The Higher Ed Workplace Blog

HR and the Courts

Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

Spouse’s Lawsuit — Attempting to Hold the Employer Liable for COVID-19 Infection Allegedly Contracted From Husband After He Contracted COVID-19 at Work — Dismissed 

A California federal district court judge in San Francisco recently dismissed a woman’s lawsuit against her husband’s employer claiming that she contracted COVID-19 from her husband after he contracted the disease at work. (Kuciemba, et al v. Victory Woodworks, Inc. (case N. 3:20-cv-09355, US Dist. Ct N.D. Ca.)).

The federal judge ruled that the California workers’ compensation statute was the woman’s only potential remedy for the claim. However, the judge further ruled that infectious diseases transmitted from the workplace to home and then to other family members or others are not actionable under the California workers’ compensation statute. The judge reasoned that the wife was not employed by the defendant employer and therefore does not have a claim that can be processed under the workers’ compensation law.

U.S. Department of Labor Issues Letter to State Unemployment Compensation Agencies Suggesting That Laid Off Workers Who Refused to Return to Work Because They Considered Their Job Unsafe Due to the Pandemic Should Qualify for Unemployment Benefits How States Will Implement Remains Unclear

The Department of Labor (DOL) letter issued to state agencies underlines President Biden’s statement last month that unemployment benefits should be ensured to workers who decline work that would jeopardize their health. Said the DOL’s deputy assistant secretary, “Workers and families that give so much to make this nation prosper during boom times deserve to be safe and economically secure in this time of dire need.”

It is up to individual states to determine how to implement the DOL’s letter as many states take the position that “general fear” of COVID-19 would not be sufficient for refusing work and maintaining a claim for unemployment compensation benefits. The DOL pointed out that people claiming benefits under these circumstances will have to attest to “unsafe conditions” under penalty of perjury. Moreover, benefit eligibility applies to refusal to work at a site that “is not in compliance with local, state, or national health and safety standards directly related to COVID-19,” according  to the letter. “This includes but is not limited to facial mask wearing, physical distancing measures, or provision of personal protective equipment consistent with public safety guidelines.”

The expanded eligibility is specific to Pandemic Unemployment Assistance provided by federally funded benefits created by last year’s CARES Act and applies to workers who were receiving but then lost traditional unemployment benefits because they refused to return to an unsafe job, those who were laid off or had their hours reduced because of the pandemic, and school teachers who were not guaranteed continuing pay or employment if their schools closed down because the pandemic.

EEOC Reports That Retaliation Charges Once Again Top the List of Charges Filed With the Agency, Followed by Disability Claims and Race Related Claims 

For the third consecutive year, the Equal Employment Opportunity Commission (EEOC) reported that retaliation claims topped their list of charges filed with the agency. Of the approximately 70,000 charges filed with the agency in the fiscal year 2020, 55.8 percent were related to retaliation. Allegations of disability discrimination were the second most prevalent filed with the agency, and race related charges were the third most prevalent in the last fiscal year.

The chair of the EEOC, Charlotte Burrows, commented, “COVID-19 and its economic fallout is disproportionately impacting people of color, women, older workers, individuals with disabilities, and other vulnerable workers, and that impact has serious implications for the workplace.” Burrows also commented that the pandemic, “is not only a public health and economic crisis — it’s also a civil rights crisis.”

Virginia’s State Occupational Health and Safety Law’s COVID-19 Safety Rules Considered by OSHA for National Model

Several of the provisions contained in the state of Virginia’s safety rules for workplace COVID-19 exposure are being considered by OSHA as a possible model for national use. Virginia’s standard is the first permanent occupational safety regulation in the U.S. to address virus-related hazards. Rather than taking a rigid one-size-fits-all-employers approach to COVID-19 exposure and risks, Virginia’s model set up employer compliance requirements based on a job’s exposure risk. The Virginia rules general require employers to assess COVID-19 risks and follow guidance issued from the Centers of Disease Control and Prevention and state health regulator mandates.

The Virginia rules categorize workplaces according to high, medium and low hazard levels, and impose different requirements based on the assessment of risk. For example, the Virginia rules deem high-risk workplaces to include prisons and places where healthcare providers treat COVID-19 patients, while medium risk workplaces include meat processing plants, transportation companies, retail locations and schools. Low-risk workplaces are office buildings where social distancing practices are observed and where the jobs require minimal contact with other employees and the general public. The Virginia mandates require all employers to notify their local health department if two or more workers are infected over a two-week span, but leaves the state health department to decide what manner of testing is needed.

Law School Prevails in Age Bias Lawsuit Filed by Tenure-Track Law Professor Who Was “Oldest” Professor to Lose Contract Renewal and Was Replaced by Younger Professors 

The U.S. Court of Appeals for the 11th Circuit (covering Alabama, Georgia and Florida) recently dismissed a 60-year-old former tenure-track legal writing professor who was the “oldest” professor to not have her contract renewed, was the only professor not renewed, and was replaced by younger professors “in their 30s and 50s.” The court concluded that the law school’s stated reasons for non-renewal that the professor had received negative student evaluations and had negative classroom observations were not a pretext for age discrimination. (Tsavaris v. Savannah Law School, LLC. (11th Cir. No. 20-11150, unpublished, 2/25/21)).

The appeals court concluded that allegations of “suspicious circumstances” that are unrelated to the proffered reason for the employment decision are not enough to establish that the stated reasons for non-renewal were a pretext. The court concluded that plaintiff’s argument that the dean “planned” not to renew the plaintiff’s contract before the classroom observation was her strongest argument. However, the court concluded that it was not sufficient to draw the conclusion that the final decision not to renew was because of the plaintiff’s age.