Category Archives: News & Tips

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

Forgiveness Requirements Relaxed with Passage of Paycheck Protection Program Flexibility Act

Contributed by Rebecca Dobbs Bush, June 5, 2020

On June 5, 2020, President Trump signed the Paycheck Protection Program Flexibility Act. Notable changes will allow businesses more time to spend loan proceeds on permitted costs. This is significant relief for those businesses that were unable to continue operations and bring employees back to work.  With many of those employees being lower paid, paying them to stay at home was not well received as it interfered with the higher amounts of unemployment compensation they could otherwise receive.

The significant changes allowed by the PPP Flexibility Act are:

  • The period during which borrowers have to account for payroll and non-payroll expenses has been expanded from 8 weeks to 24 weeks.
  • Borrowers are only required to spend 60% on payroll costs and can spend 40% on non-payroll costs.  This is revised from the previous ratio of 75/25.  (Note that the definition of payroll and non-payroll costs remains unchanged).  This means a borrower has 16 weeks longer than originally legislated to cover rent and other permitted non-payroll costs.
  • Certain scenarios can provide for a borrower to be excused entirely from the FTE calculation. This means an employer that is unable to maintain the same employee levels during the 24-week period may not need to have the forgiveness of a loan prorated based upon a reduction in their average FTEs.
  • Repayment terms are modified.  Notably, the first payment will not be required to be made within 6 months of loan origination.  Instead, a borrower has 10 months from either the date the covered period ends or from 12/31/20 (whichever is later) to apply for forgiveness.  Initial payment is not due until forgiveness is determined.
  • The previous “cure” deadline of 6/30/20 where borrowers could rehire employees and/or reinstate salary levels has been extended to 12/31/20.
  • PPP borrowers are permitted to utilize the provision of the CARES Act that permits delay of payment of payroll taxes.

CDC Issues New Relaxed Guidelines for Safety Practices for Essential Workers Potentially Exposed to COVID-19

Contributed by John Hayes, April 10, 2020

An important question for employers in essential industries is whether its employees should come to work after potential exposure to COVID-19.  The previous guidance from the Centers for Disease Control and Prevention (“CDC”) recommended employees stay home for 14 days after exposure.  However, late on April 8, 2020 the CDC issued new guidelines — abandoning the former restrictions — for employers of critical infrastructure workers in essential sectors such as health care, manufacturing, food and agriculture, information technology, and transportation.  The CDC guidance is designed to educate employers on the procedures to follow in allowing employees to return to work after having been exposed to the COVID-19, and to get employees in essential sectors back to work sooner rather than later.   

The CDC advises that critical infrastructure workers may be permitted to continue to work, or return to work, following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented by the employer.  Specifically, the CDC says employers should adhere to the following practices when an employee has been potentially exposed to COVID-19 (a potential exposure means a household contact or having close contact within six feet of an individual that has confirmed or suspected COVID-19, up to 48 hours before the individual became symptomatic):

  • Pre-Screen: Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.
  • Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.
  • Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.
  • Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
  • Disinfect and Clean work spaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.
  • Implement the CDC’s prior guidance for employers to plan and respond to COVID-19: Among other recommendations, increase air exchange in the workplace. 

The CDC further recommends that if the employee becomes sick during the day, they should be immediately sent home and surfaces in their workspace should be cleaned and disinfected pursuant to CDC guidelines.  Information on persons who had contact with the ill employee during the time the employee had symptoms and 2 days prior to symptoms should be compiled.  Others at the facility with close contact within 6 feet of the employee during this time would be considered exposed.

This is just the first step the federal government is taking towards reopening the country, and is only a small part in the ever-evolving guidance to employers from the CDC.  Employers of workers in an essential business sector should be mindful of these new guidelines issued by the CDC for both the safety of its workforce and potential pitfalls of allowing, or not allowing, an employee potentially exposed to COVID-19 to come to work.  We will continue to monitor this very fluid situation and issue updates here as soon as things change.

BREAKING NEWS: Illinois Recreational Cannabis Law Protections for Employers & the Workplace Clarified!

Contributed by Jeffrey A. Risch, November 15, 2019As Illinois set out to become the first state to legalize recreational cannabis through statutory authority, the legislative intent for protections for employers and the workplace were intended to include some of the strongest in the nation. However, when the dust settled and the statutory framework was analyzed, there appeared to be room for reasonable minds to have differing opinions on what the law actually meant for the workplace.

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On one hand, could employers lawfully implement reasonable, non-discriminatory drug testing policies aimed at prohibiting applicants and employees from lawfully using recreational cannabis and gaining or maintaining employment? On the other hand, would employers be violating the law if they did not hire someone who tested positive for THC or if they could not ultimately demonstrate that an employee was actually impaired while on the job? These sorts of questions lingered. A quick online search trying to find answers would only frustrate HR professionals, safety managers, and business owners further. Clarity was needed.Therefore, through the efforts of several business groups and trade associations (including the Illinois Chamber of Commerce) working across both political aisles, SB1557 passed the Illinois General Assembly on November 14, 2019. While SB1557 includes wrinkles for the licensing, manufacturing and distribution of recreational cannabis in Illinois, it also contains language found below designed to protect employers from litigation.In essence, the language attempts to clear up concern that an employer may have been required to show actual impairment in the workplace vs. simply being able to implement and follow a reasonable, non-discriminatory drug testing policy.   Specifically, Section 10-50 of the law will now read as follows (changes in bold):

(410 ILCS 705/10-50) Sec. 10-50. Employment; employer liability.(a) Nothing in this Act shall prohibit an employer from adopting reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call provided that the policy is applied in a nondiscriminatory manner.(b) Nothing in this Act shall require an employer to permit an employee to be under the influence of or use cannabis in the employer’s workplace or while performing the employee’s job duties or while on call.(c) Nothing in this Act shall limit or prevent an employer from disciplining an employee or terminating employment of an employee for violating an employer’s employment policies or workplace drug policy.(d) An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others. If an employer elects to discipline an employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.(e) Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for:

  1. actions taken pursuant to an employer’s reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test; , including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing under the employer’s workplace drug policy, including an employee’s refusal to be tested or to cooperate in testing procedures or disciplining or termination of employment;actions based on the employer’s good faith belief that an employee used or possessed cannabis in the employer’s workplace or while performing the employee’s job duties or while on call in violation of the employer’s employment policies;actions, including discipline or termination of employment, based on the employer’s good faith belief that an employee was impaired as a result of the use of cannabis, or under the influence of cannabis, while at the employer’s workplace or while performing the employee’s job duties or while on call in violation of the employer’s workplace drug policy; orinjury, loss, or liability to a third party if the employer neither knew nor had reason to know that the employee was impaired.

(f) Nothing in this Act shall be construed to enhance or diminish protections afforded by any other law, including but not limited to the Compassionate Use of Medical Cannabis Pilot Program Act or the Opioid Alternative Pilot Program.(g) Nothing in this Act shall be construed to interfere with any federal, state, or local restrictions on employment including, but not limited to, the United States Department of Transportation regulation 49 CFR 40.151(e) or impact an employer’s ability to comply with federal or state law or cause it to lose a federal or state contract or funding.(h) As used in this Section, “workplace” means the employer’s premises, including any building, real property, and parking area under the control of the employer or area used by an employee while in the performance of the employee’s job duties, and vehicles, whether leased, rented, or owned. “Workplace” may be further defined by the employer’s written employment policy, provided that the policy is consistent with this Section.(i) For purposes of this Section, an employee is deemed “on call” when such employee is scheduled with at least 24 hours’ notice by his or her employer to be on standby or otherwise responsible for performing tasks related to his or her employment either at the employer’s premises or other previously designated location by his or her employer or supervisor to perform a work-related task.

Additionally, much needed clarification for public employers was also included concerning how off duty use of cannabis by certain emergency personnel should be administered. The following was added to Section 10-35. Limitations and penalties:

(410 ILCS 705/10-35)(8) the use of cannabis by a law enforcement officer, corrections officer, probation officer, or firefighter while on duty; nothing in this Act prevents a public employer of law enforcement officers, corrections officers, probation officers, paramedics, or firefighters from prohibiting or taking disciplinary action for the consumption, possession, sales, purchase, or delivery of cannabis or cannabis-infused substances while on or off duty, unless provided for in the employer’s policies. However, an employer may not take adverse employment action against an employee based solely on the lawful possession or consumption of cannabis or cannabis-infused substances by members of the employee’s household. To the extent that this Section conflicts with any applicable collective bargaining agreement, the provisions of the collective bargaining agreement shall prevail. Further, nothing in this Act shall be construed to limit in any way the right to collectively bargain over the subject matters contained in this Act;

These changes help to better assure employers that they have the ability to implement fair, reasonable drug testing policies designed to protect their employees and the public. Recreational consumers will certainly have the legal right to use cannabis, but the employer should have the legal right to say “you better not have THC in your system to become or remain employed here.” Of course, any drug testing policy must be carefully vetted, designed, and implemented. After all, lawyers will be lawyers. 

While many questions still remain and medicinal usage requires a different analysis (for now) it appears employers can take better comfort and be more confident in creating policy designed to maintain a safe and healthy workplace through reasonable drug testing policies. However, employers must continue to carefully examine their own unique industry, risks and risk tolerances, together with their geographic footprint and applicant pool. The drug testing policy and drug-free workplace program for the “widget manufacturer” in Peoria is likely to be vastly different than that of the “accounting firm” in Schaumburg.

U.S. Citizenship and Immigration Services Policy Challenged on Third-Party Worksites

Contributed by Jacqueline Lentini McCullough, June 7, 2019

A U.S. Citizenship and Immigration Services (USCIS) memorandum-issued policy is at the heart of a court case challenging recent H-1B visa denials.

The “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” memo was issued on February 20, 2018 without any notice or comment period required by the Administrative Procedure Act (APA). The memo directs adjudicators to ensure a contractor has actual and exclusive “control” of the contractor’s employees at the third-party site as a criterion for visa approval. This requirement comes from a rigid interpretation of the Department of Labor’s definition of “employer” which reads: “Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee….” Instead of considering any one of these circumstances as qualifying, USCIS effectively changed the “or” to an “and,” requiring all of them.

H-1B visa denial rates skyrocketed the past two years, especially for contractors working at third-party worksites. Denial rates for initial H-1B petitions in Fiscal Year (FY) 2018 were 1 % for large technology companies but 34%-80% for companies that put H-1B visa holders at third-party sites. Third-party site work factors highly in IT consulting.

Visa Stamp

After having many H-1B visas denied or issued for short validity periods, several IT consulting firms filed lawsuits against USCIS. Those lawsuits have been consolidated into one under the aegis of the IT industry trade association ITServe Alliance.

Judge Rosemary Collyer presided over a court hearing of ITServe Alliance v. USCIS on 05/09/2019. Plaintiff attorneys produced data showing from FY 2012 to FY 2017, USCIS approved 94 % of their client’s ERP analysts’ H-1B petitions. During FY 2018 to FY 2019, the approval rate dropped to 19%.

Judge Collyer has taken issue with the disparate visa approval rates between different industries and USCIS’s requirement that contractors show three years’ worth of specific work assignments for H-1B petitioners when they are allowed “nonproductive” time as long as they are paid.

As Judge Collyer considers the case, she will rule on whether discovery is warranted to find out what has caused the different adjudications of H-1B petitions. Not only are H-1B approval rates markedly down for the IT industry, but requests for evidence and H-1B petition processing times have ballooned.

Requests for evidence (RFE) for all H-1B petitions have jumped from below 30% in first quarter FY 2017 to 60% in first quarter FY 2019. Meanwhile the number of petitions approved with a completed RFE has sunk from 80 % to just over 60 %.

Stay tuned as we will continue to provide updates as new information emerges.

Gig Workers: An Evolving Trend or a Class Action Waiting to Happen?

Contributed by Rebecca Dobbs Bush, June 4, 2019

The workplace is changing: Millennials, Generation Z-ers, and Baby Boomers looking to supplement their retirement income. These individuals are more interested in autonomy and avoiding bad managers, office politics and lengthy, non-productive staff meetings. Plus, the tax-savvy individual knows the economic advantage of having access to traditional business deductions through a Schedule C, rather than being limited to the standard deduction or itemizing as a W-2 employee would be.

Business concept. Isolated on white

More and more businesses also seem to be interested in the advantages of a gig workforce, also called freelancers, subcontractors, contingent workforce, and more. After all, it allows a business to gain access to skills and talent without having to commit to hiring an individual as a full-time employee. According to Deloitte’s 2018 Global Human Capital Trends study, more than 40% of workers in the U.S. are employed in “alternative work arrangements.” These arrangements include contingent, part-time, or gig work.

So, is it a win-win for all involved? The problem is that current employment laws are simply not evolving at the pace required to keep up with this modern-day independent contractor. With this, a minefield is created for the unwary business. 

Under the Obama administration, the DOL had issued broad guidance suggesting that gig workers were likely to be considered “employees.” That guidance was rescinded with the change in administration. Then, on April 29, 2019, the DOL issued an atypical, 10-page opinion letter on the subject. The opinion letter lays out a detailed analysis of all the relevant factors for independent contractor status and then comes to the conclusion that the gig workers at issue are not employees.

For now, if your business is participating in the trend of the gig worker, you want to make sure the relevant factors are met. Those factors and the analysis change depending on which law the issue is being examined under. Some of the more common factors are: control, permanency of the relationship, integrality to business operations, ability to sustain a profit or loss, accountability for operating expenses, etc. In other words, is the individual truly operating as a stand-alone business? 

If you choose to engage gig workers, make sure to avoid these common mistakes:

  • Do not treat the individuals as employees. Do not even use the word “hire.” Instead, you are “engaging” their services, or “contracting” with them. And, commit to the arrangement in writing.
  • Do not be tempted to offer them benefits. Putting them in your health plan or letting them participate in a 401(k) will jeopardize any argument that they are not otherwise an employee. If it walks like a duck, quacks like a duck….
  • Do not make them sign a non-compete agreement. A critical factor in most cases is whether the individual is free to take on work from others or whether they are completely dependent on your business for work. If the individual is subject to a non-compete agreement and effectively being prevented from working for others, you will not win on this factor.

Because of the amount of exposure involved with a misclassification lawsuit, it is worthwhile to have competent employment counsel review your situation and any independent contractor agreement or contracts that you are using to help you make sure it’s being handled in the best possible manner to strengthen the individual’s status as an independent contractor.