The confusion over evolving state and local quarantine orders can be a challenge for employers with employees visiting hotspot areas. This week we discuss what employers can do when employees travel to a COVID-19 hotspot and have to quarantine when they arrive or return.

Please click here to watch this week’s video chat.

On July 20, 2020, the Wage and Hour Division of the US Department of Labor (DOL) published additional COVID-19 guidance in the form of a Q&A addressing Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and Families First Coronavirus Relief Act (FFCRA) issues arising when employers and employees return to work.

A few days before, on July 17, the DOL published streamlined optional-use forms for employer and employee notification and certification obligations under the FMLA and separately asked the public to comment on the FMLA and its regulations in a Request for Information (RFI). The additional guidance and forms should help employers navigate FMLA leave and employee wage and hour issues during COVID-19. And employers now have the opportunity to share their thoughts on the FMLA and its implementing regulations with the DOL. We provide more insight into the DOL’s recent activity below.

Continue Reading New Q&As, New Streamlined Forms, and an RFI: the Department of Labor Publishes More COVID-19 Guidance and Seeks Public Comment on the FMLA

We’re thrilled to announce the release of a new edition of The Global Employer: Focus on Global Immigration & Mobility.

This handbook is the go-to resource for in-house counsel, human resource managers and global relocation professionals to identify key mobility issues — ranging from business immigration and compliance, to employment and compensation. It provides strategic guidance and need-to-know information to help employers manage cross-border movement of managers, professionals, trainees and business visitors.

Click here to request a complimentary copy for yourself or your colleagues.

With a surge in COVID-19 cases in parts of the US (and some states taking or considering taking a step backwards into a prior reopening phase), employers are trying to figure out the best ways to keep the virus from spreading in their reopened worksites. We have answered some frequently asked questions below to help employers implement or modify their screening protocol to make it the best fit for their physical workspace, their budget, and their workforce.

1.  Can I check my employees’ temperatures before they enter the  workplace? If my employees have a fever, can I send them home (or tell them not to come to work)?

Yes, employers can check their employees’ temperatures before they enter the workplace. In fact, some states and localities require employers to do daily or weekly checks, so check your local requirements.

A temperature check is a medical examination under the ADA, and in ordinary times, employers generally cannot require employees to submit to a temperature check. However, given COVID-19’s rise to the level of pandemic, and the CDC and state and local health authorities’ acknowledgment of the community spread of COVID-19 and issuance of precautions, EEOC guidance allows employers to check employees’ temperatures before they enter the workplace. Temperature checks are only permitted while the virus is severe, so as the level of community spread diminishes in your locality make sure that temperature checks are still permitted before you administer them.

In addition, employers can send employees home (or tell them not to come to work) if they have a fever or any of the other symptoms of COVID-19. See EEOC guidance and CDC guidance, “Separate Sick Employees.” The CDC defines a fever as 100.4 F or 38 C or above. States may have different guidance regarding what qualifies as a “fever,” with some states defining a “fever” as a flat 100 F, and employers can set lower temperature thresholds if they prefer.

Continue Reading Employee Testing for COVID-19: What Works Now for Your Worksite?

We recently published an update to our 50-state Shelter-In-Place / Reopening Tracker.
Please see HERE. This is updated weekly.

For your convenience, here is a summary of the major updates from around the country:

    • Starting with this week’s update, the Tracker now includes links to the applicable quarantine requirements or recommendations for incoming travelers in each state plus Washington, D.C. The following states have in place such travel restrictions or recommendations as of July 24, 2020: Alaska, Arkansas, Connecticut, Florida, Hawaii, Illinois, Kansas, Kentucky, Maine, Massachusetts (requirements take effect August 1, 2020), Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Pennsylvania, Rhode Island, Vermont, Wisconsin and Washington, D.C.
    • The Governor of Iowa and the Mayor of Washington, D.C. extended their shelter-in-place/emergency declaration orders.
    • The Governors of Arkansas, Minnesota and Oregon issued new orders requiring face masks to be worn in certain public and/or indoor spaces.
    • Idaho and North Carolina delayed moving to the next phase of their reopening plans while New York proceeded to the next phase of its plan.

For more information, please contact your Baker McKenzie attorney.

The “days of boys will be boys” must end, said Circuit Judge Brown in Consolidated Communications, Inc. v. NLRB, 837 F.3d 1, 18 (D.C. Cir. 2016), a case involving strike misconduct. Heeding her directive, on July 21, 2020, the three grown “boys” at the NLRB decided that profane outbursts occurring during otherwise protected activities could be cause for termination. General Motors LLC, 369 NLRB No. 127 (2020). In the past, the NLRB has allowed some leeway for impulsive behavior of an employee when such misconduct is part of the “res gestae” of an employee’s protected activity. See, e.g., KHRG Employer LLC, 366 NLRB No. 22 (2018) (setting forth relevant test). But no more. Now, special rules will not apply to employees who violate an employer’s otherwise lawful rule mandating civility in the workplace just because the violation was part of the res gestae of a protected activity. This is good news for front line supervisors and managers who had to endure abusive conduct solely because it occurred during a labor-management meeting or in some other form of protected concerted activity.

Continue Reading NLRB Says, “#*!%@*” Could Get You Fired

In our first installment of this ICYMI video chat, we discussed the current requirements, realities and challenges raised by COVID-19 testing and screening in the workplace. Join us as we continue the conversation and address additional testing and screening hurdles employers are facing on a daily basis.

Please click here to watch this week’s video chat.

Raging for nearly six months, the coronavirus pandemic scattered a wide swath of the U.S. workforce from its offices.

Now private sector employers are being forced to confront a long-deferred question: will they retain this large-scale remote workforce flexibility or push to re-establish a status quo long perceived as integral to corporate culture?

Worker advocates have long pushed companies to be more open to remote work where possible, asserting it can help tamp down on discrimination against those with disabilities, older workers or caregivers.

Yet, many employers, backed by courts, have resisted providing remote work options, fearing a resultant drop in productivity.

Click here to continue reading.

This article was originally published in Bloomberg Law.

We recently published an update to our 50-state Shelter-In-Place / Reopening Tracker.

Please see HERE. This is updated weekly.

For your convenience, here is a summary of the major updates from around the country:

  • The Governors of several states extended their shelter-in-place/emergency declaration orders, including California, Georgia, New Mexico, South Carolina, Vermont and Wyoming.
  • The Governors of New York, Oregon, Washington and West Virginia rolled back certain re-opening measures, mainly with respect to social gatherings and, in the case of New York, outdoor drinking at bars and restaurants.
  • The Governors of Alabama and Montana issued new orders requiring face masks to be worn in certain public and/or indoor spaces.
  • Only Utah proceeded to the next phase of its reopening plan, while New York City will enter a limited new phase of reopening on July 20.
  • Connecticut, New Jersey and New York expanded the number of states from which travelers will be subject to a 14-day self-quarantine (the list now includes 22 states), while Rhode Island implemented a travel advisory requiring anyone traveling to the state from a state with a COVID-19 positivity rate greater than 5% to self-quarantine for 14 days.
  • Lastly, people looking to escape to Hawaii might have to put their travel plans on hold as the Governor postponed implementation of a plan to allow mainland and international travelers to bypass the state’s mandatory 14-day quarantine, previously set to begin on August 1, 2020, to September 1, 2020. The plan would allow incoming travelers who provide a valid negative COVID-19 test result from a test taken within 72 hours of arrival to avoid Hawaii’s 14-day quarantine.

For more information, please contact your Baker McKenzie attorney.

Most U.S. employers have accepted that the COVID-19 pandemic has changed the future of work. This is particularly true on the fundamental level of where employees work. Aside from looking around our own virtual workspaces, how do we know this?

First, since the start of the pandemic, employees have worked from home in unprecedented numbers. Before the crisis, only 13% of workers in the U.S. were remote at firms run by the Fortune CEO community. By June, that number stood at 73% of workers in the U.S., even though some states had eased their lockdowns allowing businesses to reopen.

Further, for many companies, particularly in tech, the work-from-home experiment has been surprisingly successful. As the saying goes, necessity is the mother of invention, and when faced with no other option but to adapt, CEOs of the 2020 Fortune 500 list reported that one of the single most important things the crisis has taught them is working from home works.

Finally, according to research from Gartner Inc., nearly three quarters, or 74%, of chief financial officers expect to transition a number of previously on-site employees to remote work setups permanently in the aftermath of COVID-19.

This data is not surprising when you consider the advantages of remote work — substantially lower real estate costs, increased flexibility for employees, access to a much wider and more diverse talent pool, and a positive impact on the environment due to reduced commuting. In addition, considering that spikes of the virus are likely to continue for some time, many employers appreciate the health and safety benefits most of all.

Of course, there are challenges too, for example, how to effectively onboard new hires, how to maintain a sense of company culture and deliver a top-notch employee experience without working together at a company office, as well as mitigating against unintended disparate treatment of employees, among others.

While there are certainly hurdles to navigate, risk profiles to consider and cost-benefit decisions to be made, there is nothing legally insurmountable about transitioning to a permanent remote work model. Each organization is different, and what works for one
company many not work for another, but with careful planning, it can be done.

Recognizing that there are many integrated legal considerations and drivers, including employee compensation and benefits, data privacy and trade secrets, corporate law, and corporate tax, what follows is a basic five-step blueprint of the U.S. employment law considerations for building out your company’s remote work plan.

Click here to continue reading this Article.

This article was originally published in Law360.