As we age, our healthcare needs increase, and long-term care becomes a possibility for many. Unfortunately, the cost of long-term care is often exorbitant, and can easily wipe out a moderate-income family's savings. However, with proper planning, families can prepare for these expenses and ensure that they receive the care they need. One effective way to do this is by creating a Medicaid trust.
A Medicaid trust is a legal tool used to protect assets from the high cost of long-term care while still allowing individuals to qualify for Medicaid. Medicaid is a government-funded healthcare program for low-income individuals, including those who require long-term care. However, to qualify for Medicaid, individuals must meet strict income and asset requirements. By creating a Medicaid trust, families can protect their assets while still qualifying for Medicaid, ensuring that they receive the care they need.
Moderate-income families may be hesitant to create a Medicaid trust because they believe trusts are only for the wealthy. However, exactly the opposite is true. It is the moderate-income families who have worked hard to accumulate savings and assets who are most likely to lose most of their legacy due to long-term care costs.
By creating a Medicaid trust, families can transfer their assets to the trust, which is managed by a trustee. The assets themselves cannot be taken out of trust, but the income from those assets can be used to support the person who created the trust. If this is done at least five years before you need Medicaid assistance, those savings and assets in the trust are protected and can be passed on to their heirs even if you receive Medicaid assistance.
Creating a Medicaid trust does require some planning and legal expertise, so it is important to work with an experienced attorney who can help guide you through the process. However, the benefits of a Medicaid trust are well worth the effort. By protecting their assets, families can ensure that they receive the care they need without having to worry about the high cost of long-term care.
Happy Birthday America
(even if you are going through a phase I don't totally understand)
Let's face it, we are not always at our best. And yet we still have birthdays, and the people who love us celebrate with us.
If we are honest with ourselves, there is at least one year, if not more, in which we were difficult for those around us. Whether we were tantruming toddlers, angsty adolescents, young adults searching for traction in life, having a mid life crisis, or in the middle of some other difficult time.
And in those years, people in our world might have had to squint a little to see the building blocks of a good human that had come before, and the promise for the things that come after, hidden behind the chaos of the moment. Yet they still sang happy birthday, gave us presents, showed us love.
This is how I feel today. All that is easy to see is a citizenry that seems to live in at least two if not more entirely separate universes and cannot hear each other at all, a series of potentially devastating Supreme Court decisions that only serve to increase the polarization, and a profound lack of a shared vision for who we are.
Among other things adding to the noise, the chaos, and the worry that we are not who we need to be right now to face the challenges to come: war in the Ukraine, mass shootings, climate change, inflation without real economic growth, and a pandemic that is not yet over.
If I squint in just the right way, I can see the building blocks, as well as the promise for the future. If we do not burn it down, or begin selectively choosing which parts to honor, we have a pretty remarkable balance of power in our government that should allow us to continue to evolve in a rationale and principled way. We actually have the ability and the knowledge to solve a great deal of the problems we face, if we can find the collective will.
If we had some way to check in with every resident of this country, I think we would find most people have a better capacity to hear each other and work together than we are currently led to believe.
As Albert Camus once wrote:
"I should like to be able to love my country and still love justice."
I am determined to do both, but it requires all of us to be the people at the birthday party and after who see and hear beyond the chaos, and who can help guide this birthday child in the future.
Happy birthday, America- I love you anyway.
Beyond Abortion Rights
Why the Impact of the Supreme Court Decision May Be Deeper and Broader Than You Think
This is not my usual law firm blog post. I usually keep my personal beliefs about state and national affairs at arms-length from what I post on behalf of my law firm.
But I believe that these kinds of personal rules do not exist to guarantee they are never broken- they exist so that we are intentional about crossing a line, and only do so if it is important and the right thing to do.
And right now I believe that breaking this rule is both important and the right thing to do.
So that I don’t bury the lead, and lose you in a deep dive into the recent Supreme Court decision overruling Roe v. Wade, here is why you need to keep reading: unless you are one of the surprisingly few people who are not currently protected by federal laws on a wide range of matters including discrimination and wage and hour laws, you should be at least as concerned about what comes next as anyone else.
This is Not Just About Abortion Rights
A wise client once told me- if you shine a penlight on all of the specific things, you will get a distorted view of reality. Some may help and some may hurt your cause, but you have to turn on the overhead light to really understand the story.
With the penlight focused on reproductive rights alone, there is plenty to be alarmed about. I am deeply worried about women and their health and ability to engage as equal citizens of this country, and what actually awaits unplanned children in states that do not allow choice. You may be worried about the same thing. On the other hand, you may be deeply worried about the lives of unborn children and feel there is a profound moral imperative at play here. I get that.
But that is not the overhead light. I hope you will keep reading, wherever you land on the question of abortion.
Let’s move to a flashlight instead of a penlight- still not the overhead light, but one which shows a little more of the picture. In this beam of light are the statements in Justice Thomas’ concurring opinion, specifically inviting the Court to overrule precedent protecting the right to use birth control and same sex marriage. Yes, he really said that. Specifically:
It was not subtle. Justice Thomas does not mention the Loving decision (declaring state bans on interracial marriage unconstitutional) anywhere in his concurring opinion- perhaps that is a bridge too far even for him. However, the analytic approach he champions here would put Loving squarely in the Court’s sights as well. This alone means this decision should be considered through a lens broader than only the abortion question.
1868 May Always be With Us
But let’s say you are neither a woman of childbearing age, a member of the LGBTQ+ community, or in an interracial marriage. Let’s grab a slightly larger flashlight- the big, boxy kind.
At its analytical bottom, the Supreme Court’s decision overturning Roe v. Wade rests on the idea that our 14th Amendment jurisprudence- specifically, the judiciary’s authority to recognize rights not specifically set forth in the Constitution- should be guided by whether the claimed right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty.” In its analysis, the Court relied extensively on what was “deeply rooted in our history and tradition” as of the passage of the 14th Amendment in 1868.
Please think about that for a minute. What was deeply rooted in our tradition in 1868? We had abolished slavery- surely of critical importance in the moment and beyond to those who were the victims of it, but by most measures of our current day values that is setting the bar pretty low.
Other than that, racism, sexism, disregard for people without economic status, and other forms of bigotry were very much part of our culture and “deeply rooted” traditions. As of 1968 the right of Black Americans to vote was still not enumerated in the Constitution, and the right of women to vote would not be so enumerated until 1920. What this alone means for how the Court will view equal protection issues going forward is troubling.
Some Historical Context for Why We Are Worried
Now it is time for the overhead light. The “double tap” of this decision is not only the reversion to 150 years ago for the final authority on what is a fundamental right, but also the near complete retreat from the doctrine of stare decisis, and a willingness that we have rarely seen to take a 180 degree turn from established Supreme Court precedent.
Together, these two things create a threat that you need to understand.
We have basically three levels of law in our country:
With respect to discrimination, the national baseline on which we have relied in recent decades are federal statutes which apply in every state whether the state’s government wants them or not, prohibiting discrimination in private or public employment on the basis of sex, race, national origin, age, disability, and religion.
When the first of these laws, the Civil Rights Act, was passed in the late 1960’s, there was a legal fight about whether it was within the federal government’s authority to prohibit discrimination by private employers. Ultimately it was upheld by the Supreme Court as an exercise of the powers under the Commerce Clause, on the theory that these actions could have an impact on interstate commerce. This, like the analysis the current Court decries in Roe, was based on what some have plausibly argued is a stretch from what was specifically enumerated in the Constitution regarding federal authority.
This was also the rationale used by the Supreme Court thirty years earlier to uphold the federal government’s Fair Labor Standards Act, which established minimum wage and working conditions applicable to all of the states.
This is All of Us
The reason for this little history lesson is this: if we are to accept Justice Thomas’ invitation to strip the Constitution to its studs, the majority’s insistence that fundamental rights are only defined by our values 150 years ago, and the majority’s conclusion that precedent can be overturned so lightly, we may be left with a system in which we have overturned the Commerce Clause justification for federal action to create uniform rules that protect workers, and all of these protections which have been part of the fabric of our lives for multiple generations could vanish.
This would not just be two Americas, but potentially 50.
You may be reading this and saying to yourself, well, maybe that’s not so bad. Maybe that is elevating states’ rights and curbing federal government overreach. Maybe that is what you believe in.
I understand. This debate is not new. The one about organizing a nation around varying policies enacted by each of the states as a pure form of democracy versus having some level of authority applicable to the entire nation that acts as a backstop, safety net, or protector of certain rights. Our founders debated this among themselves, vigorously and articulately.
But I am asking us, even for just a minute, to step away from that ideological divide and ask ourselves whether we value the world that we, our parents, and for most of us our grandparents, have lived their lives in. Whether we value the fact that there is some set of things- rights, basic economic safety nets, some version of equality- that are not entirely optional based on what state you live in or how the political winds blow in that state. Because this is what is at stake.
For me, I do value these things. Personally and professionally. I think about the thousands of people we have helped over the years with employment issues. To name a few:
This is why the question of reproductive rights may not be the only critical implication of the recent Supreme Court decision, as important as that piece of it feels to so many of us right now.
I am not asking you to sign a petition, support a particular party or candidate, or really do anything affirmative. I am actually unsure what the best thing to do is right now.
I am just asking that you pay attention, because this decision and whatever comes after it may change way more than you understood, and affect you or your family in ways you had not considered.
And I am also reminding you that this is what we do- protecting people from discriminatory or oppressive conditions to the extent we are able under the law. We will be here for you no matter what.
How a Tight Labor Market Increases Non Compete Risk
A record 4.5 million Americans quit or changed jobs in March, 2022. Employers are reporting increased pressure to raise pay and offer enhanced benefits in order to attract and retain their top talent.
That is the carrot. There is also a stick, which is enforcement of non compete agreements, or at least threats to enforce them. The good news is that if you are asked to sign a non compete for a new job, you may have more negotiating leverage than is usually the case, given the tight labor market.
The bad news is that your current employer may be more likely to try to hold you to whatever agreement you signed when you started your job. Though retaining key employees for the sake of retaining them is not one of the reasons employers can enforce these agreements (see below), there is a stronger incentive than anytime in recent history for employers to try.
The Basic Rules of Non Compete Enforcement
If you live or work in Massachusetts, and signed your non compete on or after October 1, 2018, your agreement is subject to the requirements of the new non compete statute. These requirements include: (i) a provision to pay you half your highest base salary for the duration of the non compete; and (ii) evidence that you were given ten days to review the agreement before signing, and advised to consult with counsel. Additionally, agreements subject to this law cannot be enforced against you if you are non-exempt from overtime or if you are terminated without cause.
Even if your agreement is dated before October, 2018, there are many opportunities to question enforcement. First, enforcement must be necessary to protect a "legitimate interest" of your employer. This basically means it needs to protect either the employer's confidential information or its good will (usually in a sales context, the customer relationships you have developed by working at the company). Simply not wanting you to leave because it would be difficult to replace you is not a legitimate interest for purposes of a non compete.
Second, the length of the restricted period, or the geographic scope, could be unreasonable in light of the interests the employer is trying to protect. Anything over a year, or that extends to a broader territory than you actually worked in, could be subject to challenge on this basis.
Finally, there are things your employer could have done to call the agreement into question. Examples include failing to live up to its agreements with you, or significant changes in your compensation or responsibilities after signing the original agreement.
What to Do if You Are Thinking of Leaving a Job
If you are thinking about leaving your job, it is best to speak to an attorney before you accept another offer and give your notice. What many people don't realize until it is too late is that their new employer might rescind the offer if they are threatened with litigation over a non compete. The employee then finds themselves out of their old job but without a new one to go to.
In contrast, if you know your rights ahead of time, you can make an informed decision not only about giving your notice, but also how you discuss the matter with your prospective new employer. This way you will know before you quit whether the new employer will stand by you in the event of a dispute, or whether you will be out of a job if your old employer threatens suit.
What to Do if You Are Threatened With a Non Compete Lawsuit
This may come as a simple email from your boss or Human Resources. It could also be a cease and desist letter, usually written by a lawyer demanding that you stop doing what you are doing (i.e., taking the new job). Neither of these require you to respond. They also don't necessarily mean that your employer is going to take the next step and file a lawsuit.
However, it is almost always a good idea to consult an attorney as soon as you receive a threat of a lawsuit. Not only can this help give you clarity and often peace of mind about your level of risk, but it is also a great opportunity to negotiate a resolution with your former employer that will allow you to take the new job and address any legitimate concerns they may have.
How We Can Help
We offer a flat fee review of your agreement, as well as negotiation with your employer and, if needed, litigation defense. It starts with an initial call, which is absolutely free. Just click the button below to schedule a call back from a member of our team, or call us directly at (781) 784-2322.
Let's face it, it has been a long road for all of us since the first lockdowns in March 2020. It can be discouraging to look around now, almost two years later, and see Omicron infections and supply chain issues taking us back to the uncertainty and anxiety of the early days of the pandemic. Many have lost loved ones, suffer long term health impacts from a COVID infection, or have seen their business or professional landscape fundamentally changed. No question, it is hard.
But we believe there is reason for hope. We believe we all learned how to do things during the pandemic that we didn't have mastery of before, things that will get us through this next wave and see us stronger and better on the other side.
And we know we can’t settle for waiting for the world to make sense. People still have problems that need solutions, disputes that need to be resolved, and plans they need to make for themselves and their families. People still need to know they matter, and that they are a priority for the professionals to whom they have given their trust.
We also know, almost two years in, that we didn't wait for the world to make sense, and probably you didn't either. Since the beginning of the lockdown in mid-March, 2020, we have learned how to connect with each other and with our clients in an ever-changing landscape. We have learned how to evaluate and adjust at a much more rapid rate. In that time, we have completed and resolved estate planning, employment and business matters for over 400 individuals, families and small businesses.
Forget the "New Normal"
That's why, as we welcome 2022 and whatever it has to bring, we are not satisfied with this idea of a "new normal." There are various definitions of "new normal" across the internet:
Simply adopting a new "standard," "typical" or "expected" does not seem to capture the true essence of what we all have just been through. Sure, maybe we will be wearing masks and getting vaccine boosters for a while. I personally don't intend to give up online grocery shopping anytime soon.
But it is much more than that. Remember when we couldn't always find the food we wanted? So we learned how to cook different things. When there seemed to be no commercial yeast anywhere on the planet? So we all learned to make and maintain sourdough starter. Or that your parents who could barely operate the internet before are now zooming with your children?
What we all really learned is how to adapt and adjust. Those are lessons that will stop adding value after a while if we are just stepping onto a new plateau, a changed but still static landscape of a "new normal."
Meet the New Exceptional
A "new exceptional" will look different for different people, but will include holding onto the inventiveness that got us through the last two years as well as the concrete skills we have picked up along the way.
For our team, this what I believe it looks like:
The challenges will be different in 2022, probably, but there will still be challenges. We are stronger and better able to address those challenges than we were two years ago. I believe we will be yet stronger and better in 2023, if we maintain the mindset that got us here so far. And I know we will be here for you throughout, always looking for the path to exceptional.
In Closing, a Personal Note
This post would not be complete if I didn't share what I believe the "new exceptional" means to me. As for most people I know, life has continued to happen during the pandemic. That means there are losses we have to grieve, fears we have to face, and all of the things we have to deal with as caring humans existing with other humans. Those all would have happened anyway, but the overlap with a global pandemic has been something I think we all struggle with at times.
The past two years for me have these takeaways:
One, they have rekindled an innovative spirit I do not want to lose. I feel empowered that when there is a cream cheese shortage, I can figure out how to make it myself. It's not the cream cheese that matters- there are other examples perhaps more relevant to my law practice- but the belief that there is always a way around an obstacle.
Tw0, the pandemic, and life happening, has forced a deeper reflection on what is important to me, and what values I want myself and my firm to operate by. I plan to continue to operate with a spirit of optimism, generosity, persistence, and curiosity, and to use those principles to guide how I show up in my personal life and in our decision-making within my team and our services to you. And I plan to hold onto the faith that if the last two years haven't beaten those out of me, whatever the future holds can't either.
Wishing everyone reading this (and everyone else too) an exceptional 2022...
3 Easy Estate Planning Steps for the Second COVID-19 Wave
We are in the next COVID-19 wave in Massachusetts. Just as we had started to resume activities that were suspended for the first part of the year. Just as we had started to feel like something close to normal might resume. And just as we had started to get to taking care of some things that we did not feel we could do earlier.
One of the things you may have meant to do was get on top of your estate plan. For lots of reasons, now is a really important time to get that done. But if it feels too overwhelming to tackle the whole subject, here are some easy steps you can take to get through this second wave with a some peace of mind.
Health Care Proxy
This document authorizes someone you trust to make medical decisions if you are unable to do so. Most people think of this as an "end of life" issue, but it is equally important for situations where you may be temporarily incapacitated. For example, if you contract the virus and are sick enough that you cannot meaningfully participate in decisions about your care. You will almost certainly recover, but in the meantime it can be confusing and distracting for your family and your health care providers to not have clear direction.
A valid health care proxy for you, your spouse, and your children if they are over the age of 18, can solve this problem. It simply requires a form with the required language, properly executed and witnessed, that you can give your proxy in case anything happens. For the duration of the COVID-19 state of emergency in Massachusetts, we are offering to prepare this document for you free of charge.
Temporary Guardianship for Minors
You may know that you can appoint guardians for your young children in a will, in case you and your spouse pass away at the same time. What you may not know is that you can sign a temporary authorization that will allow a trusted friend or relative to take immediate guardianship if you are both unable to care for them temporarily.
This could happen, for example, if both you and the other parent are infected and hospitalized with COVID-19 This simple form can allow you to know that someone will be able to step in and care for your children without red tape if that happens. It will give your appointed temporary guardian the legal authority not only to take physical custody, but also to interact with your child's school, doctor, or other providers. These people are restricted by various privacy laws, and may not be able to even speak with your guardian about your children without proper documentation.
Unlike other estate planning documents, you cannot simply sign this and leave it in a file until it is needed. This is because it is by nature temporary, and expires within a few months of you signing it. You can, however, have it fully prepared and ready to sign, so that if you or your spouse begins showing symptoms, you can sign it and know that there is a contingency plan for your children.
Activating an Existing Health Care Proxy
If you are the health care proxy for an elderly parent, especially if that parent has cognitive issues or dementia, this is important for you to know. A health care proxy is only legally binding after a health care provider has deemed the patient unable to make medical decisions on their own behalf.
In normal times, this is not usually a problem. You either already have a relationship with your parent's providers, or a physician in a hospital setting will make that determination when you admit your parent or bring them to the emergency room. COVID complicates everything, including this. Most hospitals have enacted strict visitor's policies, and many will not allow any visitors whatsoever in the emergency room.
This means you could find yourself excluded from the health care providers' interactions with your parent, even if they are unable to explain their symptoms or participate in their care. This not only could compromise their care, but could be an extremely distressing and frightening situation for your parent.
As we enter this second wave, if you hold a health care proxy for an elderly parent, you should consider speaking with their primary care provider to make sure there is a note in their record about their capacity to make decisions, so that you have some legal standing to make sure you can be present with them if they have to go to the hospital.
How We Can Help
We will prepare and help you execute a health care proxy, 100% free. We know these are tough times, and if we can help bring peace of mind in this one small way we are happy to do so. Just give us a call at (781) 784-2322, or use the button below to request a call back from a member of our team.
Labor Day 2020- There is Still Something to Celebrate
In a year where nothing is normal, and many are working without the traditional structure of a Monday through Friday job in the office, major holidays can sneak up on us. Memorial Day didn’t feel much like the beginning of the summer season when most children had been home from school since March. You may hardly have noticed the 4th of July.
Labor Day, too, has lost its punch this year. Its relationship to the beginning of school is unclear at best right now. The Monday “off” may just feel like another day just like the last 177 days of being in our homes.
Yet the core value we celebrate on Labor Day- the recognition of the important contributions of all who work- is maybe more poignant than ever in 2020.
We have celebrated the front line health care workers who showed up every day to care for people with COVID, often reporting to facilities that were overwhelmed and unable to provide adequate protective gear. These health care workers are not just the doctors and nurses, but the whole gamut of people who keep a hospital working and make sure patient needs are met.
We have also seen our lowest paid and least celebrated workers- hourly employees of grocery and other retail outlets deemed “essential” during the shutdown- put themselves at a risk they probably never thought was part of their jobs by showing up everyday to sell us the things we needed to survive.
It was no different for those of us who chose curbside pickup or home delivery. Those nice people who brought groceries to my door or to the back of my car had to go through a supermarket picking out the food I ordered, which others who may or may not have taken precautions had touched or breathed on. They had to interact with on-site grocery store staff who spend their days exposed to whatever the public brings into the store. The delivery workers had to stop at multiple other homes along their route, where people may or may not have been masked when they met them at the door. Their willingness to take these risks put food in my home, as it probably did for many of you.
Then there are our teachers. They have had to grapple with a sea change in what their work- and their days- look like in a pandemic. Many were trying to learn how to teach remotely while doing the same thing other parents were- trying to supervise the remote schooling of their own children. Many were suffering the same feelings of loss from being separated from their classrooms that their students were experiencing. Many are still unsure how they can do what they love to do with children in a continued pandemic.
There are also many essential workers that we do not see. People working in manufacturing of things that were deemed essential. The people who work behind the scenes to fulfill orders from places like Amazon. People in food processing and packaging- often refrigerated environments that assist the spread of the virus with employees working in close proximity to one another.
Even those of us who could work remotely during the shutdown have had to grapple with fundamental changes in what work looks like. Maybe you were doing your office job from the kitchen table while also trying to watch your children. Maybe you were struggling to find ways to keep up with your responsibilities without the tools available in the office. Maybe you and your team had to completely rethink communication and collaboration in a virtual environment so that your company could still serve its customers. Whatever the situation, millions of workers made the unplanned transition to remote work in March, and have kept countless services available to consumers since then.
Finally, there are the self-employed, or dba’s, or solopreneurs. Just because you are not drawing a paycheck does not mean you should not be celebrated on Labor Day. You are working as hard as anyone to find and meet people’s needs, in good times and bad. You have been doing it this year without a safety net, in the face of sometimes existential challenges to your businesses caused by COVID.
2020 has been a dark and frightening year. On top of COVID, we have been challenged with the urgent need to address issues of racial inequality and bias in our country and in our communities. People lost loved ones, and many fell through the cracks, sometimes tragically. We have a lot to still figure out about our world, and how to live in the COVID era and make sure people can earn a living and that all families and children have the education and support systems they need and deserve.
But there is also something powerful and beautiful about everything that has worked. Sick patients got care. Our infrastructure remained intact. In the end most of us got access to the food we needed, even if it wasn’t always what we wanted at the moment. Lights stayed on. Elections happened, and will continue to happen. Our trash and recycling still got picked up. Businesses of all kinds found ways to continue serving their customers, and often new and creative ways to stay viable in a new environment. There are critical conversations and reforms happening in many workplaces and communities about equality and inclusion that are long overdue. Our social and economic safety nets like unemployment and food assistance have largely (with some hiccups) answered the call.
In short, there are still reasons for hope, and reasons to be grateful for that which has given us reason to hope.
If you are annoyed with a union for demands it is making in this re-opening period, remember that the work of the labor movement we celebrate on Labor Day was responsible for so many of the benefits and protections we take for granted every day, including some that have prevented even greater calamity in our current economic climate. You don’t have to agree with any particular union position, but we should all take a breath and remember that in advocating for their members they are doing the job that has historically improved conditions for everyone and helped make it safe for people to do the important work that they do, especially in challenging times.
It is also important to pause and remember that credit belongs to all of the people who show up every day, in whatever way they can, to do the work that has kept us all going throughout the pandemic. That is, quite literally, every one of you who may be reading this post.
We will get past this year, and we will be stronger. For now, we want to wish everyone a happy Labor Day, and offer our sincere gratitude and appreciation for the part you play in the engine that keeps us all moving forward, even if we may stumble from time to time along the way.
Your Workplace in the COVID Era
We now all know or should know that the effects of the pandemic are far from temporary, even as many communities see their transmission rates dropping. Even as the state continues to re-open. The truth is our landscape is forever changed, including the workplace landscape.
For professionals and white collar workers, remote work may be here to stay, at least into 2021. For people who have to do their jobs in a physical location, the new practices and requirements about safety are likely to continue for a while. All of these things have practical and legal implications for both employees and employers.
The New Remote Work Landscape
Those of us who can have been working without going into a physical office since at least March 2020. It appears that this will continue well into 2021 if not longer. Companies that have already announced indefinite work from home arrangements for at least some percentage of their employees include Facebook, Twitter, Square, Slack, Box, and Shopify. A recent survey of 100 Massachusetts based companies found:
When people are working remotely, it is common sense advice for the employer to establish clear guidelines for productive use of time and expected results. As an employee, you too should be thinking about this. In the physical office environment, you would be able to pick up on hints or signals if someone was not happy with your work product. In a full remote situation, without clarity about expectations, you could be caught by surprise by an unfavorable review or even a termination.
Remote work, especially if some people are returning to the office and some are continuing to work from home, can raise employment discrimination issues as well. How does the employer decide who continues to work remotely and who returns? If the employees who continue to work remotely tend to skew female based on child care responsibilities, what happens when the next round of promotions passes these women over in favor of those who returned to the physical office?
The same question applies if those who choose to stay home do so because of underlying health conditions. A remote work arrangement could be seen as a reasonable accommodation for a disability. However, if remote status results in long term job or career harm, the employee might have a claim for disability discrimination under state and federal law.
It is important as well to think about the privacy of your personal information and the protection of your employer's confidential information. You may be working on your own laptop rather than the employer-provided desktop at the office. This means you are running both your personal information and your job-related information through the same system.
Or your employer may have provided you with a company laptop, and for convenience you are using it at home for both business and personal communications. In either case, you should make sure you read and understand the policies your employer has about privacy and their right to search electronic devices. These are often broader and more intrusive than many people realize, but important to understand before you expose your personal information.
The New Physical Work Landscape
A full return to a physical workplace creates many new complications for both employees and employers.
First and foremost will be compliance with the various orders and advisories regarding COVID-19 safety. The Commonwealth of Massachusetts has issued general safety standards applicable to all workplaces. These standards address the level of occupancy allowed in a building, distancing requirements, face covering requirements and cleaning and sanitation. There are also more specific standards for certain industries, which cover a broad spectrum of businesses that have re-opened or are re-opening. If you are returning to work in a physical location, you should review these standards so you can know what to look for in your workplace.
Some employers are also instituting "temperature checks" to screen workers as they arrive at work for possible infection. This is not something most employees ever had to contend with before COVID. It is likely to feel intrusive, but is probably lawful. There is a limit, however, to how much information about your health your employer can or should ask for, particularly if you have an underlying condition that might qualify as a disability or a perceived disability.
The new federal paid sick time rules have also caused some confusion in the context of re-opening. The Families First Coronavirus Relief Act (""FFCRA") requires employers to provide up to two weeks of paid sick time for employees who either have COVID or are under government or medical orders to quarantine. Massachusetts law also requires a certain amount of paid sick time if your employer has 11 or more employees. If you are sent home as a result of a temperature screening at work, you most likely are entitled to be paid for that time, at least until you can get tested and receive the test results.
The same is true if you get a COVID test because you believe you have been exposed. Many doctors will recommend that you quarantine at least until the results come in, and sometimes longer. If the reason for the test is possible or likely exposure, this time should be covered as paid sick time. However, some employers are having all employees in certain roles take a COVID test as a preventive screening measure. It is not clear that time spent in quarantine awaiting results, even if on a doctor's orders, counts as paid COVID sick time, or that your job is protected if you stay out of work waiting for results.
If you are asked to return to a physical workplace and you have a medical condition that puts you at high risk for COVID complications, you may be able to request reasonable accommodations to keep you safe. These could include working in a less populated area of the office, protective equipment such as plexiglass shields or N95 masks, or a staggered work schedule to avoid unnecessary contact with others.
If your concern is about a medically vulnerable family member at home, existing law does not provide the same protection. This is because at present there is no legal basis to ask for an accommodation to protect someone other than you with a disability.
Another consideration is what happens if you return to work and notice and report non-compliance with COVID safety guidance. You may report to a manager that mask rules are not being enforced, or distance requirements not observed, or cleaning not being done as required. This activity is not expressly protected under existing law, but may be considered by a court to be a form of "whistleblowing" that could protect you from retaliation.
Workplaces Without Borders
Right now, the discussion around remote work is focused on people adapting in their current employment relationships. However, the longer employers operate in a fully or partially remote status, the more they may begin to think differently about how, and where, they hire new employees. After all, if your local employees can be productive from a laptop in their house in Massachusetts, why not widen your recruiting net and look for talent anywhere else in the country, or even the world?
And from the employee's perspective, a remote work arrangement opens your own location possibilities wide open. It may be possible to live in a community with a lower cost of living while still earning the compensation from your Boston area job. It may even be possible to move to a different state, which may have cost of living and tax advantages.
Once the geographical boundaries of the employment relationship are blurred or even erased, new questions arise. If you live in New Hampshire and work remotely for a Massachusetts company, are you entitled to the protection of the Massachusetts wage and hour laws? Massachusetts discrimination law also includes protections that are not available under federal law or the laws of some other states. This includes protection against discrimination based upon sexual orientation and gender identify.
The analysis of which state's law to apply to an employment dispute is not always crystal clear. Without an employment contract that specifies the governing law, a court will have to determine where the primary site of the relationship is. If you are considering relocating to another state and working remotely, you should pay careful attention to any employment agreement you have signed, and specifically whether it states what law will apply to any dispute. It would also be wise to review the applicable employment laws of the state you are considering moving to, so you know what protections you might be giving up.
How We Can Help
If you have concerns about re-opening in your workplace, or just want to better understand your rights and obligations, our employment law team can help. You can call us at (781) 784-2322 to schedule a free consultation, or click the button below to schedule a call back from a member of our team.
Your Estate Plan Does Not Have to Wait
The COVID-19 outbreak has many people thinking about whether their affairs are in order. We all know that only a small percentage of people will lose their lives to the virus, but it can be sobering seeing the daily reports of deaths and hospitalizations. It also gets us thinking about what happens if we get sick and have to spend a week or more in the hospital without the ability to make informed decisions or manage our financial and legal affairs.
Many people, however, have been stymied by the stay at home advisory, and inability to meet with a lawyer to discuss estate planning. Even those who have been able to work with a lawyer remotely to prepare the documents have had to wait to sign them because the law requires in person witnesses to their signatures.
In April 2020, the Massachusetts House and Senate finally passed a bill allowing attorneys to witness and notarize documents via video-conference for the duration of the state of emergency. From now until three business days after the end of the current State of Emergency, we can prepare and finalize all of the estate planning documents you may need, without you leaving your home.
Remote Estate Planning- How Does It Work?
In order to have a legally binding will in Massachusetts, you have to sign it in front of two witnesses who are of legal age and not the beneficiaries of your will. Though not required, it is best practice to have a notary public witness those signatures. This makes your will a "self-proving" will, which means the witnesses will not need to provide affidavits or testimony to validate your will.
Other key estate planning documents have witness and notary requirements too. Your health care proxy needs to be witnessed by two people, for example. Your durable power of attorney and any trusts that you create also need to be notarized.
Existing law requires all of this witnessing to occur in person. Over the past few weeks, we have created a "quarantine workaround." Several of our clients have signed their estate planning documents in a car in our parking lot, with our staff witnessing from their own cars. Everyone is masked and gloved.
This meets the legal requirements and protects everyone safely, but is certainly an effort for all concerned. The remote notarization process is much easier.
The planning and drafting process involves a few conversations via phone or zoom between you and our team to confirm that you have chosen the documents you need to meet your goals, and to confirm details with you. It usually takes about a week to get you drafts to review, though it can be done faster if there is a need.
Once you have reviewed and approved your plan, we will send you the documents, then set up a four way video-conference with you, the attorney/notary, and two of our staff members as witnesses. We will all watch you sign the documents on video, then you will send them back to us in a prepaid overnight envelope that we provide. Once the documents arrive, we will sign as witnesses and affix the notary stamp, and send the originals back to you.
Why it is More Important Now Than Ever to Have an Estate Plan
There are many reasons that estate planning is important, with or without COVID 19. A will allows you to name guardians for your children, direct your assets to the people you want to have them, and streamline the probate process for your family.
A complete estate plan including a will and trusts can also protect your assets from estate taxes and the cost of nursing home care. It can also help your family save time and money by avoiding or minimizing the need to go through probate court to distribute your assets.
Finally, a complete estate plan includes documents that allow you to name someone you trust to make medical or financial decisions for you while you are incapacitated.
What makes this so urgent during coronavirus? It is not because you are that likely to die from the disease, based on the statistics. The real reason most people are thinking about this now is that mortality is around us generally, and they have time to think and talk about their plans with their families.
There are some reasons the crisis does make this more important, however. They include:
Planning for Illness. If you get sick and have to be hospitalized, you may not be in a position to make medical decisions or manage your financial affairs until you recover. Two simple documents (a health care proxy and a durable power of attorney) allow you to name someone you trust to fill in for you during that time.
Guardianship of Children. Anyone with minor children has some nagging concern even in the best of times about who will take care of their children if something happens to both parents. This is no less true in the age of COVID-19.
What is different is that there is a real possibility that both parents will contract the virus and be unable to take care of children for a period of time while they recover. in addition to naming a permanent guardian in your will, you can also execute a temporary guardianship document that would allow a trusted family member or friend to immediately take temporary custody of your children and take care of them while you recover.
If you have an existing will, you may already have named a guardian. This is a good time to review that decision and make sure it still makes sense. For example, if your guardian is a family member who lives in a place still struggling with the virus, you may want to name an alternate.
Protecting Your Family from Probate Court. A good estate plan can minimize or avoid altogether the need for your family to go to court to finalize your estate. It is always the case that this saves them time and money. An additional concern during COVID-19 is keeping your family from having to go to court or meet with lawyers during the pandemic.