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Harris County Issues Order Making Masks Mandatory for Certain Businesses

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Written by Haley Paul
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On Friday June 19, 2020, Harris County Judge Lina Hidalgo signed an Order Regarding Health and Safety Policy and Face Coverings. The Order is effective as of 12:01 am on Monday, June 22, 2020 and continues through 11:59 pm on Tuesday, June 30, 2020, unless extended, modified, or terminated early by further order of Judge Hidalgo or otherwise.

The Order states that “all commercial entities in Harris County providing goods or services directly to the public must develop, post, and implement a health and safety policy (“Health and Safety Policy”). The Health and Safety Policy must require, at a minimum, that all employees or visitors to the commercial entity’s business premises or other facilities wear face coverings when in an area or performing an activity which will necessarily involve close contact or proximity to co-workers or the public. The Health and Safety Policy required to be developed and implemented by this Order may also include the implementation of other mitigating measures designed to control and reduce the transmission of COVID-19”.

The Order states further that commercial entities must post the health and safety policy required by this Executive Order in a conspicuous location sufficient to provide notice to employees and visitors of all health and safety requirements. Failure to develop and implement the Health and Safety Policy required by this Executive Order within five (5) calendar days following the Effective Date may result in a fine not to exceed $1,000 for each violation.”

The Order also requires that “all people 10 years or older shall wear a face covering over their nose and mouth when in a commercial entity or working in areas in a commercial entity that involve close proximity with others.” Face coverings may include homemade masks, scarfs, bandanas, or a handkerchief. Harris County employees are required to wear face coverings under the same circumstances as the general public. Exceptions to the face covering requirement include the following circumstances:

  • When exercising outside or engaging in physical activity outside;
  • While driving alone or with passengers who are part of the same household as the
    driver;
  • When doing so poses a greater mental or physical health, safety, or security risk;
  • While pumping gas or operating outdoor equipment;
  • While in a building or activity that requires security surveillance or screening, for
    example, banks, or;
  • When consuming food or drink.

Although the Order provides for imposition of a fine not to exceed $1,000 for each violation for commercial entities that fail to implement and develop the required Health and Safety Policy within five (5) calendar days of the effective date of the Order, the Order also states that “no civil or criminal penalty will be imposed on individuals for failure to wear a face covering.” [Emphasis added].


These materials are made available by Stibbs & Co., P.C. for informational purposes only, do not constitute legal or tax advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Stibbs & Co., P.C. The facts and results of each case will vary, and no particular result can be guaranteed. The facts and results of each case will vary, and no particular result can be guaranteed. Employers should consult their tax advisors concerning the application of tax laws to their particular situation.

Employers are also encouraged to seek legal counsel prior to taking actions to avoid violations of federal or state employment laws including, but not limited to, Title VII of the Civil Rights Act of 1964.


 

Topic: COVID-19
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Supreme Court Bars Discrimination Against LGBT Workers in Landmark Decision

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Written by Haley Paul
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On June 15, 2020, the United States Supreme Court issued an opinion on three separate cases: Bostock v. Clayton County, Georgia, No. 17–1618; Altitude Express, Inc., et al. v. Zarda et al., as Co-Independent Executors of the Estate of Zarda, No. 17–1623; and R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., No. 18–107. The Court held that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964 (“Title VII”). The 6–3 ruling came as a surprise to many, particularly given that conservative Justice Neil Gorsuch—appointed by President Trump in 2017—authored the opinion (a copy of which can be found here: Supreme Court of the United States Slip Opinion, Bostock v. Clayton County, Georgia).

For several years now, the Equal Employment Opportunity Commission (“EEOC”) has interpreted and enforced Title VII as forbidding employment discrimination based on sexual orientation and gender identity under the broader prohibition on sex-based discrimination. However, the Supreme Court’s June 15 decision was the first time the highest court in the country weighed in on this interpretation.

The court adopted the view promulgated by the EEOC—namely, that sexual orientation and gender identity discrimination are forms of sex-based discrimination because such discrimination requires an employer to intentionally treat individual employees differently “because of” their sex. In other words, an employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex (like acting feminine or masculine)—discriminates against that person in violation of Title VII. Employers should be prepared for greater scrutiny when terminating LGBT employees and should take care to analyze current employee policies to ensure that LGBT employees are afforded the same protections as other protected classes. It may also be a good time to schedule discrimination and harassment awareness training to ensure that employees, and managers in particular, are aware of the prohibition against employment discrimination based on sexual orientation and gender identity. Stibbs & Co. attorneys have extensive experience drafting employee handbooks and conducting employee and manager trainings and are here to help.


These materials are made available by Stibbs & Co., P.C. for informational purposes only, do not constitute legal or tax advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Stibbs & Co., P.C. The facts and results of each case will vary, and no particular result can be guaranteed. The facts and results of each case will vary, and no particular result can be guaranteed. Employers should consult their tax advisors concerning the application of tax laws to their particular situation.

Employers are also encouraged to seek legal counsel prior to taking actions to avoid violations of federal or state employment laws including, but not limited to, Title VII of the Civil Rights Act of 1964.


 

Topic: Employment Law
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How Do I Get Employees to Come Back to Work?

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Written by Haley Paul
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COVID-19 EMPLOYER UPDATE

UPDATED June 5, 2020

As Texas has slowly reopened over the course of the last month, one of the greatest challenges facing employers is getting employees back to work. Many Texas workers have found that they are making more on unemployment benefits than they made while working. In particular, the extra $600 per-week benefit introduced by the CARES Act has, without question, disincentivized employees from returning to work when called back in. Other workers are simply reluctant to return to work due to fear of contracting COVID-19 in the workplace. Most businesses need employees to operate, so the question then becomes, how do we compel employees to come back to work?

Create a Safe Work Environment

If you are having trouble getting employees to come back, your first step should be to find out why they are hesitating to return. If health and safety is the primary concern, reassuring your employees of the steps you are taking can go a long way. Letting employees know that you have consulted and are following CDC and OSHA guidelines, along with any specific steps you are taking to reduce the transmission of COVID-19 at your workplace, is a great way to start.

If an employee informs you that the or she is in a vulnerable category, you should engage in the interactive process and discuss other possible reasonable accommodations that will better protect this specific employee.

Ultimately, unless the employee is in a vulnerable class, simply being fearful of returning to work during the COVID-19 pandemic is not enough to entitle an employee to remain at home, for purposes of unemployment and federal leave laws, or otherwise.

Advise Employees of Potential Consequences of Refusal to Return to Work

If an employee refuses to return to work because they are making more on unemployment, the Texas Workforce Commission has advised that such refusal constitutes unemployment fraud and encourages employers to report any such job refusal. Employers may send the information to twc.fraud@twc.state.tx.us or call 1-800-252-3642.

Before employers report the job refusal/fraud, they should counsel the employee or former employee (depending on whether the employee was furloughed or temporarily laid off) and give them a final chance to return to work. Employers should explain that, the employee will likely lose unemployment benefits once the job refusal is reported to the TWC and may be responsible to pay back the benefits obtained because of the fraud—it is also possible a finding of fraud could make the employee ineligible to receive any future unemployment benefits or worse, could result in criminal prosecution. In any event, the employee’s continued refusal will likely result in the employee being out of a job AND be ineligible to receive UI benefits.

Note that the TWC has stated that,

Each UI benefits case is currently evaluated on an individual basis. However, because of the COVID-19 emergency, the following are reasons benefits would be granted if the individual refused suitable work.

Reason for refusal:

  • At High Risk – People 65 years or older are at a higher risk for getting very sick from COVID-19 (Source: DSHS website).
  • Household member at high risk – People 65 years or older are at a higher risk of getting very sick from COVID-19 (Source: DSHS website).
  • Diagnosed with COVID – The individual has tested positive for COVID-19 by a source authorized by the State of Texas and is not recovered.
  • Family member with COVID – Anybody in the household has tested positive for COVID-19 by a source authorized by the State of Texas and is not recovered and 14 days have not yet passed.
  • Quarantined –Individual is currently in 14-day quarantine due to close contact exposure to COVID-19.
  • Child care – Child’s school or daycare closed and no alternatives are available (On June 3, 2020, Governor Abbott announced Phase III to Open Texas and child-care services and youth camps may now be open at full capacity. However, some childcare centers or youth camps are electing to stay closed or operate at a lower occupancy rate, based on demand).

Any other situation will be subject to a case by case review by the Texas Workforce Commission based on individual circumstances.

TWC FAQs About Unemployment Insurance Benefits Related to COVID-19 (emphasis added). In other words, if the employee refuses to come back to work, but one of those circumstances is present, they can refuse to return to work and still keep their unemployment benefits.

There are undoubtedly individuals that are taking advantage of the situation, but there are also individuals with legitimate health concerns or familial situations that make returning to work a true burden. Because of this, communication between the employer and current or former employees is crucial. Employers must balance their need for labor with the health and safety concerns of their employees.


These materials are made available by Stibbs & Co., P.C. for informational purposes only, do not constitute legal or tax advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Stibbs & Co., P.C. The facts and results of each case will vary, and no particular result can be guaranteed. The facts and results of each case will vary, and no particular result can be guaranteed. Employers should consult their tax advisors concerning the application of tax laws to their particular situation.

Employers are also encouraged to seek legal counsel prior to taking actions to avoid violations of federal or state employment laws including, but not limited to, the Family Medical Leave Act and its expansion under the Families First Coronavirus Response Act, the Fair Labor Standards Act, the Texas Payday Law, Texas small employer health insurance laws, new hire reporting laws, the Texas Commission on Human Rights Act, various EEO laws covered by Title VII of the Civil Rights Act of 1964, Occupational Safety and Health Administration laws, the Immigration Reform and Control Act, EEO-1 reporting requirements, the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the National Labor Relations Act, the Worker Adjustment Retaining Notification Act, and the Employee Retirement Income Security Act of 1974.


 

Topic: Employment Law