Insights Archive - Ogletree Deakins

U.S. Suspends Entry of Certain Graduate Students and Researchers from the People’s Republic of China

On May 29, 2020, President Donald Trump issued a proclamation suspending the entry of a small subset of Chinese nationals that seek to study or conduct research in the United States, citing a threat to the “long-term economic vitality” of the United States “and the safety and security of the American people.” The accompanying press release notes that the proclamation “will not affect students who come to the United States for legitimate reasons.”

Jacob D. Cherry Atlanta Author

Whitney Brownlow Raleigh
Indianapolis Author

USCIS to Resume Premium Processing for Certain Petitions After Two-Month Suspension

U.S. Citizenship and Immigration Services (USCIS) announced that it will resume premium processing via Form I-907, Request for Premium Processing Service for Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Workers, in phases during the month of June.

Whitney Brownlow Raleigh
Indianapolis Author

Reopening Texas: Governor Abbott Expands the List of Covered Services

On May 26, 2020, Governor Greg Abbott issued a proclamation expanding the list of “Covered Services” permitted to reopen in Texas. The proclamation is consistent with Executive Order GA-23, which “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 [Centers for Disease Control and Prevention].”

Katrina Grider Houston Author

Tiffany Cox Stacy San Antonio Author

IRS Provides Relief for Nonresident Aliens Affected by COVID-19 Travel Disruptions

Because of travel restrictions, such as canceled flights and stay-at-home orders, the COVID-19 pandemic may have significantly limited a nonresident alien’s ability to leave the United States, regardless of whether the individual contracted the COVID-19 virus. An unexpected extended stay in the United States, however, could affect an individual’s tax residency classification or eligibility for certain tax treaty benefits. The Internal Revenue Service (IRS) recently released Revenue Procedure 2020-20 to address the potential tax consequences for eligible individuals impacted by the COVID-19 travel restrictions.

Deborah Andrews Washington D.C.
Raleigh Author

Randle B. Pollard Washington D.C. Author

Michael K. Mahoney Morristown Author

Beltway Buzz, May 29, 2020

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.

James J. Plunkett Washington D.C. Author

OSHA Issues Updated COVID-19 Guidance for Construction Industry Employers

On May 27, 2020, the Occupational Safety and Health Administration (OSHA) updated its guidance for employers performing construction work of all types. The agency’s guidance is not a standard or regulation, so it is not legally binding. Nonetheless, construction industry employers may want to consider OSHA’s recommendations when developing and updating their workplace safety and health plans, for two reasons. First, the guidance indicates which measures OSHA might allege are required by the Occupational Safety and Health Act’s General Duty Clause, just as it has done with heat stress, workplace violence, and other hazards for which it has no specific standard. Second, the document may indicate what employees may expect their employers to do as more people get back to work.

Phillip B. Russell Tampa Author

Arthur G. Sapper Washington D.C. Author

DFEH Introduces Online Harassment Prevention Training

On May 20, 2020, the California Department of Fair Employment and Housing (DFEH) published an online harassment prevention training module designed to meet a recent California mandate that nonsupervisory employees receive one hour of harassment prevention training every two years.

Christopher W. Olmsted San Diego Author

Mental Health in the UK Workplace During the Coronavirus Pandemic

On 18 May 2020, at the start of Mental Health Awareness Week in the United Kingdom, the UK government’s Advisory, Conciliation and Arbitration Service (ACAS) published “Coronavirus and mental health at work,” a guide to how individuals can look after their mental health and how employers can “support employees’ health, safety, and well-being” while managing workplace mental health issues. The overriding message from the guidance is that good communication is key during this challenging time. The guidance also emphasises that employers should be aware of the signs of mental health concerns in the workplace and encourage openness between colleagues to support those who may be suffering.

Daniella McGuigan London Author

NLRB Continues to Apply Common-Sense Interpretations to Employer Rules

The current National Labor Relations Board (NLRB) continues to provide relief for employers whose workplace rules and policies were under attack from the Board during the Obama administration. Following the line of authority started with its decision in The Boeing Company, 365 NLRB No. 154 (2017), the NLRB continues to review handbook, code of conduct, and other employer rules with a more relaxed, common-sense approach.

Anthony B. Byergo Seattle Author

Suspending Safe Harbor Contributions Mid-Year: A Primer for Employers

As cash flow and decreased revenue concerns rise, many employers are looking for ways to cut costs. This article generally identifies the circumstances that allow a safe harbor 401(k) plan sponsor to suspend safe harbor contributions and the related consequences of such suspensions.

Matthew Hoffman Indianapolis Author

Stephanie A. Smithey Indianapolis Author

USCIS to Resume Public Services for Domestic Offices on June 4, 2020

U.S. Citizenship and Immigration Services (USCIS) will reopen some domestic offices to resume non-emergency services on June 4, 2020. USCIS suspended routine in-person services on March 18, 2020, in response to the COVID-19 pandemic.

Whitney Brownlow Raleigh
Indianapolis Author

Temperature Screenings Within the UK Workplace in the Wake of COVID-19

As part of their “COVID-secure” return to work plans, some employers in the United Kingdom are implementing temperature screenings for their employees.

Daniella McGuigan London Author

COVID-19 Immigration Update: U.S. Announces Travel Restrictions for Brazil

In its ongoing response to the COVID-19 health crisis, the United States has announced travel restrictions for Brazil. President Donald Trump’s proclamation suspends the entry of all immigrants and nonimmigrants who were physically present in Brazil during the 14-day period before seeking to enter the United States.

Whitney Brownlow Raleigh
Indianapolis Author

Alabama Reopens: Amended Safer at Home Order Loosens Restrictions on Additional Businesses

On May 21, 2020, Governor Kay Ivey issued an amended Safer at Home order that removed restrictions and provided extended guidance to Alabama businesses as the state continued to reopen.

Sierra J. Gray Birmingham Author

Virginia Bans Noncompete Agreements Against ‘Low-Wage Employees’

On April 9, 2020, Governor Ralph Northam signed House Bill (HB) 330, Virginia’s first law banning covenants not to compete against “low-wage employees.”

Tevis Marshall Richmond Author

Cell Phone Use on Hold in Manufacturing Plants After Recent NLRB Decision

The National Labor Relations Board (NLRB) issued a supplemental decision on May 20, 2020, finding lawful a policy prohibiting employees from possessing or using their cell phones on the manufacturing floor or at their workstations.

Samuel H. Ottinger Cleveland Author

Wade M. Fricke Cleveland Author

Can Employees Refuse to Return to Work Because of COVID-19?

Parts of the country have begun the process of returning to work, in places where COVID-19 infection rates have flattened or shown a decline. But the risk of becoming infected with COVID-19 remains, and some employers may be faced with parts of their workforces refusing to return to work or to perform certain assignments, citing the health risk. What are employers’ options with respect to such employees? There are both legal and practical considerations.

C. Thomas Davis Nashville Author

Ruthie L. Goodboe Detroit (Metro)
Pittsburgh Author

John F. Martin Washington D.C. Author

CDC Issues Compilation of Guidance to Assist Reopening Initiatives

On May 17, 2020, the U.S. Centers for Disease Control and Prevention (CDC) issued a 60-page document entitled CDC Activities and Initiatives Supporting the COVID-19 Response and the President’s Plan for Opening America Up Again. In the document, the CDC (1) explains and expands upon the gating criteria articulated in President Donald Trump’s Opening Up America Again guidelines; (2) outlines the CDC’s various COVID-19 activities and initiatives, including monitoring the continued progression of COVID-19, support of increased contact tracing capacity, and other activities; and (3) provides testing guidance.

Michael Oliver Eckard Charleston
Atlanta Author

Stephen R. Woods Greenville Author

Katherine Dudley Helms Columbia Author

“Alaska’s Plan Forward”—The State Moves to Phase III in COVID-19 Reopening

With only 404 total positive test results, 44 hospitalizations, and 10 deaths statewide during the pandemic as of May 22, 2020, Alaska took a big step forward in reopening its economy and lifting restrictions on social interaction. Accordingly, during a recent press conference, Governor Mike Dunleavy announced that phase III of the Reopen Alaska Responsibly plan would begin on May 22.

Russell S. Buhite Seattle Author

20 Tips for U.S. Virgin Islands Employers in 2020: Required Employment Law Posters

Conducting business in the Virgin Islands poses unique challenges not often encountered in the states, but also unique opportunities. This 20-part blog series will offer tips for doing business in the U.S. Virgin Islands, covering a broad array of topics affecting employers. Part two of this series addresses required employment law posters.

Simone R.D. Francis St. Thomas
New York City Author

EEOC Greenlights Employer Requests of Information from Job Candidates for Federal Work Opportunity Tax Credit

On April 29, 2020, the Equal Employment Opportunity Commission (EEOC) issued an opinion letter reiterating its position that proper use of Internal Revenue Service Form 8850 for the Federal Work Opportunity Tax Credit (WOTC) does not violate federal equal employment opportunity laws.

Michael K. Mahoney Morristown Author

Corey N. Thrush Cleveland Author

Samuel H. Ottinger Cleveland Author

Minnesota Governor Slows the Planned Reopening of Bars, Restaurants, and Places of Public Accommodation

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.

Patrick R. Martin Minneapolis Author

Reopening Texas: Governor Abbott Issues Phase II Executive Order

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.”

Katrina Grider Houston Author

Tiffany Cox Stacy San Antonio Author

DOL Finally Relaxes Its Electronic Delivery Rule—But Only for Retirement Plans

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.

Jessica Kuester Indianapolis Author

Catherine R. Reese Indianapolis Author

NLRB General Counsel Issues Memo on Notice-Posting Requirement

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.

Thomas M. Stanek Phoenix Author

Justin B. Caresia Phoenix Author

OSHA, Industrial Commission of Arizona Issue Guidance on Recording COVID-19 Cases and Potential Workers’ Compensation Liability

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.”

Tibor Nagy Jr. Tucson
Phoenix Author

UK Guidance on Returning to the Workplace: Managing Health and Safety Issues During the COVID-19 Pandemic

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.

Daniella McGuigan London Author

Recent USCIS Settlement Offers Substantial Relief to H-1B Employers

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.

Earl “Trey” DeBrine Raleigh Author

Andrew G. Drozdowski Raleigh Author

Stephanie Prashad Raleigh Author

Maine Moves Toward Fully Reopening After Statewide COVID-19 Closures

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.

Steven Silver Portland (ME) Author

Reading the Tea (or Cannabis) Leaves: California’s Trend Toward Recognizing a New Protected Class of Medical Cannabis Users

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.

Michael J. Nader Sacramento Author

Jill L. Schubert Sacramento Author

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