The recent spread of the novel coronavirus (COVID-19) in the United States has caused employers to be increasingly concerned and uncertain regarding the future of their workforces. Here are some answers to frequently asked questions (FAQs) about the latest developments on the virus and guidance from federal agencies.
Governor Gretchen Whitmer’s Executive Order 2020-21—the “Stay Home, Safe Safe” order—and various county emergency orders issued in the wake of the COVID-19 pandemic have raised numerous questions regarding their interpretation and enforcement. State leaders in public health, state directors, and the attorney general have commented upon enforcement or issued orders of their own.
On April 7, 2020, Connecticut Governor Ned Lamont issued Executive Order No. 7V. It is the governor’s most recent executive order designed to combat the COVID-19 pandemic.
On March 31, 2020, the National Labor Relations Board (NLRB) announced that it had finalized a series of amendments to its blocking-charge policy, voluntary recognition bar, and rules governing Section 9(a) recognition in the construction industry.
On April 6, 2020, Indiana Governor Eric J. Holcomb issued an updated “Stay-at-Home Order,” Executive Order 20-18 (E.O. 20-18), superseding the Stay-at-Home Order that he issued on March 23, 2020. In announcing the updated order, Governor Holcomb noted that COVID-19 had spread to almost every county in Indiana.
On March 19, 2020, Washington Governor Jay Inslee signed into law Washington House of Representatives Bill 2602 (HB 2602), which amends the Washington Law Against Discrimination to include a definition of “race.”
As employers work through issues related to the COVID-19 pandemic, it is important to evaluate the immigration considerations for employees on various work visas. Some of the most common alternatives to H-1B visas include foreign nationals who hold E-1, E-2, L-1, O-1, TN, and F-1 visas. While these types of work visas do not have the same legal requirements relating to prevailing wages and changes in work locations as H-1B visas, there are important considerations for these employees as well.
On March 29, 2020, the Puerto Rico Department of the Treasury (commonly known by its Spanish name, Departamento de Hacienda de Puerto Rico, or Hacienda) issued Circular Letter of Internal Revenue No. 20-23 (CL 20-23), which extends to coronavirus-related distributions under qualified retirement plans (CRDs) essentially the same eligibility requirements, due dates, and local tax treatment that Hacienda established in Circular Letter 20-09 (CL 20-09) for distributions under qualified retirement plans related to the earthquakes that hit Puerto Rico during the beginning of the year (ERDs).
On April 3, 2020, Dallas County Judge Clay Jenkins issued an amended “safe at home” order modifying the Declaration of Local Disaster for Public Health Emergency he issued on March 12, 2020.
After relaxing enforcement on the use of expired N95 respirators and on their extended use and reuse, late on April 3, 2020, the Occupational Safety and Health Administration (OSHA) issued an Enforcement Guidance for Use of Respiratory Protection Equipment Certified under Standards of Other Countries or Jurisdictions During the Coronavirus Disease 2019 (COVID-19) Pandemic. The new guidance supplements, but does not replace, previous guidance.
The United States–Mexico–Canada Agreement (USMCA) was signed by U.S. President Donald Trump, former Mexican President Enrique Peña Nieto, and Canadian Prime Minister Justin Trudeau on November 30, 2018. The USMCA was designed to update and replace the North American Free Trade Agreement (NAFTA). Canada was the last of the three signatories to ratify the deal.
In response to the COVID-19 pandemic, all federal states in Germany have implemented containment measures, contact restrictions, and curfews. All shops, cultural institutions, and certain services (e.g., hairdressers and gyms) not serving the universal supply are currently closed and events have been prohibited.
On April 2, 2020, the Department of Homeland Security (DHS) announced that it is holding off on plans to issue additional H-2B visas. DHS had previously agreed to make an additional 35,000 visas available to seasonal employers after the visa quota (or cap) had been met for the second half of fiscal year (FY) 2020.
On April 3, 2020, Michigan Governor Gretchen Whitmer signed Executive Order (EO) 2020-36, which expands the protections of Michigan’s Paid Medical Leave Act until the end of the declared state of emergency and prohibits retaliation against workers who are particularly at risk of infecting others in the workplace.
Unfortunately, given the fast spread of the disease, it is now not uncommon for employers to have at least one employee who has contracted COVID-19, forcing the employee to take extended time off from work. In many cases, these employees will not have enough paid time off available to keep them paid until they are able to return to work. In some workplaces, generous co-workers are willing to donate their paid time off to the sick employee, and employers are exploring ways to implement paid-time-off donation or leave-sharing policies. As with everything in California, paid-time-off donation and leave-sharing policies present challenges and, if not implemented correctly, could come back to haunt the employer and the employees.
As COVID-19 continues to remain a critical issue across the country, an increasing number of employers that are allowed to remain open despite shelter-in-place orders may be experiencing staffing shortages. This is because employees may be increasingly absent due to mandatory or voluntary quarantines. To maintain operations, many of these employers are turning to areas of their businesses or enterprises that may have a staffing surplus, and temporarily reassigning those employees to the more essential roles vacated by employees who are absent as a result of the COVID-19 crisis.
On March 27, 2020, President Donald Trump signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Among other important provisions, the CARES Act dramatically expands the availability of unemployment insurance (UI) benefits to workers impacted by COVID-19 who otherwise would not normally receive such benefits, including independent contractors and other so-called gig workers.
On April 2, 2020, Georgia Governor Brian Kemp issued Executive Order No. 04.03.20.01 ordering all Georgia citizens to stay at home, unless they are (1) conducting or participating in “Essential Services;” (2) performing “Necessary Travel;” (3) engaged in the performance of or travel to and from the performance of “Minimum Basic Operations” for a business not classified as “Critical Infrastructure;” or (4) actively engaged in the performance of, or travel to and from, employment for a business classified as “Critical Infrastructure.”
On March 30, 2020, Mexico’s Ministry of Health declared a national sanitary emergency “per force majeure” due to the COVID-19 pandemic, mandating the immediate suspension of all private and public sector “non-essential” activities. The order is effective March 31, 2020, through April 30, 2020.
Alaska Governor, Mike Dunleavy, along with Commissioner Adam Crum and Chief Medical Officer, Dr. Anne Zink, have issued a number of health mandates restricting travel and social interaction to help address the state’s increasing concerns with slowing the spread of COVID-19 while attempting to preserve operations of “essential” work.
Following up on its recent temporary enforcement guidance permitting suspension of N95 annual fit-testing for healthcare employers, on April 3, 2020, the Occupational Safety and Health Administration (OSHA) issued an interim Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease 2019 (COVID-19) Pandemic.
The COVID-19 pandemic is a public health and economic cataclysm, and few employers have been able to escape its impact on their business operations and employees. In their efforts to better manage their workforces during this period of extreme economic instability, many employers are turning to unpaid leaves of absences and furloughs as a way to scale back on costs temporarily while maintaining a connection to employees whose help will be critical to restarting normal business operations (whenever that may be). However, at a time when access to health care and financial support for impacted employees is more important than ever, indefinite unpaid leaves or absence and furloughs can present complex administrative issues for many common employee benefit plans. In the discussion that follows, we highlight some of the more important employee benefits issues to consider when employees are placed on unpaid leaves of absence or furloughs.
To help ease the administration of retirement plans in Puerto Rico during the coronavirus outbreak, on March 24, 2020, the Puerto Rico Department of the Treasury (commonly known by its Spanish name as Departamento de Hacienda de Puerto Rico) issued Administrative Determination No. 20-09 (AD 20-09).
At 4:00 p.m. on March 31, 2020, South Carolina Governor Henry McMaster announced Executive Order (EO) No. 2020-17, which, starting April 1, 2020, at 5:00 p.m., closes all “non-essential” businesses, venues, facilities, services, and activities for public use. The executive order will remain in effect for 15 days, but is likely to be renewed or expanded upon in the coming weeks.
On March 23, 2020, the Supreme Court of the United States, in Comcast Corp. v. National Association of African-American Owned Media, ruled that a plaintiff who alleges race discrimination under 42 U.S.C. § 1981 must plead and has the ultimate burden of showing that race was a but-for cause of the plaintiff’s injury, and that burden remains constant over the life of the lawsuit.
Healthcare entities are facing a growing number of challenges related to the virus SARS-CoV-2 and the disease caused by that virus, COVID-19. Among the primary concerns is whether a specific healthcare entity is covered by the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA); and if so, how to avoid violating that rule when sharing names or other identifying information of individuals infected with or exposed to the virus.
With over 60 percent of Florida’s COVID-19 cases identified in southern Florida, Governor Ron DeSantis passed new measures in an effort to limit the continued spread of the virus. On March 30, 2020, Governor DeSantis passed Executive Order (EO) No. 2020-89, restricting public access in Miami-Dade, Monroe, Palm Beach and Broward Counties to businesses and facilities deemed non-essential. The March 30, 2020, order also prohibits counties from instituting curfews restricting travel to and from the essential establishments.
While many traditional places of public accommodation, such as theaters, stadiums, restaurants, amusement parks, and retail stores, have shut down their operations in response to “shelter in place” and “social distancing” orders issued to prevent the spread of COVID-19, many businesses deemed “essential” by government orders or otherwise continuing operations have adopted sound safety rules designed to keep their employees safe.
On March 30, 2020, Delaware Governor John Carney issued the Eighth Modification of the Declaration of the State of Emergency. The updated declaration includes a provision ordering that essential businesses deemed as “high-risk” by the Public Health Authority “shall screen every employee, visitor and member of the public upon entering” the business.
On March 27, 2020, President Donald Trump signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, intended to stimulate the national economy in the wake of the COVID-19 pandemic. The Act provides $2 trillion in direct financial assistance, including paid leave, unemployment insurance (UI) benefits, and rebates to eligible individuals. Immigrants and foreign nationals in the United States may be eligible for some or all of the listed benefits, depending on the circumstances.