- Will Big Labor’s Big Wishlist Return For 2021? The Implications Of A Resurrected PRO Act On Businesses Large And Small1.15.21
When the House of Representatives passed the PRO Act last year with the aim of overhauling federal labor law for the benefit of organized labor, we predicted the legislation would stall in the face of the Republican Senate and an administration that was unlikely to sign it into law. As we said in our February 10, 2020 alert, Labor Gets Wishlist Bill Passed In House, “the chances of the bill actually becoming law in 2020 is virtually impossible. However, … the PRO Act could serve as a harbinger for an eventual pro-labor bill that could gain traction in D.C. should there be a change in the political winds in the White House or Senate in 2020.” With the election of Joe Biden to the White House and the Senate soon to be controlled by Democrats, it’s safe to say that the winds have quite clearly shifted.
- New Jersey Increases Minimum Wage For Long-Term Care Facility Staff As COVID-19 Cases Continue To Rise1.15.21
COVID-19 has had a significant and deadly impact on some of New Jersey’s most vulnerable citizens who reside and work at long-term care facilities, such as nursing homes. On September 16, 2020, Governor Phil Murphy signed a package of laws to address issues at long-term care facilities that came to light during the pandemic. This includes a minimum wage increase for employees who provide direct care to residents of these facilities.
In a New Year’s Eve decision, the Oregon Supreme Court stripped employer-defendants of a powerful litigation tool in wage claim litigation. In a 5-2 decision, the Supreme Court held that an offer of judgment made pursuant to ORCP 54 does not cut off an employee-plaintiff’s right to collect attorneys’ fees. Based on the Mathis v. St. Helen’s Auto Center decision, employers must pay any unpaid wages within 48 hours of receiving a demand or face liability not only for the unpaid wages but also for the reasonable attorneys’ fees incurred by the employee seeking to collect those wages. This decision highlights the importance for Oregon employers to quickly seek the advice of counsel and respond to wage demands in a timely manner.
- Washington, D.C. Passes Legislation Banning Non-Compete Agreements: A 5-Step Action Plan For Employers1.12.21
Washington, D.C. Mayor Muriel Bowser just signed into law one of the most restrictive pieces of legislation in the nation relating to employers’ use of non-compete agreements to prevent employees from working for competitors. The Act not only completely bans non-compete agreements for District employees, but also goes beyond the restrictions commonly contained in many other non-compete statutes by imposing strict notice and other requirements that differ from other existing laws. For example, employers will be required to provide employees with notice of the new law regardless of whether they use non-compete agreements, and are banned from preventing employees from being “simultaneously” employed elsewhere, effectively calling into question the viability of relatively common “moonlighting” prohibitions.
The 2021 Kentucky General Assembly got underway last week and, as expected, the leaders wasted no time setting their COVID-19 legislative agenda. Of particular importance for Kentucky businesses is Senate Bill 5, which, if adopted, would provide personal injury liability protections to certain Kentucky businesses, schools and individuals. Specifically, businesses and individuals who directly or indirectly invite or permit another person onto their premises would be shielded from liability for injuries, loss, or other damages to that person arising from conditions subject to a declared emergency. The scope of the proposed law is quite sweeping in that it would apply retroactively to all activity since March 6, 2020 – the beginning of the COVID-19 pandemic. What do Kentucky employers need to know about this proposal?
Just before the New Year, Governor Whitmer amended state law and eased employers’ COVID-19 compliance burdens by deferring to the CDC’s guidance on when infected or exposed employees may return to work. The amendment was necessary to resolve the conflict between then-existing state law and the CDC's newest guidance on quarantine periods (related to exposed individuals) issued shortly after the law’s passage, as well as clearing up some administrative issues. This article aggregates all the changes made by the amendment by recasting how Michigan employers can comply with the amended COVID-19 law.
- California’s New Guidance On Emergency COVID-19 Standard Answers Some Questions But Leaves Employer Uncertainty1.11.21
California Occupational Safety and Health (Cal/OSHA) further updated its COVID-19 Emergency Temporary Standards Frequently Asked Questions late last week in an attempt to provide more clarification and answer questions the agency has received about the COVID-19 Emergency Temporary Standard (ETS) that went into effect November 30, 2020. The update, released on January 8, provides some important clarifications but also leaves some questions unanswered. Below is an overview of some of the important updates and clarifications that all California employers should review.
Given the tumultuous news that occupied all of our attentions last week, you may have missed the announcement that President-elect Biden has nominated Boston Mayor Marty Walsh to be the next Secretary of Labor – the first union member to fill this role in nearly 50 years. The January 7 announcement is significant for the employment community given that the head of the Labor Department wields tremendous influence over workplace policy. Naturally, most employers are curious about what this transition will mean for them. To answer that question, we’ve once again assembled the opinions of some of our firm’s foremost thought leaders to help provide a glimpse into what you should expect from the U.S. Department of Labor for the foreseeable future. The consensus opinion? Get ready for a pendulum swing back toward worker-centered policy that employers last experienced during the eight-year Obama administration.
The U.S. Equal Employment Opportunity Commission (EEOC) just revealed two new proposed rules concerning how employers can encourage employees to participate in employer-sponsored wellness programs without violating federal law. Unlike the 2016 final rule iterations, these two new rules, released on January 7 and slated to be finalized in March 2021, provide that employers must offer much smaller incentives than previously permitted in order to comply with the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA). On the one hand, this should be welcome news for employers. Indeed, employers have been left without any guidance for how to incentivize employee participation in wellness programs without rendering them involuntary under the ADA and GINA since the 2016 final rules were nixed by a federal court order. On the other hand, as is commonplace when a new administration takes over, President-elect Biden announced that he plans to freeze all pending regulations for review before they are implemented, which could further forestall this limbo period for employers. Nonetheless, what should employers know about these new rules?
- Vulnerabilities In Federal Court’s E-Filing System Serves As Stark Data Security Warning For Employers1.8.21
Overshadowed by the dramatic events in Washington, D.C. on Wednesday was the news that the electronic filing and case management system used in federal courts across the country may have been compromised by a serious security breach – serious enough that users have been advised to avoid submitting “highly sensitive” documents through the digital service. The Administrative Office of the U.S. Courts (AO) announced on January 6 that it is working with the Department of Homeland Security (DHS) to perform a security audit to identify a potential compromise to its Case Management/Electronic Case Files system (CM/ECF). What do employers need to know about this possible breach – and what lessons can you learn to avoid similar harm in your organization?
Given the significant impact that the pandemic has had on workplaces, and with the rollout of COVID-19 vaccines, many employers are considering whether to impose mandatory vaccination policies. Recently, the U.S. Equal Employment Opportunity Commission (EEOC) clarified in its updated guidance that employers may be able to mandate the COVID-19 vaccine among their employees in certain circumstances without running afoul of key federal anti-discrimination laws. This does not necessarily mean that you can force all your workers to get COVID-19 shots, as there are numerous issues you will face if you choose to mandate vaccinations. One such issue is an employee's refusal to get the vaccine based on their sincerely held religious beliefs.
- Employer Considerations For Determining Whether To Continue Providing FFCRA Leave After Law’s Expiration1.7.21
After much heated negotiation in passing Stimulus 2.0, Congress reached a compromise on employee COVID-19 leave, allowing the leave requirements of the Families First Coronavirus Response Act (FFCRA) to expire on December 31, 2020, but continuing tax credits through March 31, 2021 for employers who choose to voluntarily provide paid leave after that date. Now that employers with fewer than 500 employees are no longer obligated to provide FFRCA leave, many are left wondering whether they should continue to provide leave for their employees who are impacted by COVID-19. This article aims to provide an overview of the state of the law and provide employers with the pros and cons of continuing to provide FFCRA leave to make the best decision for their workplace.
The Labor Department finalized a new rule today that aims to make it easier for businesses to classify workers as independent contractors – but the rule faces a very uncertain future given that the Biden administration will take the reins of the federal government before it is scheduled to take effect and the incoming administration has signaled its opposition to this change. Businesses that use independent contractors to carry out critical work roles – especially gig economy companies and those using gig-economy-like strategies for components of their workforce – have long awaited this rule in the hopes that it would lend certainty to modern business models and reduce litigation brought by workers claiming to be misclassified as employees. But celebrations need to be put on hold for now, as we expect President-elect Biden to at least temporarily stall implementation past its planned March 8 effective date while worker advocacy groups and state attorneys general line up to file legal challenges in the hopes of permanently killing the rule.
- 5 Steps Manufacturing Employers Should Take As Industry Remains Top Target For COVID-19 Workplace Claims1.4.21
Employers in the manufacturing industry have emerged as a prime target of COVID-19 workplace litigation. In fact, according to the Fisher Phillips COVID-19 Employment Litigation Tracker, manufacturing is the second-hardest hit sector in the country, facing 9.1% of all COVID-19 workplace claims filed (trailing only the healthcare industry which, for obvious reasons, dominates the field at 22.3%). Given recent trends, manufacturing employers everywhere should be aware of the lawsuits that may be coming in the states where they operate – and should adopt our five-step recommended plan to avoid facing litigation in the new year.
The U.S. Department of Labor just confirmed that employees who seek medical treatment via telemedicine visits could qualify for leave under the Family and Medical Leave Act (FMLA) into the new year – and perhaps beyond. While there may have previously been confusion or uncertainty about whether remote visits to a healthcare provider should be considered as valid “treatment” that would render an employee eligible for protected time off under federal law, the agency’s December 29 guidance offers the first definitive word from federal authorities in the wake of the COVID-19 pandemic that this temporary policy will be extended for the foreseeable future. The agency also released an update on how employers can satisfy federal posting requirements via electronic communication methods. What do employers need to know about these latest developments?
Georgia Governor Brian Kemp issued a December 30 Executive Order — effective through January 15 — that reduces the coronavirus quarantine period for those exposed to the COVID-19 virus to either seven or ten days for most businesses. In all other respects, the December 30 Executive Order keeps in place the provisions from the September, October, and November Executive Orders. What do you need to know about this order, and what should you do as you continue to reopen and operate your business?
The U.S. Department of Labor issued a long-awaited final rule right before Christmas addressing the issue of tipped employees. The final rule, released on December 22 but not effective until February 20, 2021, provides guidance for both employers who utilize a tip credit and also for how employers who pay at or above minimum wage may handle tip pools without running afoul of federal wage and hour law. A big question remains, though: how will the incoming Biden administration handle this issue? Employers in the hospitality sector will want to pay attention to this latest development – and stand by for potential further developments – as we head into 2021.
A federal judge just issued a preliminary injunction to stop government enforcement of a controversial presidential executive order that severely curtailed the ability of federal contractors to offer diversity training on subjects such as systemic racism and unconscious bias. The December 22 ruling does not impact all provisions of E.O. 13950, just the specific portions in Sections 4 and 5 that created new requirements for federal contractors (new contract clause provisions and trainings) and federal grants (grant program certification regarding use of funds). The ruling frees federal contractors to once again offer typical workplace training sessions without fear of government reprisal for the time being, and given that the days of the Trump administration are quickly waning, it appears that employers will be free to provide such training for the foreseeable future.
- New York City Passes “Just Cause” Legislation For The Fast Food Industry, Greatly Increasing Workplace Protections For Employees12.24.20
The New York City Council just passed two bills (Int. 1396-A and 1415-A) that limit when a fast food employer can discharge fast food employees, only permitting terminations for “just cause” or for a “bona fide economic reason” – both of which the employer must prove if challenged. The new law, passed on December 17 and taking effect on July 4, 2021, turns fast food workplaces into de facto unionized environments, with “fast food employees” in New York City having workplace protections equal to – and in some ways, greater than – employees who are represented by a union. This should not be surprising given one of the major proponents of this legislation was 32BJ SEIU, one of New York City’s largest service unions. The new law tacks on and add new sections to the previously passed Fair Workweek Law (the FWW), utilizing the same definitions under the FWW and building upon the enforcement mechanisms provided to New York City’s Department of Workplace and Consumer Protection (DCWP). In addition, the new law allows for discharged employees to take their case to arbitration, using a framework set up by the DCWP. What do fast food employers need to know about the new law?
Right before the Christmas holiday, the Colorado Department of Labor and Employment (CDLE) released new guidance requiring that all employers supply up to an additional 80 hours of Public Health Emergency Paid Sick Leave to all employees beginning on January 1, 2021 under the Healthy Families and Workplaces Act (HFWA). What do Colorado employers need to know about this unexpected gift delivered on December 23?
The NLRB recently issued a pair of advice memos governing the obligation of parties to engage in remote collective bargaining and to negotiate over the concept of hazard pay in the context of the COVID-19 pandemic. These memos offer a glimpse into how the agency may address similar issues moving forward, and are thus valuable sources of information for employers. While the letters were both issued in mid-November, they were not released to the public until December 14. What can employers learn from these advice memos?
A federal appeals court just confirmed an uncomplicated interpretation of the “specialty occupation” definition for H-1B visas, clearing the way for a wide variety of industries to seek these highly sought-after visas. At the same time, the 9th Circuit Court of Appeals’ December 16 ruling offers employers an additional asset in their toolbox when it comes to challenging denied H-1B applications. What do you need to know about this decision and how might it work in your favor?
- Tennessee Governor And Shelby County (TN) Health Department Issue New Orders Amid “Dire” COVID-19 Spread12.22.20
Following the CDC’s designation of Tennessee as the worst state in the country for new COVID-19 cases by population, Governor Lee issued Executive Order 70 urging all employers to implement remote work arrangements. The Executive Order is effective and enforceable as of December 20 and will remain in effect until January 19, 2021.
Additionally, the Shelby County Health Department issued Health Order and Directive No. 16, which becomes effective on December 26, strongly urging all residents to shelter at home, directing employers to ask non-essential employees to stay home and implement telecommuting practices, and mandating closure of non-essential businesses. The Health Order and Directive will continue through January 22, 2021. What do area employers need to know about these latest developments?
Federal lawmakers agreed to a second round of stimulus legislation late last night, sending a nearly 6,000-page bill to President Trump for his expected signature. The proposal allocates $900 billion in economic relief to businesses and workers across the country. Of the many provisions tucked within the mammoth bill are several key provisions of interest to employers. Specifically, the proposal continues the popular small business loan program, provides new options for unemployed workers, extends tax credits for continued paid sick leave, and offers a variety of other tax- and benefit-related provisions. It does not, however, create a liability shield for COVID-19 litigation. What do you need to know about the critical workplace-related portions of Stimulus 2.0? Here are summaries of the most significant employment-related provisions and recommendations for actions you should consider as a result of each.
The country breathed a collective sigh of relief last week when the first doses of the Pfizer-BioNtech COVID-19 vaccine were shipped out to all 50 states. Following shortly behind, the first doses of the Moderna vaccine were shipped out this week. Healthcare workers and long-term care residents were given priority to receive these first doses. But Americans will need to get into the queue for the later doses. With vaccine supplies limited, where will your employees fall in the line of priority? The answer to this question is not easily determined, as the recommendations from the experts continue to change. This article, however, will address the likely considerations and guidance that will be used in determining the priority for distribution of the vaccine, and provide five steps employers can take now to prepare for the next steps on the roll-out.
Further restrictions on New York City employers’ ability to take adverse action against applicants or employees based on their criminal history are on the horizon. The New York City Council just passed a bill which will significantly expand the scope of the New York City Fair Chance Act (FCA). If enacted, the bill would impose restrictions on an employer’s ability to take any adverse action against an applicant or current employee based on pending criminal charges or arrests — currently not covered by the FCA — and will also extend the FCA to cover current employees convicted of a crime while employed. After passing the council on December 10, the legislation now goes to Mayor DeBlasio, who signed the FCA into law in 2015. Mayor DeBlasio has 30 days to sign, veto, or take no action on the legislation. Given his prior support for legislation in this area and other workers’ rights laws, the mayor is not expected to veto the bill. Accordingly, NYC employers should be prepared for changes to the Fair Chance Act.
Employers now have clarification that they will be able mandate the COVID-19 vaccine among their workers in certain circumstances without running afoul of key federal anti-discrimination laws, according to updated guidance issued Wednesday by the Equal Employment Opportunity Commission. While there are numerous issues to consider before mandating that your employees get vaccinated, this guidance is the first official pronouncement on the subject from the employment law watchdog agency and provides an outline of various hurdles to overcome. Here are the top seven takeaways for employers from this critical development.
With January 1, 2021 quickly approaching, it’s crunch time for New York employers to prepare to comply with the new statewide sick leave law. New York employers have been grappling with questions surrounding the New York Paid Sick Leave law (NYPSL) since the legislation was enacted in April. So far, guidance from the state has been limited, and comes in the form of a new New York State sick leave website and proposed regulations released on December 2, 2020. While the guidance leaves many important questions unanswered, we have rounded up employers’ frequently asked questions about the NYPSL to help you prepare for implementation.
With such little fanfare that it may have escaped many employers’ attention, the Kentucky Labor Cabinet’s Department of Workplace Standards recently implemented final amendments to its injury and illness recordkeeping and reporting requirements. Originally proposed in February but delayed due to the COVID-19 pandemic, these new rules quietly took effect without an accompanying announcement from the state. But make no mistake – the changes that are now on the books will affect your injury and illness reporting in Kentucky. What do you need to know about this critical development?
- Farewell To Subcontracts: What Employers Need To Know If Mexico Restricts Outsourcing And Subcontracting12.15.20
Change may be on the horizon in Mexico as its Congress deliberates a new bill that, if passed, would outlaw outsourcing and subcontracting employees under most circumstances and absent government approval. This proposed bill, which was sent to the Mexican Congress on November 12 by President Andres Manuel Lopez Obrador (AMLO), aims to end what has been identified as corruption in employment practices. On December 9, AMLO signed an agreement with labor unions and business leaders to continue negotiations over the contents of the bill until February, when Congress returns from its winter break. The negotiations include the possibility of capping certain companies’ profit-sharing rates to ease the burden of hiring workers directly. As currently worded, the new law would have a dramatic impact on Mexican employers and foreign companies doing business in Mexico alike. What do employers need to know about this significant development?
Governor Gavin Newsom just issued an Executive Order that potentially reduces the quarantine exclusion period for COVID-19 exposed employees in California under a recently approved Emergency Temporary Standard (ETS) issued by Cal/OSHA. Yesterday’s action is consistent with recent quarantine guidelines issued by the CDC and reduces the amount of time employers are required to exclude COVID-19 exposures from the worksite under the new Cal/OSHA regulation. What do California employers need to know about this development?
- Employees’ Off-Duty Pandemic Conduct Can Create On-Duty Headaches For Healthcare Employers – How To Reduce Disruptions In Your Workplace12.15.20
As the COVID-19 pandemic rages on and continues to hammer businesses, workers, and lifestyles with record-high infection rates and hospitalizations, companies still face challenges in ensuring employees comply with critical safety and health policies. With most people following guidance from the Centers for Disease Control and Prevention (CDC), state and local guidance regarding the use of face coverings, social distancing, and curtailing travel during the holidays, even a few outliers can create considerable headaches. Despite your best efforts, this can thrust employers into an unwelcome spotlight. This is especially true when the offenders work in a sensitive industry like healthcare.
As we approach a new year, California employers should take a fresh look at their employee handbook to ensure that it is up to date. Unless it was revised recently, it’s probably outdated. What are the main revisions that need to be made in order to keep up with the times as we head into 2021?
Last week was another one of those whiplash weeks for Pennsylvania employers, especially those with operations in Pittsburgh. On December 9, Mayor Bill Peduto signed Pittsburgh’s Temporary COVID-19 Emergency Paid Sick Leave Ordinance, which immediately gave certain workers in the city up to an additional 80 hours of paid sick time. Then, on December 10, Governor Wolf and Secretary of Health Dr. Rachel Levine announced new orders that, starting December 12, prohibit certain in-person operations and reduce capacity until January 4. So what do Pittsburgh employers – and all other businesses throughout Pennsylvania – need to know? Here are the key highlights to consider.
As most know by now, the Food and Drug Administration (FDA) granted emergency use authorization for Pfizer’s COVID-19 vaccine in the U.S on Friday, December 11, and the first Americans began to receive the vaccine this morning. The government is expecting an initial 2.9 million doses of the vaccine to be distributed in the coming weeks, and projections indicate that there may be enough vaccine to reach the vast majority of Americans who want to take it by early April 2021. Given the astronomical rise in the infection rate and the death rate topping 300,000, employer interest in the vaccines is extremely high. Thus, employers are asking whether they can, or should, require employees to take the vaccine. What do you need to know about this game-changing development?
Beginning on January 1, 2021, Florida’s new “Verification of Employment Eligibility” statute will require many employers to use the federal E-Verify system before hiring any new employees. This new law could force significant changes to your hiring practices. What do Florida employers need to know about this significant development?
The news this week that a Manhattan-based state lawmaker wants to require most New York residents to receive the COVID-19 vaccine brought renewed interest to an issue that has crept into the consciousness of just about every employer across the country: whether employers can – and should – mandate that their employees receive the vaccine. It is a thorny issue that requires an examination of company culture, industry-specific guidelines, geographic location, and a variety of other factors, not to mention a consideration of disability-related and possible religious accommodations. What do New York employers need to know about this current development and the bigger question about mandatory vaccines?
- The 3 Most Significant Items For Employers In The Congressional COVID-19 Proposal – And The 3 Items Not (Yet) Included12.9.20
With just weeks to go before the expiration of many stimulus programs aimed at stemming the pain of the pandemic, federal lawmakers are hurriedly working on a compromise legislative proposal to provide another round of economic relief for businesses and workers alike. When a bipartisan group of House members and Senators unveiled their framework for a $908 billion plan on December 1, the outline included several items of critical interest to employers. While the situation remains very fluid and changes are likely to take place before any such legislation is finalized, here is a current snapshot of the three most significant workplace law provisions included in the latest compromise proposal – and the three most significant items not (yet) addressed.
As cases of COVID-19 continue to spike across the country, North Carolinians must abide by more stringent restrictions under a Modified Stay-at-Home Order released yesterday. While the Order continues requirements for face coverings and social distancing, as well as limitations on gatherings, it also increases restrictions on certain businesses. What do North Carolina employers need to know about this latest development?
- The Vaccine Is Almost Here — Now What? Considerations For Healthcare Employers Preparing To Inoculate Employees12.9.20
The CDC recently adopted a recommendation from an advisory committee that healthcare workers should be the first in line to get COVID-19 vaccine shots after they receive approval from the Food and Drug Administration (FDA). But healthcare workers include a wide range of different people. Hospitals, for example, employ far more workers than doctors and nurses. What about, for example, respiratory therapists, nursing assistants, lab personnel, food service workers, custodians and administrative staff? Should they also be among the first to receive the vaccine? If they do, will healthcare employers have enough of the vaccine to provide it to all these employees? And the process of administering the vaccine will be far more complex than simply that asking staff to line up and take a shot considering the extremely low-temperature storage requirements and the thawing and mixing process also involved. Prioritization and distribution logistics will be tremendously important. What do healthcare employers need to know about this critical development to prepare for tomorrow?
In a major blow to the Trump administration, a federal court recently struck down two immigration rules that would limit the ability of skilled foreign workers to obtain H-1B visas. In a December 1 ruling, the U.S. District Court for the Northern District of California set aside interim final rules from the Department of Homeland Security and the Department of Labor that aimed to limit foreign workers’ employment and raise the minimum salaries that employers would need to pay them in order to qualify for the popular visa program. The court found that both rules violated the Administration Procedure Act’s comment and notice period, finding that defendants “failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the APA’s notice and comment requirements.” What do employers need to know about this development?
California Governor Gavin Newsom just announced a Regional Stay Home Order on December 3 that could soon have a dramatic impact on businesses in the state. Unlike previous orders, the Regional Stay Home Order focuses on shutting down regions, not counties, based on hospital capacity in each area. The order takes effect at 1pm on December 5, 2020 for any specific region when ICU capacity for hospitals in that region drops below 15%. What do employers need to know about this latest development?
The Centers for Disease Control and Prevention just issued new guidance stating that coronavirus quarantines may be shortened to seven or 10 days under certain circumstances, down from the 14 days currently recommended, according to media reports. This will permit businesses to return employees who have been exposed to COVID-19 back to work on a reduced timeframe. What do employers need to know about this encouraging development?
In a new effort to temper the rising COVID-19 spread, the Shelby County Health Department just issued a new health directive imposing new restrictions on “high risk settings,” including restaurants, bars, and gyms, which took effect on November 23. To account for the financial impact that Health Directive No. 15 may have on businesses, the Health Department announced a new program that will provide grants of at least $5,000 “for any business that faces closures of at least 30 days that is substantially related to Health Directive No. 15.” What do area employers need to know about this latest development?
- What Employers And Educational Institutions Need To Know About EEOC’s Proposed Guidance On Religious Discrimination11.24.20
The EEOC recently released a draft of its updated guidance on religious discrimination, which – if adopted and finalized – could alter the legal standards applied in workplace disputes for the nation’s employers generally and educational institutions specifically. While the November 17 release will not be finalized and adopted until a public comment period expires in mid-December and the commissioners have an opportunity to address specific concerns, the upcoming changes at the White House will not necessarily slow down the process. What do employers need to know about this development?
The Centers for Disease Control and Prevention (CDC) recently released updated guidance recommending that critical infrastructure employers only permit asymptomatic workers to continue working after potential COVID-19 exposure in limited and rare circumstances. The updated guidance, released on November 16, continues to provide an exemption from the usual 14-day self-quarantine recommendation for critical infrastructure workers who have had a close contact exposure to an individual with a confirmed or suspected case of COVID-19, but now recommends the exemption should only be exercised as “a last resort and only in limited circumstances.” Further, it recommends that only employers involved in or impacting “public health and safety” can enjoy this exemption. What do employers need to know about this new guidance?
- Recent CDC Guidance Could Bolster Argument For Cloth Face Coverings To Be Personal Protective Equipment11.23.20
A recent update from the Centers for Disease Control and Prevention (CDC) could eventually lead federal workplace safety authorities to conclude that employers have significant additional obligations when it comes to their employees wearing cloth face masks. While the heavy lifting may not start until President-elect Biden takes office, employers may want to track recent developments so you are prepared to quickly pivot if compliance changes do take place.
The Cal/OSHA Standards Board just adopted an emergency standard related to COVID-19 prevention in the workplace, imposing some significant requirements on California employers. Most notably, the new rule finalized yesterday provides that employees excluded from work for having or being exposed to COVID-19 must continue to be paid while they are off work.
Employers do not have a lot of time to comply with the new mandates. Following adoption of the emergency proposal, the Standards Board will submit the language to the Office of Administrative Law, which will have 10 days to review and approve the proposal. Therefore, this complex new standard may be in effect by as soon as November 29.
The emergency regulation will be in effect for 180 days, and can be extended. It is anticipated that Cal/OSHA will move forward with regular and permanent rulemaking on this topic during this period of time.
This new standard will require California employers to take immediate action on many COVID-19 fronts. So what do California employers need to know? Here are the top nine takeaways for California employers – including specific recommendations about what you need to do in response to each new obligation.
As the pandemic rages through Kentucky and the holidays right around the corner, Governor Beshear just issued an executive order mandating significant restrictions on businesses to slow down the escalating spread of COVID-19 – with restaurants and bars being one of the hardest-hit industries. However, the order contains a financial path forward for businesses impacted by the new round of closures. What do Kentucky hospitality employers need to know about these new developments?
In an attempt to curb the rapid community spread of COVID-19 in the Commonwealth, Kentucky Governor Andy Beshear just issued new restrictions, effective November 20, that will impact employers across the state. While the governor specified that the new restrictions were not a “shutdown,” certain businesses will certainly feel the squeeze more than others as the new executive order further limits certain specific industries. What do Kentucky employers need to know about this latest development?
The Oregon Occupational Safety and Health Administration recently adopted a temporary rule requiring employers to implement safety measures to reduce the spread of COVID-19. The rule, which took effect November 16 and remains in effect through May 4, 2021 – requires you to complete an Exposure Risk Assessment and Infection Control Plan by December 7 and provide employee training by December 21. These dates are rapidly approaching, so your compliance efforts need to begin immediately. What do Oregon employers need to know about this significant development?
The National Labor Relations Board recently ruled that an employer could not discipline a group of protesting employees who reported to work in street clothes instead of their uniforms to draw attention to a uniform shortage. The Board’s October 28 decision found the employees’ protest was protected concerted activity and did not cross the line to an indefensible unprotected strike or work slowdown, and therefore the employer’s decision to discipline them amounted to an unfair labor practice under the National Labor Relations Act. Nevertheless, the Board did rule it was lawful to issue attendance infractions to the employees that left work following the protest to retrieve their uniforms. What do employers need to know about this decision?
The federal agency charged with enforcing the nation’s main workplace discrimination laws just announced that it recovered over $535 million from employers on behalf of aggrieved workers and applicants this past fiscal year, a figure that shattered the previous record and set an all-time high. The EEOC’s November 16 financial report also touted successes in clearing old inventory of charges, increasing the percentage of resolutions achieved in favor of charging parties, and mediating thousands of charges to conclusion. The report further indicated that the EEOC filed the second-lowest number of merits lawsuits against employers in over two decades. What are the top five takeaways for employers from this latest report?
Smaller employers are in far greater danger of being the targets of COVID-19 workplace litigation, as are healthcare employers and other businesses requiring an in-person workforce –Fisher Phillips uncovered in its latest upgrades to the firm’s landmark litigation tracking map. Since it debuted earlier this year as the nation’s first comprehensive database of COVID-19-related employment litigation, the Fisher Phillips COVID-19 Employment Litigation Tracker has been the go-to source of information for employers looking to ensure they kept one step ahead of workplace lawsuits stemming from virus-related concerns. Due to advances made by the firm’s Knowledge Management Department, the tracker is an even more invaluable tool as it now includes data on three new, key measurements:
-the size of employers being most frequently sued;
-the number of cases filed per state analyzed as a ratio of state population;
-and the industries most commonly targeted by COVID-19 workplace-related litigation.
Here are the three most surprising trends revealed with a fresh examination of this key data
COVID-19 won this past college football Saturday. The Southeastern Conference (SEC) football schedule for November 14 originally included seven games. Only three were played, none of which included ranked teams No. 1 Alabama, No. 6 Texas A&M, No. 11 Georgia, and No. 21 Auburn. These four SEC games were not canceled, however, because several players or staff had COVID-19, but rather because they were identified through contact tracing to have been exposed to the virus and thus were required to quarantine.
Media outlets announced Saturday that Joe Biden will become the 46th president of the United States. If the legal challenges to the election result fail and he is inaugurated in January, President-Elect Biden can begin taking actions that will immediately impact employers. You should begin preparing now for managing a workforce under the Biden administration, which has pledged to make significant changes to the American workplace, including an expansion of worker's rights.
While the election results may still be debated until officially certified and litigation is resolved, employers should be looking ahead to what a Biden administration will mean for immigration. Prior to this tumultuous year, immigration was one of the biggest hot button topics in the country. But due to the pandemic, social unrest, and the national economic downturn, immigration has grabbed fewer headlines. Regardless, immigration policy will be one of the areas most significantly impacted by the change in administration. This article will cover the top 10 developments that employers can expect in immigration law under President Biden.
- The Crystal Ball Says These 6 Issues Will Demand The Attention Of Healthcare Employers During Biden Administration’s First Year11.16.20
We have already taken a broad look at workplace law developments likely to emerge under Joe Biden’s administration, unless the political landscape shifts suddenly and dramatically. The healthcare industry is of course already unique and challenging, especially as the COVID-19 pandemic continues. After all, reports of increased demands for staff, personal protective equipment (PPE), supplies, and treatment have been in the headlines throughout the crisis. The Centers for Disease Control and Prevention (CDC) has premised much of its fundamental guidance on its efforts to safeguard the capacity of the nation’s healthcare system. This is a primary reason the CDC has repeatedly stated that getting flu shots is more important this year than ever. When a COVID-19 vaccine becomes available, that will obviously be another huge development.
As you prepare for the prospect of a Biden presidency, businesses large and small should consider the potential impact on decision-making and regulatory reform at the National Labor Relations Board (NLRB) – whether or not your workforce is unionized. The new administration can be expected to fulfill promises made to organized labor by rolling back Trump Board measures that have inured to the benefit of unionized and non-union employers alike. As made clear in a recent campaign position paper, President-elect Biden plans to push for adoption of pro-union elements within the Protecting the Right to Organize Act (PRO Act) passed by the House earlier this year as a cornerstone of his Administration’s regulatory labor agenda.
We recently discussed the healthcare industry's unprecedented profusion of advanced technologies amidst the pandemic. Such technologies primarily include the expansion of telehealth across the nation and complex advancements to the nuanced roles of artificial intelligence, analytics, and biometrics to improve the integrity of electronic health records (EHR). Under the Biden Administration, we anticipate a push for stricter federal privacy legislation favoring consumer and patient rights, mirroring the California Consumer Privacy Act (CCPA).
A Biden presidency will surely bring changes to federal labor law under the National Labor Relations Act, the primary law that governs employee collective activity, labor-management relations, collective bargaining, and union elections. The NLRA is enforced by the National Labor Relations Board, a quasi-judicial body comprised of a General Counsel and a five-member board, each of whom are appointed by the president with the consent of the Senate.
In late September, Indiana Governor Holcomb announced that Indiana could move to Stage 5 of his “Back On Track” COVID-19 plan, which allowed businesses to reopen and operate under a few restrictive measures. Since that time, the number of positive COVID-19 cases has risen significantly and steadily. Indiana’s seven-day positivity rate went from 3.9% in late September to 10.6% as of November 13. In light of this, Governor Holcomb issued an Executive Order (EO) today which rescinds Stage 5 of “Back On Track” and imposes a county-based assessment to determine the measures and restrictions needed to counter the spread of COVID-19. What do businesses need to know about this latest development?
The Kentucky Supreme Court issued a decision today determining Governor Andy Beshear was acting within his powers when he issued orders related to COVID-19 without deference to local authorities or other emergency management agencies. This means that Governor Beshear’s industry-specific COVID-19 reopening requirements, also known as “Healthy at Work,” continue to be in effect – and it could mean that more orders could soon be on their way. What do Kentucky employers need to know about today’s decision and what this means for the near future?
In an ongoing effort to control the spread of COVID-19 in Ohio, Governor Mike DeWine stated today that the Ohio Department of Health will soon issue Revised Mask Orders, creating new obligations for employers throughout the state. Noting that new COVID-19 cases are increasing exponentially and that hospitals will soon be strained, Governor DeWine states there is much to do before a vaccine becomes available. What do Ohio employers – especially retail establishments – need to know about these new requirements?
With the increased rates of COVID-19 transmission across the United States and with all but six states presently on Chicago’s Emergency Travel Order quarantine list, the City of Chicago announced sweeping changes to the City’s Emergency Travel Order that are slated to go into effect on Friday, November 13. The new Travel Order now categorizes states into three categories – yellow, orange, and red – based on the status of the outbreaks in the states and how the data compares to the situation in Chicago. What do employers need to know about this latest development?
Colorado employers with five or more employees need to begin preparing to ensure they are in compliance with obligations brought about by a new state law that ensures nearly a million Colorado workers have access to retirement savings plans. Covered employers likely will need to either sponsor their own retirement plan, such as a 401(k), or facilitate employee participation in the recently enacted Colorado Secure Savings Program. While we anticipate that compliance will be phased in starting in 2021, the exact effective date has not yet been announced – but that doesn’t mean you shouldn’t be starting to prepare. What do Colorado employers need to know about this new item on your to-do list?
- Washington Supreme Court Grants Dairy Workers Overtime Pay As Fundamental Right, Raising Concerns For Agricultural Employers11.10.20
In a sweeping 5-4 opinion last week, the Washington Supreme Court held that dairy workers are entitled to overtime pay, concluding that a state statutory exemption violated the Washington State Constitution. For the previous 60 years, Washington’s Minimum Wage Act (RCW 49.46.130(2)(g)) had expressly exempted agricultural workers from receiving weekly overtime premium pay for any work performed above 40 hours in a workweek. But in the November 5 decision in Martinez-Cuevas, et al. v. DeRuyter Brothers Dairy, Inc., the court found that the overtime exemption impermissibly granted agricultural employers an unconstitutional privilege or immunity from paying otherwise mandatory overtime pay to these high-risk workers. What do Washington agricultural employers need to know about this decision?
With Joe Biden now being called the president-elect, we can expect changes to the Mine Safety and Health Administration (MSHA) once he takes office in January 2021. Right now, while there is speculation as to who will be the next Secretary of Labor and who will be the next Assistant Secretary of Labor for MSHA, we can be confident that the expansion of workers’ rights, a key focus for the Biden administration, will include some significant changes in MSHA’s focus. Now is the time for operators to prepare for a shift from MSHA’s enforcement posture over the past four years. Here are the top three significant changes we can expect from MSHA under a Biden administration:
Media outlets announced Saturday that Joe Biden will become the 46th president of the United States. If the legal challenges to the election result fail and he is inaugurated in January, President-Elect Biden can begin taking actions that will immediately impact employers. You should begin preparing now for managing a workforce under the Biden administration, which has pledged to make significant changes to the American workplace, including an expansion of worker's rights.
It appears to be official: unless the election results can be overturned in several states, Joe Biden will soon be our nation’s 46th president. Now the work begins to forecast what the next four years will bring. We’ve spent some time gathering our firm’s collective wisdom on what the next administration will mean for workplace law and the nation’s employers. Here are our predictions in 11 key areas.
The Small Business Administration (SBA) has released loan necessity questionnaires that lenders must issue to over 50,000 borrowers that received $2 million or more in funds from the Paycheck Protection Program (PPP) – and the questions indicate that borrowers may face a higher hurdle than originally anticipated when it comes to forgiveness. Businesses may need to demonstrate that they suffered actual economic harm as a result of the pandemic in order to be eligible for full forgiveness, which is a change from what many initially believed at the time the applications were submitted. Borrowers only have 10 days from the time they receive the questionnaire to complete it and submit supporting documentation, so those who received $2 million or more from the PPP should begin preparing to respond to the questionnaire now.
Californians just passed a ballot measure that will soon expand the nation’s most stringent data privacy law – and it will have an impact on employers across the country. By voting in favor of Proposition 24 – the California Privacy Rights Act of 2020 (CPRA) – employers and businesses will face an expansion of the state’s landmark privacy law, the California Consumer Privacy Act of 2018 (CCPA). Most provisions of the CPRA go into effect on January 1, 2023, although some provisions have a 12-month lookback, as explained below. What do employers and businesses need to know about this dramatic new legal obligation – especially those beyond the California border who may not recognize their obligations?
Colorado voters passed Proposition 118 yesterday, creating Paid Family and Medical Leave obligations for all employers in the state. This initiative mandates that employers provide 12 weeks of leave for Colorado employees, plus an additional four weeks in case of medical complications. What do employers need to know about this groundbreaking new law?
Florida voters just approved a constitutional amendment that will gradually raise the state minimum wage to $15 per hour in 2026. What does this mean for employers? Here are the top five things you need to know about yesterday’s groundbreaking election result.
As Georgia faces a resurgence of COVID-19 cases and the possibility of stricter mitigation measures, employers should know what the latest City of Atlanta mask order requires and how failure to comply will affect their business. What do employers need to know?
Colorado employers should be preparing for a big change that will impact your workplaces, as Colorado’s Equal Pay for Equal Work Act becomes effective on January 1, 2021. With the effective date fast approaching, you must use the remaining months in 2020 to get up to speed on the requirements and adjust your policies, procedures, and job postings.
- “Can We Do That?” Kentucky Employers Should Tread Cautiously When Regulating Employees’ Off-Duty Conduct To Reduce COVID-19 Spread11.2.20
As coronavirus cases continue to surge across the United States and the Commonwealth of Kentucky, wary employers are revising their policies and response plans to mitigate against potential outbreaks in the workplace. Such policies and plans are critical to keep workers safe and to comply with the deluge of federal, state, and local workplace safety guidelines that have been issued since the beginning of the pandemic.
The government agency overseeing affirmative action requirements for federal contractors recently declared that healthcare providers who participate in TRICARE – the federal health care program providing benefits to uniformed service members, retirees and their families – are “independent” from its jurisdiction. The final rule released by the Office of Federal Contract Compliance Programs (OFCCP) establishes a national interest exemption from Executive Order 11246 (E.O. 11246), Section 503 of the Rehabilitation Act of 1973 (Section 503), and the Vietnam Era Veterans’ Readjustment Action of 1974 (VEVRAA) for those health care providers with agreements to furnish medical services and supplies to individuals participating in TRICARE. Thus, long-awaited regulations make clear that hospitals whose only “federal contract” is the acceptance of the military healthcare insurance program are not subject to the requirements or the enforcement of the OFCCP regulations.
"It is coming and it is coming now,” says New Jersey Governor Phil Murphy of the second coronavirus wave hitting the state. To address the public health dangers of the new uptick in cases, which are exacerbated by the return of many employees to the workplace over the last several months, Governor Murphy just issued a new executive order with requirements for employers that take effect at 6:00 a.m. on Thursday, November 5. The order also directs the establishment of complaint procedures and imposes penalties for violations.
To prove that an employer failed to accommodate an employee’s disability in violation of the Americans With Disabilities Act, an employee alleging disability bias does not need to show that the employer fired them or took a similar adverse employment action, the 10th Circuit Court of Appeals opined yesterday. The issue in Exby-Stolley v. Bd. of Cty. Comm’rs – whether an adverse employment action is required to maintain an ADA claim – has split the appeals courts across the country and may require final resolution by the Supreme Court. For now, though, employers in Colorado, Kansas, New Mexico, and other nearby states will need to be extra cautious when it comes to ADA compliance efforts due to this decision.
Michigan just passed four new COVID-19 bills touching on workplace safety, employee protections, and legal immunity for businesses – and employers will need to be sure to stay on top of state rules if they want to avoid liability or safety concerns. The bills, passed on October 21, were the result of a compromise between Governor Whitmer and the Republican-held state legislature. In general, the bills incentivize Michigan employers to maintain similar workplace protections as laid out in Governor Whitmer’s now-invalid executive orders and MIOSHA’s recently enacted emergency rules. This article addresses what Michigan employers should do in light of each of the new laws.
As the U.S. faces what looks like a resurgence of COVID-19 cases and the possibility of more state and local shelter-in-place orders, employers who have been operating during the pandemic should know what the federal government requires and whether they will be able to continue to operate. What do employers need to know about federal “critical infrastructure” guidance, and what do you need to know as you continue to operate your business?
New COVID-19 contact tracing procedures released by the federal government yesterday have expanded the category of individuals who are deemed to be in close contact with each other – and will complicate the already difficult task faced by employers when trying to maintain a safe workplace environment. The updated guidance now indicates that workers should be considered to be at risk of contracting the novel coronavirus if they were within six feet of an infected individual for a total of 15 minutes or more over a 24-hour period during the 48 hours before the infected individual exhibited symptoms or, if asymptomatic, 48 hours before the COVID-19 test was administered, even if the interactions that lead to a cumulative total of 15 minutes were brief and spread out over that time. What do employers need to know about this new standard, and more importantly what do you need to change about your workplace practices?
The Centers for Disease Control and Prevention (CDC) recently released updated guidance on COVID-19 testing protocols for K-12 schools, making clear that the Equal Employment Opportunity Commission (EEOC) permits schools to implement required testing policies for their employees. However, the October 13 additions to the CDC’s published guidance suggests limits on how testing policies should be applied to students. Although CDC guidance is developed with public and charter schools in mind, private schools may also find these developments helpful.