| Special #77 December 15, 2020 |
| | New! 2021 Leadership Training Series A Six Part Series for Lead Personnel, Team Leaders, Supervisors and Future Front-Runners
We will start training series on January 21st, 2021.
Who Should Attend? Lead personnel, team leaders, supervisors and future designated or possible promotion candidates and anyone in the precarious position of performing a job function while simultaneously leading others. Overview available here.
Schedule: First offering workshops Virtual (virtual only) (All workshops will be held from 9:00 am - 11:30 am and 1:00 pm - 3:30 pm) 01/27/21 Virtual Leadership I
02/17/21 Virtual Leadership II 03/10/21 Virtual Leadership III 03/31/21 Virtual Leadership IV 04/21/21 Virtual Leadership V 05/12/21 Virtual Leadership VI
Second offering workshops Face to Face (considering a virtual option) (All workshops will held from 9:30am – 4:30pm) 08/4/21 Leadership I
08/25/21 Leadership II
09/15/21 Leadership III
10/6/21 Leadership IV
10/27/21 Leadership V
11/17/21 Leadership VI
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| HR and Employment Law News |
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| BY ROBIN SHEA ON 12.11.20BY ROBIN SHEA ON 12.11.20- Hot topics from Previous Newsletters - Constangy.com Blog: Can employer mandate COVID-19 vaccinations? BY ROBIN SHEA ON 11.20.20- HRDive.com Article: How positive COVID-19 tests, underlying conditions intersect with the FMLA PUBLISHED Dec. 14, 2020- ¶47,477 IRS issues 2021 withholding tables — AGENCY GUIDANCE, (Dec. 14, 2020)- Georgia Department of Public Health COVID-19 Daily Status Report
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| | Constangy.com Blog: Employee "refuses to sign." Now what?
BY ROBIN SHEA ON 12.11.20
POSTED IN FAMILY AND MEDICAL LEAVE ACT, HR, RETALIATION
Should the employer force the issue?
You Human Resources professionals are familiar with this scenario.
You are present while a supervisor is disciplining an employee. The supervisor has a write-up, pre-approved by you, and hands it to the employee and asks the employee to sign and date it.
The employee says, "Nunh-uh."
Assume that the purpose of having the employee sign is only to show that the discipline was administered to the employee on a specific date. It is not considered an admission of guilt. You explain that to the employee. The employee repeats,
"Nunh-uh."
What do you do now?
A. Fire the employee for insubordination.
B. Take the document back and file it without any acknowledgement that the employee received the discipline.
C. Hand the document back to the employee and say, "OK, will you please just write here, 'I refuse to sign,' and then sign and date it?"
D. Write, "Employee refused to sign," and then sign your own name (or initials) and the date that you administered the discipline.
Hmmmm . . .
Choice B is bad because you'll have no proof that the discipline was administered to the employee. That blank space gives the employee a golden opportunity to say he or she never got it.
Choice C is awesome . . . if you can get away with it. (Hat tip to my law partner Pat Tyson for having this sneaky idea.) But you probably won't get away with it, and I know Pat would agree.
Choice D is what I typically go with. Even though "Refused to Sign" isn't in the employee's handwriting, it is at least some evidence that the discipline was shared with the employee on a particular date. In my experience, once we get into litigation, employees are unlikely to deny receiving the discipline when "Refused to Sign" is noted on it. Instead, they usually admit receiving it and refusing to sign it, and then segue into why the employer shouldn't have given it to them. As an employer's lawyer, I can deal with that.
"Ms. Shea, Ms. Shea, you forgot one!"
(Thank you, Little Susie. I meant to do that.)
But what about Choice A? Firing an employee for insubordination because the employee wouldn't sign the disciplinary document? This is risky, as a recent court decision shows.
The plaintiff (we'll call her "Kay") may be a delightful person. But, according to a partial dissent in the court decision, she sounds like kind of a jerk. She smarted off to her bosses, missed a lot of work, goofed off when she was at work, and provided inadequate notice of her vacations.
Of course, nothing is simple, and Kay, in addition to apparently having a "challenging" personality and very little work ethic, also had legitimate medical problems that required her to miss work.
One day her bosses got fed up with her and administered to her a formal written warning listing the areas in which she was deficient and in which she needed to improve. Some of these included her poor attendance.
Then they asked her to sign the document.
Kay replied, "Nunh-uh."
Kay claims that she told her bosses that she would not sign because she could not guarantee that her medical problems would not make her tardy or keep her out of work in the future.
A few years earlier, Kay had been disciplined and had signed the document. Then she followed up with an extensive written rebuttal. Which proved she knew she wasn't "admitting" to anything by signing the more recent disciplinary document. Also, the document itself said that signing was not an admission of guilt but meant only that the employee had received the writeup.
The bosses fired Kay for refusing to sign the document, and she sued, claiming (among other things) that her termination was really in retaliation for exercising her rights under the Family and Medical Leave Act.
Did I mention that Kay's medical problems were FMLA-qualifying?
I didn't? My bad. They were.
A federal court in Georgia found in favor of the employer.
But Kay appealed, and last week two out of three judges on a panel of the U.S. Court of Appeals for the Eleventh Circuit reinstated the claim that Kay's termination for "refusal to sign" could have really been FMLA retaliation. That means Kay will be able to take that claim to a jury.
(She will also get to a jury on a claim that she was fired for saying she might need to take FMLA leave in the future. All three judges agreed on this one.)
If a jury reacts as negatively to Kay as I did after reading the dissent, then the company may be all right in the end. But this case illustrates why I'm not a fan of requiring employees to sign disciplinary or performance-related documentation under penalty of discharge.
(Hat tip to my blogging buddy Bill Goren for alerting me to this decision.)
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| | Constangy.com Blog: Nail-biting time for the FFCRA?
BY ROBIN SHEA ON 12.11.20
POSTED IN CORONAVIRUS, FAMILIES FIRST CORONAVIRUS RESPONSE ACT
Will Congress let it expire?
The Families First Coronavirus Response Act is set to expire on December 31.
I can't imagine that it won't be renewed for one more year, but we'll see. The House and Senate are reportedly working on some type of COVID relief or stimulus deal, and it might include an extension of the FFCRA.
We are watching, and will keep you posted.
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We at the Georgia Employers' Association are watching this carefully and will keep you and your company updated.
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| | | | Hot topics from Previous Newsletters: Constangy.com Blog: Can employer mandate COVID-19 vaccinations?
BY ROBIN SHEA ON 11.20.20
POSTED IN AMERICANS WITH DISABILITIES ACT, CORONAVIRUS, HR, REASONABLE ACCOMMODATION
My best guess is yes.
Two new COVID-19 vaccines are hurtling toward approval by the Food and Drug Administration and release to the public.
As a result, employers are asking whether they can require their employees to get the vaccine (once generally available) as a condition of coming to work.
We don't have specific guidance yet, but here is my educated guess as to what the answer will be: - *Yes. Because of the public health crisis caused by COVID-19, all employers (not just health care employers) will be able to require employees to be vaccinated before they can return to the non-virtual workplace.
- *However, employers will be required to make exceptions in some cases. If an employee has a medical condition that could be aggravated by the vaccine, or a sincere religious objection to receiving the vaccine, the employer should consider reasonable accommodation. Depending on the employee's job, that could include letting the employee work in a more isolated spot onsite, or letting the employee work onsite while taking extra precautions, or moving the employee from a customer-facing role to one that has limited or no contact with the public. (There may be other options, as well.)
- *If an employee has a legitimate reason for not being vaccinated but is in a position that can be performed remotely, the employer should let the employee continue working remotely. Remote work can be a form of reasonable accommodation.
- *Presumably, employers with unions would be required to bargain before imposing a vaccination requirement unless the requirement would fall within a management rights clause.
- *Requiring employees to be vaccinated (with exceptions for reasonable accommodation situations) may lessen employers' potential liability for workplace safety complaints or workers' compensation claims related to COVID-19.
Again, the above are just my guesses. And if an employer prefers a lighter approach, there should be no problem with urging employees to be vaccinated but not requiring it |
| Robin E. Shea
Partner
Email | 336.721.6854
Robin has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, the Equal Pay Act ..
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| | | | | HRDive.com Article: How positive COVID-19 tests, underlying conditions intersect with the FMLA Jeff Nowak, shareholder at Littler Mendelson, identified two court cases that may guide employers in situations involving COVID-19 risks.
AUTHOR Ryan Golden @RyanTGolden
PUBLISHED Dec. 14, 2020
Employers face one key challenge in their efforts to ensure compliance with the Family and Medical Leave Act (FMLA) as well as the Americans with Disabilities Act (ADA) as the coronavirus pandemic extends into 2021, Jeff Nowak, shareholder at Littler Mendelson, and Matt Morris, vice president at FMLASource, said in a Dec. 9 webinar.
"There's virtually no case law in this area yet with respect to COVID-19," said Nowak.
Still, those in charge of compliance can take a couple of hints from the guidance provided by federal agencies as well as the small number of court cases that have touched on issues related to COVID-19, the presenters said. The webinar addressed a series of common FMLA and ADA questions employers have encountered this year.
Does an employee's positive COVID-19 test trigger FMLA leave?
A positive test "almost surely" begins a period of FMLA leave, Nowak said, particularly if any sort of inpatient care with a connected period of incapacity or subsequent treatment is involved. Short of that, a period of incapacity of more than three consecutive days with continuing treatment also triggers the law.
If an employee is not incapacitated, or is asymptomatic, the employer needs to defer to the employee's medical certification. If the employee fails or refuses to provide certification, employers may want to defer to guidelines from the Centers for Disease Control and Prevention (CDC). The agency advises a quarantine away from work of at least 10 days without testing. "That period is FMLA leave," Nowak said.
If such an employee can telework, it could be that FMLA leave does not apply, he noted. But employers do need to ensure that if FMLA is offered to an employee who voluntarily decides to work from home, they document the situation accordingly.
How does a condition such as asthma factor into COVID-19 policies?
An employee who has asthma may come to her employer and state that she and her doctor are worried about respiratory issues due to contracting COVID-19, or that she is concerned that her medical condition will be exacerbated if she contracts COVID-19.
Nowak said this is a common scenario for employers, with many different variations. The CDC, he noted, provides a non-exhaustive list of conditions that are likely to be worsened if a person is infected with COVID-19. Employers might believe that because an employee with such a condition is not presently incapacitated, the employee is not guaranteed FMLA leave.
Case law cuts both ways on the question of whether an employee can take FMLA leave if she is worried about becoming incapacitated from working. Nowak, however, pointed to a 2014 federal court case, Santiago v. Connecticut Dept. of Transportation, in which an employee said he could not work overtime during winter months due to cluster headaches.
The court not only denied summary judgment to the employer, but it also cited in its ruling an example — taken straight from the FMLA's regs — of an employee who has asthma and who has been advised by a healthcare provider to stay home from work when the pollen count exceeds a certain level. The court then applied this example to mean that overtime, like pollen, could exacerbate Santiago's medical condition and that FMLA therefore applied.
"This is where I make the jump to COVID-19," Nowak said. "I'm concerned that Santiago is the case that employees are going to cite in their FMLA case against you." An employee could argue that her medical condition could be exacerbated by COVID-19 and result in her incapacity from working. Not every court may buy that argument, Nowak noted, but it could still be a risk for the employer.
If an employee identifies a medical condition and connects that condition to her inability to work, employers should treat the situation as a potential FMLA situation, Nowak said. From there, the employer can send out the appropriate notice and certification.
Should HR renew remote work requests for employees with underlying conditions?
Nowak continued with the asthma example, providing the example of a manager, Gabe, who has asthma but who is able to perform his job from home. Initially, Gabe is approved for four weeks of telework, but at the end of that period, Gabe asks for the telework arrangement to continue. Should HR deny the request?
This type of example is central to a 2020 federal court case, Peeples v. Clinical Support Options, Inc. The case should give employers "a little pause," Nowak said. The employer in Peeples provided the manager with personal protective equipment, arguing that it needed managers to return to the workplace. But the court held that the employer did not perform an individualized assessment, and it entered an injunction requiring the manager to be able to work from home during the pandemic.
The fact that the employer's provision of protective equipment was not considered to be part of an individualized assessment is a "big deal," Morris said. "Even if we as employers do everything we can, given the nature of this illness, it may not completely ameliorate the risk to that employee."
U.S. Equal Employment Opportunity Commission guidance stipulates that employers are not required to provide telework as a reasonable accommodation under the ADA if there is no disability-related limitation that requires teleworking. However, the guidance also provides that a temporary telework experience could be relevant to the consideration of a renewed request. Similarly, the court in Peeples stated that such a period of remote work could be relevant in the sense that it is a trial period to determine whether remote work might be a reasonable accommodation, Morris said.
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| | | ¶47,477 IRS issues 2021 withholding tables — AGENCY GUIDANCE,
(Dec. 14, 2020)
The IRS has issued 2021 wage-bracket and percentage method withholding tables, effective for wages paid on and after January 1, 2021.
How to treat 2019 and earlier Forms W-4 as if they were 2020 or later Forms W-4
Employers may use an optional computational bridge to treat 2019 or earlier Forms W-4 as if they were 2020 or later Forms W-4 for purposes of figuring federal income tax withholding. The computational bridge allows employers to use computational procedures and data fields for a 2020 and later Form W-4 to arrive at the equivalent withholding for an employee that would have applied using the computational procedures and data fields on a 2019 or earlier Form W-4. Employers must make up to four adjustments to use this computational bridge.
(1) Select the filing status in step 1(c) of a 2020 or later Form W-4 that most accurately reflects the employee’s marital status on line 3 of a 2019 or earlier Form W-4. Treat the employee as “Single or Married filing separately” on a 2020 or later Form W-4 if the employee selected either “Single” or “Married, but withhold at higher single rate” as their marital status on their 2019 or earlier Form W-4. Treat the employee as “Married filing jointly” on a 2020 or later Form W-4 if the employee selected “Married” as their marital status on their 2019 or earlier Form W-4. Employers cannot convert an employee to a filing status of “head of household” using this computational bridge.
(2) Enter an amount in step 4(a) on a 2020 or later Form W-4 based on the filing status that you determined in (1) above when you converted the employee’s marital status on a 2019 or earlier Form W-4. Enter $8,600 if the employee’s filing status is “Single or Married filing separately” or $12,900 if the employee’s filing status is “Married filing jointly.”
(3) Multiply the number of allowances claimed on line 5 of an employee’s 2019 or earlier Form W-4 by $4,300 and enter the result in step 4(b) on a 2020 or later Form W-4.
(4) Enter the additional amount of withholding requested by the employee on line 6 of their 2019 or earlier Form W-4 in step 4(c) of a 2020 or later Form W-4.
This computational bridge applies only for Forms W-4 that were in effect on or before December 31, 2019, and that continue in effect because an employee didn’t submit a 2020 or later Form W-4. If an employee is either required, or chooses, to submit a new Form W-4, it doesn’t change the requirement that the employee must use the current year’s revision of Form W-4. Upon putting in effect a new Form W-4 from an employee, employers must stop using this computational bridge for the applicable year of the new Form W-4. An employer using the computational bridge for a Form W-4 furnished by an employee must retain the Form W-4 for its records.
Supplemental wage rate
The supplemental wage rate will remain 22%.
Standard deductions
The standard deductions for those who use them are $8,600 if the employee’s filing status is “Single or Married filing separately” or $12,900 if the employee’s filing status is “Married filing jointly.”
Exemption amount
The exemption amount for those who use it remains $4,300.
Nonresident withholding
Nonresident Aliens should see IRS Notice 1392, Supplemental Form W-4 Instructions for Nonresident Aliens, before completing Form W-4.
2021 Step 1. Determine if the nonresident alien employee has submitted a Form W-4 for 2020 or later or an earlier Form W-4. Then add to the wages paid to the nonresident alien employee for the payroll period the amount for the applicable type of Form W-4 and payroll period.
If the nonresident alien employee was first paid wages before 2020 and has not submitted a Form W-4 for 2020 or later, add the amount shown in Table 1 to their wages for calculating federal income tax withholding.
Weekly—$155.80
Biweekly—$311.50
Semimonthly—$337.50
Monthly—$675.00
Quarterly—$2,025.00
Semiannually—$4,050.00
Annually—$8,100.00
Daily or Miscellaneous—$31.20
2021 Step 2. If the nonresident alien employee has submitted a Form W-4 for 2020 or later or was first paid wages in 2020 or later, add the amount shown in Table 2 to their wages for calculating federal income tax withholding.
Weekly—$238.50
Biweekly—$476.90
Semimonthly—$516.70
Monthly—$1,033.30
Quarterly—$3,100.00
Semiannually—$6,200.00
Annually—$12,400.00
Daily or Miscellaneous—$47.70
Source: IRS Publication 15-T, Federal Income Tax Withholding Methods, for Use in 2021.
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Update from 12/14/2020 (State of Georgia)
Confirmed Cases 479,340 Confirmed Deaths 9,218
Hospitalizations 37,737
ICU Admissions 6,859
Visit Georgia Department of Health website for more information:
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Georgia Employers' Association |
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