United states

Subscribe to United states via RSS

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.Continue Reading A “Reason to Believe”: DOL Says the Obligation to Determine Remote Employees’ Hours of Work is “Not Boundless”

In an increasingly digital world, many employers are looking to rely less on paper and move to electronic systems. In recent years, the concept of electronic Form I-9 completion and maintenance has become an attractive option for companies looking to achieve this goal.

The U.S. Department of Homeland Security has provided some guidance relating to …

Welcome to Baker McKenzie’s new Labor & Employment video chat series for US employers, The Employer Rapport. Our lawyers will provide quick, practical tips on today’s most pressing issues for US employers navigating the new normal. The videos complement our blog, The Employer Report, which provides written legal updates and practical insights about …

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.Continue Reading Navigating Employee Travel in a Maze of State and Local Quarantine Orders and Travel Advisories

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.Continue Reading Back to School or Back to Home? Handling Leave Requests from Employees with School-Age Children

Though the COVID-19 pandemic put in-person classes, business operations, and vacation plans on hold, there has been no pause of the duties of boards of directors to their respective companies. Board members should keep their fiduciary duties and the practical steps they can take to meet those duties top-of-mind as they guide their companies through the COVID-19 pandemic. We have highlighted board members’ duties and some practical tips boards of directors can take to meet their obligations to their companies during the pandemic.

Board Duties and the Business Judgment Rule: A Refresher

Under Delaware law-which most jurisdictions widely follow when it comes to directors’ duties-directors have a duty of care and duty of loyalty.

  • The duty of care requires directors to make informed and deliberative decisions based on all material information they have reasonably available to them.
  • The duty of loyalty requires directors to act (or decide not to act) in a disinterested and independent manner, with the honest belief that the action or inaction is in the best interests of the company and its shareholders. How will decisions made by board members be evaluated by courts if those decisions are challenged? Courts evaluating board decisions under Delaware law first look to the “business judgment rule,” which allows a rebuttable presumption that directors satisfied their fiduciary duties in making business decisions.
  • If the presumption is rebutted-such as in cases of related party transactions or lack of director independence-Delaware courts apply the more exacting “entire fairness” standard, which normally shifts the burden to directors to prove the fairness of a challenged corporate transaction or decision.
  • As part of the duty of care and duty of loyalty, directors have the duty of good faith, oversight and disclosure. They have to act in good faith, be diligent in overseeing the company, and disclose any conflicts of interest as well as anything that is in the best interest of the company to know.

Continue Reading Board of Directors’ Duties: One of the Few Things Not Put on Hold During the Pandemic

The confusion over evolving state and local quarantine orders can be a challenge for employers with employees visiting hotspot areas. This week we discuss what employers can do when employees travel to a COVID-19 hotspot and have to quarantine when they arrive or return.

Please click here to watch this week’s video chat.

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.Continue Reading New Q&As, New Streamlined Forms, and an RFI: the Department of Labor Publishes More COVID-19 Guidance and Seeks Public Comment on the FMLA

With a surge in COVID-19 cases in parts of the US (and some states taking or considering taking a step backwards into a prior reopening phase), employers are trying to figure out the best ways to keep the virus from spreading in their reopened worksites. We have answered some frequently asked questions below to help employers implement or modify their screening protocol to make it the best fit for their physical workspace, their budget, and their workforce.

1.  Can I check my employees’ temperatures before they enter the  workplace? If my employees have a fever, can I send them home (or tell them not to come to work)?

Yes, employers can check their employees’ temperatures before they enter the workplace. In fact, some states and localities require employers to do daily or weekly checks, so check your local requirements.

A temperature check is a medical examination under the ADA, and in ordinary times, employers generally cannot require employees to submit to a temperature check. However, given COVID-19’s rise to the level of pandemic, and the CDC and state and local health authorities’ acknowledgment of the community spread of COVID-19 and issuance of precautions, EEOC guidance allows employers to check employees’ temperatures before they enter the workplace. Temperature checks are only permitted while the virus is severe, so as the level of community spread diminishes in your locality make sure that temperature checks are still permitted before you administer them.

In addition, employers can send employees home (or tell them not to come to work) if they have a fever or any of the other symptoms of COVID-19. See EEOC guidance and CDC guidance, “Separate Sick Employees.” The CDC defines a fever as 100.4 F or 38 C or above. States may have different guidance regarding what qualifies as a “fever,” with some states defining a “fever” as a flat 100 F, and employers can set lower temperature thresholds if they prefer.

Continue Reading Employee Testing for COVID-19: What Works Now for Your Worksite?