Sharon Cason-Adams Attorney At Law

01/14/2022

Vaccine Mandate News from the Supreme Court:

On Thursday January 14, 2022 the U.S. Supreme Court issued mixed rulings in a pair of cases challenging COVID-19 vaccine mandates, allowing the requirement for certain health care workers to go into effect while blocking enforcement of a mandate for businesses with 100 or more employees.

The Court ruled that OSHA lacked the authority to impose such a mandate on private businesses because the law that created OSHA "empowers the Secretary to set workplace safety standards, not broad public health measures."

"Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most," the Court ruled. "COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases."

For these reasons, the OSHA mandate "would significantly expand" the agency's authority beyond the limits Congress set, the Court ruled.

Private employers who wish to create their own vaccine mandate may still do so, but it won’t be enforced by OSHA.

Regarding health care workers, the Court ruled that the Health and Human Services did have the authority to require all health care workers at institutions that receive Medicare and Medicaid funding to get vaccinated, unless they get medical or religious exemptions. The Court stated "healthcare facilities that wish to participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare, not simply sound accounting."

Regarding the mandate imposed for employees of federal contractors…stay tuned.

01/04/2022

Is Covid a disability or not? It depends.

On December 14, 2021, the Equal Employment Opportunity Commission (the “EEOC”) updated its COVID-19 Technical Assistance Guidance to confirm that…

01/04/2022

Interesting developments on non-compete agreements!
Let's hope these changes come to fruition.

In July 2021, President Biden signed an Executive Order directed at promoting competition in the U.S. economy. As part of that overarching goal, the…

02/04/2021

Changes to Ohio’s Anti-Discrimination Law

In April 2021 Ohio’s primary anti-discrimination law will change in a way that could drastically affect your right to pursue a claim against your employer or former employer.

Ohio Revised Code §4112 prohibits employers from discriminating against employees (or candidates) because of the person’s race, color, religion, s*x, military status, national origin, disability, age, or ancestry. Employers may not discharge without just cause, refuse to hire, or otherwise discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.

Currently, the statute of limitations for pursuing a State law claim of discrimination or retaliation is six years (except for some age claims) and claims may be filed directly to court.

The new law shortens the statute to two (2) years. And, to pursue those claims, an employee must first file a charge with the Ohio Civil Rights Commission.

These changes are important, especially for employees who have been waiting to see if the workplace environment was going to change on its own or for those who have been biding their time, waiting until they quit or retire.

If you have been the victim of discrimination. or if you are working in a hostile work environment or have reported discrimination and are now suffering retaliation, you must act on those complaints.
Please call with questions or concerns: 614-221-3318.

11/23/2020

Free Speech in the Workplace?

You do not have to be a Constitutional scholar to know that one of the basic freedoms associated with being an American citizen is the First Amendment right of free speech. Most of us also know that the right of free speech comes with responsibility. For example, we know that a person can be arrested for inciting panic if they cause a stampeded by falsely yelling “FIRE” in a crowded movie theatre. In that case, the police will not be held liable for violating the individual’s right of free speech because the public interest outweighs the individual’s right.

But what about free speech in the workplace? Does your employer violate your right of free speech when it imposes a rule against talking about politics in the office? Or how about if you get fired for speaking out against that policy?

Can and employee sue their employer for infringing upon their right of free speech and/or retaliating against the employee for exercising their right to speak?

The answer to that question depends upon who the employer is. If you work for a privately owned company, then no. If you work for the government, then yes.

To pursue a claim for violation of your constitutional rights you need a government actor. The Bill of Rights is the first 10 Amendments to the Constitution. It spells out Americans’ rights in relation to their government. It guarantees civil rights and liberties to the individual-like freedom of speech, press, and religion.

So, if a municipal employee speaks out against the policy at a city council meeting and is fired, then yes, there is a possible First Amendment claim. However, if an employee of ABC widget factory complains about the policy at a shareholder’s meeting, that employee cannot sue for a violation of his right of free speech.

11/18/2020

The Ohio Fairness Act Needs Your Help!

The Ohio Legislature is currently considering the fate of a proposed law called "The Ohio Fairness Act." One of the purposes of the Act is to prohibit workplace discrimination against members of the LGBTQ community. The House Civil Justice Committee will hold its third hearing on the Act this Thursday, November 11th. This hearing will be an opportunity for those opposed to the bill to share their reasons why. This is a normal part of the legislative process.

If you support workplace equality for members of the LGBTQ community you can contact Speaker Bob Cupp and the Civil Justice Committee Chair and remind them that most Ohioans agree with you. Speaker Cupp may be reached at (614) 466-9624 or [email protected]. Chair Hambley may be reached at (614) 466-8140 or [email protected].

Opponents to LGBTQ equality plan to flood their office lines. Please help Speaker Cupp and Chair Hambley hear from supportive voters. Make sure they know that this is the economically smart thing to do for Ohio, as well as the right thing to do for Ohio.

You can send an email to the entire Civil Justice Committee in less than a minute here: https://equalityohio.org/our-work/legislation/email-hb369.

Please emphasize that adding these protections is good for business in Ohio.

The Ohio Fairness Act has now been introduced in both chambers of the Ohio Legislature and, for the first time ever, with bipartisan support in both chambers. In order for it to get out of the Ohio House Civil Justice Committee, it needs more hearings. This email will ask the members of the Committe...

10/13/2020

Did you know....Title IX of the Education Amendments of 1972 protects people from discrimination based on s*x in education programs or activities that receive Federal financial assistance. Title IX states that:
No person in the United States shall, on the basis of s*x, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

10/08/2020

What does it mean to be an “At-Will” Employee?

Likely, if you have read your employee handbook, you have seen something like the following language:

“Employment at XYZ Company is ‘at-will,’ meaning, you or the Company can choose to end the employment relationship at any time and for any reason or no reason at all.”

It seems like a simple concept, if you do not like your job, you can leave whenever you want. If the Company decides they are no longer happy with you, they can terminate you whenever they choose.

Employers often hide behind this policy and in my view, that is a mistake. An employee is called into HR and informed of their termination but given no explanation about why. The employer says, “you are an at-will employee, we don’t have to give you a reason.” While this is technically true, it leaves the employee wondering what the real motive is. Employers rarely fire someone for “no reason.”

When a terminated employee calls me, I ask a series of questions designed to uncover the true reason for termination, for example:

• Are you in a protected group because of your race, age, gender, s*xual orientation, disability, religion, national origin, military status?
• Have you used family medical leave, or have you had a work- related injury and have you detected that your employer was not happy about you missing work or filing a claim?
• Will you be replaced?
• Have you reported safety issues or filed a complaint with Human Resources?

You see, even “at-will” employees have some rights in the workplace, including:

• You have the right to work in an environment free from unlawful discrimination and harassment.
• You have the right to work in a safe work environment.
• If you are injured at work, you have the right to file a worker’s compensation claim.
• If you are eligible, you have the right to take family medical leave without negative repercussions and you must be restored to your former position (or a comparable one) when you return to work.
• You have the right to report unlawful behavior without retaliation.
• You have the right to form or join a union.
• You have the right to question your pay and to discuss how you are paid with your co-workers.

Please understand that having rights does not mean you will not be fired. It just means that if you are terminated for an unlawful reason, you may have a cause of action to pursue against your employer.

If asked to give advice to employers on this subject, I would say that no employee should ever be surprised by their termination. In other words, if an employer is dissatisfied with your performance, your attitude, or anything else, they should give you fair warning and an opportunity to correct whatever issues exist. Employers should be able to articulate their reasons when they terminate someone. If they cannot, they may be hiding the true motivation.

My advice to Employees is this: if you fall into a protected category or assert your rights, always document your issues. If, for example, you have a verbal conversation with your supervisor about harassment or a safety issue, follow-up with an email copied to your personal email account. If you are called into a disciplinary meeting or counseling session, the law in Ohio allows you to record the conversation without the other person’s permission OR ask that you be allowed to have a witness. When presented with discipline or a performance evaluation that you disagree with, it is o.k. to sign an acknowledgment of receipt, but you should also leave a written comment stating that you disagree. Be respectful. Listen more than you talk. And finally, do not hesitate to call our offices for advice: (614) 221-3318.

10/01/2020

Pop Quiz:

1) Can your employer give you an attendance point if you miss work for a doctor's appointment (and you provide a note)?

2) Can your employer offer you time off instead of paying you overtime pay for any hours worked over 40 (comp time)?

3) Can your employer force you to take family medical leave when you miss work due to a work-related injury?

09/23/2020

CAN MY EMPLOYER FORCE ME TO GET VACCINATED AGAINST COVID-19?

We keep hearing that a vaccine for COVID-19 will be available soon. Depending upon who you believe, a vaccine could be widely available in November 2020 or in the first half of 2021. Debate has already begun about whether citizens will trust the safety and efficacy of a new vaccine and whether people will volunteer to take it. We are assured by scientists and health officials that the vaccine will be fully vetted. Whether you believe that or not, one question you should be thinking about is:

What happens if my employer requires me to get the vaccination as a condition of employment?

Can they do that?

The simple answer is probably yes, unless you qualify for a religious or medical exemption.

Statutes dealing with vaccine requirements vary from state to state. For example, most states, including Ohio, require children to be vaccinated against certain communicable diseases to enter Kindergarten. In some states, including Ohio, childcare workers are required to have certain vaccinations. Healthcare facilities and nursing homes must offer patients vaccination against pneumonia and influenza.

Whether or not Ohio enacts a COVID-19 vaccine mandate or creates administrative rules regarding exemptions, some employers will no doubt require employees to take the vaccine as a condition of employment. Meaning, get it or get out.

Because Ohio is an at-will employment state, employers can make those rules. Employees certainly have the freedom to decline the vaccination, but the employer could terminate such an employee without legal ramifications.

However, certain exemptions may apply. If your employer has 15 or more employees, they are required to comply with Title VII of the Federal Civil Rights Act. Title VII prohibits religious discrimination. Employees with closely held religious beliefs may request an exemption if their religion prohibits vaccination. Also, the Americans with Disabilities Act may come into play. If an employee has a pre-existing medical condition and their physician agrees that they should not take the vaccine because of contraindications, then that employee may request that they be exempted as an accommodation for their disability. Ohio’s Fair Employment Practices law, which covers employers with four or more employees, has similar rules and prohibitions.

09/20/2020

RBG paved the way for female attorneys like me.
Because she, and others like her, were willing to bang their fists on glass ceilings, I am able to have a career in the practice of law.
RIP Ruth Bader Ginsburg

08/07/2020

CAN MY EMPLOYER FORCE ME TO TAKE A COVID-19 TEST?

I have received several calls recently from employees wanting to know whether their employer can force them to take a COVID-19 test.

My answer: probably yes.

The Americans with Disabilities Act (ADA) comes into play here. Under the ADA, mandatory medical tests of employees must be “job related and consistent with business necessity.” So, applying that standard during this pandemic, employers may take steps to ensure that employees entering the workplace do not have the virus because an infected employee would pose a direct threat to the health of others.

To be consistent with ADA standards, Employers should identify a testing facility that administers tests proven to be accurate and reliable.