On October 6, 2020, the Department of Labor (DOL) and Department of Homeland Security (DHS) announced new interim final rules (IFRs) that have left employers reeling in the wake of their effect on foreign national employees on H-1B visas or in the
On October 7, 2020, the US Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued its initial FAQ regarding President Trump’s Executive Order 13950, Executive Order on Combating Race and Sex Stereotyping (“Executive Order”). As discussed in our recent blog post, the Executive Order prohibits federal contractors from conducting workplace training during the performance of a government contract that inculcates certain “divisive concepts” in employees, and requires federal contractors to impose the same prohibition on their subcontractors and vendors.
The guidance provides some clarity to the Executive Order, which has been widely described as difficult to understand and implement. We highlight some of the guidance’s key points below.
The federal guidance on whether to classify a worker as an employee or an independent contractor continues to shift, as the U.S. Department of Labor (DOL) issued a new proposed rule favorable for companies. If finalized, the rule may provide businesses with greater latitude to engage independent contractors.
Continue Reading New DOL Proposed Rule Makes It Easier For Companies to Engage Independent Contractors
On August 8, 2020, a New York federal district judge struck down a significant portion of the DOL’s “joint employer” rule, meaning certain employers may be more likely to be deemed “joint employers” and exposed to liability for employee wage and hour violations under the FLSA. The “joint employer” final rule, which was issued by the DOL in January 2020, imposed a four-factor test for deciding whether employers in “vertical” employment relationships (i.e., when workers for a staffing company or other intermediary are contracted to another entity) are joint employers under the FLSA.
Continue Reading Are You A Joint Employer Now? Part of DOL’s “Joint Employer” Final Rule Struck Down
On September 3, 2020, the DOL sent a revised proposed rule regarding paid leave under the Families First Coronavirus Response Act (FFCRA) to the Office of Management and Budget for its review, according to an OMB posting. Though the OMB posting does not disclose the proposed rule’s contents, it is widely believed that the…
Employers must pay for all hours they know or “have reason to believe” employees worked. But can employers simply rely on teleworking employees to report all of their hours worked, or must they instead investigate whether their employees have accurately reported their work time? With the huge increase in teleworking since the start of the COVID-19 pandemic, this question should be top-of-mind for employers.
On August 24, 2020, the US Department of Labor issued Field Assistance Bulletin No. 2020-5 (FAB) to clarify an employer’s obligations in determining whether teleworking employees have accurately reported their work time. In short, the employer is not required to comb through every cell phone or computer login record to look for unreported work time that the employer neither knew of nor had reason to believe had been worked. As long as the employer provides employees with reasonable time-reporting procedures and does not otherwise impede or discourage reporting, its failure to compensate employees for unreported and unknown hours of work is not an FLSA violation. The FAB and some key takeaways for employers are summarized below.
The latest wrinkle for employers managing employees in the time of COVID-19 relates to employee travel. Many employers are coming to us asking how to navigate the patchwork of US state and local quarantine restrictions and / or recommendations for persons who travel to hotspots and then have to quarantine when they return home.
Questions abound, including whether employers can just test employees for COVID-19 to avoid a 14-day quarantine period, and whether employers have to pay employees to follow a quarantine order when their employees voluntarily travel to a hotspot location. We provide background and answer those questions below.
Many schools across the US are not welcoming students back for full-time in-person learning in the fall. On August 5, 2020, after Chicago Public Schools announced it would begin the academic year remotely in September, New York City became the last remaining major school system in the country to even try to offer in-person classes this fall. Proposed plans for schools that aren’t fully reopening range from full remote learning to hybrid models, where students are in school only half a day or several days a week coupled with a remote learning component from home. Either way, employers are likely to find themselves inundated with requests from parents of school-age children for continued work from home arrangements or other work-schedule flexibility. In our Q&A below, we have highlighted issues employers may want to keep in mind as employees with school-age children try to navigate a school year with its own “novel” aspects.
1. Are employers legally obligated to provide any sort of leave for employees who have to stay home with their children if schools don’t fully reopen?
It depends. If the employer is a “covered employer” under the federal Families First Coronavirus Response Act (FFCRA), employees may be eligible for paid leave under the FFCRA. The FFCRA was enacted to provide employees with COVID-19 related paid leave. Covered employers under the FFCRA (generally, private sector employers who have fewer than 500 employees at the time the leave request is made) are required to provide eligible employees with partially paid child care leave for certain COVID-19-related reasons, including if the child’s school, place of care or child care provider is closed or unavailable for reasons related to COVID-19.
Does virtual learning count as a “closed or unavailable” school for purposes of the FFCRA? Though the DOL guidance and FFCRA regulations have not spoken directly on this topic, the DOL’s early Q&A guidance on the FFCRA indicates that a school is “closed” for purposes of EPSLA or EFMLEA leave when the “physical location where [the] child received instruction or care is now closed.” The focus on “physical location” signals that if the school building is closed to students and students are required to learn remotely, the school is “closed” for purposes of the FFCRA.
The FFCRA imposes two federal leave obligations on employers – the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family Medical Leave Expansion Act (EFMLEA).
- Under the EPSLA:
- An eligible employee may take up to two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay where the employee is unable to work or telework for reasons including to care for a child whose school, place of care or child care provider is closed or unavailable for reasons related to COVID-19. Pay is capped at $200 per day and $2,000 in the aggregate.
- Under the EFMLEA:
- An eligible employee may take up to twelve weeks of “expanded” FMLA leave when unable to work or telework due to a need for leave to care for a child whose school, place of care or child care provider is closed or unavailable for reasons related to COVID-19.
- The first two weeks of EFMLEA leave are unpaid. An eligible employee may use paid sick leave under the EPSLA or other accrued paid leave under the employer’s leave policies to receive pay for those two weeks.
- An eligible employee may take up to an additional 10 weeks of paid EFMLEA leave at two-thirds the employee’s regular rate of pay, based on the number of hours the employee would be normally scheduled to work those days. Pay is capped at $200 per day and $10,000 in the aggregate.
In addition, state and local leave laws may apply, many of which either provide additional leave or state that providing care for a child whose school is closed or unavailable for COVID-19 reasons is a protected reason for an employee to take leave.
On July 20, 2020, the Wage and Hour Division of the US Department of Labor (DOL) published additional COVID-19 guidance in the form of a Q&A addressing Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and Families First Coronavirus Relief Act (FFCRA) issues arising when employers and employees return to work.
A few days before, on July 17, the DOL published streamlined optional-use forms for employer and employee notification and certification obligations under the FMLA and separately asked the public to comment on the FMLA and its regulations in a Request for Information (RFI). The additional guidance and forms should help employers navigate FMLA leave and employee wage and hour issues during COVID-19. And employers now have the opportunity to share their thoughts on the FMLA and its implementing regulations with the DOL. We provide more insight into the DOL’s recent activity below.
On July 2, 2020, the US Department of Labor’s Occupational Safety and Health Administration (OSHA) supplemented its prior COVID-19 guidance (Guidance on Preparing Workplaces for COVID-19 and Guidance on Returning to Work) with additional FAQ guidance covering topics such as best practices to prevent the spread of COVID-19 infection in the workplace, workplace testing, and worker training. Though the guidance is not a standard or regulation itself (and therefore creates no new legal obligations for employers), it provides practical answers to actual inquiries OSHA received from the public regarding COVID-19 and workplace safety, and refers to pertinent Centers for Disease Control and Prevention (CDC) guidance and applicable OSHA standards for employers to consider.
OSHA grouped the FAQs by topic for easy navigation. Several of the key FAQs for employers are summarized below.
What precautions can employers in non-healthcare workplaces take to protect workers from COVID-19?
Employers should assess worker exposure to hazards and risks and implement infection prevention measures to reasonably address them consistent with OSHA Standards. Such measures could include:
- Promoting frequent and thorough handwashing or sanitizing with at least 60% alcohol hand sanitizer;
- Encouraging workers to stay at home if sick;
- Encouraging use of cloth face coverings;
- Training employees on proper respiratory etiquette, social distancing, and other steps they can take to protect themselves;
- Considering using stanchions, temporary barriers, shields, and spacing out workstations to help keep workers and others at the worksite at least 6 feet away from each other;
- Cleaning and disinfecting frequently touched surfaces (e.g., door handles, sink handles, workstations, restroom stalls) as much as possible, but at least daily.
Employers subject to OSHA’s PPE standard must also provide and require the use of personal protective equipment (PPE) when needed, and must conduct job hazard assessments to determine the appropriate type and level of PPE required.
The US Department of Labor and US Department of Health and Human Services’ Guidance on Preparing Workplaces for COVID-19 and OSHA’s Prevent Worker Exposure to COVID-19 alert provide more information on steps all employers can take to reduce workers’ risk of exposure to SARS-CoV-2. Learn more about preventing the spread of COVID-19 from OSHA and CDC.
Cleaning and Disinfection
How should I clean and disinfect my workplace?
Employers should review the CDC’s updated information about cleaning and disinfecting public spaces, workplaces, businesses, schools, and homes.