair textures and protective and cultural hairstyles,” which, in turn, is defined to include, “but is not limited to, such hairstyles as braids, locs, cornrows, bantu knots, afros, and twists, whether or not hair extensions or treatments are used to create or maintain any such style, and whether or not hair is adorned by hair ornaments, beads, or headwraps.”  Ordinance No. 2880-2020 , § 1 became effective in mid-January.   Chapter 2331 covers several types of discrimination, including employment, housing, public accommodations, and ethnic intimidation.  Such legislation is part of a movement for Creating a Respectful and Open World for Natural hair.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects Shortened Limitations Periods Under Title VII, the ADA and the ADEA, but Affirms that Employee Could Not Show She Was Singled Out

 

Last month, the Sixth Circuit expanded its earlier prohibition against the contractual shortening of limitations periods from Title VII claims to cover the ADA and the ADEA as well, but agreed that the contract would still apply to shorten the limitations periods applying to ERISA, §1981 and Ohio Civil Rights Act claims.    Thompson v. Fresh Products LLC, No. 20-3060 (6^th Cir. Jan. 15, 2021).    In addition, the Court affirmed the employer’s summary judgment on the employee’s discrimination and failure to accommodate claims on the grounds that she failed to show that she was singled out for the RIF on account of her race, age or disability and because being able to work a full shift on the assembly line was an essential function of her job.  Among other things, her sample sizes were too small to provide a meaningful statistical analysis. 

According to the Court’s decision the Plaintiff was hired in July 2016, worked the third shift and was one of the company’s most productive employees on the assembly line.  Upon being hired, she signed an Employee Handbook Acknowledgment which shortened the time period for suing the employer to six months, or such reasonable time if a court later found six months to be too short.     In October, she requested to work part-time on account of arthritis in her back.  While her supervisor agreed to look into it, no one responded to her request.  Later, the company realized that it needed to reduce its workforce and requested which staff would agree to work 10-hour shifts instead of 8-hour shifts.  Plaintiff was the only employee who did not agree to work a 10-hour shift (due to child care responsibilities) and was ultimately laid off at the end of January along with three other employees (and two others who had either had indicated that they could or would no longer work). 

The Plaintiff promptly filed OCRC and EEOC Charges under Title VII, the ADA and the ADEA.  She filed suit within 90 days after her Charge was dismissed.  The trial court granted summary judgment to the employer and the Sixth Circuit affirmed that she failed to satisfy her prima facie burden of proof.  

The first issue involved whether her lawsuit was timely when it was filed more than six months after she was laid off.   The Court agreed that the Employee Handbook Acknowledgement barred her OCRA claims under Ohio law.  However, it found that the limitations periods for claims under Title VII, the ADA and the ADEA were substantive statutory rights which could not be limited by contract, especially considering the national policy in favor of a uniform limitations period.  (Of course, never mind that the limitations period to file a Charge is not uniform).  Accordingly, it found her federal claims to be timely.

The Court rejected her failure to accommodate claim because her request to work part-time was unreasonable and because the Sixth Circuit does not recognize an independent cause of action for an employer’s failure to engage in the interactive process.    While the duty to engage in the interactive process is mandatory, “failure to engage in the interactive process does not give rise to an independent claim.”  She failed to carry her burden of proving that her requested accommodation was objectively reasonable.  No other employee was permitted to work part-time on that production line and the Court refused to consider the fact that the employer permitted one employee to work part-time in a different department under different working conditions.  It also did not discuss the employer’s obligation to discuss potential transfers to a different position.

Although the handbook does not state that employees must work full time, it states that production workers must be able to work 10–12 hours at a time—at least the length of a full shift. Shaferly testified that Fresh Products does not have part-time production workers because it is too difficult to manage with the amount of turnover at the company, and Hartman testified that it would be very difficult to have someone leave in the middle of a shift because it would require “figur[ing] out how to move someone else to take their spot” or “cover [their] machine.”

The Court also rejected her discrimination claim because she could not show that she was singled out for the RIF on account of her disability in light of her admission that she had never indicated a willingness or ability to work the 10-hour shifts.  Indeed, she “was the only employee who stated she could not work either shift, never selected a preference for one of the shifts when Shaferly followed up after the survey, and did not voluntarily quit.” 

The Court rejected the argument that she could not prove that she had a disability because she did not have any lifting restrictions imposed by her physician after she had been hired and had continued to work full-time until she was laid off because she had such medical restrictions imposed while working at a prior employer.  The Court also rejected the argument that she was unqualified for her position because she was unwilling to work 10-hour shifts because of the ambiguity in the employer’s request in seeking “preferences” instead of willingness or ability. 

The Court also found that she could not prove that she was singled out for the RIF on account of her age.  Only five employees were laid off and all of them were over the age of 40.  However, two of them were not comparable because one volunteered for the RIF and the other announced that she had to leave on February 1 (to go to jail).    The other two employees had admittedly poor production records.  When the Plaintiff pointed to the retention of a younger female, the Court pointed out that there was no evidence that that the comparator was less qualified than Plaintiff.  When the Plaintiff pointed to one young employee who was retained even though he had poor production and attendance compared to her, the Court pointed out that:

The probative value of this evidence in the age-discrimination context is undermined by the fact that, according to the final list of those considered for layoff (excluding those who quit or were terminated for cause before the layoff), half of the other employees who had lower production numbers or higher absenteeism than Thompson and were retained were members of the protected class (i.e., forty or older), and two were older than Thompson at the time of the RIF. This evidence does not tend to show that Thompson was singled out because of her age.

The Court also rejected her statistical “evidence” that she was singled out for the RIF on account of her race.

[W]ith the exception of [the employee] who informed Fresh Products that she would be incarcerated, the five employees terminated as part of the RIF were all black, Hispanic, or biracial; and 2) of the 18 people considered for layoff, 78% were black. These statistics suffer from the same shortcomings as those provided in support of Thompson’s ADEA claim: the sample sizes are too small to be reliable, and Thompson has failed to provide any analysis of the statistics’ significance. They also do not address a comparison to the relevant pool: roughly 70% of Fresh Products’ employees are black, Hispanic, or biracial.

When the Plaintiff identified a white employee who was retained with poorer production and attendance that her, the Court pointed out that:

[O]f the ten employees with lower productivity or higher absenteeism than Thompson who were considered for layoff but retained, only [that employee] and one other employee . . . are white.  Six are black, and one is biracial. In light of this context, Fresh Products’ retention of [that employee] does not tend to indicate that Thompson was laid off because of her race.

The dissenting judge would have found a factual dispute as to pretext when a non-disabled employee who had requested to work part-time to accommodate her class scheduled was retained even though that employee had also – unlike the Plaintiff – initially agreed to work a 10-hour shift before resigning.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.