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Special thanks to co-author, Monica Kurnatowska.

A convergence of forces is changing the public face of the boardroom: the increasing amount of data showing how inclusion and diversity improves performance, impassioned protests for gender equality, the impact of the Black Lives Matter movement, pressure from investors and shareholders, and legislation. While gender diversity has been a focus for some time now, the importance of racial and ethnic diversity in the boardroom has started to dominate the conversation.

Our new thought leadership paper, Board Diversity – A Corporate Imperative, outlines the latest laws around the world in relation to diversity quotas, transparency and disclosure, and managing diversity data.

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For a company to effectively expand its global footprint, it’s almost always necessary to engage workers on the ground. The legal risks and opportunities in structuring these relationships differ significantly around the world, and the complexity is further compounded by the intersection with other areas of law, including tax, corporate, intellectual property and employment, to name a few.

Join us Thursday, May 27, 2021 from 1:00 – 2:00 pm PT as we explore the key legal compliance issues that companies need to consider before choosing a PEO / EOR model to engage workforces globally.

Click here to view the webinar invitation and register. We look forward to your participation!

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On May 18, 2021, Santa Clara County became among the first jurisdictions in the world to issue an Order requiring employers to determine if employees are vaccinated. Santa Clara County employers will need to move quickly, because the Order requires compliance within two weeks.

Here’s what Santa Clara County employers need to know now to comply with the Order:

  • The new Order requires all businesses and governmental entities to determine the vaccination status of their employees, onsite contractors and volunteers
  • The Order goes into effect May 19, 2021, when the county enters into the Yellow Tier of the State’s Blueprint for a Safer Economy
  • Employers have two weeks to comply with the vaccination information collection requirement
  • Santa Clara County has posted a template self-certification form that employees can use to disclose their vaccination status or confirm that they are declining to do so
  • Penalties for employers who fail to comply with the new requirement can be as much as $5,000 per violation per day

The County Health Department also published FAQs addressing employers’ ascertainment of employees’ vaccination status (linked here and reprinted in full, below) to help employers navigate the new Order.

ASCERTAINMENT OF VACCINATION STATUS

Why are businesses and governmental entities required to ask about and record the vaccination status of their workers?

Vaccines are the most effective way to reduce transmission of COVID-19, and to prevent people from getting sick or dying from COVID-19.  The rules that businesses and governmental entities have to follow to protect workers from COVID-19 are different depending on whether a worker is vaccinated or not. Businesses and governmental entities need to know the vaccination status of their workers so they can follow the rules, and so they can keep their workers, customers, and the community safe.

What should businesses and governmental entities do to determine vaccination status of their workers?

Businesses and governmental entities must determine whether each of their employees (and any contractors or volunteers working in their facilities) is fully vaccinated or not. Businesses and governmental entities must have a record for each staff member reflecting that person’s vaccination status.  The record may document a business’s or governmental entity’s review of documentation establishing vaccination status (e.g., the employee’s vaccine card), or the employee’s completed Self-Certification of Vaccination Status. A template Self-Certification of Vaccination Status is available here.

I have a worker who won’t tell me whether they are vaccinated? What do I do?

You must document that the worker declined to disclose his or her vaccination status, assume that they are not fully vaccinated, and follow all the rules that apply to workers who are not fully vaccinated.

What is the deadline for determining the vaccination status of my workers?

You must request and document the vaccination status of all personnel no later than June 1, 2021.  For workers who were not fully vaccinated or declined to disclose their vaccination status, you are required to request updated vaccination status every 14 days thereafter (e.g., June 15, June 29, July 13, etc.).

Do businesses have to keep records of who is vaccinated and who is not?

Yes. Businesses and governmental entities must maintain records of who is vaccinated and who is not until the provision of the Order requiring ascertainment of vaccination status is no longer effective. Businesses and governmental entities must follow applicable rules related to the confidentiality of these records.

What happens if I don’t ask about the vaccination status of my workers?

Because businesses and governmental entities have to follow different rules for vaccinated as opposed to unvaccinated employees, all businesses must determine the vaccination status of their employees. Any business that fails to ask about and record the vaccination status of its workers is subject to enforcement, and may be required to pay fines of up to $5,000 per violation per day.

Do I have to ask about and record the vaccination status of my workers if they are working remotely?

You are required to determine the vaccination status of all workers who perform any work at a facility or worksite in the county. You are also strongly encouraged, but not required by the Order, to determine vaccination status for all other personnel.

The new Order retires many of the requirements of the County’s prior October 5, 2020 Revised Risk Reduction Order. Businesses are no longer required to maximize remote working or submit Social Distancing Protocols to the County Public Health Department. In addition, the local rules on capacity limitations have been eliminated (but companies should consult the State Blueprint for a Safer Economy and the State’s Industry Guidance to Reduce Risk for information on what is allowed in counties in the Yellow Tier).

The new Order also provides a few new focused requirements related to vaccination, face coverings, and case reporting. In addition to requiring that employers determine the vaccination status of their employees (and onsite contractors and volunteers), the new Order requires:

For assistance navigating this or other COVID-19 health and safety orders, contact your Baker McKenzie employment attorney.

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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: Maryland, New Hampshire, Rhode Island and Wyoming.
  • The following jurisdictions eased restrictions, mask requirements and/or advanced to the next phase of their reopening plan: Idaho, Illinois, Kentucky, Maine, Maryland, New Jersey, New York, North Carolina, Pennsylvania, South Carolina, Utah, Vermont, Virginia and West Virginia.
  • There are no longer any requirements for domestic travelers to provide proof of a negative test or to quarantine upon entry into Maine or New Hampshire.

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.

 

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Companies are facing critical business challenges in regard to their most important asset – their people. While workforce transformation is not a new concept for global organizations, the pandemic has forced us to rapidly adapt our standard ways of working and how we engage with employees to ensure the long-term viability of the business. We have a new understanding of what’s possible – from remote working to flexible employment models – and an opportunity to shape organizations for the future. There has never been a more critical time to innovate and revolutionize working practices.

In February through March 2021, we held our fifth FutureWorks conversation series, bringing together inspiring employment leaders from around the globe to analyze how organizations can embrace the large-scale trends changing the nature of work itself amid disruptive global events.

From our discussions, we have distilled the key messages and insights into an easy-to-digest summary to learn more about the key trends affecting the future of work and their impact on your multinational workforce.

• Building a New Workforce Reality
• Integrating Resilience into the Workforce Strategy
• Workforce Wellbeing, Psychological Health, and Pandemic Times
• The Future is Diverse: Harnessing the Power of Inclusion
• Reconceptualizing the Important of Place
• Leading the Digital Workforce
• Beyond COVID-19: Guidance for Multinational Employers

Click here to read the full report.

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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.

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Special thanks to guest contributor Brian Hengesbaugh.

Baker McKenzie’s Labor and Employment and Data Privacy and Security lawyers discuss best practices for collecting and storing employee vaccination records and tracking proof of employee vaccination status.

Click here to watch the video.

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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.

 

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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.

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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.