On May 13, 2021, the CDC updated its Interim Public Health Recommendations for Fully Vaccinated People. Now, individuals who are fully vaccinated no longer need to wear a mask or physically distance in most indoor and outdoor settings, with a handful of exceptions (doctor’s offices, hospitals, planes, trains, airports, and transportation hubs), or unless expressly required by federal, state, local, tribal, or territorial laws, rules, and regulations.  The CDC guidance also defers to local business and employer workplace practices and rules.

Though they may be tempted, employers shouldn’t be too quick to relax onsite health and safety measures. Masks and social distancing are still required in many states and localities. For example, the current San Francisco Health Order (see here) still requires masks and social distancing outside of the home, subject to limited exceptions. In addition, Cal/OSHA still requires employers subject to its COVID-19 Prevention Emergency Temporary Standards to ensure employees physically distance and wear face coverings in most instances (see here).

For jurisdictions with liability shield laws that bar COVID-19 claims against employers, the shield laws generally require employers to follow applicable state and local guidance in order for the liability shield to apply. Rushing to follow the CDC guidance and relax mask and social distancing requirements in the workplace, when such restrictions are still recommended or required by state and local authorities, could make the shield law unavailable as a defense for employers.

And despite the new guidance, the CDC’s message regarding what fully vaccinated employees should do in the workplace remains unchanged: even if individuals have been fully vaccinated, they still need to follow guidance at their workplace.

For now, employers should continue to require workers to follow state and local social distancing and masking guidance and requirements in the workplace – even if only for a little while longer. For help with this development and your other employment related needs, contact your Baker McKenzie employment attorney.

Special thanks to guest contributor Aleesha Fowler.

Baker McKenzie’s Labor and Employment and Compliance and Investigations lawyers discuss the key considerations organizations encounter when faced with high profile sexual harassment and misconduct allegations and subsequent investigations involving powerful authoritative figures, executives and celebrities.

Click here to watch the video.

 

On May 5, 2021, the US Department of Labor (DOL) announced the withdrawal of the previous administration’s independent contractor rule, effective May 6, 2021. The DOL has not proposed any regulatory guidance to replace the rule, leaving employers with no clear guidance on worker classification under the FLSA.

The withdrawal is no surprise. The DOL proposed the withdrawal on March 12, 2021 (see our previous blog, here). Labor Secretary Marty Walsh reportedly stated in a Reuters interview on April 29, 2021 that he believes “in a lot of cases” gig workers should be classified as employees–aligning with President Biden’s worker-friendly agenda and campaign pledge to establish a classification test modeled on the California’s three-prong ABC test through passage of certain provisions of the Protecting the Right to Organize Act of 2019 (PRO Act) (read more about the PRO Act here).

The DOL highlighted several reasons for the withdrawal in its announcement:

  • The independent contractor rule was in tension with the FLSA’s text and purpose, as well as relevant judicial precedent
  • The rule’s prioritization of two “core factors” for determining employee status under the FLSA would have undermined the longstanding balancing approach of the economic realities test and court decisions requiring a review of the totality of the circumstances related to the employment relationship
  • The rule would have narrowed the facts and considerations comprising the analysis whether a worker is an employee or an independent contractor, resulting in workers losing FLSA protections

To discuss how this development could impact your business, and for assistance with worker classification decisions–including potentially evaluating risk through a worker classification audit–contact your Baker McKenzie employment attorney.

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 following jurisdictions extended their state-wide orders and/or the duration of the current phase of their reopening plans: Illinois, Indiana, Oregon and Wyoming.
  • The following jurisdictions eased restrictions, mask requirements and/or advanced to the next phase of their reopening plan: Connecticut, Georgia, Louisiana, Maine, Maryland, Mississippi, New Mexico, New York, New Jersey, North Carolina, Ohio Tennessee and Vermont.
  • Massachusetts’ Governor Baker issued a new order, which requires people to wear masks or face-coverings in indoor public places and outdoors when they are unable to maintain 6 feet from other people. Face coverings are still required at all times in indoor public places and at events, whether held indoors or outdoors and whether held in a public space or private home, except for when eating or drinking.
  • President Biden issued a new proclamation suspending entry into the United States of noncitizens of the United States who were physically present within India during the 14-day period preceding their entry or attempted entry into the United States, subject to exceptions specified in the proclamation.

You can also view our brochure which highlights key areas of expertise where we can support your business’s tracking and reopening plans.

For more information, please contact your Baker McKenzie attorney.

We are pleased to invite you to our webinar series on the Subcontracting Reform in Mexico this Tuesday, May 4. We will offer one session in Spanish and one in English.

During the first part, our specialists will discuss the impact of the Reform on companies operating in Mexico from the perspective of the different legal areas implicated:

Employment – Tax – Corporate – Litigation

In a second part, we will reserve time for a discussion by industry areas:

    • Pharmaceuticals, Medical Devices and Pesticides
    • Manufacturing and Wholesalers

Click here to view the invitation and register.

We are pleased to share a recent SHRM article, “Restructuring Your Organization Post-Pandemic? Maintain DE&I Commitments,”  with quotes from Mike Brewer. The articles discusses employers should be careful not to backtrack on progress made last year toward diversity, equity and inclusion (DE&I) as they prepare for a post-pandemic world, restructuring and reorganization to account for lost revenue in 2020.

Click here to view the article.

On April 16, Governor Gavin Newsom signed a statewide right of recall law (Senate Bill 93). SB 93 is similar to the Los Angeles City recall ordinance and the San Francisco right to reemployment legislation. It is effective immediately and will remain in effect through December 31, 2024.

Here’s what you need to know:  

Covered Employers

The new law does not apply to all employers. It applies generally to hotels, private clubs, event centers, airport hospitality operations, and airport service providers, while also applying specifically to janitorial, building maintenance and security services provided to office, retail and other commercial buildings.

Important Definitions:

  • “Hotel” means a residential building that is designated or used for lodging and other related services for the public, and containing 50 or more guest rooms, or suites of rooms (adjoining rooms do not constitute a suite of rooms). “Hotel” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the building’s purpose, or providing services at the building.
  • “Private club” means a private, membership-based business or nonprofit organization that operates a building or complex of buildings containing at least 50 guest rooms or suites of rooms that are offered as overnight lodging to members.
  • “Event center” means a publicly or privately owned structure of more than 50,000 square feet or 1,000 seats that is used for the purposes of public performances, sporting events, business meetings, or similar events, and includes concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers.
    • The term “event center” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the event center’s purpose, including food preparation facilities, concessions, retail stores, restaurants, bars, and structured parking facilities.
  • “Airport hospitality operation” means a business that prepares, delivers, inspects, or provides any other service in connection with the preparation of food or beverage for aircraft crew or passengers at an airport, or that provides food and beverage, retail, or other consumer goods or services to the public at an airport.
  • “Airport service provider” means a business that performs, under contract with a passenger air carrier, airport facility management, or airport authority, functions on the property of the airport that are directly related to the air transportation of persons, property, or mail, including, but not limited to, the loading and unloading of property on aircraft, assistance to passengers under Part 382 (commencing with Section 382.1) of Title 14 of the Code of Federal Regulations, security, airport ticketing and check-in functions, ground-handling of aircraft, aircraft cleaning and sanitization functions, and waste removal.
  • “Building service” means janitorial, building maintenance, or security services.

Continue Reading California Establishes Statewide Right to Recall for COVID-Related Layoffs Limited to Certain Industries

We are pleased to share a recent SHRM article, “Employers Deal with Workers’ Lost Vaccination Cards,” with quotes from Emily Harbison. The article discusses employers that require proof that employees have received COVID-19 vaccinations have options about what to do when workers lose their vaccination cards. Some companies may choose to require workers to get replacement cards, while others may accept electronic copies or attestations that employees were vaccinated.

Click here to view the article.

We are pleased to share a recent Law360 article, “3 Ways To Protect Diversity If Layoffs Are Unavoidable,” with quotes from Mike Brewer. This article discusses three tips employers can use to help safeguard diversity when reductions in force cannot be avoided due to economic havoc caused by COVID-19.

Click here to view the article.