The Employer E-Letter: Labor and Employment Law News
from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association.
Co-Editors, Scott A. Witty, firstname.lastname@example.org and Richard R. Burns, email@example.com, or 218.722.4766. Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
- U.S. SUPREME COURT TO ADDRESS COVID-19 VACCINE MANDATES
- EIGHTH CIRCUIT DENIES PHYSICIAN’S WHISTLEBLOWER CLAIM
- EMPLOYEES IN COVID-19 QUARANTINE ARE PROTECTED UNDER MINNESOTA LAW
- EEOC GUIDANCE ON COVID-19 AND DISABILITY DISCRIMINATION
- Tip Of The Month
To say the Biden Administration’s COVID-19 vaccination mandates have traveled a rocky road would be an understatement. The vaccine/testing mandates for employers with more than 100 employees and healthcare institutions, issued under OSHA and the Centers for Medicare and Medicaid Services, respectively, have been subject to rigorous legal challenges, which have resulted in regional and/or national injunctions or stays (stopping the rules from going into effect) in some courts and approval in others. A recent ruling by the Sixth Circuit Court of Appeals lifted a nationwide injunction stopping the OSHA mandate over large employers from going into effect, thus rendering the vaccination or testing requirements valid and enforceable for affected companies. OSHA has issued a statement indicating it will not issue citations for non-compliance until after January 10, 2022. Similarly, several federal courts have weighed in on the CMS healthcare employer mandate, rendering it currently enjoined (not in effect) in 25 states (neither Minnesota nor Wisconsin are included in this list), but apparently remaining in effect elsewhere. However, CMS has altered its enforcement of the mandate phases in light of the ongoing litigation and uncertainty.
Due to legal challenges to both federal government mandates, the United States Supreme Court has stated it will hear objectors’ requests to stay both mandates on January 7, 2022. Such a proceeding is extremely rare for the Supreme Court, but so are world-wide pandemics, and indicative of the Court’s belief of the importance of the mandates to the country. Affected employers should continue to prepare to comply with mandate requirements and pay close attention to the Supreme Court’s Order on the stay requests, which is expected shortly after the hearing.
EIGHTH CIRCUIT DENIES PHYSICIAN’S WHISTLEBLOWER CLAIM
The Minnesota Whistleblower Act (MWA) protects employees from whistleblower retaliation by their employer if they report violations of law or policy or refuse to engage in illegal conduct. Like many other employment laws, the MWA applies only to employees and not independent contractors. To determine whether someone is an employee or an independent contractor under the MWA, Minnesota courts consider five factors: (1) the right to control the means and matter of performance; (2) the mode of payment; (3) the furnishing of material or tools; (4) the control of the premises where the work is done; and (5) the right of the employer to discharge. In a recent case a where a physician brought an MWA claim against Mayo Clinic, the United Stated Eighth Circuit Court of Appeals affirmed the District Court’s rejection of the MWA claim. In this case, the physician entered into an employment agreement with Mayo Clinic Health Systems (MCHS) and worked some of her full-time hours at a Mayo Clinic site. Although Mayo Clinic scheduled and approved the physician’s appointments, decided her compensation rate and supervised her, MCHS ultimately approved and paid for her time at Mayo Clinic. For these reasons, the first and second factors favor independent contractor status. The court reasoned the third and fourth factors were inconclusive because even though Mayo Clinic furnished medical equipment and controlled the hospital premises, all medical staff must work inside the hospital and use its equipment. The fifth factor weighed in favor of independent contractor status because the physician’s employment agreement gave MCHS the express right to terminate her employment and no agreement nor policy gave Mayo Clinic the right to terminate her employment. In sum, the court found no factors weighed in favor of employment status and three weighed in favor of independence contractor status, thus the physician was an independent contractor, not a Mayo Clinic employee for MWA purposes. See Placzec v. Mayo Clinic, No. 21-1678 (8th Cir. Nov. 30, 2021).
Under Minnesota law, an employer cannot terminate, discipline, threaten or penalize employees who are or have been in isolation or quarantine for up to 21 consecutive workdays. See Minn. Stat. § 144.4196. For these protections to apply, the employee must have tested positive for COVID-19 and be in “isolation” to prevent transmission of the virus to others, or have likely been exposed to COVID‑19 and is in “quarantine” to prevent transmission of the virus during the period of communicability. Minnesota Statute § 144.4196 applies to isolation or quarantine for COVID-19 and other communicable diseases, and also protects employees who must take time off work to care for a child or an adult family member who is vulnerable or disabled and in isolation or quarantined. An employee claiming a violation of this statute may bring a civil action for recovery of last wages or benefits, for reinstatement, or for other relief within 180 days of the claimed violation or 180 days of the end of the isolation or quarantine, whichever is later. A prevailing employee will also be allowed reasonable attorneys’ fees.
Please note isolation or quarantine due to COVID-19 may also implicate federal and local laws. Such absences may be covered under the Family Medical Leave Act, which requires covered employers to provide employees job-protected, unpaid leave for specific family and medical reasons. Certain local laws obligating employers to provide sick and safe time may also apply.
The Equal Employment Opportunities Commission recently updated its running COVID-19 and ADA Guidance in an attempt to clarify the circumstances under which COVID-19 may be a “disability” under the ADA, and thus trigger reasonable accommodation obligations for employers. The guidance, in its continued Q&A format, states that the question of whether an individual with COVID-19 has a “physical or mental impairment that substantially limits one or more major life activities” must be determined on a case-by-case basis because of the varying effects different people experience with the infection. For example, an asymptomatic applicant/employee, or one who experiences mild symptoms similar to those of the common cold or flu for a matter of days/weeks, will not have a qualifying “disability” under the ADA, while a person who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog and difficulty remembering and concentrating attributable to the virus would meet the definition. The recent EEOC guidance supplements guidance issued on the same question in July, but which only addressed “long haul” symptoms.
Hourly employees, of course, do not need to be paid when they do not show up for work because of inclement weather or even when the employer closes the business early during inclement weather, such as a snowstorm. Exempt salaried employees, however, cannot be docked pay for partial days missed or full days missed when you close your business. The Fair Labor Standard Act (FLSA) rules make it clear that, if you provide personal days or vacation, you, in fact, may require a salaried employee to apply vacation or other paid time off. For example, if you close your office after two hours on one day and remain closed the next day, you could require a salaried employee to deduct 14 hours of vacation or paid time off. To the extent a salaried employee has used all of their vacation or paid time off, you need to pay them without any deduction. On the other hand, if he/she simply does not show up, because he/she feels, for example, “ snowed in” , this could be considered an absence for personal reasons, and you can deduct a full day of pay. However, if a salaried employee simply decides to leave early to make sure that they get home safely, your only alternative is to use paid time off or vacation, as you cannot dock for partial days without risking loss of exempt status.
Obviously, there are safety reasons to be considered so you would not want employees to report in many instances, and good employee relations may dictate not making any or only partial deductions. However, these pronouncements do give you some options, if you desire to use them.
Hanft Fride’s business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth, Minnesota. Visit our website at www.hanftlaw.com for general information on the firm and our attorneys. Our employment lawyers include Tom Torgerson, Rob Merritt and Scott Witty. Richard Burns is now of Counsel.
The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E‑letter.
To subscribe or unsubscribe to Employer E-Letter, e-mail your request to firstname.lastname@example.org or call Scott Witty at 218.722.4766.
Copyright 2021 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; Fax 218.529.2401.