As COVID-19 cases and deaths continue to rise, so too does the number of lawsuits filed against employers. Recently, an increasing number of families of employees who died from COVID-19 have asserted wrongful death actions against employers for failing to keep their family members safe while at work. What can employers learn from these lawsuits to not only keep their workers safe but avoid being on the receiving end of such a claim?
Businesses in Georgia now have protection from civil lawsuits arising out of alleged COVID-19 exposure, transmission, infection or potential exposure. The Georgia COVID-19 Pandemic Business Safety Act (GCPBSA), which is now in effect, protects businesses and individuals in many circumstances from COVID-19 exposure claims (and other types of claims) that accrue before July 14, 2021. You must take some specific proactive steps to receive this protection, however – so you need to make sure you understand the details of this new law.
As of this writing, employees from across the country have filed more than 430 COVID-19-related lawsuits against their employers and former employers. Not all of these claims have focused on the Family First Coronavirus Response Act (FFCRA) — the federal legislation governing Emergency Paid Sick Leave and Emergency Family and Medical Leave — but rather a substantial number of lawsuits have alleged employer impropriety using COVID-19 as a factual backdrop. Examining some of these cases more closely, some common themes emerge. How should employers prepare for potential litigation?
In a surprising and significant ruling yesterday, a New York federal judge tossed out several key Department of Labor rules regulating the Families First Coronavirus Response Act (FFCRA), meaning that more workers will be able to take paid leave under the new law. The ruling also creates uncertainty for employers trying to comply with administrative aspects of the leave act requirements, and brings us back to the confusing early days of the new law before the DOL issued clarifying regulations. The scope of the ruling is unclear at present, as the judge did not specifically indicate if it applies nationally or just in New York. However, even if limited in scope, the same reasoning could be followed by other courts considering similar challenges in other parts of the country.
- Illinois Issues Guidance For Employers’ Requirement To Report Adverse Judgments And Administrative Rulings7.30.20
After state lawmakers passed sweeping expansions to the Illinois Human Rights Act (IHRA) in August 2019, employers have been left in the dark as to how the state would interpret and enforce the new requirement forcing employers to report adverse judgments or administrative rulings regarding unlawful discrimination to the Illinois Department of Human Rights (IDHR). This has been particularly frustrating given that the change went into effect on July 1, 2020. Fortunately, the IDHR just issued guidance for these requirements. What do Illinois employers need to know in order be ready to comply with their reporting obligations under the IHRA?
Although COVID-19 remains a significant public health concern, companies throughout the country have reopened their manufacturing facilities. As they reopen, companies should follow certain best practices to ensure the safety of their employees and avoid potential liability. Here is a five-step best practices plan to put your company – and your employees – in the best position to succeed.
The National Labor Relations Board has just proposed new union election rules that would reduce the information employers must provide to unions prior to elections and allowing absentee voting by workers on military leave. This is the third rule the Board has proposed during the Trump administration impacting elections of bargaining representatives. What do employers need to know about this proposal?
In our last article, we explored the concept of negligence and how it can impact a citation or order. We continue this series with a discussion of the unwarrantable failure designation. Operators should understand what an unwarrantable failure is and how to avoid an allegation of aggravated conduct. Finally, we will provide operators a list of best practices to avoid this elevated negligence determination.
California Governor Gavin Newsom just released a 32-page COVID-19 Employer Playbook providing additional guidance for California employers related to COVID-19 and safe re-opening. Though the July 24 Playbook provides a helpful overview for employers regarding steps to take to ensure a safe workplace, like other guidance issued since the start of the pandemic, there are areas that are still unclear and will likely require further guidance. Here are the Playbook highlights you need to know about.
The state of New York has not been immune to the fast-growing COVID-19 employment litigation case load. This should come as no surprise to businesses located here, given that New York has been one of the states hit hardest by the pandemic and typically has one of the most voluminous employment litigation dockets. According to the FP COVID-19 Employment Litigation Tracker, a total of 28 cases have been filed in New York state and federal courts as of July 22. The U.S. District Court for the Southern District of New York, which encompasses Manhattan, leads the pack with 11 cases in its district. What are the five most important lessons you can learn from this data?
Reports of increased deaths and hospitalizations of nursing home employees infected with COVID-19 have prompted unprecedented numbers of federal and state workplace safety inspections at healthcare facilities. Just this week, the Occupational Safety and Health Administration (OSHA) issued its second COVID-19-related citation to an Ohio healthcare company for $40,482. What do healthcare employers need to know about this July 21 development and what can you do to ensure your workplaces meet the necessary safety standards?
In response to the rise and spread of newly reported COVID-19 cases, Ohio’s Department of Health issued an order this week mandating the use of face coverings in public. In addition to the mask mandate, the agency issued a new travel advisory for Ohioans. What do Ohio employers need to know about these developments?
Because COVID-19 continues to spread at a rapid rate throughout the country, with positivity rates hovering between 7% and 8% in Indiana, Governor Eric Holcomb recently announced he will sign an executive order requiring face coverings to be worn in most public and commercial settings starting Monday, July 27. Governor Holcomb is expected to sign the Order today. What do employers need to know about this new requirement?
- Virginia Creates Nation’s First Mandatory COVID-19 Workplace Safety Rules Effective July 27 – Look For Other States To Follow Suit (UPDATED)7.23.20
Virginia just adopted the nation’s first enforceable regulatory mandate regarding COVID-19 safety measures in the workplace. While the emergency standard adopted today by the Virginia Safety and Health Code Board will only be applicable to and enforceable against employers in Virginia, it sets the groundwork for other state plan states to adopt similar enforcement measures, including California, North Carolina, Oregon, and Michigan. What do Virginia employers – and employers around the country – need to know about this development?
- What Employers Need To Know About DOL’s New Guidance On Return-To-Work, Remote Work, And Wage And Hour Issues7.23.20
The Department of Labor issued several sets of new guidance materials to employers as return-to-work, remote work, and wage and hour issues remain hot – and sometimes confusing – topics. The agency recognizes that the intersection between the Families First Coronavirus Response Act (FFCRA), the Family and Medical Leave Act (FMLA), and the Fair Labor Standards Act (FLSA) can be a challenging place for compliance purposes, and therefore compiled some additional materials to aid you in navigating this journey.
- NLRB Rules That Employers Need Not Tolerate Sexist, Racist, Or Abusive Conduct By Employees Engaged In Otherwise Protected Activities7.23.20
In a critical reversal of Board precedent, the NLRB just unanimously held that employees engaging in abusive conduct in the course of protected concerted activities are not automatically shielded from discipline under the National Labor Relations Act (NLRA). This welcomed decision will make it less challenging for employers to terminate employees who engage in abusive, sexist, and racist behavior in the course of protected activity, including union activity. What do employers need to know about this significant ruling?
- Time To Reassess International Data Transfers After Court Declares EU-U.S. Privacy Shield Invalid: A 4-Step Action Plan7.22.20
The Court of Justice of the European Union just ruled that an important data protection scheme established between the European Union and the United States is invalid, calling into question many aspects of important data transfers carried out by private businesses in America. In what is being referred to as the “Schrems II” decision, the July 16 decision invalidating the EU-U.S. Privacy Shield reinforces the importance of data protection. It raises important questions as to the future of international data flows and use of data transfer mechanisms between the EU and companies around the globe, but especially those in the U.S.
During the COVID-19 pandemic, employers have had to manage an ever-increasing variety of stressful employee related issues. However, as the crisis surges forward, with multiple states facing increased rates of infection as businesses reopen, there is a new issue that employers should be wary of: increased employee substance misuse and substance use disorders.
The Centers for Disease Control and Prevention just changed its guidance for discontinuing transmission-based precautions and disposition of patients with COVID-19 for both healthcare and non-healthcare settings. Generally, the updated guidance reflects a better understanding of transmission and those most at risk for severe illness.
The Department of Labor just provided employers a sign that it might be open to altering the Family and Medical Leave Act regulations and guidance, perhaps resolving some of the more difficult aspects of the law that cause the most administrative and implementation headaches. In a July 16 release, the DOL published a request for information seeking public input about the way it interprets and implements the federal leave law so it can “provide a foundation for examining the effectiveness of the current regulations in meeting the statutory objectives of the FMLA.” What are the top five changes that could be on the horizon?
- Transportation Arbitration Agreements Ruled Enforceable Under New Jersey’s Arbitration Act Despite U.S. Supreme Court Ruling7.17.20
The New Jersey Supreme Court just ruled that state law ensures the enforceability of arbitration agreements with transportation workers despite a recent U.S. Supreme Court case that struck down such an agreement under federal law. The July 14 decision in Arafa v. Health Express Corp., which sheds new light on the contours of the Supreme Court’s New Prime v. Oliveira decision, is a welcome development for New Jersey employers – and is perhaps a sign of things to come for businesses across the country. What do you need to know about this latest development?
As the pandemic continues to scar wide portions of our society, a number of employees have expressed to their employers an interest in donating their own PTO to help co-workers and community members adversely impacted by COVID-19. Employers have the opportunity to harness this collective spirit of generosity with a special leave-based donation program designed specifically for COVID-19, or with traditional approaches adapted for this specific circumstance. If you want to provide employees with an opportunity to donate leave to assist pandemic victims, there are several options.
- Georgia Schools Required To Screen Staff And Students While Conflict Between State And City Orders Remains7.16.20
Georgia Governor Brian Kemp issued a July 15 Executive Order that imposes new requirements on Georgia schools to help mitigate the spread of COVID-19 and that reiterates the supremacy of state law over local orders and ordinances during the pandemic. With a few exceptions, the latest Executive Order, effective through July 31, is nearly identical to the prior Orders released in June that replaced the initial guidelines and requirements for businesses to reopen. What do you need to know about this order, and what should you do as you continue to reopen and operate your business?
As an increasing number of businesses begin to require face coverings in their facilities – whether as a result of a local legal mandate or in the interest of public safety – there has been a corresponding increase in the number of well-publicized reports of customers and guests reacting in a belligerent, hostile, or even violent manner after being asked to comply with mask rules. What should your business do to minimize the chances of such an incident occurring in your workplace, and what should you do if an anti-mask guest disrupts your business? Here is a five-step plan to address this unfortunate part of our new reality.
Colorado now joins the growing number of states requiring most employers to provide paid sick leave – not only extending COVID-19-related sick leave protections to take effect immediately, but also creating a traditional paid sick leave requirement beginning January 1, 2021. What do Colorado employers need to know about the Healthy Families and Workplaces Act?
The White House recently announced that nonimmigrant visa holder students may not remain in the United States if they take full online course loads in the fall. Additionally, the Department of State announced it will not issue visas to students enrolled in schools and/or programs that are fully online for the fall semester. The directive stemming from the July 6 announcement, enforced by Immigration and Customs Enforcement (ICE), will impact foreign national students studying in the United States on an F-1 or M-1 visa. What do educational institutions need to know about this development, and what can they do to address the situation?
- What The Supreme Court’s LGBTQ Decision May Mean For Bathroom And Locker Room Access In Title IX Schools: A 4-Step Best Practices Guide7.15.20
When the Supreme Court recently concluded that Title VII protects LGBTQ employees from discrimination based on their “sex” in its Bostock v. Clayton County opinion, many schools immediately asked: “What does this mean for us?” – especially as it relates to bathroom and locker room access issues for LGBTQ students and employees. Since the definition of “sex” and court decisions interpreting Title VII and Title IX (and their regulations) are so interconnected, it stands to reason that schools would begin to question whether the legal standards have now changed. What do schools need to know about the current state of the law given this landmark decision? We’ll give you an analysis and provide a four-step best practices guide to assist schools in navigating this new terrain.
Maryland employers face a broad array of new workplace rules set to take effect on October 1, 2020. The new legislation will add protected characteristics to Maryland’s anti-discrimination law, create new mandatory advance notice requirements in cases of mass layoffs, install new obligations and protections related to employee salaries and related inquiries, and prohibit non-consensual use of facial recognition services during the hiring process. October 1 will be here before you know it – what do you need to do this summer to prepare for these new obligations?
In an effort to slow the rising number of positive COVID-19 cases, Mississippi governor Tate Reeves recently issued Executive Order 1507, requiring businesses in 13 counties to require masks for both their employees and customers. The mask mandate is effective Monday, July 13 through Monday, July 20, 2020, and affects the following counties: Claiborne, Desoto, Grenada, Harrison, Hinds, Jackson, Jefferson, Madison, Quitman, Rankin, Sunflower, Washington, and Wayne.
So far in this series, we have discussed conferencing and contesting citations and orders and what is “Significant and Substantial.” Here, we turn our attention to another important designation on a citation or order: operator negligence.
The Supreme Court just upheld two Trump-era rules expanding religious and moral exemptions to the Affordable Care Act’s (ACA) contraceptive mandate. The July 8 decision in Little Sisters of the Poor v. Pennsylvania is just the latest in a long line of challenges relating to the contraceptive mandate and the third time in six years that the Supreme Court has ruled on its scope. In brief, this latest dispute centered on the Trump administration’s final rules issued in 2018 granting broader exemptions from the contraceptive mandate to for-profit and nonprofit employers that had sincerely held religious beliefs or moral objections to offering contraception coverage in their group health plans.
Just in time for Independence Day, the government agency overseeing affirmative action requirements for federal contractors 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.
A second round of FAQs recently issued by the Labor Department, the IRS, and the Department of Health and Human Services provides plan sponsors and insurers with additional implementation guidance relating to health coverage provisions under the Families First Coronavirus Response Act (FFCRA), as amended by the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The June 23 guidance in FAQs Part 43 is a follow-up to the Departments’ April 11 guidance in FAQs Part 42 and provides specific clarifications on testing coverage and provider payments, summary of benefits coverage (SBC) notifications, temporary telehealth relief provisions, and various other compliance matters of significance to group health plans. FAQs Part 43 highlights include the following:
Because COVID-19 continues to spread at a rapid rate throughout the country, with Kentucky being no exception, Governor Andy Beshear announced that masks or face coverings would be required starting Friday, July 10, 2020 at 5:00 p.m. What do employers need to know about this new requirement?
As businesses try to return to a new normal, employers should be aware that a number of COVID-19 lawsuits related to pregnancy discrimination have already begun. What do employers need to know in order to avoid being on the receiving end of such a claim?
Atlanta Mayor Keisha Lance Bottoms just issued an executive order requiring persons within the City of Atlanta to wear face masks in many circumstances. This July 8 order appears to conflict with Governor Kemp’s latest June 29 Executive Order that suspends enforcement of any county or municipal ordinance or order that is more or less restrictive than the statewide order, at least through July 15. Similar orders and ordinances have been issued by Athens-Clarke County, the City of East Point, and the City of Savannah. What do employers need to know about this order?
- SCOTUS Upholds Broad Standard For Permitting Religious Exemption From Employment Discrimination Claims7.8.20
By a 7-to-2 vote, the U.S. Supreme Court issued an important and expansive ruling for religious institutions today, holding that the “ministerial exception” primarily requires an inquiry into whether an employee carries out important religious functions for its religious employer. The ministerial exception allows a religious employer to use an employee’s status as a “minister” to invoke the First Amendment’s protections against government interference in the employer’s selection of its employees. As a result of today’s ruling in the consolidated cases of Our Lady of Guadalupe School v. Morrisey-Berru and St. James School v. Biel, courts are barred from adjudicating employment discrimination claims brought by an employee who performed certain religious tasks for her religious employer.
- Shelby County (TN) Businesses Face New Closures, Increased Health And Safety Requirements, And Mandated Face Coverings7.8.20
In an effort to temper the rising COVID-19 positivity rate, the Shelby County (TN) Health Department issued its Public Health Directive No. 8, requiring the closure of some businesses and imposing new requirements on all other businesses, including maintaining records of groups of patrons for contact tracing purposes. The Directive is applicable to all businesses operating within Shelby County and became effective Wednesday, July 8 at 12:00 a.m.
The South Carolina Department of Health and Environmental Control (DHEC) has issued interim guidance for employers to rely on when responding to various scenarios involving COVID-19 in the workplace. Among others, scenarios addressed by DHEC involve those where an employee tests positive, lives or has close contact with someone who tests positive, or is a patron of a restaurant where a staff member tests positive.
Though many experts thought the summer months would bring reprieve, COVID-19 cases are continuing to rise in the United States and, as a result, more employers are dealing with employees testing positive for the coronavirus. Since we published our original plan for responding COVID-19 cases when businesses began to reopen in April, updated guidance has provided some additional considerations employers should keep in mind as they address a positive coronavirus case. Here is our quick seven-step guide to addressing a positive COVID-19 case in the workplace:
Governor Henry McMaster recently signed the South Carolina Lactation Support Act into law, soon requiring all employers in South Carolina to make reasonable efforts to provide workers with reasonable break time and space to express breast milk at work. What do employers need to know about this new requirement?
After a long wait, the Illinois Department of Human Rights (IDHR) recently published its model sexual harassment prevention training. This model training relates to the recent amendments and expansions of the Illinois Human Rights Act (IHRA) — the state’s anti-discrimination and anti-harassment statute. These amendments put into place strict anti-harassment policy and training requirements for employers. Accordingly, you need to be ready to ensure that your anti-harassment policies and training complies with the IHRA’s new requirements and IDHR’s model training.
Should your dealership require face coverings for workers and customers? In general, yes. According to most recent studies, COVID-19 spreads mainly from person-to-person through respiratory droplets produced when an infected person coughs, sneezes, or talks. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. Accordingly, many states and municipalities have begun requiring the use of masks while the CDC recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain, and especially in areas or regions where positive cases are rising.
- Choppy Seas: Alleged Involuntary Quarantine Of Employees Lands Employer in Wage and Hour Class Action7.6.20
A class action lawsuit filed in Los Angeles County alleges that a seafood company exposed seasonal employees to COVID-19 and then forced them, with the help of a hotel, to quarantine in hotel rooms against their will – and without pay. This class action is an extreme example of the new wave of COVID-19 lawsuits involving costly wage and hour claims against employers. But is likely to be one of many such lawsuits that will be filed as businesses work to navigate their legal obligations to their employees in the landscape of COVID-19. What can your business learn from this Los Angeles county suit?
Summer is here, and for many businesses, that traditionally means hiring minors. Workers under the age of 18 are an important part of the workforce in many industries, including service businesses such as fast-food joints, restaurants, and ice-cream shops. These workplaces and others – such as arcades, amusement parks, and golf courses – often open or experience an increase in volume in summer.
The U.S. Supreme Court declined to weigh in on the question of whether employers can use prior salary history as a defense in equal pay claims, leaving an open question around the country about whether such a justification is a viable option. The July 2 action by the SCOTUS leaves intact the 9th Circuit’s ruling rejecting such a defense, but also lets stand other rulings that seemingly permit employers to employ this reasoning in Equal Pay Act claims. So where do employers stand?
Nearly half of all COVID-19-related workplace lawsuits that have been initiated between employees and employers were filed in the past month, according to data collected by the Fisher Phillips COVID-19 Employment Litigation Tracker. Of the 283 COVID-19-related lawsuits filed in federal and state courts through June 30, 122 of them – or 43% – were filed in the month of June, demonstrating an exponential increase in the number of claims involving disputes between workers and employers. Digging deeper in this data, we have identified a number of key takeaways for employers, including potential vulnerabilities that smart employers should proactively address before they turn into costly lawsuits.
In what can only be described as a complete flipping of the script in employment-related litigation, the owner and manager of a suburban Pittsburgh restaurant adversely impacted by the COVID-19 pandemic have sued a former restaurant server for defamation in Pennsylvania state court. They allege that when they changed their pay plan to deal with the impact of lost business due to a government shutdown order, the server took to social media making disparaging comments about their business that were false, defamatory, and damaging to the restaurant’s and the individuals’ reputations. While there has been a steady stream of lawsuits being filed across the country by employees alleging COVID-19-related workplace wrongdoings, suits by employers against employees regarding impacts of the pandemic remain an extreme rarity. What can employers learn from this example?
Pennsylvania’s Department of Health just issued an order mandating the use of face coverings in the Commonwealth. The July 1 order — which was likley prompted by a sharp rise in new reported COVID-19 cases following Pennsylvania’s efforts to re-open the region — is a departure from previous orders regarding face coverings in that it requires the use of face coverings outdoors and in public places rather than just businesses. What do employers need to know about this development?
The restaurant industry has been severely impacted by state shutdown orders. As states start reopening businesses, it is vital to know the applicable rules that apply to your location or locations. Whether you operate a single location or are a multi-unit operator, compliance will include assessing business operations, bringing employees back to work, and ensuring a safe operation for customers and employees. In an effort to assist the restaurant industry, our Hospitality Practice Group has prepared a comprehensive state-by-state chart that addresses your most commonly asked questions.
On the heels of a recent spike in new COVID-19 cases, at least six South Carolina cities, including the state’s two largest in Charleston and Columbia, have passed emergency face-covering ordinances. Both were enacted shortly after Greenville implemented the Palmetto State’s first face mask ordinance on June 23. All told, roughly 1 in 10 South Carolinians are now under a face mask order with more expected in the coming days and weeks. While cities in other parts of the United States have passed similar face mask orders backed by criminal penalties, violators in most South Carolina cities would receive civil fines up to $25. Businesses can expect more substantial penalties for non-compliance. Columbia’s ordinance took effect on Friday, June 26 at 6 a.m. and Charleston’s ordinance is soon to follow, beginning at midnight on Wednesday, July 1. With no sign of the current pandemic slowing down, Columbia’s ordinance is set to remain in effect for 60 days, unless otherwise lifted. What do employers in the state capital need to know?
On June 29, 2020, California introduced a bill that would require employers within 24 hours to notify their employees, the Division of Occupational Safety and Health, and the State Department of Public Health, of any employee exposure to COVID-19 “that the employer knew of or should have reasonably have known of.” An employer’s failure to adhere to the proposed notification requirements would be a misdemeanor carrying a $10,000 fine.
As expected, Governor Brian Kemp issued a detailed executive order to begin to re-open businesses throughout the state in the hopes that the worst of the COVID-19 crisis has passed.
Nevada employers need to prepare for a substantial change to minimum wage laws, as the pay rate will eventually reach $12.00 per hour over the course of the next four years – beginning with a hike taking effect on July 1, 2020. As a result of the passage of Assembly Bill 456 (now codified as Nevada Revised Statutes § 608.250) in 2019, employers should be prepared for the gradual increases beginning this week.
As many California employers are still reeling from the impacts of the pandemic, employers need to brace themselves and prepare for the minimum wage hikes going into effect in several cities across the state as of July 1, 2020. On Wednesday of this week, the following increased minimum wages will go into effect:
- Total (Security) Recall: Labor Board Returns To Historical Precedent And Allows Discipline Of Newly Organized Union Members6.26.20
The National Labor Relations Board restored its longstanding precedent involving an employer’s duty to bargain over discipline in a newly certified bargaining unit, ruling that employers have no obligation to negotiate with newly formed unions over disciplining workers before the initial collective bargaining agreement is finalized. The June 23 decision in 800 River Road Operating Company, LLC d/b/a CareOne at New Milford marked a return to 80 years of established NLRB precedent.
Nevada Governor Steven Sisolak announced that, effective 11:59 p.m. on Thursday, June 25, 2020, face coverings will now be required in public. In announcing this new requirement, Governor Sisolak lamented that Nevada is experiencing an increasing trend in its cumulative test positivity rate and hospitalizations since May 31. To combat these increases, the governor’s COVID-19 Medical Advisory Team advised that “a mouth-and-nose lockdown is far more sustainable than a full-body lockdown.” What do employers need to know in order to ensure compliance with Governor Sisolak’s Declaration of Emergency Directive 024?
The San Francisco Board of Supervisors just passed the Back-to-Work Emergency Ordinance aimed at guaranteeing reemployment to certain workers who were laid off by covered employers due to the COVID-19 pandemic. This Ordinance creates a temporary right to reemployment when certain larger employers seek to hire workers for the same or substantially similar positions previously held by other workers who were recently laid off. This Ordinance also prohibits covered employers from discriminating against those laid-off workers with family care hardships and allows them to request reasonable accommodations for the hardships. The Ordinance, approved on June 23, will become effective immediately upon the Mayor’s signature and will expire upon the 61st day following enactment unless extended. What do San Francisco employers need to know about this new obligation?
California’s landmark privacy law could soon be amended with updated compliance burdens for employers – and it will be up to voters statewide to determine whether these changes take effect. An amendment to the California Consumer Privacy Act (CCPA), titled as the California Privacy Rights Act (CPRA), has just qualified to appear on the November 3, 2020 statewide ballot. If voters approve the measure, the CPRA would require covered businesses to implement policies and procedures to provide consumers—including employees—with certain privacy rights. What do California employers need to know about this development to prepare for a possible revision to their compliance obligations?
The Small Business Administration (SBA) just released important new rules regarding forgiveness of Paycheck Protection Program (PPP) loans. The June 22 Revisions to Loan Forgiveness Interim Final Rule and SBA Loan Review Procedures Interim Final Rule offer additional clarification on the rules governing forgiveness of PPP loans, while providing borrowers with additional flexibility. What do employers need to know about these developments?
As Massachusetts employers navigate reopening their workplaces while complying with federal, state, and local guidelines, it is helpful to gain some insight into government enforcement priorities. The Fair Labor Division of the Massachusetts Attorney General’s Office has not only prepared a Frequently Asked Questions document, but recently participated in a webinar for employers to offer informal suggestions on wage and hour compliance during these unprecedented times. We attended the webinar and summarized the highlights below so you wouldn’t miss out.
President Trump just issued a Proclamation to further restrict legal immigration, preventing employers from bringing new H-1B, H-2B, L-1A, L-1B, and J-1 workers from abroad into the United States. Effective June 24, 2020 (12:01am EDT), this Proclamation will bar new temporary visas for foreign workers and their dependents through 2020 and potentially longer. The Proclamation also immediately extends the prior suspension of immigrant visas for those applying from abroad for the remainder of 2020. What do employers need to know about this development?
As medical offices, clinics, and surgical centers re-open, employers will not only face questions about clinical protocols and recommended steps for disinfecting and safeguarding the workplace from COVID-19, but must also respond to questions from employees about your expectations and their related fears and concerns. Members of our Healthcare Practice Group have assembled the most common questions medical offices are asking and provided best practices and key recommendations below. Keep in mind that the following guidance is general and may not apply to your factual situation.
The COVID-19 pandemic has created significant uncertainty for businesses across the country – but there is some good news for Louisiana employers and businesses. As offices, worksites, and other places of businesses reopen, many had been concerned about possible litigation brought by an employee or patron who claims to have contracted COVID-19 while on the premises. Fortunately, Louisiana has enacted legislation to limit business liability related to these types of COVID-19 claims. What do employers and businesses need to know?
When California declared that face coverings will be now required in public, employers across the state were handed new obligations when it comes to their workers and anyone else entering the workplace. In announcing this new requirement, Governor Gavin Newsom encourages all Californians to do their part to slow the spread of COVID-19 by wearing a mask – and employers have an important role to play in this arena. What do employers need to know in order to ensure compliance?
Welcome to “Mining MSHA,” a regular series of posts focusing on mine safety fundamentals – but designed for both new and experienced mine safety professionals. This series will help safety professionals develop their MSHA legal knowledge, as we explore over 40 years of case law developed by the Federal Mine Safety and Health Review Commission and its bench of Administrative Law Judges. You will want to share this series with your safety personnel at all levels, because understanding what MSHA can and cannot legally do is the first step in managing your relationship with this enforcement agency. Join your Fisher Phillips Mine Safety team as we mine legal knowledge from the body of Federal Mine Safety and Health law.
On the heels of Shelby County’s decision to remain in Phase 2 of its Back to Business Plan, the Memphis City Council just approved a new Ordinance requiring individuals within the City of Memphis to wear a face covering or mask while present in businesses and public indoor spaces. Described as a “remedial” measure to “mitigate the spread of infectious disease,” the Ordinance gives the mayor the authority to penalize violators of any public health directive, including the failure to use face coverings. The Ordinance was officially approved by the City Council on June 18 and was signed by Mayor Strickland on June 25. The Ordinance will remain in effect until there is no longer a declared public health emergency or the Ordinance is lifted by the mayor. What do employers need to know about this new ordinance?
- Is COVID-19 A Disability Under Discrimination Law? The Next Wave of Workplace Lawsuits May Answer Question6.19.20
With an increasing number of employees being diagnosed with COVID-19 and requiring a leave of absence to recover from the virus, the question arises whether having COVID-19 renders an employee “disabled” as defined under the Americans with Disabilities Act (ADA) or other state and local anti-discrimination laws. A recent lawsuit filed in New Jersey requests that the court answer this question in the affirmative and render an employee who was diagnosed with COVID-19 as disabled under the New Jersey Law Against Discrimination (LAD). In Tihara Worthy v. Wellington Estates LLC, a former employee alleges that she was wrongfully terminated and not permitted to return to work because of COVID-19, which she argues is a “disability.” As many non-essential businesses are beginning to reopen their doors, this lawsuit raises questions that many employers will likely be grappling with in the weeks and months to come.
The EEOC further revised its guidance to employers to clarify that it does not deem workplace antibody testing lawful under the Americans with Disabilities Act (ADA). COVID-19 antibody tests have recently been touted as a way to help prevent infection spread in the workplace, as they could be incredibly useful to employers – if deemed effective and reliable. Unfortunately, we do not yet know if or the extent to which the presence of the relevant antibody means that an individual is completely or partially immune to future COVID-19 infection. While antibody tests have a vital role in analyzing the spread of and our response to COVID-19, so far this testing has not been determined to be a useful mass screening tool for employers – which prompted the EEOC to clarify its stance on the matter.
What Did The EEOC Say?
The Occupational Safety and Health Administration (OSHA) released a Guidance on Returning to Work document that describes strategies and recommends steps employers should take during all phases of reopening. Most of OSHA’s recommendations involve steps employers have been implementing based on state and local reopening guidelines, including basic hygiene, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and training. However, the June 18 guidance addresses a few areas that have raised concerns due to some reopening guidance on the state and local levels.
The City of Chicago has gone a step further than most other jurisdictions to protect employees who have encountered some of the devastating aspects of COVID-19. Adopting portions of the Chicago Minimum Wage and Paid Sick Leave Ordinance, the City just enacted new requirements prohibiting retaliation against a significant number of employees. The new ordinance – signed into law on May 20, 2020 and implementing new provisions effective immediately – requires employers to be cognizant of new developments related to COVID-19 and vigilant about their employment practices. The ramifications employers may face when found in violation of the new provision are significant and should give you pause before taking any adverse employment action. What do Illinois employers need to know about this new development?
By a 5-4 vote, the U.S. Supreme Court ruled today the Trump administration did not provide adequate and appropriate justification to terminate the Deferred Action for Childhood Arrivals (DACA) program, preserving the ability of approximately 700,000 individuals – sometimes known as “Dreamers” – to remain in the country and in American workforces. Considering today’s decision, many DACA recipients will be able to apply to continue to extend their employment authorization or pursue additional educational opportunities.
As an increasing number of employees return to work, employers should be aware that a number of COVID-19-related lawsuits raising FMLA and ADA concerns have already begun to emerge. What do employers need to know in order to avoid being on the receiving end of such a claim?
San Francisco and San Jose have joined the growing list of local California jurisdictions to adopt COVID-19-specific paid sick leave measures impacting employer and employees who operate in the local areas. In general, these ordinances do not amend existing law. Rather, they supplement paid leave already offered under federal law and other local ordinances.
Is the EEOC finally ready to replace its invalidated rule allowing employers to incentivize participation in employer-sponsored wellness programs? Just maybe. Late last week, the EEOC voted 2-1 to send a notice of proposed rulemaking to the Office of Management and Budget (OMB). Despite the June 11 vote, the EEOC has not yet set a timeframe for sending the proposed new rule to the White House’s budget office. Once the OMB receives the proposed new rule from the EEOC – and assuming that it is approved – the proposed new rule will then be shared publicly for comment. What do employers need to know about this latest development?
Noting that outbreaks at food processing facilities and other high-density critical infrastructure businesses have raised unique questions that require additional guidance, the Centers for Disease Control and Prevention (CDC) just released a new testing strategy for those workplaces to augment existing testing guidance and measures aimed at reducing further transmission of COVID-19.
- “No Contest”: Supreme Court Finds Title VII Protects LGBTQ Individuals From Workplace Discrimination6.15.20
In a 6-to-3 vote today, the U.S. Supreme Court ruled that workplace discrimination because of an individual’s sexual orientation or gender identity — including being transgender — is unlawful discrimination “because of sex” under Title VII of the Civil Rights Act of 1964. The basis for the Court’s ruling in Bostock v. Clayton County was summarized by Justice Gorsuch in his majority opinion: “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” What do employers need to know about this historic decision?
An engineer terminated for job abandonment just sued his former employer for not allowing him to work from home due to the COVID-19 pandemic. According to his complaint, Yiyu Lin, a 55-year-old Chinese-American engineer with high blood pressure who lives with his elderly mother, was terminated after repeated requests to work from home were denied. Instead, he claims his termination was unlawful disability, age, and national origin discrimination – and that his employer violated the Massachusetts Earned Sick Leave law when it terminated him for his use of sick leave. The case, filed in a Massachusetts federal court, is one of many lawsuits filed across the country as businesses begin to emerge from the worldwide pandemic. What can all employers – especially those in essential industries that cannot utilize telework – learn from this claim?
In its latest round of updates to a series of COVID-19 Frequently Asked Questions, the Equal Employment Opportunity Commission just warned employers they cannot prevent older workers from returning to work even if they want to protect such workers from the effects of COVID-19. The updates also provide additional guidance regarding ADA reasonable accommodations, preventing workplace harassment in a remote work environment, and addressing other workplace discrimination concerns. What do employers need to know about this latest agency guidance?
After several months of closures or offering virtual fitness classes, Governor Gavin Newsom announced that California fitness centers can soon begin reopening – so long as they comply with specific modifications. The California Division of Occupational Safety and Health (Cal/OSHA) and the California Department of Public Health (CDPH) recently issued guidance to help fitness facilities safely reopen. The new guidance recommends that fitness facilities be permitted to reopen no sooner than June 12.
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has just published a series of frequently asked questions and answers regarding the use of cloth face coverings, surgical masks, and respirators in the workplace. While much of the document summarizes concepts and principles that most employers should know by now, there are at least three important clarifying points that deserve your attention. What do employers need to know about this latest guidance?
In a major reversal of a 2014 Obama-era precedent, the National Labor Relations Board just ruled that it will no longer assert jurisdiction over bona fide religiously affiliated schools. This decision is of enormous significance for religiously affiliated colleges and universities which have faced union organizing in recent years – among their contingent faculty in particular. Such institutions will no longer have to be concerned about union organizing if they meet the new bright-line test established by the Board. What do you need to know about the June 10 decision in Bethany College (369 NLRB No. 98 (2020))?
The California Consumer Privacy Act (CCPA) had only been in effect for a short time before the COVID-19 pandemic struck, raising a host of new privacy challenges for employers in the midst of trying to comply with an entirely new set of challenges and laws. As California businesses begin to reopen, these concerns have only increased – and will only amplify once the enforcement date of the CCPA kicks in on July 1, 2020. What do employers need to know about complying with California’s new privacy law during the COVID-19 era?
It is no surprise that COVID-19 whistleblower lawsuits are being filed against healthcare employers – and a recent claim filed by a former assistant director at a nursing home facility reveals ways in which healthcare employers may be in a vulnerable position if they don’t proactively address concerns raised by their employees. Indeed, because the COVID-19 pandemic has increased the focus on health and safety issues, it is now more likely that a terminated employee had some role in actively voicing their opinion about health and safety compliance. As a result, it may now be easier for them to claim they were a whistleblower. In this context, the best defense is a good offense: healthcare employers should already be taking precautions to address the “whistleblower’s” complaints and be able to document this in order to defend against the claims. Reviewing the allegations in the Hinich v. Norwood Life Society, Inc. case, filed in Cook County, Illinois, can help you develop your own proactive plan to avoid such a lawsuit.
With well over 175 COVID-19-related employment lawsuits already having been filed nationwide, employers need to keep abreast of ongoing issues that impact the physical and remote workplace. One area where employers need to be mindful is in the context of employees’ conduct before and after their shifts (also referred to as “preliminary” and “postliminary” activities) and whether such time is compensable. For example, in today’s environment, you may wonder whether you are required to pay employees for time spent washing their personal protective equipment (PPE) or uniforms to limit the transmission risk of COVID-19. Asking yourself six questions will help you determine your wage and hour obligations in these turbulent times.
After much discussion and debate, Congress just passed the Paycheck Protection Program Flexibility Act, which will implement substantial changes to the Paycheck Protection Program (PPP). President Trump is expected to sign the bill into law. Among other changes, the bill extends the time that businesses have to spend PPP loan funds and alters the forgiveness rules, including a reduction in the percentage of the loans that must be used for payroll purposes.
Thanks to an impending new law, Maryland employers faced with large employee reductions will no longer be able to simply determine on their own whether to follow the state’s voluntary advance notification guidelines. Beginning on October 1, 2020, the state law will mandate that certain employers provide advance notice to impacted employees and others ahead of such reductions in force. Because these new state requirements include lower thresholds and other provisions different and broader from the federal WARN Act requirements, they are likely to affect many Maryland employers. What do employers need to know about these significant changes to Maryland’s mini-WARN Act?
The National Basketball Association made national headlines last week by announcing its season would resume later this summer. That same night, league commissioner Adam Silver also garnered national attention – and criticism – when he said that older coaches may not be able to sit with their teams on the sidelines during games. In an interview on TNT’s “Inside the NBA,” Silver said that “some older coaches may not be able to be the bench coach in order to protect them.”
Washington Governor Inslee recently modified the statewide phased reopening plan with a Safe Start County-by-County plan – while also imposing new requirements on all employers by industry. The new plan gives individual counties greater flexibility to advance through each phase as they hit certain metrics, including disease activity, health care system readiness, testing availability, contact tracing, and number of confirmed cases. They will be used as targets rather than hardline rules, and good performance in one metric can offset a near miss in another. Moreover, counties may be permitted to resume certain activities in the next phase even where their progress falls short of supporting wholesale advancement. In short, the new plan offers a more nuanced approach to reopening than the governor’s initial plan. What do Washington employers need to know about this new reopening strategy?
- New Jersey Continues To Reopen As Restrictions Eased For Food And Beverage Establishments And Non-Essential Retail Businesses6.5.20
New Jersey Governor Phil Murphy just issued an executive order lifting some of the existing restrictions that were designated to limit person-to-person contact for the food, beverage, and retail sectors. Specifically, the order permits the provision of in-person, outdoor service at areas designated for food and/or beverage consumption and permits brick-and-mortar premises of non-essential retail businesses to reopen, subject to certain conditions. The order will go into effect at 6:00 A.M. on Monday, June 15. What do employers need to know?
The CDC and the U.S. Department of Labor just released interim guidance for all agriculture employers to provide an action template to protect agriculture workers from COVID-19. Primarily, the guidance addresses exposure risk to agriculture workers, and encourages employers to develop a COVID-19 assessment and control plan to protect themselves and farmworkers, in accordance with the CDC Interim Business Guidance for Businesses and Employees and General Business Frequently Asked Questions.
Just as the 2020 legislative session wrapped up, the Missouri legislature passed a bill increasing the standards for pleading and making it harder to prove claims for punitive damages – especially in employment cases. S.B. 591 is expected to be signed by Governor Parsons, and, if so, will apply to causes of action filed after August 28, 2020. This new law will be welcome news for employers. What do you need to know about the impending changes?
In an exclusive Q&A interview with Wolters Kluwer, Letitia Silas and Kerry Martin, partners in the firm’s Labor Relations practice, address the complexities of labor relations in the American workforce during and after the COVID-19 pandemic.
A nursing home in Georgia has received the first citation issued by the Occupational Safety and Health Administration (OSHA) related to the COVID-19 outbreak. The citation alleges six nursing home employees were hospitalized as a result of COVID-19 that was contracted while at work and the nursing home failed to report the hospitalizations to OSHA within the statutorily mandated time period. The citation alleges the employees were hospitalized around April 19, but the nursing home did not report the hospitalization to OSHA until May 5. OSHA has proposed a $6,500 fine for the alleged violation and classified the violation as “other than serious.”
Inevitably, a mine operator will receive a citation or order it disagrees with. The operator may attempt to conference the citation or order, discussing the merits of an enforcement action with the MSHA district. To request a conference, the operator should submit a written request to the district within 10 days of its issuance. However, it is within MSHA’s discretion whether to even conduct a conference.
After nearly three months of stay-at-home orders and the shutdown of non-essential retail businesses, New Jersey is slowly starting to reopen. Non-essential construction projects resumed, non-essential retail businesses have reopened with curbside pickup options, and Governor Murphy recently announced that non-essential in-person retail, outdoor dining, and daycares and summer camps can reopen as early as June 15, and salons and barbershops can reopen June 22.
Employers are looking for better ways to monitor whether individuals entering their workplaces have been exposed to or are infected with COVID-19 – and the use of more sophisticated thermal scanning cameras or similar systems that can process many people quickly has emerged as a possible solution. Before implementing such technology in the workplace, however, you should consider the pros and cons of using them and the logistical hurdles required for implementing them.
Michigan Governor Gretchen Whitmer just lifted the state’s shelter-in-place order, permitting certain businesses to reopen under a specified timetable and operate subject to specific workplace safety requirements. Meanwhile, a variety of businesses must remain closed for the time being. What do employers need to know about this next step toward recovery from the COVID-19 pandemic?
The National Labor Relations Board took the opportunity last week to double down on its recent reversal of the Purple Communications doctrine, holding that T-Mobile USA did not violate federal labor law by implementing a rule barring call center employees from using the company’s email system to discuss union organizing activities. The May 27 decision represents another step away from Board doctrine that had previously upheld the right of workers to utilize an employer’s electronic communications systems to solicit co-workers for organizing purposes during non-working time.
On the eve of their scheduled implementation date, a federal court judge in Washington, D.C. struck down significant portions of the National Labor Relation’s Board new union representation procedures – handing a significant victory to unions attempting to keep the current “quickie election” rules in place. While the brief written decision handed down late Saturday night provides few details (but promises to be followed by a full opinion), it appears that challenged aspects of the new rule have been set aside for failure to comply with notice-and-comment rulemaking requirements established within the Administrative Procedure Act (APA).
Several former employees of a national restaurant chain filed a class action lawsuit claiming their former restaurant employer violated California’s WARN Act by furloughing workers in March without providing 60 days of notice or 60 days of wages and benefits. Although federal WARN Act cases related to COVID-19 employment actions are still somewhat rare, this case relies not on the federal statute but California’s state version. What do employers need to know about the De La Cruz v. Hometown Buffet case in order to avoid a similar fate?
Employers across the nation have faced swift and dramatic changes to business operations as states and local municipalities have issued “stay-at-home” orders and imposed other restrictions in the hopes of stymying the spread of COVID-19. One of consequences has been that many employers have transitioned to remote work overnight without the benefit of detailed plans and policies. The shift to remote work, even though crucial in these unprecedented times, has placed additional obligations on some employers who may now be on the hook for teleworking expenses incurred by employees.
As more businesses begin to reopen, businesses face many difficult questions about requiring employees and customers to wear protective face coverings? However, businesses should not forget that, despite the onset of COVID-19 and drastic measures taken by local, state, and federal governments, the provisions of the Americans with Disabilities Act (ADA) still apply to employers and places of public accommodation. What do you need to know about this issue to avoid legal liability?
(Public) employers rejoice! In a unanimous decision, the Pennsylvania Supreme Court just ruled that PennDOT did not violate an ex-employee’s free speech rights by firing her over a Facebook rant in which the ex-employee said she “don’t give a flying s*** about those babies and  will gladly smash into a school bus.” This case should serve as a beacon for Pennsylvania public employers navigating the often-murky waters of employee social media use.
California was one of the first states to establish a uniform regulatory and licensing regime for medical and adult-use cannabis. A key component of the state law is that an applicant for a cannabis license must enter into a “labor peace agreement” with a union as a condition to licensure. California cannabis employers need to know that not all labor peace agreements are the same. There could be significant lasting impacts to your business if you sign the wrong labor peace agreement. What do you need to know about this area of the law, and what are some considerations to keep in mind as you proceed?
- Union Organizing In The Cannabis Industry: What Every Cannabis Employer Should Know About Labor Peace Agreements5.29.20
As more states legalize medicinal and recreational cannabis, many states are requiring that cannabis employers enter into a “labor peace agreement” with a union in order to obtain or maintain a license to grow, manufacture, or dispense cannabis products. Several unions have seen this as an opportunity to add union members in a time when membership is in steep decline. But are they good for cannabis employers?
As businesses across the country begin to face a wave of COVID-19-related workplace litigation, some are learning the hard lesson that some of these claims may also dredge up long-simmering employment conflicts unrelated to the pandemic.
The Centers for Disease Control and Prevention (CDC) recently released a flowchart-style decision tool to assist employers in the food service industry reopen during the pandemic. The flowchart addresses what steps restaurants and bars should take to protect customers and employees from the spread of the virus once they reopen. You should consider the following three “benchmarks” contained in the CDC’s restaurant and bars reopening flowchart when evaluating how to reopen your business during the pandemic.
Effective Friday, May 29, Virginians aged 10 and older must wear cloth face coverings in public, and employees of essential retail businesses must wear face coverings when working in customer-facing areas. Though many questions remain, you should review your current policies and practices to ensure that both employees and clientele can comply with the new requirements. You should also be cognizant of privacy and discrimination considerations before questioning either employees or customers about mask use.
Massachusetts Governor Charlie Baker just signed a law that prevents Massachusetts employers from being charged increased taxes for unemployment benefits claimed by employees separated from employment during the COVID-19 pandemic. The new law, Senate Bill 2618, also extends the total number of eligible weeks of unemployment from 26 to 30 for any week in which unemployment claims exceed 100,000.
Questions about employee bonuses, payments made to owner employees and the Small Business Administration’s (SBA) authority to audit Paycheck Protection Program loans (PPP) were answered just before the long Memorial Day weekend. Late on Friday evening, May 22, exactly one week after the SBA released its much anticipated PPP Forgiveness Application, the SBA and the U.S. Department of the Treasury issued two interim final rules (IFR) addressing some of the lingering issues with respect to PPP loan forgiveness.
Perhaps the most challenging aspect of encountering a suspected or confirmed case of COVID-19 among your employees as you reopen your business is identifying those employees who worked near the infected worker – and thus must also be quarantined. Luckily, there is a simple numerical sequence you can remember that will enable you to follow the CDC contact tracing guidelines for general businesses: 6-15-48.
If there is one thing operators can depend on during these uncertain times, it is MSHA issuing citations while conducting inspections of your operations. The agency has repeatedly stated it is conducting business as usual – and this means issuing citations with which you may not agree. Remember that you always have the option of conferencing these citations.
With employees returning to work and companies reopening their doors to customers, employers are looking for ways to limit liability related to potential COVID-19 cases contracted in the workplace. To do so, many are considering waivers for not only their employees, but also for customers. Such waivers, however, are somewhat limited in their effectiveness and employers should consider the pros and cons before attempting to implement them. You may also want to consider an alternate strategy that may offer you some of the assurances you seek without many of the negatives associated with waivers.
As more and more businesses plan their re-openings heading into the summer months, many employers are trying to determine how to handle employee requests for leave under the Families First Coronavirus Response Act (FFCRA) based on the unavailability of child care. Specifically, once schools are closed for summer vacation, do employees continue to qualify for paid leave benefits under FFCRA?
Claiming that her employer prohibited her from wearing a face covering at work despite federal recommendations and local orders that such coverings should be worn by employees, a Texas cook just sued the restaurant that she says took her off the schedule after she objected to the company policy – and scored a victory in the first round of this fast-moving litigation. As the nation gets back to business under COVID-19’s “new normal,” workplace lawsuits stemming from COVID-19-related safety concerns are also part of the new normal. How can your business avoid similar claims from your employees as you open back up?
We have outlined a series of FAQs that address questions most frequently posed to our Education Practice Group attorneys about permitting employees, students, and others to return to the campus, the safety precautions recommended, and the legality of the various options that may be presented to school. These FAQs discuss back-to-school issues with a focus on school operations. Our Fisher Phillips website contains detailed, comprehensive Post-Pandemic Back to Business FAQs that cover many general business questions not addressed here.
This week, Governor Ron DeSantis and many of Florida’s largest counties issued orders carefully detailing if and how businesses across the state may re-open. Fisher Phillips has reviewed the relevant orders, which are summarized below.
- NLRB Upholds Rule Prohibiting Cell Phones In Work Areas – But Does The Decision Help Your Organization?5.22.20
The National Labor Relations Board just found that a beverage manufacturer’s rule prohibiting cell phones on the shop floor and work stations did not violate the National Labor Relations Act. The Board’s May 20 decision recognized that this rule would potentially infringe on employees’ ability to make calls or recordings about workplace issues. On balance, however, it held that any such infringement was outweighed by the company’s legitimate business justifications for the policy. The decision is potentially a big win for manufacturers, but only to the extent they can articulate sufficient safety- or business-related justifications for prohibiting personal cell phones in the workplace.
California recently approved San Diego County’s request to move further into Stage 2 of the State’s Resilience Roadmap. San Diego County restaurants and retail businesses may now open with appropriate modifications to their operations. Pursuant to the May 21, 2020 Public Health Order promulgated by the local Public Health Office, retail businesses need to comply with the County’s Safe Reopening Plan along with their industry’s guidance and checklist. (Shopping centers have their own industry guidance and checklist.) Retail businesses which have been open for pick-up and delivery will need to update their Safe Reopening Plan if they intend to permit customers into their stores.
The Occupational Safety and Health Administration just issued new guidance for enforcing its COVID-19 recordkeeping requirements, soon requiring covered employers to make an increased effort to determine whether they need to record and report coronavirus cases in the workplace. This new standard, which will become effective on May 26, reverses course from an agency policy released a few weeks ago that had given OSHA enforcement discretion when it came to the recordkeeping obligations for employers not in the healthcare, correction center, and emergency responder industries. What do employers need to know about this new standard?
- Fisher Phillips Litigators Pull Back Curtain On 2 Novel Trial Strategies That Will Come Up In COVID-19 Litigation5.20.20
Just as the pandemic arrived in the United States at the end of February, Fisher Phillips attorneys were educating a select group of inside counsel about the dangers of catastrophic jury and arbitration awards and providing practical suggestions on how best to prevent such situations. Now that plaintiffs’ attorneys are beginning to unleash COVID-19 employment litigation on businesses across the country, the lessons taught at the Fisher Phillips Inside Counsel Conference 2020 take on a newfound significance.
The National Labor Relations Board usually requires employers to post on their premises notices of findings made against it by the Board within 14 days. However, the NLRB has temporarily modified this standard rule in order to account for the changing environment created by COVID-19. Specifically, the Board recently decided that, in light of the coronavirus pandemic, employers whose facilities are currently closed but have been ordered to post a notice of violations of federal labor law must wait to do so until their offices reopen.
- Michigan Governor Consolidates In-Person Workplace Safety Requirements And Announces Initial Reopening Standards5.19.20
Michigan Governor Gretchen Whitmer issued an Executive Order to consolidate and update in-person workplace safety requirements that were previously provided within the shelter-in-place order, while also outlining new guidance on how restaurants, bars, research laboratories, and offices will be able to operate in areas of the state safe enough for them to operate. To be clear, this order did not reopen all Michigan restaurants, bars, retail stores, and offices.
The Massachusetts Department of Family and Medical Leave (DFML) recently released proposed amendments to the Commonwealth’s Paid Family and Medical Leave regulations, marking yet another proposed change to the state’s nascent paid leave program, expected to begin in January 2021. According to DFML, the regulations are intended to clarify procedures, practices, and policies in the administrative and enforcement of the leave law. Though hearings have yet to be scheduled, they will likely be held via video conference due to social distancing requirements and the current state of emergency. Employers should review closely as any changes are likely to impact them and their employees.
Suffolk County, New York will soon follow other state and local governments that have enacted “ban the box” legislation focusing on an applicant’s qualifications for a position prior to considering the applicant’s possible conviction history. The Suffolk County legislature recently passed legislation restricting employers from asking applicants about their criminal histories in job applications, effective August 25, 2020.
Washington Governor Inslee just issued a restaurant/tavern guidance to help your business prepare for Phase II of his progressive, four-phase plan to reopen the state. These new guidelines allow restaurants to re-open for dine-in service provided they comply with the guidelines once the governor gives the go ahead for Phase II, currently anticipated for the beginning of June. No restaurants may operate until they can meet and maintain all requirements. What do you need to know about these requirements, each designed to reduce the risk of COVID-19 infection, along with key recommendations for dealing with your returning workforce?
Massachusetts Governor Charlie Baker just announced the details of a four-phase plan that will slowly allow Bay State employers to reopen over the next 12 weeks. Under today’s order, Phase 1 will permit houses of worship, construction, and manufacturing facilities to reopen on May 18 — with strict industry-specific safety standards in place. On May 25, office space (June 1 in Boston), personal services such as hair salons, pet grooming, carwashes, and curbside retail pickup will begin.
The Small Business Administration finally released its much anticipated forgiveness application for borrowers who received a Paycheck Protection Program (PPP) loan. It has been nearly two months since the program was signed into law and, since that time, lenders and borrowers alike have been anxiously awaiting for the PPP merry-go-round to stop and for the Treasury Department or the SBA to provide clear direction to achieve loan forgiveness. And while some questions regarding forgiveness remain, the 11-page forgiveness application provides favorable guidance to borrowers to maximize their PPP loan forgiveness.
Governor Andy Beshear recently announced a tentative schedule for re-opening specific Kentucky businesses amid the coronavirus pandemic. Certain businesses that encourage large gatherings, like bars, will remain closed, but the governor recently announced a timeline for re-opening restaurants would be forthcoming. What do employers need to know about this plan?
New York, the state hardest hit by the COVID-19 pandemic, has released plans to guide the state’s reopening process that will permit certain lower-risk businesses to begin phased reopenings on a regional basis as soon as May 15. Dubbed “New York Forward,” the reopening plan focuses on getting people back to work and easing social isolation without triggering renewed spread of the coronavirus or overwhelming the hospital system.
According to Kentucky Governor Beshear’s Health at Work Phased plan, restaurants can reopen on May 22, 2020 at 33% capacity. On May 14, 2020, Governor Beshear issued interim Requirements for Restaurants outlining the additional requirements that restaurants in Kentucky need to meet to reopen and remain open. These restaurant-specific requirements touch on additional steps for social distancing, cleaning, disinfecting and personal protective equipment (PPE). These requirements were issued with the acknowledgment that they will likely change after receiving additional input from the restaurant industry. Nevertheless, restauranteurs would be wise to start making compliance preparations now.
- Employers To The Rescue . . . Maybe! IRS Permits Additional Flexibility For Cafeteria Plan Elections And Carryovers5.15.20
In response to the realization that many employees will have unanticipated medical and childcare challenges due to COVID-19, the IRS just provided employers with a number of optional amendments that can be made to Section 125 cafeteria plans and related health plans and flexible spending arrangements (FSAs). The agency guidance released on May 12 is significant as it allows you the option to let employees revoke, add, or change 2020 coverage elections now, instead of waiting until open enrollment, and without a qualifying status change.
Governor Brown recently announced that Oregon’s businesses will be reopening in three phases. The first phase began on May 15 for counties that have met certain public health prerequisites, including a declining prevalence of COVID-19, contact tracing, availability of isolation facilities, and PPE for first responders (described in more detail here).
One long week after the U.S. Treasury announced that it was extending the Paycheck Protection Program Loan “safe harbor” deadline to May 14, the U.S. Treasury announced this morning that borrowers whose loan amount (combined with the loan amount of any affiliates) is less than $2 million is automatically deemed to have made the certification in good faith. There’s also good news for borrowers whose loan amounts are in excess of $2 million. The announcement makes clear that such borrowers that do not return PPP loan funds by May 14 may still have an adequate basis for making the required good-faith certification.
New York just issued industry specific guidance for businesses that are preparing to reopen. As previously reported, the state hardest hit by the COVID-19 pandemic is preparing to begin phased business reopenings on a regional basis. Come May 15, regions in the state that hit certain metrics that allow for reopening can begin Phase 1 of the New York Forward reopening plan.
New Jersey Governor Phil Murphy just issued an executive order lifting some of the existing restrictions that were designated to limit person-to-person contact for the retail and construction sectors. Specifically, the order permits all non-essential construction projects to resume and non-essential retail businesses to reopen for curbside pickup, subject to certain conditions. The order – which also immediately permits certain car gatherings under strict rules – will go into effect at 6:00 A.M. on Monday, May 18. What do employers need to know?
- San Diego County Introduces Safe Reopening Plan To Complement California’s Resilience Roadmap (UPDATED)5.13.20
Beginning on May 8, California entered a new phase in response to the COVID-19 crisis: gradually starting to reopen the economy for specified businesses that were not designated as essential. In Early Stage 2 of the state’s Resilience Roadmap, each county is authorized to determine the details of the restrictions for the operation of the permitted retail, manufacturing, warehouse and logistics companies. On May 5, San Diego County’s Board of Supervisors adopted the Reopen San Diego Business Safety Framework and, over the course of the last several days, the local Public Health Office promulgated an updated Public Health Order to guide a Safe Reopening Plan.
As businesses gradually begin to ramp up and bring employees back to work, you may soon need to figure out what to do when employees who are receiving unemployment benefits refuse to return to work. After all, they may be reluctant or disincentivized to return to the job, especially if they can turn down your offer and still collect robust unemployment benefits.
Following his announcement that the state could gradually begin reopening during the first stages of the plan, Governor Newsom issued updated guidance yesterday that includes allowing certain businesses, such as dine-in restaurants, to re-open in counties with state approval. Specifically, the California Department of Public Health and Cal/OSHA issued guidance for the dine-in restaurant industry to support a safe, clean environment for workers and customers.
Following his announcement that the state could begin gradually reopening, California Governor Gavin Newsom recently released the first stages of the plan. Notably, the California Department of Public Health and Cal/OSHA issued industry guidance for hotels and lodging to ensure a safer environment for workers during the reopening stages. As we enter Phase 2 of the governor’s plan, hotel and lodging employers should familiarize themselves with these guidelines whether you have remained open in a limited capacity or are now gradually beginning to reopen.
- Massachusetts Employers, Get Ready: Governor Announces Reopening Plan And Mandatory Work Place Safety Standards5.12.20
Massachusetts Governor Charlie Baker just announced his administration’s plan to reopen the Commonwealth’s economy amidst the current COVID19 pandemic. The new four-phase plan is a welcome development for Bay State employers, many of which have been shuttered since Governor Baker’s March 23 shutdown order. Assuming the downward trend in COVID-19 infections continues and testing continues to ramp upwards, the Governor expects to begin implementation by May 18.
While there had been some doubt whether Kentucky’s various COVID-19 reopening “requirements” and “guidelines” had the force of law, the state largely removed that doubt today through an Order confirming that these releases are mandatory.
New York City is making it easier for employees to qualify for COVID-19-related sick leave. The Commissioner of Health and Mental Hygiene issued a blanket order of isolation for all people who work or reside in New York City who meet the qualifications for mandatory isolation orders related to COVID-19. This Order will allow these individuals to qualify immediately under New York’s Emergency Paid Sick Leave.
Thanks to new directives from state health officials, life sciences employers in California will need to immediately create and implement a worksite specific plan to address transmission of COVID-19 in the workplace. The California Division of Occupational Safety and Health (Cal/OSHA) and the California Department of Public Health (CDPH) recently issued industry-specific guidance and a general checklist for life science employers as they continue to operate in the midst of a pandemic requiring such a plan and providing additional directives.