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Yesterday evening, the President signed a Proclamation expanding the restrictions outlined in the April 22 Proclamation in an effort to protect the U.S. workforce amidst the economic downturn related to the ongoing COVID-19 pandemic. The Proclamation suspends the entry of any individual pursuant to H-1B, H-2B, L, and J nonimmigrant status, and their dependents (H-4, L-2, and J-2), until December 31, 2020. The Proclamation applies to individuals who are currently outside of the United States and are not in possession of a nonimmigrant visa or other official travel document valid as of June 24, 2020. In addition, the Proclamation extends the restrictions on the issuance of immigrant visas outlined in the April 22, 2020 Proclamation through December 31, 2020. This Proclamation contains a range of exceptions, which are detailed below.

The Proclamation is separate from Embassy and Consulate closures and COVID-19 related restrictions on travel to the US from certain countries, which continue to remain in effect. Yet, those measures must be read in conjunction the latest Proclamation. The June 22 announcement imposes further restrictions on the movement of foreign national employees into the United States that likely has a wider impact on US employers than the April 22 Proclamation.

Continue Reading Latest COVID-19 Related Presidential Proclamation on US Immigration Expands Restrictions and Impacts Nonimmigrant Visa Applicants Abroad

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Across the country, minimum wage rates will increase July 1 in several counties, cities and states. A few jurisdictions have postponed their scheduled increases in light of the COVID-19 global pandemic, but most jurisdictions have not, and employers will need to implement the higher minimums by month’s end. Below we summarize for you the upcoming increases.

California

The Bay Area cities of Hayward and San Carlos voted to delay their local minimum wage increases until January 1, 2021. Other jurisdictions are considering delays, but for now, local minimum wages will increase in the following jurisdictions effective July 1, 2020.

Continue Reading Minimum Wage Increases in July 2020: Are You Prepared?

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On June 19, 2020, the IRS released Notice 2020-50 (the Notice) which provides additional guidance on tax-favored distributions from retirement plans and expanded plan loan relief under the “Coronavirus Aid, Relief, and Economic Security Act” (the CARES Act).

As noted in our prior alert, the CARES Act provides that during the period January 1, 2020 to December 30, 2020, “qualified individuals” may take coronavirus-related distributions of up to $100,000 from their eligible retirement plans. A qualifying coronavirus-related distribution is not subject to the 10% additional tax on early distributions that would otherwise normally apply to distributions made before an individual reaches age 59 ½. In addition, a coronavirus-related distribution can be included in income ratably over the three-year period commencing with the year of distribution and the individual taking the distribution has three years to repay the distribution to the plan, if they so choose, which has the effect of reversing the tax income tax consequences of the distribution.

In addition, the CARES Act provides that plans may implement relaxed rules for qualified individuals relating to retirement plan loan amounts and repayment terms. Specifically, plans may suspend loan repayments that are due from March 27 through December 31, 2020, and the dollar limit on loans made between March 27 and September 22, 2020, is increased from $50,000 to $100,000.

Continue Reading Additional Guidance for Coronavirus-Related Distributions and Loans

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Last week the D.C. Circuit Court of Appeals reversed a National Labor Relations Board’s decision involving Weingarten rights, the application of its Wright-Line analysis, and a witness credibility determination. These core principles are no doubt headliners of the NLRB’s Big Top. In one fell swoop, the lion bit the lion tamer, the elephant tossed the mahout, and the trapeze artist lost his grip and came crashing down. Circus Circus Casinos, Inc., v NLRB, No. 18-1201 (June 12, 2020). This is the second recent decision tightening the Wright-Line analysis and will likely result in fewer discharged employees being reinstated. See our August 2019 Alert. “NLRB Holds Pretext Finding Standing Alone Insufficient.”

Continue Reading NLRB Tumbles From High-Wire in Circus Circus Dispute

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The COVID-19 pandemic is forcing companies to re-examine their work from home or remote work policies. There is no one size fits all plan. Many companies have moved rapidly to a remote workforce during the pandemic, often with employees relocating to (or been stranded in) locations outside of their normal worksites. For some, remote work has been so successful that they are contemplating making the change permanent.

As with any disruptive change, companies must navigate existing legal considerations and predict future regulation in order to succeed. We help clients identify the issues, design a compliant program, and tailor policies that meet business needs.

Download the full brochure here.

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As companies begin to reopen, a new trend has emerged – the idea of permanently remote employees. During this 15-minute moderated discussion, we will explore cross-border issues and challenges US employers face with employees working remotely from locations outside their home countries.

Click here to view the video chat on demand.

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We are please to share with you The Global Employer – Global Immigration & Mobility Quarterly Update which is a collection of immigration and mobility alerts from around the world.

Please click here to view.

 

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On June 11 and June 17, 2020, the EEOC updated “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” its Q&A technical assistance guidance for COVID-19 related issues. The new guidance expands its previous guidance, answering additional questions on several topics, including COVID-19 antibody tests, “high risk” employees (which we blogged about here), accommodations for employee screenings, how to handle national origin discrimination, and whether an employer’s safety concerns permit the exclusion of pregnant or older people from the workplace. We have summarized the new Q&A below.

Disability-Related Inquiries and Medical Exams

A.7. CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace?

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.

Continue Reading More on the Return to Work: the EEOC Issues New COVID-19 Related Guidance

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Even though vacation plans may be hampered by face coverings and social distancing this summer, US employers are still likely to see requests for time off from employees who want to step away from sheltering-in-place and visit reopening regions. But while employers may agree that their employees should take a break from work, they shouldn’t agree to putting other employees or customers at higher risk of catching COVID-19 when a traveling employee returns.

What can US employers do-without crossing the line-to keep tabs on vacationing US employees? We address some common questions in the following Q&A.

Q.  Can I ask my employees about their travel plans when they request vacation time? Or can I ask them where they went when they return from vacation?

A.  Yes, you can ask employees requesting vacation time to disclose their travel plans (or ask employees where they traveled once they return). The key is to make sure the information you’re requesting is in accordance with business necessity and that you are asking for the information in a non-discriminatory manner.

Business necessity: Employers have a general duty under Section 5(a)(1) of the Occupational Safety and Health Act to ensure that the workplace is free from recognizable hazards likely to cause death or serious physical harm. Keeping the workplace and employees free from cases of COVID-19 provides the business justification employers need to ask where employees are going during their time off. If your workforce is still working remotely, you have a business justification to make sure your employee travels with a company laptop or other necessary equipment should the employee become stranded or be required to quarantine upon return. Employees may want to know why you’re asking about their personal vacation plans; be prepared to explain why you’re asking.

Continue Reading What the Traveler Saw: Handling Employee Vacation Requests During COVID-19

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As the global economy begins to reopen, employers must now plan for the complex issues presented by mobile employees. During this 25-minute moderated discussion focused on Spain, the Netherlands and the UK, our Global Immigration & Mobility lawyers from Madrid, Amsterdam & London explore the current landscape and anticipated challenges employers will face with business travel and the related immigration process.​

Click here to listen to the video chat on demand.