In his Emergency Executive Order 20-56 issued on May 13, 2020, Minnesota Governor Tim Walz signaled plans for a broad reopening of Minnesota businesses. Governor Walz expanded on earlier Executive Orders 20-40 and 20-48 (which reopened some non-critical businesses) by allowing additional non-critical businesses (such as malls and retail stores) to open on May 18, 2020, provided that these businesses have a “preparedness plan” in place.
On May 18, 2020, Governor Greg Abbott issued Executive Order GA-23 as part of his three-phase plan to reopen the economy in Texas. The three-phase plan is outlined in a report entitled “Texans Helping Texans: The Governor’s Report to Open Texas.” Executive Order GA-23 is Phase II of the plan and follows Executive Order GA-18 (issued April 27, 2020) and Executive Order GA-21 (issued May 5, 2020). Executive Order GA-23 “continu[es] through June 3, 2020, subject to extension based on the status of COVID-19 in Texas and the recommendations of the Governor’s Strike Force to Open Texas, the White House Coronavirus Task Force and the [U.S. Centers for Disease Control and Prevention] CDC.”
On May 21, 2020, the U.S. Department of Labor (DOL) announced publication of its long-awaited guidance on electronic participant disclosures. The good news is that the DOL has taken a step in the right direction in easing some of the difficulties that were present in the prior electronic communications safe harbor. The bad news is that the new guidance applies only to retirement plans.
On May 20, 2020, National Labor Relations Board (NLRB) General Counsel Peter Robb issued new guidance in Memorandum G.C. 20-06 regarding the NLRB’s remedial notice posting requirements.
Only one day before Arizona’s “Stay Home, Stay Healthy, Stay Connected” order was set to expire, Arizona Governor Doug Ducey issued Executive Order (EO) 2020-33. Governor Ducey announced the modified extension of the stay-at-home order at a press conference on the afternoon of April 29, 2020. Consistent with the previous order, Arizonans must continue limiting their time away from their homes, except for participating in “Essential Activities,” employment in “Essential Functions,” and utilizing services or products of “Essential Businesses.”
Following the UK government’s recent announcement of a COVID-19 recovery strategy, the government has published guidelines for working safely during the coronavirus (COVID-19) pandemic that are designed to help UK businesses get back on their feet while maintaining safe work environments.
Following the March 10, 2020, decision of the U.S. District Court for the District of Columbia in ITSERVE Alliance, Inc. v. Cissna, U.S. Citizenship and Immigration Service (USCIS) has agreed in a settlement to rescind the 2018 third-party worksites memorandum (PM-602-0157) in its entirety no later than October 13, 2020.
Despite recently extending a state of emergency due to COVID-19 through June 11, 2020, Maine Governor Janet Mills gave the green light for more businesses to open in all counties on June 1, 2020, as part of the second stage of the governor’s Restarting Maine’s Economy plan.
Although California was one of the first states to legalize medical cannabis, and later recreational cannabis, voters and the courts have long resisted extending protections against discrimination in employment to cannabis users. In 1996, California voters passed Proposition 215, also known as the Compassionate Use Act of 1996, legalizing the use of cannabis for medical purposes, such as the treatment of anorexia, arthritis, chronic pain, and migraines.
The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C. could impact your business.
On May 18, 2020, Massachusetts Governor Charlie Baker announced details of the Baker-Polito administration’s four-phase approach to reopening Massachusetts and released guidelines and requirements for businesses resuming operations. The process will be data-driven and fluid with the expectation that there will be at least three weeks before the start of each phase.
Addressing performance issues of employees who are on leave under the Family and Medical Leave Act (FMLA) can present challenges for employers. An employer may discover, for instance, that prior to going out on FMLA leave, an employee engaged in misconduct or performed his or her job in an unsatisfactory manner. A Texas federal court’s recent decision in Kibbie v. Hays Consolidated Independent School District, No. A-19-CV-(April 7, 2020), highlights the difficulty of confronting performance issues discovered while an employee is out on FMLA leave.
On May 20, 2020, in Revenue Procedure 2020-32, the Internal Revenue Service (IRS) announced the annual contribution limits for 2021 for health savings accounts (HSA). The IRS also announced the 2021 definitional limits per Internal Revenue Code Section 223 for high deductible health plans (HDHP).
On May 19, 2020, the federal Occupational Safety and Health Administration (OSHA) issued Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) under the agency’s recordkeeping regulation at 29 C.F.R. § 1904, providing additional information on what employers are required to record in their OSHA 300 logs. Previous guidance, which OSHA issued on April 10, 2020, eliminated most employers’ (all industries except healthcare, emergency response organizations, and correctional institutions) obligation to analyze whether a COVID-19 case is work-related if certain conditions are met.
On April 30, 2020, the Texas Workforce Commission (TWC) issued guidance identifying the circumstances in which an employee may remain eligible for the receipt of unemployment benefits despite the employee’s refusal of an offer to return to work. These circumstances included, for example, an individual being considered high risk due to his or her age (65 or older) or being diagnosed with COVID-19 and not having recovered.
U.S. Citizenship and Immigration Services (USCIS) recently asked Congress for $1.2 billion in emergency funding in order to continue operations. USCIS also intends to impose a 10 percent surcharge on new immigration applications to repay U.S. taxpayers for this emergency funding.
On May 12, 2020, the California Division of Occupational Safety and Health (DOSH), better known as Cal/OSHA, issued its COVID-19 Industry Guidance: Office Workspaces, which provides detailed guidance for operating in office workspaces to “support a safe, clean environment for employees” in the face of the COVID-19 pandemic.
In response to the COVID-19 pandemic, some parts of the country are now in the third month of a lockdown. As a result of the lockdown, a large portion of U.S. businesses quickly transitioned their workforces to telework in the opening weeks of the pandemic. This abrupt shift to work-from-home disrupted many employers’ well-established protocols and practices for protecting confidential information and trade secrets, exposing this sensitive information to a heightened risk of theft.
In a move that could impact many Maryland employers, the Maryland General Assembly has made a major change to the state’s version of the federal Worker Adjustment and Retraining Notification (WARN) Act or its “mini-WARN” law.
Relief from the strict employee benefit cafeteria plan mid-year election changes rules has finally arrived. In Notice 2020-29, the Internal Revenue Service (IRS) issued guidance providing cafeteria plan participants with additional flexibility to make mid-year election changes as needed due to the COVID-19 pandemic.
On May 14, 2020, the Washington State Department of Health, in conjunction with the Washington State Department of Labor and Industries, created new emergency COVID-19-related safety rules that farms must implement if they provide temporary farmworker housing.
A new bill has been introduced in the California Assembly that could affect most employers and employees in the state. If passed in its current form, Assembly Bill (AB) 1844 would expand paid sick leave coverage to employees and their family members for behavioral health conditions.
On May 4, 2020, Mayor Eric Garcetti signed two new ordinances governing employee right of recall and worker retention in the City of Los Angeles. The ordinances provide certain rights and preferences to various workers whose employment has been affected by the COVID-19 crisis.
Current California Labor Code Section 98.7 provides that any person who believes that he or she has been discharged from employment or otherwise discriminated against in violation of any law under the jurisdiction of the California Division of Labor Standards Enforcement (DLSE) may file a complaint with the DLSE within six months after the occurrence of the alleged violation.
On May 14, 2020, the U.S. Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) agency announced an extension of its prior guidance relaxing the in-person verification requirements of Form I-9 for employers operating remotely due to the COVID-19 pandemic.
The Equal Employment Opportunity Commission (EEOC) recently announced a pair of major changes to the EEO-1 filing process. The most recent was on May 7, 2020, when the EEOC announced that due to the COVID-19 pandemic it was filing a notice in the Federal Register delaying collection of the 2019 EEO-1 report this year and requesting approval to collect both 2019 and 2020 EEO-1 data beginning in the first quarter of 2021.
On May 14, 2020, the Occupational Safety and Health Administration (OSHA) issued a one-page guidance sheet titled “COVID-19 Guidance for Nursing Home and Long-Term Care Facility Workers.” The guidance lists several tips that employers in the nursing home and long-term care facility industry may take to reduce the risk of exposure to COVID-19.
The State of California, through the Department of Public Health, Department of Social Services, and the Division of Occupational Safety and Health (Cal/OSHA), has released COVID-19 guidance and checklists for 20 different industries as employers prepare to reopen and employees head back to work.
Employees—particularly healthcare employees—are increasingly refusing to work because of safety concerns and the need for accommodations related to COVID-19. In certain circumstances, these refusals may trigger protections afforded by the Occupational Safety and Health (OSH) Act, the Americans with Disabilities Act (ADA), and the National Labor Relations Act (NLRA), among others.
Effective with the May 19, 2020, publication in the Federal Register, the U.S. Department of Labor’s (DOL) Wage and Hour Division revokes the arbitrary lists it created in 1961 identifying industries that may, or would not, qualify as retail or service in nature “for purposes of an exemption from overtime pay applicable to commission-based employees.”