Dinsmore partner Brian Moore provides an overview of hot employment law issues already being litigated and likely to face judicial scrutiny in the months to come. He and host Jill Francisco discuss COVID-19-era legislation that protects many employees who need to take emergency leave to care for loved ones.
The two also explore relaxed privacy protections, leave eligibility, spikes in COVID-19 related employment cases, and employer-mandated vaccines. A common issue Moore sees: Former employees claiming COVID-19 is a pretext for wrongful termination.
Brian Moore is a partner at Dinsmore & Shohl in Charleston, West Virginia
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The Paralegal Voice
Labor & Employment in the Age of COVID-19
December 17, 2020
Jill Francisco: Hello everyone. Thank you for joining me for another fun and informative episode of the Paralegal Voice on the Legal Talk Network. I’m Jill Francisco, an advanced certified paralegal, immediate past president of NALA, the paralegal association and your host of this episode of the Paralegal Voice. I have over 22 years of paralegal experience and I’m so super excited to share my knowledge and enthusiasm for the paralegal profession with you. So, we have a wonderful guest for today’s show, but before we welcome him, we’d like to thank our sponsors. Today’s sponsor is Legalinc, makes it easy for paralegals to digitally automate tasks like business formations, corporate filings and registered agent services nationwide. Visit legalinc.com/podcast to create your free account. We would also like to thank ServeNow. ServeNow is a nationwide network of trusted pre-screen process servers. Work with the most professional process servers who have experience with high volume serves, who embrace technology and understand the litigation process. Visit servenow.com to learn more. Thank you to NALA, The Paralegal Association. NASA is a professional association for paralegals providing continuing education, voluntary certification and professional development programs. NALA has been a sponsor of the Paralegal Voice since our very first show. And also, thank you to CourtFiling.net. E-file court documents with ease in California, Illinois, Indiana and Texas. To learn more, visit CourtFiling.net to take advantage of a free 30-day trial. So, I am so very excited like I said to have Brian Moore, a partner of Dinsmore & Shohl, LLP. He’s practicing in the labor and employment law and I actually worked with him, have the privilege I should say to work with him, but I’ve known Brian for many, many years and so it’s truly a treat to have him with me today to give you guys some valuable information regarding COVID and how it’s impacting the labor and employment law and most importantly, paralegals and other legal staff.
Brian Moor: Thank you Jill for having me back on the show. Excited to speak with you again. 2020 certainly has been an interesting ride.
Jill Francisco: I know. It’s — I can’t believe it’s December though I feel like we’re almost into 2021. Looking forward to it. So anyway, Brian I know like you said this is a — you’re coming back on the show, you briefly made an appearance I think it was in the summer leading up to NALA’s 2020 first virtual conference and we had you on for a little teaser. So, why don’t you kind of remind everybody of your background and your experience?
Brian Moore: Sure. I’ve been practicing labor and employment law in West Virginia and Kentucky for 19 years, although 2020 has felt like about 10 years, so maybe I should say 29 years total of experience.
Jill Francisco: I’m with you.
Brian Moore: I grew up in West Virginia, attended Wes Virginia University and then decided I wasn’t ready for the real world, so I went to WVU Law School because quite honestly, you know, I’m not one of those people who had a lifelong ambition of being a lawyer, but I guess it was a big gamble. Thankfully for me, it paid off because I really enjoy being a lawyer now, so. And if you ask my kids what I do for a living, they’d say that I type on the computer and hosts conference calls and now of course, zoom meetings in 2020. So, that’s kind of what I do. I’m working–
Jill Francisco: Expert of all.
Brian Moore: Dinsmore & Shohl Law Firm since 2008. I’d say I spend about 80% of my time working on employment law issues and about 20% of my time on traditional labor work, working with companies and unions on collective bargaining agreement negotiations, issues and disputes arising under those agreements and of course, this year, I’ve spent too much time dealing with the issue of COVID-19.
Jill Francisco: Yes, yes. And Brian, gosh when you said 19 years, that kind of made me feel a little — has it been that long?
Brian Moore: It has been that long, so. I have worked with Jill back at the beginning and I’m working with her now.
Jill Francisco: We had this big elaborate plan to bring it back together, right?
Brian Moore: Correct.
Jill Francisco: Okay, so yes, speaking of COVID-19. I mean, it’s definitely even from my perspective obviously having an impact on the labor and employment law. I mean, I think that’s now and like I said years to come and your –you had like I said I mentioned before, you had an awesome session that was presented at the 2020 NALA Annual Conference and I think you touched on — we were kind of I think it was like hot issues at the time and we touched on some of the information regarding the emergency temporary leave laws. I think since then, there’s been some changes, but why don’t you start off by giving our listeners a little bit of the basic, you know, a little bit of highlights of these laws.
Brian Moore: Sure and you’re right, I talked a little bit about these at the conference.
And interestingly, when we started planning for the conference and hot issues and employment law, that was not going to be one of the issues, but of course, it turned into one of the issues and forced its way into the presentation. In April of this year, congress enacted the Family First Coronavirus Relief Act. What was so groundbreaking about it is that there has never been federally mandated sick leave for employees until this Act. And because of coronavirus, this emergency leave was enacted. It provides employees 80 hours of emergency leave if they fall into one of six categories and those six categories are one, should the employee is subject to a federal state or local quarantine or isolation order. Two, they’ve been advised by a healthcare provider to self-quarantine. Three, they are experiencing symptoms of COVID-19 and seeking a diagnosis. Four, they are caring for an individual covered by number one or number two. Five, they are caring for a son or a daughter whose school or place of care is closed due to COVID-19 precautions or six, any other substantially similar condition and thankfully, we don’t have this yet. That’s just built in in case something similar to COVID-19 would come up. An important aspect of this leave though, you don’t automatically get it if you have COVID-19 or symptoms. You only get it if you have those things if you fall into one of those six categories and you’re unable to work or telework. So, let’s say I have a mild case of COVID-19, but I can sit at home on my computer and work and I’m fine, I’m not eligible for the leave. See, you have to be unable to work or telework in order to get to the 80 hours of emergency sick leave. There’s also emergency Family Medical Leave Act leave under this law. It is though only for an employee who needs to miss work because of school-related closures or child care unavailability due to COVID-19. You know, under the normal FMLA, you have to meet certain criteria as an employer to be covered by it. Those criteria don’t apply here. This applies to everyone. It applies to employees that have worked for the employer for 30 days or more and it’s up to 12 weeks of leave. Now, a very important aspect of both of these types of emergency leave is that they are slated to end December 31st of 2020, unless extended by congress and the president. So, you’ll want to keep an eye on the news because there is talk of possibly extending it, but nothing has happened yet.
Jill Francisco: That is super interesting about when you mentioned about the school because I don’t know if people that would immediately, you know, come to mind, I mean, you know, when you think about it, you think if you’re sick, if you have to like you said care for somebody that’s sick, but it’s interesting like because I’m sure you’re in the same boat as I am with JD(ph). He’s a sophomore, my son, and he’s been I think the past, he was going two days a week, he was doing, you know, and then doing the rest of his work the rest of the week. He just had, you know, he was at home, but he just spent his time doing the assignments that he got on the two days he went live. But I think this is going on the third week that they — or you know, our county’s been Orange and so, he’s been, you know, now they have a new remote schedule where I think it’s like 1:15 to 3 30 every day and, you know, that’s really something to consider. I wasn’t really aware and I think it’s nice that you went over that in detail because I didn’t know that that, you know, kind of factored in with that. But, you know, I guess like you said the child could be at home, the parent can be at home with a child, but also throwing the telework there, then you’re not covered by the Act, but that still get – you know, it’s an option that you get to keep working. I mean, you could still work.
Brian Moore: Another important aspect of it is that the burden or the cost doesn’t actually fall on employers. It is paid for ultimately by federal tax money.
Jill Francisco: Wow!
Brian Moore: Because employers get an instant payroll credit for the amount of the leave that they have to provide under this law.
Jill Francisco: Well, that’s helpful because especially with, I know business is struggling now. It would — it would probably even be a bigger burden on them. So, I know you said that was in April of 2020, but now I think it was if I’m correct, was it on September 11th of this year the U.S. Department of Labor’s Wage and Hour Division announced revisions to the regulations that implemented the paid sick leave
and the expanded Family and Medical Leave Act provisions of the Family’s First Coronavirus Response Act. Could you please kind of talk about maybe the little high points and explain like some of those changes that came in in September?
Brian Moore: Yeah, sure and I think that was the result of a lawsuit that had been filed as to some aspects of the regulations and the result was revised regulations that went into effect as you said September 11th. The most notable change under this is that the definition of healthcare provider was changed. Under the original regulations, healthcare provider was exempt from having to provide the emergency leave.
So ironically, the people who made the leave more than anyone were not eligible for it and healthcare provider was defined to include anyone who worked for a healthcare provider. So, it could be the receptionist. That definition was changed in September to make it that only medical personnel are exempt, people who actually administer patient care such as nurses, doctors, things like that. They are not eligible for the emergency leave and of course, I’ve pointed out the irony in that, but we also understand that these are the people on the front line.
Jill Francisco: Right.
Brian Moore: And the essential workers that — that maybe we cannot afford this this luxury of letting them have time off if, you know, they don’t have COVID. They’re caring for someone with COVID, things like that. Certainly, if they have COVID, then an employer needs to give them the time off regardless of whether, you know, it’s mandated under this particular law or not. There were, Jill, some other clarifications to the regulations, but a lot of it was just like tightening some things up such as when does an employee have to give notice of the leave and it’s as soon as practicable and then also that you could use both types of leave intermittently. So, you don’t have to take them one long stretch. You could take them intermittently as needed.
Jill Francisco: Which isn’t — is that how the FMLA was designed too, right? You don’t have to take it all together, like for instance I think obviously when I was on maternity leave, I took it all together with JD, but then when Sean, my husband had a leg injury, he, you know, was off a little bit and then kind of periodically when he went in for different surgeries as follow-up and I think I remember I didn’t have to take all that in one big chunk.
Brian Moore: Yeah, that’s true. As long as you have the medical provider say that, you know, intermittent leave is necessary on the paperwork, then that’s true.
Jill Francisco: That’s a good — I mean, it’s something to consider because I know people get alarmed when it’s like, you know, you get that off, you get that time off, but you don’t necessarily need all that time off a big chunk. You need it over the course of you know a few months to take –you know, to take care of something that’s ongoing.
Brian Moore: Right. Some people have conditions that flare up and it’s especially important for that.
Jill Francisco: Right. Okay, so before Brian we go on to our next point of discussion, we need to take a quick commercial break. We’ll be right back.
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Jill Francisco: Welcome back to the Paralegal Voice. I’m Jill Francisco and my guest today is Brian Moore and today, we’re discussing issues regarding COVID and, you know, some tips and things that employees need to look out for regarding the labor and employment field that Brian practices in. So one thing obviously that’s all in the news you and I were talking earlier is the vaccine is out there. We’re getting the first doses, you know, being distributed and so even my secretary was asking me the other day, you know what do you think about how employers will handle this? You know, know will employers be able to require the employees to get the vaccination when it becomes available at the different stages? I think that’s an intriguing question.
Brian Moore: Yeah. It’s a good question. I’d say it’s a touchy subject.
Jill Francisco: Yes.
Brian Moore: Probably open a can of worms with this one, but the short answer is I think and some people may not want to hear this, but I think the short answer is I think employers will be able to mandate the vaccine so long as they take into account certain legal exceptions, those industries working directly with the public such as health care and retail, probably in a stronger position to argue that they can mandate that employees get the vaccine. Employers whose employees can telework, maybe do a substantial portion of their work from home may be in a weaker position to argue that. They should have mandatory vaccinations. This is definitely an unsettled question. What we do know however, is that so far, the law has treated COVID 19 a little bit differently than other health issues. For example, The EEOC has already said that the virus serves as a direct threat to co-workers and the public, so it has allowed employers to be more invasive than they normally would be allowed.
HIPAA provisions have been relaxed because of the virus. This issue is going to be tested either way. I mean, we know this people are going to complain either way.
Jill Francisco: Yeah.
Brian Moore: So, if employers mandate the vaccination, they will probably have some lawsuits from people alleging disability discrimination, religious discrimination, invasion of privacy and probably several other things. If they don’t mandate the vaccine, they could be sued for negligence possibly OSHA violations basically anything related to disregarding the safety of their employees and the public.
Jill Francisco: Yeah.
Brian Moore: If i had to guess right now, I would say employers will be allowed to mandate vaccinations and I believe we’re seeing some authority that they’re saying that already, but they’re going to have to make accommodations if someone says I have a disability and for whatever reason need this accommodation of not taking the vaccine or I have a sincerely held religious belief that prohibits me from taking the vaccine. It can’t just be that I’m anti-vaccine. It has to be that it’s a religious belief and a sincerely held religious belief that would prohibit the person from taking the vaccine. And you touched on something a moment ago Jill which is we get inundated with bad news About COVID-19 and a lot of times we want to take a break from it and I do that as well and it’s exhausting and sometimes you just want to bury your head in the sand.
Jill Francisco: Yes.
Brian Moore: But i would say it’s good advice for you, your listeners, for me and for everyone to pay attention to this stuff because it affects us not only professionally, but personally including this issue with the vaccine. I mean, it’s a very good question.
Jill Francisco: Let’s go back and circle around just for a minute because it’s intriguing to me because, you know, obviously working with you on the on the labor employment cases. So you know, the employers from the employers aspect creating the safe work environment. So I mean, do you open up that door to where my co-worker doesn’t get the vaccine and I get the vaccine. Then is that for me like I’m upset or say, “Well, I’m not going to come in here because she’s put me at risk. It’s not a safe work environment.” I mean is that, am I getting, am I kind of thinking about that? I mean, are we going to go down that road sometime you think?
Brian Moore: I guess under your example, the employer does not mandate the vaccine.
Jill Francisco: Right, correct.
Brian Moore: Right.
Jill Francisco: Correct.
Brian Moore: So, it’s I think the employer is going to have to show that they took the necessary precautions. If it’s not that they require vaccine, I think as long as they can show the other things that we’ve all become accustomed to this year, social distancing, mask wearing where appropriate, sanitizer stations, and all of that good stuff. You know, there’s no perfect answer or right or wrong answer, any of those I think the best practices are constantly evolving, but as long as a company can argue that or an employer could argue that it’s implemented best practices whatever these may be which may or may not include requiring a vaccine, then I think they’ll be on pretty solid footing.
Jill Francisco: Yeah, and I agree with you and I think also, it’s to me, that’s an argument from the employer’s perspective to require the vaccine, to create a safe work environment.
Brian Moore: Yeah. And I think a lot will. But interestingly, like Facebook has said when their employees return in the summer of 2021, they’re not as of right now, they’re not going to require the vaccine. So, I think as a practical matter, legally they may be allowed to.
Jill Francisco: Right.
Brian Moore: As a practical matter, I think a lot of employers will be hesitant to require it.
Jill Francisco: It’ll be interesting to see how it pans out because obviously too, with –I mean, just the first few people are getting the vaccine, like how, you know, what maybe reactions or you know, to me, there’s going to be some stuff that possibly could influence more people getting it or being maybe hesitant to get it or, you know, that type of thing down the road. So, keeping with the – it sound like you’re getting into medical even though we’re lawyers and paralegals here. The other thing that I heard — that I’ve been hearing a lot from listening to the news just today and I think there was an article the other day out is the concerns about the information that’s being collected from people receiving the vaccine and of course, you know, almost probably on a daily basis, if not every other day, with the HIPAA when I’m requesting the medical records and compiling those and so, you know, I think there’s a concern there and obviously, the amount of information and type of information given to the government. So, what are your thoughts about that because I’m sure you’ve heard of that going down. You know, like I said the information that’s being collected from the people getting vaccinated thus far.
Brian Moore: Well, do you want me to answer as a lawyer or as a person? You’ve been on another hot button issue, but–
Jill Francisco: Hot topics.
Brian Moore: You are correct that the Trump administration has asked the states in administering the vaccine, to supply to the federal government names, birth dates, ethnicities and addresses of individuals receiving vaccinations. Obviously, as you’ve just touched on this raises a host of concerns related to privacy, immigration, and other laws. Some states have already objected to this and are fighting with the federal government about it.
The administration fighting back says, “Hey, we’re not going to share this with all the various federal agencies. We’re collecting it for a legitimate purpose which is to track people who move across state lines and make sure they receive follow-up doses and to track the vaccine’s effectiveness among different ethnic groups.” We don’t know how this one’s going to play out yet. It’s going to be a fight and it’s definitely an issue that we’ll want to follow. It may change
under the Biden administration. So I mean, we’ll find out in a few weeks I guess. If you have personal concerns about it, you should dig around on the internet and see what your state’s stance is because all the different states may have a different stance on that. Some of them are going to freely cooperate with what the federal government wants and others like New York has said, “We don’t want to.” and California has said, “We don’t want to cooperate with all this data gathering.”
Jill Francisco: Is there any — because I had not heard this and I don’t know the answer. Is there any recourse that if they, you know like now, it’s being distributed to the states, so if the state objects to providing that information because right now, it’s being requested. Does that influence or alter the amounts of vaccine and things that the state can get? Have you heard anything on that?
Brian Moore: I haven’t heard anything on that. My prediction is the states are still going to get the vaccines and some of the states have already said, “Well, we’re not going to give you all the data, but we’ll give you some data and maybe block out some of the personal identifiers and things like that the best we can.” But I think that they’ll still get the vaccines and in my prediction is that things will probably change in a few weeks under the new administration.
Jill Francisco: It reminded me of all the redacting. I need to redact information on that, you know, like looking for the date of birth always pops out. I feel like the date of birth is a hot one that you know—
Brian Moore: We could do a whole show on redacting.
Jill Francisco: We could do that. I mean, it’s like redacting. It brings the nightmares about more to redact. So, before we kind of come back and do our wrap-up, we need to take one other quick break to thank our sponsors. We’ll be right back.
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Jill Francisco: Welcome back to the Paralegal Voice. I’m Jill Francisco and my guest today is Brian Moore. Before the break, we were kind of wrapping up our discussion on the concerns that we’re having with giving personal information from the people that are receiving the vaccine. So, maybe stemming from that, probably not, but who knows, you know, is lawsuits. We always talk about lawsuits. So, have you seen any COVID-related labor and employment cases yet this year?
Brian Moore: Yes, I have and I predicted months ago that–
Jill Francisco: Yeah, I think you said that in July.
Brian Moore: —we would see a lot of litigation related to COVID-19. Some people
argued with me and said, “No, people understand it’s a pandemic and that there’s going to be employment loss.” My answer is no, they don’t understand. When it comes to them personally, there’s always going to be lawsuits and litigation. Some of the cases I’ve already started handling where COVIS is directly at issue or people who have had COVID recovered from and then get fired shortly thereafter are claiming that the employer perceived them as having some kind of disability depending on what state that you live in. Different states, you know, in West Virginia, there is a fairly liberal interpretation of what a disability is and what perceived as being disabled is and so, employees have brought or former employees have brought those kinds of lawsuits. There have also been several lawsuits I have where COVID is mentioned as the excuse given by the employer for terminating or laying off employees and the employee says, “No, that’s not the real reason. The real reason is illegal age discrimination and you just used COVID-19 to cover that up.” Other types of cases I’ve seen I haven’t personally handled these, but there’s been occupational exposure types of cases, OSHA complaints filed by employees, any kind of claim you can think of where an employee might argue the employer is not taking
adequate care of me. Bottom line I think that we’re going to see COVID-19 having an impact on employment litigation for years to come.
It’s going to be referenced in some way or another. I could even see an employee claiming that maybe they complained about the methods the employer was using to safeguard employees and that that’s some kind of public policy claim that would prohibit them from being discharged. So I think we’ll be dealing with this issue for years to come. Basically, the sky’s the limit as to how this could impact employment litigation. So, if you’re looking for career longevity, who might want to pick up some
labor and employment law expertise.
Jill Francisco: Yeah, I think that’s good advice and like anything else, I mean, I thought it might take a little longer to evolve, but, you know, I’m sitting here thinking, oh gosh, it’s already been since March, you know, like it’s not like it just happened. So, it’s like you said you’re already seeing stuff coming in. I was thinking that it might take a little longer, you know, to really develop and see the cases actually, you know, come to being filed, you know, that type of thing. The attorneys, the plaintiff’s attorneys, getting a hold of them and things, but that’s I’m sure that it’s going to be like you said it’s just going to keep going and I mean, I know there’s going to be possibly legit things, but obviously, we’re defense. We’re on the defense over here. I feel like it’s going to be frivolous stuff just like anybody else. I walked into a store and the slip and or whatever and so then, you have to, you know, I always compare it to raking over the coals, all of the plaintiffs, all of the lawsuits, fine tooth comb because otherwise, it just gets out of control.
Brian Moore: It’s always personal.
Jill Francisco: Yeah.
Brian Moore: You know, terminations are always personal, so the person’s always going to be upset and of course as you put yourself in their shoes and you can say anytime you lose your job, you’re going to be upset about it.
Jill Francisco: Yes.
Brian Moore: If you can blame someone else for that, you might want to at least attempt that.
Jill Francisco: Right, right. Yes, you’re exactly right. And so, I think like you talked about, you’re already seeing them this year, so do you see anything I guess different or probably just continuing things coming in 2021 on the labor and employment law stemming from of course the coronavirus pandemic? I mean, lawsuits may be further regulations, maybe the regulations like you said they’re not going to be extended right now past the end of the year. So, what do you feel like we’re going to be dealing with come 2021?
Brian Moore: I think all of the above. More laws, more regulations.
Jill Francisco: More and more and more.
Brian Moore: More lawsuits. I think there’ll definitely be lawsuits about the
Vaccinations that we talked about.
Jill Francisco: Yeah.
Brian Moore: Either way on that one I think there’ll be lawsuits.
Jill Francisco: Quick question. Kind of back to the vaccine because I was just curious, is there any other things about the flu and things like that with the employer? I mean, obviously our employer obviously kind of promotes it, they make it easy for you to obtain it and get it free of cost, right? You don’t have to leave your office. You have to make an appointment. Is there anything– you know, in the beginning, was it ever discussed or ever thought that when the flu started out or whatever, was it going to be mandatory type thing or it just never was that bad?
Brian Moore: You know, I don’t know the answer to that definitively, but I don’t – I’ve not heard of anything where that’s ever been mandated by employers and like we said earlier, COVID-19 is being treated differently than a lot of things. We also normally wouldn’t disclose health information about people and things like that, but it has been relaxed, so that if you need to make people aware that they may have been exposed to COVID-19, then you can do that without violating HIPAA. So, there’s been a lot of relaxation of laws and regulations due to this this pandemic.
Jill Francisco: Yeah, you’re right especially with the tracings and then I’m sure you get the same thing, we get a call from the school all the time. There’s been, you know, and then so and so, 30 people have to quarantine. We’re all learning and you’re just trying to — I mean, I think the ultimate thing is protection and protecting people and it’s hard, it’s hard to know sometimes which way to go and then you find yourself and you got to kind of go another way and fix it up, but, you know, it’s definitely been different because I know the HIPAA used to be very strict. It was like hands off and now, it’s surprising.
Brian Moore: No perfect answer to any of this and I do get a lot of questions about
quarantining and isolating and if, you know, listen to your local health department and things like that, but it’s a practical matter. If you listen to everything everyone says, then probably everyone should be locked down–
Jill Francisco: Right.
Brian Moore: —the entire year and so because as a practical matter though, it can that actually happen, so I’m mixing some practical advice along with my legal advice.
Jill Francisco: Right, right. I think that’s a good combination. Well Brian, that’s all the time we have for today and I really appreciate you coming back and being on and elaborating and giving our listeners some very valuable information they’ll be able to pay attention on some things coming down the pike that may affect them. So, I really appreciate it. So, if listeners wanted to kind of follow up or reach out to you, what is the best way that they could contact you?
Brian Moore: Sure. Email is probably the easiest way to contact me, [email protected].
Jill Moore: All right, well Brian, thank you again so much for joining me today. I really appreciate it.
Brian Moore: Thanks for having me.
Jill Francisco: And thank you also to all our listeners for tuning in today. If you have any questions or comments for me, please contact me at [email protected]. I hope you will join me for our next episode. I’m Jill Francisco for the Paralegal Voice signing off.
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