On August 3, 2020, the United States District Court for the Southern District of New York upended several employer-friendly limitations in the U.S. Department of Labor (DOL) regulations implementing the Families First Coronavirus Response Act (FFCRA). Specifically, the court struck down the DOL’s regulations regarding: (1) the requirement that employers actually have work available for employees in order to be eligible for leave; (2) the broad definition of “health care provider” under the final rule; (3) the requirement that employees obtain employer approval for intermittent leave; and (4) the requirement that employees provide documentation prior to taking FFCRA leave.
Since March 2020, St. Louis County Executive Dr. Sam Page, and the county’s acting director of the Department of Public Health (DPH), Dr. Emily Doucette, have issued more than 20 orders and “safe operating guidelines” regarding COVID-19. On July 29, 2020, with an effective date of July 31, 2020, the DPH issued its third amended public health order setting forth its current “Business and Individual Guidelines for Social Distancing and Re-Opening.” In some respects, this third amended order is a significant step backwards toward stricter requirements compared with the county’s original reopening guidelines.
In recent months, Wisconsin federal courts have witnessed a dramatic increase in class litigation raising breach of fiduciary duty claims under the Employee Retirement Income Security Act of 1974 (ERISA). These claims target sponsoring employers and individuals who oversee plan investments and plan fees for employer-sponsored 401(k) plans.
On July 30, 2020, Wisconsin joined 31 other states—including Alabama, California, and Pennsylvania—with a statewide face covering order. Governor Tony Evers issued Emergency Order #1, requiring all individuals in Wisconsin over the age of five and medically able to do so to don cloth face coverings (not including face shields or mesh coverings) any time they are “indoors or in an enclosed space, other than a private residence,” and in the presence of others outside their households.
On July 22, 2020, Health Officer Tomás J. Aragón of the City and County of San Francisco issued Public Health Emergency Order No. C19-12c, entitled, “Order of the Health Officer of the City and County of San Francisco Generally Requiring Members of the Public and Workers to Wear Face Coverings.”
Conducting business in the U.S. Virgin Islands poses unique challenges not often encountered in the states, but also unique opportunities. This 20-part series offers tips for doing business in the U.S. Virgin Islands, covering a broad array of topics affecting employers. Part nine of this series addresses the laws relevant to accommodating disabled or high-risk employees in the workplace.
Louisiana Governor John Bel Edwards recently signed into law Act 336 of the 2020 Regular Session, which was filed in the Louisiana State Legislature as House Bill 826. The new act limits the liability to which Louisiana businesses and employers could be exposed due to the ongoing COVID-19 public health emergency. Specifically, the law creates two statutes—La. Rev. Stat. § 9:2800.25 and La. Rev. Stat. § 29:773—that limit the potential liability of businesses and employers operating in Louisiana for COVID-19 contractions and related injuries.
The labor and employment law revolution in the Commonwealth of Virginia has provided robust protection against unlawful discrimination as well as a comprehensive enforcement scheme. As part of that revolution, the state enacted Senate Bill 712, which amended the Virginia Human Rights Act (VHRA) to require a covered employer to provide reasonable accommodation for the known limitations of an employee related to pregnancy, childbirth, or related medical conditions, unless such an accommodation would impose an undue hardship on the employer.
Conducting business in the U.S. Virgin Islands poses unique challenges not often encountered in the states, but also unique opportunities. This 20-part series offers tips for doing business in the U.S. Virgin Islands, covering a broad array of topics affecting employers. Part eight of this series addresses COVID-19 concerns that may arise when employees return to work from vacation.
On July 24, 2020, the State of California released its “COVID-19 Employer Playbook for a Safe Reopening.” According to the playbook, its purpose is to help employers “plan and prepare for reopening their business[es] and to support a safe, clean environment for workers and customers.” The Employer Playbook’s table of contents lists four major areas that the playbook addresses: (1) steps employers can take to open safely; (2) what to do if a COVID-19 case occurs in the workplace; (3) enforcement and compliance; and (4) worker education. In addition, the playbook includes three appendixes consisting of employer and worker resources, enforcement and compliance contacts, and case studies illustrating the playbook’s principles.
The State of California and many California counties mandate the use of face coverings in the workplace and elsewhere. California considers the issue important enough to include a section entitled “Guidance for Employers and Workers in Enforcing Mask Requirements” in its “COVID-19 Employer Playbook for a Safe Reopening,” newly released on July 24, 2020.
On July 1, 2020, Pennsylvania Secretary of Health Dr. Rachel Levine signed an order expanding face covering–wearing requirements in Pennsylvania. Under the order, face coverings must now be worn almost any time an individual leaves home, including in most outdoor settings.
Our September 10, 2019, article on the Illinois Workplace Transparency Act (IWTA) focused on various provisions of the expansive legislation signed into law by Governor J. B. Pritzker on August 9, 2019. Though most provisions of the IWTA took effect on January 1, 2020, some were only recently activated. Among the most significant are new reporting requirements for Illinois employers.
On July 15, 2020, the Virginia Department of Labor and Industry’s Safety and Health Codes Board approved an Emergency Temporary Standard for COVID-19 to be enforced by the Virginia Occupational Safety and Health program (VOSH). Virginia is the first state to adopt a specific standard intended to protect workers and “to control, prevent, and mitigate the spread of [COVID-19]” in the workplace.
An increase in the number of scams involving false unemployment benefits claims are emerging in Nevada and across the country. Third parties are filing claims for unemployment insurance benefits using the names and personal information of employees who have not lost their jobs. They are often using accurate personal information, including Social Security numbers.
On July 21, 2020, Connecticut Governor Ned Lamont issued Executive Order No. 7III, which made mandatory a previous advisory self-quarantine recommendation for individuals—including employees—traveling from states with high COVID-19 infection rates. While an exemption for essential travelers still applies, there were a number of changes
On July 14, 2020, Missouri Governor Mike Parson signed Senate Bill (SB) 644, increasing the potential penalties imposed on Missourians and visitors who attempt to pass off their pets as bona fide service dogs. While Missouri law previously made it a crime to impersonate an individual with a disability, now the misrepresentation of a dog as a valid and properly trained service animal is also a crime.
As employees return to work, some employers are asking if there could be another tool to detect COVID-19 in the workplace: detection dogs. Traditionally, the military has used detection dogs to find bombs, and law enforcement has used them to sniff out narcotics, guns, electronics, or other contraband. More recently, scientists and researchers have used detection dogs to identify medical conditions.
Philadelphia recently enacted a new city ordinance protecting whistleblowers who report unsafe workplace conditions related to COVID-19.
On May 21, 2018, in Epic Systems Corporation v. Lewis, the Supreme Court of the United States upheld class action waivers in arbitration agreements, ruling that the Federal Arbitration Act (FAA) instructs “federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings.” On July 14, 2020, the Supreme Court of New Jersey handed down a landmark decision of its own upholding the enforceability of employment arbitration agreements with class action waivers under the New Jersey Arbitration Act (NJAA), even if the agreements are exempted from the coverage of the FAA, by virtue of the FAA’s Section 1 “transportation worker exemption.”
On July 15, 2020, Alabama Governor Kay Ivey issued an amended “Safer at Home” order, adding a facial covering requirement. This facial covering order, which goes into effect on July 16, 2020, at 5:00 p.m., requires (1) facial coverings for individuals; (2) protections for employees; and (3) protections for customers.
On May 6, 2020, Governor Gavin Newsom of California issued Executive Order (EO) N-62-20, creating a temporary rebuttable presumption that employees working outside of their homes who test positive for COVID-19, the disease caused by SARS-CoV-2, may receive workers’ compensation benefits. In doing so, the governor simplified the process for sick employees to seek certain wage replacement benefits, and therefore sought to encourage ill employees to stay home to reduce the spread of COVID-19.
On July 1, 2020, Missouri Governor Mike Parson signed Senate Bill (SB) 591, which modifies various provisions relating to civil actions. Notably, for Missouri employers, the bill modifies and restricts the way punitive damages are considered in lawsuits brought by current or former employees who allege intentional harm by an agent of the employer (e.g., a manager, supervisor, or HR professional).
On June 26, 2020, the Georgia General Assembly passed Senate Bill (SB) 359 to limit liability for COVID-19-related claims. The bill, which is titled “Georgia COVID-19 Pandemic Business Safety Act,” has not yet been signed by Governor Brian Kemp. Several states have enacted similar legislation, including Alaska, Iowa, Kansas, Kentucky, Louisiana, and North Carolina.
Conducting business in the U.S. Virgin Islands poses unique challenges not often encountered in the states, but also unique opportunities. This 20-part series offers tips for doing business in the U.S. Virgin Islands, covering a broad array of topics affecting employers. Part seven of this series addresses several provisions of U.S. Virgin Islands Governor Albert Bryan, Jr.’s July 1, 2020, ninth supplemental executive order extending the state of emergency due to COVID-19 that he initially declared on March 13, 2020.
On July 2, 2020, the health officer for the County of Santa Clara, California, issued a new health order titled “Establishing Mandatory Risk Reduction Measures Applicable to All Activities and Sectors to Address the COVID-19 Pandemic.” The order goes into effect on July 13, 2020.
In Pennsylvania, noncompetition agreements must, among other things, be supported by adequate consideration to be enforceable. It is well established that an initial offer of employment constitutes adequate consideration. It is also well established that a noncompetition agreement presented to an employee after the start of employment must be supported by additional consideration, beyond the mere continuation of the employment relationship. But what about the regularly arising occurrence in which an agreement is orally agreed in connection with an initial offer, but isn’t signed until after the first day of work?
The City of Minneapolis’s Sick and Safe Time Ordinance requiring employers with employees who perform at least 80 hours of work in a year in the city with paid time off for illness or other personal matters does not conflict with state laws on the subject, nor does it unlawfully extend the city’s laws outside its geographic boundaries.
Colorado Governor Jared Polis is expected to sign the Healthy Families and Workplaces Act (HFWA), Senate Bill 20-205, which will immediately make all Colorado employers, excluding the federal government, subject to the provisions of the federal Emergency Paid Sick Leave Act (EPSLA) in the Families First Coronavirus Response Act (FFCRA).
The Colorado General Assembly recently passed legislation intended to protect employees and certain independent contractors from discrimination and/or retaliation if they raise health and safety concerns related to a public health emergency. House Bill (HB) 20-1415, which Governor Jared Polis is expected to sign, appears to be in direct response to the COVID-19 pandemic, although it will ultimately apply to health and safety concerns unrelated to COVID-19.