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Due to the pandemic, employees in the US are working from home in unprecedented numbers. Some, particularly in tech, may be working from home through the end of the year, or even permanently! While working from home raises a myriad of issues (e.g., data privacy and security, health and safety, employee engagement, and more), this post focuses on expense reimbursements related to telecommuting. The trickiest areas are cell phones and internet given that employees are now working from home because they cannot go into the office, as opposed to perhaps at their convenience.

Reimbursement Obligations

There is no federal requirement to reimburse employees for business-related expenses. However, several states (including California, the District of Columbia, Illinois, Iowa, Massachusetts, Montana and New York) have legislation requiring reimbursement for necessary businesses expenses. For example, California Labor Code Section 2802(a) requires an employer to “indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer….” Failing to reimburse employees can lead to class or collective actions and quickly become incredibly burdensome for employers. Under California law, an employer that does not reimburse employees risks a lawsuit where the damages will include not just the unreimbursed expenses but the attorney’s fees incurred by the employee seeking reimbursement. The employee can also ask the Labor Commissioner to cite the employer or anyone acting on the employer’s behalf under Labor Code Section 2802(d). Where the practice is widespread (or just alleged to be) the claims can be brought on a class-wide basis.


Continue Reading Reimbursement Refresher: Cell Phone and Internet Expenses Related to Telecommuting in the US

Are you ready to protect employees at higher risk for severe illness from COVID-19 as you reopen? That’s a question the CDC asks in its recently-released guidance for employers considering reopening. And the EEOC recently issued three new Q&As in the “Return to Work” section of its technical assistance guidance for COVID-19, instructing employers on managing “high risk” employees in compliance with the Americans with Disabilities Act (ADA). The below Q&A provides direction for employers regarding “high risk” employees returning to the workplace and reasonable accommodations to help keep those employees safer at work.

What is my employee required to do to request a reasonable accommodation if the employee has a medical condition the CDC says could put the employee at higher risk for severe illness from COVID-19?

The employee (or the employee’s representative, such as the employee’s doctor) must let you know the employee (i) needs a work accommodation (ii) for a reason related to the medical condition. The request can be made in conversation or writing, and does not need to use the term “reasonable accommodation” or even reference the ADA. Therefore, to ensure you don’t unintentionally run afoul of the ADA by missing a request for a reasonable accommodation, we recommend you review every communication from an employee (or employee’s representative) stating that the employee has a medical condition requiring a change at work as one that may require a reasonable accommodation. It is also important to train managers to be aware of these requests and to immediately inform HR if an employee mentions needing a change at work because of a medical condition.


Continue Reading From Safer-at-Home to Safer-at-Work: the EEOC Issues Guidance to Help Reopening Employers Manage “High Risk” Employees

On May 6, 2020, Governor Newsom issued Executive Order N-62-20, creating a rebuttable presumption that an employee’s COVID-19-related illness arises out of employment for purposes of obtaining workers’ compensation benefits. This is not the first order of its kind; other states including Alaska, Michigan, Minnesota, Missouri, Utah, and Wisconsin, have imposed similar rebuttable presumptions. However, most of these jurisdictions have limited the rebuttable presumption to first responders. California’s order doesn’t.

At the federal level, House Democrats are looking to follow suit, proposing a similar presumption for certain federal workers under the Health and Economic Recovery Omnibus Emergency Solutions Act (the “HEROES Act”). If enacted as proposed, the HEROES Act would create a presumption that certain federal employees who contract COVID-19 did so in the course and scope of their employment if the employees have a risk of exposure to COVID-19 at work and on-the-job contact with patients, members of the public, or co-workers. A similar presumption would apply to certain maritime workers.  The House passed the HEROES Act by a vote of 208-199 on May 15, 2020, but tremendous opposition is expected when the bill reaches the Republican dominated Senate.

Is California’s order likely to stick?

It’s difficult to tell. California business owners are unhappy with the likely significant increase in workers’ compensation liabilities and the inequity of shifting the cost of employees’ COVID-19 illnesses to employers. Challenges to the California order would not be surprising.


Continue Reading Are You Sure You Contracted COVID-19 at Work? California Thinks So

We hope you found last week’s video chat series helpful and informative. Due to popular demand, we are continuing this series of quick and bite-sized video chats, where our employment partners team up with practitioners in various areas of law to discuss the most pressing issues for employers navigating the return to work.

This series

As companies develop their reopening playbook, health & safety is of course the top line concern. Face coverings have emerged as one of the most popular preventative measures for mitigating the spread of the virus. For employers, questions abound about obligations related to face coverings.

We’ve been helping multinational companies navigate the use of face coverings in the workplace. Here are answers to some of the most common questions in the US:

  • Does the CDC require the use of face coverings in the workplace?

No. At this point, there is no federal requirement that employees wear face coverings in the workplace. The CDC recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies) especially in areas of significant community-based transmission. See here.

The CDC also recommends using cloth face coverings, and not surgical masks or N-95 respirators, which are critical supplies that must continue to be reserved for healthcare workers and other medical first responders.

  • Does OSHA require the use of face coverings in the workplace?

No, except in specific workplaces where there is a higher risk of airborne exposures. OSHA has not required employees to wear masks at work as a result of COVID-19, except in certain settings such as hospitals and other workplaces where Personal Protective Equipment was required before the pandemic.


Continue Reading Face Coverings: Q&A for US Employers

Welcome to Baker McKenzie’s Labor and Employment video chat series! In these quick and bite-sized video chats, our employment partners team up with practitioners in various areas of law to discuss the most pressing issues for employers navigating the return to work.

This series builds on our recent client alert and webinar on reopening for

This webinar recording covers government orders, creating a timeline, workplace safety and prevention strategies, testing and health screening, labor agreements, workforce communication, managing employee concerns, and litigation mitigation.

Please see below the webinar materials as well as additional resources.

Join us Thursday, April 30 for our next COVID-19 webinar as we discuss the challenges US employers will face when bringing employees back into the workplace while maintaining appropriate safety. The webinar will cover eight key considerations for employers to address in planning for a reopening of the workplace.

  1. Government Orders
  2. Timing
  3. Workplace Safety &

With signs that the virus is peaking in the US, and with some state Shelter-in-Place Orders scheduled to be lifted in the coming weeks, employers are turning their attention to planning for how best to bring employees back to work.

As with the initial outbreak, US employers can look to other corners of the world

In the wake of the global pandemic, many companies need to take quick action to reduce costs. This 40 minute webinar, co-hosted by the ACC Southern California Chapter, outlines the various cost-cutting strategies available to employers in the US, and walk participants through the major considerations necessary to minimize legal risk. Our speakers discuss how