Tag Archive for: employment law

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.

What If I Fail a Drug or Alcohol Test at Work?

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Employer-administered drug and alcohol testing in Minnesota is governed by the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA). If your employer or prospective employer requires you to take a drug or alcohol and you fail, you have certain legal rights.

If you test positive, you must be given written notice of your results and your rights under DATWA.[1] Your employer may require you to provide information on medication you take or other information relevant to an explanation of the positive test result.[2] Your employer must cover the cost of the initial test and a confirmatory test. The employee may request a confirmatory retest at their own expense. You have the legal right to submit information that explains your positive test result within three working days of receiving notice of confirmatory test results.[3] Within three working days, you may also request a confirmatory retest of the original sample at your expense.[4]

If you test positive for a pre-employment drug or alcohol test associated with a conditional offer of employment, the offer may not be withdrawn based on the results of the initial test alone. To withdraw the offer for a positive test result, the initial test result must be verified by a confirmatory test.[5]

If you test positive while you are already an employee, you have a number of legal rights, and your employer is subject to certain legal requirements. First, your employer is not allowed to terminate your employment, discipline you, discriminate against you, or require rehabilitation on the basis of an initial test that has not been verified by a confirmatory test.[6] Second, if the positive result is your first positive result for that employer, your employer cannot terminate your employment unless you are first given the opportunity to participate in a drug or alcohol counseling or rehabilitation program and then you refuse to participate in or fail to complete the program.[7] However, your employer may temporarily suspend you or transfer you to another position pending the outcome of a confirmatory test or confirmatory retest if the employer reasonably believes this is necessary for safety reasons.[8]

If your employer or a prospective employer has not followed these legal requirements or retaliated against you for asserting your rights under DATWA, contact us. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.

 

[1] Minn. Stat. § 181.953, subd. 6(b).

[2] Minn. Stat. § 181.953, subd. 6(b).

[3] Minn. Stat. § 181.953, subd. 6(c).

[4] Minn. Stat. § 181.953, subd. 6(c).

[5] Minn. Stat. § 181.953, subd. 11.

[6] Minn. Stat. § 181.953, subd. 10(a).

[7] Minn. Stat. § 181.953, subd. 10(b).

[8] Minn. Stat. § 181.953, subd. 10(c).

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.

Minnesota is an At-Will Employment State, What Does That Mean?

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When you hear that Minnesota is an “at-will” employment state, you may wonder what that means for you as an employee. It simply means you can quit your job for any reason at any time, you do not have to give notice nor a reason to your employer for leaving your position.

However, it also means an employer can terminate your employment for any reason at any time as long as the reason for termination is not illegal. For example, it is illegal for an employer to terminate employment based on an employee’s race, age, sex, sexual orientation, or religion, to name a few protected classes and statuses. Similarly, it is illegal for an employer to terminate an employee because the employee reported something unlawful, like discrimination or corporate wrongdoing.

Being an “at-will” employment state makes it easy for an employee and their employer to part ways if the position is not working for one or both of the parties. But, if you feel you have been wrongfully terminated based on discrimination, contact us at Kitzer Rochel. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.

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.

 

FAIR Act to End Forced Arbitration Passes in House, Moves to Senate

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On March 17, 2022 the Forced Arbitration Injustice Repeal Act of 2022 (“FAIR Act”) passed the U.S. House of Representatives and has been referred to the Senate Committee on the Judiciary. This bill makes pre-dispute arbitration clauses unenforceable in certain cases, including employment cases. A similar bill that makes pre-dispute arbitration clauses unenforceable in sexual harassment or assault cases was recently signed into law earlier this year.

Currently, employers are allowed to use contract provisions known as “arbitration agreements” to force employees to bring their claims in front of an arbitrator, rather than going to court. Arbitration is a way of resolving a dispute outside of the courts, where a private arbitrator is hired by the company to review the evidence, listen to the parties, and make a decision. There is no right to a jury, and the decision cannot be appealed. These mandatory arbitration agreements are often required as part of the on-boarding process and are signed by unsuspecting employees before they ever know they have a legal claim against their employer. These agreements are drafted by employers in order to favor employers and prevent employees from having their day in court.

If the FAIR Act passes the Senate and is signed into law, employees will no longer be forced to arbitrate their employment law claims. Rather, employees will have the choice of whether to arbitrate or have their day in court.

If you have questions about how the FAIR Act could impact your employment law claims, contact us. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options in light of this potential new law.

Former Employee Awarded $1.1 Million in Verdict for Sexual Harassment Lawsuit

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In March 2022, former Chisago County crime analyst Michelle Jacobson was awarded $1.1 million by a jury in her lawsuit against her former employer, Chisago County Sheriff’s Office and former Sheriff Richard Duncan. Ms. Jacobson’s complaint alleged Mr. Duncan sexually harassed her during her employment. Judge Susan Richard Nelson said that Mr. Duncan’s actions were “extreme and outrageous.”

Under the Minnesota Human Rights Act, Minn. Stat. §363A et seq., sexual harassment is recognized as an unfair discriminatory employment practice and is illegal. Ms. Jacobson experienced sexual harassment in the form of sexual advances by her supervisor.

If you have experienced sexual harassment or discrimination the workplace, contact us. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.

Biden Signs New Law Limiting Arbitration in Sexual Harassment Claims

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Employment claims are often subject to arbitration clauses. This means that employees who want to assert their rights and file a lawsuit are forced to arbitrate their claims instead of going to court. While there are some advantages to arbitration, the arbitration process often favors employers and arbitration clauses reduce the options available to employees in pursuing their claims. Arbitration is also private, which means that workers and sexual harassment survivors are not allowed to tell their story or have their case heard publicly.

On March 3, 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. This new law amends the Federal Arbitration Act to render pre-dispute arbitration clauses unenforceable for sexual assault and sexual harassment claims. This is a step forward in restoring the ability to choose how to pursue these two types of claims.

If you have experienced sexual assault or sexual harassment, contact us. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options in light of this new law.

When Do I Get My Final Paycheck?

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When an employee resigns or is terminated, they usually wonder when they will get their last paycheck. When must a company pay a final paycheck, and when could it become wage theft?

First, if an employee is discharged or terminated, then they must be paid “immediately upon demand.” That means that an employee can request a final paycheck immediately after learning they were fired. An employer then has 24 hours to provide the final paycheck after that request or demand.

Second, if an employee gives proper notice of resignation, employers may provide a paycheck on the employee’s last day at work. But employers are NOT legally required to do so. An employer has up to the pay period following the employee’s final day (that is more than 5 days after the employee quit) to provide an employee their final paycheck. But it cannot be longer than 20 days after separation. So, if an employee resigned on the same day as their “payday,” that doesn’t mean that an employee will receive their final paycheck on that day.

If you resigned from an employer and the next pay period has passed and you did not receive full compensation you may be looking at potential wage theft. Similarly, if you resigned from an employer more than 20 days ago and you have not received your final paycheck, you may be looking at potential wage theft. State and federal laws prohibit various forms of wage theft.

If you have questions about wage theft, a final paycheck, or other employment law questions, please contact us today. We are happy to answer questions and assess if we can help with your situation.

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.