Reopening During COVID-19: General Guidelines for Entrepreneurs in Pennsylvania

By: Mitchell Snyder

As the COVID-19 pandemic continues, many businesses are looking to the future and making plans to reopen and welcome employees back to work. The process of reopening will present both logistical and legal questions as businesses put in place procedures to ensure the safety of their employees. To help in this endeavor, we have compiled a list of precautions to consider including in your business reopening plan.

employee questionnaires 

Employers should consider requiring employees to complete a questionnaire upon returning to work. This questionnaire will seek to determine whether the employee has recently tested positive for COVID-19, recently experienced any COVID-19 symptoms, or believes they have been exposed to someone who has tested positive, and/or has any other reason to believe that they may have been exposed to the virus. This information allows the employer to make an informed decision on whether to allow the individual to return to work while reassuring their employees that their workplace is safe.

The Centers for Diseases Control and Prevention (CDC) recommends focusing questions on the following symptoms:

  • Fever or feeling feverish (chills, sweating)
  • New cough
  • Difficulty breathing
  • Sore throat
  • Muscle aches or body aches
  • Vomiting or diarrhea
  • New loss of taste or smell

Some employers may be concerned about whether they can legally require employees to disclose this kind of medical information. The Americans with Disabilities Act (ADA) allows such questionnaires when the employer reasonably believes that an employee will pose a “direct threat” due to their medical condition. In the case of COVID-19, the Equal Employment Opportunity Commission (EEOC) has determined that currently, COVID-19 qualifies as a “direct threat.”

It is important to note that the ADA requires all medical information collected be maintained confidentially and stored in a separate medical file from the employee’s personnel file. Therefore, prior to implementing a questionnaire, employers should make plans for document collection and storage with their human resources department.

Lastly, questionnaires will only be permissible so long as COVID-19 qualified as a “direct threat.” Therefore, employers should continue to monitor the latest updates from the CDC, local health departments, and the EEOC to determine whether they can continue to require questionnaires.

temperature screening of employees 

Fever is a commonly reported symptom of COVID-19. Therefore, employers may want to conduct touchless temperature checks before allowing employees to enter the workplace. Similar to questionnaires, the ADA allows medical examinations of employees, such as temperature checks, when the medical condition in question qualifies as a “direct threat.”

To avoid the accusation of disparate treatment, employers should subject all employees to the same screening procedures. The Age Discrimination in Employment Act (ADEA) will not permit an employer to treat their employees differently based on age. (For more information on how to ensure compliance with ADEA during COVID-19, please click here.) Additionally, it is highly recommended that the screening be conducted by either a medical professional or a member of human resources in order to ensure confidentiality.

And note: If an employer keeps records of the information collected, those records might qualify as medical records. If this is the case, the employer would be required to retain these records for the duration of each worker’s employment plus 30 years and follow confidentiality requirements.

Lastly, like with questionnaires, employers should monitor the CDC, local health departments, and EEOC to determine whether they may continue to conduct touchless temperature checks.

requiring personal protective equipment (ppe)

Employers should consider providing employees with PPE, such as masks and gloves, for use while in the workplace.  The use of PPE has been proven to dramatically decrease the risk of infection from person to person. CDC Director Dr. Robert R. Redfield has explained, “Cloth face coverings are one of the most powerful weapons we have to slow and stop the spread of the virus.” Currently, in Pennsylvania individuals are required to wear mask when in public when they are unable to maintain a social distance of 6 feet.

It’s important to note that masks are not the only one form of PPE. Employers should consider providing the following PPE for employee use:

  • Masks
  • Face shields
  • Hand sanitizer
  • Gloves
  • Cleaning supplies and disinfectants

The high demand for PPE can make it difficult to find. Luckily, the Pennsylvania Department of Community and Economic Development compiled a list of PPE manufacturers and suppliers located in Pennsylvania to assist with your search.

social distancing in the workplace

Employers should consider ways to increase social distancing in the workplace. The Center for Disease Control (CDC) has published recommended social distancing strategies for businesses. They include:

  • Implementing flexible work hours
  • Increasing physical space between employee’s workstations
  • Increasing physical space between employees and customers
  • Implementing flexible meeting and travel options
  • Replacing in-person meetings with virtual ones
  • Allowing employees to telework if they are able
  • Delivering services remotely via phone, video, or the internet
  • Delivering products through curbside pick-up or delivery

What this looks like will depend greatly on the nature of the employer’s business, its size, and where they are located in the country. Social distancing measures could also include constructing physical barriers between employees, eliminating shared workspace, moving employee’s workspaces to allow for better distancing, and adopting policies limiting usage of shared spaces or utilities such as kitchens or elevators.

The Occupational Safety and Health Administration (OSHA) has provided recommendations for implementing social distancing requirements in the workplace. They include:

  • Marking six-foot distances with floor tape in areas where lines form
  • Posting signage reminding workers, customers, and visitors to maintain at least six feet between one another
  • Posting directional signs in hallways/corridors where the width restricts movement and limits social distancing
  • Move or reposition workstations to create more distance and install plexiglass partitions

Lastly, local governments have adopted differing requirements for social distancing in the workplace. As more becomes known about the transmission of COVID-19, guidelines may change. Therefore, employers should closely monitor state and local orders to ensure compliance.

Business safety signs 

In Pennsylvania you are required to post “COVID-19 Safety Procedures for Businesses” signs near all public entrances and in all employee common areas. These signs should be placed in locations where they are easy to spot. The Pennsylvania Governor’s Office provides printable PDFs of these signs at the following links:

additional recommended precautions

Employers can take additional steps to ensure their workplace is as safe as possible. These can include, but are not limited to:

  • Creating a documented reopening plan available to your employees outlining new procedures
  • Providing hand sanitizer with at least 60% alcohol for employee use in the office
  • Routinely disinfecting frequently touched surfaces
  • Limiting the use of shared office utilities and workspaces
  • Placing signs around the office encouraging social distancing
  • Requiring employees who are sick to stay home
  • Providing educational material about best hygiene practices outlined by the CDC

Some states have released templates for reopening plans outlining what is required in that specific jurisdiction. While Pennsylvania has not yet provided a template, you can consult the New York State reopening plan template when drafting your plan.  (Employers should check to see if a template is now available in Pennsylvania after the publication of this post.)

CDC “RESUMING BUSINESS TOOLKIT”

The CDC has created a toolkit for employers as they begin reopening their businesses. It includes a highly detailed “Restart Readiness Checklist” designed to help make returning to work as safe as possible. You should consult this checklist to ensure your reopening plan is following existing CDC requirements.

consult a lawyer 

Lastly, if you have any questions you should consult a lawyer on your business reopening plan to ensure it is compliant with all federal, state, and local requirements.


Mitch Snyder, at the time of this post, is a rising second-year law student at Penn State Dickinson Law. He graduated from Dickinson College where he studied Economics and Law & Policy. Currently, Mitch is pursuing certificates in both Civil and Criminal Litigation. He is an Associate Editor of the Dickinson Law Review, President of the Criminal Law Society, and a co-coach of the Dickinson College Mock Trial Team. He can be contacted at mps6411@psu.edu.

 

Sources:

CDC Resuming Business Toolkit

CDC Business Reopening FAQ

Pennsylvania Guidance for Businesses

OSHA Reopening Guidelines

NY Reopening Plan Template

https://www.forbes.com/sites/billconerly/2020/05/01/business-guide-to-reopening-thrive-in-the-economic-recovery/#1dc39ed324cd

https://www.forbes.com/sites/forbescommunicationscouncil/2020/07/22/five-keys-to-reopening-small-businesses-after-the-pandemic/#cc3a218295ae

https://www.natlawreview.com/article/temperature-screening-new-guidance-cdc-faqs-and-best-practices

https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act

https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees

https://www.cdc.gov/coronavirus/2019-ncov/community/general-business-faq.html

https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/businesses-employers.html

https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

https://www.cdc.gov/niosh/topics/emres/ppe.html

https://s3.amazonaws.com/assets.production.proskauer/uploads/4d739edfa3c20447d9dbf8fbe39ba8f0.pdf

Image Sources:

https://test.abmp.com/sites/abmp.com/files/btwyford/images/open%20sign.jpg

https://cdn.nextgov.com/media/img/upload/2020/05/12/NGtemp20200512/route-fifty-lead-image.jpg

https://www.houstonmethodist.org/-/media/Images/Contenthub/Article-Images/Coronavirus/Hub_CoronavirusSocialDistancing_Social.jpg

 

 

 

 

 

 

 

The Unique Challenges Women Entrepreneurs are Facing in the Pandemic

By: Allyson Lonas

Women entrepreneurs are facing unprecedented challenges during COVID-19. In this pandemic, women may not only be faced with the challenge of running a business from home but could be simultaneously in charge of their children’s care and maintaining the household. These women have been given the task of adapting to a new business environment, developing out-of-the-box thinking, and using their skills to conform to this new era of entrepreneurship. They have had to in order to keep their business afloat. So, we must prioritize these women and focus on providing capital to female business owners.

Why are women entrepreneurs suffering more than their male counterparts? 

The COVID-19 global crisis has revealed that our daily lives are built on the unpaid work of women. Although women have outpaced men in college attendance and degrees, the number of women engaged in unpaid work continues to outpace that of men. Crises tend to reinforce the idea men are responsible for putting bread on the table while women should take care of the children. In the United States, statistics from 2019 reveal that the average hours per day parents spent caring for their children within the home was higher for women, even when these women worked outside of the home. In fact, a woman employed full-time spends an average of 2 hours on household activities and caring for family members.

According to the Bureau of Labor Statistics, the percentage of women engaging in household activities is 84.9% compared to 71.4% of men. Women spend three times as many hours as men in unpaid care and domestic work, limiting their access to opportunities in the workforce. This leads to women entrepreneurs being at the heart of the COVID-19 response.

As the formal and informal supply of childcare declines, the demand for unpaid childcare provision falls on these women. According to UNESCO, 1.37 billion students (80 percent of the world’s student population) are back home as COVID-19 closures expand. Overwhelmingly, this constrains a parent’s ability to work-from-home with children back in the household. According to the National Bureau of Economic Research, working women bear the brunt of the COVID-19 recession, unlike previous downturns that hit working men the hardest. In the aftermath of the global financial crisis, men suffered the majority of job losses because males dominated the manufacturing and construction industries which suffered the biggest blow. But, Sociology Professor Aliya Hamid Rao, at Singapore Management University, found women took longer to return to work even after the last downturn as a result of women taking care of their families.

COVID-19 provides different challenges; now, the hardest hit industries are those where workers cannot telecommute. And evidence suggests that working women are more likely to have jobs that do not allow them to telecommute. The majority of women-owned businesses are hair salons, nail salons, and hospitality/food service industries. Additionally, with women taking on the role of household maintenance, those hours spent at home taking care of their children are hours that could be spent on income generation. This burden is at the heart of the motherhood penalty in the workforce. It is devastating for women who have spent their whole life building their businesses, both economically and from a mindfulness standpoint. Their business is their livelihood, their success, and years of hard work.

What can women entrepreneurs do…

Even though many women entrepreneurs are overwhelmed with business operations and are worried about keeping their doors open, there is a solution to their problem. The solution involves support: on the governmental and community level.

  • On March 27th, 2020, the Coronavirus Aid, Relief, and Economic Security (CARES) Act was enacted. The relief package was a $2 trillion economic relief package to protect people from the public health and economic impacts of COVID-19.
  • The Women’s Business Enterprise National Council provides a variety of options for women: funding options, grants, and financial resources, and business support tools. The coronavirus relief options include the Paycheck Protection Program, EIDL Loan Advance (providing $10,000 of economic relief to businesses experiencing temporary difficulties), SBA Express Bridge Loans, and SBA Debt Relief.
  • For small business owners, the Paycheck Protection Program resumed accepting applications on July 6 and is a crucial loan program providing loan forgiveness for retaining employees during the pandemic. On the Women’s Business Enterprise National Council website (link above), there is a “learn more” button to take you to a particular funding option where you can access additional program information, frequently asked questions, and view a direct application.
  • In Pennsylvania, we are fortunate that the Pennsylvania Department of Community and Economic Development has specific programs and funding to ensure that financial assistance reaches minority-owned and woman-owned businesses. So note: if you are a woman entrepreneur in another state, check and you may have similar assistance waiting for you!

With so many options available, the process might seem overwhelming and difficult. To help, here is a quick guide to help point women entrepreneurs in the right direction.

Even the playing field for obtaining financial help for female entrepreneurs is far from level. A recent study found that men were significantly more likely to secure funding than women when presenting the same business concept. Fortunately, there are non-traditional ways to obtain funding. The Capital Access Lab is a national initiative that aids to find, promote, and provide new kinds of capital to underserved entrepreneurs, including women. It will provide capital in the range of $250,000 to $1 million into three to five investment funds.

In addition, there are other programs to provide support for women. The company, EnrichHer, helps fund small businesses created by women. Their mission is to focus on social change for women and create opportunities for women-led businesses.

Verizon is even launching a mentoring program for women entrepreneurs affected by COVID-19. This program will connect women entrepreneurs and business owners with a network of women business leaders to guide them through the pandemic’s challenges. The goal is to help women entrepreneurs in a variety of ways.

The Women’s Bureau also helps women by developing policies to protect the interests of working women, promoting equality and economic security, and promoting quality work environments.

…and how can we help? 

Women entrepreneurs need us.

First, policymakers should consult women in economic planning and policies. Policies that do not consult women are less effective and create more harm. Before the pandemic, women struggled for equality, something that now seems to be further out of reach. The government and investors should refocus their attention once more on gender equality. Across the United States, 55% of the 20.5 million jobs lost in May were held by women. As the government shifts to rethinking its economy, it could aid the goals of equality. For example, improving the balance of women in companies’ leaderships.  Government subsidies could be used to replace pay for workers who need to provide childcare during the crisis due to school and daycare closures and are therefore unable to work, conditional on a continued employment relationship (where they can return to work immediately). Then they could partner with investors to channel funds into companies led by women. It is important we prioritize women entrepreneurs and help provide capital to them.

Second, we need to spread the word and promote women-owned businesses. If you know a local vendor, maybe try her restaurant for lunch instead of a mainstream establishment. If you are going for a morning coffee, visit your local barista. A simple share on Facebook can increase the business’s advertisement reach.

Lastly, we need to show support. Evidence suggests the impacts of the COVID-19 global recession will result in a prolonged dip in women’s incomes and labor force participation. Although these women have conquered the challenge of developing online strategies, revisited their business plans, and adapted to the customers’ needs in a time of crisis, they still need us. Women entrepreneurs are at the heart of this crisis and they need to know we are here to help!


Allyson Lonas, at the time of this post, is a rising second-year at Penn State Dickinson Law. Originally from Johnstown, Pennsylvania, Ally attended The Pennsylvania State University for her undergraduate degree and has interests in corporate law, antitrust law, and government law. In her free time, pre-COVID-19, she enjoyed traveling.

 

Sources:

https://www.sbc.senate.gov/public/_cache/files/9/7/97ac840c-28b7-4e49-b872-d30a995d8dae/F2CF1DD78E6D6C8C8C3BF58C6D1DDB2B.small-business-owner-s-guide-to-the-cares-act-final-.pdf

https://www.nytimes.com/2020/05/20/us/women-economy-jobs-coronavirus-gender.html.

https://home.treasury.gov/policy-issues/cares

https://www.wbenc.org/covid19/#financial

https://www.enrichher.com/about

https://www.usatoday.com/story/money/2020/06/16/verizon-launch-mentoring-program-women-small-businesses/3194324001/

https://www.un.org/sites/un2.un.org/files/policy_brief_on_covid_impact_on_women_9_apr_2020_updated.pdf

https://www.bls.gov/charts/american-time-use/activity-by-parent.htm

https://www.bls.gov/charts/american-time-use/activity-by-emp.htm

https://www.bls.gov/charts/american-time-use/activity-by-hldp.htm

https://www.bls.gov/news.release/pdf/atus.pdf

https://www.forbes.com/sites/maggiegermano/2019/03/27/women-are-working-more-than-ever-but-they-still-take-on-most-household-responsibilities/#33f131bb52e9

https://economictimes.indiatimes.com/magazines/panache/looking-at-the-pandemic-through-gender-lens-women-are-facing-the-brunt-of-covid-19-with-more-job-cuts-less-pay/articleshow/75735303.cms

https://www.cnbc.com/2020/05/07/how-covid-19-is-impacting-women-owned-small-businesses.html

https://www.dol.gov/agencies/wb/about

https://www.kauffman.org/capital-access-lab/

https://www.kauffman.org/wp-content/uploads/2019/12/capital_access_lab_exec_summary_FINAL.pdf

https://www.kauffman.org/our-grants/

Photo Sources:

Image 1: https://www.cnbc.com/2020/05/07/how-covid-19-is-impacting-women-owned-small-businesses.html (this link is above too)

Image 2: https://www.forbes.com/sites/janicegassam/2020/04/17/7-companies-offering-covid-19-relief-funds-for-diverse-business-owners/#5455887e591b

Image 3: https://www.wabe.org/women-are-losing-more-jobs-in-coronavirus-shutdowns/

 

Generic.com: The New Landscape of Domain Name Trademarks

By: Jeremy Ulm

While the Supreme Court has made many important and eye-catching decisions in this session, the Court’s ruling in United States Patent and Trademark Office v. Booking.com B. V. may be one of the most impactful for entrepreneurs and small businesses. The Court held that domain names using a generic mark followed by a top-level domain indicator (.com, .org, etc.) may qualify for trademark protection. This ruling opposes the USPTO’s stance, and the accepted trademark law convention, that the addition of a top-level domain indicator does not alter the distinctiveness of a mark.

What is a generic trademark? 

One of the requirements for trademark protection under the Lanham Act (the statute that governs modern-day trademark law) is that the mark must be distinctive. Distinctive marks identify the specific source of the product, while generic marks merely identify the type of product. Consider the difference between a unique and distinctive mark such as “Apple Computers” and a generic mark such as “Computers.” A generic mark cannot receive trademark protection, creating a high level of importance for the classification of a mark. In the Booking.com case, both parties acknowledged that the term “booking” on its own is generic, as it merely identifies the type of services provided. This leaves the question of whether a mark is still generic when the .com indicator is attached.

what does the .com indicator actually communicate to consumers?

Prior to the Booking.com ruling, the .com indicator did not affect the distinctiveness, and therefore the protectability, of a mark.  Even before Congress passed the Lanham Act (the statute that governs modern-day trademark law), the Supreme Court had held that the addition of a business designation (Inc., company, etc.) to the end of a mark did not impact the mark’s ability to indicate the product’s source. Similarly, the .com indicator, abbreviating “commercial”, had been accepted to not change the distinctiveness of a mark.

While that is all well and good in a theoretical or academic setting, trademark law has evolved to incorporate a practical element of consumer understanding. For an average consumer, a domain name can be much more than the letter that they type into their computer. The domain name tells consumers where they are on the internet, and who controls the space that they have entered. When a consumer goes to “generic.com”, they would not expect to be taken to a website offering goods from all producers of the generic class of goods. They would expect to be taken to the website of a specific producer of that class of goods because they know that only one entity can own and control that domain name.

domain names vs. trademarks 

Generally speaking, what separates trademarks from mere words and descriptions is how the words are used.

If the words are being used to indicate the source of a good or service, then it is being used as a trademark. This principle applies to domain names as well. A domain name may be used to tell you the owner or source of the website that you are visiting, or it may just serve as the digital address of that website. What separates Booking.com from many other “generic.com” websites is the incorporation of the .com indicator into their branding (see image above). In advertisements, the company is consistent with using the entire Booking.com name and even incorporates the .com indicator into its slogan, “booking dot yeah.” This helps them separate Booking.com from other hotel booking websites, and ultimately created the consumer impression that led to their Supreme Court victory.

what did the court really change? 

            It is unclear how the Court’s decision will impact the USPTO’s policies on granting trademarks to “generic.com” applicants. The Court made it clear that they weren’t telling the USPTO that all “generic.com” domain names are now deserving of protection, just that there is the possibility that consumers may come to associate “generic.com” with a specific brand to the point that it deserves protection. Keep in mind, however, that the Supreme Court gave the USPTO flexibility in how they determine which “generic.com” marks make it over that hurdle. In a footnote, Justice Ginsburg even mentions that dictionary definitions and the plain understanding of the mark may determine its status, which does not differ from the USPTO’s logic in classifying “generic.com” marks as generic up to this point.

what does this mean for your business?

Unfortunately, it is too soon to give a concrete answer to that question. The Supreme Court has opened the door for the protection of “generic.com” domain names, but that doesn’t necessarily mean you can just walk on in. There are however practical considerations to be made in the aftermath of this case.

if a competitor trademarks “generic.com”

  • Fair use still applies. Booking.com may have a trademark on that name, but that doesn’t mean that you can’t still use the term “booking” to describe the services that your website offers.
  • Trademark infringement still requires a likelihood of consumer confusion. Even if you use “booking” in your domain name, there are ways to separate yourself from the trademark of Booking.com.
  • Generic.com is still a weak mark. Consumers are much less likely to see the use of a generic term within a domain name and immediately associate it with the trademark holder. Ebooking.com and Booking.com are sufficiently different to avoid confusion, given the generic and necessary nature of the word “booking.”

if You own the “generic.com” domain name

  • Now is your chance to protect that domain name with a trademark. While the rights to a domain name on their own are substantial, additional protection of your intellectual property is always preferable. Keep in mind that getting the trademark is still far from a guarantee and that you will have to show what makes your “generic.com” more than just a generic .com.
  • Build your brand around the .com indicator. A travel company named “Booking” would have no chance of trademarking that name as it is clearly generic in the field. By building their brand around the name “Booking.com” as a whole, their business has found a way to transform their generic mark into a protectable trademark. You may be able to as well, but only if you put in the work to make your domain name its own brand.

Jeremy Ulm, at the time of this post, is a rising third-year student at Penn State Dickinson Law. He is pursuing an Entrepreneurship Law Certificate with a Transactional Concentration.  He is also a Comments Editor for the Dickinson Law Review. To contact him, send emails to Jgu2@psu.edu

 

Sources

United States PTO v. Booking.com B.V., 2020 WL 3518365 (2020).

Goodyear’s India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U. S. 598 (1888).

  • 7:17.50.Internet domain names, 1 McCarthy on Trademarks and Unfair Competition § 7:17.50 (5th ed.).
  • 25A:11.The nature of internet domain names, 5 McCarthy on Trademarks and Unfair Competition § 25A:11 (5th ed.).

Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4 (2d Cir. 1976).

 

Reopening Amidst COVID-19: How to Ensure Your Business Isn’t Discriminating Against Older Employees

By: Philip J. Petrina

Amidst the country reopening following COVID-19 shutdown orders, employers must be cautious of (mistakenly) violating the Discrimination in Employment Act (ADEA) either directly or indirectly.

According to recent data provided by the Centers for Disease Control (CDC), COVID-19 adversely affects the health of those 65 and older more than any other demographic.

In fact, as of June 6th, the cumulative rate of COVID-19 hospitalizations among those 65 and older − per 100,000 − was 273.8 people. This rate was two times that of the next closest age group – those between 50 and 64.

As a result, many employers are worried about their older employees’ health as millions of workers across America return to work. However, it is important for employers to remember they must still comply with the ADEA. In order to avoid legal complications, employers should understand (1) what the ADEA is, (2) why it may relate to the Americans with Disabilities Act (ADA), and (3) how they can ensure their business is still in compliance.

understanding the age discrimination in employment act

The ADEA applies to private employers with 20 or more employees, state and local governments, employment agencies, labor organizations, and the federal government. It protects applicants and employees who are 40 years old or older from employment age-discrimination with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. To raise an age discrimination claim, a plaintiff-employee would need to show four elements:

  1. They are a member of the protected class (ages 40+);
  2. They were subjected to an adverse employment action as a result of their age (being forced out of the office, additional medical testing, laid off, etc…)
  3. Substantially younger persons filled the position the plaintiff sought, was discharged from, or was prevented from performing; and
  4. They were qualified to do the job for which they were laid off or not hired.

If a plaintiff demonstrates the above four elements, the burden would then shift to the employer to prove a legitimate, non-discriminatory reason for the challenged employment action.

Understandably, in an effort to protect this vulnerable population, many employers may wish to place older employees on involuntary leave, mandate they work from home, furlough, layoff, or even refuse to hire such employees solely because of their risk of severe illness from COVID-19.

The unemployment rate of those older than 65 rose to 13.2% in May from 3.7% in March.

However, employers should think twice about any adverse employment decisions regarding older employees. For example, if an employer is allowing others to come into work while forcing older employees to remain out of the office, it would almost certainly be discriminatory under the ADEA, and a steep legal hurdle to overcome for employers. It is also important to note that 8 in 10 employees over 65 do not even have jobs capable of being completed via telework.

how does this relate to the Americans with disabilities act (ADA)? 

Many older individuals also have a number of pre-existing conditions, comorbidities, and other disabilities as a result of their age. Similar to the ADEA, it is illegal for employers to discriminate against an individual because of their disabilities under the ADA. However, the Equal Employment Opportunity Commission (EEOC) noted one key difference between the two Acts in their additional COVID-19 guidance that employers must understand:

Under the ADA, an employee has a right to request a reasonable accommodation if an employee has a known disability, and an employer must respect such accommodation. On the other hand, the ADEA does not include a right to reasonable accommodation for older workers due to their age. Thus, employers may offer voluntary accommodations to older employees under the ADEA, but they are not obligated by law to do so. Additionally, this means employers may offer older employees options to work remotely, even if they do not offer the same options to younger workers.

How to ensure compliance with the adea

If you are reopening your business − and allowing younger employees to return to work − you cannot require older employees to work remotely, impose additional restrictions or tests upon them, or furlough or layoff on account of their age. As an employer, you may certainly offer flexibility in the interest of their health, but such accommodations cannot be mandatory. Subsequently, an older employer cannot request a mandatory accommodation under the ADEA, and may only do so if they have a qualifying disability under the ADA.

In sum, do not force older employees to stay at home if they decide to come into work. This would violate the ADEA and may lead to civil litigation. It is encouraged that we all respect the older population during this difficult time. To do so we must offer them the flexibility and choices they rightfully deserve.


Phil Petrina, at the time of this post, is a rising 2L of Penn State Dickinson Law, a member of the Class of 2022. Phil is interested in corporate business law, healthcare law, and litigation. He is a Class Representative to the Student Bar Association and a Pennsylvania Commonwealth Scholar. Phil can be contacted at pjp5327@psu.edu.

 

Sources:

https://www.usatoday.com/story/money/personalfinance/2020/06/19/coronavirus-reopening-older-workers-cant-telecommute-raising-risks/3210953001/

https://www.ohioemployerlawblog.com/2020/06/coronavirus-update-6112020-covid-19-is.html

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

https://www.jdsupra.com/legalnews/covid-19-and-the-age-discrimination-in-81865/

https://www.govinfo.gov/content/pkg/USCODE-2011-title29/html/USCODE-2011-title29-chap14.htm

https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html

https://www.longofirm.com/how-to-prove-age-discrimination-in-the-workplace/

https://www.ada.gov/cguide.htm

Photo Sources:

https://www.forbes.com/sites/ericbachman/2020/04/30/covid-19-layoff-or-pretext-for-age-discrimination-against-older-employees/#2cce5af44c56

https://en.wikipedia.org/wiki/Equal_Employment_Opportunity_Commission

Judge Jessica E. Brewbaker | Entrepreneur of the Month | July 2020

By: Maame Boateng

I had the pleasure of interviewing Judge Jessica Brewbaker as our July Entrepreneur of the Month. One may be surprised that a judge from Cumberland County could also qualify as an “entrepreneur,” but this judge certainly has those qualities and mindset. Entrepreneurs are innovative and problem solvers. And social entrepreneurs make an impact on society. Judge Brewbaker is innovative, is a problem solver, and does make an impact on society.

a judge and an entrepreneur

Judge Brewbaker always knew that she wanted to be a judge, but she had no idea that she would end up being an entrepreneur within the court system. After graduating as Dickinson Law’s class of 2000 valedictorian, she served as an attorney in the Cumberland County Public Defender Office. Then, after five years, she was elected as Magisterial District Judge for the Carlisle Borough. During that time, she became interested in ways to solve heroin abuse and aid in the recovery. Addiction stood out as a major issue in the cases that came before Judge Brewbaker, an issue for which she wanted to design a solution.

“When I had 31 cases, 19 of them had a heroin component and I said this is an issue and we need to address it.”

It wasn’t just about the numbers for Judge Brewbaker. It was more personal than that. She understands the repercussions of drug use. Judge Brewbaker’s family history involves drug use and mental health struggles, so she has a deep-rooted interest in drug treatment. So, knowing something needed to be done, Judge Brewbaker and her team started a Heroine Opioid Overdose Coalition which focuses on educating the community about heroin addiction. But her innovativeness did not stop there.

toms court and oic

In 2018,  Judge Brewbaker started TOMS Court which addresses participants’ mental health treatment needs in lieu of incarceration or standard probation. This made it even more crucial for her to jump at the opportunity to run another program that tackled another issue she was particularly interested in; drug treatment.  Entrepreneurs know that for a problem to be solved, they have to be proactive and not wait for permission before they act. So, that same year, in addition to her duties as a judge for the Cumberland County Court of Common Pleas, she volunteered to run the Cumberland County Opioid Intervention Court (“OIC“).

“In 2016, we found that two-thirds of overdose deaths in Cumberland County had criminal justice involvement. Those were people involved in our system and yet they still died. We knew we could do better than that.”

When the opportunity to address drug issues presented itself, she quickly grabbed it knowing the impact of such treatment programs. “I said Me, Me and I always say, I must have been the only one who volunteered to do it…” Judge Brewbaker’s response to the call to spearhead OIC has been one of the most fulfilling things she has done since she became a judge.

OIC is an intensive early intervention program designed to address the treatment needs of people with an opiate abuse history and to prevent the use of drugs while their case proceeds through the criminal courts. The goal is to prevent fatal overdoses and save lives. The concept is modeled after a similar program administered by the Buffalo Court in New York. Under the OIC, persons who are arrested or who have charges filed against them are given an option to get assistance from OIC to aid in their recovery. Anyone who qualifies to enter the program will undergo a detoxification exercise. Qualified participants are also required to attend daily meetings with Judge Brewbaker, follow a treatment and recovery plan, and be subjected to frequent and random drug tests. If a participant tests positive for opiates at any point during the program, they are sent to Cumberland County Prison in order to prevent them from overdosing.

Because of Judge Brewbaker’s determination to ensure that the OIC was creating a significant impact, Cumberland County has recognized a substantial decrease in overdose deaths, with 41 overdose deaths in 2019 compared to 86 in 2017 and 58 in 2018.

In spite of challenges Judge Brewbaker and her team continue to face when running the OIC, she believes in being innovative in order to address challenges in any community.

“The reason problem-solving programs like OIC work is because it is individualized justice. What fits one person doesn’t fit another and the justice system has been wired to do that traditionally. Part of the innovation allows me as a judge to be a cheerleader, an advocate, and to encourage our participants.”

According to Judge Brewbaker, participants in recovery find it difficult to find housing and employment due to their low credit scores and criminal records. She and her team engage in extensive advocacy reminding employers and landlords that the OIC Team closely monitors participants’ drug usage to ensure their compliance and to build trust between them and potential landlords and employers. Her passion for drug treatment includes ensuring that participants are well integrated into society.

Work, family, and support 

Judge Brewbaker particularly enjoys spending time with her family. She attributes her work-life balance to a very supportive family, an amazing team, and her healthy lifestyle. One of Judge Brewbaker’s daily past times and a necessity for maintaining her sanity is exercise.  She finds it so important as a stress reliever and she teaches and emphasizes positive stress relievers in the legal profession as a whole. She also has confidence in her team who are always ready to jump in when she is not able to.

In spite of her awareness of her need to take care of herself, she still sees her job as one that requires her to constantly be engaged which is evident in most entrepreneurs who are unable to turn their entrepreneurial brain off. For me, it is a matter of life and death and we have to act quickly.” Judge Brewbaker’s husband always reminds her to take care of herself first so she can better extend that support to others. This has been difficult for her, but she gets better at it every day.

Words to live by 

Judge Brewbaker encourages upcoming entrepreneurs to be courageous. She shared a story of one of the participants who started a “Sober Bar,” a place for people in recovery to hang out. It has transformed into a recovery center for many. She also implored aspiring entrepreneurs to listen effectively, to be more empathetic and to maintain positive relationships with their clients.

She also advised entrepreneurs to be passionate about what they do because it is one of the most important traits of a successful entrepreneur. “Find what you love and see if there’s a way to make a career out of it.” Judge Brewbaker loves people, has a passion for mental health and drug issues and that has helped her sustain the energy for OIC.

Finally, she talked about risk-taking and persistence which she emphasized as great assets to have as an entrepreneur.

“While it will be risky, any career path is risky especially if you are being innovative. People did not like the court when I started it. There was a lot of pushback but now the public perception has changed with the positive feedback we’ve had.”

Judge Brewbaker’s innovation and problem-solving skills have enabled her to make a significant impact on the court system and in addressing the opioid crisis, all of which prove that judges can be social entrepreneurs too.

Read more about the Cumberland County Opioid Intervention Court on the county’s website.

recommended reading

Dreamland: The True Tale of America’s Opiate Pandemic by Sam Quinonis (Judge Brewbaker teaches at Dickinson Law school and this book is one of the recommended textbooks.)

 

I am Pilgrim by Terry Hayes (This is one of her favorite reads.)

 

 


Maame Boateng, at the time of this post, is a rising 2L at Penn State Dickinson Law. Maame is from Ghana and is interested in corporate law and international law. Maame currently serves as an Associate Editor of the Dickinson Law Review, Vice-President of the Business Law Society, and Treasurer for the Black Law Students Association. She is also a Research Assistant to Prof. Prince and Prof. Badissy.

 

 

Photo Sources:

https://cumberlink.com/news/local/cumberland-county-celebrates-two-years-of-success-with-opioid-intervention-court/article_35ae35eb-91c9-5659-bebf-debfe1a43513.html

https://ballotpedia.org/Jessica_E._Brewbaker

https://www.ccpa.net/1957/Common-Pleas-Judges

amazon.com