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LABOR & CONSTRUCTION LAW UPDATES

2021 Newsletters


​These Newsletters are not intended as legal advice since each situation depends specifically on the facts presented.  Persons reading these Newsletters should seek competent legal advice with regard to the subjects contained herein before making any employment or other decisions.
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FEBRUARY 2021


Inside This Issue


1.    Should You Offer Incentives to Employees to Get Vaccinated

2.    Extended Leave Not Protected Under ADA

3.    Biden Administration Fires NLRB’s General Counsel


4.    USDOL Clarifies When Travel Time Is Compensable


5.    USDOL Rescinds Worker Classification Opinions



Should You Offer Incentives to Employees to Get Vaccinated


It has been reported that some large  employers are offering employees incentives to get COVID vaccinations.  The incentives include bonuses of $150--$200, paid time off, additional vacations, and paying the employee for the time to get vaccinated.


Some employers are now providing up to 4 hours of pay, 2 hours for each vaccine dose, to go to and from their appointments, in addition to providing free Lyft rides up to $15 each way to get to and from their appointments.  This appears to be the most popular approach which should withstand the scrutiny of the EEOC.


What happens if an employee has a medical condition which would prohibit the vaccination or if the employee refuses a vaccination on religious grounds? Are employers required to pay employees who have a medical condition or refuse to get vaccinated on religious grounds?  Is such payment a reasonable accommodation that is required?  Employers would have to evaluate what a reasonable accommodation could be, and would it be lawful for the employer to exclude the employee from the workplace.  Employers need to consider such measures.  It would not be prudent to automatically terminate such employees.  


Of course, certain industries such as the health care industry can require vaccinations.  It would appear that the EEOC would prefer de minimis payments to employees for getting vaccinations and $150 or $200 is not de minimis.  Employer groups have urged the EEOC to issue a new guidance and permit incentives.



Extended Leave Not Protected Under ADA


Normally, under the American with Disabilities Act a person with a temporary disability should be considered for an accommodation.  The exception is a longterm unrestricted leave for medical reasons.  The United States Court of Appeals for the 7th Circuit ruled that when a doctor precludes someone from returning to work for an indefinite and extended period, employers can rely on the doctor’s recommendation and terminate the employee.  The 7th Circuit wrote:  “Four months (or six and a half months if we include the initial two and a half months) is plainly not a reasonable accommodation.”  The Panel followed its precedent in Severson v. Heartland Woodcraft.  With this ruling, at least in the 7th Circuit Court of Appeals, longterm leave will never qualify for a reasonable accommodation. The case is McAllister v. Innovation Ventures.​



Biden Administration Fires NLRB’s General Counsel


In an unprecedented move, the Biden Administration fired the National Labor Relations Board top lawyer, Peter Robb on January 20, 2021.  The General Counsel is appointed for a specific term and Robb’s term was not due to end until November 2021.  The National Labor Relations Act (“NLRA”) states that the President can remove board members “for neglect of duty or malfeasance in office, but no other cause.”  The NLRA is silent about removing a general counsel.


The acting General Counsel is Peter Sung Ohr who is the Regional Director of the NLRB office in Chicago.  The General Counsel is the most important person at the NLRB because the general counsel decides which cases are to be prosecuted and which cases will be left alone.  General Counsel Ohr has already rolled back at least ten directives issued by ex-General Counsel Peter Robb.  Some of the rolled back directives include the level of detail unions had to report in their financial notices and ceasing a directive that the NLRB staff prosecute unfair labor practices for the union’s negligent behavior.  Acting General Counsel Ohr is considered to be very pro-union and anti-employer by management groups.



USDOL Clarifies When Travel Time Is Compensable


On December 31, 2020, the U. S. Department of Labor responded to a request for an opinion as to compensability of certain travel time.


In the first example, an employee attended a parent-teacher conference midday from 1:30 to 2:15 p.m.  The employee received permission to attend the conference and then worked from home rather than returning to work. 


In the second example, an employee has a doctor’s appointment from 8:30 to 9:15 a.m.  The drive from home from the doctor is 45 minutes and the drive from the doctor to the office is 15 minutes.  The employee received permission to work from home before driving to the employment.  The USDOL concluded that the travel time in both examples was not compensable.


Generally, an employee is “working” if his or her action is for the benefit of the employer.  Normal commuting or ordinary travel from home to work and vice versa is specifically excluded from compensable hours. 


The USDOL concluded the employee’s travel time is not compensable because he/she is either off duty and engaged in normal commuting.  Additionally, the travel time is not compensable as to worksite-to-worksite travel under the continuous workplace doctrine.



USDOL Rescinds Worker Classification Opinions


One day before President Biden was inaugurated, the U. S. Department of Labor issued an Opinion Letter as to whether tractor-trailer truck drivers are employees or independent contractors where the drivers are required to implement safety measures.  The revised Opinion Letter concluded that requiring safety does not constitute control to find that the owner-operators are employees.


On January 26, 2021 the U.S. DOL said it was rescinding the Opinion Letter. 


President Biden also issued a freeze memo to cause any new regulations from going forward.  We will have to wait and see. The Trump administration did exactly the same thing when it came into power by rescinding opinion letters.  Just “tit for tat.”



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