Labor & Employment

Quick Hit:  Employees in the District of Columbia are currently eligible for paid and unpaid COVID-19 related leave under measures that temporarily expand the D.C. Family and Medical Leave Act (“DCFMLA”) and D.C. Accrued Sick and Safe Leave Act (“ASSLA”). Key Takeaway:  D.C. employers now must navigate an additional set of paid and unpaid leave requirements.  D.C. employers should review these new requirements and update their policies to reflect these temporary measures. More Detail: As we previously reported, in March 2020 the District of Columbia passed the D.C. COVID-19 Response Emergency Amendment Act of 2020, which expanded DCFMLA to…
California Governor Gavin Newsom has released a 32-page “Employer Playbook” that’s designed to help employers “plan and prepare for reopening their business and to support a safe, clean environment for workers and customers.” The Playbook contains general guidance applicable to all industries, such as how to manage an outbreak, record cases, and enforce mask requirements. The Playbook also contains hyperlinks to relevant government contacts and industry-specific guidance. In addition, the Playbook mandates that before reopening, all facilities must: Perform a detailed risk assessment and create a work site-specific COVID-19 prevention plan; Train workers on how to limit the spread of…
Quick Hit As we previously reported, Virginia became the first state to issue mandatory COVID-19 workplace safety rules when the Virginia Safety and Health Codes Board (“VSHCB”) approved an emergency temporary standard on July 15, 2020.  The final text has now been released and the new rules, which apply to most private employers, went into effect July 27, 2020.  Employers who fail to comply may be subject to fines of up to $13,494 for a “serious” violation and up to $134,937 for a “repeat” or “willful” violation. Key Takeaways Virginia’s new rules are quite detailed.  The new mandatory…
For years, federal courts in California have been inundated with wage and hour class actions.  Because these cases often clogged district court dockets for months (and, sometimes, even years) on end, the Central District of California issued the former Local Rule 23-3, which set a 90-day deadline to file a motion for class certification from the filing of a complaint in or removal of an action to federal court.  In 2018, the Ninth Circuit invalidated the 90-day deadline, but judges continue to manage their dockets by imposing shorter than average deadlines to keep cases moving.  And, as a recent Central…
As we have previously reported, the United States Department of Labor (DOL) continues to update its COVID-19 guidance. Most recently, on July 20, 2020, the DOL issued additional Q and A guidance related to COVID-19 and the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA). These latest publications not only offer new guidance, but also update prior DOL guidance. FLSA Guidance The latest FLSA guidance addresses compensable time and exempt status issues as they relate to telework, as well as hazard pay (or the lack thereof under…
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has now issued its second set of coronavirus-related citations, this time against an Ohio health-care company.  OSHA inspected three of the company’s nursing facilities from April to June after the company reported the coronavirus-related hospitalization of seven employees.  On July 21, 2020, OSHA announced that it issued citations to each of the three locations with “Serious” violations for failing to develop a comprehensive written respiratory protection program and failing to provide medical evaluations to determine employees’ ability to use a respirator in the workplace.  OSHA additionally issued a…
Amid the COVID-19 pandemic, Colorado Governor Jared Polis signed the Healthy Families and Workplaces Act (“the Act”) into law. Beginning next year (or later for small employers), the Act will require employers in Colorado to provide employees with up to six paid sick days a year – and more if there is a public health emergency. The Act also extends immediate COVID-related paid sick leave protections to employees not covered by the federal Families First Coronavirus Response Act (“FFCRA”). Colorado now joins 12 other states (plus numerous counties and cities) that have passed statewide paid sick laws. Effective immediately through…
On July 15, 2020, the National Labor Relations Board’s (“NLRB”) Division of Advice published 16 Advice Memoranda addressing myriad questions posed by various Regional Offices. While a majority of the Memoranda were drafted within the past month, a few were originally issued months or years ago. Advice is the agency’s internal think tank and the vast majority of Memoranda drafted by its attorneys are kept confidential as litigation-related documents.  Advice may instruct a Region to issue complaint in a case, seek settlement or dismiss the charges. Each recently released memo is tied to a specific unfair labor practice (“ULP”) charge…
Quick Hit Virginia became the first state to issue mandatory COVID-19 workplace safety rules when the Virginia Safety and Health Codes Board (“VSHCB”) approved an emergency temporary standard on July 15, 2020 by a 9-2 vote.  The final text has not yet been published but the mandatory requirements are expected to include obligations surrounding flexible sick leave policies, the promotion of social distancing, policies to identify workers who may have been exposed to COVID-19 in the workplace, and policies to determine when workers known or suspected to have had COVID-19 are able to return to the workplace. Key Takeaways The…
The U.S. Department of Labor (“DOL”) has released new and significantly revised versions of its model notice of rights, certification, and designation forms under the federal Family and Medical Leave Act (“FMLA”). According to a press release by the DOL, the new forms, which are now currently in effect and can be found on the DOL’s website, seek to “streamline” the prior forms by making them “simpler and easier for employees, employers, leave administrators and healthcare providers to understand and use.” As discussed in a prior blog when changes to the forms were first being proposed, the revisions do…
After a brief delay where the NLRB suspended all representation elections from March 19 through April 6, 2020 (see here and here), NLRB Regional Directors have since largely required elections to be held via mail ballot to curb the spread of COVID-19. Earlier this week, the Office of the General Counsel of the NLRB published a Memo, GC 20-10, containing “suggested” manual election protocols designed to resume the conduct of manual elections, in certain situations, and in a safe and efficient manner. These protocols were developed collaboratively with Regional Directors, the NLRB Division of Operations-Management, the NLRB COVID-19…
The Occupational Safety and Health Administration (OSHA) published additional frequently asked questions regarding returning to the workplace during the COVID-19 pandemic on Thursday. We reported on OSHA’s earlier posted FAQs here. Though the FAQs do not impose any new legal requirements, employers should be aware of OSHA’s recommendations as workplaces around the country continue to reopen to workers, customers, and other visitors. Cloth Face Coverings Notably, OSHA recommends that employers encourage workers to wear face coverings while at work. OSHA maintains that employers must ensure social distancing in the workplace, even when workers wear cloth face coverings. This recommendation…
Many employers have reduced the size of their workforce as a result of shelter-in-place and business-closure orders that have been issued around the country. With a double-digit unemployment rate, laid-off workers are seeking new employment wherever they can find it, which often means in the same industry where they last worked. Assuming they find new employment with a competitor, employers are tasked with the unenviable question of whether, at this unprecedented time, to seek enforcement of restrictive covenants like noncompetition and customer nonsolicitation provisions to effectively put their former employees back out of a job. Relaxing enforcement of restrictive covenants…
On June 18, OSHA issued non-binding guidance to help employers safely reopen non-essential businesses and facilitate their employees’ return to work during the COVID-19 pandemic. The guidance focuses on employers implementing strategies for five main aspects of the workplace: basic hygiene, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training. As OSHA’s National News Release states, the guidance is meant to supplement the U.S. Department of Labor’s (DOL) and Health and Human Services’ previously issued guidelines regarding reopening workplaces. Foremost, the guidelines note that employers’ reopening plans should align with all applicable requirements, including…
On June 26, 2020, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) issued Field Assistance Bulletin (“FAB”) No. 2020-4, providing guidance on when an employee may take leave pursuant to the Families First Coronavirus Response Act (“FFCRA”) to care for their child whose summer camp, summer enrichment program, or other summer program is closed for COVID-19 related reasons. We first wrote about the FFCRA, which includes the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), here, and we have followed the WHD’s question and answer guidance (“FAQ”) on…
On July 1, 2020, employees in DC will be able to begin taking Paid Family Leave (“PFL”) pursuant to the DC Paid Family Leave Act (the “Act”).  Here’s a quick primer on what employers need to know ahead of the program’s launch. Eligible Leave Employees who spend more than 50% of their work time in DC may take PFL for: Up to eight weeks for paid parental leave to bond with a new child (“parental leave”) which can be taken within 52 weeks of the date of birth, adoption, or foster care placement of a child; Up to six weeks…