Legal Alerts Archive
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.