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As we reported previously, on March 27, 2020, the Los Angeles City Council passed an ordinance requiring large employers to provide emergency supplemental paid sick leave to employees affected by COVID-19 who work in the city limits. The ordinance was set to take effect upon signing by Mayor Eric Garcetti as emergency legislation.

However, last night, Mayor Garcetti returned the ordinance to the City Council unsigned, instead issuing a Public Order requiring paid sick leave under his emergency authority. Mayor Garcetti applauded the City Council for passing a supplemental paid sick leave ordinance, but found that the ordinance as drafted needed modification to strike a better balance between helping workers who will likely suffer through layoffs if the City imposes excessive burdens and costs upon businesses, and ensuring that City regulations do not unintentionally cause staffing shortages at hospitals and critical health facilities during the pandemic. The Mayor’s Public Order supersedes the March 27 City Council ordinance, and will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.

The Public Order is available here, and we have summarized its key provisions below. It creates new exemptions for employers with more generous leave programs, and gives credit for paid leave during closures.

Covered Employers, Employees and Required Leave

The Public Order applies to employers with (i) 500 or more employees within the City of Los Angeles or (ii) 2,000 or more employees within the United States.  Employers who do not meet these criteria are not required to provide sick leave – a change from the City Council ordinance that would have applied to employers with 500 or more employees anywhere in the U.S.

Continue Reading Los Angeles Mayor Issues Executive Order Modifying LA Emergency Paid Sick Leave Ordinance

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With thanks to our Global Immigration & Mobility team for this alert. 

The FY 2021 US H-1B Lottery is now complete and employers have been notified whether their requests to file H-1B Cap Subject Petitions were accepted under USCIS’ new electronic preregistration system. While one option may be to file an H-1B Cap registration request on behalf of these employees next year, this option would not provide employment authorization in the short term. Many employees in this situation are likely on US student visas and may be new and/or junior hires who employers want to keep within their company due to their great potential.

For companies that have Canadian or Mexican affiliates, a temporary assignment abroad may provide a means for the company to continue employment in a same or similar time zone and may also provide new paths to US work authorization in the future as an intracompany transfer. While travel restrictions due to COVID-19 may not allow for an immediate assignment, employers should begin conversations now to be ready to act once travel reopens and before US work authorization expires.

Click here to continue reading this Alert.

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Government-imposed stay-at-home orders, essential business designations, the Families First Coronavirus Response Act, and employers’ duty to bargain under the National Labor Relations Act recently collided. To complicate matters, unions have proven very aggressive in their demands for information about employer’s responses to COVID-19.

Many unions have demanded decision bargaining over layoffs, or changes in health and safety rules, claiming, in the case of layoffs, that the employer is furloughing employees, as if rebranding a layoff will trigger a bargaining obligation. Employers managing union-represented workforces with or without collective bargaining agreements will likely be able to thread the needle by carefully reviewing their agreements and their existing practices and by thorough, thoughtful and strategic planning.

Click here to continue reading this Article.

Originally published in Law360.

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On March 31, SBA Administrator Jovita Carranza and Treasury Secretary Steven T. Mnuchin announced that the SBA and Treasury Department have initiated a “robust” mobilization effort of banks and other lending institutions to provide small businesses with $349 billion in much-needed capital pursuant to the Paycheck Protection Program, established by the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). The CARES Act, the largest stimulus package in U.S. history, was signed into law by President Trump on March 27, 2020. The Paycheck Protection Program (the “Program”), established by the CARES Act, will provide relief to small businesses in an effort to help them sustain their businesses and keep workers employed.

The Program will provide small business forgivable job retention loans of up to 2.5 times an employer’s average monthly payroll to cover payroll, rent or mortgage payments,and certain other expenses to keep workers employed. According to Secretary Mnuchin, the Program is expected to be up and running by April 3 so that businesses can swiftly take advantage of the funds by going to a participating SBA 7(a) lender, bank, or credit union, applying for a loan, and receiving approval the same day. Approximately 1,800 lenders are already approved to issue the loans, and applications for the emergency loans can begin as early as this week.

Eligible businesses include (1) those that meet the existing SBA definition of “small business concern” and (2) any business concern, nonprofit, veterans organization, or tribal business concern that employs not more than the greater of: (a) 500 employees or (b) if applicable, the number of employees listed in the size standard established by SBA for the industry in which the business operates. The business also must have been in business on February 15, 2020 and have had employees or paid independent contractors on that date. The Program also eases SBA’s traditionally stringent affiliation rules with three new affiliation waivers for: (i) businesses assigned a NAICS code beginning with 72 (Accommodation and Food Services); (ii) businesses operating a franchise within the SBA Franchise Directory; and (iii) businesses that receive financial assistance from a Small Business Investment Company. Moreover, businesses assigned a NAIC code beginning with 72 at the time of disbursal may still qualify if they have less than 500 employees at each physical location.

To continue reading this Alert, click here.

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With special thanks to Teresa Michaud and Sara Pitt for contributing.

Revised Health Orders were handed down yesterday across the Bay Area (Alameda, Contra Costa, Marin, Santa Clara, San Francisco, San Mateo, and Berkeley Counties), intended to “clarify, strengthen, and extend” the terms of the prior shelter-in-place orders. Each supersedes its prior order, and provides that the county order is intended to implement more stringent county-level restrictions, to complement the “baseline statewide restrictions” set by Governor Newsom’s Executive Order. In addition, where a conflict exists between the county order and any state public health order, “the most restrictive provision controls,” unless the State Health Officer formally determines that a given provision is a public nuisance.

Under the new orders, “Essential Businesses” remain “strongly encouraged” to remain open, but should maximize the number of employees working from home, and may only require employees to work on-site if their duties cannot be performed from home.

Most importantly, the revised county orders require that businesses that include an essential component, along with non-essential components, must (to the extent feasible) scale down their operations to the essential business component only. In addition, “Essential Businesses must follow industry-specific guidance issued by the Health Officer related to COVID-19.”

Continue Reading Revised Bay Area Health Orders Clarify, Extend, and Strengthen Prior Shelter-in-Place Orders

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We hope that you, your families and colleagues are safe and doing well. We know these are difficult and challenging times for everyone, including US employers.  As always, we are here to help you navigate the complexities of our current — and quickly changing — environment.

Click here to view our 40-minute on-demand webinar —
COVID-19: 3 Key Areas for US Employers to Master Now

In this webinar, several of our US based Labor & Employment partners who are deep in the trenches on these issues discuss issues evolving in three key areas:

  1. Prevention & Mitigation
    • Shelter-in-Place / Stay-at-Home Orders
  2. The New Normal
    • Managing incidents of exposure at work
    • Remote Working
    • Understanding and Managing Leaves
  3. Cost-Cutting Strategies
    • Layoffs, furloughs and other options

In addition to the webinar, we have many blog posts, alerts and articles covering COVID-19 related issues. Our team has been busy preparing practical advice to employers in an effort to ease the burden of these trying times.

For more insight, please visit…

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The EEOC recently updated its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act Guidance, first published in 2009, to specifically address the COVID-19 pandemic. The updated guidance is here.

Significantly, the EEOC confirms that the COVID-19 pandemic meets the “direct threat” standard for employee medical examinations and disability related inquiries. Accordingly, employers do not violate the ADA by requiring employees to undergo medical examinations, such as temperature checks, or asking employees disability-related questions, such as whether the employees suffer from underlying health conditions that may make COVID-19 more severe for them. As with all medical information, the fact that an employee has a fever or an underlying health condition is subject to the ADA’s confidentiality requirements.

The EEOC also provided guidance on hiring and screening employees during the COVID-19 pandemic; the Q&A is copied here for your convenience:

  1. If an employer is hiring, may it screen applicants for symptoms of COVID-19?

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.  This ADA rule allowing post-offer (but not pre-offer) medical inquiries and exams applies to all applicants, whether or not the applicant has a disability.

  1. May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?

Yes.  Any medical exams are permitted after an employer has made a conditional offer of employment.  However, employers should be aware that some people with COVID-19 do not have a fever.

  1. May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?

Yes.  According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.

CDC has issued guidance applicable to all workplaces generally, but also has issued more specific guidance for particular types of workplaces (e.g. health care employees). Guidance from public health authorities is likely to change as the COVID-19 pandemic evolves.  Therefore, employers should continue to follow the most current information on maintaining workplace safety.   To repeat:  the ADA does not interfere with employers following recommendations of the CDC or public health authorities, and employers should feel free to do so.

  1. May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?

Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.

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At noon today, San Francisco, Alameda, San Mateo, Santa Clara, Santa Cruz, Marin, and Contra Costa counties extended their Shelter-In-Place Orders until at least May 1, 2020. The original Shelter-In-Place Orders were set to expire on April 7. The joint press release may be found here.

These Orders require all individuals ordered to shelter in place in their residences and for businesses to cease all activities at facilities located within the listed counties and with certain exceptions for: (1) “Essential Businesses” (as defined by the Orders); and (2) “Minimum Basic Operations” for businesses that do not qualify as “Essential Businesses.” The Shelter-In-Place Orders now remain in effect through “at least May 1, 2020,” with the term “at least” indicating further extensions are likely.

The intent of the Orders is to ensure the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, and to slow the spread of COVID-19 to the maximum extent possible. Although each of the seven Bay Area counties issued a separate Order, the substantive terms of the Orders are the same. Information about California’s separate, state-wide Shelter-In-Place Order may be found here.

What Businesses are Covered by the Orders?

Continue Reading San Francisco Bay Area Shelter-In-Place Orders Extended Until “At Least” May 1, 2020

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In February 2020, the NLRB finally unveiled its long-awaited joint-employer rule governing joint-employer status under the NLRA. The final rule returns the test for determining joint employment to the standard the Board applied for several decades before the 2015 Browning-Ferris decision. The test set forth by the new joint-employer rule provides that a business is a joint employer only if it has “substantial direct and immediate control” over another company’s workers and actually exercises that control. While this is no doubt a welcome relief for employers who routinely contract with subcontractors and staffing companies, it is important to note the limited scope and that this rule does not impact joint-employer tests applied under other employment laws. The proposed rule was initially released in late 2018 and ultimately generated nearly 30,000 public comments (see our coverage here).

Although the rule is an employer-friendly change, employees who are terminated for engaging in protected concerted actives will continue to have a claim for relief against their primary employer. Similarly, union organizing efforts can continue amongst temporary employees as they have for years. Bargaining will continue to occur as it always has between employers and their employees’ union representatives. The labor movement, however, is likely disappointed by the demise of the 2015 Browning-Ferris rule.  For years, unions have chaffed at the prohibition against secondary boycotts contained in the Taft Hartley Act of 1947. The 2015 Browning-Ferris rule allowed a backdoor repeal of a significant portion of the secondary boycott ban with its loose definition of joint employer.

Continue Reading Much Ado About Joint Employers at the NLRB

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A Statewide Executive Order and comprehensive list of Texas counties and cities with shelter-in-place or stay-at-home orders has been complied.

Note that this does not cover counties that may have less restrictive orders in place, similar to the restaurant and bar bans that were prevalent last week (i.e., a county or city’s absence from this list does not mean there are no restrictions in place, just that a shelter-in-place order has not yet been issued).

Statewide:
Executive Order GA-08 – ordering limited business closures and restricting social gatherings to 10 people or less.

To keep reading click here.