Law and the Workplace

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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…
Effective July 1, 2020, the U.S. Department of Labor (DOL) will pull back on seeking liquidated damages in pre-litigation settlements of wage claims and investigations.  The change in policy, announced in Field Assistance Bulletin 2020-2, is significant, as liquidated damages can equal 100% of the back pay deemed to be owing, potentially resulting in “double damages” for wage violations. The policy change comes on the heels of an executive order President Trump signed in May 2020, directing federal agencies to use deregulatory actions to spur economic activity in light of COVID-19 shutdowns.  In line with that order, the DOL’s…
As the nation continues to move toward reopening, the EEOC and the Occupational Safety and Health Administration (“OSHA”) issued additional guidance for employers to consider as they plan employees’ return to the workplace. These updates supplement earlier guidance issued by both agencies, which we discuss in our previous posts. EEOC Guidance On June 11, 2020, the EEOC issued additional, revised technical assistance to employers, addressing necessary considerations for employers that have employees returning to the workplace who are at higher risk for more severe illness due to COVID-19. Specifically, the guidance explains that the Age Discrimination in Employment Act…
Amid growing criticism of the agency’s response to the COVID-19 pandemic, OSHA’s Principal Deputy Assistant Secretary, Loren E. Sweatt (“Sweatt”), testified before the House Education and Labor Committee’s Workforce Protections Subcommittee last Wednesday during which she defended the agency’s actions to protect worker safety during the pandemic. Below, we discuss the top three takeaways from Sweatt’s testimony that employers should know. 1.     OSHA Stands By Its Refusal to Issue COVID-19 Specific Regulations Instead of issuing specific regulations related to the COVID-19 pandemic, OSHA has opted to apply existing workplace safety standards and issue industry-specific guidance. The agency has been under…
The proposed Chicago COVID-19 Anti-Retaliation Ordinance (the “Ordinance”) that was the subject of our post on April 27, 2020, has now become law. The Ordinance prohibits Chicago employers from retaliating against employees for obeying a public health order requiring an employee to remain at home as a consequence of COVID-19.  This reflects a growing trend among states and local governments in enacting protections against retaliation amid the COVID-19 pandemic. *      *      * Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management…
The CDC has issued interim guidance on antibody testing for the SARS-CoV-2 coronavirus that causes COVID-19. While the guidance is primarily directed at clinical and public health entities, it does contain some information relevant to employers, educational institutions, and other entities who may be considering whether and to what extent such antibody testing may play a role in its reopening plans. Specifically, the guidance states that, although the presence of anti-SARS-CoV-2 antibodies when detected using a reliable antibody testing method “likely indicates at least some degree of immunity, until the durability and duration of immunity is established, it cannot be…
The Illinois House of Representatives recently introduced House Bill 5769, which would create the Illinois Personal Protective Equipment Responsibility Act (the “Act”).  The Act would require “essential employers” to provide personal protective equipment (“PPE”) to both employees and independent contractors.  The Act defines an “essential employer” as an employer engaged in an “essential business” as defined by a disaster proclamation issued pursuant to Illinois’s Emergency Management Act or any executive order issued in furtherance thereof. At a minimum, essential employers would be required to provide face coverings and require that such coverings be worn “when maintaining a 6-foot social…
During the early days of the coronavirus pandemic, the Maryland legislature passed over 600 pieces of legislation, many of which relate to employment issues.  Several of these bills, including ones that prohibit use of facial recognition technology, wage history inquires and hairstyle discrimination, and revise the state’s mini-WARN act, recently became law when the deadline for their enactment passed without Governor Larry Hogan’s veto.  These laws, which are detailed below, will take effect on October 1, 2020. Prohibition Against Use of Facial Recognition Technology Quick Hit: Maryland now prohibits using facial recognition technology during the job interview process, absent an…
On May 19, 2020, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued a memorandum updating previous guidance regarding employers’ obligation to record cases of COVID-19 in the workplace. On May 26, 2020, the previous guidance will be rescinded and OSHA’s updated guidance will go into effect, the key provisions of which are summarized below. Under the updated guidance, all employers subject to OSHA recordkeeping requirements will now have to determine whether employees’ COVID-19 cases are work-related and, if so, record such cases on the employer’s OSHA Form 300 log. The previous guidance generally exempted employers (aside from…
For almost 80 years, it has been the law that an overtime-eligible employee whose hours fluctuate from week to week and who agrees to receive a fixed weekly salary covering all hours of work is entitled to a halftime premium for hours worked in excess of 40 per week—not a “time and a half” premium. The rationale is that the employee, by virtue of the fixed salary covering all hours of work, has already been paid the “straight-time” component of pay for the hours over 40. Accordingly, all that remains for the employer to pay is the “half” in the…
***Last Updated: May 19, 2020*** New York State has issued detailed guidance on Governor Cuomo’s “New York Forward” Plan, under which the State will re-open in four phases on a regional basis. The guidance includes additional information regarding: (1) when regions will be permitted to begin a phased re-opening; (2) which businesses are included in each of the four phases; (3) what is required of businesses in order to re-open; and (4) how compliance will be enforced. Below is a summary of what employers need to know about the guidance. When Are Regions Able to Re-Open? While the…
On Monday May 18, 2020, Governor Baker announced the first phase of his administration’s much-anticipated plan to reopen Massachusetts (the “Plan”), nearly eight weeks after first ordering non-essential businesses to close and advising residents to stay home in light of the COVID-19 pandemic. In describing the phased reopening, the Governor repeatedly emphasized that the coronavirus has hit Massachusetts particularly hard – both in terms of confirmed cases and confirmed cases per capita. The Plan to reopen accordingly presents a careful and deliberate phased approach with regards to which businesses can open and when, and what metrics those businesses must meet…
On May 12, 2020, the U.S. House of Representatives introduced the Health and Economic Recovery Omnibus Emergency Solutions Act (“HEROES Act”), which, among other things, would significantly expand coverage and benefits available under the Families First Coronavirus Response Act (“FFCRA”). As we have discussed at length in numerous prior posts, the FFCRA provides for paid sick leave for certain coronavirus-related reasons, as well as leave under the Family and Medical Leave Act (“FMLA”) to care for a child whose school or care provider is closed or unavailable due to COVID-19 (“emergency FMLA” or “EFMLA”). Under the current proposed…
The New York City Department of Health has issued a standing Order that creates a process for those who live or work in the City to receive the documentation needed to claim leave in certain circumstances under the New York State COVID-19 Emergency Sick Leave Law. The State Emergency Sick Leave Law requires New York employers to provide job-protected sick leave to employees who are subject to an order of quarantine or isolation issued by the State of New York, a state or local health department, or any other governmental entity due to COVID-19. We previously addressed both the Law