COVID-19: News and Updates |
| Special #34 - May 11, 2020 |
| |
Articles and Updates Today
- OSHA's “Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus” poster is now available in 13 languages.
- ¶46,930 Beef processing company named in wrongful death suit alleging COVID-19 infection under unsafe work conditions — STATE LAW, May 11, 2020
- ¶46,935 BLS reports nonfarm payroll employment falls 20.5 million in April; unemployment rate rises to 14.7% — SURVEY RESULTS, May 11, 2020
- ¶46,931 How does ADA 'direct threat’ analysis apply to employees with CDC-listed COVID-19 high-risk medical conditions? — AGENCY REGULATION, May 11, 2020
- Georgia Department of Public Health COVID-19 Daily Status Report
|
| | | | | | | Did You Know?
OSHA's “Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus” poster is now available in 13 languages.
****
Seven Steps to Correctly Wear a Respirator at Work
Following these simple steps will help you properly put on and take off your respirator, and keep you and everyone else safe.
Poster in English:
Poster in Spanish: |
| | | | ¶46,930 Beef processing company named in wrongful death suit alleging COVID-19 infection under unsafe work conditions — STATE LAW,
May 11, 2020 By Pamela Wolf, J.D.
On May 7, the estate of an employee who died on April 3 of alleged respiratory failure caused by COVID-19 filed a wrongful death lawsuit in Pennsylvania state court against giant beef processing company JBS and its affiliates (JBS), contending that the employee’s death resulted from his contracting the coronavirus while working at a JBS plant under unsafe conditions without proper personal protective equipment (PPE). The employee, who worked at the JBS slaughterhouse in Souderton, Pennsylvania, was also a union chief steward.
The five-count complaint raises claims of wrongful death, negligence, and fraudulent misrepresentation, among others. It is said to be the first of its kind in Pennsylvania, although similar suits have been filed in other states.
Unsafe conditions. The estate contends that despite the known risks about COVID-19, prior to shutting down the plant on March 30, 2020, JBS:
- Failed to provide sufficient PPE;
- Forced workers to work in close proximity;
- Forced workers to use cramped and crowded work areas, break areas, restrooms, and hallways;
- Discouraged workers from taking sick leave in a manner that had sick workers in fear of losing their jobs; and
- Failed to properly provide testing and monitoring for individuals who have may been exposed to COVID-19.
Ramping up production. Instead of taking safety measures at the facility where the employee worked, JBS increased production during March 2020, adding a "Saturday Kill" "to capitalize on increased demand caused by public panic purchases of ground meat," according to the complaint. During this critical timeframe in March 2020, the employee allegedly contracted COVID-19 while working at JBS Souderton because the company "inexplicably failed to take proper safety precautions to protect workers."
Safety guidance ignored. The estate alleges that up to and including March 27, 2020, "workers at JBS Souderton were still not required to wear masks and/or other PPE, despite CDC and OSHA guidance to the contrary." Workers at the JBS plant were purportedly still required to work within six feet of one another, despite CDC and OSHA guidance otherwise. Nor were workers required to report to their superiors if they were experiencing COVID-19 symptoms, according to the complaint.
Deadly coronavirus contracted at work? When the employee last arrived for work at the JBS plant on March 27, 2020, "a number of his coworkers had already become infected," the estate contends. On that day he allegedly left work after experiencing cough-like symptoms. "Over the next week, the employee’s condition continued to worsen and breathing became nearly impossible," the complaint states. On April 3, the employee’s son purportedly called EMTs to assist the employee, who was unable to breathe, but he died in his son’s arms before the ambulance arrived.
The complaint states that an autopsy report confirmed that the employee died from respiratory complications related to COVID-19.
Predictable, preventable outcome. According to the complaint, the employee’s death "was the predictable and preventable result of the JBS Defendants’ failures to consider the safety of their workers." Further, they "knew, or in the exercise of a reasonable degree of care, should have known that if OSHA and CDC guidance were not followed, workers would become infected with and could succumb to COVID-19." But instead, the JBS purportedly "placed profits over safety."
The complaint seeks compensatory and punitive damages, interest, and "allowable costs of suit."
Right before the plant slowed production for cleaning on March 30th, "it demonstrated that it was out to make a killing in the beef market with meat for consumers becoming scarce," according to Steven G. Wigrizer, one of the attorneys representing the estate. "While it could have devoted weekends to disinfecting the plant (located at 249 Allenton Rd., Souderton) following federal guidelines, JBS instead added what it called a ‘Saturday Kill’ to increase production and its bottom line."
Said Jason Weiss, another attorney representing the estate: "The conditions that JBS workers were exposed to are repulsive. There is no question that the unsafe working environment should have been modified to adhere to CDC recommendations. Instead, workers were forced to choose between two horrific alternatives: work literally alongside those likely infected or be unable to support their families."
The lawsuit, Estate of Enock Benjamin v. JBS S.A., was filed in the Philadelphia Court of Common Pleas; the case is No. 200500370.
By Pamela Wolf, J.D.
|
| | | ¶46,935 BLS reports nonfarm payroll employment falls 20.5 million in April; unemployment rate rises to 14.7% — SURVEY RESULTS, (May 11, 2020)
from GEA's HR anwsers now
Total nonfarm payroll employment fell by 20.5 million in April, and the unemployment rate rose to 14.7 percent, the U.S. Bureau of Labor Statistics reported May 8. The changes in these measures reflect the effects of the coronavirus (COVID-19) pandemic and efforts to contain it. Employment fell sharply in all major industry sectors, with particularly heavy job losses in leisure and hospitality. The April over-the-month decline is the largest in the history of the series and brought employment to its lowest level since February 2011 (the series dates back to 1939). Job losses in April were widespread, with the largest employment decline occurring in leisure and hospitality.
In April, the unemployment rate increased by 10.3 percentage points to 14.7 percent. This is the highest rate and the largest over-the-month increase in the history of the series (seasonally adjusted data are available back to January 1948). The number of unemployed persons rose by 15.9 million to 23.1 million in April. The sharp increases in these measures reflect the effects of the coronavirus pandemic and efforts to contain it.
In April, unemployment rates rose sharply among all major worker groups. The rate was 13.0 percent for adult men, 15.5 percent for adult women, 31.9 percent for teenagers, 14.2 percent for Whites, 16.7 percent for Blacks, 14.5 percent for Asians, and 18.9 percent for Hispanics. The rates for all of these groups, with the exception of Blacks, represent record highs for their respective series.
The number of unemployed persons who reported being on temporary layoff increased about ten-fold to 18.1 million in April. The number of permanent job losers increased by 544,000 to 2.0 million.
In April, the number of unemployed persons who were jobless less than 5 weeks increased by 10.7 million to 14.3 million, accounting for almost two-thirds of the unemployed. The number of unemployed persons who were jobless 5 to 14 weeks rose by 5.2 million to 7.0 million. The number of long-term unemployed (those jobless for 27 weeks or more), at 939,000, declined by 225,000 over the month and represented 4.1 percent of the unemployed.
The labor force participation rate decreased by 2.5 percentage points over the month to 60.2 percent, the lowest rate since January 1973 (when it was 60.0 percent). Total employment, as measured by the household survey, fell by 22.4 million to 133.4 million. The employment-population ratio, at 51.3 percent, dropped by 8.7 percentage points over the month. This is the lowest rate and largest over-the-month decline in the history of the series (seasonally adjusted data are available back to January 1948).
The number of persons who usually work full time declined by 15.0 million over the month, and the number who usually work part time declined by 7.4 million. Part-time workers accounted for one-third of the over-the-month employment decline.
The number of persons at work part time for economic reasons nearly doubled over the month to 10.9 million. These individuals, who would have preferred full-time employment, were working part time because their hours had been reduced or they were unable to find full-time jobs. This group includes persons who usually work full time and persons who usually work part time.
The number of persons not in the labor force who currently want a job, at 9.9 million, nearly doubled in April. These individuals were not counted as unemployed because they were not actively looking for work during the last 4 weeks or were unavailable to take a job.
Persons marginally attached to the labor force—a subset of persons not in the labor force who currently want a job—numbered 2.3 million in April, up by 855,000 over the month. These individuals were not in the labor force, wanted and were available for work, and had looked for a job sometime in the prior 12 months but had not looked for work in the 4 weeks preceding the survey. Discouraged workers, a subset of the marginally attached who believed that no jobs were available for them, numbered 574,000 in April, little changed from the previous month.
Source: U.S. Bureau of Labor Statistics.
|
| | | | ¶46,931 How does ADA 'direct threat’ analysis apply to employees with CDC-listed COVID-19 high-risk medical conditions? — AGENCY REGULATION,
May 11, 2020 By Pamela Wolf, J.D.
The EEOC has clarified a question that has been playing on the minds of employees and employers alike, as well as HR staff and labor and employment practitioners: how the ADA applies to workers who do not want to return to the workplace because they have one of the medical conditions identified by the CDC that puts them at greater risk of severe illness from COVID-19 infection. In this particular scenario, though, the employee has not requested a reasonable accommodation, and so the "direct threat," to the employee’s own health, analysis may come into play.
In its ongoing Q&A series related to COVID-19, the Commission previously posted a question and answer that addressed this scenario, but took it down because the agency believed it had been "misinterpreted in press reports and social media." The EEOC wanted to revise and update the Q&A "to ensure that it is clear."
ADA and COVID-19 high-risk employees. Here is the EEOC’s updated Q&A verbatim:
G.4. The CDC identifies a number of medical conditions that might place individuals at "higher risk for severe illness" if they get COVID-19. An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation. How does the ADA apply to this situation?
First, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.
If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee—or take any other adverse action—solely because the employee has a disability that the CDC identifies as potentially placing him at "higher risk for severe illness" if he gets COVID-19. Under the ADA, such action is not allowed unless the employee’s disability poses a "direct threat" to his health that cannot be eliminated or reduced by reasonable accommodation.
The ADA direct threat requirement is a high standard. As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a "significant risk of substantial harm" to his own health under 29 C.F.R. section 1630.2(r). A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability—not the disability in general—using the most current medical knowledge and/or on the best available objective evidence. The ADA regulation requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and his particular job duties. A determination of direct threat also would include the likelihood that an individual will be exposed to the virus at the worksite. Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing, also would be relevant.
Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace—or take any other adverse action—unless there is no way to provide a reasonable accommodation (absent undue hardship). The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions. This can involve an interactive process with the employee. If there are not accommodations that permit this, then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework). An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.
It’s all about the direct threat. Again, in this scenario, the employee has not requested an accommodation, which puts the focus on "direct threat." "It is important that employers understand that the ADA does not allow them to act against employees solely because the employee has a CDC-listed underlying medical condition," EEOC Legal Counsel Andrew Maunz said in a press release. "Employers must do a thorough direct threat analysis, which includes an individualized assessment based on relevant factors and a determination of whether the threat can be reduced or eliminated through a reasonable accommodation."
Notably, the EEOC’s No. G.4. addresses what an employee needs to do in order to request an accommodation for a medical condition on the CDC’s higher risk list.
By Pamela Wolf, J.D.
|
| | | Georgia Department of Public Health COVID-19 Daily Status Report
Georgia Department of Public Health COVID-19 Daily Status Report For: 05/11/2020
These data represent confirmed cases of COVID-19 reported to the Georgia Department of Public Health as of 05/11/2020 12:22:57.
A confirmed case is defined as a person who has tested positive for 2019 novel coronavirus. (Total tests 251,288)
COVID-19 Confirmed Cases:
Total 33,927 Hospitalized 6,015 Deaths 1,441
|
|
| | | |
Georgia Employers' Association |
|
|
| |
