The US Centers for Disease Control and Prevention announced this week that it is finalizing new recommendations for shortening the 14-day quarantine period currently recommended for persons potentially exposed to COVID-19. While details on the new recommendations have not been announced, comments by various CDC officials indicate that the quarantine period could be reduced to between 7 and 10 days when combined with negative COVID-19 test results. Dr. Henry Walke, the agency’s incident manager for COVID-19 response, told the Wall Street Journal Tuesday that the agency was reevaluating its recommendations in light of evolving medical knowledge and COVID-19 data. The CDC currently recommends against using test-based strategies to end quarantine or self-isolation early, primarily because persons with COVID-19 may continue to test positive well after they are no longer infectious, and because of the lengthy incubation period for COVID-19.

This news is significant for employers needing to get employees back to work as soon as possible following potential workplace exposures. We expect the new CDC guidance will be published in the next week or two. In the meantime, if you have questions regarding your return to work policies and protocols, please contact your Baker McKenzie employment lawyer.

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 states extended their state-wide orders and/or the duration of the current phase of their reopening plans: Alaska, Kentucky, Oklahoma, Tennessee and Wyoming.
  • The following states imposed more stringent limitations on gatherings, reduced capacities for certain businesses and establishments and/or recommended residents stay at home: Illinois, Iowa, Maine, Maryland, Minnesota, Montana, New Jersey, New Mexico, Rhode Island and Virginia. No states moved to the next phase of their reopening plans.
  • The following states issued new or more stringent face mask requirements: California, Hawaii, Iowa, Kansas, New Hampshire and Wisconsin.
  • New Jersey modified its COVID-19 travel quarantine list to add Vermont. The list currently includes 46 states and territories. In addition, Pennsylvania issued a travel order requiring anyone visiting or returning to have a negative COVID-19 test within 72 hours prior to entering the commonwealth, or quarantine for 14 days upon arrival.
  • In happier news, starting November 24, travelers wanting to bypass Hawai‘i‘s 14-day mandatory quarantine can do so with a COVID-19 test result from a trusted travel partner, prior to departure to the islands.

For more information, please contact your Baker McKenzie attorney.

Here are several employment law changes we will likely see under a Biden Administration:

  • Bloomberg reported that Biden’s Labor Transition Team includes Obama veterans signaling a likely return to Obama-era worker protections.
  • President-elect Biden will likely focus on the ACA and its underlying policies (depending on the outcome of the U.S. Supreme Court’s decision in California v. Texas — based on recent arguments, commentators believe the law might withstand this third challenge).
  • OSHA Protection | Biden also promises to focus on workplace safety amidst the pandemic. We can expect increased enforcement by the Occupational Safety and Health Administration, more whistleblower protections for workers and an immediate declaration of an emergency temporary standard to combat the coronavirus pandemic is likely.
  • Likely uptick in wage and hour litigation.
    • Expanded definition of joint employer | In March 2020, the Trump DOL adopted a final rule narrowing the definition of “joint employer” thereby limiting the circumstances under which multiple companies could be deemed to “employ” the same workers. A Biden Administration would likely reverse this thereby making it more likely companies could be liable as joint employers.
    • More risks for independent contractor classifications | In September 2020, the Trump DOL proposed a rule broadening the “independent contractor” test thereby making it easier for companies to classify workers as independent contractors under the Fair Labor Standards Act (“FLSA”). A Biden Administration would likely undertake new rulemaking to rescind the independent contractor rule or adopt new regulations that provide more worker-protective interpretations of employee status under the FLSA.
  • Government Contractors and D&I Training | President-elect Biden probably will revoke President Trump’s October “Executive Order on Combating Race and Sex Stereotyping.” This EO restricts the federal government, federal contractors, and certain federal grant recipients from conducting specific types of diversity and unconscious bias training.
  • Return of the revised EEO-1 Form collecting compensation data and more enforcement of pay equity measures | This federal initiative began during the Obama years, and ended under the Trump administration. It seems likely that the Biden Administration will address pay equity legislation passed at the federal level (depending on the constitution of the senate).
  • Increased national minimum wage | Biden’s platform calls for a $15 federal minimum wage. The Biden Administration also will seek to eliminate the reduced minimum wage for tipped employees (i.e., the tip credit) and likely will seek an increase in the minimum salary to qualify as an exempt employee under the FLSA.
  • At the NLRB, Biden’s platform commits to encouraging and incentivizing unionization and collective bargaining. He’s promised to create a cabinet-level working group that includes representatives from labor. In the first 100 days of the Administration, the working group will deliver a plan to increase union density and address economic inequality.
  • President-elect Biden is expected to support paid leave benefits for employees. Biden supports 12 weeks of paid leave for all workers to care for their newborns, newly adopted or fostered children, for their own or a family member’s serious health condition, or to care for injured service members or deal with “qualifying exigencies arising from the deployment” of a family member in the Armed Services.
  • A return to challenges on mandatory arbitration agreements. Biden’s platform promises he will enact “legislation to ban employers from requiring their employees to agree to mandatory individual arbitration and forcing employees to relinquish their right to class action lawsuits or collective litigation, as called for in the PRO [Protecting the Right to Organize] Act.”

Special thanks to Matthew Gorman, Stephanie MacIntosh and Ginger Partee

In part one of our global video series on employee mobility in the current environment, our attorneys discuss the challenges of employee travel into and out of the US and Canada during the upcoming holiday season. We cover immigration complications due to COVID, including travel restrictions, flight restrictions, and consular closures, and provide practical actions in-house counsel and HR executives can take now to protect your employee populations.

Click here to access the video.

 

After the fastest reported increase in coronavirus cases since the start of the pandemic- with new infections doubling in the past 10 days-California Governor Newsom “sound[ed] the alarm,” announcing on November 16 that 40 counties are moving in the wrong direction under the state’s reopening plan. Twenty-eight counties moved into the state’s most restrictive purple tier under California’s Blueprint for a Safer Economy, signifying that the coronavirus is “widespread.” Now, 41 of the state’s 58 counties are purple, a stark contrast from only 13 purple tier counties last week.

Several Bay Area and Southern California counties are affected:

  • Alameda, Contra Costa, Santa Clara, Napa and Solano counties are reverting to the purple tier, while San Francisco, Marin and San Mateo counties are stepping back into the second-most restrictive red tier (indicating “substantial” virus spread).
  • Orange and Ventura counties-which improved to red in September and October, respectively-are retreating to purple, joining Los Angeles, Orange, Riverside, Ventura, Santa Barbara, and San Bernardino counties in the purple tier.

California employers and employees are already feeling the effects. Purple status severely limits indoor activity, including:

  • Restricting capacity at retail establishments and malls (open indoors at 25% capacity);
  • Moving fitness centers, family entertainment, and movie theaters to outdoor only;
  • Limiting restaurants and wineries to limited outdoor-only service;
  • Closing bars and breweries;
  • Requiring schools to remain online only; and
  • Requiring non-essential offices to work remotely.

With 94% of the state’s population now in the purple tier, talk of curfews, and restrictions being one step away from the stay-at-home orders that swept the US in March, the scaled back reopening undoubtedly will have devastating economic impacts on businesses and their employees.

Continue Reading California “Sounds the Alarm,” Stepping Back into Purple and Issuing a Travel Advisory

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 states extended their state-wide orders and/or the duration of the current phase of their reopening plans: Connecticut, Georgia, Illinois, Iowa, Mississippi, North Carolina, South Carolina, Vermont and Wyoming.
  • The following states moved back to the prior stage of their reopening plans, recommended residents stay at home and/or closed non-essential businesses: Idaho, Massachusetts, New Mexico and Wisconsin. In addition, West Virginia imposed a mask mandate requiring all people to wear a mask in public places.
  • The following states issued new or revised orders or guidance that restrict social gatherings, impose capacity limitations and/or restrict indoor dining at bars and restaurants: California, Maryland, Michigan, Minnesota, Nebraska, Oregon, New Jersey, North Dakota and Washington.
  • Connecticut and New Jersey modified their COVID-19 travel quarantine list to add Maine and New Hampshire. The list currently includes 45 states and territories. In addition, California, Oregon and Washington have issued a travel advisory recommending a 14-day quarantine for all persons arriving from other states or countries.
  • Lastly, in a clear move to limit the spread of the virus over the Thanksgiving holiday, California’s revised guidance limits gatherings to two hours or less and prohibits singing and shouting at indoor gatherings, while Michigan’s revised guidance limits indoor residential gatherings to two households at a time and strongly urges families to pick a single other household to interact with over the next three weeks.

For more information, please contact your Baker McKenzie attorney.

Parties before the National Labor Relations Board (“NLRB” or the “Board”) often wonder whether it is worthwhile to appeal adverse rulings or respond when favorable rulings are received. Two recent appellate court decisions demonstrate the value of sticking with an argument from start to finish.

A Winning Formula

First, in Davidson Hotel Company v. NLRB (D.C. Cir. 2020), the D.C. Circuit recently took the highly unusual step of rejecting an NLRB determination as to the appropriate unit for bargaining at a small, full-service hotel in Chicago. For context, the NLRB had determined that the Davidson Hotel’s employees should be segregated into three separate bargaining units: a unit of front desk employees, a unit of housekeeping employees, and a unit of food and beverage employees. The union petitioned the Board to certify a single unit of housekeeping employees and food and beverage employees.

The Board’s Regional Director decided that a unit consisting of the housekeeping and the food and beverage employees was not an appropriate unit because it did not include the front desk employees, and he dismissed the union’s petition for an election. The Regional Director reached his decision by applying the NLRB’s “community of interest” test, under which the NLRB examines: (1) whether employees in the proposed unit have sufficient commonality in working conditions and job duties (among other factors) such that bargaining as a collective group is possible; and (2) whether employees in the unit have such distinctive interests from those who are excluded-here, the front desk employees-such that they should bargain separately. In his order dismissing the union’s initial petition for a single bargaining unit of housekeeping and food and beverage employees, the Regional Director decided that the unit did not have distinctive interests from the front desk workers, but he hinted that two separate units (one for housekeeping and another for food and beverage) might be appropriate.

Following his cue, the union promptly filed two petitions seeking one election in the housekeeping unit and a second election in the food and beverage service unit. Again, the union did not seek to represent the front desk employees. This time, the Regional Director found that the community of interest test was satisfied and he certified the two units. When an election was held, the union prevailed in both units.

Continue Reading A Tale of Two Appeals: Recent Appellate NLRB Decisions Show the Value of Sticking with an Argument

Special thanks to Liliana Hernandez-Salgado and Maria del Rosario Lombera for this update.

On November 12, 2020, the President of Mexico, Andres Manuel López Obrador, sent a draft bill to dramatically change subcontracting (outsourcing) regulations applicable to private companies. If approved by Congress, the bill will significantly impact companies with outsourcing and insourcing (with dual corporate structure) structures.

The draft bill bans the subcontracting of personnel (assignment of personnel in benefit of another party) for activities related to the corporate purpose or economic activity of the beneficiary of the services. Under the proposed legislation, penalties for breaching subcontracting regulations will increase significantly and criminal liability could also arise. If passed, the law would also have significant social security implications and employers who fail to comply with these regulations would not be able to deduct taxes or to credit the value added tax on the service fee.

Employers should closely follow developments on this draft bill and start analyzing their current structures and operations in Mexico. Our Labor & Employment team in Mexico will keep you informed and can assist companies with navigating these substantial changes.

As the clock strikes midnight on New Year’s Eve 2020, sweeping amendments to California’s Family Rights Act (CFRA) will take effect. Both the federal Family and Medical Leave Act (FMLA) and the current version of CFRA entitle eligible employees to take up to 12 weeks of unpaid, job-protected family or medical leave during a 12-month period. This statutory leave right provides employees with time off from work for the birth, adoption or foster care placement of a child, to care for an immediate family member (spouse, child or parent) with a serious health condition, or when the employee cannot work because of a serious health condition.

Effective January 1, 2021, however, not only will the CFRA apply to more employers (covering employers with as few as five instead of the current 50 employees), but CFRA’s expanded definition of “family members” also will authorize certain employees to take a total of 24 weeks of family and medical leave, effectively doubling the currently available 12 weeks of leave available, in each 12-month period.

We highlight the key changes to the CFRA and employer considerations below.

Continue Reading Sweeping Changes to the CFRA Could Entitle Employees to Double the Leave

Special thanks to Kevin Coon and Sanjay Khanna

Amidst the planetary emergency of climate change, the COVID-19 pandemic is testing modern civilization’s preparedness for shocks across spheres of finance, economics and technology; global, national and regional governance; global and population health; social cohesion and food security. While the vast majority of businesses around the world are today in the throes of the immediate impacts of the pandemic, it is important to state that the consequences of this abrupt global change will reverberate beyond the coming decade, much like the repercussions of the 2007-10 financial crisis.

After acute phases of the COVID-19 response are complete, business leaders must ask what they can do to emerge from the COVID-19 pandemic. How can they position themselves to succeed in a turbulent world for which there are limited strategic advisory, operational, organizational, or social resources to aid effective and comprehensive adaptation?

Download our report for industry insights and the potential implications for legal teams resulting from the COVID-19 pandemic.

Click here to download the publication.