Legal Alerts Archive
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.
Resuming business operations as the intensity of the COVID-19 pandemic decreases and governments in Kentucky and Indiana ease restrictions will involve more than unlocking your front door and turning the lights on. You must assess your operational needs and abilities in the context of your supply chain’s capabilities, customers’ expectations, existing and emerging laws and regulations, and a wide variety of employment issues. Even if Kentucky and Indiana governments have not yet lifted restrictions on your business, now is the time to get your re-opening plan in order. Fisher Phillips, the same workplace law firm that helped businesses navigate the COVID-19 crisis, is here to help employers make plans for getting back to business.
The COVID-19 pandemic has had an unprecedented impact on the workforce, shuttering businesses, prompting mass layoffs, and compelling speedy transitions to remote work. If your company has rushed to implement a temporary remote work practice to accommodate the sudden need for social distancing, or if you have seen the benefits of telework and now choose to maintain what was initially intended as a temporary remote work plan, this article will provide you guidance on the long-term maintenance of remote work plans.
Governor Tate Reeves enacted Executive Order #1477, the Safer-At-Home Order, effective in Mississippi until May 11, 2020. This order still encourages individuals to stay at home unless engaged in essential activities or essential travel, but will allow some businesses to begin to open up. What do employers need to know about the upcoming change?
North Carolina employers let out a collective sigh of relief yesterday – not just because Phase 1 of the state’s reopening will begin on May 8, but also because essential businesses will receive a form of limited business immunity that could shield them from certain COVD-19-related claims. As part of North Carolina's COVID-19 Recovery Act signed into law on May 4, certain businesses will be protected against potential civil claims from customers and employees for injuries or death purportedly attributable to COVID-19. Which begs the questions: Is our businesses covered? And what kind of protection will we receive?
North Carolina’s Stay at Home order expires at 5:00 p.m. on May 8, paving the way for North Carolinians to begin Phase 1 of its Three-Phase Reopening Plan. This phase begins to relax business restrictions, but will require retail businesses to implement protective measures and safeguards, including daily screening through employee questionnaires, limiting capacity, and facilitating social distancing. Phase 1 also continues restrictions imposed on certain businesses while provided recommendations for all businesses – so you should familiarize yourself with the plan before you develop your own reopening strategy.
California Governor Gavin Newsom just enacted sweeping changes to the state’s workers’ compensation standards, providing that a broad swath of California workers who contract COVID-19 are presumed to have a workplace injury covered by the workers’ compensation system. While as many as eight other states have recently established rebuttable presumptions that certain workers with COVID-19 have valid workers’ compensation claims unless the employer can prove the employee contracted the virus outside of work, California took a giant step further.
COVID-19 has had the unprecedented impact of shuttering many businesses throughout the country and leading to record-high unemployment. For some businesses whose operations were hit particularly hard by the pandemic, meeting their financial obligations – including payroll – has been a struggle. While the federal CARES Act was enacted to aid employers in this regard, it does not necessarily provide the immediate funds that some employers need to meet their payroll obligations for work performed prior to COVID-19 shutdowns.
Employers across the country got a bit of good news today as the federal government announced that the EEO-1 reporting process would be delayed by a year, with the next reporting deadline pushed to March 2021. You are now temporarily spared from having to submit the annual EEO-1 report which requires businesses to submit employment data related to race, ethnicity, gender, and job category. Specifically, your 2019 EEO-1 reports, which we had expected to be due by March 31, 2020 (but which employers could not submit because the portal was not available) are now officially postponed. What do you need to know about this welcome development?
Following up on his announcement that the state has made sufficient progress to begin the process of gradually reopening workplaces which were not designated as essential, California Governor Gavin Newsom just released the first stages of the plan that will permit certain lower-risk businesses to begin the careful climb back to work.
A terminated Kroger Co. distribution center worker has just sued the grocery store giant over its handling of absences for what she alleges were COVID-19 symptoms. The most interesting aspect of this claim is that the ex-employee alleges that her termination for violating the company’s attendance policies violates both the Family and Medical Leave Act as well as the Families First Coronavirus Relief Act, even though Kroger has over 500 employees and is not covered by the FFCRA.
Tennessee has begun the long, slow process of reopening for business, and employers will need to pay attention to the requirements put into place by the state in order to ensure compliance. An order handed down by Governor Lee that took effect on April 29 will allow certain workers in 89 of the state’s 95 counties to return to work.
It took less than a month for the plaintiffs’ bar to seize upon what is likely to be the first of many COVID-19-related class action lawsuits alleging violations of the Worker Adjustment and Retraining Notification Act, also known as the WARN Act. The first such lawsuit, filed against a popular restaurant chain in Florida, highlights several important lessons for employers who are considering or have recently implemented layoffs due to government shut-down orders and a decline in business. You need to pay particular attention to this expected trend and prepare ahead of time to avoid facing a potentially costly claim.
Washington Governor Inslee just issued a proclamation to kick off the four-phase plan to reopen the state, titled Safe Start Washington: A Phased Approach to Recovery. Each detailed phase of the plan allows additional industries to resume operations subject to limitations designed to reduce the risk of COVID-19 infection. What do employers need to know about this phased plan?
The South Carolina Department of Employment and Workforce recently announced two important updates relating to unemployment insurance benefits that all employers will want to familiarize themselves with. First, the agency announced that you will be required to provide a notification to employees who have been separated from employment. Second, it has provided instructions for dealing with employees who refuse an offer to return to work.
New York businesses who employ home healthcare workers or employees covered by the state prevailing wage laws must prepare to comply with changes to the state’s wage notice law. As part of the state budget, lawmakers amended the Wage Theft Prevention Act (WTPA) to impose new requirements regarding the wage notices and paystubs that these employers must provide to their employees. Impacted businesses must be aware of the changes and take steps to comply with new obligations.
The Occupational Safety and Health Administration recently issued interim guidance to its area offices on how to handle COVID-19 related complaints, indicating that employers in “high risk” industries such as hospitals and nursing care facilities are directly in the agency’s crosshairs. What do healthcare employers need to know about this increased scrutiny and what can you do to stay on the right side of the law?
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) just provided safety tips and best practices for restaurants and other food and beverage businesses, limited by government orders to curbside and takeout service.
Employers may be required to take the temperatures of employees when businesses begin to reopen in the coming days and weeks following the expiration of many states’ stay-at-home orders. Screening for fevers is a task never previously undertaken by many companies. Given that many states will require or highly recommend this practice, now is the time for to consider what precautions and procedures to undertake to implement this safety measure.
- Sacramento County Allows Some Additional Businesses To Resume Operations While Extending Stay-At-Home Order5.4.20
The Health Officer for the County of Sacramento just extended the County’s stay-at-home order through May 22, 2020. The order was set to expire on May 1, but county officials believe that individuals and businesses need to continue social distancing practices and reduce person-to-person contact in order to further slow the transmission of COVID-19. What do employers need to know about the extended stay-at-home order and the changes to the prior order?
Los Angeles Mayor Garcetti just signed two companion ordinances involving worker retention and right-of-recall that will go into effect on June 14, 2020. The below is intended to help employers determine if — and to what extent — these ordinances impact your business operations.
Michigan Governor Gretchen Whitmer issued Executive Order 2020-70, which expanded the industries that may perform in-person work under the state’s shelter-in-place order that is slated to end on May 15, 2020. The new order’s modifications impact only the new industries discussed below and take effect on May 7. Which industry employers can now perform in-person work and what restrictions must they abide by?