On February 25, 2021, San Francisco Superior Court Judge Ethan Schulman denied applications for preliminary injunctions in their entirety requested by two plaintiffs, thus leaving in place the California Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Emergency Temporary Standards (ETS). The ETS took effect on November 30, 2020.
On February 25, 2021, the U.S. District Court for the Central District of California denied a motion for preliminary injunction brought by the California Grocers Association (CGA) against the City of Long Beach. In California Grocers Association v. City of Long Beach, CGA asked the court to stop the city from enforcing its Premium Pay for Grocery Workers Ordinance, one of the many “hero pay” or “hazard pay” ordinances enacted by California localities in the past several weeks.
On March 2, 2021, Texas Governor Greg Abbott issued Executive Order No. 34 (GA-34), rescinding most of his earlier executive orders related to COVID-19, including the statewide mask mandate and business occupancy restrictions. GA-34 becomes effective at 12:01 a.m. on March 10, 2021.
On 15 February 2021, the UK government imposed stricter requirements on individuals travelling or transiting from any of the 33 countries (‘red list countries’) that have had a travel ban to England applied. Separate advice applies to Scotland, Wales, and Northern Ireland.
On 11 January 2021, the UK Home Office published guidance on the “Covid Visa Concession Scheme (CVCS).” The scheme applies to individuals who left the United Kingdom before 17 March 2020, with permission to live in the UK, whose visas have since expired whilst they were abroad, and are now unable to return to the UK due to coronavirus travel restrictions. The CVCS allows those individuals to enter the UK to make leave to remain (LTR) or indefinite leave to remain (ILR) applications.
On February 25, 2021, Wisconsin joined Alabama, Georgia, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri, Montana, North Carolina, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and Wyoming in enacting a COVID-19 litigation shield law. Governor Tony Evers signed a bill providing entities broad immunity from “civil liability for the death of or injury to any individual or [for] damages caused by an act or omission resulting in or relating to exposure, directly or indirectly, to … COVID-19.”
The Consolidated Appropriations Act (CAA), 2021 includes a provision that modified and extended the Small Business Administration’s (SBA) Paycheck Protection Program (PPP). Specifically, Section 311 of the Additional Coronavirus Response and Relief provisions of the CAA provides for PPP second draw loans for eligible businesses. Employers seeking a PPP loan may apply through March 31, 2021. Below are answers to some key questions regarding second draw PPP loans.
Certain Canadian provinces have been especially hard hit by COVID-19 outbreaks. Most notably, Ontario and Quebec—two of Canada’s most populated provinces—have experienced the highest number of infection counts among the country’s provinces. While Ontario and Quebec have struggled to contain the spread of COVID-19, other provinces have had a different experience.
On February 16, 2021, the City Council of San Leandro, California, passed an ordinance titled “Retail Food Worker Hazard Pay Ordinance,” which establishes premium pay for retail food workers during the COVID-19 pandemic. San Leandro is an incorporated city located in Alameda County in the San Francisco Bay Area.
On February 23, 2021, the City Council of Irvine, California, passed a hero pay ordinance entitling retail grocery store and drug store workers premium pay for hours worked during the COVID-19 pandemic.
At the beginning of 2021, extensive changes in German employment law came into effect, including some of particular significance to employers. In addition, on January 19, 2021, the German Federal Government implemented restrictions on public life in order to contain the coronavirus pandemic that affect employers.
The Fair Labor Standards Act (FLSA) requires employers to pay nonexempt employees at least minimum wage for all hours worked up to 40 hours in a workweek and time and one-half for all hours worked over 40 hours in the same workweek. An exception to this rule exists for volunteers, who are not categorized as “employees” under the statute. Typically, volunteers are individuals who donate their time to non-profit, civic, religious, and other charitable organizations.
On February 16, 2021, the City Council of West Hollywood, California, passed an urgency ordinance establishing premium pay for grocery workers during the COVID-19 pandemic.
On January 27, 2021, the City Council of Montebello, California, passed an ordinance titled “Premium Pay for Grocery and Drug Store Workers Ordinance.” Montebello is an incorporated city located in Los Angeles County, California. The ordinance requires employers to provide grocery and drug store workers with premium pay of $4.00 for each hour worked. The ordinance took effect immediately and expires in 180 days, unless otherwise extended.
On March 20, 2020, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced their intent to relax the requirements for performing in-person verification of documents presented for Form I-9, Employment Eligibility Verification, given the challenges employers faced during the COVID-19 pandemic.
On Friday February 19, 2021, the Ontario Government announced that Toronto and two other regions will remain in shutdown for at least two more weeks. Among other things, this means that workers who are nonessential to in-person operations must continue to work from home. This represents the province pausing its recent efforts to reopen most of Ontario’s regions.
A February 2021 California Division of Occupational Safety and Health (Cal/OSHA) press release trumpeted the agency’s enforcement efforts and its recently issued citations for COVID-19–related violations. Cal/OSHA continues to aggressively issue “serious” classification citations to California employers. For example, Cal/OSHA issued “serious” and “willful-serious” citations with hundreds of thousands of dollars in penalties against a sister agency, the California Department of Corrections and Rehabilitation dba San Quentin State Prison, for COVID-19–related violations.
On February 10, 2021, the City Council of Coachella, California, passed the “Premium Pay for Agricultural, Grocery, Restaurant, and Retail Pharmacy Workers Ordinance.” Coachella is located in Riverside County, California. Other cities in the state that have enacted similar measures in 2021 include Montebello, in Los Angeles County, and Oakland, in Alameda County.
The COVID-19 pandemic continues to affect the global economy, and employers are increasingly considering which are the most and least employer-friendly places new offices, distribution centers, and operational locations, both during the pandemic and after emerging from it. The Arizona State University Center for the Study of Economic Liberty recently released Doing Business North America 2020 (DBNA), a report analyzing and comparing data indicative of the regulatory context for business activity in a number of metropolitan areas. The report ranked 130 cities across Canada, Mexico, and the United States, based on 111 variables for determining where the best places to do business are currently (although given the ever-changing local, state, and federal landscapes, the assessment may change frequently). The variables underlying the rankings fall into six broad categories: starting a business; employing workers; obtaining electricity, land and space use; and paying taxes and resolving insolvency.
On February 2, 2021, the City Council of Oakland, California, passed the “Grocery Worker Hazard Pay Emergency Ordinance” to provide a boost in pay for frontline workers during the COVID-19 pandemic.
In 2016, Illinois enacted the Illinois Freedom to Work Act (IFWA). In doing so, it became one of the first states to pass legislation in response to the Obama administration’s Call to Action, which asked states to amend their restrictive covenant laws to, among other things, ban covenants not to compete for workers under a certain wage threshold.
As COVID-19 vaccines become available to greater swaths of the population, many employers are considering ways to incentivize employees to get vaccinated. Incentives can take many forms, including extra pay, paid time off, gift cards, or tangible gifts. Employers that offer incentives to employees to get vaccinated may be creating group health plans under the Employee Retirement Income Security Act of 1974 (ERISA).
California Attorney General (AG) Xavier Becerra recently announced that he has created the Worker Rights and Fair Labor Section, which will fall under the California Department of Justice’s (DOJ) Division of Public Rights. This new section will be tasked with protecting workers against workplace issues such as wage theft, health and safety violations, and employee misclassification.
On February 11, 2021, the U.S. Centers for Disease Control and Prevention (CDC) updated materials on its website pertaining to when individuals should quarantine after exposure to someone with COVID-19. Specifically, on the “When to Quarantine” page on its website, the CDC now states that “[p]eople who have been in close contact with someone who has COVID-19 are not required to quarantine if they have been fully vaccinated against the disease within the last three months and show no symptoms.”
On February 8, 2021, the Government of Ontario announced the upcoming end to its state of emergency, as regions will begin reopening according to Ontario’s colour-coded COVID-19 restriction framework. The Government of Ontario also announced amendments to this framework.
On February 9, 2021, the San Francisco Board of Supervisors voted to extend the time period for employees to use San Francisco Public Health Emergency Leave. The Board first enacted the Public Health Emergency Leave Ordinance (PHELO) on April 17, 2020, and has continued to extend it for subsequent periods of approximately 60 days each extension. The mayor has approved each of the prior extensions and must approve this one as well. If she does, the ordinance will expire 61 days later.
With the onslaught of the pandemic in 2020, many employers were busy dealing with staffing issues, safety concerns, and COVID-19–related legislation. There may have been little to no time to address handbook policies. With many changes on the horizon in 2021 under President Biden’s administration and the adaptations in the working environment due to COVID-19, it may be a good time for employers to turn to the company handbook to ensure it is up to date. This article will highlight five areas to which employers may want to give special attention in 2021.
Now that the inauguration has passed and the Biden administration has begun its work, it is a good time for retailers to take stock of the labor and employment issues that are likely to assume prominence in 2021, and to consider preparing to meet the challenges each of these issues pose. In no particular order, below are the top 10 issues that are likely to keep retail employers up at night in 2021.
Over 1,500 COVID-19–related employment lawsuits were filed in the United States in 2020. Ogletree Deakins’ Interactive COVID-19 Litigation Tracker highlights the industries impacted, locations, and types of claims in these matters.