Today, public sector employers are presented with new legal issues as they deal with the global pandemic resulting from COVID-19. As employees start returning to work throughout the country, numerous questions of legality arise including whether an employer may institute a policy requiring their employees to wear a protective face mask at the workplace. Private sector employees tend not to have the same protection under the First Amendment enjoyed by public sector employees, nevertheless, many of the issues covered below may also apply to private employers.
Simply stated, the relevant questions would be: May an employer discipline an employee for refusing to wear a mask? Could an employee’s refusal to wear a mask qualify as protected speech under the First Amendment? May an employee wear a mask with a political or public service message and what must an employer evaluate in such a situation? Each one of the foregoing scenarios presents a case-by-case assessment, but ultimately, the line that employers must define is between safety and protected activity.
As to public sector employees, it is well-established that an employee “… does not forgo his or her right to freedom of speech simply by accepting public employment.” Werkheiser v. Pocono Twp., 210 F. Supp. 3d 633, 636-637 (2016) (quoting Beilan v. Board of Public Ed., School Dist. of Philadelphia, 357 U.S. 399, 78 S. Ct. 1317, 2 L. Ed. 2d 1414 (1958)). Furthermore, “… a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.” Connick v. Myers, 461 U.S. 138, 142, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983).
Speech need not necessarily be verbal, but “… extends to many activities that are by their very nature non-verbal: an artist’s canvas, a musician’s instrumental composition, and a protester’s silent picket … are all examples of protected, non-verbal “speech.” See Steadman v. Texas Rangers, 179 F.3d 360, 367, 1999 U.S. App. LEXIS 14972, *16-17, 15 I.E.R. Cas. (BNA) 404. When assessing whether non-verbal conduct is “expressive conduct,” and therefore speech protected by the First Amendment, the Courts will employ a “two-part test” as follows: (1) the actor must intend to convey a particularized message, and (2) there must be great likelihood that the message could be understood by those who observe the conduct.” Goodman v. Los Lunas, 2005 U.S. Dist. LEXIS 59016, *11-12 (D.N.M., 2005); Bivens By and Through Green v. Albuquerque Public Schools, 899 F.Supp. 556, 561 (D.N.M., 1995) (concluding that Plaintiff failed to meet burden of showing that wearing of sagging pants is constitutionally protected speech under the First Amendment). Applying this two-part test, non-verbal conduct such as the refusal to wear a mask or wearing a mask with a political statement will likely be considered speech as established by our Courts. However, this assessment will be made on a case-by-case basis and must be measured against whether an employer has a legitimate right to infringe upon the protected speech.
This balancing occurs within the “Pickering” test established in Pickering v. Board of Ed. of Township High School Dist. 205, 391 U.S. 563 (1968) and modified by Garcetti v. Ceballos, 547 U.S. 410 (2006). Within this modified Pickering test, courts first determine whether the speech was made pursuant to the employee’s official job duties. If the speech was made in relation to the employee’s job duties, then the First Amendment claim fails. If the speech was not made pursuant to official job duties, the court then continues in applying the Pickering test. Under the Garcetti test, a government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations. Therefore, “[a]n employer may not interfere with an employee’s First Amendment rights unless there is evidence that the employee’s actions have actually disrupted the workplace or are reasonably likely to do so in the future.” Nichols v. Dancer, 657 F.3d 929, 931 (9th Cir. 2011).
Through this framework, although there is no found case-law directly on point, we believe it likely that a public-sector employer may discipline an employee for refusing to wear a mask while employed because of the potential to affect the safety of the entity’s operations. What if, however, an employee agrees to wear a mask but does so with a political message or one that makes a statement based about a protected class, such as race, age, sex, gender, national origin or similar? For public sector employees, such comments are likely to meet the elements of a “mater of public concern,” which is defined as “… a subject of legitimate news interest, that is, a subject of general interest and of value and concern to the public at the time of publication.” City of San Diego v. Roe, 543 U.S. 77, 83-84 (2004). Such speech would likely qualify as a public concern and government action against an employee wearing a mask with a political or public concerning message or statement and subject the employer’s action to stricter scrutiny. As a comparable example, in Godwin v. Rogue Valley Youth Corr. Facility, 656 Fed. App’x 874 (9th Cir. 2016), it was found that an employee’s wearing of a motorcycle club insignia and associating with members of this club was determined to be protected speech under the First Amendment as (1) it related to a matter of public concern, (2) it did not interfere with his job duties, (3) Plaintiff had been affiliated with the motorcycle club for 14-years, (4) Plaintiff was an exemplary employee, and (5) the employer’s fears for future disruption were speculative as Plaintiff offered not to wear the motorcycle club colors or attend meetings in the future.
While private sector employees may not enjoy First Amendment protections, a similar analysis should be undertaken if an employee wears a mask with a political or public interest message. If the mask contains language or symbolism which would tend to make a statement about a protected class, the employer should ensure that any action it takes as to that employee has a legitimate business-related reason that is consistent with policy and is documented contemporaneously with the decision. For example, if an employee wears a mask with an opinionated statement or insignia, the employer should be able to demonstrate actual or substantial likelihood of interruption to business operations in order to issue a directive to the employee to use a different mask or cover up the statement on the mask. See Cloutier vs. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004) (where employer was not required to grant an employee a complete waiver to wear body jewelry because it would cause an undue hardship on the employer’s desire for customer-facing employees to have a clean cut image). Such actions should be balanced using a reasonableness standard and should be evaluated along an already existing uniform or “dress code” policy.
While the preceding analysis is based on existing law and courts have not yet had an opportunity to evaluate such cases ultimately, we believe the choice of wearing a mask could be considered protected activity and an employer’s decision to take discipline actions against an employee for refusing to wear a mask or wearing a mask with a message intended to interrupt business operations should be buttressed by a legitimate, business related reason supported by an already existing policy and that reason should be contemporaneously documented in real-time.
UPDATES TO INTERPRETATIONS OF FFCRA
On March 28, 2020, the U.S. Department of Labor published a series of questions and answers on its website, providing additional guidance for interpretation of the Families First Coronavirus Response Act (FFCRA). The Q&A section can be accessed in its entirety here, and we recommend a review of all questions and answers.
Notably, the Department is taking a restrictive approach to eligibility for emergency paid sick leave and emergency family leave in light of the various shelter-in-place and shutdown of non-life sustaining businesses issued by Governor Wolf in Pennsylvania, Governor Murphy in New Jersey, and other similar orders in other states. According to the newly issued guidance, if the employer is not open for business due to the aforementioned orders and/or business conditions arising from the COVID-19 pandemic, an employee is not eligible for FFCRA leave, but may be eligible for unemployment compensation. This approach applies to any worksite closing, either permanent or temporary, and notwithstanding the date of closure, as well as employees working reduced hours, and furloughed employees.
Accordingly, if your company has closed or suspended operations to comply with the government order, then there is no legal requirement to offer employees either of the two types of leave created by the FFCRA.
AMENDMENT TO THE PENNSYLVANIA UNEMPLOYMENT COMPENSATION LAW
On March 27, 2020, Governor Tom Wolf signed into law an amendment to the Pennsylvania Unemployment Compensation law which requires employers to notify employees of their potential eligibility to obtain unemployment compensation upon any type of separation, including layoff, termination, and otherwise.
While neither the Office of Unemployment Compensation nor Department of Labor has put out a model notice, the law goes into effect immediately and requires employers provide, at minimum, the following information: (1) availability of unemployment compensation benefits to workers who are unemployed and who meet the requirements of this act; (2) ability of an employee to file an unemployment compensation claim in the first week that employment stops or work hours are reduced; (3) availability of assistance or information about an unemployment compensation claim on the Department’s website or toll-free number (1-888-255-4728); and (4) that the employee will need to provide his/her full legal name, social security number, and, if not a legal resident of the United States, proof of legal authorization to work in the United States.
The good news for employers is that this new legislation also provides employers relief from unemployment compensation charges if the termination, layoff, or furlough was related to the COVID-19 outbreak.
Margolis Edelstein continues to monitor legal changes related to the COVID-19 outbreak, and we are always available to answer any questions you may have regarding the effects of this global pandemic.
FAMILIES FIRST CORONAVIRUS RESPONSE ACT
On March 18, 2020, President Donald J. Trump signed into law H.R. 6201, the “Families First Coronavirus Response Act” (“FFC Act”) which, among other things, temporarily expanded the Family Medical Leave Act of 1993 (“FMLA”) to include paid leave in certain scenarios, and further created emergency paid leave to certain employees who cannot work due to circumstances from the COVID-19 pandemic. The full text of the FFC Act can be found here: https://www.congress.gov/116/bills/hr6201/BILLS-116hr6201enr.pdf. The FFC Act will become effective April 2, 2020 and expire December 31, 2020.
EMERGENCY FMLA LEAVE (“EFMLA”)
EFMLA is a temporary expansion of FMLA job-protected leave that provides paid leave to a limited category of employees. Unlike the FMLA, which requires that employees are employed by their employer for 12 calendar months before they become eligible for FMLA’s protections, employees may be eligible for EFMLA after working for at least 30 calendar days. The law makes no distinction between full-time and part-time employees, and does not specify that the employee meet any hours of service requirement before becoming eligible.
Similarly, the EFMLA applies to a broader category of employers than FMLA. As the legislation currently stands, the EFMLA applies to employers with fewer than 500 employees. However, the EFMLA authorizes the Secretary of Labor to issue regulations to exclude certain health care providers and emergency responders from the definition of eligible employee under Section 110(a)(1)(A), and to exempt small businesses with fewer than 50 employees from the requirements of Section 102(a)(1)(F) when the imposition of that section’s requirements would jeopardize the viability of the business as a going concern. What those regulations will provide remains to be seen. The EFMLA further eliminates the FMLA’s requirement that covered employers employ 50 or more ‘employees within a 75-mile radius.
Unlike the FMLA’s leave entitlement based on, among other things, a serious health condition, the EFMLA applies only to those employees who are “unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.” Notably, prior versions of the bill which were ultimately removed would have extended FMLA’s protections to health conditions related to the COVID-19 pandemic.
Under the EFMLA, an employee with a “qualified need” is eligible for up to twelve (12) weeks of job-protected leave, the first 10 days of which can be unpaid, and the remaining leave paid by the employer at an amount “not less than two-thirds of an employee’s regular rate of pay.” Importantly, EFMLA caps the paid benefit at $200 per day or $10,000 in the aggregate for any one employee. Moreover, employees are allowed to substitute accrued paid leave (sick or otherwise) for the first ten days which are to be unpaid.
The present law is silent as to how an employee requests EFMLA, but as this is an amendment to the FMLA, we recommend that employers adhere to the notice and recordkeeping requirements established under FMLA.
EMERGENCY PAID SICK LEAVE ACT (“EPSLA”)
The EPSLA provides that an employer shall provide to each employee paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:
(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19;
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID– 19;
(3) The employee is experiencing symptoms of COVID– 19 and seeking a medical diagnosis;
(4) The employee is caring for an individual subject to a local quarantine or isolation order as described above, or has been advised to self-quarantine due to concerns related to COVID-19;
(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions; or
(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and Secretary of Labor
We currently interpret the “catch-all” language of subparagraph (6) to indicate Congress’s intent that the law be applied broadly to any employee who cannot work because of a condition related to or caused by the COVID-19 pandemic.
Full-time employees are entitled to 80 hours of paid sick time at the employee’s normal hourly rate, capped at $511 per day or $5,110 in the aggregate per employee, if used for reasons 1-3 above, in other words, leave for the employee’s own needs. Leave is paid at two-thirds the employee’s rate if used for reasons 4-6 above and capped at $200 per day up to $2,000 total. Part-time employees are paid “a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.” Unlike the EFMLA, paid sick leave is available to all employees, even if they have not yet worked for the employer for 30 days.
It is immaterial that an employer already provides a paid leave entitlement, or that its employees already have paid leave at their disposal for use prior to using EPSLA leave. The law suggests that this leave must be offered in addition to any already accrued paid leave, and specifically prohibits an employer from requiring an employee to exhaust any accrued sick leave before using EPSLA leave.
The EPSLA provides that eligibility for this leave ceases beginning with the employee’s next scheduled workshift immediately following the termination of the need for paid sick time. Furthermore, the EPSLA specifically provides that unused sick time does not carry over from one year to the next. There is no provision within EPSLA which would require the employer to pay out accrued, unused EPSLA time upon separation of employment, for any reason.
The EPSLA is silent as to the procedure for an employee to request EPSLA leave, and to the mechanics of an employer’s tracking of EPSLA leave. However, the EPSLA mandates that the Secretary of Labor must, no later than March 26, 2020, “make publicly available a model of a notice” that specifies an employer’s obligations under this law. An employer will be required to post the model poster or its equivalent within seven days of the posting of that model notice. We believe that the model notice will provide further guidance as to the procedures for employees to request EPSLA leave, as well as the employer’s recordkeeping obligations.
The attorneys at Margolis Edelstein are ready and available to answer any questions that you may have when responding to employment concerns arising from the COVID-19 pandemic and any specific questions or for general guidance about how this new law may impact your business. We welcome your further inquiries.
Coronavirus disease, also known as COVID-19, is a global concern that is raising numerous legal issues new to many employers. Businesses are being impacted in various ways, including employees who are exposed or get sick themselves, or decreases in demand that can necessitate a decrease in workforce. Margolis Edelstein has already begun assisting employers who are working to develop appropriate and available responses to these concerns and others related to Coronavirus and provided below is some general advice to consider.
At this time, there is no legal obligation to shut down operations or your physical location. Employee requests to work remotely or be absent out of generalized fear of catching the virus need not be granted unless that employee has an underlying health condition that could leave him/her more susceptible to serious conditions from the virus. In that scenario employers should handle the request to stay home as a request for reasonable accommodation, utilizing and engaging in the interactive process as required by the Americans with Disabilities Act (“ADA”) and the Pennsylvania Human Relations Act (“PHRA”).
Circumstances may change if an employee discloses that he or she has been diagnosed with coronavirus, or if the individual has been in contact with someone who has been diagnosed. The Occupational Health and Safety Administration (“OSHA”) does have a general duty clause which requires employers to take active steps upon known exposure of a communicable disease to protect its workforce. However, as of this writing, neither Pennsylvania nor OSHA has put forward a State Plan as to how private industry employers should respond in such a situation.
Until the appropriate State Plans are enacted, at minimum, Margolis Edelstein has recommended that employers tell the employee to self-quarantine and not report to work for at least 14 days. Additionally, employees should be notified of the possible exposure, but the quarantined employee’s identity should remain anonymous in consideration of HIPAA regulations. The employer should also consider closing the workplace until a professional cleaning agency is able to sanitize the work area. In Pennsylvania, employees may be eligible for unemployment compensation upon a temporary furlough or reduction in work hours or salary, provided the employee meets all other conditions of eligibility for unemployment compensation.
This leads to the most common advice to all employers: in the preventive stages, employers should immediately post signage reminding everyone to take common sense steps to limit exposure. The signage should remind employees to regularly wash their hands, keep a reasonable distance from large groups, and to stay home and not report to work if feeling any signs of illness.
We welcome your further inquiries.
We are pleased to announce that Margolis Edelstein Partners Christopher Tinari, Michael Miller, Emily Mahler presented How to Evaluate and Assess Employment Claims at Erie Insurance Company’s Panel Seminar on August 12, 2019 in Pittsburgh, Pennsylvania. The presentation focused on EPL claim handling and the importance of trial and resolution strategies for EPL matters. For additional information please feel free to contact Chris at firstname.lastname@example.org
We are pleased to announce that Margolis Edelstein Partners Christopher Tinari, Michael Miller, Emily Mahler recently presented at Erie Insurance Company’s Panel Seminar in Pittsburgh, Pennsylvania. Chris, Mike and Emily presented on EPL claim handling and the importance of trial and resolution strategies for EPL matters. For additional information please feel free to contact Chris at email@example.com
Philadelphia partners Christopher Tinari and Michael Miller obtained summary judgment in an age discrimination suit filed in the Lehigh County Court of Common Pleas against a large company based in Chambersburg, Pennsylvania. Plaintiff alleged discrimination in her employment on the basis of her age, in violation of the Pennsylvania Human Relations Act. Plaintiff’s claim for damages included back pay, emotional distress damages, and attorneys’ fees and costs. Following representation through the administrative process, the filing of suit, and extensive and contentious discovery, summary judgment was granted in favor of our client and against Plaintiff, resulting in full dismissal of Plaintiff’s claims.
An employment relationship is like a marriage. Both husband and wife enter the arrangement with good intentions, and neither side really contemplates divorce on the wedding day. While many employers require employees to enter into restrictive covenants – “non-competes” – as a condition of new employment, much like a “wedding day”, neither employer nor employee seriously contemplate what obligations they will have to the other when they separate. Restrictive covenant enforcement is state and jurisdiction specific, and there is no “one size fits all” when determining whether an obligation will be enforceable. Each situation is evaluated on its own merits. Consider the following as a checklist of preliminary factors when evaluating your non-compete:
Beyond these universal points, there are numerous factors to be evaluated in determining whether a restrictive covenant is enforceable. Margolis Edelstein has litigated on behalf of employees and employers in restrictive covenant cases and can assist your evaluation of these and other factors.
Dwyer-Self vs. Prudential Insurance, et al. (U.S. District Court for the Eastern District of Pennsylvania) – Members of the Margolis Edelstein Labor and Employment Team, Christopher A. Tinari and Michael R. Miller, successfully obtained dismissal of all claims brought against their client, Waukesha Peace Industries, Inc. Group Long Term Disability Plan. Within the case, Plaintiff argued that our client violated its fiduciary duties and responsibilities provided by the Employee Retirement Income Security Act of 1974 (ERISA). We successfully argued, among other defenses, that the Plan does not owe any fiduciary duties independent from those already delegated to its administrator. On March 30, 2016, Judge Gerald A. McHugh agreed and dismissed our client from the action. This result saved the client an exponential amount of fees and costs, as dismissal was obtained via Fed. R. Civ. P. 12(b)(6) and before the client was forced to engage in discovery and trial.
Our annual firm retreat concluded this weekend and Margolis Edelstein takes great pride in recognizing our colleagues, Gerald Connor and Michael Miller, who have been elevated to partner.
Jerry is based in our Scranton office where he focuses upon defending a broad range of casualty matters including product manufacturers, construction companies, and miscellaneous professional liability engagements. As a trial lawyer, Jerry has appeared before many state courts, as well as in several Federal and appellate courts. He has earned the Martindale-Hubbell rating of AV, the highest level available.
Michael Miller, based in Philadelphia, focuses his practice in the area of professional liability engagements including employment, civil rights and the defense of educators, among others. Michael has represented employers in many labor related matters and was recognized by the American Bar Association and the Bloomberg BNA (ABA/BNA) as an award winner for Excellence in the Study of Labor and Employment Law. Michael has also earned the distinction of Rising Star by Super Lawyers and has been a part of our practice since being admitted to the Bar.
We are delighted to welcome these two fine lawyers into our partnership.