COVID-19

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On June 23, the San Francisco Board of Supervisors voted to approve “right to reemployment” legislation that requires large employers to first offer laid-off workers their old jobs back before offering employment to new applicants (“Ordinance”). It will become effective immediately upon Mayor London Breed’s signature and will expire upon the 61st day following enactment unless extended.

Advocates of the Ordinance argued the requirement is necessary to ensure employers don’t use the pandemic as an opportunity to simply replace old workers with new employees who are younger and less expensive. Organizations lobbying against the Ordinance argued that it is overly burdensome; violates core constitutional principles; runs counter to several federal and state laws; and is extremely vulnerable to abuse. Similar legislation has surfaced in Los Angeles County as well.

Covered Employers

“Covered employers” are defined as for-profit and non-profit employers that directly or indirectly own or operate a business in the City or County of San Francisco and employ, or have employed, 100 or more employees on or after February 25, 2020.Continue Reading San Francisco Provides Temporary Right to Reemployment Following Layoff Due to COVID-19 Pandemic

We hope you have found our video chat series helpful and informative. We are continuing this series of quick and bite-sized video chats, where our employment partners team up with practitioners in various areas of law to discuss the most pressing issues for employers navigating the return to work. Each 15-minute Q&A session offers targeted…

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

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…

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

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

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…

We hope you have found our video chat series helpful and informative. We are continuing this series of quick and bite-sized video chats, where our employment partners team up with practitioners in various areas of law to discuss the most pressing issues for employers navigating the return to work. Each 15-minute Q&A session offers targeted…

On June 10, the Occupational Safety and Health Administration (OSHA) released new guidance, in the form of frequently asked questions and answers, regarding the use of masks in the workplace.

The new guidance outlines the differences between cloth face coverings, surgical masks and respirators. It further reminds employers not to use surgical masks or cloth face coverings when respirators are needed. In addition, the guidance notes the need for social distancing measures, even when workers are wearing cloth face coverings, and recommends following the Centers for Disease Control and Prevention’s guidance on washing face coverings. (For our FAQ on face coverings, click here.)

Importantly, the new guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of mandatory safety and health standards. OSHA states that the “recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.”

We’ve copied the most helpful OSHA FAQs here and underlined pertinent language for emphasis:

Are employers required to provide cloth face coverings to workers?

Cloth face coverings are not considered personal protective equipment (PPE) and are not intended to be used when workers need PPE for protection against exposure to occupational hazards. As such, OSHA’s PPE standards do not require employers to provide them.Continue Reading OSHA Guidance on Wearing Masks in the Workplace