Kentucky News & Analysis

  • Testing, testing, 1-2-3: ADA still has final say on return-to-work testing for employers

    As COVID-19 cases rebound in certain states, employers are grappling with how to safely usher employees back to work. Undoubtedly, some degree of testing is necessary to make sure employees reintegrated into the workforce don't pose a safety risk to themselves or others. While employers would do well to take every precaution available during this time, it's equally important to remember that some types of screening, even when required with the best intentions, are still unlawful under current employment laws.

  • 6th Circuit clarifies when increased scrutiny may show unlawful retaliation

    Federal law (as well as many states' laws) forbids an employer from retaliating against an employee who engages in protected activity, such as complaining of unlawful discrimination. One way many employees seek to demonstrate retaliation is by showing the employer heightened the scrutiny of their behavior after they lodged a complaint. Courts have recognized that such post-protected-activity nit-picking can be evidence of retaliation. A recent case from the U.S. 6th Circuit Court of Appeals (whose rulings apply to all Kentucky and Tennessee employers) provides more guidance on the circumstances in which increased scrutiny may be evidence of retaliation.

  • Personality conflict with supervisor doesn't equal disability, NC court finds

    A North Carolina court recently addressed whether an employer must provide an accommodation to an employee who claimed working with his supervisor made him depressed or anxious under the Americans with Disabilities Act (ADA). In a decision employers are likely to welcome, the court affirmed the long-standing principle that to qualify as a disabled employee entitled to a reasonable accommodation, an individual must show more than just a simple personality clash with his supervisor.

  • CDC revamps recs for symptomatic employees, but COVID-19 testing can continue

    Increasing evidence shows most people with mild to moderate COVID-19 are no longer infectious 10 days after they begin having symptoms. Consequently, the Centers for Disease Control and Prevention (CDC) has suddenly switched course and started discouraging people from getting tested a second time after they recover. Regardless, employers may still require a negative test before letting infected employees return to the workplace.

  • 10 frequently asked questions about remote working during COVID-19 (and beyond?)

    Many state and local orders continue to require certain employees to work remotely or telecommute during the COVID-19 outbreak. And even when employees begin to return to the workplace, you may face an uptick in requests from those who want to work remotely on an extended basis. Consequently, you should consider whether to implement a remote work policy and/or enter into individual agreements with employees working from home during the pandemic and, perhaps, beyond.

  • Discord over foreign workers has long history, elusive solution

    The fate of foreign workers in the United States remains up in the air amid the worldwide public health crisis and political disputes related to immigration and foreign worker programs. The COVID-19 pandemic had already slowed or stopped authorization of many foreign workers when the Trump administration in June restricted visas for some classes of foreign workers. The administration's action came on the heels of a U.S. Supreme Court decision that was at least a temporary win for certain young immigrant workers already in the United States. Then President Donald Trump hinted at more change on the way for those immigrants. So, the signals are mixed, making uncertainty the key word for foreign workers and their employers.

  • Adapt or die? Looking ahead to a post-COVID workplace

    It didn't take a worldwide public health crisis to pique people's curiosity about what the workplace of the future will look like. Managers and frontline staff alike have always pondered the best designs for productivity, efficiency, and safety. But COVID-19 has changed everything. The workplaces that are reopening in many cases have a different look and feel than anyone expected prepandemic. Temperature checks at building entrances, plexiglass barriers, spaced-out desks, and occupancy limits for elevators are just a few of the changes now in place in many workplaces. Some of the modifications may be short-lived, but experts, including designers and futurists, expect others will be long-term or even permanent.

  • Q - A: Determining whether work is 'suitable' can be subjective

    Q Can a person receiving unemployment benefits refuse to accept a job offer if it's 25 miles from her home?

  • Cutting-Edge HR

    Poll shows confidence in remote work. A recent edition of LinkedIn's Workforce Confidence Index released in May gives HR professionals food for thought as they consider the future. The survey shows that 55% of respondents think their industry can be effective when people work remotely. Optimism is strongest in such fields as software, finance, and media, a LinkedIn blog post said. But remote work is a "polarizing topic" in other sectors in which in-person interaction is crucial, according to the blog. Forty-eight percent of respondents in health care were optimistic about remote work, and 41% in manufacturing were keen on the idea. The most resistance was noted in retail, with just 29% of insiders thinking their industry could thrive with remote work. The poll included 5,447 LinkedIn members and covered the week of April 27 to May 3.

  • Federal Watch

    DOL offering unemployment fraud prevention resources. The U.S. Department of Labor (DOL) has issued updated resources for employers, employees, and states to prevent fraud or misuse in the unemployment insurance system, including the unemployment insurance programs under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The DOL in May released resources that include lists of fraud hotlines and frequently asked questions. The agency reminded employers and employees of their obligations to report fraud, waste, or abuse. Examples of employer fraud include acting to avoid tax liability and establishing fictitious employer accounts to enable fraudulent claims, the DOL said. Claimant fraud may include knowingly submitting false information, knowingly continuing to collect benefits when ineligible, certifying for benefits under state law while not being able and available to work, or intentionally collecting full benefits while not reporting wages or income.