The Coronavirus Distraction: Good News for Employers!

Reading the title, some of you may be in two camps of people. The first camp of you may be rolling your eyes and thinking “Oh great, another Coronavirus post. There couldn’t possibly be anything else I could learn.” While the other camp may be thinking “Great! Another Coronavirus post! Give me all the helpful information and advice.” If you are in the first camp of people, you can breathe a sigh of relief, this post has absolutely nothing to do with how the coronavirus may (or may not be) impacting your workplace. However, the good news is both camps of people will find this post to be very useful. The Coronavirus (not to be confused with the hangover you feel after drinking a few Coronas) has done a great job of distracting us all from the truly great things going on in the federal government for employers. Don’t believe me? Here’s an example: (be warned, what I’m about to say next contains a lot of numbers)

Recently, the EEOC released statistics regarding the filing of EEOC charges across the nation for the past 10 years. If you’re an employer in the state of Ohio, I have good news! In 2009 the total number of charges filed by individuals from the state of Ohio was 3,032. Over the last 10 years that number has fluctuated but has overall decreased. In fact, in 2019 the total number of charges filed dropped down to 2,392! The good news isn’t just reserved for employers in Ohio. Overall, nationwide the number of EEOC charges filed has declined. Specifically, during Fiscal Years 2010, 2011, and 2012, EEOC charges averaged close to 100,000 per year. In Fiscal Year 2019, the charges have declined almost 28% to 72,675 per year.

It may be tempting to get ahead of yourself and wishfully think that soon there will be NO MORE EEOC CHARGES. I don’t mean to rain on your parade, however, the decline in charges seems to be connected to the unemployment rates. When unemployment is low, there are fewer charges filed. So what does this mean? Happy and gainfully employed employees do not file charges. But I’m sure you knew that already. So how can you use these numbers in your favor? Well if you live in Ohio, the statistics show that more than half of the charges filed allege retaliation. To help decrease these numbers, employers should focus on training and retaining management level employees on retaliation and strengthen their anti-retaliation polices. This does not mean ignore all of the policies and concerns that relate to other types of charges that could be filed (i.e. race, sex, age, disability, etc.)! In the meantime employers (and employment lawyers) should pat themselves on the back for their part in keeping the numbers down.

The EEOC statistics are one example. But, I bet you didn’t hear about the 7th Circuit case. A couple weeks ago in the Stelter v. Wisconsin Physicians Service Ins. Corp. case, the 7th Circuit determined that an employee was not qualified for her job because the documented attendance and performance issues that the employee had predated her disability. The 7th Circuit went on to note that erratic absences for which no notice was provided – even if caused by a disability – are not protected by the ADA, asserting, “The fact is that in most cases, attendance . . . is a basic requirement of most jobs.” If that’s not a good enough ruling for you, the 7th Circuit went on to reject the employee’s claim of failure to accommodate because she never requested an accommodation. Wow!

Now, am I saying that the Coronavirus is some big conspiracy theory to distract from the obvious wins going in the employers’ favor this year? No. But, what I am saying is that we shouldn’t let the coronavirus chaos distract us from continuing to move forward and from celebrating the wins when they come along. With that said, please reach out to your local L&E attorney to discuss or celebrate the recent wins in your area and to. Also, please return all toilet paper to the stores that have sold out. It will not protect you from the Coronavirus. For practical tips on protecting and preparing your workplace for the Coronavirus check out Coronavirus? Flu? Practical Approaches for the Workplace.