Tag Archive for: COVID-19

NPR Details Struggle Workers Face as a Result of Long COVID

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We have discussed Long COVID here before. In an important article, NPR discussed the latest updates on Long COVID and its impact on workers. The article also discusses disability laws, such as the Americans with Disabilities Act (ADA) and Minnesota Human Rights Act (MHRA), and how they interact with employees experiencing Long COVID.

Long COVID is an increasingly important issue facing Americans and employees. Check out the article and contact us if you have questions about Long COVID, employment law or disability law.

Phillip Kitzer and Brian Rochel Present at Prestigious National Conference for Workers’ Rights

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The National Employment Lawyers Association (NELA) held its Annual Convention in San Francisco, California from June 30 through July 3, 2022. NELA is the largest organization of lawyers who represent workers in the United States and is focused exclusively on advancing employee rights and making the workplace better for all Americans.

The Annual Convention is the largest meeting of NELA members each year. The Annual Convention provides several days of intensive, high-quality continuing legal education (CLE) training for employment lawyers. Both Phillip Kitzer and Brian Rochel were invited to speak at the Convention—an honor that very few members are given.

Brian presented on a panel entitled “Staying Organized in Litigation.” The panel provided detailed tools and strategies for plaintiff’s advocates to use in their practices to increase organization and litigation skills.

Phillip presented on a panel entitled “COVID-19 Claims for Workers.” The panel provided in-depth updates on the state of employment law as it relates to the COVID-19 pandemic. The panelists covered the rapidly evolving area and discussed the latest laws, statutes and case developments.

Phillip and Brian regularly speak on employment law topics and present around the country. If you have questions about employment law please do not hesitate to contact us.

Is Long Haul COVID-19 a Disability under the Law?

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After dealing with COVID-19 for over two years, many people who have dealt with the novel coronavirus are also dealing with longer term symptoms and they are not going away easily. This is known as “Long Haul COVID-19.” Long Haul COVID-19 is becoming more common and impacting the lives of many people. It causes many problems that medical professionals and scientists are still working to understand.

For example, Long Haul COVID-19 can lead to cognitive difficulties and make it difficult for employees to complete their work responsibilities in the same manner they could before becoming infected.

This raises the question: is Long Haul COVID-19 considered an “actual” disability under the Americans with Disabilities Act (ADA)?

According to the U.S. Department of Health Human Services, Long Haul COVID-19 can be a disability under the ADA if it substantially limits one or more major life activities. This includes any physical or mental impairment caused by Long Haul COVID-19, so long as it substantially limits a major life activity. The law is very similar under the Minnesota Human Rights Act (MHRA). The MHRA is Minnesota’s law protecting workers who are disabled, which may include Long Haul COVID-19.

The symptoms of Long Haul COVID-19 vary widely and can be different for everyone. Symptoms can last anywhere between weeks to months or even longer. Every case of Long Haul COVID-19 is different. Therefore, an assessment must be made on a case-by-case basis to determine whether a person’s case of Long Haul COVID-19 substantially limits a major life activity.

If an employee has Long Haul COVID-19 that substantially limits one or more major life activities, that employee is entitled to the same protections from discrimination as any person with a disability under the ADA or MHRA.

This also requires employers make reasonable accommodation for employees who have Long Haul COVID-19, so long as it substantially or materially limits a major life activity.

An employer’s requirement to make such accommodations is based on many factors, for example, the size of the employer and the job duties the employee is responsible for based on their job role. Thus, it is important to seek legal advice if you have questions about your specific situation.

If you feel you have experienced discrimination and/or retaliation at work, based on Long Haul COVID-19  symptoms, our attorneys at Kitzer Rochel, PLLP are here to help. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower issues in the workplace. Contact us today for a case evaluation.

 

The Supreme Court Weighs in on COVID-19 Vaccines: What It Means for Employees

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What is the vaccine mandate?  

  • In September 2021, President Biden issued an executive order requiring federal employees and contractors to be fully vaccinated against COVID-19 (the Coronavirus).  
  • In November 2021, President Biden issued two additional executive orders regarding the COVID-19 pandemic and vaccine mandates that are were reviewed by the Supreme Court.  
    • The first requires employers with 100+ employees to mandate vaccines (or weekly testing for those who do not want to be vaccinated).  
    • The second requires that healthcare facilities which receive federal funding implement a similar vaccine policy.  
  • In January 2022, the Supreme Court struck down the first of the November 2021 rules. It held that it is unconstitutional to require employers to mandate vaccines and weekly testing.  

So, what does all of this mean for me? 

  • If you are a federal employee, you must be fully vaccinated. 
  • If you are employed by a healthcare facility that receives funds through Medicare or Medicaid, you must be fully vaccinated or undergo weekly testing for COVID-19. 

Can my employer mandate vaccines, testing, and masks if it chooses?  

  • Yes. The Supreme Court did not ban employers from choosing to require that employees be vaccinated or undergo testing. It only prevented the government from mandating that employers implement this policy.  
  • However, if your employer is a healthcare facility that receives federal funding (through Medicaid or Medicare), then it is still required to mandate vaccines and weekly testing.  

My employer is a healthcare facility that receives federal funding and I think it is violating the vaccine mandate. Can I be punished for filing a complaint? 

  • No. Many statutes prohibit employers from retaliating against employees who report legal violations or participate in investigations of alleged violations.  
  • Employees can and should report violations of workplace safety laws, including federal and state OSHA regulations related to COVID-19.  

 

Does My Employer Have to Accommodate My Long-Haul COVID Symptoms?

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COVID-19 has presented many questions for employers and employees. One set of questions surrounds “long COVID,” or “long-haul COVID.”

President Biden announced that the long-term effects of COVID-19 infection can in fact be considered a disability under the Americans with Disabilities Act (ADA). This likely would apply under Minnesota’s Human Rights Act (MHRA) as well.

This means that employees who were infected with COVID-19 and still suffer from symptoms such as respiratory problems, brain fog, chronic pain, and fatigue that rise to the level of a disability are protected under federal law. Such symptoms rise to the level of a disability if they substantially limit a major life activity such as work. Employees with a disability are entitled to reasonable accommodations in the workplace.

If you have questions about ADA accommodations, or if your employer is refusing to provide accommodations or discriminating against you because of a disability, contact us. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.

Can My Employer Fire Me for Reporting Violations of Law?

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The Minnesota Whistleblower Act (MWA) protects employees who report illegal activity, or “blow the whistle,” at work. The MWA prohibits employers from discharging, disciplining, threatening, discriminating against, or penalizing an employee in relation to compensation or the terms, conditions, location, or privileges of employment because an employee reported illegal activity.[1]

You are protected under the MWA if you make a good faith report of a violation, suspected violation, or planned violation of any state or federal law, common law, or rule.[2] These categories are very broad and protect a wide range of conduct. You are protected whether you make this report to your employer or any governmental body or law enforcement official.[3] In addition and separately, you have the same protections if a public body or office requests that you participate in an investigation, hearing, or inquiry.[4]

Whistleblower protections include, for example, reporting violations relating to COVID-19, state or federal workplace safety rules, criminal violations, securities laws, and virtually any other type of legal rule, law or regulation.

If you have questions about whistleblower rights contact us. Or if believe that your employer has terminated your employment or treated you unfairly after you reported illegal activity, contact us. Our experienced Minnesota employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.

 

[1] Minn. Stat. § 181.932, subd. 1(3).

[2] Minn. Stat. § 181.932, subd. 1(1).

[3] Minn. Stat. § 181.932, subd. 1(1).

[4] Minn. Stat. § 181.932, subd. 1(2).

President Biden’s New Vaccine Mandate—What It Means for Employees

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On Thursday, September 9, 2021, President Biden issued an executive order with new vaccine mandates covering millions of employees. Here are several ways the new regulations impact employees.

Who Is Covered?

  • All federal employees;
  • All federal contractors;
  • All employees of employers who employee 100 or more employees;
  • Nearly all employees who are healthcare workers at health facilities (only those that receive Medicare or Medicaid);
  • Many teachers (those working in Head Start and in schools run by the Department of Defense and the Bureau of Indian Affairs).

Some estimates are that this will impact more than 80 million workers in the U.S. and at least 1.4 million workers in Minnesota.

What Is Required?

  • Covered employees will be required to receive a COVID-19 vaccine, or else be tested at least once per week.
  • Is it not clear when exactly all the mandates all go into effect. However, Minnesota OSHA has 30 days from September 9 to issue rules that will go into effect for Minnesota workers.
  • Federal employees have 75 days to be vaccinated.

What If My Employer Does Not Require Vaccination?

  • Covered employers are required to follow the federal mandates as well as related state regulations, such as those imposed by Minnesota OSHA. Any employer that fails to do so violates the law.
  • Employees can and should report violations of workplace safety laws, including OSHA and Minnesota OSHA regulations. Employers cannot retaliate against employees who report violations of law, including COVID-19 safety regulations.

What If I Choose Not to Get Vaccinated or Be Tested?

  • This is a common—and hotly debated—question. While there are several exceptions, generally, employers are legally allowed to terminate employees who choose to not be vaccinated.
  • The exceptions to vaccine mandate include on the basis of disability and for those seeking religious exceptions. The EEOC is a great resource for the details of those exemptions. However, it is important to highlight that the standards for seeking a medical or religious exemption are high.

Brian Rochel to Present on COVID-19 Employment Law Issues

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On October 22, 2020, Brian Rochel will present “Employment Trends from the COVID-19 Battlefield,” along with Teresa Thompson of Fredrikson & Byron. Brian and Teresa will share their views as an employee-side lawyer and employer-side lawyer, respectively, on recent and upcoming topics related to COVID-19.

Click here to learn more and to register for the Webinar.

Brian Rochel Interviewed Regarding COVID-19 and Employment Law

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On July 6, 2020, TKKR partner Brian Rochel was featured in an interview by Minnesota Public Radio about current legal protections employees have in the context of the COVID-19 pandemic. You can read the article here.

Brian discussed the real fear many employees have that if they raise concerns related to COVID-19, they will be retaliated against, by being fired and forced to search for employment during the current difficult economic time. He also discussed how the legal protections related to COVID-19 are uncharted territory for Minnesota courts and the importance of discussing any potential issues with an employment lawyer.

Under Minnesota Governor Tim Walz’s Peacetime Emergency Executive Order 20-54, employees are, among other things, protected against retaliation for reporting COVID-19 workplace concerns or refusing to work in conditions that they, in good faith, believe could potentially expose them to COVID-19.

All of these protections contain important caveats, so if you have questions about Executive Order 20-54, or COVID-19 at work, you should contact an experienced employment lawyer. If you are an employee who has experienced difficult circumstances with your employer related to COVID-19, we are here to help. Please contact Teske, Katz, Kitzer, and Rochel, PLLP. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower related issues in the workplace.

Governor Walz’s Recent COVID-19 Order Gives Employees Important Rights

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On May 13, 2020, Minnesota Governor Tim Walz issued Executive Order 20-54, in response to the COVID-19 pandemic crisis. Among other things, the Governor’s executive order provides rights to Minnesota employees that all workers should be aware of.

First, the executive order prohibits employers from discriminating or retaliating against employees who ask their employers questions or expresses concerns about COVID-19 (the Coronavirus), or their health and safety regarding the virus outbreak.

Second, the executive order generally prohibits employers from discriminating or retaliating against employees who wear gloves, cloth, eye protection, or other protective gear in the course of their work.

Third, the executive order gives employees the right to refuse to work under conditions that they, in good faith, reasonably believe pose an imminent danger of death or serious bodily harm.

Fourth, the executive order gives employees the right to request the Minnesota Department of Labor and Industry (“DLI”) conduct an inspection of their workplace if they suspect a COVID-19 threat to health and/or safety is present.

Lastly, the executive order gives employees the right to seek reasonable accommodations related to COVID-19, including the ability to work from home, if possible.

All of these protections contain important caveats, so if you have questions about Executive Order 20-54, or COVID-19 at work, you should contact an experienced employment lawyer.

If you are an employee who has experienced difficult circumstances with your employer related to COVID-19, we are here to help. Please contact Teske, Katz, Kitzer, and Rochel, PLLP. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower related issues in the workplace.