1 00:00:00,480 --> 00:00:05,720 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:06,400 --> 00:00:09,719 Speaker 1: Being tested for drugs has become a fairly accepted part 3 00:00:09,720 --> 00:00:12,600 Speaker 1: of the workplace and fodder for a lot of jokes 4 00:00:12,640 --> 00:00:16,080 Speaker 1: in movies and TV shows. Almost twenty five years ago, 5 00:00:16,160 --> 00:00:19,640 Speaker 1: in the sign Fell Show, Elaine tested positive for opium 6 00:00:19,640 --> 00:00:22,279 Speaker 1: because of the poppy seeds in her muffins. So she 7 00:00:22,360 --> 00:00:24,880 Speaker 1: got Jerry's mother to help her with the next year 8 00:00:24,920 --> 00:00:27,040 Speaker 1: in test. What are you gonna do in there? What 9 00:00:27,120 --> 00:00:28,840 Speaker 1: am I going to do in the bathroom? I've gotta 10 00:00:28,880 --> 00:00:31,920 Speaker 1: do me a favor, Elaine. I really hold on a second, 11 00:00:32,040 --> 00:00:36,640 Speaker 1: Mrs Slinkfeld, I need your sample. You want my urine. 12 00:00:36,960 --> 00:00:40,120 Speaker 1: I need a clean urine sample from a woman. As 13 00:00:40,120 --> 00:00:42,879 Speaker 1: a result of your test being free of opium, I 14 00:00:42,920 --> 00:00:47,320 Speaker 1: am reinstating you. But that's no laughing matter too many employers. 15 00:00:47,320 --> 00:00:50,239 Speaker 1: Some have taken steps to ensure against tamper and with 16 00:00:50,400 --> 00:00:55,840 Speaker 1: urine specimens, including having someone watch employees urinate. Embarrassing to 17 00:00:55,920 --> 00:00:59,720 Speaker 1: be sure, But is it an invasion of privacy? Ohio's 18 00:00:59,760 --> 00:01:03,520 Speaker 1: top court says it's not. By a closely divided four 19 00:01:03,600 --> 00:01:07,000 Speaker 1: to three vote, the Ohio Supreme Court dismissed the cases 20 00:01:07,000 --> 00:01:11,040 Speaker 1: of employees who sued their company for invasion of privacy 21 00:01:11,080 --> 00:01:14,240 Speaker 1: after they were required to undergo a monitored urine test. 22 00:01:14,720 --> 00:01:17,680 Speaker 1: Joining me is employment law expert Anthony on cd A, 23 00:01:17,800 --> 00:01:21,560 Speaker 1: partnered Proscauer rose Tony. How did the court deal with 24 00:01:21,600 --> 00:01:24,680 Speaker 1: the right to privacy argument? For A couple of things 25 00:01:24,880 --> 00:01:27,759 Speaker 1: become very clear early on in the case, and one 26 00:01:27,959 --> 00:01:30,920 Speaker 1: is that the right to privacy, which is an amazingly 27 00:01:31,280 --> 00:01:37,080 Speaker 1: powerful right, varies surprisingly enough from jurisdiction to jurisdiction. There 28 00:01:37,240 --> 00:01:42,640 Speaker 1: is no overarching federal constitutional right to privacy, at least 29 00:01:42,680 --> 00:01:46,160 Speaker 1: not one that appears expressly in the United States Constitution. 30 00:01:46,720 --> 00:01:50,920 Speaker 1: Some opinions have interpreted there to be privacy like rights 31 00:01:51,160 --> 00:01:54,000 Speaker 1: in the Constitution, but there's not the word privacy, and 32 00:01:54,040 --> 00:01:57,880 Speaker 1: there isn't even in some respects and argument that the 33 00:01:58,000 --> 00:02:01,720 Speaker 1: actual per se right to privacy this at least expressly 34 00:02:01,760 --> 00:02:04,440 Speaker 1: stated in the U. S Constitution. That's also true at 35 00:02:04,440 --> 00:02:06,840 Speaker 1: the state level, and you can see in this opinion 36 00:02:06,920 --> 00:02:12,560 Speaker 1: early on that the employees cited some cases from some 37 00:02:12,639 --> 00:02:16,600 Speaker 1: other jurisdictions, including my state, for example, California, and the 38 00:02:16,600 --> 00:02:20,400 Speaker 1: Ohio Supreme Court had no difficulty at all distinguishing and 39 00:02:20,840 --> 00:02:24,480 Speaker 1: dismissing any consideration of those cases, because, for example, the 40 00:02:24,480 --> 00:02:28,760 Speaker 1: California case involved a right to privacy that is enshrined 41 00:02:28,880 --> 00:02:33,360 Speaker 1: in the California Constitution. In fact, Article one, Section one 42 00:02:33,720 --> 00:02:37,640 Speaker 1: of the California State Constitution guarantees the people the state 43 00:02:37,639 --> 00:02:42,000 Speaker 1: of California a right to privacy. Ohio, by comparison, does 44 00:02:42,040 --> 00:02:45,960 Speaker 1: not have such an expressed right to privacy, and that 45 00:02:46,120 --> 00:02:49,480 Speaker 1: was a very important lynch pin of this decision. What 46 00:02:49,560 --> 00:02:52,600 Speaker 1: about the theory in the opinion that the employees had 47 00:02:52,639 --> 00:02:56,880 Speaker 1: consented to the drug tests, despite the employees arguing that 48 00:02:56,919 --> 00:03:00,600 Speaker 1: their consent wasn't voluntary because they could be fired for 49 00:03:00,680 --> 00:03:04,000 Speaker 1: refusing to take the test. What the majority of this 50 00:03:04,160 --> 00:03:06,320 Speaker 1: court said, and it was a fourd to three opinions, 51 00:03:06,320 --> 00:03:08,160 Speaker 1: with the Chief Justice, by the way, being in the descent. 52 00:03:08,680 --> 00:03:13,880 Speaker 1: What the majority said was that although the written disclosure 53 00:03:13,960 --> 00:03:17,000 Speaker 1: form that the employee sign did not state that it 54 00:03:17,040 --> 00:03:21,280 Speaker 1: would be a so called direct observation drug test, meaning 55 00:03:21,320 --> 00:03:24,359 Speaker 1: that their genitals could be seen by the person who 56 00:03:24,480 --> 00:03:27,240 Speaker 1: was making sure that the drug test was taken correctly, 57 00:03:27,919 --> 00:03:31,919 Speaker 1: the form didn't say that. However, once they arrived at 58 00:03:31,960 --> 00:03:36,080 Speaker 1: the testing facility, they were told that, and obviously before 59 00:03:36,120 --> 00:03:38,840 Speaker 1: they actually were subjected to the test, they knew what 60 00:03:38,920 --> 00:03:41,760 Speaker 1: was going to happen, and the fact that they continued 61 00:03:41,880 --> 00:03:44,320 Speaker 1: on with the test and didn't just exit the building, 62 00:03:44,840 --> 00:03:49,119 Speaker 1: from the majority's point of view, was consent. Now. That 63 00:03:49,320 --> 00:03:52,520 Speaker 1: was questioned, of course by the descent, who said, well, 64 00:03:53,000 --> 00:03:58,760 Speaker 1: if it was consent, it was compelled consent because the 65 00:03:58,840 --> 00:04:03,680 Speaker 1: employees new or certainly believed that if they refused to 66 00:04:04,160 --> 00:04:06,160 Speaker 1: take the drug tests in the way that it was 67 00:04:06,200 --> 00:04:09,560 Speaker 1: being administered, they could and probably would lose their jobs. 68 00:04:09,600 --> 00:04:14,480 Speaker 1: And so the compulsion elements was what the descent focused on. 69 00:04:14,880 --> 00:04:17,680 Speaker 1: But from the majority standpoint, there actually was consented. The 70 00:04:17,760 --> 00:04:21,919 Speaker 1: descent also said that an at will relationship doesn't allow 71 00:04:21,960 --> 00:04:25,880 Speaker 1: someone to commit intentional torts. So the descent here felt 72 00:04:25,920 --> 00:04:28,760 Speaker 1: that there was a violation of privacy or was it 73 00:04:28,880 --> 00:04:32,000 Speaker 1: something else. They did say that, they said that there 74 00:04:32,120 --> 00:04:35,240 Speaker 1: was a violation of privacy, and even the majority did 75 00:04:35,279 --> 00:04:40,080 Speaker 1: concede that in an employment at will situation, which basically 76 00:04:40,120 --> 00:04:43,159 Speaker 1: means that an employer can terminate the employment for any 77 00:04:43,160 --> 00:04:46,440 Speaker 1: reason for so called good reason, bad reason, or no 78 00:04:46,560 --> 00:04:49,440 Speaker 1: reason at all, and so can the employee leave the 79 00:04:49,480 --> 00:04:52,279 Speaker 1: employment for any reason at all. That's what an employment 80 00:04:52,279 --> 00:04:57,200 Speaker 1: at will relationship is. The majority conceded that there are 81 00:04:57,240 --> 00:05:01,120 Speaker 1: some exceptions to that, including, for example, filing a worker's 82 00:05:01,120 --> 00:05:04,240 Speaker 1: comp claim, or filing a discrimination claim, or saying that 83 00:05:04,320 --> 00:05:08,039 Speaker 1: you've been harassed or discriminated against contrary Title seven or 84 00:05:08,040 --> 00:05:12,000 Speaker 1: to a state anti discrimination law. You can't be terminated 85 00:05:12,080 --> 00:05:14,120 Speaker 1: for having done any of those things, even if you 86 00:05:14,200 --> 00:05:17,480 Speaker 1: are an at will employee. And so in this case, 87 00:05:17,560 --> 00:05:21,040 Speaker 1: what the descent is saying is terminating somebody in the 88 00:05:21,080 --> 00:05:24,800 Speaker 1: context that occurred here, which involved said the descent, an 89 00:05:24,839 --> 00:05:28,599 Speaker 1: invasion of privacy is like one of those exceptions, meaning 90 00:05:28,640 --> 00:05:31,760 Speaker 1: that it should be something that is a carve out 91 00:05:32,040 --> 00:05:34,719 Speaker 1: from the employment at will rule. The majority, on the 92 00:05:34,720 --> 00:05:37,680 Speaker 1: other hand, felt the other way and made the determination 93 00:05:37,800 --> 00:05:40,599 Speaker 1: that if you're an employee at will, you can be 94 00:05:40,720 --> 00:05:45,800 Speaker 1: compelled to subject yourself to this kind of testing, because essentially, 95 00:05:45,839 --> 00:05:50,000 Speaker 1: the reasoning of the majority is that the power to terminate, 96 00:05:50,120 --> 00:05:53,000 Speaker 1: which the employer had to do at will, includes the 97 00:05:53,040 --> 00:05:56,719 Speaker 1: power to compel somebody to subject himself or herself to 98 00:05:57,200 --> 00:06:00,480 Speaker 1: such testing. Is this in line with what where it's 99 00:06:00,520 --> 00:06:03,640 Speaker 1: in other states have ruled, or does it depend on 100 00:06:03,680 --> 00:06:06,160 Speaker 1: the state law it's going to depend on the state law, 101 00:06:06,480 --> 00:06:09,040 Speaker 1: and it certainly was teased out at the beginning of 102 00:06:09,080 --> 00:06:14,480 Speaker 1: this opinion where the employee cited privacy protection cases from 103 00:06:14,520 --> 00:06:20,720 Speaker 1: other jurisdictions, and the majority distinguished and indeed ignored basically 104 00:06:20,760 --> 00:06:24,039 Speaker 1: those other state law cases on the ground that Ohio 105 00:06:24,400 --> 00:06:28,240 Speaker 1: does not have in its constitution a guarantee of a 106 00:06:28,400 --> 00:06:30,680 Speaker 1: right to privacy, and in fact, there's also not even 107 00:06:30,720 --> 00:06:34,280 Speaker 1: a statutory right to privacy in the state of Ohio. 108 00:06:34,560 --> 00:06:38,360 Speaker 1: There is what the majority somewhat dismissively referred to as 109 00:06:38,400 --> 00:06:41,479 Speaker 1: a judge made right to privacy which arises in the 110 00:06:41,560 --> 00:06:44,760 Speaker 1: common law, but that has never been placed either in 111 00:06:44,760 --> 00:06:48,520 Speaker 1: the Ohio State Constitution or in the Ohio statutes. And 112 00:06:48,640 --> 00:06:52,039 Speaker 1: so that's really the original issue here, I think, is 113 00:06:52,160 --> 00:06:54,320 Speaker 1: that the people of the state of Ohio should, when 114 00:06:54,360 --> 00:06:57,040 Speaker 1: the time comes, try to get a right to privacy 115 00:06:57,040 --> 00:06:59,640 Speaker 1: in shrines somewhere, either in the constitution or in the 116 00:06:59,680 --> 00:07:03,680 Speaker 1: state books, because right now there isn't any expression of 117 00:07:03,720 --> 00:07:05,440 Speaker 1: the right to privacy in the state of Ohio. And 118 00:07:05,480 --> 00:07:08,800 Speaker 1: that's not that uncommon, that is relatively common throughout the 119 00:07:08,839 --> 00:07:12,720 Speaker 1: fifty states. So just to be clear, some courts in 120 00:07:12,800 --> 00:07:16,480 Speaker 1: states that have rights to privacy have ruled that having 121 00:07:16,520 --> 00:07:19,960 Speaker 1: someone watch you give a urine sample is an invasion 122 00:07:20,000 --> 00:07:23,880 Speaker 1: of privacy. Correct. Again, there was a California drug testing 123 00:07:23,960 --> 00:07:27,200 Speaker 1: case that was cited by employees in this case, so 124 00:07:27,240 --> 00:07:30,920 Speaker 1: called Wilkinson case, and that was ignored by the Ohio 125 00:07:31,080 --> 00:07:34,800 Speaker 1: State Supreme Court on the ground that California, unlike Ohio, 126 00:07:35,040 --> 00:07:38,480 Speaker 1: does have an express right to privacy in its state constitution. 127 00:07:38,520 --> 00:07:40,680 Speaker 1: It's and it's an Article one, Section one of the 128 00:07:40,720 --> 00:07:46,080 Speaker 1: California State Constitution. There are other ways to ensure that 129 00:07:46,280 --> 00:07:51,840 Speaker 1: the urine sample is authentic, like having someone dressing a gown, 130 00:07:52,440 --> 00:07:55,720 Speaker 1: different things that they can do. Short of this, it 131 00:07:55,760 --> 00:08:00,000 Speaker 1: seems extreme. Yeah, there is an analysis that you sometimes 132 00:08:00,080 --> 00:08:02,840 Speaker 1: see in these cases, which is an inquiry takes place 133 00:08:02,840 --> 00:08:07,119 Speaker 1: whether there is a less intrusive means accomplishing the same 134 00:08:07,360 --> 00:08:10,440 Speaker 1: goal of the example you give is one that certainly 135 00:08:10,760 --> 00:08:15,160 Speaker 1: presumably was available. There are some federal regulations that are 136 00:08:15,200 --> 00:08:18,920 Speaker 1: also cited in the opinion, and the decent especially saying 137 00:08:18,960 --> 00:08:22,960 Speaker 1: that these are other ways in which this same goal 138 00:08:23,040 --> 00:08:25,600 Speaker 1: could have been accomplished and that would have been less 139 00:08:25,600 --> 00:08:29,880 Speaker 1: intrusive from the privacy standpoint. But my sense from reading 140 00:08:29,880 --> 00:08:34,480 Speaker 1: the majority's opinion was that it wasn't in the frame 141 00:08:34,520 --> 00:08:39,000 Speaker 1: of mind to be tinkering with the machinery that was 142 00:08:39,000 --> 00:08:41,720 Speaker 1: was employed in this in this situation because of the 143 00:08:42,440 --> 00:08:46,760 Speaker 1: very strong at will presumption that exists under a higher law, 144 00:08:47,480 --> 00:08:50,240 Speaker 1: the employee says that she's going to file a motion 145 00:08:50,320 --> 00:08:54,880 Speaker 1: for reconsideration. Is there any indication that she might fare 146 00:08:54,920 --> 00:08:58,680 Speaker 1: better with a motion for reconsideration? I doubt it. As 147 00:08:58,720 --> 00:09:02,280 Speaker 1: I said, this was slay. It was fairly hard fought litigation. 148 00:09:03,000 --> 00:09:05,720 Speaker 1: The court was badly supplit I mean it could not 149 00:09:05,920 --> 00:09:07,880 Speaker 1: you know, one more vote one way or the other 150 00:09:08,840 --> 00:09:13,280 Speaker 1: would have made the difference. There were four justices that 151 00:09:13,559 --> 00:09:16,760 Speaker 1: voted um in favor of the employer, and by the 152 00:09:16,800 --> 00:09:20,080 Speaker 1: way that the Supreme Court reversed the fifth District, so 153 00:09:20,200 --> 00:09:22,840 Speaker 1: actually the employee had one in the appellate court below, 154 00:09:22,920 --> 00:09:28,400 Speaker 1: I believe um. But the dissent consisted of three justices, 155 00:09:28,440 --> 00:09:30,320 Speaker 1: So one justice one way or the other could have 156 00:09:30,360 --> 00:09:33,040 Speaker 1: made the difference, and Chief Justice O'Connor was among the 157 00:09:33,120 --> 00:09:39,040 Speaker 1: three dissenting justices. Four states prohibit observe collection Connecticut, Maine, 158 00:09:39,120 --> 00:09:43,000 Speaker 1: Rhode Island, Vermont. From what you see in your practice 159 00:09:43,240 --> 00:09:49,440 Speaker 1: is observed collection becoming the way that that employers verify 160 00:09:50,520 --> 00:09:53,160 Speaker 1: I suspect not. I mean this. This struck me as 161 00:09:53,200 --> 00:09:58,840 Speaker 1: being unusual in that regard, especially since there are also 162 00:09:58,960 --> 00:10:03,439 Speaker 1: legitimate means which this kind of testing can be accomplished 163 00:10:03,600 --> 00:10:09,319 Speaker 1: without engaging in this direct observation method. So my sense 164 00:10:09,400 --> 00:10:11,640 Speaker 1: is that there isn't a trend towards this, and I 165 00:10:11,679 --> 00:10:15,040 Speaker 1: suspect that. Again, I haven't done any empirical studies of this, 166 00:10:15,160 --> 00:10:20,480 Speaker 1: but my sense is that fewer testing facilities would use 167 00:10:20,600 --> 00:10:22,400 Speaker 1: this or would continue to use it's on and going 168 00:10:22,440 --> 00:10:26,120 Speaker 1: forward basis this. This was obviously a lot of litigation 169 00:10:26,320 --> 00:10:28,719 Speaker 1: over you know, a couple of drug tests. So I 170 00:10:28,720 --> 00:10:32,080 Speaker 1: would imagine, all things being equal, the employer and the 171 00:10:32,120 --> 00:10:34,960 Speaker 1: testing facility are are more than happy not to have 172 00:10:35,000 --> 00:10:38,760 Speaker 1: this recur uh, And I wouldn't be surprised if they 173 00:10:38,840 --> 00:10:41,319 Speaker 1: might get sued again. Somebody may try to figure out 174 00:10:41,320 --> 00:10:45,400 Speaker 1: a federal right that they can rely upon that, as 175 00:10:45,400 --> 00:10:47,320 Speaker 1: far as I can tell, was not considered by the 176 00:10:47,360 --> 00:10:50,520 Speaker 1: Ohio courts in this situation. So that might be another 177 00:10:50,920 --> 00:10:53,760 Speaker 1: method of attacking this. Since you know, drug tests have 178 00:10:53,880 --> 00:10:56,720 Speaker 1: become more and more accepted, are there are a lot 179 00:10:56,720 --> 00:11:01,000 Speaker 1: of cases of employees challenging UG tests and the way 180 00:11:01,040 --> 00:11:05,319 Speaker 1: they're administered. Most of those battles were fought UH ten 181 00:11:05,400 --> 00:11:09,280 Speaker 1: in fifteen years ago, and quite frankly, the employer won 182 00:11:09,360 --> 00:11:11,360 Speaker 1: most of them. And there's been a lot of litigation 183 00:11:11,400 --> 00:11:14,200 Speaker 1: about this, for example, in California, so I'm most familiar 184 00:11:14,240 --> 00:11:16,839 Speaker 1: with that. The way the rules more or less have 185 00:11:16,920 --> 00:11:20,960 Speaker 1: settled in California is that an employer may subject an 186 00:11:20,960 --> 00:11:24,480 Speaker 1: employee to a dry test if there is a reasonable 187 00:11:24,520 --> 00:11:27,640 Speaker 1: suspicion that the employees under the influence UH and the 188 00:11:27,640 --> 00:11:30,880 Speaker 1: employer has to be able to articulate what the factors 189 00:11:30,920 --> 00:11:34,400 Speaker 1: are that lead it to conclude that the employee might 190 00:11:34,400 --> 00:11:37,280 Speaker 1: be under the influence, and that could be dilated pupils, 191 00:11:37,280 --> 00:11:40,839 Speaker 1: slurred speech, you know, parking in a strange way, whatever, 192 00:11:41,080 --> 00:11:44,719 Speaker 1: whatever it might be. So employers can do testing under 193 00:11:44,760 --> 00:11:48,200 Speaker 1: those circumstances and not necessarily direct observation testing. I think 194 00:11:48,240 --> 00:11:50,480 Speaker 1: that I have not heard of that occurring with any 195 00:11:50,480 --> 00:11:54,920 Speaker 1: frequency in California. The second major category of testing that 196 00:11:54,920 --> 00:11:59,199 Speaker 1: occurs in California involve situations where the employee is in 197 00:11:59,280 --> 00:12:03,360 Speaker 1: the safety sensitive position. So, for example, you have somebody 198 00:12:03,360 --> 00:12:06,160 Speaker 1: who's driving the booklift around or is otherwise dealing with 199 00:12:06,280 --> 00:12:10,680 Speaker 1: very heavy machinery that could endanger the employee or others. 200 00:12:11,400 --> 00:12:17,240 Speaker 1: Under those circumstances, an employer has relatively broad discretion to 201 00:12:17,400 --> 00:12:21,440 Speaker 1: engage in drug testing. Under the circumstances where things get 202 00:12:21,440 --> 00:12:24,880 Speaker 1: complicated are in states like California, for example, where we 203 00:12:24,960 --> 00:12:30,319 Speaker 1: now have legalized marijuana, and so that right is continuing 204 00:12:30,360 --> 00:12:34,840 Speaker 1: to butt up against the employer's right to do drug testing. 205 00:12:35,400 --> 00:12:38,920 Speaker 1: And then you add in the additional fact that marijuana, 206 00:12:38,960 --> 00:12:42,560 Speaker 1: for example, is still illegal on the federal level, and 207 00:12:42,640 --> 00:12:47,679 Speaker 1: so that can differ from federal administration to federal administration. 208 00:12:47,720 --> 00:12:52,160 Speaker 1: The Obama administration was not particularly interested in enforcing uh 209 00:12:52,280 --> 00:12:56,120 Speaker 1: those laws that the Trump administration has been much more 210 00:12:56,160 --> 00:12:59,280 Speaker 1: interested in that, and so um, there are a lot 211 00:12:59,440 --> 00:13:03,280 Speaker 1: of different and competing points of view with respect to this, 212 00:13:03,440 --> 00:13:06,840 Speaker 1: and it is confusing for employers and employees alike. Thanks Tony. 213 00:13:06,960 --> 00:13:12,120 Speaker 1: That's Anthony and City, a partnered Proscauer Rose. Dozens of 214 00:13:12,200 --> 00:13:16,000 Speaker 1: workers are suing their employers over alleged violations of the 215 00:13:16,080 --> 00:13:21,080 Speaker 1: first US federal paid leave law. The Family's First Coronavirus 216 00:13:21,120 --> 00:13:24,520 Speaker 1: Response Act, was designed to give options to workers who 217 00:13:24,520 --> 00:13:28,320 Speaker 1: have to take leave because of COVID nineteen Bloomberg Law 218 00:13:28,360 --> 00:13:32,520 Speaker 1: analysis found that seventy two coronavirus leave lawsuits have been 219 00:13:32,559 --> 00:13:36,679 Speaker 1: filed in federal courts by largely blue collar workers, and 220 00:13:36,720 --> 00:13:40,200 Speaker 1: those numbers are expected to spike in the fall. Joining 221 00:13:40,200 --> 00:13:44,040 Speaker 1: me is Aaron mulveney, Bloomberg Law senior reporter tell us 222 00:13:44,280 --> 00:13:47,920 Speaker 1: one or two of the stories of some of the 223 00:13:47,960 --> 00:13:52,800 Speaker 1: workers who took leaves and were fired or warrent granted leaves. 224 00:13:53,200 --> 00:13:59,400 Speaker 1: Sure since the Families First Coronavirus Response Act has impact UM, 225 00:13:59,600 --> 00:14:03,040 Speaker 1: their been about six dozen lawsuits that we found that 226 00:14:03,120 --> 00:14:07,320 Speaker 1: have been filed accusing employers of either not giving workers 227 00:14:07,320 --> 00:14:12,040 Speaker 1: believes that they UM deserved under the law, or retaliating 228 00:14:12,120 --> 00:14:16,000 Speaker 1: essentially against the workers for being fired. So, by way 229 00:14:16,000 --> 00:14:20,160 Speaker 1: at background, that's basically what this federal law protect against. 230 00:14:20,480 --> 00:14:22,520 Speaker 1: A lot of the cases that we found were from 231 00:14:22,520 --> 00:14:25,960 Speaker 1: blue collar workers, such as some that I thought were 232 00:14:26,160 --> 00:14:29,640 Speaker 1: the allegations were particularly shocking were a scrap metal worker 233 00:14:29,640 --> 00:14:33,640 Speaker 1: in Maryland had quarantine himself UM for three weeks after 234 00:14:33,680 --> 00:14:36,480 Speaker 1: he was hostialized with COVID, and he claimed he was 235 00:14:36,520 --> 00:14:39,880 Speaker 1: fired for that. A New Jersey janitor experienced the sore 236 00:14:39,960 --> 00:14:43,120 Speaker 1: throughout weakness after he was posed to the virus and 237 00:14:43,160 --> 00:14:45,520 Speaker 1: he stayed home waiting for his test results and then 238 00:14:45,520 --> 00:14:48,280 Speaker 1: he was fired for that UM. This was a pretty 239 00:14:48,280 --> 00:14:51,160 Speaker 1: common one as well. A legal assistant asked to tell 240 00:14:51,200 --> 00:14:54,640 Speaker 1: a work when her son's school closed UM, and she 241 00:14:54,800 --> 00:14:58,360 Speaker 1: was fired. These are the kind of examples. About half 242 00:14:58,440 --> 00:15:03,880 Speaker 1: were fired, we're having COVID like symptoms and quarantining. About 243 00:15:03,880 --> 00:15:07,960 Speaker 1: a third were the kind of school or caregiver situations. 244 00:15:08,320 --> 00:15:10,640 Speaker 1: Those are some of the examples of the kind of 245 00:15:10,640 --> 00:15:13,760 Speaker 1: cases that we've seen under this So there are lots 246 00:15:13,840 --> 00:15:16,800 Speaker 1: of instances where parents have to take care of their 247 00:15:16,880 --> 00:15:21,360 Speaker 1: child because daycare or schools are closed and they're not 248 00:15:21,440 --> 00:15:25,200 Speaker 1: given leave. Absolutely, there are a lot of cases, about 249 00:15:25,200 --> 00:15:29,040 Speaker 1: a third of the cases that we found in our analysis, 250 00:15:29,280 --> 00:15:35,040 Speaker 1: we're from parents who were requesting this family leave to 251 00:15:35,160 --> 00:15:38,320 Speaker 1: take care of their children, whether their children's school closed 252 00:15:38,320 --> 00:15:41,160 Speaker 1: down or you know, if there if their children got sick. 253 00:15:41,720 --> 00:15:45,400 Speaker 1: I will say working parents can tap about in additional 254 00:15:45,400 --> 00:15:47,800 Speaker 1: weeks of family leave under the law, and it will 255 00:15:47,840 --> 00:15:50,280 Speaker 1: be paid at two thirds of their regular wages, so 256 00:15:50,680 --> 00:15:53,800 Speaker 1: it's not the full wages. Let's say you're sick with COVID. 257 00:15:54,240 --> 00:15:57,200 Speaker 1: How many weeks can you get off if your employer 258 00:15:57,520 --> 00:16:01,680 Speaker 1: qualifies under the Act, Workers get two weeks of paid 259 00:16:01,760 --> 00:16:05,400 Speaker 1: leave and at their regular earnings if they're experiencing COVID 260 00:16:05,400 --> 00:16:08,600 Speaker 1: symptoms and seeking medical treatment, or if I think a 261 00:16:08,640 --> 00:16:11,160 Speaker 1: lot of people could understand when there were shut downs, 262 00:16:11,240 --> 00:16:14,720 Speaker 1: like government shutdowns and medical quarantine orders, that would be 263 00:16:14,760 --> 00:16:16,880 Speaker 1: something you could claim as well if if a you know, 264 00:16:16,960 --> 00:16:19,960 Speaker 1: if an employer asked you to basically violate that, and 265 00:16:20,000 --> 00:16:23,200 Speaker 1: then the two only the two thirds of the typical 266 00:16:23,240 --> 00:16:27,120 Speaker 1: salary is triggered with quarantining um with a child, or 267 00:16:27,760 --> 00:16:29,440 Speaker 1: you know, if you have like maybe an elderly parent 268 00:16:29,520 --> 00:16:32,240 Speaker 1: that you're caring for, that would be you would get 269 00:16:32,440 --> 00:16:35,240 Speaker 1: two weeks of paid sick leave for that. As far 270 00:16:35,280 --> 00:16:40,240 Speaker 1: as employers who are exempt, our healthcare companies exempted, and 271 00:16:40,280 --> 00:16:45,560 Speaker 1: therefore healthcare workers don't have access to this protection. There 272 00:16:45,680 --> 00:16:49,880 Speaker 1: is a healthcare worker exemption under the Act, and the 273 00:16:50,320 --> 00:16:54,000 Speaker 1: d o L the Labor Department, has issued some guidance 274 00:16:54,040 --> 00:16:58,920 Speaker 1: on that, and it's somewhat open for debate. I've noticed 275 00:16:58,960 --> 00:17:02,440 Speaker 1: in the filings of there were still some people who 276 00:17:02,440 --> 00:17:06,960 Speaker 1: worked in the healthcare industry who were filing these lawsuits, 277 00:17:07,000 --> 00:17:08,800 Speaker 1: and it remains to be seen whether they'll be thrown 278 00:17:08,840 --> 00:17:12,560 Speaker 1: out under the exemption. Or whether that the exemption was 279 00:17:12,600 --> 00:17:15,119 Speaker 1: supposed to be for a specific type of healthcare worker. 280 00:17:15,640 --> 00:17:19,960 Speaker 1: A lot of management sided deploy employment attorneys will say 281 00:17:20,080 --> 00:17:23,080 Speaker 1: it was crafted a little hastily and that exemption in 282 00:17:23,119 --> 00:17:27,399 Speaker 1: particular wasn't necessarily clear, And it seems from your story 283 00:17:27,520 --> 00:17:31,399 Speaker 1: like it's an uphill battle for management attorneys just trying 284 00:17:31,440 --> 00:17:34,000 Speaker 1: to figure out the law. I think that will be 285 00:17:34,000 --> 00:17:37,440 Speaker 1: the case with any new kind of federal blanket law 286 00:17:37,760 --> 00:17:41,120 Speaker 1: that requires companies to comply with new standards as they 287 00:17:41,160 --> 00:17:44,600 Speaker 1: never have before. This is the first federal paper policy 288 00:17:44,800 --> 00:17:48,520 Speaker 1: in the country so that the country's ever had, and 289 00:17:48,960 --> 00:17:52,960 Speaker 1: although it's limited and scope, it still has different you know, 290 00:17:53,000 --> 00:17:57,720 Speaker 1: exemptions and qualifications and notification requirements for employers, and you know, 291 00:17:57,800 --> 00:18:01,720 Speaker 1: especially if it's a smaller business that may not regularly 292 00:18:01,760 --> 00:18:05,200 Speaker 1: get advice from an attorney, there are hurdles and who 293 00:18:05,400 --> 00:18:09,120 Speaker 1: to jump through to avoid getting sued. These kinds of 294 00:18:09,280 --> 00:18:12,919 Speaker 1: laws I think are often daunting for the average person. 295 00:18:13,000 --> 00:18:17,400 Speaker 1: Are workers also confused about, you know, what their rights are? 296 00:18:18,400 --> 00:18:22,680 Speaker 1: I would imagine a lot of workers aren't familiar with 297 00:18:22,840 --> 00:18:26,879 Speaker 1: necessarily what they um have a right to because they 298 00:18:26,880 --> 00:18:30,360 Speaker 1: didn't have a pailee policy from their employer and they 299 00:18:30,359 --> 00:18:34,360 Speaker 1: don't get notification about this these new rights under UM, 300 00:18:34,359 --> 00:18:36,960 Speaker 1: this Emergency Act, and in a lot of you know, 301 00:18:37,080 --> 00:18:39,960 Speaker 1: low income workers may not have the means to go 302 00:18:40,040 --> 00:18:43,720 Speaker 1: out and buyle a lawsuit, and they they might not 303 00:18:43,800 --> 00:18:46,359 Speaker 1: know that they have these this kind of capability. Some 304 00:18:46,480 --> 00:18:48,800 Speaker 1: of the worker advocates that I talked to said that 305 00:18:48,880 --> 00:18:51,040 Speaker 1: they were getting flooded with a lot of questions but 306 00:18:51,200 --> 00:18:53,960 Speaker 1: what they were entitled to and especially when people were 307 00:18:54,040 --> 00:18:57,520 Speaker 1: in these kind of difficult situations. And what they said 308 00:18:57,600 --> 00:18:59,600 Speaker 1: is they said they were offering advice so that hopefully 309 00:18:59,640 --> 00:19:03,200 Speaker 1: wouldn't come to a lawsuits and more, you know, talking 310 00:19:03,200 --> 00:19:06,200 Speaker 1: through with the employer or the new standards that they're 311 00:19:06,240 --> 00:19:09,720 Speaker 1: required to follow, and so hopefully it could be resolved 312 00:19:09,720 --> 00:19:11,760 Speaker 1: that way. There might be one reason for the relatively 313 00:19:11,760 --> 00:19:15,880 Speaker 1: low number of lawsuits if employers and workers can kind 314 00:19:15,880 --> 00:19:19,440 Speaker 1: of work together on this to bring litigation. Aaron management 315 00:19:19,440 --> 00:19:23,040 Speaker 1: attorneys are expecting a spike in cases in the fall. 316 00:19:23,600 --> 00:19:25,960 Speaker 1: Is that because more workers are likely to become more 317 00:19:26,000 --> 00:19:30,159 Speaker 1: familiar with the law. I did have some management attorneys 318 00:19:30,240 --> 00:19:34,600 Speaker 1: who raise that concern that maybe there would be more 319 00:19:34,880 --> 00:19:40,360 Speaker 1: awareness of the law in coming months. UM the law 320 00:19:40,440 --> 00:19:44,200 Speaker 1: expires in December thirty one, so it would it would 321 00:19:44,200 --> 00:19:46,760 Speaker 1: only see a matter of the next few months. But 322 00:19:47,720 --> 00:19:53,040 Speaker 1: there what's happening now is there are schools reopening, there 323 00:19:53,040 --> 00:19:58,160 Speaker 1: are more businesses reopening, and that could both trigger more 324 00:19:58,720 --> 00:20:03,160 Speaker 1: COVID symptoms from hope experts say, or how health concerns, 325 00:20:03,160 --> 00:20:06,280 Speaker 1: but also just the need for leave, you know, balance 326 00:20:06,359 --> 00:20:10,240 Speaker 1: with parents or caregivers, balancing a lot of UM new 327 00:20:10,280 --> 00:20:14,320 Speaker 1: demands and as the country kind of steps into the pandemic. 328 00:20:14,320 --> 00:20:16,480 Speaker 1: I think at the beginning there was a lot of 329 00:20:16,560 --> 00:20:20,480 Speaker 1: uncertainty and chaos and everybody was scrambling. But now they're 330 00:20:20,520 --> 00:20:24,280 Speaker 1: trying to set into a new all the very different 331 00:20:24,359 --> 00:20:28,360 Speaker 1: normal in the business community. So there is a suggestion 332 00:20:28,359 --> 00:20:31,199 Speaker 1: that there could be a spike for various reasons. It 333 00:20:31,240 --> 00:20:34,320 Speaker 1: could be that more workers become aware of it, but 334 00:20:34,720 --> 00:20:38,440 Speaker 1: there really isn't strong evidence that that's the case necessarily 335 00:20:38,440 --> 00:20:42,080 Speaker 1: at this point. What kinds of companies or what companies 336 00:20:42,240 --> 00:20:46,520 Speaker 1: are being sued, well, there are some limits again to 337 00:20:46,720 --> 00:20:52,040 Speaker 1: that because there shouldn't be there aren't UM. An employer 338 00:20:52,080 --> 00:20:54,760 Speaker 1: with more than five workers is exempt from the law, 339 00:20:55,400 --> 00:20:59,240 Speaker 1: and there are also some UM exemptions for workers of 340 00:20:59,320 --> 00:21:02,320 Speaker 1: fifty or less us and some of the big names 341 00:21:02,320 --> 00:21:05,640 Speaker 1: that we saw, and they they were Kroger and Eastern 342 00:21:05,680 --> 00:21:10,119 Speaker 1: Airlines and Holiday in which people may may recognize. But 343 00:21:10,320 --> 00:21:14,080 Speaker 1: they were mostly companies that you might not have heard 344 00:21:14,080 --> 00:21:18,800 Speaker 1: of necessarily, like uh, lawn hare companies or cleaning companies 345 00:21:18,840 --> 00:21:22,080 Speaker 1: that can you work under some kind of um name UM. 346 00:21:23,119 --> 00:21:26,879 Speaker 1: So it wasn't necessarily things that you've heard of, you know, 347 00:21:26,880 --> 00:21:29,640 Speaker 1: they might be kind of like this medium sized business 348 00:21:29,680 --> 00:21:32,320 Speaker 1: that falls into that area. What are the states that 349 00:21:32,359 --> 00:21:36,960 Speaker 1: have the most claims against employers? Florida far and away, 350 00:21:37,080 --> 00:21:42,160 Speaker 1: I'll stripped the other states. It had the most cases. Uh, 351 00:21:42,400 --> 00:21:47,000 Speaker 1: Michigan and Pennsylvania probably had the they were kind of following. 352 00:21:47,680 --> 00:21:50,159 Speaker 1: It was scattered around the country other than that, but 353 00:21:50,240 --> 00:21:53,639 Speaker 1: Florida definitely stood out is the main states, so it 354 00:21:53,680 --> 00:21:57,720 Speaker 1: saw these kind of claims. There's so much empathy or 355 00:21:57,760 --> 00:22:01,680 Speaker 1: expressed empathy for healthcare worker is is there any kind 356 00:22:01,720 --> 00:22:05,879 Speaker 1: of legislation being proposed to cover health care workers in 357 00:22:05,920 --> 00:22:08,840 Speaker 1: the same way that they cover other workers. It just 358 00:22:08,880 --> 00:22:13,680 Speaker 1: seems unfair to be excluding them. I'm not sure how 359 00:22:13,760 --> 00:22:18,120 Speaker 1: what lawmakers are thinking as far as any aspect of 360 00:22:18,240 --> 00:22:20,919 Speaker 1: this legislation, whether or not it will be renewed moving 361 00:22:20,960 --> 00:22:23,520 Speaker 1: forward UM, and whether or not they'll tweak it with 362 00:22:24,160 --> 00:22:26,800 Speaker 1: maybe more clarification on what the health care worker exemption 363 00:22:26,960 --> 00:22:30,760 Speaker 1: is or what they were intending to do UM. I 364 00:22:30,840 --> 00:22:34,200 Speaker 1: have not personally heard of any proposal to UM provide 365 00:22:34,200 --> 00:22:38,439 Speaker 1: something like this specifically for the entire health care industry though. However, so, 366 00:22:38,640 --> 00:22:42,359 Speaker 1: what is the best guidance that attorneys are giving to 367 00:22:42,600 --> 00:22:47,560 Speaker 1: employers that fall under the law. As usual with advice 368 00:22:47,600 --> 00:22:51,680 Speaker 1: from attorneys, they always advise making sure that they are 369 00:22:51,760 --> 00:22:55,720 Speaker 1: aware of what the law requires them, like they need 370 00:22:55,760 --> 00:22:59,000 Speaker 1: to notify their workers of their new leave rights. And 371 00:22:59,040 --> 00:23:02,720 Speaker 1: they also recommend collecting documentation when these requests are made, 372 00:23:03,080 --> 00:23:06,600 Speaker 1: providing notice of their decision about granting or rejecting leaves. 373 00:23:06,680 --> 00:23:09,879 Speaker 1: Those things are important in the litigation process, even if 374 00:23:09,880 --> 00:23:13,680 Speaker 1: they seem kind of procedural at an early stage. But 375 00:23:13,680 --> 00:23:16,239 Speaker 1: but I think this is an important point to a 376 00:23:16,240 --> 00:23:19,040 Speaker 1: lot of these lawyers that I talked to said, keeping 377 00:23:19,119 --> 00:23:23,320 Speaker 1: flexibility in mind in these difficult situations is really important 378 00:23:23,760 --> 00:23:28,199 Speaker 1: as a company outside of their legal and you know, 379 00:23:28,400 --> 00:23:31,440 Speaker 1: making taking flexibility to account and they're balancing these decisions 380 00:23:31,440 --> 00:23:34,760 Speaker 1: for their business and for their workers needs. When you 381 00:23:34,800 --> 00:23:38,680 Speaker 1: talk to people, what do they see as the biggest 382 00:23:39,280 --> 00:23:42,880 Speaker 1: challenge coming up as kids return to school, as more 383 00:23:42,960 --> 00:23:48,159 Speaker 1: businesses reopen. Is there an area or a type of 384 00:23:48,160 --> 00:23:51,480 Speaker 1: of worker that they see more at risk of termination. 385 00:23:52,080 --> 00:23:54,719 Speaker 1: I think the biggest fear would not be necessarily a 386 00:23:54,760 --> 00:24:00,040 Speaker 1: type of worker, but maybe just a parent kind of 387 00:24:00,240 --> 00:24:02,560 Speaker 1: having to balance a lot of difficult situations and maybe 388 00:24:02,560 --> 00:24:05,920 Speaker 1: being treated differently than other workers in general, and not 389 00:24:06,200 --> 00:24:09,560 Speaker 1: you know, really getting to leave that they they're entitled 390 00:24:09,560 --> 00:24:13,320 Speaker 1: to under this law. Um. I think that would probably 391 00:24:13,359 --> 00:24:16,480 Speaker 1: be what I heard the most of. Otherwise, I think 392 00:24:16,920 --> 00:24:21,320 Speaker 1: there isn't necessarily a particular industry that this would be affecting. 393 00:24:22,000 --> 00:24:26,639 Speaker 1: I think early in the pandemic months, there were probably 394 00:24:26,680 --> 00:24:28,520 Speaker 1: would be more of the workers that were going back, 395 00:24:28,560 --> 00:24:31,600 Speaker 1: like in manufacturing and more essential workers. And now that 396 00:24:31,600 --> 00:24:34,280 Speaker 1: more businesses are opening up, I think there is some 397 00:24:34,320 --> 00:24:37,919 Speaker 1: potential for more workers to be affected, maybe run office 398 00:24:37,960 --> 00:24:41,119 Speaker 1: workers who were once table working and people like that 399 00:24:41,160 --> 00:24:44,760 Speaker 1: in like a cross industries. Honestly, what stage are these 400 00:24:44,840 --> 00:24:48,440 Speaker 1: lawsuits at? Are Are they mostly at the complaint phase 401 00:24:48,440 --> 00:24:51,960 Speaker 1: and they reached the answer phase? They are mostly very 402 00:24:52,000 --> 00:24:55,040 Speaker 1: early in their litigation process. Most of them have been 403 00:24:55,080 --> 00:24:58,080 Speaker 1: filed or there were some that we found that were 404 00:24:58,160 --> 00:25:01,480 Speaker 1: voluntarily dismissed, which kids took us. The settlement was reached 405 00:25:01,560 --> 00:25:06,320 Speaker 1: by both parties, and there was one case that did 406 00:25:06,440 --> 00:25:10,240 Speaker 1: have a motion to dismiss that the company tried to 407 00:25:10,280 --> 00:25:13,879 Speaker 1: get the lawsuits thrown out and a judge rejected on 408 00:25:14,040 --> 00:25:17,080 Speaker 1: that motion, so it'll be moving forward. That that early 409 00:25:17,160 --> 00:25:21,800 Speaker 1: kind of procedural motion usually indicates that the claim had 410 00:25:21,840 --> 00:25:25,200 Speaker 1: some merit and could be moving forward. Thanks for being 411 00:25:25,200 --> 00:25:28,320 Speaker 1: on The Bloomberg Law Show, Aaron. That's Bloomberg Law Senior 412 00:25:28,320 --> 00:25:31,480 Speaker 1: Reporter Aaron mulvaney. And that's it for the edition of 413 00:25:31,520 --> 00:25:34,720 Speaker 1: the Bloomberg Law Show. I'm June Grosso. Thanks so much 414 00:25:34,760 --> 00:25:37,399 Speaker 1: for listening, and remember to tune to The Bloomberg Law 415 00:25:37,440 --> 00:25:41,119 Speaker 1: Show every weeknight at MS Journey right here on Boomberg Radio.