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Ahead of President-Elect Biden’s inauguration in January, employers have a preview of what is likely to come in the form of stronger union and employee rights. On February 6, 2020, the House of Representatives passed the Protecting the Right to Organize Act of 2019 (commonly known as the “PRO Act”), which contains ambitious changes to the current labor landscape. Changes include expanding the scope of joint employer under the National Labor Relations Act (NLRA), narrowing the definition of “supervisor” under the NLRA, expanding the right to strike to include secondary boycotts among other strikes, and providing additional avenues for workers to participate in collective or class actions. While the Senate has not acted on the bill since it was passed by the House, employers would do well to keep an eye on the revival of the PRO Act or any similar legislation. As an update to our recent blogpost on the PRO Act (here), we highlight two changes below that threaten employers if the PRO Act becomes law.

Banning Class Action Waiver in Arbitration Agreements

The PRO Act amends the NLRA to prohibit any employer attempt to execute or enforce any agreement whereby an employee promises not to pursue any class or collective actions. Notably, this provision in effect would overrule the Supreme Court’s decision in Epic Systems Corporation v. Lewis, 138 S. Ct. 1612 (2018). The Epic Systems Court held that an arbitration agreement waiving the right to proceed collectively under the Fair Labor Standards Act (FLSA) is enforceable, subject to generally applicable contract defenses, such as fraud, unconscionability, or duress. Moreover, the Court held that a class action waiver in an arbitration agreement did not violate employees’ rights under the NLRA. In contrast, the PRO Act’s amendments to the NLRA specifically provide that notwithstanding the Federal Arbitration Act (the federal statute authorizing arbitration agreements), an employer’s attempt to enforce class action waivers in an arbitration agreement would be an unfair labor practice under the NLRA.

Continue Reading PRO Act Likely to Impact Employment Litigation

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The news that a COVID-vaccine is finally becoming a reality presents organizations with the possibility of returning to business as normal. While governments and health organizations are in the throes of planning their vaccination programs and pre-ordering the vaccines, with regulatory approval still pending in most countries, there is uncertainty about the timing, viability and availability of a vaccine.

Widespread availability of the vaccine may still be some way away from being a reality. The WHO’s Strategic Advisory Group of Experts on Immunization (SAGE) suggests priority groups for receiving the COVID-19 vaccine should include frontline health and care workers at high risk of infection, older adults, and those with underlying conditions at high risk of death (e.g. heart disease and diabetes).

Nevertheless, employers around the globe are keen to prepare for the possibility of utilizing the vaccine to protect their workforces, to promote business continuity, and to mitigate the current health and safety risks of a return to the office.

Click here to continue reading the informative alert.

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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 states extended their state-wide orders and/or the duration of the current phase of their reopening plans: Florida, New Jersey, North Carolina and Utah.
  • The following jurisdictions imposed more stringent limitations on gatherings and/or reduced capacities for certain businesses and establishments: Nevada and Washington, D.C. Once again, no states moved to the next phase of their reopening plans.
  • New Jersey is no longer using the former Tri-State travel quarantine list. Instead, travelers from all states except Connecticut, Delaware, New York and Pennsylvania are required to quarantine for 14 days after arriving in New Jersey.

For more information, please contact your Baker McKenzie attorney.

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As expected, on Dec. 1, the CDC released new guidance outlining two ways to shorten the recommended 14-day quarantine period for asymptomatic individuals who may have been exposed to COVID-19.

Two Alternatives To The 14-Day Quarantine Period

The CDC still recommends a quarantine period of 14 days “to completely reduce the risk of spread of COVID-19” because a small percentage of infected people do not develop symptoms until 12 to 14 days post-infection. However, because most people who become symptomatic develop symptoms after four to five days, the CDC now approves of two alternatives to the 14-day quarantine period that provide, according to the CDC, an acceptable risk level of missing infectious cases:

  1. Quarantine can end after Day 10 without testing and if no symptoms have been reported during daily monitoring.
    • With this strategy, residual post-quarantine transmission risk is estimated to be about 1% with an upper limit of about 10%.
  2. When diagnostic testing resources are sufficient and available, quarantine can end after Day 7 if a diagnostic specimen tests negative and if no symptoms were reported during daily monitoring. The specimen may be collected and tested within 48 hours before the time of planned quarantine discontinuation (e.g., in anticipation of testing delays), but quarantine cannot be discontinued earlier than after Day 7. Either a PCR test or rapid antigen diagnostic test is acceptable for ending quarantine early.
    • With this “test-based” early discontinuation strategy, the residual post-quarantine transmission risk is estimated to be about 5% with an upper limit of about 12%.

In both cases, additional criteria (e.g., continued symptom monitoring and masking through Day 14) must be met and are outlined in the CDC guidance linked above.  The test-based early discontinuation method should be used only if it will have no impact on the availability of diagnostic testing in the community.

The CDC issued these new alternatives in recognition of the physical, mental and economic hardships imposed by 14-day quarantines and to encourage greater quarantine compliance (recognizing that individuals are more likely to quarantine for seven days than 14).

New Guidelines Do Not Apply To Certain Individuals

The new recommendations do not apply to individuals who develop symptoms post-exposure or who test positive. Such individuals must continue to isolate (“quarantine” applies to people who are well but who may become ill, while “isolation” applies to those known to be ill) according to current CDC guidance: in most cases, for 10 days after the onset of symptoms and symptoms are improving and at least 24 hours fever-free without the use of fever reducing medications.  The CDC does not currently recommend a test-based strategy for ending isolation for symptomatic or positive individuals, in large part because persons with COVID-19 will continue to test positive long after they are no longer infectious.

Immediate Impact

The immediate impact of this change in the CDC recommendations will be limited. It will take some time for the state, county and city health departments to incorporate the new CDC guidance into their orders and protocols, and many of those orders still require employers to impose a 14-day quarantine on suspected exposures. Some jurisdictions also may choose not to incorporate the new CDC guidance given the small but still significant risk of post-quarantine transmission noted above. In particular, the CDC estimates 20% to 40% of infected persons never develop symptoms but can still transmit the virus, with quarantine being the only effective countermeasure.

Employers also may choose to continue to require a 14-day quarantine, as the CDC guidance makes clear that 14 days is the gold standard. However, the new guidance gives employers options for getting critical workers who may have been exposed back to work earlier than before.  Employers who choose to follow the new CDC guidance where permitted should adjust their employee screening certifications on travel and suspected exposures to account for the new time frames.

Finally, the CDC notes that antibody tests have not been approved as a way of excluding persons from quarantine, but other CDC guidance states that persons who have tested positive for COVID-19 in the three months before a new exposure may not need to quarantine again.

The CDC also released new guidance on post-travel quarantine with similar recommendations for early discontinuation through testing both pre and post-travel here.

For assistance developing your quarantine policies, testing protocols and more, please contact your Baker McKenzie employment attorney.

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Non-union employers historically have been little concerned by labor unrest. They will be in for a rude awakening if the Protecting the Right to Organize Act (PRO Act) is signed into law during a Biden administration. The sweeping rewrite of the National Labor Relations Act (NLRA) occasioned by the PRO Act has serious ramifications for union represented workforces as well. The PRO Act would remove the existing ban on secondary strikes, and remove the ban on recognitional strikes lasting over 30 days. The PRO Act would also legalize the intermittent strike and the partial strike. Additionally, the PRO Act bans the permanent replacement of strikers and prohibits terminating employees who engage in strikes. Below, we discuss several ways the passage of the PRO Act would change the labor landscape.

Continue Reading PRO Act Likely to Bring Labor Unrest to Main Street

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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.

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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 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.

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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.”
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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.

 

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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