WEBVTT - Can Employers Watch Drug Testing? 0:00:00.480 --> 0:00:05.720 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:06.400 --> 0:00:09.719 Being tested for drugs has become a fairly accepted part 0:00:09.720 --> 0:00:12.600 of the workplace and fodder for a lot of jokes 0:00:12.640 --> 0:00:16.080 in movies and TV shows. Almost twenty five years ago, 0:00:16.160 --> 0:00:19.640 in the sign Fell Show, Elaine tested positive for opium 0:00:19.640 --> 0:00:22.279 because of the poppy seeds in her muffins. So she 0:00:22.360 --> 0:00:24.880 got Jerry's mother to help her with the next year 0:00:24.920 --> 0:00:27.040 in test. What are you gonna do in there? What 0:00:27.120 --> 0:00:28.840 am I going to do in the bathroom? I've gotta 0:00:28.880 --> 0:00:31.920 do me a favor, Elaine. I really hold on a second, 0:00:32.040 --> 0:00:36.640 Mrs Slinkfeld, I need your sample. You want my urine. 0:00:36.960 --> 0:00:40.120 I need a clean urine sample from a woman. As 0:00:40.120 --> 0:00:42.879 a result of your test being free of opium, I 0:00:42.920 --> 0:00:47.320 am reinstating you. But that's no laughing matter too many employers. 0:00:47.320 --> 0:00:50.239 Some have taken steps to ensure against tamper and with 0:00:50.400 --> 0:00:55.840 urine specimens, including having someone watch employees urinate. Embarrassing to 0:00:55.920 --> 0:00:59.720 be sure, But is it an invasion of privacy? Ohio's 0:00:59.760 --> 0:01:03.520 top court says it's not. By a closely divided four 0:01:03.600 --> 0:01:07.000 to three vote, the Ohio Supreme Court dismissed the cases 0:01:07.000 --> 0:01:11.040 of employees who sued their company for invasion of privacy 0:01:11.080 --> 0:01:14.240 after they were required to undergo a monitored urine test. 0:01:14.720 --> 0:01:17.680 Joining me is employment law expert Anthony on cd A, 0:01:17.800 --> 0:01:21.560 partnered Proscauer rose Tony. How did the court deal with 0:01:21.600 --> 0:01:24.680 the right to privacy argument? For A couple of things 0:01:24.880 --> 0:01:27.759 become very clear early on in the case, and one 0:01:27.959 --> 0:01:30.920 is that the right to privacy, which is an amazingly 0:01:31.280 --> 0:01:37.080 powerful right, varies surprisingly enough from jurisdiction to jurisdiction. There 0:01:37.240 --> 0:01:42.640 is no overarching federal constitutional right to privacy, at least 0:01:42.680 --> 0:01:46.160 not one that appears expressly in the United States Constitution. 0:01:46.720 --> 0:01:50.920 Some opinions have interpreted there to be privacy like rights 0:01:51.160 --> 0:01:54.000 in the Constitution, but there's not the word privacy, and 0:01:54.040 --> 0:01:57.880 there isn't even in some respects and argument that the 0:01:58.000 --> 0:02:01.720 actual per se right to privacy this at least expressly 0:02:01.760 --> 0:02:04.440 stated in the U. S Constitution. That's also true at 0:02:04.440 --> 0:02:06.840 the state level, and you can see in this opinion 0:02:06.920 --> 0:02:12.560 early on that the employees cited some cases from some 0:02:12.639 --> 0:02:16.600 other jurisdictions, including my state, for example, California, and the 0:02:16.600 --> 0:02:20.400 Ohio Supreme Court had no difficulty at all distinguishing and 0:02:20.840 --> 0:02:24.480 dismissing any consideration of those cases, because, for example, the 0:02:24.480 --> 0:02:28.760 California case involved a right to privacy that is enshrined 0:02:28.880 --> 0:02:33.360 in the California Constitution. In fact, Article one, Section one 0:02:33.720 --> 0:02:37.640 of the California State Constitution guarantees the people the state 0:02:37.639 --> 0:02:42.000 of California a right to privacy. Ohio, by comparison, does 0:02:42.040 --> 0:02:45.960 not have such an expressed right to privacy, and that 0:02:46.120 --> 0:02:49.480 was a very important lynch pin of this decision. What 0:02:49.560 --> 0:02:52.600 about the theory in the opinion that the employees had 0:02:52.639 --> 0:02:56.880 consented to the drug tests, despite the employees arguing that 0:02:56.919 --> 0:03:00.600 their consent wasn't voluntary because they could be fired for 0:03:00.680 --> 0:03:04.000 refusing to take the test. What the majority of this 0:03:04.160 --> 0:03:06.320 court said, and it was a fourd to three opinions, 0:03:06.320 --> 0:03:08.160 with the Chief Justice, by the way, being in the descent. 0:03:08.680 --> 0:03:13.880 What the majority said was that although the written disclosure 0:03:13.960 --> 0:03:17.000 form that the employee sign did not state that it 0:03:17.040 --> 0:03:21.280 would be a so called direct observation drug test, meaning 0:03:21.320 --> 0:03:24.359 that their genitals could be seen by the person who 0:03:24.480 --> 0:03:27.240 was making sure that the drug test was taken correctly, 0:03:27.919 --> 0:03:31.919 the form didn't say that. However, once they arrived at 0:03:31.960 --> 0:03:36.080 the testing facility, they were told that, and obviously before 0:03:36.120 --> 0:03:38.840 they actually were subjected to the test, they knew what 0:03:38.920 --> 0:03:41.760 was going to happen, and the fact that they continued 0:03:41.880 --> 0:03:44.320 on with the test and didn't just exit the building, 0:03:44.840 --> 0:03:49.119 from the majority's point of view, was consent. Now. That 0:03:49.320 --> 0:03:52.520 was questioned, of course by the descent, who said, well, 0:03:53.000 --> 0:03:58.760 if it was consent, it was compelled consent because the 0:03:58.840 --> 0:04:03.680 employees new or certainly believed that if they refused to 0:04:04.160 --> 0:04:06.160 take the drug tests in the way that it was 0:04:06.200 --> 0:04:09.560 being administered, they could and probably would lose their jobs. 0:04:09.600 --> 0:04:14.480 And so the compulsion elements was what the descent focused on. 0:04:14.880 --> 0:04:17.680 But from the majority standpoint, there actually was consented. The 0:04:17.760 --> 0:04:21.919 descent also said that an at will relationship doesn't allow 0:04:21.960 --> 0:04:25.880 someone to commit intentional torts. So the descent here felt 0:04:25.920 --> 0:04:28.760 that there was a violation of privacy or was it 0:04:28.880 --> 0:04:32.000 something else. They did say that, they said that there 0:04:32.120 --> 0:04:35.240 was a violation of privacy, and even the majority did 0:04:35.279 --> 0:04:40.080 concede that in an employment at will situation, which basically 0:04:40.120 --> 0:04:43.159 means that an employer can terminate the employment for any 0:04:43.160 --> 0:04:46.440 reason for so called good reason, bad reason, or no 0:04:46.560 --> 0:04:49.440 reason at all, and so can the employee leave the 0:04:49.480 --> 0:04:52.279 employment for any reason at all. That's what an employment 0:04:52.279 --> 0:04:57.200 at will relationship is. The majority conceded that there are 0:04:57.240 --> 0:05:01.120 some exceptions to that, including, for example, filing a worker's 0:05:01.120 --> 0:05:04.240 comp claim, or filing a discrimination claim, or saying that 0:05:04.320 --> 0:05:08.039 you've been harassed or discriminated against contrary Title seven or 0:05:08.040 --> 0:05:12.000 to a state anti discrimination law. You can't be terminated 0:05:12.080 --> 0:05:14.120 for having done any of those things, even if you 0:05:14.200 --> 0:05:17.480 are an at will employee. And so in this case, 0:05:17.560 --> 0:05:21.040 what the descent is saying is terminating somebody in the 0:05:21.080 --> 0:05:24.800 context that occurred here, which involved said the descent, an 0:05:24.839 --> 0:05:28.599 invasion of privacy is like one of those exceptions, meaning 0:05:28.640 --> 0:05:31.760 that it should be something that is a carve out 0:05:32.040 --> 0:05:34.719 from the employment at will rule. The majority, on the 0:05:34.720 --> 0:05:37.680 other hand, felt the other way and made the determination 0:05:37.800 --> 0:05:40.599 that if you're an employee at will, you can be 0:05:40.720 --> 0:05:45.800 compelled to subject yourself to this kind of testing, because essentially, 0:05:45.839 --> 0:05:50.000 the reasoning of the majority is that the power to terminate, 0:05:50.120 --> 0:05:53.000 which the employer had to do at will, includes the 0:05:53.040 --> 0:05:56.719 power to compel somebody to subject himself or herself to 0:05:57.200 --> 0:06:00.480 such testing. Is this in line with what where it's 0:06:00.520 --> 0:06:03.640 in other states have ruled, or does it depend on 0:06:03.680 --> 0:06:06.160 the state law it's going to depend on the state law, 0:06:06.480 --> 0:06:09.040 and it certainly was teased out at the beginning of 0:06:09.080 --> 0:06:14.480 this opinion where the employee cited privacy protection cases from 0:06:14.520 --> 0:06:20.720 other jurisdictions, and the majority distinguished and indeed ignored basically 0:06:20.760 --> 0:06:24.039 those other state law cases on the ground that Ohio 0:06:24.400 --> 0:06:28.240 does not have in its constitution a guarantee of a 0:06:28.400 --> 0:06:30.680 right to privacy, and in fact, there's also not even 0:06:30.720 --> 0:06:34.280 a statutory right to privacy in the state of Ohio. 0:06:34.560 --> 0:06:38.360 There is what the majority somewhat dismissively referred to as 0:06:38.400 --> 0:06:41.479 a judge made right to privacy which arises in the 0:06:41.560 --> 0:06:44.760 common law, but that has never been placed either in 0:06:44.760 --> 0:06:48.520 the Ohio State Constitution or in the Ohio statutes. And 0:06:48.640 --> 0:06:52.039 so that's really the original issue here, I think, is 0:06:52.160 --> 0:06:54.320 that the people of the state of Ohio should, when 0:06:54.360 --> 0:06:57.040 the time comes, try to get a right to privacy 0:06:57.040 --> 0:06:59.640 in shrines somewhere, either in the constitution or in the 0:06:59.680 --> 0:07:03.680 state books, because right now there isn't any expression of 0:07:03.720 --> 0:07:05.440 the right to privacy in the state of Ohio. And 0:07:05.480 --> 0:07:08.800 that's not that uncommon, that is relatively common throughout the 0:07:08.839 --> 0:07:12.720 fifty states. So just to be clear, some courts in 0:07:12.800 --> 0:07:16.480 states that have rights to privacy have ruled that having 0:07:16.520 --> 0:07:19.960 someone watch you give a urine sample is an invasion 0:07:20.000 --> 0:07:23.880 of privacy. Correct. Again, there was a California drug testing 0:07:23.960 --> 0:07:27.200 case that was cited by employees in this case, so 0:07:27.240 --> 0:07:30.920 called Wilkinson case, and that was ignored by the Ohio 0:07:31.080 --> 0:07:34.800 State Supreme Court on the ground that California, unlike Ohio, 0:07:35.040 --> 0:07:38.480 does have an express right to privacy in its state constitution. 0:07:38.520 --> 0:07:40.680 It's and it's an Article one, Section one of the 0:07:40.720 --> 0:07:46.080 California State Constitution. There are other ways to ensure that 0:07:46.280 --> 0:07:51.840 the urine sample is authentic, like having someone dressing a gown, 0:07:52.440 --> 0:07:55.720 different things that they can do. Short of this, it 0:07:55.760 --> 0:08:00.000 seems extreme. Yeah, there is an analysis that you sometimes 0:08:00.080 --> 0:08:02.840 see in these cases, which is an inquiry takes place 0:08:02.840 --> 0:08:07.119 whether there is a less intrusive means accomplishing the same 0:08:07.360 --> 0:08:10.440 goal of the example you give is one that certainly 0:08:10.760 --> 0:08:15.160 presumably was available. There are some federal regulations that are 0:08:15.200 --> 0:08:18.920 also cited in the opinion, and the decent especially saying 0:08:18.960 --> 0:08:22.960 that these are other ways in which this same goal 0:08:23.040 --> 0:08:25.600 could have been accomplished and that would have been less 0:08:25.600 --> 0:08:29.880 intrusive from the privacy standpoint. But my sense from reading 0:08:29.880 --> 0:08:34.480 the majority's opinion was that it wasn't in the frame 0:08:34.520 --> 0:08:39.000 of mind to be tinkering with the machinery that was 0:08:39.000 --> 0:08:41.720 was employed in this in this situation because of the 0:08:42.440 --> 0:08:46.760 very strong at will presumption that exists under a higher law, 0:08:47.480 --> 0:08:50.240 the employee says that she's going to file a motion 0:08:50.320 --> 0:08:54.880 for reconsideration. Is there any indication that she might fare 0:08:54.920 --> 0:08:58.680 better with a motion for reconsideration? I doubt it. As 0:08:58.720 --> 0:09:02.280 I said, this was slay. It was fairly hard fought litigation. 0:09:03.000 --> 0:09:05.720 The court was badly supplit I mean it could not 0:09:05.920 --> 0:09:07.880 you know, one more vote one way or the other 0:09:08.840 --> 0:09:13.280 would have made the difference. There were four justices that 0:09:13.559 --> 0:09:16.760 voted um in favor of the employer, and by the 0:09:16.800 --> 0:09:20.080 way that the Supreme Court reversed the fifth District, so 0:09:20.200 --> 0:09:22.840 actually the employee had one in the appellate court below, 0:09:22.920 --> 0:09:28.400 I believe um. But the dissent consisted of three justices, 0:09:28.440 --> 0:09:30.320 So one justice one way or the other could have 0:09:30.360 --> 0:09:33.040 made the difference, and Chief Justice O'Connor was among the 0:09:33.120 --> 0:09:39.040 three dissenting justices. Four states prohibit observe collection Connecticut, Maine, 0:09:39.120 --> 0:09:43.000 Rhode Island, Vermont. From what you see in your practice 0:09:43.240 --> 0:09:49.440 is observed collection becoming the way that that employers verify 0:09:50.520 --> 0:09:53.160 I suspect not. I mean this. This struck me as 0:09:53.200 --> 0:09:58.840 being unusual in that regard, especially since there are also 0:09:58.960 --> 0:10:03.439 legitimate means which this kind of testing can be accomplished 0:10:03.600 --> 0:10:09.319 without engaging in this direct observation method. So my sense 0:10:09.400 --> 0:10:11.640 is that there isn't a trend towards this, and I 0:10:11.679 --> 0:10:15.040 suspect that. Again, I haven't done any empirical studies of this, 0:10:15.160 --> 0:10:20.480 but my sense is that fewer testing facilities would use 0:10:20.600 --> 0:10:22.400 this or would continue to use it's on and going 0:10:22.440 --> 0:10:26.120 forward basis this. This was obviously a lot of litigation 0:10:26.320 --> 0:10:28.719 over you know, a couple of drug tests. So I 0:10:28.720 --> 0:10:32.080 would imagine, all things being equal, the employer and the 0:10:32.120 --> 0:10:34.960 testing facility are are more than happy not to have 0:10:35.000 --> 0:10:38.760 this recur uh, And I wouldn't be surprised if they 0:10:38.840 --> 0:10:41.319 might get sued again. Somebody may try to figure out 0:10:41.320 --> 0:10:45.400 a federal right that they can rely upon that, as 0:10:45.400 --> 0:10:47.320 far as I can tell, was not considered by the 0:10:47.360 --> 0:10:50.520 Ohio courts in this situation. So that might be another 0:10:50.920 --> 0:10:53.760 method of attacking this. Since you know, drug tests have 0:10:53.880 --> 0:10:56.720 become more and more accepted, are there are a lot 0:10:56.720 --> 0:11:01.000 of cases of employees challenging UG tests and the way 0:11:01.040 --> 0:11:05.319 they're administered. Most of those battles were fought UH ten 0:11:05.400 --> 0:11:09.280 in fifteen years ago, and quite frankly, the employer won 0:11:09.360 --> 0:11:11.360 most of them. And there's been a lot of litigation 0:11:11.400 --> 0:11:14.200 about this, for example, in California, so I'm most familiar 0:11:14.240 --> 0:11:16.839 with that. The way the rules more or less have 0:11:16.920 --> 0:11:20.960 settled in California is that an employer may subject an 0:11:20.960 --> 0:11:24.480 employee to a dry test if there is a reasonable 0:11:24.520 --> 0:11:27.640 suspicion that the employees under the influence UH and the 0:11:27.640 --> 0:11:30.880 employer has to be able to articulate what the factors 0:11:30.920 --> 0:11:34.400 are that lead it to conclude that the employee might 0:11:34.400 --> 0:11:37.280 be under the influence, and that could be dilated pupils, 0:11:37.280 --> 0:11:40.839 slurred speech, you know, parking in a strange way, whatever, 0:11:41.080 --> 0:11:44.719 whatever it might be. So employers can do testing under 0:11:44.760 --> 0:11:48.200 those circumstances and not necessarily direct observation testing. I think 0:11:48.240 --> 0:11:50.480 that I have not heard of that occurring with any 0:11:50.480 --> 0:11:54.920 frequency in California. The second major category of testing that 0:11:54.920 --> 0:11:59.199 occurs in California involve situations where the employee is in 0:11:59.280 --> 0:12:03.360 the safety sensitive position. So, for example, you have somebody 0:12:03.360 --> 0:12:06.160 who's driving the booklift around or is otherwise dealing with 0:12:06.280 --> 0:12:10.680 very heavy machinery that could endanger the employee or others. 0:12:11.400 --> 0:12:17.240 Under those circumstances, an employer has relatively broad discretion to 0:12:17.400 --> 0:12:21.440 engage in drug testing. Under the circumstances where things get 0:12:21.440 --> 0:12:24.880 complicated are in states like California, for example, where we 0:12:24.960 --> 0:12:30.319 now have legalized marijuana, and so that right is continuing 0:12:30.360 --> 0:12:34.840 to butt up against the employer's right to do drug testing. 0:12:35.400 --> 0:12:38.920 And then you add in the additional fact that marijuana, 0:12:38.960 --> 0:12:42.560 for example, is still illegal on the federal level, and 0:12:42.640 --> 0:12:47.679 so that can differ from federal administration to federal administration. 0:12:47.720 --> 0:12:52.160 The Obama administration was not particularly interested in enforcing uh 0:12:52.280 --> 0:12:56.120 those laws that the Trump administration has been much more 0:12:56.160 --> 0:12:59.280 interested in that, and so um, there are a lot 0:12:59.440 --> 0:13:03.280 of different and competing points of view with respect to this, 0:13:03.440 --> 0:13:06.840 and it is confusing for employers and employees alike. Thanks Tony. 0:13:06.960 --> 0:13:12.120 That's Anthony and City, a partnered Proscauer Rose. Dozens of 0:13:12.200 --> 0:13:16.000 workers are suing their employers over alleged violations of the 0:13:16.080 --> 0:13:21.080 first US federal paid leave law. The Family's First Coronavirus 0:13:21.120 --> 0:13:24.520 Response Act, was designed to give options to workers who 0:13:24.520 --> 0:13:28.320 have to take leave because of COVID nineteen Bloomberg Law 0:13:28.360 --> 0:13:32.520 analysis found that seventy two coronavirus leave lawsuits have been 0:13:32.559 --> 0:13:36.679 filed in federal courts by largely blue collar workers, and 0:13:36.720 --> 0:13:40.200 those numbers are expected to spike in the fall. Joining 0:13:40.200 --> 0:13:44.040 me is Aaron mulveney, Bloomberg Law senior reporter tell us 0:13:44.280 --> 0:13:47.920 one or two of the stories of some of the 0:13:47.960 --> 0:13:52.800 workers who took leaves and were fired or warrent granted leaves. 0:13:53.200 --> 0:13:59.400 Sure since the Families First Coronavirus Response Act has impact UM, 0:13:59.600 --> 0:14:03.040 their been about six dozen lawsuits that we found that 0:14:03.120 --> 0:14:07.320 have been filed accusing employers of either not giving workers 0:14:07.320 --> 0:14:12.040 believes that they UM deserved under the law, or retaliating 0:14:12.120 --> 0:14:16.000 essentially against the workers for being fired. So, by way 0:14:16.000 --> 0:14:20.160 at background, that's basically what this federal law protect against. 0:14:20.480 --> 0:14:22.520 A lot of the cases that we found were from 0:14:22.520 --> 0:14:25.960 blue collar workers, such as some that I thought were 0:14:26.160 --> 0:14:29.640 the allegations were particularly shocking were a scrap metal worker 0:14:29.640 --> 0:14:33.640 in Maryland had quarantine himself UM for three weeks after 0:14:33.680 --> 0:14:36.480 he was hostialized with COVID, and he claimed he was 0:14:36.520 --> 0:14:39.880 fired for that. A New Jersey janitor experienced the sore 0:14:39.960 --> 0:14:43.120 throughout weakness after he was posed to the virus and 0:14:43.160 --> 0:14:45.520 he stayed home waiting for his test results and then 0:14:45.520 --> 0:14:48.280 he was fired for that UM. This was a pretty 0:14:48.280 --> 0:14:51.160 common one as well. A legal assistant asked to tell 0:14:51.200 --> 0:14:54.640 a work when her son's school closed UM, and she 0:14:54.800 --> 0:14:58.360 was fired. These are the kind of examples. About half 0:14:58.440 --> 0:15:03.880 were fired, we're having COVID like symptoms and quarantining. About 0:15:03.880 --> 0:15:07.960 a third were the kind of school or caregiver situations. 0:15:08.320 --> 0:15:10.640 Those are some of the examples of the kind of 0:15:10.640 --> 0:15:13.760 cases that we've seen under this So there are lots 0:15:13.840 --> 0:15:16.800 of instances where parents have to take care of their 0:15:16.880 --> 0:15:21.360 child because daycare or schools are closed and they're not 0:15:21.440 --> 0:15:25.200 given leave. Absolutely, there are a lot of cases, about 0:15:25.200 --> 0:15:29.040 a third of the cases that we found in our analysis, 0:15:29.280 --> 0:15:35.040 we're from parents who were requesting this family leave to 0:15:35.160 --> 0:15:38.320 take care of their children, whether their children's school closed 0:15:38.320 --> 0:15:41.160 down or you know, if there if their children got sick. 0:15:41.720 --> 0:15:45.400 I will say working parents can tap about in additional 0:15:45.400 --> 0:15:47.800 weeks of family leave under the law, and it will 0:15:47.840 --> 0:15:50.280 be paid at two thirds of their regular wages, so 0:15:50.680 --> 0:15:53.800 it's not the full wages. Let's say you're sick with COVID. 0:15:54.240 --> 0:15:57.200 How many weeks can you get off if your employer 0:15:57.520 --> 0:16:01.680 qualifies under the Act, Workers get two weeks of paid 0:16:01.760 --> 0:16:05.400 leave and at their regular earnings if they're experiencing COVID 0:16:05.400 --> 0:16:08.600 symptoms and seeking medical treatment, or if I think a 0:16:08.640 --> 0:16:11.160 lot of people could understand when there were shut downs, 0:16:11.240 --> 0:16:14.720 like government shutdowns and medical quarantine orders, that would be 0:16:14.760 --> 0:16:16.880 something you could claim as well if if a you know, 0:16:16.960 --> 0:16:19.960 if an employer asked you to basically violate that, and 0:16:20.000 --> 0:16:23.200 then the two only the two thirds of the typical 0:16:23.240 --> 0:16:27.120 salary is triggered with quarantining um with a child, or 0:16:27.760 --> 0:16:29.440 you know, if you have like maybe an elderly parent 0:16:29.520 --> 0:16:32.240 that you're caring for, that would be you would get 0:16:32.440 --> 0:16:35.240 two weeks of paid sick leave for that. As far 0:16:35.280 --> 0:16:40.240 as employers who are exempt, our healthcare companies exempted, and 0:16:40.280 --> 0:16:45.560 therefore healthcare workers don't have access to this protection. There 0:16:45.680 --> 0:16:49.880 is a healthcare worker exemption under the Act, and the 0:16:50.320 --> 0:16:54.000 d o L the Labor Department, has issued some guidance 0:16:54.040 --> 0:16:58.920 on that, and it's somewhat open for debate. I've noticed 0:16:58.960 --> 0:17:02.440 in the filings of there were still some people who 0:17:02.440 --> 0:17:06.960 worked in the healthcare industry who were filing these lawsuits, 0:17:07.000 --> 0:17:08.800 and it remains to be seen whether they'll be thrown 0:17:08.840 --> 0:17:12.560 out under the exemption. Or whether that the exemption was 0:17:12.600 --> 0:17:15.119 supposed to be for a specific type of healthcare worker. 0:17:15.640 --> 0:17:19.960 A lot of management sided deploy employment attorneys will say 0:17:20.080 --> 0:17:23.080 it was crafted a little hastily and that exemption in 0:17:23.119 --> 0:17:27.399 particular wasn't necessarily clear, And it seems from your story 0:17:27.520 --> 0:17:31.399 like it's an uphill battle for management attorneys just trying 0:17:31.440 --> 0:17:34.000 to figure out the law. I think that will be 0:17:34.000 --> 0:17:37.440 the case with any new kind of federal blanket law 0:17:37.760 --> 0:17:41.120 that requires companies to comply with new standards as they 0:17:41.160 --> 0:17:44.600 never have before. This is the first federal paper policy 0:17:44.800 --> 0:17:48.520 in the country so that the country's ever had, and 0:17:48.960 --> 0:17:52.960 although it's limited and scope, it still has different you know, 0:17:53.000 --> 0:17:57.720 exemptions and qualifications and notification requirements for employers, and you know, 0:17:57.800 --> 0:18:01.720 especially if it's a smaller business that may not regularly 0:18:01.760 --> 0:18:05.200 get advice from an attorney, there are hurdles and who 0:18:05.400 --> 0:18:09.120 to jump through to avoid getting sued. These kinds of 0:18:09.280 --> 0:18:12.919 laws I think are often daunting for the average person. 0:18:13.000 --> 0:18:17.400 Are workers also confused about, you know, what their rights are? 0:18:18.400 --> 0:18:22.680 I would imagine a lot of workers aren't familiar with 0:18:22.840 --> 0:18:26.879 necessarily what they um have a right to because they 0:18:26.880 --> 0:18:30.360 didn't have a pailee policy from their employer and they 0:18:30.359 --> 0:18:34.360 don't get notification about this these new rights under UM, 0:18:34.359 --> 0:18:36.960 this Emergency Act, and in a lot of you know, 0:18:37.080 --> 0:18:39.960 low income workers may not have the means to go 0:18:40.040 --> 0:18:43.720 out and buyle a lawsuit, and they they might not 0:18:43.800 --> 0:18:46.359 know that they have these this kind of capability. Some 0:18:46.480 --> 0:18:48.800 of the worker advocates that I talked to said that 0:18:48.880 --> 0:18:51.040 they were getting flooded with a lot of questions but 0:18:51.200 --> 0:18:53.960 what they were entitled to and especially when people were 0:18:54.040 --> 0:18:57.520 in these kind of difficult situations. And what they said 0:18:57.600 --> 0:18:59.600 is they said they were offering advice so that hopefully 0:18:59.640 --> 0:19:03.200 wouldn't come to a lawsuits and more, you know, talking 0:19:03.200 --> 0:19:06.200 through with the employer or the new standards that they're 0:19:06.240 --> 0:19:09.720 required to follow, and so hopefully it could be resolved 0:19:09.720 --> 0:19:11.760 that way. There might be one reason for the relatively 0:19:11.760 --> 0:19:15.880 low number of lawsuits if employers and workers can kind 0:19:15.880 --> 0:19:19.440 of work together on this to bring litigation. Aaron management 0:19:19.440 --> 0:19:23.040 attorneys are expecting a spike in cases in the fall. 0:19:23.600 --> 0:19:25.960 Is that because more workers are likely to become more 0:19:26.000 --> 0:19:30.159 familiar with the law. I did have some management attorneys 0:19:30.240 --> 0:19:34.600 who raise that concern that maybe there would be more 0:19:34.880 --> 0:19:40.360 awareness of the law in coming months. UM the law 0:19:40.440 --> 0:19:44.200 expires in December thirty one, so it would it would 0:19:44.200 --> 0:19:46.760 only see a matter of the next few months. But 0:19:47.720 --> 0:19:53.040 there what's happening now is there are schools reopening, there 0:19:53.040 --> 0:19:58.160 are more businesses reopening, and that could both trigger more 0:19:58.720 --> 0:20:03.160 COVID symptoms from hope experts say, or how health concerns, 0:20:03.160 --> 0:20:06.280 but also just the need for leave, you know, balance 0:20:06.359 --> 0:20:10.240 with parents or caregivers, balancing a lot of UM new 0:20:10.280 --> 0:20:14.320 demands and as the country kind of steps into the pandemic. 0:20:14.320 --> 0:20:16.480 I think at the beginning there was a lot of 0:20:16.560 --> 0:20:20.480 uncertainty and chaos and everybody was scrambling. But now they're 0:20:20.520 --> 0:20:24.280 trying to set into a new all the very different 0:20:24.359 --> 0:20:28.360 normal in the business community. So there is a suggestion 0:20:28.359 --> 0:20:31.199 that there could be a spike for various reasons. It 0:20:31.240 --> 0:20:34.320 could be that more workers become aware of it, but 0:20:34.720 --> 0:20:38.440 there really isn't strong evidence that that's the case necessarily 0:20:38.440 --> 0:20:42.080 at this point. What kinds of companies or what companies 0:20:42.240 --> 0:20:46.520 are being sued, well, there are some limits again to 0:20:46.720 --> 0:20:52.040 that because there shouldn't be there aren't UM. An employer 0:20:52.080 --> 0:20:54.760 with more than five workers is exempt from the law, 0:20:55.400 --> 0:20:59.240 and there are also some UM exemptions for workers of 0:20:59.320 --> 0:21:02.320 fifty or less us and some of the big names 0:21:02.320 --> 0:21:05.640 that we saw, and they they were Kroger and Eastern 0:21:05.680 --> 0:21:10.119 Airlines and Holiday in which people may may recognize. But 0:21:10.320 --> 0:21:14.080 they were mostly companies that you might not have heard 0:21:14.080 --> 0:21:18.800 of necessarily, like uh, lawn hare companies or cleaning companies 0:21:18.840 --> 0:21:22.080 that can you work under some kind of um name UM. 0:21:23.119 --> 0:21:26.879 So it wasn't necessarily things that you've heard of, you know, 0:21:26.880 --> 0:21:29.640 they might be kind of like this medium sized business 0:21:29.680 --> 0:21:32.320 that falls into that area. What are the states that 0:21:32.359 --> 0:21:36.960 have the most claims against employers? Florida far and away, 0:21:37.080 --> 0:21:42.160 I'll stripped the other states. It had the most cases. Uh, 0:21:42.400 --> 0:21:47.000 Michigan and Pennsylvania probably had the they were kind of following. 0:21:47.680 --> 0:21:50.159 It was scattered around the country other than that, but 0:21:50.240 --> 0:21:53.639 Florida definitely stood out is the main states, so it 0:21:53.680 --> 0:21:57.720 saw these kind of claims. There's so much empathy or 0:21:57.760 --> 0:22:01.680 expressed empathy for healthcare worker is is there any kind 0:22:01.720 --> 0:22:05.879 of legislation being proposed to cover health care workers in 0:22:05.920 --> 0:22:08.840 the same way that they cover other workers. It just 0:22:08.880 --> 0:22:13.680 seems unfair to be excluding them. I'm not sure how 0:22:13.760 --> 0:22:18.120 what lawmakers are thinking as far as any aspect of 0:22:18.240 --> 0:22:20.919 this legislation, whether or not it will be renewed moving 0:22:20.960 --> 0:22:23.520 forward UM, and whether or not they'll tweak it with 0:22:24.160 --> 0:22:26.800 maybe more clarification on what the health care worker exemption 0:22:26.960 --> 0:22:30.760 is or what they were intending to do UM. I 0:22:30.840 --> 0:22:34.200 have not personally heard of any proposal to UM provide 0:22:34.200 --> 0:22:38.439 something like this specifically for the entire health care industry though. However, so, 0:22:38.640 --> 0:22:42.359 what is the best guidance that attorneys are giving to 0:22:42.600 --> 0:22:47.560 employers that fall under the law. As usual with advice 0:22:47.600 --> 0:22:51.680 from attorneys, they always advise making sure that they are 0:22:51.760 --> 0:22:55.720 aware of what the law requires them, like they need 0:22:55.760 --> 0:22:59.000 to notify their workers of their new leave rights. And 0:22:59.040 --> 0:23:02.720 they also recommend collecting documentation when these requests are made, 0:23:03.080 --> 0:23:06.600 providing notice of their decision about granting or rejecting leaves. 0:23:06.680 --> 0:23:09.879 Those things are important in the litigation process, even if 0:23:09.880 --> 0:23:13.680 they seem kind of procedural at an early stage. But 0:23:13.680 --> 0:23:16.239 but I think this is an important point to a 0:23:16.240 --> 0:23:19.040 lot of these lawyers that I talked to said, keeping 0:23:19.119 --> 0:23:23.320 flexibility in mind in these difficult situations is really important 0:23:23.760 --> 0:23:28.199 as a company outside of their legal and you know, 0:23:28.400 --> 0:23:31.440 making taking flexibility to account and they're balancing these decisions 0:23:31.440 --> 0:23:34.760 for their business and for their workers needs. When you 0:23:34.800 --> 0:23:38.680 talk to people, what do they see as the biggest 0:23:39.280 --> 0:23:42.880 challenge coming up as kids return to school, as more 0:23:42.960 --> 0:23:48.159 businesses reopen. Is there an area or a type of 0:23:48.160 --> 0:23:51.480 of worker that they see more at risk of termination. 0:23:52.080 --> 0:23:54.719 I think the biggest fear would not be necessarily a 0:23:54.760 --> 0:24:00.040 type of worker, but maybe just a parent kind of 0:24:00.240 --> 0:24:02.560 having to balance a lot of difficult situations and maybe 0:24:02.560 --> 0:24:05.920 being treated differently than other workers in general, and not 0:24:06.200 --> 0:24:09.560 you know, really getting to leave that they they're entitled 0:24:09.560 --> 0:24:13.320 to under this law. Um. I think that would probably 0:24:13.359 --> 0:24:16.480 be what I heard the most of. Otherwise, I think 0:24:16.920 --> 0:24:21.320 there isn't necessarily a particular industry that this would be affecting. 0:24:22.000 --> 0:24:26.639 I think early in the pandemic months, there were probably 0:24:26.680 --> 0:24:28.520 would be more of the workers that were going back, 0:24:28.560 --> 0:24:31.600 like in manufacturing and more essential workers. And now that 0:24:31.600 --> 0:24:34.280 more businesses are opening up, I think there is some 0:24:34.320 --> 0:24:37.919 potential for more workers to be affected, maybe run office 0:24:37.960 --> 0:24:41.119 workers who were once table working and people like that 0:24:41.160 --> 0:24:44.760 in like a cross industries. Honestly, what stage are these 0:24:44.840 --> 0:24:48.440 lawsuits at? Are Are they mostly at the complaint phase 0:24:48.440 --> 0:24:51.960