On September 17, 2020, six months after Mayor Jim Kenney issued Executive Order 3-20, a Declaration of Emergency Related to the Known and Potential Presence of the Novel Coronavirus COVID-19 in Philadelphia, he signed into law Bill No. 200303, a temporary amendment expanding the City of Philadelphia’s paid sick leave law—officially known as the Promoting Healthy Families and Workplaces Ordinance—to establish public health emergency leave for individuals not covered by the federal Families First Coronavirus Response Act (FFCRA).
We previously reported on COVID-19–related employment lawsuits that we tracked from late March 2020 through early May 2020. Since then, the number of lawsuits has steadily risen as employers have resumed operations after shelter-in-place or stay-at-home orders were lifted and students returned to school in virtual or hybrid environments. To track this litigation and to identify trends, we developed an Interactive COVID-19 Litigation Tracker that details where COVID-19–related litigation is taking place by state, the industries affected, and the types of claims asserted against employers and educational institutions.
On September 8, 2020, the U.S. District Court for the Southern District of New York vacated the U.S. Department of Labor’s (DOL) final joint-employer rule, which limited when multiple businesses involved in an employment relationship could be liable for violations of the Fair Labor Standards Act (FLSA).
At the end of 2019, we urged employers to keep an eye on a new recreational marijuana legalization voter initiative in Arizona: the Smart and Safe Arizona Act. Although many employers have been focused on the COVID-19 pandemic in 2020, they may want to be aware that the Arizona Secretary of State has officially certified the Smart and Safe Arizona Act as one of two voter propositions on the November 2020 ballot. In addition to approving the initiative, Secretary of State Katie Hobbs has also published arguments for and against the measure.
Election Day—Tuesday, November 3, 2020—is quickly approaching, and employees might ask for time off to vote. Employers that simply say “no” to their employees might be violating Texas law.
In the summer of 2019, Oregon enacted the Oregon Workplace Fairness Act (SB 726), which imposed sweeping new requirements on Oregon employers in response to the #MeToo movement. Although some of the law’s provisions took effect in September 2019, the remaining provisions take effect on October 1, 2020. Oregon employers that have not done so already may want to take steps to ensure they are in compliance with all of the new requirements by that date.
On September 17, 2020, the Occupational Safety and Health Standards Board of the California Division of Occupational Safety and Health (Cal/OSHA) voted unanimously to pursue the drafting and adoption of a California COVID-19 safety regulation. The emergency regulation would cover all workers in California regardless of industry segment.
On September 17, 2020, Governor Gavin Newsom signed Assembly Bill (AB) 685 into law, enacting California Labor Code Section 6409.6 and amending other state statutes. As explained further below, Section 6409.6 obligates employers to notify employees, the employees’ exclusive representative (such as a union), and subcontractors, within one business day of an employer’s receiving notice of a potential COVID-19 workplace exposure from a “qualifying individual.”
On September 14, 2020, Governor Mike DeWine signed House Bill (H.B.) 606 into law, providing employers with legal protections when it comes to their efforts to stem the spread of COVID-19 and making Ohio one of a growing number of states granting similar civil immunity. According to Governor DeWine, the new law accomplishes the dual goals of keeping people safe and rebuilding the state’s economy.
The countdown is on for when Maine officially becomes the first state to require private employers to provide earned paid leave to employees for any reason.
Now that the Minnesota Supreme Court has settled the issue of applying the Minneapolis Sick and Safe Time (SST) ordinance to employers “with no physical presence in Minneapolis,” what does this mean for employers with employees who are working remotely in their homes within the city? It may mean that those employees are covered by the Minneapolis SST ordinance and possibly by other similar ordinances.
On September 14, 2020, New Jersey Governor Phil Murphy signed Senate Bill (SB) 2380 into law. SB 2380 creates a rebuttable presumption of workers’ compensation coverage for COVID-19 cases contracted by “essential employees” during a public health emergency declared by an executive order of the governor. The law is effective immediately and retroactive to March 9, 2020.
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 11 of this series addresses the laws relevant to navigating inquiries into and disclosures of information related to COVID-19 in the workplace.
On September 9, 2020, Oregon Governor Kate Brown issued Executive Order No. 20-41 invoking the Emergency Conflagration Act Statewide in light of extreme fire danger. Governor Brown’s invocation of the Emergency Conflagration Act remains in effect until at least November 1, 2020, as wildfires continue to rage. More than 1 million acres of land have burned across Oregon since September 7, 2020. To put things in perspective the area burned is nearly five times the size of New York City. According to Governor Brown, Oregon is facing an unprecedented level of uncontained fire. To put the flames out, Oregon will need all the help that it can get from its courageous firefighters and first responders.
On September 9, 2020, California Governor Gavin Newsom signed into law Assembly Bill (AB) 1867, which requires large employers and some health care providers to provide up to 80 hours of paid leave for COVID-19–related reasons. The new law also codifies the governor’s previously issued executive order setting forth paid sick leave and handwashing requirements for food sector workers, creates a small business family leave mediation pilot program, and addresses enforcement issues in California’s pre-COVID-19 paid sick leave law.
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 10 of this series addresses the laws relevant to tracking hours worked and compensating hourly employees for regular and overtime hours.
In the past several years, marijuana legalization has become an increasingly difficult issue for employers to navigate. Marijuana legalization raises challenging workplace questions related to drug testing, disability accommodation, workplace safety, hiring, and employment termination, among other issues. Because of the fast-evolving nature of marijuana laws, and the wide variance in laws and protections from state to state, employers have struggled to keep up.
Recently, and for the first time in more than 20 years, the United States Court of Appeals for the First Circuit ruled on the transportation worker exemption contained in Section 1 of the Federal Arbitration Act (FAA). In Waithaka v. Amazon.com, Inc., 966 F.3d 10 (1st Cir. 2020), the court of appeals upheld a district court’s decision not to compel Amazon “AmFlex” delivery drivers (who are independent contractors) to arbitrate their wage claims. The decision is significant for companies that require their delivery drivers to sign arbitration agreements.
Ohio employers will likely soon enjoy greater legal protections when it comes to their efforts to stem the spread of COVID-19. Acknowledging the legal uncertainties faced by essential workers and businesses in the wake of reopening, the Ohio Senate on September 2, 2020, passed House Bill (H.B.) 606, a measure which, if signed into law (and it is expected that Governor Mike DeWine will sign the bill very quickly), would grant state-law immunity from civil lawsuits for “injury, death, or loss” related to “the transmission or contraction” of the novel coronavirus.
The state of Georgia has had a lactation break law on the books for quite some time, but with House Bill 1090 the legislature made some important changes, effective August 5, 2020. As most employers know, the federal Fair Labor Standards Act (FLSA) provides lactation break requirements for employers, so there has not been a lot of focus on Georgia’s state counterpart, which was merely permissive. That is until now. The Georgia amendment has beefed up the statute in a few notable ways.
On July 7, 2020, the San Mateo County Board of Supervisors adopted an emergency ordinance to establish supplemental paid sick leave for COVID-19 related reasons. The ordinance took effect on July 8, 2020, and will remain in effect through December 31, 2020. It applies only to unincorporated areas of San Mateo County, California.
In Davidson v. O’Reilly Auto Enterprises, LLC, No. 18-56188 (August 3, 2020), the Ninth Circuit Court of Appeals addressed whether a district court abused its discretion in denying class certification for an employee’s claim for improper rest breaks under California law where the employer allegedly had a facially defective written rest break policy.
For the second time in a little over one month, the Supreme Court of New Jersey has issued an employer-friendly ruling upholding the enforceability of arbitration agreements in the employment context.
On August 19, 2020, in Marquardt v. Carlton, et al., No. 19-4223, the U.S. Court of Appeals for the Sixth Circuit reversed summary judgment for the City of Cleveland on a former employee’s claim that the city had terminated his employment in retaliation for his exercising his rights under the First Amendment to the U.S. Constitution.
On May 20, 2020, worker advocates submitted a petition for an emergency COVID-19 safety standard demanding additional COVID-19 regulations for those employees not covered by the Aerosol Transmissible Diseases (ATD) standard . The ATD standard was codified in 2009 “to protect employees who are at increased risk of contracting certain airborne infections due to their work activities.” The petition included specific requests to adopt standards related to social distancing, ventilation systems, personal hygiene, personal protective equipment (PPE), employee training, and recordkeeping.
On August 17, 2020, the Oregon Occupational Safety and Health Administration (Oregon OSHA), the state plan responsible for overseeing workplace safety and health in the state of Oregon, released a draft COVID-19 temporary standard. Following Virginia’s lead, Oregon will become the second state in the nation to adopt a specific standard intended to protect workers from COVID-19 exposure.
On August 7, 2020, the San Francisco Office of Economic and Workforce Development (OEWD) published guidance regarding the City of San Francisco’s “Temporary Right to Reemployment Following Layoff Due to COVID-19 Pandemic Emergency Ordinance.” Also known as the “Back to Work” emergency ordinance, the ordinance took effect on July 3, 2020, requiring San Francisco employers with 100 or more employees to offer reemployment to eligible employees laid off because of the COVID-19 pandemic when the employers rehire for the same or similar job classifications.
On August 12, 2020, the United States Court of Appeals for the Second Circuit limited the scope of a nationwide injunction that had blocked the U.S. Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) from implementing and enforcing the Inadmissibility on Public Charge Grounds final rule (commonly called the “public charge rule”) during the COVID-19 pandemic. The decision, which came only days after a series of recent federal court decisions on the controversial rule, restricts the scope of the nationwide injunction to only those states under the jurisdiction of the Second Circuit.
Despite all that is going on in the world, the California legislature has been busy this year. Below is a summary of the major employment law bills that are working their way through the state Assembly and Senate.
On September 1, 2020, the Philadelphia Commission on Human Relations will begin enforcing a previously-enjoined provision of the city’s Wage Equity Ordinance, which addresses the disparity in the pay of women and minorities.