Legal Alerts Archive
Amid many unanswered questions and high levels of uncertainty, the Minnesota Department of Labor published guidance clarifying certain worker protections and benefits relating to the COVID-19 pandemic. The guidance answers questions pertaining to sick leave, the Family and Medical Leave Act (FMLA), the Families First Coronavirus Response Act (FFCRA), the Minnesota Human Rights Act (MHRA), unemployment insurance benefits, possible exposure, workers’ compensation, pay, and workplace safety and health.
California Governor Gavin Newsom just signed into law Executive Order N-51-20 to provide two weeks of supplemental paid sick leave to certain food supply chain workers, provided they are subject to specified qualifying reasons. According to the governor, this Executive Order aims to “close the gap” left by the federal Families First Coronavirus Response Act that mandates paid leave benefits for employers with fewer than 500 employees.
- Washington Employers Need To Provide Alternative Work For High-Risk Workers To Reduce COVID-19 Exposure4.17.20
Washington’s Governor Jay Inslee just issued temporary Proclamation 20-46 that requires employers to provide high-risk workers an alternative work assignment if requested to prevent exposure to COVID-19. If one is not feasible, employees have the discretion to use employer-granted accrued leave or unemployment benefits in any sequence. Employers are also prohibited from permanently replacing high-risk employees if they opt for leave or unemployment. The Proclamation expires June 12, 2020, unless extended.
In a blow to the state’s nascent recreational marijuana industry, a Massachusetts Superior Court Justice denied an emergency challenge to Governor Charlie Baker’s designation of recreational marijuana dispensaries as non-essential and therefore subject to his shut-down orders.
- New Jersey Amends Family Leave Act In Response To COVID-19, Also Adjusts Temporary Disability Benefits And Family Leave Insurance Laws4.17.20
New Jersey expanded its Family Leave Act effective immediately in response to the COVID-19 pandemic to include leave to provide care to a family member made necessary by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease.
Many businesses have likely had one or more employees who serve in the National Guard or Reserves activated to help respond to the COVID-19 pandemic. This often happens in times of emergencies; citizen-soldiers are activated to help respond. With regards to the COVID-19 pandemic, the need is so great that the U.S. Army is asking retired soldiers with a health care MOS (military occupational specialty) to return to active service to help with the COVID-19 fight.
As COVID-19 continues to wreak havoc on the economy, many employers are making the difficult decision to reduce a portion of their workforce – whether temporarily (via furlough) or permanently (via layoff) – to keep their business afloat. As if there weren’t enough balls in the air already, employers conducting a COVID-19-related workplace reduction must also remember to ensure that their employee-selection decisions are based on legitimate, non-discriminatory reasons. Because if their reductions ended up disproportionately impacting a gender, race, or protected age demographic – even if unintentionally – a disparate impact class action lawsuit could follow once the COVID-19 dust settles. This is where an adverse impact analysis comes in.
The Secretary of the Pennsylvania Department of Health (DOH) just signed an Order requiring hefty public health and safety measures for non-healthcare provider businesses permitted to maintain in-person operations. The April 15 Order took effect immediately and will be enforceable as of 8:00 p.m. on April 19, 2020.
As most North Carolina employers know, Governor Cooper previously issued an Executive Order relaxing certain unemployment eligibility requirements for employees adversely affected by COVID-19 and waiving charges to employer accounts. Implementing the changes announced by Governor Cooper, the North Carolina Division of Employment Security recently issued emergency rules that went into effect on April 14, 2020. The emergency rules impose a new “surprise” requirement on employers – which will require you to revise your standard policies and practices.
Thanks to a new bill just signed into law by Governor Phil Murphy, New Jersey employers can breathe a sigh of relief when it comes to their workplace reduction obligations. The Millville Dallas Airmotive Plant Job Loss Notification Act – otherwise known as the New Jersey WARN Act – was just amended to exclude COVID-19-related layoffs and postpone the effective date of previous amendments that were set to take effect on July 19, 2020.
A federal court recently held that New Jersey’s Wage Payment Law (NJWPL) does not extend to employees working outside the state, even if the employer is headquartered there. The April 3 decision in Ortiz v. Goya Foods, Inc. from the U.S. District Court for the District of New Jersey is welcome news for those New Jersey-based businesses with multistate operations or those with employees who perform work outside of state lines.
- COVID-19 Leave Obligations For New York Employers: Understanding The Intersection Of State And Federal Law4.15.20
Both New York and the federal government passed laws providing leave for employees impacted by COVID-19, leaving employers in New York grappling to understand how the two laws intersect. New York employers are required to comply with both the New York Emergency Paid Sick Leave Law (“NY EPSL”) and the Families First Coronavirus Response Act (FFCRA).
Michigan Governor Gretchen Whitmer just extended the state’s shelter-in-place order until the end of April – and created additional obligations for businesses operating during this turbulent time. The new order continues to only allow Michigan employers to require in-person work from employees who qualify as either “critical infrastructure workers” (CIWs) or workers necessary to “conduct minimum basic operations” (MBOWs).
Illinois has made it easier for certain workers who contract COVID-19 to be covered by the state workers’ compensation system. In an emergency amendment to the Rules of Evidence applicable to matters before the Illinois Workers’ Compensation Commission, many employers will now face a significant change in the applicable burden of proof that will make it much more challenging to defend such claims.
The Department of Labor’s Occupational Safety and Health Administration just issued guidance for enforcing OSHA’s recordkeeping requirements for COVID-19 cases. OSHA recordkeeping requirements mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log.
Employers are starting to be served with wrongful death and personal injury lawsuits alleging an employee’s exposure to COVID-19 at work should lead to employer liability, despite the general rule that the workers’ compensation system is the exclusive remedy for such claims. Plaintiffs’ attorneys are ignoring or bypassing such statutes to achieve higher and quicker payouts for their clients. As these claims begin to reach the news, you can be sure that an increasing number of lawsuits will be filed in the coming days, weeks, and months.
Virginia Governor Ralph Northam (D) just signed into law this weekend sweeping legislation that not only protects the rights of LGBT Virginians in employment, housing, and accommodations, but also expands the ability of plaintiffs to sue in Virginia state court. When the Virginia Values Act takes effect on July 1, 2020, the Virginia Human Rights Act will prohibit discrimination in employment on the basis of sexual orientation and gender identity, becoming the first Southern state to adopt such protections.
Employers could face potential wage and hour claims under federal and state law if they do not compensate employees for time spent having their body temperatures checked. While federal COVID-19 guidance allows employers to measure employees’ body temperatures without fear of violating disability law, that guidance does not address wage and hour compliance – and this is definitely new territory for the nation’s employers.
In an 8-to-1 decision, the U.S. Supreme Court just made it easier for federal employees and applicants to prove age discrimination by ruling that courts should not apply a heightened causation standard in such cases. By rejecting a “but-for” test in federal worker Age Discrimination in Employment Act (ADEA) claims, the Court restricted federal agencies from considering an employee’s or applicant’s age with respect to personnel decisions.
In an increasingly desperate business climate, thousands of businesses are expected to apply for emergency loans created by the Coronavirus Aid Relief and Economic Security Act (CARES Act) – but unionized employers may want to think twice before walking this path. Certain commitments necessary to secure these loans– including a commitment not to abrogate existing collective bargaining agreements – could impact your labor relations strategy well beyond the course of the COVID–19 emergency.
Although most employers have been distracted by the COVID-19 coronavirus crisis, Washington’s governor recently signed into law changes and clarifications to the state Paid Family and Medical Leave (PFML) law that all employers will need to know about. Washington’s law already provides paid leave benefits to nearly all employees for specific family and medical reasons and has been in effect since January 1, 2020. But while many employers are still learning the mechanisms for reporting and complying with its provisions, all Washington employers will now need to adjust once again to keep up with the changes.
Seattle’s Office of Labor Standards just issued a temporary emergency rule that prohibits employers from requesting a doctor’s note to verify employees’ use of paid sick leave under Seattle’s Paid Sick and Safe Time (PSST) ordinance. The emergency rule is in effect from April 8 until June 7, 2020, unless it is revoked earlier or extended through formal rulemaking.
The Centers for Disease Controls and Prevention (CDC) significantly relaxed its previous guidance on returning critical infrastructure workers to work after being potentially exposed to COVID-19. The relaxed guidelines, issued late yesterday, now allow critical infrastructure workers potentially exposed to COVID-19 to continue to work following exposure provided they remain symptom-free and employers implement additional precautions to protect the employee and the community. What are the key issues employers need to know about?
- New Jersey Expands Business Shutdowns, Imposes New Rules On Essential Businesses And Retail Customers4.9.20
New Jersey Governor Phil Murphy just issued an executive order that expands the existing statewide partial business shutdown and regulates onsite conduct at many of the businesses remaining open, including the conduct of customers. The order goes into effect at 8:00 P.M. Friday, April 10. What do employers need to know about this development?
The California Department of Industrial Relations Division of Occupational Safety & Health (DOSH), or Cal/OSHA, just issued guidance for employers on COVID-19 infection prevention for agricultural workers. While the U.S. Food and Drug Administration (FDA) and the California Department of Public Health (CDPH) have both recently stated that they are unaware of any reports suggesting COVID-19 can be transmitted by food or food packaging, the agencies still encourage practices and behaviors to prevent food handlers from spreading contaminants including viruses to food and amongst themselves.
As businesses face daily new challenges in the wake of the COVID-19 pandemic, many are now confronting a new challenge: demands from their own employees for more pay and a safer work environment. The ability to manage these competing challenges may ultimately dictate the economic and operational fate of many companies.
The CDC recently recommended the use of homemade cloth face coverings in public settings, which raised many questions among in the workplace law community. The two most common questions: Are these DIY cloth face coverings considered personal protective equipment (PPE) pursuant to OSHA regulations? If worn at work, who is responsible for providing them or paying for them?
The U.S. Department of Labor recently issued a series of guidances to assist employers and employees in understanding the unemployment provisions of the Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020. The CARES Act provides expanded unemployment benefits for those individuals affected by the COVID-19 pandemic.
- Mayor Garcetti Signs Modified Los Angeles Ordinance Allowing Up To 80 Hours Of Supplemental COVID-19 Paid Sick Leave4.8.20
Los Angeles Mayor Eric Garcetti just signed into law the City Council’s proposed Supplemental Paid Sick Leave ordinance. He made some modifications to the original proposal passed by the City Council, which have been updated below. The ordinance provides up to 80 hours of supplemental paid sick leave to employees who work within the City of Los Angeles.
The Coronavirus Aid, Relief and Economic Security (CARES) Act provides much-needed economic relief to businesses impacted by the COVID-19 crisis. However, this much-needed relief comes with great confusion, particularly for small businesses aiming to take advantage of the Paycheck Protection Program (PPP).
The Occupational Safety and Health Administration (OSHA) just issued interim enforcement guidance regarding respiratory protection, relaxing its standard in light of the nationwide shortage of N95 masks during the COVID-19 pandemic. From now on, if respiratory protection must be used and alternatives are not available, employers may now consider the extended use or reuse of N95s – and may consider using N95s that have since passed the manufacturer’s recommended shelf life.
Governor Brown issued an order on Monday requiring Oregonians to stay home whenever possible to help minimize the spread of COVID-19. This Order is more expansive than the order that banned seated dining at the state’s bars and restaurants and prohibiting gatherings of more than 25 people. The ban is effective at 12:01 am Tuesday, March 24, and has no stated end date. Violating the governor’s executive order is a Class C misdemeanor, punishable by up to 30 days in jail and a $1,250 fine.
South Carolina Governor Henry McMaster just ordered certain non-essential businesses throughout the state to close to fight the COVID-19 pandemic. Non-essential businesses under this order must close beginning April 1, 2020, at 5:00 p.m. What do employers need to know?
The healthcare industry is truly on the front lines of the nation’s and the world’s response to COVID-19. As a result, healthcare providers, their employees, and affiliates are likely already well-versed on the virus and how to handle it in a clinical setting. But healthcare providers may need help understanding and managing the impact that COVID-19 is likely to have on their workforce.
Many independent and private schools are contemplating applying for Paycheck Protection Program (PPP) and/or Economic Injury Disaster (EIDL) loans under the CARES Act. The PPP loan offers an attractive incentive in substantial loan forgiveness when used for authorized payroll and other permitted expenses. While the program is certainly attractive, with loan forgiveness amounting to “free money,” there may be a catch for independent and private schools accepting either type of loan.
In response to the COVID-19 coronavirus outbreak, Arizona Governor Ducey issued a “Stay Home, Stay Healthy, Stay Connected” order last week requiring all Arizonans to limit their time away from their home or place of residence except in limited circumstances. On Friday, the governor expanded the order to include additional businesses and clarified other aspects of the order. Employers will want to review the changes to ensure they are in compliance with the latest directives.
Michigan Governor Gretchen Whitmer just issued an executive order aimed at protecting the jobs of those employees forced to shelter-in-place because they pose a “particular risk of infecting others with COVID-19.” However, the April 3 order creates many practical hurdles for employers. The order prevents employers from requesting proof that the employee posed such a risk, opening the door for potential confusion and abuse. In the future, the order could also serve as the basis for a number of wrongful discharge claims.
As New York continues to be hard hit by the effects of COVID-19, Governor Cuomo announced a three-way agreement on March 17 between his office and both houses of the New York State Legislature on a bill guaranteeing job protection and wages for New York workers who have been quarantined as a result of the COVID-19 coronavirus outbreak. The bill, which still needs formal legislative approval, will be effective upon the governor’s signature.
The Director of the Ohio Department of Public Health issued a Stay-At-Home Order for all individuals currently living within the State of Ohio on Sunday March 22. Dr. Amy Acton’s Order goes into effect on March 23 at 11:59 p.m. and will remain in effect until 11:59 p.m. on April 6, unless rescinded or modified. This Order represents the latest of several measures enacted by the governor and the Ohio Department of Public Health in response to the COVID-19 coronavirus outbreak. The intent of the Order is to “ensure that the maximum number of people self-isolate in their places or residence to the maximum extent feasible, while enabling essential services to continue, to slow the spread of COVID-19 to the greatest extent possible.”
Our Seattle office has continued to update our guidance to respond to commonly asked questions and local resources for Washington employers. We also encourage you to review our nationwide Comprehensive and Updated FAQs for Employers on the COVID-19 Coronavirus, put together by our firm’s COVID-19 Taskforce.
The U.S. Department of Labor issued a new rule yesterday to regulate the Families First Coronavirus Relief Act (FFCRA) and the paid leave programs that just became law on April 1, 2020. We’ve digested the 124-page document and picked out the 10 things employers need to know about the new rule. We suggest those unfamiliar with the Emergency Paid Sick Leave (EPSL) and Emergency FMLA (EFMLA) programs read our summary here first, along with our two subsequent alerts (available here and here) summarizing some of the clarifying guidance released by the agency in the past few weeks.
Pursuant to Executive Order 2020-21, Governor Gretchen Whitmer effectively shuttered the State of Michigan from March 24, 2020 until at least April 13, 2020. The Order, titled Temporary requirement to suspend activities that are not necessary to sustain or protect life, is intended to be construed broadly.
- Georgia Governor Issues Statewide Shelter-In-Place Order Further Impacting Business Community Amid COVID-19 Crisis4.3.20
Georgia Governor Brian Kemp just issued an order that supersedes all prior and conflicting county, city, and state shelter-in-place orders, with the exception of individualized quarantine or isolation orders issued by a Department of Public Health.
The L.A. City Council just took two steps that will impact many grocery and retail food operations in the city. First, it passed the Grocery, Drug Retail and Food Delivery Worker Protection ordinance, offering workplace protections and creating employer responsibilities that will need to be implemented by affected businesses. Second, it passed an ordinance that requires retail food stores to dedicate certain shopping hours to the disabled, elderly, and operators of licensed residential congregate living facilities.
Amid the COVID-19 pandemic, New York State has passed legislation guaranteeing most workers in the state paid sick leave starting next year. This is in addition to the emergency COVID-19 related sick leave enacted by the legislature just weeks ago. Enacting a statewide sick leave law has long been on Governor Cuomo’s agenda, predating the current pandemic. What do employers need to know about this new law?
The Fisher Phillips COVID-19 Taskforce has assembled this guidance document, containing answers to a series of Frequently Asked Questions, especially designed for unionized employers. The Taskforce also maintains a Comprehensive And Updated FAQs For Employers On The COVID-19 Coronavirus on a daily basis for other workplace-related issues.
Florida Governor Ron DeSantis issued a Safer At Home Order for the State of Florida yesterday. It goes into effect just after midnight (at 12:01 am) on the morning of Friday, April 3, 2020, and is set to expire on Thursday, April 30, 2020. The Order limits movement and personal interaction outside of the home to only those necessary to obtain or provide essential services, or to conduct essential activities.
The National Labor Relations Board just finalized its “Election Protection Rule,” amending regulations addressing “blocking charges” and certain aspects of the Board’s voluntary recognition doctrine.
The Centers for Disease Control and Prevention has provided updated guidance on when a person with COVID-19 may discontinue home isolation, offering a more flexible standard that could help employers and employees manage absences during this uncertain time.
The Internal Revenue Service just provided an initial guidance document to assist small- and medium-sized companies with the process of defraying the costs of paid sick leave required under the Families First Coronavirus Response Act (FFCRA). Of immediate importance to employers, the IRS provided some guidance regarding what information you should receive from an employee in order to substantiate eligibility for the FFCRA tax credits.