What to Expect on Immigration from the Biden Administration

Contributed by Jacqueline Lentini McCullough, November 25, 2020

11411781 – photograph of a u.s. department of homeland security logo.

The Trump administration has enacted more than 400 immigration policy changes. That’s one change every 3.65 days the administration has been in office.

Weary from the whiplash of changes and weight of additional work, many are wondering how President-Elect Joe Biden will approach immigration policy.

Here are my thoughts on four issues affecting clients:

The Quickest Change Will Likely Be Better Visa Processing Times

COVID-19 will still slow processing as many U.S. Citizenship & Immigration Services (USCIS) employees are working from home. But without the anti-immigration winds that have been blowing from the White House, USCIS staff will be free to consider petitions in a timely manner.

Look for application and petition processing times to return closer to the six to eight months they used to take, instead of the one to two years they have reached recently.

Student Duration-of-Status Rule Change

For decades, student visas have been granted for a “duration of status” in a nod to the different lengths of time international students require to finish their degrees in the United States. Times vary by degree – bachelor, masters, doctoral.

Sometimes students require extra time to complete their degrees due to the need for certain classes, participation in research, and the challenges of academic rigor and studying away from home. Illness can sometimes play a role too.

On September 25, 2020, the Trump administration published a new rule in the Federal Register to change student visas to a fixed duration of not more than four years.

The rule change would force many students to file for extensions to complete their degrees, creating much extra work and expense. The current fee to file for an extension is $370. Some students might need to file more than once.

The change would also give the Department of Homeland Security (DHS) officials the power to deny extensions to students they deem unwilling or unable to complete their course of study. Usually academic institutions make those determinations.

The rule’s comment period ended October 26, 2020. It is unclear whether this rule will move forward. Even if it does, there is hope that the Biden administration will reverse it.

H-1B Wage Level Changes

On October 8, 2020, the Department of Labor issued an Interim Final Rule (IFR) entitled “Strengthening Prevailing Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.”

IFRs fast track changes as they allow rules to become final upon publication instead of waiting for the usual public comment period.

The rule aims to restrict H-1B visas to the most highly-skilled workers and raises each wage level substantially. Level 1 increased by 17 percent, level 2 rose by 24 percent.

Those increases preclude most entry-level jobs from qualifying, making it difficult for recent graduates to find work and stay in the U.S. They also increase costs to any company who use or rely on H-1B workers.

Three lawsuits are challenging the rule, led by the U.S. Chamber of Commerce, Purdue University, and ITServe Alliance. The lawsuits and the new administration may prompt some mitigation of this rule. As it has bipartisan support, I don’t expect it to be struck down entirely.

Public Charge Rule

On October 10, 2018, USCIS filed a public charge rule change in the Federal Register to allow immigration officials to deny green cards to immigrants on any form of public assistance, including food stamps, Medicaid, and public housing vouchers. Applicants already have to prove they are not a public charge, but the new rule expands the number of benefits DHS could use to deny a green card. Additionally, compliance with the rule requires applicants to fill out an 18-page form (I-944), prove they have health insurance, and provide reams of other financial documentation. 

Numerous legal challenges have delayed the rule, which went into effect on February 24, 2020. A federal judge in New York blocked the rule on July 29, 2020, saying nothing should impede immigrants from seeking testing and treatment for Covid-19.

On September 11, 2020 the Second Circuit Court of Appeals ruled DHS could resume enforcing the rule. On November 2, 2020, a federal court judge in Chicago struck the rule down, saying the Trump administration violated the Administrative Protection Act when they created it. Yet another judge stayed that injunction while the decision is being appealed. The Biden administration may drop the appeal and let the judge’s ruling that the rule was unlawfully created stand.

Ohio COVID-19 Updates

Contributed by Michael Hughes, November 18, 2020

In response to the recent increased spread of Coronavirus in Ohio, Governor DeWine and the Ohio Department of Health have enacted several new Orders affecting all Ohio residents. Namely, in addition to existing protocols and guidelines for businesses, which remain in effect, the state has now instituted a 21-day curfew and restrictions for certain types of mass gatherings. 

State of Ohio

Statewide Curfew – Effective November 19, 2020

In order to help curb the spread of the coronavirus, the Ohio Department of Health has mandated a statewide curfew for all Ohio residents, from 10 PM to 5 AM daily, starting November 19, 2020 and lasting for 21 days. Notably, the curfew does not apply to those going to or from work, those who have an emergency, or those who need medical care. The curfew is not intended to stop anyone from getting groceries or going to a pharmacy. Picking up carry-out or a drive-thru meal and ordering for delivery are also permitted, but serving food and drink in person must cease at 10 PM.

Revised Order to Limit and/or Prohibit Certain Mass Gatherings – Effective November 17, 2020

Effective as of November 17, 2020, the Ohio Department of Health has instituted limitations on the following types of mass gatherings: wedding receptions, funeral repasts, and other events at banquet facilities. Those limitations are as follows:

  • No socializing or activities in open congregate areas and no dancing.
  • Guests must be seated at all times. However, traditional wedding reception events such as first dance, toasts, tossing the bouquet and cutting the cake are permitted.
  • If serving food and beverages, guests must be served at their seats. No self-serve buffets and no self-serve bar areas permitted.
  • Masks must be worn at all times unless actively consuming food or beverages.
  • No more than 10 people should be seated at a table and those individuals must be from the same household.

The order does not apply to religious observances; First Amendment protected speech, including petition or referendum circulators, and any activity by media; and to governmental meetings which include meetings that are required to be open to the public.

Existing COVID-19 Business Protocols and Guidance Remain in Effect

While the Ohio Department of Health has lifted many of the mandatory business requirements initially put into place in response to the COVID-19 pandemic, there are still several established workplace requirements. In general, all employers are required to:

  • Comply with state regulations on facial coverings, including the November 13, 2020 Order for Retail and Business Compliance for Facial Coverings throughout the State of Ohio.
    1. Require all employees to wear face coverings unless they are prohibited by law or regulation; in violation of documented industry standards; not advisable for health reasons; in violation of the business’s documented safety policies; or there is a functional/practical reason not to wear one. They also are not required for employees who work alone in an assigned work area.
    2. Practical reasons not to wear face coverings include, but are not limited to, high temperatures in facilities or employees separated by more than 6 feet on a manufacturing floor.
  • Comply with social distancing requirements of the U.S. Centers for Disease Control and Prevention and Ohio Department of Health, including, where possible:
    1. Designating 6 foot distances with signage, tape, or other means to allow for adequate social distancing between employees; this also applies to customers in lines.
    2. Having hand sanitizer and sanitizing products readily available for employees and any customers.
    3. Establishing separate operating hours for elderly and other vulnerable populations.
    4. Posting online whether a facility is open and how best to reach the facility and continue services by phone or in another remote manner.
  • Allow as many employees as possible to work from home by implementing policies in areas such as teleworking and video conferencing.
  • If employees do report to workplaces:
    • Actively encourage sick employees to stay home until they have recovered.
    • Guidelines from the Centers for Disease Control and Prevention for people with confirmed or suspected COVID-19 are as follows: 
    • Employees with symptoms (including those who have tested positive and those who have not been tested) should stay home until:
      • At least 10 days have passed since symptoms first began; AND
      • At least 24 hours have passed since there has been no fever without use of fever-reducing medication; AND
      • There has been improvement in other symptoms.
    • If an employee is severely immunocompromised, a health care provider may determine that a longer time frame is recommended.
    • Employees without symptoms who have lab-confirmed COVID-19 should stay home until at least 10 days have passed since the date of the positive test. However, if the employee develops symptoms in that time period, then the employee should follow the criteria for people with symptoms.
  • Ensure that your sick leave policies are up to date, flexible, and non-punitive to allow sick employees to stay home to care for themselves, children, or other family members. Consider encouraging employees to do a self-assessment each day to check if they have any COVID-19 symptoms (fever, cough, or shortness of breath).
  • Separate employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately. Restrict their access to the business until they have recovered.
  • Reinforce key messages — stay home when sick, use cough and sneeze etiquette, and practice hand hygiene — to all employees, and place posters in areas where they are most likely to be seen. Provide protection supplies such as soap and water, hand sanitizer, tissues, and no-touch disposal receptacles for use by employees.
  • Frequently perform enhanced environmental cleaning of commonly touched surfaces, such as workstations, counter tops, railings, door handles, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label. Provide disposable disinfectant wipes so that commonly used surfaces can be wiped down by employees before each use.
  • Be prepared to change business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations).

In addition to the general guidance, there are specific guidance for certain sectors, including offices, health care, assisted living facilities, and bars and restaurants, which are available on the Ohio Department of Health website.

Local communities and municipalities are permitted to enact guidance or requirements. For example, the City of Columbus and Franklin County issued a COVID-19 Health Advisory, which generally follows many of the state guidelines. Accordingly, Ohio employers should work with experienced labor and employment counsel to confirm that they are in compliance with all applicable state, city/local, county and federal requirements and guidelines.

This blog will continue to monitor those developments and update as needed. For continued information regarding COVID-19 restrictions, visit SmithAmundsen’ s COVID-19 Resource Center or contact a member of our task force here: https://www.salawus.com/practices-covid19-task-force.html

St. Louis City and St. Louis County Impose Heightened COVID-19 Restrictions on Employers, Businesses, and Social Gatherings

Contributed by Brian Wacker, November 18, 2020

The State of Missouri has continued to resist imposing significant state-wide orders to combat the spread of COVID-19. However, with positivity rates on the rise and pressure increasing on health providers throughout the state, some localities have recently enacted enhanced restrictions on businesses and social gatherings to combat the spread. 

One such locality is St. Louis County, which enacted the following health orders, which went into effect on Tuesday, November 17, 2020:

State of Missouri
  • November 12, 2020 – “Safer At Home” Order
    • Residents are required to stay at home, unless to travel to and from work and other limited specific purposes such as shopping for groceries, education purposes or obtaining medical care
    • Social gatherings are limited to no more than 10 persons
    • Aside for defined business exceptions such as hospitals, public transit and schools, all businesses providing goods and services are limited to 25% or less of its permitted occupancy; all employees are required to wear face coverings and comply with social distancing requirements
    • Restaurants are limited to providing outdoor service, carryout and delivery
  • November 12, 2020 – Third Amended Quarantine and Isolation Procedures Order
    • All residents are required to regularly self-observe for COVID-19 symptoms and if, at any time, a person develops such symptoms, they are required to self-isolate, limit contact with others and seek medical advice and/or be tested for COVID-19
    • Residents who have been in close contact with COVID-19 positive individuals or who them themselves been exposed to COVID-19 is instructed to quarantine for a period of 15 days after the last exposure
      • Individuals in quarantine are permitted to walk outside, but are instructed to wear face coverings and not go within 6 feet of others
    • Residents who test positive and/or who have COVID-19 symptoms and who are awaiting results are instructed to isolate until cleared by the Department of Public Health for a period of 10 to 14 days, depending on individual factors
      • Individuals in quarantine are permitted to walk outside, but are instructed to wear face coverings and not go within 6 feet of others
  • November 12, 2020 – Second Amended Order Requiring Members of Public and Employees to Wear Face Coverings – “Strengthened Face Covering/Mask Order”
    • Face masks are required to be worn at all times by:
      • Anyone over the age of 5 years old when present at any business or public accommodation (indoor or outdoor)
      • Anyone over the age of 5 years old in public spaces when anyone outside that person’s household is present
      • All students from kindergarten through high school, except for defined exceptions such as when eating meals or playing sports in compliance with the department’s youth sport guidelines
      • Anyone working out at a gym or fitness facility
    • Face masks are not required to be worn by:
      • Children under the age of 2
      • Children between the ages of 3 and 5 when supervised by an adult
      • Anyone with health conditions which prohibit wearing a mask, or who have trouble breathing while wearing a mask
      • Anyone at a restaurant or public accommodation when eating or drinking, while still maintaining social distance requirements of separate orders
      • Anyone playing a sport or exercising alone

While not as extensive, St. Louis City also issued an additional order this week, which went into effect on November 14, 2020. Specifically, it reaffirmed all prior orders already in effect in the city and further placed the following restrictions on private gatherings:

  • Private gatherings of more than 10 attendees are prohibited
  • The city recommends any gatherings with less than 10 attendees be limited to no more than 1-2 households, and that those households remain consistent throughout the gathering
  • The order further clarifies that it also applies to businesses, schools and government offices, all of which are still required to require face masks and to require social distancing and hygiene measures of employees and other individuals

As has been the case throughout the pandemic, these measures are always subject to modification based on conditions and potential legal challenges. That is especially true in Missouri where localities are enacting their own sometimes-inconsistent orders in the absence of state-wide measures. Accordingly, Missouri employers should consult with experienced labor and employment counsel to ensure that they are in compliance with all current state, city/local and county-wide orders.

This blog will continue to monitor those developments and update as needed. For continued information regarding COVID-19 restrictions, visit SmithAmundsen’ s COVID-19 Resource Center or contact a member of our task force here: https://www.salawus.com/practices-covid19-task-force.html

Wisconsin COVID-19 Updates

Contributed by Peter Hansen, November 18, 2020

Although Wisconsin has no statewide or industry-specific requirements, Governor Evers’ November 10, 2020 Executive Order “strongly encouraged” all businesses to take a number of precautions in response to the COVID-19 resurgence, including:

  • Hold meetings and collaborate online or by phone, even if staff are physically present at the worksite
  • Alternate work teams or stagger shifts
  • Require staff, customers, and the public to wear masks, and require social distancing of 6 feet between all individuals at the worksite
  • Prevent staff from entering the worksite if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19
  • Increase standards of facility cleaning and disinfection of all areas, emphasizing “high-touch areas” including door handles, railings, restrooms, buttons, office equipment, tools, payment devices or cash registers, and counters
  • Post signage reminding staff and customers of safe business practices, social distancing requirements, hand hygiene, and cough/sneeze etiquette
  • Where possible, offer curbside pick-up and drop-off, and delivery of goods and services
  • Where possible, offer online or phone payments, appointments, and reservations
  • Cease door-to-door solicitation
State of Wisconsin

Wisconsin agencies have also issued some guidance to help employers during the COVID-19 resurgence, including the Wisconsin Economic Development Corporation’s industry-specific guidance and the Wisconsin Department of Health Services’ guidance for Preventing and Managing COVID-19 Outbreaks in the Workplace.

Local communities and municipalities are permitted to enact requirements and several Wisconsin municipalities have issued their own emergency orders, including Madison & Dane County, City of Milwaukee, Eau Claire City, and the City of Wausau. Accordingly, Wisconsin employers should consult with counsel to verify that they are in compliance with all current state, city/local and county-wide orders.

For continued information regarding COVID-19 restrictions, visit SmithAmundsen’s COVID-19 Resource Center or contact a member of our task force here: https://www.salawus.com/practices-covid19-task-force.html

Illinois’ NEW COVID-19 Mitigation Plan to Impact Virtually ALL Employers – Effective November 20, 2020

Contributed by Carlos Arévalo, November 18, 2020

New COVID-19 cases are surging in Illinois, and Illinois is ramping up more restrictions by instituting additional measures throughout the state. Generally, these measures have the objective of limiting gatherings and encouraging people to stay at home, but do not rise to the level of a stay-at-home order. Illinois’ Phase 4 remains in place with the following new restrictions:

State of Illinois
  1. Manufacturing (Implementation of safety guidelines): 
    • Additional COVID-19 training for all employees (even if previous training occurred)
    • Employers to coordinate with IDPH to implement testing protocols and contact tracing
    • Face coverings at all times, except for safety purposes
    • Only manufacturing staff and key personnel allowed in facilities
      • Non-production employees must work remotely
      • Non-essential staff and visitors are not permitted
      • Exemptions only for critical equipment repairs, supply deliveries and safety reasons (“critical visitors”)
    • All critical visitors must have an Employee Health and Safety (EHS)-approved risk-assessment done in advance, including travel history, tracking, and temperature check prior to entrance
    • Implement additional workstation realignment when feasible
    • Stagger and space shifts and entrances
    • Station sanitation required at beginning and ending of shifts
    • Suspension of COVID-19 incentive pay (promote staying home when sick or showing symptoms)
    • Implement temporary leave policies to accommodate sick workers
    • Develop and implement safety protocols for employee travel vans to promote spacing, require face coverings, temperature checks, air circulation, and vehicle sanitization
  2. Bars/Restaurants (including private and country clubs)
    • Closed between 11 PM and 6 AM
    • Outdoor service only
      • Patrons, limited to groups of 6, should be seated at tables (6 feet apart)
      • No multiple parties at tables
      • Reservation required (no standing/congregating while waiting)
    • No service at bar
    • Indoor gaming terminals must suspend operations
  3. Offices
    • All employees who can work remotely should do so
  4. Retail Operations
    • Operation at 25% capacity for general merchandise stores, “big box” stores that offer groceries and pharmacy, and convenience stores
    • Operation at 50% for grocery stores and pharmacies may operate at up to 50% capacity
    • Curbside delivery and pickup options wherever possible
    • When in-store shopping is necessary, promote efficient trips and consistent circulation
  5. Hotels
    • Occupancy limited to registered guests only
    • Fitness centers should be closed, or operated only on a reservation model, with capacity limited to 25% of the maximum occupancy for the room
    • Grab and go food allowed
    • Event and meeting space closed
  6. Personal Care Services
    • Operate at lesser of 25 clients or 25% capacity
    • Face coverings required (suspension of facials, beard trims and other face services)
    • Physical, occupational and massage therapy allowed as deemed necessary by a medical provider:
      • Appointments must be spaced by a minimum of 15 minutes and facilities should take steps to sanitize and circulate clean air through service rooms before and after each service
    • Virtual consultations recommended
  7. Health/Fitness Facilities
    • 25% capacity or less
    • No indoor group classes
    • Face coverings must be worn at all times, including while engaged in individual exercise regardless of person or machine spacing
    • Reservations required
    • Locker room areas to be closed
  8. Meetings and Gatherings
    • Limit home gatherings to household members
    • No gatherings at meeting rooms, banquet centers, private party rooms, private clubs and country clubs
    • No party buses
    • Funerals are limited to 10 family members of the decedents, not including staff
  9. Recreational and Sporting Activities (includes park districts and travel leagues)
    • Pause all indoor group sporting and recreational activities (youth and adult recreational sports)
    • Individual training may remain (with facility reservation)
    • Outdoor sports and recreation allowed, but limited to 10 persons or less with social distancing (no locker rooms)
    • Face coverings required for all activities at all times
  10. Gaming, Theaters, Museums, and Indoor Amusement
    • Gaming and casinos closed
    • Indoor recreation centers, including theaters, performing arts centers and indoor museums and amusement centers closed
    • Live streaming of performances encouraged (social distancing of performers and minimum operational staff)
    • Outdoor activities (reservations required) allowed at 25% capacity or less
    • Outdoor group activities limited to 10 persons or less (participants must wear face coverings at all times)

Previously exempt functions (i.e. infrastructure, governments, logistics and warehousing etc.) may continue regular operations, but Illinois is encouraging voluntarily and proactive application of mitigation steps whenever possible.

As with all matters involving COVID-19, these mitigation measures are fluid and subject to change. We will continue to monitor and update as needed. For continued information regarding COVID-19 restrictions, visit SmithAmundsen’s COVID-19 Resource Center or contact a member of our task force here: https://www.salawus.com/practices-covid19-task-force.html

Indiana’s New COVID-19 Restrictions

Contributed by Suzannah Wilson Overholt, November 18, 2020

Indiana Governor Eric Holcomb announced new coronavirus restrictions on November 13 that took effect on November 15, 2020 and continue through December 12, 2020. All businesses are allowed to be open subject to the restrictions in Executive Order 20-48. Executive Order 20-48 implements a county by county assessment that determines various measures, including crowd sizes, depending on the level of COVID-19 in that county (e.g. 25 people in red counties and 50 people in orange counties, with larger events needing approval from health officials). Businesses in higher risk counties are encouraged to take measures to ensure social distancing and protect their workforce.

State of Indiana

Indiana’s COVID-19 Response Requirements for November 15, 2020 to December 12, 2020, include the following:

  • Hoosiers who test positive for COVID-19 are required to quarantine.
  • Social distancing is required except with members of your own household.
  • Face shields are encouraged for individuals with such health/physical conditions.
  • Face coverings are required for individuals over two years of age who do not have a health or other condition that makes wearing a mask an undue risk.
  • Face coverings are required in indoor public spaces, outdoor spaces where social distancing is not possible, while using public transit, and in all schools.
    • NOTE: The requirement does not apply while eating or being seated at a restaurant to eat, while exercising and maintaining social distancing, or attending a church service.
  • All customers in restaurants and bars are required to be seated, and tables, counters, or other seating arrangements must be spaced six feet apart.
  • Hospitals are encouraged to reprioritize or postpone non-emergent procedures. 
  • For most counties (orange), attendance at indoor school events is limited to 25% capacity. 
  • Recreational sporting leagues are limited to participants and required personnel. 

Communities are permitted to enact more stringent restrictions. Indianapolis continues to do so. For continued information regarding COVID-19 restrictions, visit SmithAmundsen’s COVID-19 Resource Center or contact a member of our task force here: https://www.salawus.com/practices-covid19-task-force.html

Can I Require My Employees to Get the COVID -19 Vaccine?

Contributed by Suzannah Wilson Overholt, November 12, 2020

Medicine doctor and vaccine dose syringe in laboratory, microbiology and pharmaceutical research.

With the prospect of an FDA approved COVID-19 vaccine on the horizon, employers are already wondering whether they will be able to require their employees to get the vaccine. Because the pandemic has caused changes in other workplace rules, the answer to this question is not clear.

The Americans with Disabilities Act (ADA) generally prohibits employers from mandating that employees receive any vaccinations unless they are job-related, consistent with business necessity, and no more intrusive than necessary. This is ordinarily a difficult standard to meet unless the employer is part of the healthcare field. However, due to the current circumstances of the COVID-19 pandemic and the fact that an individual with COVID-19 is considered to pose a direct threat to the health of others, the EEOC may allow mandatory COVID-19 vaccines in workplaces beyond healthcare.  This conclusion is supported by the fact that the EEOC has already allowed employers to screen employees for COVID-19 on this same basis.

  While employers may be permitted or able to require employees to get the vaccine, employers should carefully consider the potential legal and employee morale implications and complications.  A Gallup poll recently showed just half of Americans would be willing to get a COVID-19 vaccine that the FDA approved, which is less than were willing to do so this past summer. These poll results indicate that a large number of employees will likely be reluctant to get the vaccine – at least initially. Therefore, enforcing a vaccine mandate, i.e. telling workers they have to have the vaccine or be fired, could be difficult if a large number of employees refuse to comply.  

If the EEOC authorizes mandatory COVID-19 vaccines anywhere in the workplace, employers should likely assume that the same restrictions that apply to mandatory vaccines in the healthcare field now will apply to all workplaces.  Currently, the EEOC requires healthcare employers to consider exemptions for employees who cannot receive vaccines for reasons related to disability, pregnancy, or religion. Employers analyze each request for exemption on a case-by-case basis, including reviewing the employee’s job position as well as the employee’s particular religious belief or medical documentation corroborating the disability at issue.  For more about these exemptions and the analysis that goes with them, see our previous blog on this topic, “Navigating the Legal Risks of a Mandatory Vaccine Program.”

As long as there continues to be widespread concern about the safety of a COVID-19 vaccine and no specific authorization from the EEOC to allow employers to mandate that employees have the vaccine, employers would be wise to continue to require masking, proper hygiene and social distancing.  Employers may also stress the importance of getting a flu shot and encourage employees to get one by subsidizing the cost, allowing paid time off to get one, or offering flu shots at the workplace to reduce any inconvenience. 

We will continue to monitor and report on guidance from the CDC, EEOC and other federal agencies for developments regarding the COVID-19 vaccine.

SAMPLE Questionnaire and HR Checklist for Confirmed COVID-19 Cases

Contributed by Jeff Risch, November 6, 2020

As new information unfolds surrounding our understanding of COVID-19, and seeing that the odds appear to be increasing on who may actually get the virus, employers need to be vigilant in examining whether or not an employee contracts the virus at work or in the course of their employment.  In order to assist employers in this exercise and help them possibly defend against legal challenges later (including workers compensation claims), the following updated questionnaire and HR checklist may be useful. The questionnaire and checklist should be kept confidential and used only by HR professionals.

Sample Questionnaire and HR Checklist

Is an Employee’s Voluntary Attendance at Training Programs Compensable?

Contributed by Brian Wacker, November 5, 2020  

20420214 – 3d business persons at a workshop. presentation. isolated white background.

The U.S. Department of Labor (DOL) issued additional guidance to employers as to the compensability of time employees spend attending voluntary training programs under the Fair Labor Standards Act (FLSA).  In other words, if an employee attends a training program related to work, on his or her own volition and not under compulsion by the employer, must he or she be compensated?

The answer, according to the DOL: it depends.

Stepping back, the FLSA generally requires that non-exempt employees receive the federal minimum wage for all hours worked and overtime at 1.5x the regular rate of pay for any hours worked over 40 hours per week.  Over time, courts have held that an employee’s time is – or is not – compensable depending on whether the time is spent predominantly for the employer’s or the employee’s benefit.  If it is deemed for the employer’s benefit, it is compensable.  If for the employee’s benefit, it is not.

In answering whether it is for the employer’s benefit or employee’s benefit, the DOL has traditionally followed guidelines which say that attendance at lectures, training programs and similar activities is NOT compensable work if four criteria are met:

  • It is outside of regular work hours,
  • Attendance is in fact voluntary,
  • The programming is not “directly related to the employee’s job,” AND
  • The employee didn’t perform any productive work while attending.

However, there are two more “special situations” in which the DOL recognizes training time does not have to be paid:

  • an employee, outside of normal working hours, voluntarily attends programming established by an employer that corresponds to courses offered separately by learning institutions, or
  • where the employee on his or her own initiative attends an independent school or college outside of normal working hours, even if the courses are related to the employee’s job.

While these regulations may seem straightforward, the DOL’s recent guidance proves, as always, that the devil will be in the details. In the recent guidance, the DOL addresses several situations:

  1. If an employer approves an employee’s request to use continuing education funds (provided by the employer) to attend a pre-recorded webinar that has a continuing education component, which the employee then voluntarily attends during off-work time, does the employee have to be paid?
    1. The DOL’s answer is no, it is unpaid time. It does not matter if the course does not have a continuing education component. Rather, what matters is that it was voluntary and not required by the employer and when the employee actually viewed the webinar – which in this scenario was outside of work.  Thus, the “special situation” exception above applies and the time is not considered hours worked under the FLSA.
  • What about an employee who requests and is approved to use continuing education funds for an on-demand webinar, directly related to his job (but does not have a continuing education component) and watches it during working hours. You recognize this is compensable work time, but can you require the employee to use PTO or vacation time since the employee viewed it during work hours?
    • While it’s a creative idea, the DOL says not so fast.  Once again, the fact that it can be viewed outside of work hours doesn’t matter.  What matters is that it was participated in during working hours. Since the employee watched it during work hours, it is compensable and the employee cannot be forced to burn PTO or vacation time for it.  In fact, the DOL cautions that it likely would still be paid work time if the webinar was not directly related to his job duties.  It is noteworthy though that the DOL states that it is within an employer’s ability to establish a policy prohibiting the viewing of these types of training during work hours – such that while the employee would still have to be paid for the time, the employee could be disciplined for violating the employer’s policy.

The DOL’s guidance here is not necessarily new.  However, it does serve as a timely reminder to employers that the question of whether to compensate employees for time spent in voluntary trainings is very fact-specific.  To avoid running into tough decisions like these, employers are well advised to work with their labor and employment counsel to adopt clear, unambiguous policies so employees know what is – and is not – compensable and allowed when employees voluntarily decide to attend these programs.

Finally, it should be noted that if you are in a state or municipality that requires training, such as mandatory sexual harassment training in California, Connecticut, Delaware, Illinois, Maine, New York, and New York City, that training time is considered time worked that has to be paid under the FLSA, even if the employee completes the training during non-work hours via an on-demand webinar or live webinar. 

Can you Ask Employees Medical Questions during a Pandemic? The EEOC’s Guidance on Complying with the ADA during COVID-19

Contributed by Allison P. Sues, October 26, 2020 

COVID-19 Screening Questionnaire form with medical mask and a pen on it. Healthcare and medical concept. Closeup

As COVID-19 rates are rising throughout the country, employers may want to review the safety measures they are taking to prevent spreading the coronavirus in the workplace. The U.S. Equal Employment Opportunity Commission recently released additional guidance on the interplay between COVID-19 and an employer’s legal obligations under the Americans with Disabilities Act. Key questions and answers regarding steps that employers can lawfully take to safeguard their workplace are summarized below:

  • May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19?  Yes. An employer may ask all employees who are entering the workplace if they have been tested for COVID-19 or have symptoms associated with COVID-19.  An employer may prohibit an employee from physically entering the workplace if he has either tested positive or has symptoms.  Employers may not ask these same questions for employees who are working remotely because soliciting this information must be for the purpose of eliminating a direct threat to the health of other employees, and remote workers cannot pose this sort of threat to employees physically present in the workplace.
  • May employers ask only certain employees about COVID-19 testing or symptoms as opposed to asking all employees?  Yes.  However, the employer must have a reasonable belief based on objective evidence that the specific employee asked may have COVID-19. For example, the employee may be objectively exhibiting COVID-19 symptoms such as a persistent cough.
  • May an employer ask an employee who is physically coming into the workplace whether he has been in contact with anyone who has tested positive for COVID-19 or who has symptoms associated with COVID-19?  Yes.  Employers must make sure that they frame this question as asking for exposure to anyone, not specifically asking about family members.  The Genetic Information Nondiscrimination Act (“GINA”) prohibits employers from asking about employees’ family members’ medical conditions.  Asking about exposure to anyone – beyond just family members – is also a better query because it is more inclusive and better designed to understand an employee’s possible exposure. 
  • May an employer bar an employee from entering the workplace if he refuses to have his temperature taken or to answer questions related to possible COVID-19 exposure or symptoms?  Yes.  Before barring entry, an employer should explain its screening process in an attempt to persuade the employee to comply.  For example, an employer may assure the employee that the medical information collected from the screening is kept confidential and that the employer is simply following health screening recommendations from the CDC.
  • May an employer ask for additional information if an on-site employee calls in sick?  Yes.  During this pandemic, an employer may question an employee about their symptoms if they regularly or occasionally work onsite and report feeling sick.  Relatedly, an employer may ask an employee why they did not report to work if the employee calls off without providing a reason.
  • May an employer ask employees about travel during the pandemic?  Yes.  If the CDC or local public health officials recommend that people quarantine after visiting certain locations, an employer may ask its employees if they have traveled to those locations for work-related or personal travel.