We hope you all had a lovely Valentine’s Day and that you’ve still got some chocolate to snack on while reading our latest email. This week we’re discussing COVID-19 (duh), employment lessons learned from places like England and California (yes, you need to know this), and pregnant employees who’d rather wait on the vaccine (a warning tale for business owners). As always, we promise this will be a little informative and a little exciting. Let’s get started!
Let’s talk COVID-19 hypotheticals:
An employee arrives at the office and completes their daily screening questionnaire (you read our emails and blog so we’ll assume that you have screening procedures in place). Next to the question asking if they were recently in close contact with an individual who tested positive for COVID-19, the employee checks “yes”. Before you can send her home, she says: “Don’t worry! I got the second shot over the weekend so I’m fully vaccinated!” As an employer, what can or should you do? Until recently, you'd likely be required to send that employee home. Now, according to the CDC, you may not have to.
Recent guidance from the CDC says that someone who is fully vaccinated but has been exposed to someone with suspected or confirmed COVID-19 is NOT required to quarantine if they meet all of the following criteria:
a) They've been fully vaccinated (i.e., ≥2 weeks following receipt of the second dose in a 2-dose series or ≥2 weeks following receipt of one dose of a single-dose vaccine);
b) The last dose of the vaccine was within the past 3 months; and
c) They’re asymptomatic since their most recent exposure.
As you might expect, a scenario like this will certainly concern other employees at the office. Employers have to be prepared to communicate these new rules to their employees so that everyone knows what to expect. It's also yet another good reason to establish written office policies regarding returning to work, safety protocols, and the vaccine.
Independent Contractor or Employee?
Since we can't fly to the UK, we figured we'd bring some UK news to you. Why should you care about what's happening on the other side of the pond? Because it involves the use of "independent contractors" and it's the same issue that's being discussed here in the US. The UK Supreme Court recently ruled that Uber drivers are employees, rejecting Uber’s argument that the drivers are self-employed contractors. Of course, employees are entitled to more benefits and protections under various federal, state, and local laws. So this is kind of an important issue.
Our clients know that we’ve been sounding the alarm on contractor misclassification, especially because states like New Jersey and New York are imposing hefty fines and penalties, states like California are treating ALL workers as employees unless proven otherwise, and legislative measures like Proposition 22 are changing the landscape for ride-hailing/delivery “contractors”. We're continuing to monitor the gossip coming from the Biden administration on potential federal legislation to address this issue and developments at the state level. It’s probably safe to say this fight is far from over. All the more reason to review your practices to determine if your contractors are really employees.
Red Hook Tavern in red hot water
In this month's example of "what NOT to do", let's take look at the Red Hook Tavern in Brooklyn. The restaurant is in the middle of a massive controversy after firing an employee who refused to get vaccinated because she was concerned it might interfere with her plan to get pregnant.
As our readers know, the EEOC recently released guidance stating that mandatory vaccination plans are kosher so long as you comply with the ADA and other state and local laws (particularly those providing for exemptions and containing anti-discriminatory protections). So . . . was this termination legal? Of course, "it depends", but the real problem here was how the restaurant handled it. Besides the obvious HR nightmare, the restaurant completely forgot to engage in any sort of “interactive process”. In short, when an employer knows that an employee may need an accommodation, a duty is triggered to engage in an interactive process to determine whether or not a reasonable accommodation exists that would allow the employee to perform the essential functions of the job. This process appears to have been skipped entirely by the tavern in favor of an immediate termination.
So, terminating an employee for refusing a vaccine MAY be legal, but skipping the interactive process is where you’ll find yourself in hot water. Even if the restaurant successfully defends this decision in court, there's no doubt some serious harm to employee morale and the business's reputation. Add on the significant legal fees (and potentially damages) and this seems like a good example of how engaging with employment counsel can save you some money.
If you're considering adopting a vaccination policy, or want to at least know what your options are, reach out and we can help!
ABOUT WEINSTEIN + KLEIN P.C.
Established in 2019, New York City-based Weinstein + Klein is a boutique law firm focused on labor and employment law, business matters, and litigation. Weinstein + Klein works with businesses, individuals, and entrepreneurs to protect their legal interests. In addition to advising clients on employment matters and working with businesses to minimize their risk of litigation, Weinstein + Klein advises small businesses and start-ups on various business law matters. For more information about Weinstein + Klein, please visit www.weinsteinklein.com.