Distant work, little one care, masks enforcement: COVID-19 is re-writing employment legislation

Remote work, child care, mask enforcement: COVID-19 is re-writing employment law

Taneasha Newsome already felt like she was being skipped for promotions and increases, although she had taken on more responsibility as an associate researcher for Axos Bank in the past nine years.

Then the coronoa virus struck.

Suddenly, Newsome, a black single mother, had to take care of her four children, including two with special needs, while working in her apartment. The cost of full-time childcare exceeded her wages, she claimed. Leaving her with her grandmother, as she had before the pandemic, was no longer an option.

Like other employees of the online company headquartered in La Jolla, Newsome was remotely monitored by a productivity program. However, she claimed that the program was unable to properly measure the type of work she was doing and that she underestimated her working hours.

When the employees were ordered back to the office, Newsome was given the opportunity to continue working from home. But it was becoming increasingly difficult to be a sole caretaker.

"At one point, she even went so far as to ask if she should take vacation until her children's schools were open again. Axos rejected the suggestion," wrote Alome Haeggquist, the San Diego-based Newsome lawyer, in a lawsuit against Axos in July. "Instead, Ms. Newsome's superiors just told Ms. Newsome to find out."

She was released on May 26 in a zoom call after being told that she was lacking productivity, the lawsuit said.

The grim reality is that millions of people work indefinitely from home or are front-line infected. This raises all sorts of new questions about what constitutes a secure job or unlawful dismissal.

Demand for labor law advice has skyrocketed since the pandemic began, and lawyers are navigating laws that have never been tested before, and applying existing labor law – much of it to mid-20th century industrial society – to unprecedented circumstances.

"The pandemic is progressing faster than the law," said Dan Eaton, a San Diego-based lawyer who represents employers.

However, the impact could be far-reaching.

Court record trackers managed by Fisher Phillips, a national workplace law firm representing employers, have filed more than 400 coronavirus lawsuits nationwide. The cases are just the tip of what lawyers expect in the coming months.

"Litigation related to the pandemic will take much longer than the pandemic itself," said Eaton.

Work-home balance

When the offices are empty, there are problems navigating in remote work. The downtown San Diego office of Hughes Marino, a commercial real estate company where almost all of the employees work from home.

(Nelvin C. Cepeda / The San Diego Union Tribune)

According to Fisher Phillips, lawsuits related to remote work and vacation are the most common.

This is likely to continue to grow as schools across the country, including schools in San Diego County, are preparing to begin the school year with home learning.

There is a common thread in a subset of litigation involving parents like Newsome who claim to have been discriminated against by their employers for having to look after children at home while balancing the full workload.

The parents claim that they were either not given flexibility to continue their work at home, or were prevented from using the First Coronavirus Response Act for families, according to which small and medium-sized employers paid sick leave or extended medical or family care Perform in response to the virus.

The parents were subsequently dismissed, the lawsuits allege.

After Newsome lost her job, she and the children had to move out of their San Diego apartment. Now they live with the family.

An Axos manager told the Union Tribune in a statement that it was corporate policy not to comment on the details of pending litigation.

"Regarding this complaint, we can say that the allegations are false and omit material facts, and we are confident that as soon as these material facts are presented to the appropriate forum, we will prevail," the statement said.

In another recent case, a San Diego woman filed a lawsuit with the San Diego Superior Court after being fired as an account executive for an insurance company. Drisana Rios claims that her boss didn't like the fact that she had to take care of her children aged 1 and 4 and refused to comply with her request for more flexible hours.

When she was released, HUB International informed her that the lawsuit allegedly resulted from lower earnings due to the pandemic.

HUB's lawyers contested the allegations in a lawsuit, saying that Rios was fired for legitimate performance reasons, including wrong and incomplete work products and "behavior problems" that were exacerbated by work at home. The lawyers added that 88 percent of the women surveyed anonymously in June said they were “very happy that they could be just as productive with virtual work”.

Early legal disputes related to the Families First Act are particularly closely watched in legal circles, as the measure is brand new and was launched a few months ago in response to the pandemic. The fact that these lawsuits often contain other legal arguments makes them even more complex and unpredictable.

Lucas and Deicy Fernandez

The coronavirus pandemic has forced many families to work from home while juggling childcare responsibilities. Lucas Fernandez and his wife Deicy work in their La Mesa apartment while watching their children.

(K.C. Alfred / The San Diego Union-Tribune)

At least one case has already been decided.

In Pennsylvania, a single mother who worked as a finance manager for a small airline on the east coast called for more flexible hours and the ability to continue working from home to take care of her 11-year-old son and keep him on the right track his homework, according to the lawsuit filed in March.

After several conversations with her employer, she applied for paid family vacation that the government had just announced. She was fired days later.

Airline lawyers argued that the case should be dismissed because the Family Vacation Act did not take effect until a week after she was released.

A federal judge agreed and, after examining the airlines' arguments, dismissed the lawsuit as "in dispute". He gave no further explanation for the decision.

Claims for discriminatory dismissal have spread beyond family situations. Protected class workers – especially those who are pregnant, disabled, or older – said they were released under the guise of declining earnings.

"People use COVID as an excuse," said Haeggquist of Haeggquist and Eck des Plaintiffs. “Companies are fighting. I don't deny that, but every industry has problems. It doesn't give you a passport to discriminate against people. "

Kristen Nesbit, partner and co-chair of Fisher Phillips' California litigation, said she had seen a concentration of these types of cases in retail.

"The company had to close, the company had to make difficult decisions about firing employees," said Nesbit, a Los Angeles-based company. Companies don't take decisions lightly, she said.

"Employers care about their employees, their safety, well-being and economic well-being," she said. "We find that employers want to be compassionate, but also pragmatic about the impact of COVID on their company and the impact on their employees."

Return to the construction site

Boston University

An employee of a COVID-19 test laboratory at Boston University wears personal protective equipment.


Returning to work also harbors a minefield of potential legal challenges.

Lawyers like Haeggquist kept asking questions. "We received a lot of calls. A lot to test. Like," My employer requires a test, is that a privacy violation? How can you allow it? "

The answer: yes, coronavirus testing may be required, but the employer must also pay for the time to run the test, she advised. However, antibody tests are not required, she added.

Other frequently asked questions concern the legal obligation for employees and employers to disclose positive COVID-19 cases. (The general rule is to keep the workforce up to date on new positive cases in order to maintain public health. However, the employer should not specifically identify the infected.)

Can an employer send someone home who shows symptoms? (Yes.)

Can an employer keep workers aged 65 and over – an age group at higher risk of serious illness – away from work with or without pay? (No, that would be discrimination, according to the government.)

"Usually you can't ask about a disability, there is no need to do tests," said Haeggquist. "But in a global pandemic, we make exceptions."

"Government agencies are trying to interpret these things as well," she added.

Lawsuits also reflect the evolving definitions of a "safe job".

Nesbit has seen a number of healthcare workers complain particularly about allegations of unsafe work practices or conditions, such as a lack of personal protective equipment. And there are also unlawful dismissal claims for complaints about such conditions, including a Chicago nurse who has filed a whistleblower lawsuit.

However, the legal threshold is high for employees who refuse to return to work after canceling the home stay orders.

According to the law, the danger to personal security must be imminent or imminent. "Employee commitment at this stage to work with patients in a medical environment without PSA can reach this threshold," Fisher Phillips guidelines for employers. "However, most working conditions in the United States do not meet the elements that an employee needs to refuse to work."

Two former guards at the facility sued their operator and claimed to be an unsafe job.

COVID-19 quickly spread to Otay Mesa Detention Center this spring. Two former guards at the facility sued their operator and claimed to be an unsafe job.

(AP photo / Gregory Bull, file)

Two former Otay Mesa Detention Center guards sued the private prison company CoreCivic in late April – as COVID-19 continued to spread throughout the facility – and accused the operator of not creating a safe work environment, including not providing or allowing officials to wear masks, to wear their own. Both plaintiffs, who suffer from health conditions, said they were forced to give up the conditions.

CoreCivic lawyers argued that none of the former employees claimed to have been subjected to undue harsh conditions that went beyond the conditions of their employees. They neither claim that they refused to do anything that was prohibited by public policy, nor were they rejected, the company's lawyer said.

The guard's lawyer, Joshua Gruenberg, simply replied to this argument: "This is not the law."

Another thread of legal action is likely to relate to companies that have violated public health regulations – for example, serving customers indoors when this is prohibited or if the mask rules are not being followed – which in turn may lead to employees are exposed to unhealthy conditions, said Eaton, who also regularly writes Union-Tribune column on employment issues.

The Republicans are pushing for comprehensive protection of coronavirus liability for businesses as part of a new relief effort. Democrats say this would deprive workers of fighting unsafe conditions.

And workers have a new danger to deal with: monitoring customers who refuse to wear a mask.

"Are employees who are given these tasks provided with the tools to avoid injuries and special training on de-escalation?" Eaton asked. "PSA takes on a different shine when you need to protect yourself from belligerent customers."

Eaton pointed to an incident that was recently reported by an 18-year-old who works in a grill restaurant in Kansas. He asked a man who had come in without a mask to put one on, and the man refused and pointed a gun at his hip.

"My first thought was that I work in customer service and that will really happen?" The worker told The Kansas City Star. "We only ask you to wear a mask for a few minutes. We could have taken your order outside if you didn't want to. But you go to an air-conditioned area without a mask and if I tell you that you wear one "Shall you shoot me? Impressive. I earn $ 8.50 an hour plus tip – for that?"

A sign prompts guests to put on a mask in a restaurant

A sign prompts guests to put on a mask in a San Diego restaurant.

(Sam Hodgson / The San Diego Union Tribune)

The home office

The mass move from home to work has created another point of friction between employee and employer: the remote workstation.

What seemed feasible in the short term – laptops, sofas and kitchen tables – is now causing chaos on the back and in situations of living together.

Under California law, it is up to the employer to determine what is “appropriate and necessary” to do the job, and either provide or refund the equipment. What that means depends on the job.

A computer seems to be necessary for most office work, but what about a monitor or printer? The same applies to telephone services and conference calls, but what about high-speed Internet? An ergonomic chair?

Eaton recommends that employers address this issue, particularly in the wake of the pandemic.

"The accommodation requirement does not only lapse because the employee works remotely," advised Eaton. "In a way, it could be made worse."


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