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We have made it through two seasons of COVID. If we can believe what we are told, there are likely two more to go. I am not so sure - I think it will be longer.
Still, I have adjusted. Many of you have probably adjusted, too. I usually do not forget to put on my mask when I get out of the car these days. I usually remember to clean my hands when I get back into the car. I have become pretty knowledgeable about video conferencing and all the other sorts of technology that allow us to keep a safe distance. Doing business from a distance is not as difficult as I once thought it might be. Technology has eased the burden. I have gotten used to a new routine in the morning. The old routine always felt rushed. And everyone around me always seemed rushed too. These days, I get up and amble into my day. I grab a coffee, sit in the sun, and catch up on the news. I can stop and consider what lies ahead, do some thinking about what I want out of the day, eat some breakfast, and then get on with it. If I have a meeting, I walk up to the office and start up the Zoom. If I have a deposition, I’ll put on a tie, grab a coffee, and start up the Zoom. I rarely drive. I walk a lot. I talk to the dog. I talk to my wife. I talk to my kids. I visit with friends throughout the day via text or Zoom. Life is slower and yet more gets done. And throughout, I feel at ease. In the meantime, the air feels fresher and lighter. As a business owner, I see the benefits of changing the way we do business. I am more thoughtful in my work and I can give more attention to my clients. Courts have taken time to adjust, but they are adjusting, and ultimately the justice system is going to be more accessible to more folks in Connecticut and easier to navigate for all. I do not want to go back to the way things were. I am hopeful that we embrace the changes that have made our lives better. Still, there will be roadblocks because there are entrenched systems in place that will be hard to move, even though moving them may be more beneficial for our communities. I was speaking to a medical professional last week who has been providing tele-health services since the pandemic began. Whereas folks used to come see him at his office, now he can provide the bulk of his services via video conference. He told me that the health insurance companies are going to mandate that he begin seeing patients in the office soon because the companies do not want to pay for tele-health services anymore. That kind of view is short-sighted and fails to account for the increased access to healthcare that tele-health provides. COVID is a plague. And it will stick with us for a while, I think until we reach herd immunity. And people we care about will get sick and some will die. That is the tragedy of the COVID virus. But we should not underestimate our resilience or our capacity to take advantage of change. There is real opportunity to improve our lives because of this scourge. I am hopeful that when the plague finally passes we will not return to old ways that sapped our strength and our well-being.
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“Safe and effective.” That is a phrase you are going to be hearing a lot in the next few weeks as we head toward election day.
“Safe and effective” is the standard that we expect when assessing medical interventions. In the context of a COVID-19 vaccination, we expect that any offered vaccine will be “safe and effective” before it is widely distributed to the general public. The problem, of course, is that with all the disinformation that we receive from numerous sources, none of us really knows who to trust as we try to evaluate whether a medical intervention is “safe and effective” or not. I trust my doctor. And I trust her to get her information from reputable sources. When it comes time for me to decide about whether or not to get a vaccination, I am going to either have to trust her, or find another doctor that I can trust. My assumption of course is that I will have a choice about whether or not to get a COVID vaccination when it becomes available. I assume that I still have the freedom to decide what goes into my body. But maybe in the dystopia that we live in today, that is a false assumption. Maybe none of us will get to decide what goes into our bodies. Or if we do have the freedom of choice, maybe the choice will be a false one because we will base that decision on deliberately or negligently false information about what is “safe and effective.” Every day that goes by in this crazy 2020 and this absurd election season hijacked by social media conspiracies and disinformation from the highest levels of government, I start to believe that I am living in a dystopian Orwellian novel. Really. Look at the headlines in the daily newspaper. Who would have ever thought that this “news” would become the reality of our lives. I never did. I thought the stuff we read today was confined to the imaginations of writers and filmmakers. Sometimes folks say, “you couldn’t make this up,” to address a turn of events that seems completely detached from reality. Our whole 2020 existence seemed at one time like it could not be made up because it would be so unbelievable, and yet here we are. And here is the reality. Somebody is going to have to be first to get the vaccine. Who is it going to be? And will that person have a choice. I have been thinking about the possibility that public employers will force their public employees to get vaccinated in order to continue in their employment. I can see the government mandating that those on public assistance get vaccinated in order to continue to receive benefits. I can see schoolchildren in our public schools becoming guinea pigs in order to be able to attend classes in public spaces. The nightmare scenarios go on and on. And here’s the thing. You might think that our Bill of Rights will protect us. You would be wrong. As for workers, employers can mandate testing and vaccinations provided the procedures are “job-related, consistent with business necessity, and no more intrusive than necessary.” In places where employees regularly interact with immune-compromised people, the standard is fairly easy to meet. The time to really start talking about this issue is now. The time for the legislature and Congress to act is now. Either we are going to be in control of our bodies this fall, or the government is. I choose us as individuals. As many of you know, I have made my living over the last 25 years representing police unions and police officers. I am proud of that work, and I have met some amazing and courageous men and women over the years. I am a police supporter.
But I am not blind to the problems that exist in policing these days. There are some folks carrying a badge who do not deserve that privilege, and even those of us in unions know that to be true. I have said it before and I’ll say it again because it is true: when we come upon an officer who does not fit the culture of service that is the first priority for policing, we find ways to move that person along into another career. The key to reforming police departments does not start with legislators or judges. It starts with street-level supervisors, the sergeants and lieutenants who work with patrol officers on a regular daily basis. They set the tone. And that tone ultimately comes from the top management of a department. If the management is rotten, the policing will be too. Fortunately in Connecticut, we have some of the best police leaders in America working for us. I have always believed that is why the disfunction that plagues other departments around the country has not infected most of our police departments in this state. Still there are places in Connecticut where the culture is so bad that disfunction necessarily has followed. A case in point was made clear in a recent federal court case that resulted in an award of almost two million dollars in favor of a female police officer on the Central Connecticut State University police force. According to the allegations in her complaint, the police department leadership was characterized by a culture of misogyny, intimidation, and retaliation. Women in the department, as well as women students on campus were frequently the targets of lewd, crude, and lurid behavior and remarks. In some cases the bad behavior crossed the line from verbal to physical. And according to the complaint, the supervisors within the department not only knew about the culture, they were some of the main participants. It was a formula for disaster. Several officers in the department engaged in ongoing sexual harassment of their fellow female officers including the plaintiff who ultimately held those officers and the department to account for their sexually demeaning and criminal behavior. Before the case got to trial, the University settled with the complaining officer for 1.75 million dollars. That type of pre-trial settlement in a sexual harassment case is virtually unheard of in Connecticut. Dysfunctional workplace cultures are not the sole domain of police departments though. They exist everywhere. But it is true that where you find a workplace that tolerates discrimination, retaliation, intimidation, or harassment, their abilities to perform their essential services and functions are corrupted. Police departments cannot be painted in broad strokes with a broad brush. Each is culturally distinct. They have shared qualities and characteristics, but their approaches to their mission will vary based on leadership and membership. The good ones should serve as models for the failing ones. And the failing ones must be reformed or torn down. Only then will wounds from this summer start to heal, and faith in our institutions begin to return. After a spring and summer without any sports, I thought I would be excited to watch NBA, NHL, and MLB games once they started up again at the end of July. But I find that I can’t get into it. I still pay attention to the Mets, but I haven’t given much attention to the NBA playoffs, which is unusual for me.
I have noticed though that NBA players are wearing social justice slogans on their uniform jerseys and their warmups. Same goes for MLB players on their batting practice jerseys. That’s cool as far as I am concerned. The more we keep these issues on the front burner, the more likely we are to come to some kind of solution. But there are competing messages, and not everyone comes from the same place. And as we all know, folks can get passionate and emotional when advocating their points of view on these complex and divisive issues. So a fair question to ask is where and in what kinds of places should folks be allowed to express their opinions on a t-shirt, or a ball cap, or a banner? Obviously these expression issues implicate the First Amendment. And whether you are a conservative, a liberal, or somewhere in between, most of us agree that freedom of speech and expression are sacred human rights. We may not like what the other person has to say, but we sure want to be able to express our competing viewpoints freely. Last week President Trump urged Americans to boycott an American tire company because one of the company’s plants put out an internal memo to employees allowing one particular political viewpoint at work while prohibiting another. This is a confusing time for company managers. On the one hand, they do not want to be anti-American and limit an employee’s right to free expression. On the other hand, they don’t want to be called bigoted or racist when they allow types of expression that some view as bigoted or racist, or when they restrict anti-racist speech. So what can a company do when an employee wears a piece of clothing advocating one political viewpoint or another? It is tricky. I would like to be able to say that employers should have a blanket policy that prohibits any kind of political speech. No shirts with slogans. No emblems or colors. Simply show up for work, do your job, and speak your mind when you’re off the clock. But even that kind of even-handed policy can run afoul of the law. The National Labor Relations Act allows all employees, even non-union employees, to express themselves at work even if that expression might encroach into difficult political topics. Section 7 of the Act lets employees engage in concerted activity to promote their workplace interests. That may include anti-racist speech. The right to speak is not unfettered, but it is broad. One court has said that the “speech” may be prohibited only if it jeopardizes employee safety, damages machinery or products, exacerbates employee dissension, or unreasonably interferes with a public image that the employer has established. In America, generally it is safer to allow speech of all sorts. Limiting speech tends to get you into trouble. America’s greatness is based on the exchange of ideas. It is a tricky era for all of us as we try to navigate these troubling times. Allowing folks to express themselves may be the best way to get through it. Back in 1978, after Sylvester Stallone gained international fame through his portrayal of the boxer “Rocky,” he made a film called F.I.S.T. The film is often overlooked, but I always enjoyed it because it was a fictional account of a union organizing a fight akin to the Teamsters.
I have been practicing labor law for nearly a quarter century. In that time I like to think that I have learned ways to engage in civil conversation to help my clients get what they need at the negotiating table. There is a scene in F.I.S.T. that always resonated with me. Stallone’s character has just been elected to lead his warehouse’s union and he has his first meeting scheduled with the antagonistic owner. He shows up for the meeting and is escorted into the grand conference room and shown a seat on one side of the table. After being made to wait, the owner and his team come in and the owner takes his seat at the head of the table. Stallone looks around, stands up and moves from his side seat to the other head of the table. The owner looks stunned as Stallone’s character tells him that when they are at the bargaining table they are equals and the owner doesn’t get the head. It should surprise nobody that when it comes to negotiations, sometimes the discussions get heated. Language can get nasty or profane and voices can get raised. These types of emotional exchanges occur in the context of bargaining where the management team and the union team are supposed to be equals under the law. There is no subordination and therefore no “insubordination” when words are uttered or demands are made. As the labor law has evolved, it has been understood that words that are said at the table or in the context of union/management relations can be extreme due to the nature of the discussions. Foul language, loud language, and language that in other contexts might be considered insubordinate has always been allowed at the negotiating table. The line has usually been drawn at overtly threatening language. But until that line is reached, the rule has been to allow for unfettered discussion. The National Labor Relations Board, the administrative agency charged with regulating conduct between employers and unions, has used a standard that permitted leeway for “impulsive behavior” when engaging in protected activity like bargaining, even if the conduct was “deeply offensive.” Late last month though, the Board modified its standard. With the new ruling, employers will be able to discipline and even fire employees who use obscene or abusive language in the context of protected activity if the employers would discipline or fire an employee who engaged in the same kind of conduct outside of a protected activity. Under the ruling, if an employer has a policy against using profane language in the workplace, then the employer can require that no profane language be used at the bargaining table. If there is a policy that loud or frightening behavior that could be perceived as threatening is prohibited generally in the workplace, then the same would be true at the bargaining table. While the Board has argued that the new interpretation is necessary to protect employees from racist or sexual harassment, it seems as though the rule will have a perverse effect of chilling full and frank exchanges at the bargaining table. That will be bad for both management and employees. The opening of schools is fast approaching. And still there is not any real clarity about what that is going to look like once Labor Day rolls around. COVID-19 has proven to be an elusive antagonist, capable of destroying lives and plans in a matter of days.
I think that most of us want to see schools open safely this fall so that children and teenagers, not to mention college students, can get back to learning in a typical academic environment that makes learning exciting and satisfying. But as it stands now, there remains uncertainty about the prospects of getting back to school in a safe way that assures sufficient learning opportunities for students. I don’t think it is impossible, I just think it is uncertain. And in the discussion about how it is going to be done, policy makers are concerned most importantly about our students. But there is also concern about teachers, administrators, and staff and their varied health concerns. And these are legitimate concerns. We do not want to be responsible for sending valuable public servants into a hospital or a grave. But we know that according to CDC figures, 6.4 of every 100,000 U.S. residents between the ages of 5 and 17 are hospitalized for COVID disease. For those between the ages of 50 and 64, the number skyrockets to 196 per 100,000. Those between 40 and 49 are hospitalized at a rate of 131 per 100,000. So from a risk perspective, kids are relatively risk-free. They are not immune of course, but their risk is significantly lower than the rest of the population based upon figures we have received from the CDC to date. The real concerns then about opening schools are related to our school employees over the age of 40 who are presented with significant risks of illness that can lead to hospitalization. Our knowledge about COVID continues to evolve. And we often are left to wonder if anyone has a real handle on this disease. Clearly health officials are doing their best to understand how to best prevent transmission, and how to reduce risk all members of the population. But living in a time of COVID is not a risk-free endeavor. And the worst-case scenario for every one of us is death, followed closely by long-term if not lifetime debilitation. So what do we do about employees who are unwilling to take the risk of going back to work? What do we owe them as a society? Can we reasonably demand that they make the Hobson’s choice of either going back to work or risking severe illness or death? Nobody signed up for that when they chose their jobs and careers. The Connecticut Department of Labor currently advises that if an employee is unwilling to take the risk of returning to work and if the person is at “high-risk” or who “might be at high-risk” for “severe illness from COVID-19,” the person will be eligible for unemployment benefits including any extensions and supplements. However, that does not guarantee that your job will remain open. An employee in this situation may be able to take advantage of FMLA leave for the maximum statutory period in order to hold his or her job open. Alternatively, the employee may be able to seek and obtain “reasonable accommodations” for a disability related to COVID risk. There are options available for those who work in the education system. Consulting with a lawyer will help you better understand your options. If you read this column from time to time, you may have learned that I am not a fan of the president. This is America, we can all have our own opinions. I’m just not a fan.
But every now and then he makes a good point. Last week he floated the idea of moving November’s election. I think that is a terrible idea. We have our elections in this country on the first Tuesday after the first Monday in November. There is no reason to move the election. But consistent with the standard that we have our elections on the first Monday after the first Tuesday in November is the corollary that we know our results of the election on the first Wednesday after the first Monday in November. If we are going to have elections that we trust, we need to know the results in a timely manner. On this point, I agree with the president. When he floated the idea of moving the election, one of his concerns was that he did not want Americans waiting weeks or months to know who won it. My fervent hope is that our current president does not win it. But if he does, I’d like to know on November 4 or 5. One of the reasons that many folks still like this president is because he speaks to their sensibilities. We all know that it is probably more dangerous this year to stand in a crowd waiting to vote. We also know that wearing a mask and keeping our hands clean significantly mitigates that risk. Mail-in voting would completely eliminate the risk of being forced to stand in a crowd and waiting to vote. But it would significantly increase the risk that a significant portion of our population would doubt the results of the election when they get presented weeks or months after the vote occurs. This is where I agree with the president. That risk is far greater than the mitigated risk of standing in a line waiting to vote. Our elected officials have known about the risks of in-person voting for four months now. There are obvious ways to minimize the risk. Early voting is one of them. Assigned or appointment voting times are another. A national holiday weekend allowing voting to occur over four days between Friday and Monday prior to November 3 would also eliminate wait times and risk. In addition, officials could increase the number of voting precincts in concentrated areas to lessen the number of folks that have to turn out in a particular place to vote. And finally, for those folks who cannot get to a polling place during standard voting times, absentee ballots could continue to be the last alternative in those limited circumstances as they have always been. I am a reasonable guy. And I know that absentee ballot fraud has occurred before. Some of you reading this column can remember 1986 when Toby Moffett ran against Governor Bill O’Neill in a primary. Fraud was rampant. Ten people were arrested on 94 criminal counts of absentee ballot fraud. It was ugly. It wasn’t the first time there were doubts about absentee ballot voting in Waterbury. There are a number of ways to decrease COVID-risk while also ensuring the integrity of November’s election. We may be a little late in the game, but it is time for our elected officials to take action. “The New Normal.” I hate that phrase.
That is how people are describing the lives we are leading these days. In this 2020 where nothing is the same, the way we live our lives has changed, probably forever. So far, my friends and family have been blessed. We are all healthy. I hope it stays that way. I grieve for those who cannot say the same. In trying to stay healthy, we have all made sacrifices. But not have all been worse. Lots have been better. I used to spend at least 90 minutes in my car everyday driving to and from work. That’s over. Forever. I’m never going back to that rat race. I used to drive to meet clients. I used to wait for clients to come meet me. Over. These days, when I have a meeting, I walk from my pool to my office, slip my collared shirt and tie over my head, button up, comb my hair and sit in front of my Zoom camera. Twenty or thirty or sixty minutes later, I am back at the pool working again. Wishing for things to be normal again, for me, would be insane. This is what Covid has taught me: we are adaptable creatures. This pandemic is not the end of the world. For some, it is the beginning of living. For some, being forced to wear a mask means that freedom has begun, it hasn’t been taken away. Because by being forced to wear a mask due to Covid, commutes have ended, endless meetings have ended, and time is our own. This is the first summer since high school when I can remember what it feels like to be on summer vacation. And believe me, it feels good. My point is this: if you think folks are going to go back to living the way we lived on March 1st, you are fooling yourself. And if you are fooling yourself, you are going to get left behind, and this Covid pandemic is going to be catastrophic for you. Because people like me are never going back. And there are a lot of people like me. The court system – one of the slowest institutions to adapt to change – is moving in a change direction. Already conferences, arguments, and hearings are being conducted by video conference. Once the technology is in place, we are not going back. Good-bye to the cost of maintaining costly courthouses and offices. Good-bye to costly infrastructure. If the courts have figured it out then you can bet that businesses that are in the business of making money have figured it out too. And taxpayers will start catching on pretty soon as well. Prepare for green spaces, leisure time, and home-cooked meals. All the infrastructure that you need, believe it or not, is in that smartphone in your pocket right now. I thought Uber and self-driving cars were going to end transportation as we know it. I was wrong. Working from home is going to end cars as we know them. I used to put 35,000 miles on my car annually. This year, I won’t get to 10,000 if things keep going as they are. Goodbye car payments. Goodbye gas payments. Goodbye insurance payments. Hello freedom. Wearing a mask is freeing indeed. The world has changed forever. We’re not going back folks. Wear your mask and enjoy the freedom. It is going to be blue skies and green spaces coming at you. For the first couple of weeks after we went into self-imposed lockdown my office was scrambling to understand new federal legislation and how it would affect employees and employers. After we got over that initial hurdle, my phone stopped ringing as much as it did before the lockdown, mostly I think because people were settling in to their new work environments and trying to come to terms with the way we work now.
But about a week ago, the phone started ringing again. This time though the questions are different than they were before Covid. I think we are transitioning to a post-Covid world. Similar to what happened after 9/11, we need to adjust our way of thinking. Back in 2002, if you failed to grasp the seismic changes that were occurring in the world, you were tagged with having a pre-9/11 mindset. That was not a tag you wanted to wear. Similarly, today you really do not want to have a pre-Covid mindset. We are not going back folks. And before we really start rolling again, we are going to have to battle our way through a recession that is likely going to last for a couple of years. But when we get through it, work is going to be drastically changed and I suspect folks are going to enjoy and embrace more freedoms while innovation sparks and the nimble businesses take off. I got a call from a friend the other day who presented one of the “new” issues to me. His company just moved into a gleaming new office space a month before the virus hit. It is technologically up to date, comfortable, and beautiful. The building cost millions of dollars to renovate and it is now state of the art. And just months after it was completed, nobody is working in it. Everybody is working from home. And the real question is whether or not that building will ever run at capacity as an office building. The space may turn out to be valuable, but not as it was originally envisioned. In any event, one of the folks who works for the organization in the office is disabled. Now, under both state and federal law, employers are obligated to accommodate disabled employees provided that accommodation does not pose an “undue hardship” to the employer, and the accommodations do not change the “essential functions” of the job. Litigation usually results from interpreting “undue hardship” and “essential functions.” But in this case, the organization has been accommodating the employee’s disability and the relationship has been a good one for both parties. The employee is a good and valuable worker and the employer is getting good value from the work the employee does with the accommodations. But now the employee has been working from home for the last eight weeks, and it turns out that the employee is just as effective while working at home as he or she would be working in the office. So the employee has requested an accommodation to allow him or her to continue working from home even if the organization’s employees return to work at the office. And the question is whether or not working from home can be considered a “reasonable accommodation.” I think that this issue is going to continue to arise now that we have seen that good work can be done outside of the typical office. This is just one of the changes that we are going to see coming to our workplaces in our post-Covid world. One of the oddities about the CARES Act is that it has incentivized unemployed folks to want to remain unemployed rather than return to work.
I have written about this before. Under the CARES Act, there is a provision that allows eligible persons entitled to state unemployment benefits to collect an additional $600 supplemental payment through July 31, 2020. For many people, this supplement has resulted in a greater weekly payment than the person would earn by working. That is because when the $600 supplement is added to the state unemployment benefit, the total amount exceeds the average weekly wage for the person. We have seen competing interests arise over the last several weeks as business owners have started to obtain access to PPP loans through a different provision of the CARES Act. In order for the business owner to obtain full available forgiveness of the loan, the owner has to retain all of his pre-COVID employees on the payroll. As a result, employers have been calling laid-off employees back to work. And the employees have been replying, “really?” There is no incentive to return. Pay is better out of work and there is no potential exposure to a deadly virus while sitting at home. So what can be done? Well, right now it seems as if employers can require the employees to come back for the lower pay and if the employee refuses then the employer can notify the department of labor of the employee’s refusal to return, resulting in ineligibility for continued unemployment benefits. This is what is known as an “unintended consequence.” Legislators are pretty adept at causing them when they legislate in a rush. This was the problem a few weeks ago. A new one is coming this week. Governor Lamont has announced that some businesses are going to begin gradually opening up this coming Wednesday, May 20. There will be limitations on how customers are served and so workers who have not already returned will probably not be at full employment. Hours will be limited. Some workers will be recalled and others will not be. This is creating a problem for employers. First, how does an employer decide who to bring back? In the old days, laid-off employees would be desperate for a recall so that they could get off unemployment and start collecting a full check. But these days, nobody wants to get off unemployment until July 31 goes by because unemployment is more lucrative than work. But employers can make a return to work acceptable for employees. In Connecticut there is a program called “Shared Work” that allows employers to bring employees back to work on partial employment. As long as the employee works between ten percent and sixty percent of his pre-layoff hours, he will remain eligible for unemployment while working. And in that scenario, according to the CARES Act regulations, he will also remain eligible for the $600 supplement through July 31. So if an employee gets called back, there is incentive to return because his total paycheck will include wages earned, partial unemployment, and the federal supplement. The total will exceed what he is receiving currently. So next week if an employee is called back to work and feels safe in doing so, he should go back. His wallet will be appreciative. |
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