The EEOC recently updated its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act Guidance, first published in 2009, to specifically address the COVID-19 pandemic. The updated guidance is here.

Significantly, the EEOC confirms that the COVID-19 pandemic meets the “direct threat” standard for employee medical examinations and disability related inquiries. Accordingly, employers do not violate the ADA by requiring employees to undergo medical examinations, such as temperature checks, or asking employees disability-related questions, such as whether the employees suffer from underlying health conditions that may make COVID-19 more severe for them. As with all medical information, the fact that an employee has a fever or an underlying health condition is subject to the ADA’s confidentiality requirements.

The EEOC also provided guidance on hiring and screening employees during the COVID-19 pandemic; the Q&A is copied here for your convenience:


  1. If an employer is hiring, may it screen applicants for symptoms of COVID-19?

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.  This ADA rule allowing post-offer (but not pre-offer) medical inquiries and exams applies to all applicants, whether or not the applicant has a disability.

  1. May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?

Yes.  Any medical exams are permitted after an employer has made a conditional offer of employment.  However, employers should be aware that some people with COVID-19 do not have a fever.

  1. May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?

Yes.  According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.

CDC has issued guidance applicable to all workplaces generally, but also has issued more specific guidance for particular types of workplaces (e.g. health care employees). Guidance from public health authorities is likely to change as the COVID-19 pandemic evolves.  Therefore, employers should continue to follow the most current information on maintaining workplace safety.   To repeat:  the ADA does not interfere with employers following recommendations of the CDC or public health authorities, and employers should feel free to do so.

  1. May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?

Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.

At noon today, San Francisco, Alameda, San Mateo, Santa Clara, Santa Cruz, Marin, and Contra Costa counties extended their Shelter-In-Place Orders until at least May 1, 2020. The original Shelter-In-Place Orders were set to expire on April 7. The joint press release may be found here.

These Orders require all individuals ordered to shelter in place in their residences and for businesses to cease all activities at facilities located within the listed counties and with certain exceptions for: (1) “Essential Businesses” (as defined by the Orders); and (2) “Minimum Basic Operations” for businesses that do not qualify as “Essential Businesses.” The Shelter-In-Place Orders now remain in effect through “at least May 1, 2020,” with the term “at least” indicating further extensions are likely.

The intent of the Orders is to ensure the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, and to slow the spread of COVID-19 to the maximum extent possible. Although each of the seven Bay Area counties issued a separate Order, the substantive terms of the Orders are the same. Information about California’s separate, state-wide Shelter-In-Place Order may be found here.

What Businesses are Covered by the Orders?

Continue Reading San Francisco Bay Area Shelter-In-Place Orders Extended Until “At Least” May 1, 2020

In February 2020, the NLRB finally unveiled its long-awaited joint-employer rule governing joint-employer status under the NLRA. The final rule returns the test for determining joint employment to the standard the Board applied for several decades before the 2015 Browning-Ferris decision. The test set forth by the new joint-employer rule provides that a business is a joint employer only if it has “substantial direct and immediate control” over another company’s workers and actually exercises that control. While this is no doubt a welcome relief for employers who routinely contract with subcontractors and staffing companies, it is important to note the limited scope and that this rule does not impact joint-employer tests applied under other employment laws. The proposed rule was initially released in late 2018 and ultimately generated nearly 30,000 public comments (see our coverage here).

Although the rule is an employer-friendly change, employees who are terminated for engaging in protected concerted actives will continue to have a claim for relief against their primary employer. Similarly, union organizing efforts can continue amongst temporary employees as they have for years. Bargaining will continue to occur as it always has between employers and their employees’ union representatives. The labor movement, however, is likely disappointed by the demise of the 2015 Browning-Ferris rule.  For years, unions have chaffed at the prohibition against secondary boycotts contained in the Taft Hartley Act of 1947. The 2015 Browning-Ferris rule allowed a backdoor repeal of a significant portion of the secondary boycott ban with its loose definition of joint employer.

Continue Reading Much Ado About Joint Employers at the NLRB

A Statewide Executive Order and comprehensive list of Texas counties and cities with shelter-in-place or stay-at-home orders has been complied.

Note that this does not cover counties that may have less restrictive orders in place, similar to the restaurant and bar bans that were prevalent last week (i.e., a county or city’s absence from this list does not mean there are no restrictions in place, just that a shelter-in-place order has not yet been issued).

Statewide:
Executive Order GA-08 – ordering limited business closures and restricting social gatherings to 10 people or less.

To keep reading click here.

As a further update to our post here, on Thursday, the DOL issued an additional 22 FAQs on FFCRA, addressing required certifications for leave, healthcare coverage during leave, intermittent leave, teleworking, and several other topics. In a major and unexpected twist, DOL takes the position that FFCRA leave is not available if an employer closes a worksite or furloughs employees due to a lack of work or government closure directives. DOL also takes the position that FFCRA leave may not be used to supplement lost pay when an employee’s hours are reduced due to lack of work.

The link to the new FAQs is here.

The FAQs regarding closures, furloughs and reduced hours are pasted below for convenience. Our COVID-19 Rapid Response Team can provide you with a FFCRA-compliant policy and leave certification / designation forms. Please reach out to your Baker McKenzie employment attorney.


 

23.  If my employer closed my worksite before April 1, 2020 (the effective date of the FFCRA), can I still get paid sick leave or expanded family and medical leave?

No. If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

It should be noted, however, that if your employer is paying you pursuant to a paid leave policy or State or local requirements, you are not eligible for unemployment insurance.

24.  If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?

No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

25.  If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?

If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

26.  If my employer is open, but furloughs me on or after April 1, 2020 (the effective date of the FFCRA), can I receive paid sick leave or expanded family and medical leave?

No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

27.  If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?

No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx. If your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded family and medical leave as warranted.

28.  If my employer reduces my scheduled work hours, can I use paid sick leave or expanded family and medical leave for the hours that I am no longer scheduled to work? 

No. If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work. This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.

You may, however, take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents you from working your full schedule. If you do, the amount of leave to which you are entitled is computed based on your work schedule before it was reduced (see Question 5).

29.  May I collect unemployment insurance benefits for time in which I receive pay for paid sick leave and/or expanded family and medical leave?

No. If your employer provides you paid sick leave or expanded family and medical leave, you are not eligible for unemployment insurance. However, each State has its own unique set of rules; and DOL recently clarified additional flexibility to the States (UIPL 20-10) to extend partial unemployment benefits to workers whose hours or pay have been reduced. Therefore, individuals should contact their State workforce agency or State unemployment insurance office for specific questions about eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

Harris County, Fort Bend County, Galveston County, Collin County, Tarrant County, and Dallas County have all issued Stay at Home / Shelter-In-Place Orders.

Harris County Judge Lina Hidalgo issued a “Stay Home, Work Safe” Order taking effect at 11:59 p.m. on March 24, 2020.  The order requires residents to remain inside except for “Essential Activities,” and requires non-essential businesses close their facilities.  “Essential Activities” includes activities related to health and safety, but also allows people to shop for household consumer products and supplies needed to work from home, and to “perform work providing essential products and services at an Essential Business.” In enumerating the Essential Businesses allowed to remain open, the Harris County order incorporates the 16 “Essential Critical Infrastructure” sectors identified by the National Cybersecurity and Infrastructure Agency (CISA) as “Essential Businesses.”

As noted in our previous client alert, the CISA guidance considers a broad range of electricity, petroleum, natural and propane gas, and chemical workers as critical infrastructure.  In effect, the entire supply chain for energy-related industries is deemed essential.  Further, any operations that are “necessary for the manufacturing of materials and products” demanded by the energy or chemical manufacturing supply chains are also exempt from closure.

To keep reading, click here.

Predictions about the spread of COVID-19 through significant parts of the population and its effects on American life are staggering. The Centers for Disease Control and Prevention (CDC) reports more than 54,000 confirmed cases in the United States. As countries across the world implement new, extraordinary measures in an attempt to contain the coronavirus, which infects clusters of people (including co-workers), employers face rapidly evolving compliance issues.

Employers must provide employees a safe place to work under the Occupational Safety and Health Act’s “General Duty Clause.” This catchall safety provision applies to “recognized hazards.” When OSHA addresses a pandemic, it reminds employers of their general duty to protect employees from airborne infectious diseases. Given the Act’s remedial purpose “is prophylactic in nature,” Whirlpool Corp. v. Marshall, 445 U.S. 1, 12 (1980), developing, maintaining, and implementing workplace plans to reduce worker exposure is crucial to mitigate the risk of citation.

But what about those that are already exposed despite adequate workplace measures? Many individuals are asymptomatic or can carry (and spread) COVID-19 for up to two weeks without illness. Employers should assume—and plan for the unfortunate reality—that most employees will suffer a consequence because of COVID-19.

Recent gubernatorial decisions have forced thousands of “nonessential” businesses to shut down and send employees home, threatening the economy. While other businesses providing “essential services,” such as healthcare providers, grocery stores, and restaurants, remain open, they likewise face myriad challenges. As the coronavirus pandemic escalates, so does uncertainty and risk. Adding insult to injury, litigation tends to increase in times of crisis. The coronavirus has already disrupted the workplace; it will undoubtedly continue to do so, implicating numerous employment laws that could give rise to unprecedented legal claims.

Click here for additional information, including:

  • Claims arising under equal employment opportunity laws
  • Claims for interfering with or denying leave or sick time
  • Potential wage and hour violations stemming from remote work and the economic impact of COVID-19
  • Potential violations of a Collective Bargaining Agreement (CBA)

The Department of Labor just published its first round of guidance on the FFCRA, including two fact sheets and a FAQ explaining key provisions of the paid sick leave and paid child care requirements:

The DOL also published sample FFCRA posters that federal and private employers are required to post in the workplace, as well as a FAQ on how and where to post them. Notably, emailing the posters to remote workers satisfies the posting requirements.

Importantly, DOL has elected to make the paid leave provisions of the FFCRA effective April 1, 2020, instead of the anticipated April 2 date. The DOL also announced a 30-day suspension on enforcement actions if employers attempt in good faith to comply with the FFCRA.

Continue Reading New Guidance and Required Posters Issued by the DOL for Paid Sick and FMLA Leave under the Families First Coronavirus Response Act (FFCRA)

Executive Orders mandating statewide restrictions due to COVID-19 have been issued by the Governors of New York, New Jersey and Connecticut.

New York

On March 20, 2020, New York Governor Andrew Cuomo issued Executive Order 202.8 (“NY EO 202.8”), effective as of 8 pm on March 22, 2020, which requires all non-essential businesses to reduce their in-person workforce by 100% through April 19. NY EO 202.8 is an integral part of Governor Cuomo’s 10-point “New York State on PAUSE” policy, which aims to reduce the impact of the COVID-19 public health emergency through social distancing measures. Governor Cuomo has issued a series of Executive Orders that provide the guidelines for what businesses perform “essential services or functions.” Such services and functions are discussed in detail below. Although the New York restrictions look very similar to what other States are calling “shelter in place” orders, Governor Cuomo has not used this terminology to describe the “New York State on PAUSE” policy.

New Jersey

On March 21, 2020, Governor Murphy of New Jersey signed Executive Order No. 107 (the “NJ Order”), which contains new standards for businesses, effective at 9:00 pm on March 21, 2020. The primary effect of the NJ Order is to encourage residents to remain home by shutting down most retail operations in the state, and by curtailing attendance at non-retail workplaces as much as technology will permit. The NJ Order will remain in effect until revoked or modified by the Governor.

Connecticut

On March 20, 2020, Governor Ned Lamont of Connecticut issued Executive Order 7H mandating all non-essential businesses and nonprofit entities to reduce their in-person workforce at each business location by 100% by March 23, 2020. On March 22, 2020, Governor Lamont issued Executive Order 7J clarifying obligations of non-essential businesses (7H and 7J orders hereinafter referred as the “CT Executive Orders”). The Connecticut Department of Economic and Community Development further issued binding guidelines on essential businesses on March 22, 2020 (the “CT Guidelines”).

Click here to continue reading the alert, which includes the following topics:

  • What Businesses Are Covered By The Executive Orders?
  • What Are The Guidelines For Essential Businesses?
  • What If a Municipal or County Order Does Not List My Business As An “Essential Business”?
  • What Should My Business Do To Demonstrate it is Exempt from the “Shelter-In-Place” Requirement?
  • What If My Business Is Not On The List Of Essential Businesses?
  • Is There A Penalty For Non-Compliance?
  • Are Impacted Employees Eligible For Unemployment Insurance?
  • How Do I Get More Information?

Layoffs, reduced schedules, sick leave, and telecommuting—these are just a few of the issues that employers are navigating as they quickly adapt to the effects of the global pandemic. While moving full speed seems to be the only way to keep up with the rapidly-evolving landscape, companies should take a moment to ensure that they do not unintentionally convert their independent contractor relationships into employment relationships.

As a reminder, a degree of separation between companies and contractors must be maintained to preserve the independent contractor relationship. To determine whether a worker is misclassified as a contractor, the IRS and courts in many states review a multitude of factors, including the level of control exercised by a company; courts in other states (including California, as discussed in this blog post require companies to satisfy a stringent, three-part test to prove that the worker is properly classified as a contractor. Under any standard, an accidental misstep during the Coronavirus crisis could have the unintended consequence of converting a contractor into an employee.

For example, to address the myriad employment issues, companies have been distributing company-wide alerts, such as: employee travel letters for the “Critical Infrastructure Workforce” to carry as they travel in the field and commute to/from work; information and notices regarding Families First Coronavirus Response Act (FFCRA); WARN Act notices; unemployment insurance benefit forms; and the like.

Companies should be mindful to distinguish between contractors and employees when sending out these notices—companies should send notices to contractors couched in language reflective of the independent contractor relationship and applicable independent contractor agreements, and other notices should not be distributed to the contractor workforce at all (e.g., WARN Act notices, unemployment forms, etc.).

During times like this, when it seems like each day presents a new employment-related hurdle, companies should take extra care to ensure that they are properly communicating with their independent contractors.