July 17, 2020
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The Berke-Weiss Law Weekly Roundup: School Reopenings and Employer Liability among Hot-button Issues

Unfortunately, since last week’s roundup, things have continued to worsen in the US. Even as more elected officials, and even mainstream economists, have come around to the idea that mask-wearing is a simple and effective way to slow transmission rates, widespread adoption remains charged in the court of public opinion. In California, for example, while the Los Angeles Unified School District, the nation’s second largest, revealed this week that the school year would start online, Orange County school officials proposed a plan devoid of mask wearing mandates. The same thing is playing out across the country. The fight over school openings has also revealed the ever-greater wealth divide in the US. As public school budgets are decimated, private schools are planning to reopen, one of the stories we highlight this week (we will also have a more New York-centric post about schools and childcare). Additionally, we update the latest roadblocks at another round of stimulus, which remains necessary as more than 30 million Americans remain out of work, officially, and countless more are shut out of the social welfare programs offered in the US. Welcome to the weekly roundup.

Reopening schools is essential, but most US districts are woefully unprepared

We’re fast approaching August, when many public school systems are scheduled to reopen, and there is a heated battle about what to do, with surging cases and unclear science the largest hurdles. Several of the largest school districts in the country, including ones in Houston, Los Angeles and New York City, have made it known that there will be, at best, partial reopenings. In New York, teacher’s union officials have stated that they will not authorize teachers to return unless the union is satisfied that the city can assure the safety of its workers, with ventilation a primary concern. The city has also promised it will provide childcare for 100,000 in a bid to relieve some of the stress on working parents.

In the spring, the shift to online education for public schools was an unmitigated, although understandable, disaster. It highlighted massive wealth gaps, terribly uneven internet and technology access, and the general lack of cohesive online education. There is a chance things may go more smoothly in the fall, but for private schools, things look much rosier, as the New York Times reported on Thursday. There are fewer regulations for private schools, and much more money for things like a staff epidemiologist, smaller class sizes, and more space for social distancing. Additionally, the general wealth of private school students means there is significantly less worry about student access to technologies necessary for online education.

Republican stalking horse threatens to stall new round of stimulus before debate even begins

For months now, Mitch McConnell and senate Republicans have been firm that before there can be any talk of more stimulus, Democrats must agree to full liability release for hospitals and businesses. This has been the case for months, the GOP leadership is not backing off, now demanding that businesses get a five-year shield, and the cases should be under federal jurisdiction. As David Dayen noted in the American Prospect, the GOP are demanding this in bad faith. According to Huntons Andrews Kurth, which has a handy Covid-19 complaint tracker, of the approximately 3,500 complaints, only 302 are specifically tagged as employment- or labor-related, with at least one major labor complaint being filed as a violation of the Civil Rights Act. McConnell’s claim that Covid-19-related complaints are swamping the courts is simply not true. As Dayen notes, astutely, full liability release is just a GOP stalking horse, with the real objective simply to relieve employers of any responsibilities. This is an especially grave issue when OSHA has dropped the ball and businesses push hard to reopen. Full liability release would allow employers to force workers back onto the job without having to take even minimal precautions.

Color-coding your risk

Finally, today, we have a small piece from the art blog Hyperallergic. Perhaps not the most obvious source of reference for employment law, but earlier this week, the blog highlighted a handy color-coded graphic made by the Texas Medical Association of daily activities and the attendant risks involved in doing them. Hyperallergic asked, specifically, how safe it was to visit an art museum, but there is good information for all sorts of activities, ranging from very low-risk activities like camping or getting takeout to high risk activities such as going to the gym or a bar. We especially want to highlight this because it’s important for individuals and institutions to understand where risk lies and how to encourage low-to-moderate risk activities that can keep people healthy and active.

The Art of the Doctor’s Note

August 19, 2020
Pregnancy Discrimination
We’ve all needed one at some point –– a doctor’s note explaining that we’re out for the count on some otherwise necessary aspect of work or school, at least temporarily. Many people are realizing that because of COVID, they don’t feel safe at work due to a disability, and need to modify their pre-pandemic job to accommodate this new reality. In this type of situation, what do you ask your doctor for? What does such a note need to include to help you successfully advocate for your rights?

The Week in FFCRA Cases: Judge Invalidates DOL Implementation, Expanding Eligibility

August 18, 2020
Disability Discrimination
Leave
The complaints we found relevant this week are eerily similar—parents who need to take care of their children, some of whom are immunocompromised, are being denied telework or leave or are being terminated. Further, we are continuing to see plaintiffs who voice concerns to their employers about workplace safety being terminated after doing so.

Federal Family and Sick Leave for Covid-19 Expanded by New York District Court

August 14, 2020
Leave
Paid Family Leave
Pregnancy Discrimination
FMLA
S.D.N.Y. Judge Paul Oetken invalidated parts of the Department of Labor’s interpretation of the Families First Coronavirus Response Act in a lawsuit brought by New York State Attorney General Letitia James.

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