Employment

Employers in essential or “critical infrastructure” industries face significant challenges in maintaining business operations while ensuring the health and safety of their employees and their community. On April 8, 2020, the Centers for Disease Control and Prevention (“CDC”) relaxed its previous guidance on critical infrastructure workers returning to work or continuing to work after being “potentially exposed” to COVID-19. The interim guidelines now allow critical infrastructure workers who have had potential exposure to COVID-19 to return to work more quickly, or to continue working, provided the workers (i) are and remain asymptomatic; and (ii) that their employer(s) implement certain policies and/or protocols to protect their employees, as well as the community.

Bringing positive news for employers and a welcome distraction from the COVID-19 crisis, the United States Supreme Court recently held that for claims of racial discrimination under 42 U.S.C. § 1981 (“Section 1981”), plaintiffs are obligated to meet the more stringent “but-for” causation standard at every stage of a lawsuit.

Recently, the National Labor Relations Board (“NLRB”) issued its final rule for defining joint-employer status under the National Labor Relations Act (“NLRA”). The new rule retreats from the more expansive joint-employment principle in recent years, returning instead to the agency’s prior, more restrictive standard. As this new rule becomes effective on April 27, businesses should become familiar with the new definition and how it affects potential joint-employer status.

On April 11, 2020, the Departments of Labor, Health and Human Services, and the Treasury issued a set of FAQs intended to assist stakeholders grappling with the provisions of the FFCRA and the CARES Act governing group health plans, health insurance issuers, and others. This post reports on the FAQ highlights.

The CARES Act is the third significant piece of federal legislation recently enacted in response to the COVID-19 pandemic. This post focuses on the provisions of the CARES Act that affect welfare benefit plans.

The cities of Los Angeles, San Francisco, and San Jose have each adopted paid sick leave measures to assist workers not covered by the federal Families First Coronavirus Response Act during the COVID-19 crisis.

Following the enactment of COVID-19 quarantine leave benefits in March, New York State has now enacted permanent paid sick leave measures, which will require New York employers to provide various amounts of sick leave to employees starting on January 1, 2021.  This post highlight the new requirements of the law.

One important question the Families First Coronavirus Response Act (“FFCRA”) and other recent legislative changes raise for employers is how to track and account for employee leaves. While most employers already have systems in place to track employee absences, employers should review their pre-pandemic recordkeeping to account for the “new normal” and new laws. These updates are not only to account for the FFCRA and any other federal or state laws – including the potential application for tax credits – but also, just as importantly, in anticipation of the return to work of the employer’s workforce.

As the COVID-19 outbreak continues to disrupt normal workplace operations, an increasing number of employers are facing the reality of employees testing positive for the virus – particularly in industries like healthcare, construction, transportation, or retail, where workers cannot necessarily telecommute. Employees may also report to work sick, or become sick at work, and show COVID-19 symptoms. Even though employers may be hoping for the best, it is best to have a plan for the worst. Employers should have clear plans and procedures in place to address confirmed or presumptive COVID-19 cases in the workplace, which will enable employers to take swift, appropriate actions to minimize risk for their employees and operations. The following are guidelines for steps to take in addressing these situations:

Jen Rubin discusses that state of arbitration in California in light of the state law which took effect on January 1, 2020 banning mandatory arbitration and the ongoing lawsuit seeking to prevent the state from enforcing the new law. 

Jen Rubin reviews California’s AB 5 law which provides a new way to categorize independent contractors in the state. Jen explains that the law applies to all businesses and discusses the three categories of exemptions as well as the ABC test.  

Jen Rubin reviews legal considerations regarding regulating political speech in the private workplace.

Jen Rubin explains that business should review existing contracts to ensure that they have properly classified individuals under California’s AB 5 law and provides guidelines for addressing any potential issues.  

Beyond COVID-19’s devastating impact on public health is its second order effects on the U.S. and world economy. Businesses of all sizes need to trim costs. An obvious place to start is with contributions to 401(k) and other tax-qualified retirement plans. This post reviews the options for cost cutting available to employers under their defined contribution 401(k) and profit sharing plans.

A timely and robust response to the COVID-19 virus demands the attention and resources of, and action by, federal and state regulators, employers, and individuals alike. The stakes could not be higher. State and local “shelter-in-place” orders have effectively, if not actually, resulted in widespread job losses for at least some indeterminate period of time.

Congress has now passed the CORONAVIRUS AID, RELIEF AND ECONOMIC SECURITY ACT OR CARES ACT – Federal government’s Phase III response to the health and economic impacts related to the COVID-19 pandemic. President Trump has pledged to sign the Act into law immediately.

As New York State announced that it had confirmed over 2,300 cases of the COVID-19 coronavirus, New York Governor Andrew Cuomo signed into law new requirements for New York State employees affected by the virus.  The new law was swiftly enacted in light of the urgent public health and economic crises facing the state, and goes into effect immediately.  It mandates that New York employers offer paid sick leave and job protections for workers quarantined as a result of the coronavirus outbreak.

This morning, Massachusetts Governor Baker issued Covid Order No. 13 which mandates that, starting Tuesday, March 24th at 12 P.M., all non-essential businesses and other organizations “shall close their physical workplaces and facilities (“brick-and-mortar premises”) to workers, customers, and the public,” due to evolving spread of COVID-19 in Massachusetts. This directive also orders that, in furtherance of Massachusetts’s COVID-19 response efforts, all non-essential businesses and organizations “are encouraged to continue operations where they are able to operate through remote means that do not require worker, customers, or the public to enter or appear at the brick-and-mortar premises closed by this Order.”

As the United States continues to develop its response to the COVID-19 pandemic, thousands of members of the National Guard will be activated to help deal with the threat.  Last week, Massachusetts Governor Charlie Baker activated 2,000 of the state’s National Guardspeople to aid the COVID-19 fight. As states assess how to use the National Guard to assist with the current state of emergency, service members will be called on to serve in increasing numbers.