On April 13, 2020, U.S. Citizenship and Immigration Services (USCIS) announced that due to the COVID-19 pandemic, data entry and the generation of receipt notices would be delayed until at least May 1, 2020, for fiscal year (FY) 2021 H-1B cap-subject petitions.
Ogletree Deakins keeps employers prepared.
How employers navigate significant crises—from storms, inclement weather, and earthquakes to man-made disasters—can have a lasting impact on business operations, employers’ reputations with customers, and their workforces. Ogletree Deakins’ Disaster Resource Center provides employers with the information they need to be prepared for business interruptions and to recover in the aftermath of a devastating event.
On April 7, 2020, the City of San José, California adopted Urgency Ordinance No. 30390 (also known as the COVID-19 Paid Sick Leave Ordinance). The ordinance’s purpose is to extend temporary paid sick leave obligations to employers that the Families First Coronavirus Response Act (FFCRA) exempted from providing emergency paid sick leave.
Recently, some employers in California have turned to flexible work arrangements and unlimited paid vacation policies as a tool for recruiting and retaining employees. Before April 2020, however, no California court had addressed whether a nonaccrual, unlimited paid time-off policy was subject to Labor Code Section 227.3, thereby requiring an employer to pay out vested vacation time at the time of an employee’s discharge. Although the California Court of Appeal somewhat sidestepped the issue, its recent decision in McPherson v. EF Intercultural Foundation, Inc., No. B290868 (April 1, 2020), highlighted the potential exposure California employers may face when offering “unlimited” vacation policies that are not clearly communicated to employees. This decision is of particular interest to employers with “unlimited” vacation policies that may be facing substantial vacation payouts in light of terminations, layoffs, and furloughs caused by the COVID-19 pandemic.
The economic and financial consequences of the ongoing COVID-19 crisis have forced some employers to furlough and lay off workers, resulting in record numbers of individuals claiming state unemployment benefits across the country. As a result, an increasing number of employers are considering implementing supplemental unemployment benefits plans (SUB-Pay Plans) in order to provide additional benefits to discharged employees. Unlike severance plans, SUB-Pay Plans can be structured to maximize employer savings while providing greater benefit to the employees. This is not always a quick fix, however, as there are numerous legal and administrative issues to consider when implementing a SUB-Pay Plan.
On April 7, 2020, South Carolina Governor Henry McMaster issued Executive Order 2020-22. This order allows employers to provide furloughed employees with additional monetary assistance in the form of COVID-19 Support Payments while the impacted individuals are receiving unemployment insurance benefits.
On April 1, 2020, Canada’s Minister of Finance announced the federal government’s plans for a comprehensive wage subsidy program that would cover up to 75 percent of an employee’s regular wages for up to 3 months. As predicted, the proposed Emergency Wage Subsidy Program has undergone significant changes in the last week in order to extend benefits to a wider class of employers.
On April 9, 2020, Michigan Governor Gretchen Whitmer issued an updated “Stay Home, Stay Safe” Executive Order (EO) 2020-42, which extends the state’s emergency declaration through April 30, 2020. The EO reaffirms the measures set forth in Executive Order 2020-21, clarifies prior measures, and adds additional restrictions
On April 8, 2020, New Jersey Governor Phil Murphy signed Executive Order No. 122, requiring the closure of all non-essential construction projects beginning at 8:00 p.m. on Friday, April 10, 2020. The executive order does not define “non-essential construction project”; instead, it lists the following “essential construction projects” that may continue to operate.
After switching to online learning in response to the COVID-19 pandemic and sending students home, colleges and universities are beginning to face class action lawsuits seeking refunds of tuition, housing costs, meal plans, and fees. One such lawsuit is Church v. Purdue University, No. 4:20-CV-0025, in the U.S. District Court for the Northern District of Indiana.
The Los Angeles City Council recently passed an ordinance providing supplemental paid sick leave to employees affected by COVID-19 who were employed “with the same Employer from February 3, 2020 through March 4, 2020.” Los Angeles mayor Eric Garcetti had until April 7, 2020, to sign the ordinance adding Article 5-72HH to Chapter XX of the Los Angeles Municipal Code. Instead, on April 7, Mayor Garcetti signed an emergency COVID-19 Supplemental Paid Sick Leave order with significant modifications to the council’s version of the sick leave ordinance in order to balance the potential burdens on businesses.
On April 8, 2020, the Occupational Safety and Health Administration (OSHA) issued an enforcement memorandum titled Expanded Temporary Enforcement Guidance on Respiratory Protection Fit-Testing for N95 Filtering Facepieces in All Industries During the Coronavirus Disease 2019 (COVID-19) Pandemic.
Untangling the web of options presented to small employers under the Families First Coronavirus Response Act (FFCRA) and Coronavirus Aid, Relief, and Economic Security (CARES) Act can seem daunting. A small employer (generally one with no more than 500 employees) has a number of options, as well as obligations, to consider when adjusting to challenges presented by the COVID-19 pandemic. In broad terms, the obligations and solutions presented under the FFCRA and the CARES Act can be divided into (1) paid leave obligations; (2) financial assistance; (3) tax incentives; and (4) expanded unemployment insurance benefits for displaced employees. Understanding those programs is critical to successfully navigating the current business climate. So how may a small employer approach these issues?
On April 6, 2020, South Carolina Governor Henry McMaster issued Executive Order No. 2020-21 (E.O. 2020-21), which implemented a “home or work” mandate. The order directs South Carolina inhabitants to stay in their homes as of 5:00 p.m. on April 7, 2020, except for engaging in “Essential Business,” “Essential Activities,” or “Critical Infrastructure Operations.” The order also mandates that inhabitants practice social distancing and take every possible precaution to prevent the continued spread of COVID-19.
On April 7, 2020, the California Department of Industrial Relations’ Division of Occupational Safety and Health (Cal/OSHA) issued COVID-19 Safety and Health Guidance (in English and Spanish) for agricultural employers. The guidance is not a new legal obligation but rather a reminder that COVID-19 is a workplace hazard to be addressed by an Injury and Illness Prevention Program (IIPP).
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.
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.
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.
The Coronavirus Aid, Relief, and Economic Security (CARES) Act, which President Trump signed on March 27, 2020, contains several significant relief provisions affecting qualified retirement plan participants and plan sponsors.
On March 30, 2020, Governor of the U.S. Virgin Islands Albert Bryan Jr. issued an executive order extending both the previously declared State of Emergency through May 12, 2020, and the territory-wide “stay at home” order through April 30, 2020. The executive order includes several provisions that impact businesses with operations in the Virgin Islands.
The Families First Coronavirus Response Act (FFCRA) went into effect on April 1, 2020, and, just in time, the Department of Labor (DOL) issued temporary regulations to implement the new provisions of the Expanded Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). The regulations largely align with the DOL’s updated “Questions and Answers” (Q&As) that it issued on March 28, 2020. The DOL’s Q&As addressed furloughs, intermittent leave, exceptions for very small businesses, exemptions for health care providers, telework, among other aspects of the law.
We recently reported that on March 21, 2020, Governor Philip D. Murphy’s Executive Order (EO) No. 107 ordered that all non-essential retail businesses close their physical locations in New Jersey until further notice effective immediately. On March 30, 2020, New Jersey expanded, for the second time, the list of essential retail businesses whose physical locations are permitted to continue operating during their normal business hours (which were originally included in EO 107’s order to close “nonessential” businesses to prevent the further spread of COVID-19).
On April 1, 2020, Canada’s Minister of Finance outlined the federal government’s plans for a comprehensive wage subsidy plan that, in total, would put as much as $71 Billion (CAD) back into the pockets of participating employers. The stated purpose of the plan is to maximize the ability of employers to maintain employment relationships with their employees during this difficult time.
Every day media outlets are reporting on people’s concerns about how the COVID-19 pandemic is being handled: citizens are complaining about the government; politicians are complaining about each other; and workers are complaining about their employers. In addition, stories about protests, walkouts, or other employee-led work disruptions have become increasingly more common. Whether constructively sincere or mere venting, in the context of labor relations, it is imperative employers know and understand the legal parameters that govern their responses to such employee actions.
On April 1, 2020, the National Labor Relations Board announced it will not extend its temporary suspension of Board-conducted elections past April 3, 2020. Instead, it will resume conducting elections beginning on Monday, April 6, 2020.
On March 28, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division released an updated set of “Questions and Answers” (Q&As) that provide additional guidance concerning the impact of workplace closures and furloughs upon employers’ obligations to provide paid leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA).
As part of the Trump administration’s ongoing efforts to mitigate the impact of the novel coronavirus (and the illness it causes, COVID-19) pandemic, on March 20, 2020, the U.S. Department of the Treasury and the Internal Revenue Service (IRS) jointly announced in Notice 2020-18 that taxpayers affected by the pandemic now have until July 15, 2020, to file and pay their federal income taxes for 2019.
On March 27, 2020, the Los Angeles City Council passed Article 5-72HH “COVID-19 Supplemental Paid Sick Leave,” an ordinance that would require “employers with 500 or more employees nationally” to provide 80 hours of paid sick leave to their employees working in the City of Los Angeles.
On March 30, 2020, Louisiana Governor John Bel Edwards orally announced that he will be extending the state’s March 22, 2020, stay-at-home order, Proclamation 33-JBE-2020, at least until the end of April 2020.
On March 28, 2020, the Department of Labor’s (DOL) Wage and Hour Division released an updated set of questions and answers (Q&As) that provide additional guidance concerning teleworking arrangements (Q&As 17–20) and intermittent leave (Q&As 21 and 22) under the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA), both of which are included in the Families First Coronavirus Response Act (FFCRA).
On March 30, 2020, Governor Larry Hogan issued Executive Order No. 20-03-30-01 and the Office of Legal Counsel issued accompanying interpretive guidance. The order, which took effect at 8:00 p.m. EDT on March 30, mandates that Marylanders refrain from traveling outside their residences “except to conduct or participate in Essential Activities.”
As of March 24, 2020 and effective until April 19, 2020, the Mexican government implemented a number of measures aimed at stopping the spread of the novel coronavirus, and the illness it causes, COVID-19. The latest regulation, which the Official Gazette of the Federation (Diario Oficial de la Federación) recently published, requires employers and individuals to comply with a number of preventive and obligatory measures.
On March 28, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division released an updated set of Questions and Answers (Q&As) that provide additional guidance concerning how employers may take advantage of the small business exemption under the Emergency Family and Medical Leave Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). The small business exemption is addressed in questions 4 and 58-59).
On March 30, 2020, U.S. Citizenship and Immigration Services (USCIS) announced the following policy updates in response to the COVID-19 pandemic.
On March 27, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) conducted a webinar to address emerging questions regarding the COVID-19 pandemic and the EEOC’s previously updated pandemic guidance. The EEOC has not yet published revised guidance or a questions-and-answers document, but it offered listeners useful information during its webinar. Ogletree Deakins’ attorneys who were in attendance on the webinar prepared the following takeaways based on notes from the presentation to help employers in this evolving area.
On March 28, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division released an updated set of “Questions and Answers” (Q&As) that provide additional guidance concerning health care providers and emergency responders (question numbers 55, 56, and 57). The Emergency Family and Medical Leave Expansion Act (EMFLEA) and the Emergency Paid Sick Leave Act (EPSLA) authorize the DOL to issue regulations to exempt health care providers and emergency responders from eligibility for coverage under the FFCRA.
On March 23, 2020, U.S. Immigration and Customs Enforcement (ICE) published answers to frequently asked questions by Student and Exchange Visitor Program (SEVP) stakeholders about the impact of COVID-19 on SEVP-certified schools and students on F and M visas.
For those employers that have obligations under collective bargaining agreements to contribute to multiemployer benefit plans, the employment implications of the COVID-19 crisis may have significant consequences. Here are some potential pitfalls and possible advantages to participating in multiemployer plans for employers grappling with the coronavirus pandemic.
On March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act (FFCRA) in response to the spread of the novel coronavirus and the illness it causes, COVID-19. Among other fiscal packages, the act does three things: (1) expands the Family and Medical Leave Act (FMLA) temporarily (until the end of December 2020) to cover leave needed for the care of children out of school because of COVID-19 and also makes weeks 3 through 12 of its effective period paid leave; (2) creates 2 weeks of paid sick leave for childcare and other leave related to the coronavirus; and (3) provides for tax credits related to the paid leave provisions created by the act.
On March 23, 2020, Indiana Governor Eric J. Holcomb issued a “Stay-at-Home Order,” Executive Order 20-08 (E.O. 20-08). Under the order, Indiana residents are directed to stay in their homes except to engage in certain “Essential Activities,” including taking care of others, obtaining necessary supplies, and for health and safety reasons. Individuals are also permitted to leave home to work for certain “Essential Business or Operations,” and to carry out certain permitted activities, including “Minimum Basic Operations.” Under the order, nonessential business operations may continue only to the extent that employees or contractors are performing activities exclusively at their own residences.
As discussed in our previous article, the Georgia Department of Labor (Georgia DOL) has implemented an emergency rule that requires Georgia employers to file partial claims online on behalf of their employees for any week during which an employee (full-time or part-time) works less than his or her regular full-time or part-time schedule due to a partial or total company shutdown caused by the COVID-19 public health emergency.
The public health departments of Oakland County, Wayne County, Washtenaw County, and Ingham County have issued public health emergency orders instituting limits and protections for individuals permitted to work in person pursuant to Michigan Executive Order (EO) 2020-21 – Stay Home, Stay Safe.
On March 23, 2020, the U.S. Department of Transportation (DOT) issued guidance to DOT-regulated employers, employees, and service agents regarding drug and alcohol testing concerns during the ongoing COVID-19 pandemic. In the guidance, the DOT explains its commitment to maintaining public safety while simultaneously providing flexibility to transportation industries operating during the national emergency.
In response to COVID-19, state and local governments are issuing orders suspending “non-essential” business. At this point in the COVID-19 pandemic, construction work is often included on the list of essential business, particularly if it relates to utilities, telecommunications, transportation, and healthcare infrastructure.
We are experiencing extraordinary times. But even in our current situation of the global coronavirus pandemic, many employer responsibilities will still continue nearly unaffected. One of those is the requirement to properly process wage garnishments. This duty cannot be ignored because compliance failures can result in an employer becoming liable for an employee’s entire debt —and legions of collections lawyers will likely look to capitalize on employer omissions and mistakes.
On March 24, 2020, the British Columbia government made two changes to the BC Employment Standards Act to provide workers with unpaid, job-protected leave due to illness and injury.
U.S. Citizenship and Immigration Services (USCIS) field offices will remain closed to the public until at least April 7, 2020. The closure applies to routine in-person services at USCIS field offices, asylum offices, and Application Support Centers (ASCs), although emergency services may be available in limited circumstances.
The COVID-19 virus has accomplished something in Minnesota that 60-degree below zero windchills, Olympic curling on TV, and the alluring aroma of homemade lutefisk cannot: forcing Minnesotans to stay home.
On March 17 and 20, 2020, Florida Governor Ron DeSantis issued Executive Orders 20-68 and 20-71, announcing unprecedented state-wide closures of bars and nightclubs, restaurants for on-site dining, and stand-alone gyms. Since then, additional counties and municipalities in Florida have enacted more stringent measures attempting to slow the spread of COVID-19.
The COVID-19 pandemic is interrupting, and in many cases, preventing compliance with the Department of Transportation’s (DOT) drug and alcohol testing regulations. On March 23, 2020, DOT published guidance on compliance with DOT drug and alcohol regulations that clarified some existing legal requirements but offered little in the way of practical solutions. On March 25, 2020, however, the Federal Motor Carrier Safety Administration (FMCSA) published clear, flexible guidance specific to FMCSA’s testing requirements to aid FMCSA-regulated employers unable to comply with FMCSA’s testing requirements due to COVID-19.
On March 21, 2020, New Jersey Governor Phil Murphy issued Executive Order No. 107 (EO 107), which ordered all nonessential retail businesses to close their physical locations in New Jersey until further notice. Then on March 24, 2020, the state expanded the list of essential retail businesses whose physical locations are permitted to continue operating during their normal business hours.
On March 25, 2020, New Jersey Governor Phil Murphy signed Executive Order No. 110 (EO 110), which mandates the closing of all childcare centers operating in New Jersey unless they are certified as emergency childcare centers and agree to “provide child care services exclusively to ‘essential persons’ during the school closure period.”
On March 27, 2020, President 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 bill would provide $2 trillion in direct financial assistance to Americans, ease access to loans and other economic assistance to businesses of all sizes, and provide aid and support to healthcare providers.
On March 25, 2020, the U.S. Senate voted unanimously (96-0) to pass the Coronavirus Aid, Relief, and Economic Security (CARES) Act as an attempt to stabilize the U.S. economy disruptions in the wake of the COVID-19 pandemic. The CARES Act aims to boost the economy with over $2 trillion in tax and non-tax emergency aid provided to individuals and businesses. The U.S. House of Representatives approved the bill on March 27, 2020, which is now pending presidential signature.
On March 25, 2020, New York State published highly anticipated guidance concerning the state’s emergency paid quarantine leave law. The guidance provides answers to frequently asked questions (FAQs) addressing, among other things, benefits, eligibility, and the application process.
Now that the U.S. Equal Employment Opportunity Commission (EEOC) acknowledges that employers may implement temperature screening measures in response to the current COVID-19 pandemic, many employers want to conduct them, and want to know how to conduct them. In some locations, employers may even feel compelled to conduct them based on location-specific or general community mitigation guidance from the U.S. Centers for Disease Control and Prevention (CDC).
Employers with Puerto Rico operations should be aware that, with some minor income tax-related twists, the emergency paid leave provisions of the recently enacted the Families First Coronavirus Response Act (FFCRA) equally apply in Puerto Rico.
On March 24, 2020, Mecklenburg County, North Carolina, similar to various other localities, issued a stay-at-home order for the next 21 days to contain the spread of COVID-19. The order begins on March 26, 2020, and continues through April 16, 2020, subject to regular review by county health officials and Emergency Management.
On March 24, 2020, upon the request and recommendation of Mayor Randall Woodfin, the Birmingham, Alabama City Council unanimously adopted a “shelter in place” order, “An Ordinance to Establish a ‘Shelter in Place’ Order for the City of Birmingham During the COVID-19 Public Health Emergency.”
Unemployment benefits for impacted workers have now been addressed in both the Families First Coronavirus Response Act (phase 2) and the pending Coronavirus Aid, Relief, and Economic Security (CARES) Act (phase 3), which has now been passed in the U.S. Senate and is pending in the U.S. House of Representatives in response to COVID-19. The president’s signature is expected immediately once final approval is obtained by Congress. In light of staggering unemployment numbers released on March 26, 2020, this assistance has come just in time as many employers and impacted workers are facing economic devastation in the wake of COVID-19. According to the most recent statics, unemployment claims surged to over 3.2 million last week to the highest levels since tracking began in 1967.
On March 20, 2020, Florida Governor Ron DeSantis issued a series of executive orders in response to the growing and evolving COVID-19 pandemic. Executive Orders 2020-69 through 2020-72 expand the scope of Executive Order (EO) No. 2020-68, which limited the operation of bars, pubs, and nightclubs, as well as restricted gatherings at restaurants and beaches.
On March 25, 2020, Governor Brad Little and the Idaho Department of Health and Welfare issued a statewide Order to Self-Isolate, which went into effect at 1:30 p.m. on March 25, 2020, for at least 21 days, at which point the governor will “reassess” to “determine what happens next.” The order requires all individuals living in Idaho to self-isolate at their places of residence, leaving only for “Essential Activities,” maintaining “Essential Governmental Functions,” or to operate “Essential Businesses” as defined by the order.
On March 26, 2020, the U.S. Department of Labor’s (DOL) announced the issuance of additional guidance related to the Families First Coronavirus Response Act (FFCRA). The guidance includes “Field Assistance Bulletin 2020-1: Temporary Non-Enforcement Period Applicable to the Families First Coronavirus Response Act” and model notices “for employers obligated to inform employees about their rights under this new law.”
On March 24, 2020, Wisconsin Governor Tony Evers issued “Emergency Order #12: Safer at Home Order” in response to the COVID-19 pandemic. The order, which requires Wisconsin residents to “stay at home or place of residence” except to engage in certain activities, is similar to those issued in several other states (including California, Delaware, Illinois, Indiana, Michigan, and Pennsylvania).
On March 23, 2020, Governor Jay Inslee issued Proclamation 20-25 directing all residents immediately to heed current state public health directives to stay home. According to the proclamation, “[a]ll people in Washington State shall immediately cease leaving their home or place of residence except: (1) to conduct or participate in essential activities, and/or (2) for employment in essential business services.”
The COVID-19 pandemic has sent employers into a frenzy as they try to stay abreast of new developments and do everything they can to protect their employees. As a result, many employers are getting creative. While working with the best of intentions, these employers may be creating legal issues that can negatively impact their organizations and the employees they are trying to protect. Here is a top 10 list of employer mistakes to avoid during the COVID-19 crisis.
On March 24, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division issued preliminary guidance for employers and employees concerning the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). Both laws are part of larger Families First Coronavirus Response Act (FFCRA) enacted on March 18, 2020.
In a few short weeks, the novel coronavirus (COVID-19) has driven massive change in day-to-day activities for most Americans, and that change appears likely to accelerate. Travel restrictions, social distancing recommendations, and other public health interventions have had immediate implications for the nation’s employers, which now find themselves on the front lines of the COVID-19 response effort trying to ensure the safety of employees and customers while still continuing business operations. Employers are particularly aware of the financial challenges that may be imposed upon employees who are not permitted to work for extended periods of time, whether due to contracting COVID-19, self-quarantining due to coronavirus exposure, or office closures.
An employer’s response to COVID-19 involves numerous privacy issues. Below are some answers to frequently asked questions (FAQs) about these issues within the United States and globally, based on laws such as the Americans with Disabilities Act (ADA) (which applies in the United States) and the European Union’s General Data Protection Regulation (GDPR). While many of these principles can be applied globally, employers should always look to applicable local laws in their jurisdictions and guidance from public health authorities. Employers should also consult any applicable internal policies, data privacy notices, employee collective bargaining agreements, employment contracts, and individual employment terms.
On March 10, 2020, the New York State Department of Financial Services (NYSDFS), which regulates a variety of financial service entities such as banks, credit unions, check cashers, insurance companies, mortgage brokers, investment advisors, and cryptocurrency businesses, issued guidance in a series of “industry letters” and “circular letters” requesting “assurance” of operational preparedness relating to COVID-19. Such operation preparedness plans include a plan to maintain an adequate workforce, including remote work and other strategies to safeguard the workforce.
On March 20, 2020, Illinois Governor J.B. Pritzker issued Executive Order (EO) 2020-10, directing all residents to stay at home except as necessary for essential activities and government functions and to operate essential businesses. Here are some answers to frequently asked questions (FAQs) regarding the executive order and its impact on Illinois employers.
Following several other states, and at the direction of Ohio Governor Mike DeWine, Ohio Department of Health Director Dr. Amy Acton issued a shelter-in-place order for Ohio residents titled “Director’s Stay at Home Order.” The order went into effect on March 23, 2020, and will remain in place until 11:59 p.m. on April 6, 2020, unless rescinded or modified.
On March 23, 2020, Virginia Governor Ralph Northam signed Executive Order No. 53 (EO-53), which restricts the operation of certain non-essential businesses including restaurants and recreational and entertainment businesses. The order goes into effect on March 24, 2020, at 11:59 p.m., and will remain in effect until at least 11:59 p.m. on April 23, 2020.
New Jersey Governor Philip D. Murphy signed Executive Order (EO) No. 109 on March 23, 2020, suspending all “elective surgeries and invasive procedures performed on adults that are scheduled to take place after 5:00 p.m. on Friday, March 27.”
On March 22, 2020, the State of Louisiana issued a “stay at home” order directing all residents to stay home, except for essential activities, essential government functions, or to participate in the certain permitted “essential critical” businesses. Louisiana’s order allows more businesses to continue operations than other “stay at home” orders that other states had issued.
On March 23, 2020, Atlanta Mayor Keisha Lance Bottoms issued Executive Order 2020-21 (E.O. 2020-21), ordering all individuals living in the City of Atlanta to stay home “to ensure that the maximum number of people self-isolate . . . to slow the spread of COVID-19 to the maximum extent feasible.”
With the rapid onset of the COVID-19 pandemic, California employers have endeavored to ensure the health and safety of their workforces while at the same time heeding the anti-discrimination provisions of the California Fair Employment and Housing Act (FEHA). Addressing a number of unique issues arising out of the current crises, on March 20, 2020, the California Department of Fair Employment and Housing (DFEH) issued answers to frequently asked questions (FAQs) about the COVID-19 pandemic. The FAQs address compliance with both the anti-discrimination provisions in FEHA as well as leave of absence rights found in the California Family Rights Act (CFRA).
Conditions for doing business in Maryland are rapidly changing due to the spread of the novel Coronavirus (and the illness it causes, COVID-19). On March 23, 2020, Governor Larry Hogan issued Order Number 20-03-23-01 mandating the closure of all nonessential businesses effective at 5:00 p.m. on Monday, March 23, 2020. While not going as far a shelter-in-place order, the order banned social gatherings larger than 10 people and Marylanders were urged to avoid going out as much as possible.
As a complement to our frequently asked questions (FAQ) for U.S. employers, below are some answers to frequently asked questions (FAQs) about the latest developments on the virus, guidance from applicable public health authorities outside the United States, and managing COVID-19 responses across multiple jurisdictions worldwide. For terminology purposes, these FAQs use the term “COVID-19” generally to refer to the illness that is the subject of the World Health Organization’s (WHO) pandemic declaration.
As employers everywhere grapple with the COVID-19 crisis and its impact upon their employees and operations, questions have arisen regarding union contracts that expire on or about March 31, 2020. Although every labor contract and bargaining relationship is unique, established federal labor law principles can be applied to guide employers during this difficult time.
Employers are facing numerous issues in light of the novel coronavirus (COVID-19) pandemic, including remote work, temporary office closures, furloughs, and layoffs. These issues may have particular implications for U.S. employees holding H-1B specialty occupation visas, as they are typically required to remain productive in order to maintain their legal status.
On March 23, 2020, in response to the COVID-19 pandemic, Michigan Governor Gretchen Whitmer issued Executive Order No. 2020-21 (E.O. 2020-21), a “stay home, stay safe” directive setting forth the state’s “[t]emporary requirement to suspend activities that are not necessary to sustain or protect life.” A sweeping order that appears to be broader than orders that have been issued by other states.
On March 23, 2020, Oregon Governor Kate Brown issued Executive Order (EO) No. 20-12 (Oregon’s stay-at-home order), directing all Oregon residents to stay home to the maximum extent possible, closing certain businesses, and requiring social distancing measures for both public and private facilities.
Following a nationwide trend (including California, Delaware, Illinois, Pennsylvania, and other states), Wisconsin Governor Tony Evers announced he will be issuing a safer-at-home order in response to the COVID-19 outbreak. Governor Evers stated he would issue the order on Tuesday, March 24, 2020.
The Department of Homeland Security (DHS) announced on March 20, 2020, that it will relax the in-person verification requirements of the Form I-9, Employment Eligibility Verification for employers operating remotely due to COVID-19. Beginning March 20, 2020, employers will not be required to review an employee’s identity and/or employment authorization documents while in the employee’s physical presence.
On March 21, 2020, Governor Phil Murphy signed Executive Order (EO) No. 107, requiring New Jersey residents to stay at home and closing the physical location of any non-essential retail business so long as the order stays in effect. Although their “brick-and-mortar” locations must remain closed, businesses may continue to operate their online and telephone delivery services to the extent they are licensed to do so. The order went into effect on March 21, 2020, at 9:00 p.m.
On March 22, 2020, Governor John Carney, issued the fourth and fifth modifications to his state of emergency declaration, closing all non-essential businesses and ordering Delawareans to stay at home.
On March 16, 2020, Georgia Labor Commissioner Mark Butler implemented an emergency rule relating to unemployment benefits during the COVID-19 pandemic crisis. The emergency rule requires Georgia employers to file partial claims online on behalf of their employees for any week during which an employee (full-time or part-time) works less than his or her regular full-time or part-time schedule due to a partial or total company shutdown caused by the COVID-19 public health emergency.
To prevent the spread of COVID-19, the Government of India has issued an order prohibiting all inbound international flights to India beginning March 22, 2020. The current ban is set to expire on March 29, 2020, but is subject to change.
On March 21, 2020, Kansas City Mayor Quinton Lucas issued Second Amended Order 20-01, repealing the city’s earlier Amended Order dated March 16, 2020, and replacing it with a stricter, “Stay At Home” order to contain and control the spread of COVID-19. The local governments for Johnson, Leavenworth, and Wyandotte counties in Kansas, and Clay, Platte, and Jackson counties in Missouri, soon joined Kansas City, Missouri, in issuing similar orders to contain and control the spread of COVID-19.
The spread of the novel coronavirus (COVID-19) in the United Kingdom has caused employers to be increasingly concerned and uncertain regarding the future of their workforces. Below are some answers to frequently asked questions (FAQs) that employers may be facing as the virus affects UK workforces.
On March 19, 2020, Governor Tom Wolf issued a broad executive order requiring the closure of “all businesses that are not life sustaining.” Simultaneously, the secretary of Pennsylvania’s Department of Health issued a similar order, explaining “the closure of non-life sustaining businesses is necessary to protect the public’s health.”
On March 20, 2020, the U.K. National Health Service (NHS) launched online isolation notes to enable employees to provide evidence to their employers that they have been medically advised to self-isolate due to the coronavirus (COVID-19).
On March 19, 2020 California Governor Gavin Newsom issued Executive Order N-33-20 directing all residents to stay at home, except as necessary to maintain “essential critical infrastructure sectors.” The order left open the potential for the governor to add additional sectors whose workers may continue to report to work.
On March 20, 2020, U.S. Citizenship and Immigration Services (USCIS) announced the immediate and temporary suspension of premium processing services for all Forms I-129, Petition for a Nonimmigrant Worker and Forms I-140, Immigrant Petition for Alien Workers due to COVID-19 pandemic. The suspension includes new premium processing requests for H-1B petitions, including cap-subject petitions for fiscal year (FY) 2021, and supersedes the FY 2021 premium processing schedule announced on March 16, 2020.
As of March 21, 2020, U.S. Citizenship and Immigration Services (USCIS) will accept electronically reproduced original signatures in lieu of “wet” signatures on all benefit forms and documents. USCIS implemented the temporary change as a result of the COVID-19 national emergency, and the change only applies to signatures.
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.
California, Connecticut, Illinois, Pennsylvania, and New York have all issued statewide shelter-in-place orders in response to the COVID-19 pandemic, and more states may follow. Employers that do not qualify for an exemption under the applicable state order or that decide to severely curtail or shut down operations may want to consider some of the following issues.
On March 20, 2020, Illinois joined California, New York, and Pennsylvania in issuing a sweeping closure order to contain the spread of COVID-19. Illinois Governor J.B. Pritzker issued Executive Order 2020-10, Executive Order in Response to COVID-19 (COVID-19 Executive Order No. 8), directing “all individuals currently living within the State of Illinois . . . to stay at home” except as necessary for “Essential Activities, Essential Government Functions, or to operate Essential Businesses and Operations.”
On March 8, 2020, Oregon Governor Kate Brown declared a state of emergency due to the COVID-19 pandemic. Just 9 days later, on March 17, 2020, Governor Brown issued a series of executive orders that prohibited gatherings of 25 people or more; prohibited any restaurants, bars, or other similar establishments that offer food or drink from allowing on-premises consumption; and closed public schools statewide through at least April 28, 2020.
On March 18, 2020, the U.S. Senate passed the second in a series of bills in response to the COVID-19 outbreak within the United States. President Donald Trump signed the bill (H.R. 6201) into law later that evening.
On March 18, 2020, at Governor Andrew Cuomo’s behest, New York State passed an emergency law that extends paid leave and additional employment protections and benefits immediately to employees involuntarily quarantined in connection with COVID-19. An initial version of the bill also included paid sick leave provisions that were not directly related to the COVID-19 pandemic and were scheduled to take effect January 1, 2021. Those provisions have been stricken from the emergency law but are expected to be passed in separate legislation.
The U.S. Department of State announced on March 18, 2020, that it has suspended all routine visa services, including immigrant and nonimmigrant visa appointments, in most countries worldwide.
A recent article proclaimed a truth that manufacturers in all industry sectors know all too well: “You can’t build jets working from home.” As law offices, financial services firms, and tech companies close their doors and require employees to “work from home,” manufacturers face the reality that manufacturing requires employees to work on site. There is no factory production work from home. Intermittent leave under the Family and Medical Leave Act and workers’ compensation absences are hard enough to manage in the ordinary course of business. But the challenge to staff a factory becomes much more daunting every day during this COVID-19 pandemic, with emphasis on self-quarantine, social distancing, and avoiding groups of as few as 10 people.
Effective March 18, 2020, all U.S. Citizenship and Immigration Services (USCIS) field offices are temporarily closed to the public. USCIS has suspended all routine in-person services at its field offices, asylum offices, and Application Support Centers (ASCs) to help slow the spread of the coronavirus.
For the second straight year, U.S. Citizenship and Immigration Services (USCIS) will implement a staggered approach to premium processing for the H-1B cap season. For fiscal year (FY) 2021, USCIS will make premium processing available in two phases.
During this season of COVID-19, in which the duration of the crisis is unknown, employers across the country are seeking to implement cost-cutting measures which avoid full-blown reductions in force (RIFs). Many employers are opting instead for cost-saving measures that are designed to be temporary and reversible placeholders in the event the economy snaps back sooner rather than later. Employers have several tools in their toolkits.
Employers across the globe, faced with the need to reduce the risk of workplace transmission of COVID-19, may be contemplating imposing standard temperature screenings on their employees. In many jurisdictions, an employer may need or want to consult with employee representatives (such as Works Councils in Europe or unions where applicable) or limit temperature checks to only those employees who consent. Even if temperature checks comply with local and national laws, instituting such measures may still present risks for employers, such as claims that the employer screened employees in a discriminatory fashion and mishandled the data from a privacy perspective. Temperature screenings may also pose employee and public relations considerations.
On March 14, 2020, the Occupational Safety and Health Administration (OSHA) issued temporary enforcement guidance addressing the fit-testing requirements in the agency’s respiratory protection standard (29 C.F.R. § 1910.134). The guidance applies to healthcare workers using N95 respirators to protect them from the novel coronavirus 2019 (COVID-19).
On March 18, 2020, the U.S. Senate passed the U.S. House of Representative’s “Families First Coronavirus Response Act,” by a vote of 90-8, and President Trump signed the act into law the same day. The law does not contain any changes to the House versions of the legislation that were passed on March 14, 2020, and March 16, 2020. Next up will be “Phase 3” of Congress’s response to COVID-19, which will likely center around a massive economic stimulus.
The Alabama Department of Labor announced this week that workers who are not able to work due to COVID-19 will be eligible to file for unemployment benefits starting on March 23, 2020.
Michigan Governor Gretchen Whitmer issued two executive orders over the past several days that will impact certain employers that are responding to the coronavirus outbreak and COVID-19. On March 14, 2020, Executive Order 2020-06 was rescinded and replaced with Executive Order 2020-07, which places temporary restrictions on individuals who may enter health care facilities, residential care facilities, congregate care facilities, and juvenile justice facilities. On March 16, 2020, Executive Order 2020-05 was rescinded and replaced with Executive Order 2020-11, which places restrictions on large assemblages and events.
Beginning March 16, 2020, U.S. Customs and Border Protection (CBP) began allowing certain travelers the opportunity to make a Satisfactory Departure request directly at a port of entry if, due to COVID-19–related travel issues, a traveler is unable to depart the United States before his or her period of admission expires.
In an effort to facilitate response efforts for COVID-19, Director Craig Leen of the Office of Federal Contract Compliance Programs (OFCCP) announced that it is issuing a national interest exemption on March 17, 2020, to new supply and service and construction contracts entered into from March 17, 2020, through June 17, 2020.
On March 16, 2020, the U.S. House of Representatives approved new legislative text for the emergency coronavirus bill. The amendments to the “Families First Coronavirus Response Act,” (H.R. 6201) were intended to correct drafting errors that occurred while the House cobbled together its coronavirus bill over the weekend.
In light of the international concern about, and risks associated with, the COVID-19 virus, the Canadian government recently took action aimed at stopping its spread and providing relief for those immediately affected. On March 16, 2020, the government announced that it is closing its borders and the introduction of job protection legislation.
In an effort to increase social distancing in response to the ongoing COVID-19 pandemic, on March 15, 2020, California Governor Gavin Newsom held a news conference in which he issued an executive order calling for the home isolation of all individuals who are 65 and older, as well as individuals with chronic health conditions.
The continuing spread of the novel coronavirus (COVID-19) throughout the United States has caused employers to consider implementing contingency plans to help curb the spread of the disease and protect their workforces. Many companies are now restricting nonessential travel outside of the United States. Companies are also increasingly instructing their employees to work from home.
The global COVID-19 pandemic continues to impact international travel to the United States as well as the availability of U.S. consular services around the world. The following is a summary of the latest updates.
As COVID-19 continues to spread across the United States, it is anticipated that a large portion of the workforce will be asked to work from home for their own protection and for the protection of others. Working from home (or telecommuting) is not a new concept. However, it will be new for some employees and may strain the resources of a company during the COVID-19 outbreak.
Both employers and individuals continue to receive a barrage of information regarding the novel coronavirus 2019 (COVID-19). It is important to remember that during any time of stress, there will be some people with bad intentions willing to take advantage of the situation. “Phishing” and similar cybersecurity attacks are among the scams that the U.S. government is currently seeing in response to the COVID-19 pandemic.
High-deductible health plans may now cover testing and treatment for 2019 novel coronavirus (COVID-19) on a first-dollar basis without risking making participants ineligible to participate in health savings accounts (HSAs). The Internal Revenue Service (IRS) released a notice providing temporary relief for high-deductible health plans covering COVID-19-related health care services and supplies before the minimum deductible is met.
An employer who requires or permits employees to work from their homes has limited responsibilities for the safety and health of the employee’s working conditions. The Occupational Safety and Health Administration (OSHA) sharply distinguishes between home offices and other home workplaces, such as home manufacturing facilities in which, for example, employees assemble electronic parts.
As the coronavirus and the illness it causes, COVID-19, continue to spread, employers in France are taking into account the risk of an epidemic caused by the increase in the number of people who may become affected, both in France and abroad.
On March 11, 2020, the Trump administration issued a proclamation suspending the entry of foreign nationals from 26 European countries (known as the Schengen Area) into the United States. The suspension is intended to help curb the spread of the coronavirus (COVID-19) and will go into effect at 11:59 p.m. EDT on March 13, 2020.
In our recent article, we explained the COVID-19 epidemic’s potential impact on Arizona employers’ duty to provide paid sick leave to their employees. Significantly, we noted that in the event the governor declared a “public health emergency,” various business and school closures ordered by a “public official” in connection with that declaration could trigger paid sick leave obligations under Arizona’s earned paid sick time law.
On March 9, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division posted a helpful guidance for employers addressing some of the issues they are likely contemplating with respect to employee wages in different COVID-19 scenarios. “COVID-19 or Other Public Health Emergencies and the Fair Labor Standards Act Questions and Answers” offers answers to a number of questions related to emergencies generally under the federal wage and hour laws. Here is what you need to know.
On the evening of March 9, 2020, the Occupational Safety and Health Administration (OSHA) issued a new guidance, “Guidance on Preparing Workplaces for COVID-19.” The guidance divides employers into four risk categories and provides recommendations on engineering controls, administrative controls, and personal protective equipment to protect employees from coronavirus.
The COVID-19 outbreak implicates many different laws for employers to consider as they develop and refine their responses to rapidly changing circumstances.
As of March 3, 2020, the Canadian government has confirmed 33 cases of the coronavirus (COVID-19) across the country: 20 cases in Ontario, 12 in British Columbia, and one in Quebec. The Public Health Agency of Canada (PHAC) continues to assess the public health risk as low. Nevertheless, Canadian employers may want to ensure that the risk of exposure in the workplace is minimized. Here are some key questions for employers to consider.
Since February 2020, the spread of COVID-19 (commonly referred to as the coronavirus) has morphed into an expanding health emergency in the United States. While efforts to sufficiently stem the adverse effects of the virus to escape the mass disruptions and quarantines experienced in China and other countries are still possible, prudent and responsible Arizona employers may want to prepare in the event the virus dramatically increases its presence here.
As coronavirus disease 2019 (COVID-19) continues to spread, employers have been trying to strike a balance between safety and privacy as they apply their own policies and attempt to follow laws such as the General Data Protection Regulation (GDPR) in the European Union and the Health Insurance Portability and Accountability Act of 1996 in the United States.
Recognizing that Japan has entered a new phase in its fight against the spread of Coronavirus Disease 2019 (COVID-19), Japan officials announced a preemptive approach geared toward risk mitigation and slowing down the spread of the virus to prevent a spike in infections. This strategy, which includes strengthening testing and quarantining capacities, could have long-term impacts on employment practices, particularly in office-based environments in which technology provides more adaptive flexibility.
It appears that we are in “hurry up and wait” mode. We know that COVID-19 (i.e., the 2019 Novel Coronavirus) has been diagnosed among individuals in the United States, and, reportedly, has been contained. We also know that upon diagnoses in South Korea and Italy, the virus began to spread rapidly. We have all been watching China to see how severely the closures of businesses would impact its economy and the global supply chain.
The outbreak of the 2019 Novel Coronavirus (now designated COVID-19) caused massive disruption in China, including a nationwide extension of its Spring Festival holidays. Though February 10, 2020, was the last “public holiday,” some businesses remain closed, and many still encourage China-based employees to work from home.
On February 7, 2020, the Centers for Disease Control and Prevention (CDC) issued its Interim Guidance for Businesses and Employers to Plan and Respond to 2019 Novel Coronavirus (2019-nCoV), February 2020. The interim guidance contains numerous recommendations employers may wish to consider as questions relating to the coronavirus 2019-nCoV arise.
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has released guidance for the 2019 Novel Coronavirus (2019-nCov). OSHA notes that measures for protecting works depends on the “the type of work being performed and exposure risk, including potential for interaction with infectious people and contamination of the work environment.”
The California Division of Occupational Safety and Health (Cal/OSHA) has released Interim Guidance for Protecting Health Care Workers from Exposure to 2019 Novel Coronavirus (2019-nCoV). This guidance pertains to “health care facilities, laboratories, public health services, police services and other locations where employees are reasonably anticipated to be exposed to confirmed or suspected cases of aerosol transmissible diseases.”
On February 2, 2020, the United States joined a growing list of countries that have implemented travel restrictions for those at risk of transmitting the 2019 Novel Coronavirus (2019-nCoV).
Recent fast-paced developments, increasing employee apprehensions, and uncertainty regarding the Novel Coronavirus 2019-nCoV have left employers and employees with some concerns. We recently discussed the emergence of the coronavirus, which is believed to have originated in Wuhan, China, and the first confirmed cases in the United States, which were deemed to be travel related and acquired by individuals traveling from China.
As the 2019 Novel Coronavirus (2019-nCoV) outbreak continues to develop, a number of workplace issues have arisen, including issues of quarantine, medical testing, and pay, and proactive employers are taking steps to protect and educate their employees.
As the world responds to the accelerating 2019 Novel Coronavirus (2019-nCoV) outbreak originating in Wuhan, China—a situation now declared by the World Health Organization to be a Public Health Emergency of International Concern—multinational employers, particularly those with employees based in or traveling to China, are assessing their role in managing workforce impact. In addition to taking precautions to prevent the spread of illness, employers are contending with government-imposed travel shutdowns and advisories, quarantines, border screenings, and extended holidays that may affect local operations and global mobility.
Employers with employees traveling to and from China may want to take note that the U.S. Centers for Disease Control and Prevention (CDC) announced on January 21, 2020, that the United States had confirmed its first case of a new strain of the coronavirus that appeared in Wuhan, China, last month. The virus has already sickened hundreds of people and is reported to have killed six, according to Chinese authorities.
The California wildfire smoke regulation, an emergency regulation that took effect on July 30, 2019, is scheduled to become permanent on January 28, 2020. In the wake of the wildfires that have emerged throughout California, employers may want to become familiar with the regulation’s requirements.
As the East Coast braces for yet another hurricane, we should contemplate the impact that natural disasters can have on employees and employers, both personally and professionally. While individuals prepare their homes and employers prepare their businesses for the physical damage, employers will benefit from also assessing the practical and legal implications surrounding the unpredictable events Mother Nature throws our way—and planning accordingly.
On November 20, 2018, the U.S. Department of Labor (DOL) announced plans to assist those affected by the California wildfires. The DOL’s actions include relief efforts by a number of agencies.
As employers attempt to keep their businesses running and give their employees the time necessary to deal with the devastating impact of Hurricane Michael, employers should not disregard the significant employment laws that apply following a natural disaster or the opportunities provided by the federal government to assist workers to return to employment.
Similar to its September 17, 2018, National Interest Exemption (NIE) for certain contractors providing Hurricane Florence Relief, on October 11, 2018, the Office of Federal Contract Compliance Programs (OFCCP) issued a another NIE for new contracts specifically to provide Hurricane Michael relief.
On September 17, 2018, the Office of Federal Contract Compliance Programs (OFCCP) issued a National Interest Exemption (NIE) for certain employers that assist in Hurricane Florence relief activities.
As residents and employers on the East Coast are aware, Hurricane Florence is expected to make landfall shortly. This type of disaster can take a toll on businesses in the affected areas, from property damage to employee safety complications. Employers in the restaurant industry face a unique set of potential issues before, during, and after a disaster like a hurricane.
The National Hurricane Center has stated that Hurricane Florence, which is classified as a Category 4 storm, may hit the East Coast as early as Thursday, September 13. As a result, residents of North Carolina, South Carolina, Virginia, and the surrounding areas are preparing for 130 mph winds, floods, and heavy rains (and in some cases, evacuating the affected areas). Businesses with operations or employees in those areas could also be affected by power interruptions, disrupted communications, and transportation difficulties—in addition to concerns over their employees’ safety.
Puerto Rico is still reeling from the aftermath of Hurricane Maria. Recently, the governor of Puerto Rico signed into law Act No. 115 of June 20, 2018, to promote recovery efforts and provide much-needed aid to affected non-exempt employees in situations of emergency.
The California Division of Occupational Safety and Health (Cal/OSHA) recently posted an advisory notice regarding the wildfires that have been afflicting Southern California.
With the havoc wrought by Hurricane Maria in Puerto Rico, employers are exploring options to provide emergency relief to those employees who have encountered financial hardship to meet their necessities and repair their homes in the wake of the disaster. Occasionally, aid from employers to employees comes in the form of disaster-relief monetary payments and interest-free loans.
The U.S. Department of Labor (DOL) recently announced that federal contractors will not be cited for filing their VETS-4212 reports late—as long as they are filed by November 15, 2017.
As catastrophic hurricanes threaten the southeastern region, Alabama employers may want to reflect on the state’s emergency response statute.
On August 31, 2017, the U.S. Department of Labor (DOL) announced that the agency will support Hurricane Harvey and Irma relief efforts in a number of ways, including by relaxing federal contractors’ requirements on a temporary basis. As part of the initiative, the Office of Federal Contract Compliance Programs (OFCCP) will be temporarily suspending certain requirements on federal contractors to allow “businesses involved in hurricane relief the ability to prioritize recovery efforts.”
With the peak of hurricane season here, the devastating effects of Hurricane Harvey fresh in our minds, and Hurricane Irma approaching, Florida employers may want to familiarize themselves with employment laws that may be implicated in the event of a storm and be prepared to address storm-related issues, such as closing their businesses and resuming normal operations.
Before Hurricane Harvey unleashed its devastation on Texas and Louisiana, Federal Emergency Management Agency (FEMA) Administrator Brock Long said, “People need to be the help before the help arrives.”
As employers reopen their doors for business in the wake of Hurricane Harvey, here are some key points to keep in mind regarding wage and hour issues related to the storm.
Hurricane Harvey has caused massive damage and displacement of individuals in southeast Texas. For employees who have been unable to work during the past week, and for those who may not be able to return to work in the near future, there is an obvious financial and emotional toll.
Evacuation orders are being issued as Hurricane Matthew is about to bear down on the Southeastern United States. Employees and employers working in areas affected by the oncoming storm are balancing their personal and professional lives during these anxious times. Natural disasters can have a devastating effect on individuals, businesses, management, employees, and customers. Power interruptions, disrupted communications, and transportation difficulties can create obstacles to the resumption of normal activity for your business. How an employer navigates a significant crisis can have a lasting impact on business operations, its reputation with customers, and more importantly its employees.