Friday, April 24, 2020
An employer’s response to COVID-19 raises tricky questions at the intersection of federal discrimination law, worker safety laws, and tort law. The EEOC has published updated technical guidance related to COVID-19. The technical guidance covers medical exams and inquiries, confidentiality of records, request for accommodation, harassment and other issues.
Under the guidance related to medical exams and inquiries, employers may ask workers if they are experiencing any of the symptoms related to the virus. Employers may also take the temperature of employees to determine if they might have been infected with the virus. Information related to those inquiries is a confidential medical record. The EEOC also cautions that people who contract the virus may not have a fever and may be asymptomatic.
Employers may require a worker who has contracted the virus to refrain from coming to work and to obtain a medical clearance to return to work. However, the EEOC notes that employers should be flexible about the kinds of documents they require, given how busy medical providers are in certain areas.
Employers may also administer tests to determine if an employee has contracted the virus. The EEOC technical guidance states that a worker who contracts the virus can be a direct threat in the workplace and that employers may determine if the worker might be contagious. The EEOC cautions that current tests may result in both false negatives and false positives. It also notes that a person who tests negative for the virus may contract it later.
The new technical guidance is available here: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm
- Sandra Sperino
Monday, April 20, 2020
Katherine Stone has a piece in the April issue of The American Prospect magazine, called The Rise of Neo-Feudalism. Together with her co-author, Robert Kuttner, the article argues that "Western democracies are not simply embracing neoliberalism in the sense of deregulating the economy. Elites are pursuing something aptly described as a new form of feudalism, in which entire realms of public law, public property, due process, and citizen rights revert to unaccountable control by private business." Among other examples, the article discusses the proliferation and expansion of arbitration as private judicial systems that operate to eliminate hard-won worker rights.
In addition, Katherine Stone discussed the article, and the ramifications for worker rights, on NPR's show, Background Briefing. The segment is posted online here and here.
Wednesday, April 15, 2020
The Italian Labour Law E-Journal has published a special issue describing the global labor responses to covid-19. Here's a description:
This special issue of the Italian Labour Law e-Journal intends to provide a systematic and informative overview on the measures set out by lawmakers and/or social partners in a number of countries of the world to address the impact on the Covid-19 emergency on working conditions and business operations. The aim is to understand which labour law norms and institutions and which workplace arrangements are being deployed in the different legal systems to tackle the global health crisis. Another aim is to find whether and to what extent the established body of laws is proving able to cope with the problems raised by the current extraordinary situation or whether, on the contrary, new special regulations are being introduced. The national reports may be subject to updating in case of major changes.
Tuesday, April 14, 2020
It's official ... the COSELL web page is now live. The conference is being hosted at (hopefully, literally "at") Louisville, and Arianna Levinson writes:
Please register for the 15th Annual COSELL to be held at the University of Louisville Brandeis School of Law, Thursday- Saturday, October 8-10, 2020, at this event page http://louisville.edu/law/cosell2020. We look forward to seeing everyone in October!
This is by far my favorite academic conference (I've only missed one year) because it has a lot of interesting papers, at various stages, with incredibly helpful and supportive comments from all of my favorite labor and employment scholars. It's also a great place for more junior scholars to not only get feedback on their work, but meet others in the field. So if you've never been, now is the time to correct that mistake.
Friday, April 10, 2020
Regulating in Pandemic: Evaluating Economic and Financial Policy Responses to the Coronavirus Crisis
Having a hard time making sense of all of the economic measures that Congress is using to address the COVID-19 crisis? Then check out "Regulating in Pandemic: Evaluating Economic and Financial Policy Responses to the Coronavirus Crisis," by Hiba Hafiz, Shu-Yi Oei, Diane Ring, and Natalya Shnitser. The abstract:
The United States is currently trying to manage a fast-moving public health crisis due to the coronavirus outbreak (COVID-19). The economic and financial ramifications of the outbreak are serious. This Working Paper discusses these ramifications and identifies three interrelated but potentially conflicting policy priorities at stake in managing the economic and financial fallout of the COVID-19 crisis: (1) providing social insurance and a social safety net to individuals and families in need; (2) managing systemic economic and financial risk; and (3) encouraging critical spatial behaviors to help contain COVID-19 transmission. The confluence of these three policy considerations and the potential conflicts among them make the outbreak a significant and unique regulatory challenge for policymakers, and one for which the consequences of getting it wrong are dire.
This Working Paper — which will be continually updated to reflect current developments — will analyze the major legislative and other policy initiatives that are being proposed and enacted to manage the economic and financial aspects of the COVID-19 crisis by examining these initiatives through the lens of these three policy priorities. It starts by analyzing the provisions of H.R. 6201 (the “Families First Coronavirus Responses Act”) passed by the house on March 14, 2020, subject to subsequent Technical Corrections of March 16, 2020, and then passed by the Senate without amendment and signed by the President on March 18, 2020. Next, it analyzes the provisions of H.R. 748 (the “Coronavirus Aid, Relief, and Economic Security Act” or the “CARES” Act) enacted into law on March 27, 2020. By doing so, this Working Paper provides an analytical framework for evaluating these initiatives.
Monday, April 6, 2020
This morning, the Supreme Court issued its opinion in Babb v. Wilkie. The Court held that a plaintiff proceeding on a federal sector ADEA claim is not required to prove "but for" cause. If age was any part of the process, the government has violated the ADEA. However, remedies may be limited in cases where age was part of the process, but did not have a significant causal role in an employment outcome.
Wednesday, April 1, 2020
In Comcast v. National Association of African-American Owned Media the Supreme Court held that a plaintiff is required to establish “but for” cause to prevail on a claim under 42 U.S.C. § 1981. After Comcast, it is unclear if lower courts will be able to apply a “motivating factor” standard in cases where tort law would not apply “but for” cause. In Comcast, the Court claims to be applying tort causation to discrimination law.
While it is correct that “but for” cause is often the starting point for causation doctrine in a torts case, “but for” cause is not a stand-alone concept in tort law. Instead, it is part of a larger bundle of causal standards, that together form the common law notion of factual cause. It is not clear whether the Court in Comcast intends to apply tort law (which would allow for various causal standards) or whether it intends to impose a truncated version of tort law on the discrimination statutes.
The common law does not use “but for” cause alone, because doing so creates results that are unfair and that, in some cases, do not make sense. For example, tort law sometimes allows a partial burden shift to the defendant on causation issues and sometimes changes the substantive standard when “but for” cause produces strange results. Applying “but for” cause without the rest of the bundle is not consistent with the common law. Doing so places a higher factual cause standard on a plaintiff seeking a remedy under a federal civil rights statute than the common law would require.
In other cases, the Supreme Court described factual cause more completely. It stated:
[T]he availability of alternative causal standards where circumstances warrant is, no less than the but-for test itself as a default, part of the background legal tradition against which Congress has legislated. It would be unacceptable to adopt a causal standard so strict that it would undermine congressional intent where neither the plain text of the statute nor legal tradition demands such an approach.
Paroline v. United States, 572 U.S. 434, 458 (2014) (internal citation omitted). It is not clear whether the Court will allow plaintiffs in particular cases to argue that the default “but for” standard is not appropriate given the particular facts of the case.