Labor & Employment

On September 8, 2020, the EEOC released an updated technical assistance document addressing COVID-19 and the federal anti-discrimination laws enforced by the agency, including the Americans with Disabilities Act (“ADA”). Our previous posts about the EEOC’s prior COVID-19 guidance are available here and here. The updated guidance includes 18 new questions and answers, most of which were adapted from a webinar conducted by the agency in March. Several other responses have also been updated. Most of the new questions and updates involve three topics: (1) disability-related inquiries and medical examinations, (2) confidentiality of medical information, and (3) reasonable accommodations.…
In a Law360 guest article published on May 26, we alerted employers to an anticipated flood of various types of COVID-19 health and safety-related whistleblower retaliation claims, including those filed with the Occupational Safety and Health Administration, as well as those filed in courts under common law and state and federal statutes. The predicted deluge of complaints to OSHA has been borne out by statistics released by OSHA showing a total of 2,660 COVID-19-related whistleblower complaints were filed between Feb. 18 and Aug. 25. This led to questions as to whether the agency could adequately address complaints in a timely…
As we have previously reported, the Families First Coronavirus Response Act (FFCRA), which remains in effect through December 31, 2020, provides, among other things, that eligible employees can take up to 12 weeks of FMLA leave if the employee is unable to work (or telework) due to a need for leave to care for their son or daughter if the child’s school or place of care has been closed, or the child’s child care provider is unavailable, due to a public health emergency with respect to COVID-19 declared by a Federal, State, or local authorities. The United States Department…
On August 21, 2020, the Centers for Disease Control and Prevention (“CDC”) updated its guidance on Travel during the COVID-19 Pandemic. Previously, the guidance recommended that travelers self-quarantine for 14 days after: (1) all international travel, and (2) domestic travel to areas with a high concentration of COVID-19 cases. The guidance now recommends that travelers “follow state, local, and territorial travel restrictions,” which may include “testing requirements, stay-at-home orders, and quarantine requirements upon arrival.” For international travel, the CDC recommends visiting the destination’s Office of Foreign Affairs or Ministry of Health or the U.S. State Department website for information…
On August 24, 2020, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) issued a Field Assistance Bulletin (“FAB”) providing guidance on employers’ obligations under the Fair Labor Standards Act (“FLSA”) to track and pay for the hours of compensable work performed by employees who are working remotely.  While timely in light of the COVID-19 pandemic, the guidance is applicable to all situations where non-exempt employees are working away from a worksite or premises controlled by their employer. It’s long been the law that an employer is required to pay its employees for all hours worked, including work not…
The pandemic has thrown a number of obstacles at employers and employees as everyone attempts to navigate a novel situation.  On August 13, 2020, the National Labor Relations Board (“NLRB”) Division of Advice (“Advice”), the agency’s internal think-tank, published five Advice Memoranda dismissing unfair labor practice charges against employers in connection with issues concerning the COVID-19 pandemic.  The Memoranda were all drafted by Advice within the past two months, expanding upon the guidance previously released on July 15. Each Memoranda addresses a different COVID-related complaint concerning a variety of topics, such as employers’ responses to employees voicing concerns about workplace…
On August 8, 2020, the President issued an executive memoranda establishing the Lost Wages Assistance (“LWA”) program, a new unemployment benefit intended to replace the recently-expired $600 per week Federal Pandemic Unemployment Compensation (“FPUC”) payment. As a refresher, the CARES Act created three unemployment benefits programs: (1) Pandemic Unemployment Assistance (“PUA”), providing benefits for those not traditionally eligible for unemployment; (2) Pandemic Emergency Unemployment Compensation (“PEUC”), providing 13 additional weeks of benefits for those whose benefits expire; and (3) FPUC, providing a $600 per week additional benefit if the individual received other unemployment benefits in that week. While PUA and…
On August 3, Judge Paul Oetken of the Southern District of New York issued a decision invalidating various portions of the Department of Labor’s rules implementing the federal Families First Coronavirus Response Act (FFCRA). The FFCRA is the federal law that provides emergency relief and support to employees who need to take leave from work for COVID-19 related reasons during the pandemic. The two key provisions of the law are the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA).  Both apply only to employers with fewer than 500 employees.  The EFMLEA amends…
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…