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.

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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.

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This article was originally published in Law360.

Parents and employers are both challenged by this conundrum. This week we discuss the complications that arise for employers as students return (and do not return) to virtual and in-person campuses, and practical tips for navigating obligations under state and local leave laws, FFCRA and more.

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

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 Ohio, Oklahoma, Rhode Island, South Carolina, Utah, and Vermont.
  • The Governors of New Mexico and Oklahoma rolled back certain re-opening measures, mainly with respect to the opening of bars and indoor dining.
  • The Governors of Louisiana, Michigan, Maine, New Jersey, and West Virginia issued new orders requiring face masks to be worn in certain public and/or indoor spaces.
  • Several states or regions proceeded to the next phase of their reopening plans, including New York (for certain regions) and South Dakota
  • Connecticut, New Jersey, New Mexico, and New York, and the City of Chicago have either instituted an order requiring people entering from states with high cases of COVID-19 to self-quarantine upon arrival or expanded such orders.
  • The Governor of Kansas has paused the state’s reopening plans.

For more information, please contact your Baker McKenzie attorney.

On July 2, 2020, the US Department of Labor’s Occupational Safety and Health Administration (OSHA) supplemented its prior COVID-19 guidance (Guidance on Preparing Workplaces for COVID-19 and Guidance on Returning to Work) with additional FAQ guidance covering topics such as best practices to prevent the spread of COVID-19 infection in the workplace, workplace testing, and worker training. Though the guidance is not a standard or regulation itself (and therefore creates no new legal obligations for employers), it provides practical answers to actual inquiries OSHA received from the public regarding COVID-19 and workplace safety, and refers to pertinent Centers for Disease Control and Prevention (CDC) guidance and applicable OSHA standards for employers to consider.

OSHA grouped the FAQs by topic for easy navigation. Several of the key FAQs for employers are summarized below.

General Information

What precautions can employers in non-healthcare workplaces take to protect workers from COVID-19?

Employers should assess worker exposure to hazards and risks and implement infection prevention measures to reasonably address them consistent with OSHA Standards. Such measures could include:

  • Promoting frequent and thorough handwashing or sanitizing with at least 60% alcohol hand sanitizer;
  • Encouraging workers to stay at home if sick;
  • Encouraging use of cloth face coverings;
  • Training employees on proper respiratory etiquette, social distancing, and other steps they can take to protect themselves;
  • Considering using stanchions, temporary barriers, shields, and spacing out workstations to help keep workers and others at the worksite at least 6 feet away from each other;
  • Cleaning and disinfecting frequently touched surfaces (e.g., door handles, sink handles, workstations, restroom stalls) as much as possible, but at least daily.

Employers subject to OSHA’s PPE standard must also provide and require the use of personal protective equipment (PPE) when needed, and must conduct job hazard assessments to determine the appropriate type and level of PPE required.

The US Department of Labor and US Department of Health and Human Services’ Guidance on Preparing Workplaces for COVID-19 and OSHA’s Prevent Worker Exposure to COVID-19 alert provide more information on steps all employers can take to reduce workers’ risk of exposure to SARS-CoV-2. Learn more about preventing the spread of COVID-19 from OSHA and CDC.

Cleaning and Disinfection

How should I clean and disinfect my workplace?

Employers should review the CDC’s updated information about cleaning and disinfecting public spaces, workplaces, businesses, schools, and homes.

Continue Reading OSHA Publishes New FAQ Guidance on COVID-19 in Response to Public Inquiry

Employers in the US are more than a little fearful of COVID-19 related class and collective action lawsuits coming their way, and with good reason. Since shelter-in-place orders were imposed in March, US employers have faced class action lawsuits for a variety of COVID-19 related reasons, including the alleged failure to implement proper workplace safety measures or provide appropriate paid sick leave. To keep workers safe from contracting the virus at work, many employers have allowed employees to continue to work from home indefinitely, which likely decreases the odds that an employer will be sued in class action litigation for failing to provide appropriate PPE in the workplace. However, managing employees working from home can create other issues worthy of class-action litigation, including reimbursing those employees for work-related expenses.

What can employers do to ensure they meet reimbursement requirements to steer clear of expense reimbursement class action lawsuits in the US? Go through the four considerations, below.

  1. Know the rules that apply in your jurisdiction

Several jurisdictions have specific rules regarding employee expense reimbursements, so you’ll need to check your local law. In California, an employer must reimburse an employee for all “necessary expenditures or losses incurred by the employee in direct consequence or discharge of his or her duties.” Cal. Lab. Code § 2802. Similarly, Illinois requires reimbursement of all “necessary expenditures or losses” an employee incurs within the scope of employment that are “directly related to services performed for the employer,” unless the employer has a written reimbursement expense policy and the employee fails to comply with that policy. 820 ILCS 115/9.5. And in the District of Columbia, employers must pay the cost of purchasing and maintaining any tools that the employer requires to perform the employer’s business. D.C. Mun. Reg. tit. 7, § 910.1. If you have operations in several jurisdictions, make sure that you know and follow each applicable jurisdiction’s rules.

In addition, the Fair Labor Standards Act (FLSA) may apply. Though the FLSA does not require employers to reimburse their employees, under the FLSA “kickback” rule, employees cannot be required to directly pay business-related expenses or reimburse their employer for such expenses if doing so would cause the employee’s wage rate to fall below the required minimum wage or overtime compensation thresholds. See 29 C.F.R. § 531.35. Remote workers typically earn well-above the federal minimum wage ($7.25 per hour), so employers don’t need to be as concerned about business expenses causing those employees’ wages to dip below the federal minimum wage. However, employers should be on the lookout for these situations, which require more attention:

  • Where employees are subject to overtime for working more than 40 hours in a workweek;
  • Where a particular pay threshold (whether under federal or state law) must be met for the employee to meet an exemption from overtime (in which case the employee will become nonexempt and must be paid overtime for any work over 40 hours in a workweek); or
  • Where state or local minimum wages are higher (such as Chicago’s $14 per hour or California’s $12 per hour), making it more likely that an employee’s payment of business-related expenses would cause their wages to dip below the minimum wage.

A violation of the FLSA occurs in any workweek in which the cost of the business-related expenses borne by the employee cuts into the minimum or overtime wages required to be paid to the employee. Therefore, employers can more easily run afoul of the FLSA in these scenarios, especially if the business-related expenses paid in any given workweek happen to be hefty.

Continue Reading Want to Avoid Employee Reimbursement Class Actions for Remote Work? Take These Four Steps

As we approach our 20th video chat in this series, we hope you have found these quick and bite-sized video chats with our employment partners helpful and informative. These Q&A-styled sessions offer targeted insights into the most timely and critical issues that US employers are facing as they navigate the COVID-19 pandemic. Combined with our client alerts, webinars, podcasts and Shelter-In-Place / Reopening Tracker, we strive to help you stay ahead of the curve and prepared for what’s next.

“In case you missed it” . . .  this week, we discuss the current requirements, realities and challenges raised by COVID-19 testing and screening in the workplace.

Please click below to watch this week’s video chat:

Employee Testing & Screening Update

A CEO who becomes entangled in human resources functions by terminating an employee in a distant locale could expose himself to personal jurisdiction (and personal liability) there, the D.C. Circuit Court of Appeals recently held in Urquhart-Bradley v. Mobley, No 19-7716 (D.C. Cir. June 30, 2020).

The message to executives is clear: a termination conversation could count as sufficient contacts for purposes of personal jurisdiction, even if the employee being terminated is in another state and even if the conversation itself was via telephone and not in person. In Urquhart-Bradley, a panel of the D.C. Circuit Court of Appeals (Srinivasan, Chief Judge, Garland, and Millett, Circuit Judges) joined a list of courts that have refused to apply the “fiduciary shield” doctrine, which provides that a nonresident corporate agent generally is not individually subject to a court’s jurisdiction based on acts undertaken on behalf of the corporation. Where the fiduciary shield does not apply, employers are cautioned to leave termination conversations to HR or in-house counsel to keep executives from being haled into court in another jurisdiction.

Continue Reading Message From Courts To CEOs: Stay In Your Lane

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 orders, including Alabama, Georgia, Mississippi, New Mexico, Ohio, South Carolina, Tennessee, Washington, Wyoming.
  • The Governors of California, Delaware, Michigan, New Jersey and New York rolled back certain re-opening measures, mainly with respect to the opening of bars and indoor dining.
  • The Governors of Kansas, Oregon, Texas and Washington issued new orders requiring face masks to be worn in certain public and/or indoor spaces.
  • Several states or regions proceeded to the next phase of their reopening plans, including Indiana, New York, Pennsylvania and Virginia.

For more information, please contact your Baker McKenzie attorney.