Tag Archives: Coronavirus (COVID-19)

DOL Issues Updated FFCRA Regulations

Contributed by Peter Hansen, September 14, 2020

The U.S. Department of Labor announced revised regulations interpreting the Families First Coronavirus Response Act (FFCRA) in response to a New York federal court decision declaring some FFCRA regulations invalid.  The revised regulations become effective September 16, 2020, and include several changes and clarifications that employers should be aware of:

The Health Care Provider Exception.  The DOL limited the “health care provider” exception (which excluded certain employees from FFCRA eligibility) to employees who are “capable of providing health care services,” including “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”  The DOL also provided a non-exhaustive list of employees who are not health care providers:  “information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers.”  Accordingly, employers in the health care industry must now undertake a position-specific analysis to determine which employees meet the new definition of “health care provider.”

Requiring Documentation Before FFCRA Leave. Employers cannot require the employee to submit documentation prior to the commencement of FFCRA leave.  Employers can, however, continue to require employees to provide documentation supporting their need for FFCRA “as soon as practicable.”

The DOL also doubled down on two of the four significant regulations the New York federal court invalidated:

Work Availability Requirement. FFCRA leave continues to be available only if the employer has work available for the employee to perform. So, if the employer has no work for the employee (due to a furlough, business closure, etc.), then the employee is not entitled to FFCRA leave even if they would otherwise qualify. 

Intermittent FFCRA Leave Only with Employer’s Consent.  Intermittent use of FFCRA leave continues to be available only if the employer allows it – however, the DOL clarified that the “employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis.” Put another way, “[f]or the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.”

The revised regulations include additional rationale for retaining the “work availability” and “employer consent for intermittent leave” requirements, but another lawsuit challenging them is certainly possible and perhaps even likely.  In the meantime, employers should consult with employment counsel on any request for FFCRA leave, especially before denying a request based upon the “health care provider” exception or lack of work available to the employee.

How to Combat Negative Publicity During COVID-19

Contributed by guest author Ryan Jacobson, September 9, 2020

Feedback in form of emotions, smileys, emoji. User experience. Customer feedback. Review of consumer.

With the prevalence of online consumer reviews and merciless labor organizations, companies and their executives are vulnerable to attack for good reason, bad reason or no reason at all. Managing the expectations of your consumers, and of your workforce, is an important place to start. Executives who identify the problem and work diligently to arrive at viable solutions will gain a head start toward preserving the status quo. Media coverage will no doubt accelerate the harm; it is never too late to challenge the story line with a well-crafted statement from the company president or outside counsel. Companies should be prepared to act swiftly and trust their network of advisors to preserve the reputation it took them decades to build.

To illustrate, a company who suffers the loss of an employee to COVID-19 may have to refute unsupported allegations that the victim was infected on the job and counter fears that other workers were exposed. That may lead to the assumption that the company is unwilling to invest in personal protective equipment, or it was otherwise lax in its sanitization procedures – all of which may be patently false. Any related news coverage may likewise impact the company’s image with its customers.

The best way to combat this unexpected publicity is to tackle the problem head-on. Make it clear that the safety and health of your employees at work is a top priority. Instead of unhinging each blade of the rumor mill, explain that fear leads to assumptions, and those as­sumptions interfere with your ability to message the rigorous safety measures the organization has employed to keep its workforce and their families safe.

Explain that these are unprecedented times. That you are doing your best to research and comply with the guidelines put out by local, state and federal agencies considered experts in the field. Be specific and stand firmly behind the authorities you have relied upon, and the steps you have taken to rectify the problem. Alert those concerned that you are routinely monitoring the situation and staying abreast of any changes in the law or recommended best practices. Do not speak generically of your plan; rather, draft a comprehensive, safety protocol with a cover letter to your workforce summarizing the key measures undertaken. Consider providing to the probing reporter a copy of the protocol to demonstrate his source spared some of the key details. It will also reinforce that your organization had a plan in place before the story broke.

Ultimately, everyone wants to be ‘heard,’ which means repeating the concern and explaining the steps the business has taken to reconcile the perceived problem. Debating each false accusation lets the accuser control the narrative. Clear up any material misunderstanding but focus your response (or press release) on the efforts it has (or will) undertake to correct the problem. Use this opportunity to educate the misinformed and instill confidence in the detractors that you have the situation under control.

Federal Court Significantly Changes the FFCRA and Uncertainty Abounds

Contributed by Suzanne Newcomb, August 5, 2020

gavel on white background

As our readers know, the Families First Coronavirus Relief Act (FFCRA) requires employers with less than 500 employees to provide paid leave to employees who are unable to work (or telework) for a variety of COVID-related reasons (including caring for children not in school due to COVID) though December 31, 2020. On April 6, the U.S. Department of Labor (DOL) issued a final rule implementing the FFCRA. Shortly thereafter, the State of New York filed suit claiming the regulations unduly restrict employees’ right to paid leave. This week a federal judge in the Southern District of New York struck down portions of the DOL’s regulations, finding the DOL exceeded its authority. Specifically, the court invalidated the work availability requirement, much of the health care provider exception, the employer consent requirement for intermittent leave, and employers’ right to require documentation in advance of leave. All remaining parts of the DOL regulations are unaffected by the ruling. Because the case was decided under the Administrative Procedures Act, the ruling could apply nationwide (although the Judge did not address the reach of the ruling specifically).  

Work Availability Requirement. The DOL regulations make clear that an employer need only provide paid leave if it has work available for the employee. If there is no work for the employee to do, they are not entitled to paid leave, even if they would otherwise qualify. The ruling struck down the work availability requirement finding it had no basis in the language of the FFCRA itself, leaving employers to wonder whether they might be obligated to pay furloughed workers.   

Health Care Provider Exception. The FFCRA excludes “health care providers” from the universe of employees eligible for leave but, beyond medical doctors, left it to the DOL to define “health care providers.” The DOL defined the term very broadly to include essentially anyone working in the health care space (including, for example, receptionists, janitors, IT personnel). The court concluded the DOL overstepped its bounds and struck down the DOL’s broad definition of “health care providers”). However, it is unclear to which employees the health care provider exception applies because the Judge did not elaborate.

Intermittent Leave Only with Employer’s Consent. The DOL regulations allow eligible employees to take FFCRA leave intermittently where there is no risk that the employee might spread the virus to others (to take care of children at home due to school closings) but only if the employer agrees. The court agreed that limiting the use of intermittent leave was grounded in preventing the spread of COVID and therefore reasonable. However, the court then concluded that requiring employer consent had no basis in the statute, thus paving the way for employees to take intermittent leave over their employer’s objection.

Requiring Documentation Before Leave. The DOL regulations allow an employer to require an employee to provide documentation of the reason for the leave, the duration of the leave, and the authority for the quarantine order (if applicable). The court stated that to the extent these documentation requirements are preconditions to taking leave, they are invalid. Employers can require documentation, but cannot require employees to provide anything more than notice prior to commencing leave.  

What Does All This Mean for Me? The DOL will likely appeal the ruling. However, we do not yet know whether the court of appeals will halt application of the decision while the case works its way through the appeals process. It is also possible that the DOL will revise its regulations in response to the decision. Also, the Judge did not address the reach of the ruling specifically because the State of New York did not seek a nationwide injunction. For now, employers are cautioned not to rely on the provisions the court struck down without first carefully analyzing the situation with trusted employment counsel.   

I Don’t Want to Wear a Mask…Part 2: How Businesses Can Enforce the Policy Requirement

Contributed by Michael Wong, July 24, 2020

Vector attention sign, please wear face mask

With COVID-19 cases surging in numbers, the legal implications of face mask policies for businesses have taken center stage again. 

First a quick recap, from my prior article, ADA Implications, I Don’t Want To Wear a Mask…:

  • Businesses can require employees to wear masks at work and customers to wear face masks when coming into businesses;
  • Businesses can refuse entry or ask customers to leave if they refuse to wear a face mask;
  • For both employees and customers that say they cannot wear a face mask due to a disability or medical condition, the business must engage in the ADA interactive process. The interactive process is different for employees than it is for customers.
    • For employees, the business can request medical documentation. 
    • For customers, the business should not ask for medical documentation.  Rather, the business may ask limited questions such as whether the individual has a disability and whether the disability restricts him or her from wearing a mask.
  • For both employees and customers, a business should try to provide a reasonable accommodation, but may take into consideration safety issues/concerns and whether the requested accommodation is an undue burden.

Next, what other legal concerns are there for a business that requires face masks?  The major issue facing many businesses is how to safely enforce a mask policy. As we have seen from viral videos, asking a customer to put on a face mask can lead to threats of legal action, verbal confrontations and even physical altercations or violence. If an employee is injured during a confrontation with a customer, it will likely qualify as a workers’ compensation claim. Similarly, if the customer threatens to spit or cough on the employee and then, within the next 14 days, the employee has symptoms of or tests positive for COVID-19, there is the possibility that the employee’s illness could qualify as a workers’ compensation injury if they can show it resulted from that interaction. Alternatively, if a customer is hurt, there is the potential for the customer to pursue a personal injury case.  Finally, there is the risk of a discrimination claim, if the business selectively enforces its mask policy based upon a protected status, such as race, age, national origin, etc., or does not take steps to address a customer whose behavior includes making discriminatory or harassing comments.

The best way to limit your exposure to these types of claims is to train employees on your policy, how to communicate your policy and how to address these situations to limit the risk of someone being hurt. The training should address the following:

  • The business’ policy on face masks – including your posters and where they are located.
  • Understanding business’ ADA obligations – e.g. questions that customers may be asked regarding their reason for not wearing a mask, how to respond if a customer has a disability and understanding that posters/flyers alleging that the ADA prohibits businesses from requiring face masks are false and not issued by the EEOC or Department of Justice.
  • Determine how the business will enforce the policy – i.e. whether an employee will monitor entrances, whether only certain employees or members of management should be involved in addressing compliance issues with customers, etc.
  • Address what employees should do if a customer comes in without a mask – e.g. notify management and other employees before addressing the issue with the customer.
  • Remind all employees to be polite and respectful at all times when discussing the mask requirement with customers, even if the customer gets argumentative.
  • Methods to avoid conflict – e.g. asking the customer to discuss the issue outside of the store, and not raising your voice even if the customer does.
  • Methods to de-escalate conflicts – e.g. being polite, even if the customer is not, having more than one employee present, so if the customer starts verbally or physically threatening one employee, that employee may step back and the other employee can redirect the customer to try to de-escalate the situation.
  • Alternative methods of providing services/products to a customer who has a disability and cannot wear a mask – e.g. employee gathers products and brings to customer outside of the store, etc.
  • When and how to contact law enforcement to address compliance issues.
  • Understand the proper way to document any incidents and preserve evidence, including incident forms, witness statements, taking pictures of where incidents occurred, and if applicable, securing security videos of incidents.

The list above is not exhaustive—and businesses with additional questions regarding mask policy enforcement should contact legal counsel to discuss how best to resolve such questions.

Save the Date! Complimentary Webcast July 30th: Back to School: What Employers Need to Know Related to COVID-19 and Childcare for the Upcoming School Year

As school districts announce their plans to start the school year on modified schedules with continued digital learning, employers need to anticipate the accommodations parents will request and consider leave policies.

Join Allison Sues and John Hayes on Thursday, July 30, 2020 at 10AM CT as they discuss leave eligibility under the Families First Coronavirus Response Act (FFCRA), employee accommodations, and more. Key highlights include:

  • An overview of the different approaches to school openings by states, local governments, and school districts to try to reduce the spread of COVID-19 in the fall
  • Review of employee eligibility for FFCRA paid FMLA leave
  • Practical tips for employers accommodating employees who have school aged children
  • Updates on any new or potential legislation

COVID-19 “Close Contacts” Just Got a Little Closer

Contributed by Suzannah Wilson Overholt, July 1, 2020

Social distancing, black and white figures with face masks

As has come to be expected, the guidance regarding COVID-19 has changed again. This time the CDC narrowed the definition of who constitutes a “close contact” for purposes of tracing people with potential exposure to someone who has COVID-19.

While a “close contact” is still defined as someone who was within 6 feet of an infected person for at least 15 minutes, what has changed is when the exposure occurred during the ill person’s sickness. The relevant time is now from two days before illness onset (or, for asymptomatic patients, two days prior to specimen collection) until the time the patient is isolated. 

Before this change, the relevant period was from two days before symptom onset until the ill person met the criteria for discontinuing home isolation, which requires the person to be symptom free for at least three days and for at least 10 days to pass from symptom onset or, if someone is being tested, to be symptom free for three days and to have two negative tests at least 24 hours apart.

The new definition effectively reduces the time frame for identifying close contacts to as little as a few days – two days before the symptoms started to the start of home isolation could occur in three days. This change should be helpful to anyone who is faced with the task of identifying close contacts of individuals with COVID-19 – including employers, contact tracers, and public health officials. Their jobs just got a bit easier since there is now a smaller field of contacts to consider. The guidance also makes sense since, presumably, the ill person should not have any contacts (outside household members) once home isolation begins.

The CDC’s guidance continues to remind us that the 15 minute standard is not necessarily a rigid test. Factors to consider include proximity, the duration of exposure (e.g., longer exposure time likely increases exposure risk), whether the individual has symptoms (e.g., coughing likely increases exposure risk) and whether either the ill person or contact was wearing an N95 respirator (which reduces the risk of exposure). Note that using a fabric face covering should not be considered as reducing risk.

Different criteria apply in healthcare settings, where a prolonged exposure is defined as any exposure greater than 15 minutes because the contact is someone who is ill. While the CDC recognizes that brief interactions are less likely to result in transmission, symptoms and the type of interaction (e.g., did the person cough directly into the face of the individual) are important.

Employers must still be vigilant about identifying close contacts of any employees who have COVID-19. If you have not established an internal policy for doing so, now is the time.

Charting the Course for H-1Bs and Other Visas Through COVID-19

Contributed by Jacqueline Lentini McCullough, May 27, 2020

USA visa in a passport – travel background

U.S. Immigration laws and regulations have always required immigration attorneys to have a certain level of creativity to problem solve. Keeping current on regulation changes, combined with creativity, helped me navigate the paths to my clients’ goals even when they took unexpected turns.

The COVID-19 pandemic has taken creative problem solving and preparedness to a whole new level.

Here are six situations I am helping clients navigate.

Work-from-Home Effect on H-1Bs

U.S. Citizenship and Immigration Services (USCIS) is a traditional organization that has not caught up with some of the modern work world’s innovations. They prefer brick-and-mortar offices as evidence H-1B employees are working.

On a temporary basis, given our reality in many states, H-1Bs working from home is okay within certain parameters. However, if work from home were to become a permanent change, it could jeopardize their status.

Compliance for H-1B Employees Working from Home

H-1B employees working from home need to post the company’s Labor Condition Application (LCA) notice in their home for 10 consecutive days and complete the posting sheet. The posting sheet must then be sent to the employer and placed in the employer’s Public Access File.

Though this procedure sounds silly, it is important to comply with USCIS regulations.

Work and Pay Reduction Effects on H-1Bs

Clients have asked if they can reduce all of their employees’ hours by 20 percent to avoid work force reductions and have their H-1Bs remain in good standing.

The answer is it depends.

If a wage range was listed on the LCA, it will work.

Otherwise, pay reductions would still need to maintain the prevailing wage or risk violating Department of Labor (DOL) regulations and incurring fines. Pay reductions will require filing a new LCA.

Depending on the person’s salary, a ten percent reduction may not negatively impact the H-1B visa holder’s status.

Work Force Reduction Effect on H-1Bs

H-1B status is based on continuous employment during the visa’s duration. Loss of a job jeopardizes the visa. If terminated from the job, the H-1B employee has 60 days to find another one and to amend the H-1B before losing status.

Employers who decide to terminate an H-1B employee must notify the employee and USCIS and offer the employee the reasonable cost of return transportation.

Application Filing During COVID-19

We are in the midst of H-1B filing season and are continuing to file L-1s, Employment Authorization Documents (EADs) and green card applications on behalf of clients.

All applications require a “wet signature,” meaning the applicant signs with ink and there is evidence the application is original, like having an indentation on the reverse side where the pen was pressed into the paper.

For the moment USCIS is accepting copies of wet signatures, but I am having clients send the originals as well just to be ready for any inquiries. E-signatures are not the same and are not accepted.

USCIS’s preference for brick-and-mortar offices to show green card applicants are gainfully employed makes applying for a green card dicey right now. I’m advising clients who can wait to do so.

For others who may be nearing the end of their 6-year H-1B stay, I am helping them assemble the best application possible given the circumstances.

Travel During COVID-19

Many embassies and consulates have reduced or suspended visa processing services. Some posts are starting to accept appointments for late July/early August, such as the U.S. Embassy in London and the U.S. Consulate in Frankfurt.

Acquiring passport photos has become difficult. Walmart is now offering a service where you can upload photos taken following U.S. federal guidelines and they will print them for you to pick up.

Visa holder clients who had been planning to travel because their status was expiring have had to file with immigration because they can’t leave. Clients and their family members who have passports expiring soon have had to get extensions.

Visitors in the U.S. who came via the Visa Waiver Program (VWP), which allows citizens of participating countries to travel to the U.S. for up to 90 days without a visa, have had trouble securing travel for when their 90 days has expired.

The U.S. Custom and Borders Protection (CBP) issued guidance to ports of entry to grant these visitors a 30-day extension via a request for Satisfactory Departure. To avoid jeopardizing their ability to visit the U.S. in the future, VWP visitors need to request Satisfactory Departure before their 90 days expire.

As you can see, the intricacies of immigration regulations coupled with COVID-19 complications require diligence and creative problem solving to keep visa holders in status and applications in process.

COVID-19 Illinois Workers’ Compensation Amendment

Contributed by guest author Matthew Horn, May 26, 2020

After the Workers’ Compensation Commission withdrew its proposed Emergency Rule declaring that any employee in an “essential industry” contracting COVID-19 will be rebuttably presumed to have contracted COVID-19 at work, the legislature and business groups met and worked through a proposed amendment to the Workers’ Compensation Act addressing the issue.

Under the proposed amendment, which appears set to pass, first responders, frontline workers, and most “essential employees” will be rebuttably presumed to have contracted COVID-19 at work, if they have a confirmed case of COVID-19, and the presumption is not rebutted by any of the following: 1) the employee was not in the workplace for 14 days prior to the contracting COVID-19; or 2) the employer complied with all local and CDC guidance to protect its employees from COVID-19; or 3) the employee was exposed to COVID-19 by another source, such as a spouse.  Notably, even if an employee is successful in making such a claim: 1) the employer’s MOD rate will not be impacted; and 2) the employer is entitled to a credit against any TTD benefits for sick leave or other benefits paid to the employee.

Moving forward, employers should comply with all local and CDC guidance, and prepare a questionnaire to be filled out by employees with confirmed COVID-19 cases, inquiring as to the employee’s COVID-19 exposure—much like an accident report. Employers can use those questionnaires when evaluating a workers compensation claim.

Another Symptom of COVID-19: Union Organizing

Contributed by Beverly Alfon, May 26, 2020

Labor Law Lawyer Legal Business Internet Technology Concept.

If your “essential” workforce is not already organized, consider this your wake-up call. 

As this pandemic has worn on, and more “essential workers” have fallen ill to COVID-19, labor unions have become noticeably more active. Just last Monday, the AFL-CIO filed suit in federal court to compel the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard, aimed at forcing the agency to mandate certain safety actions by employers. 

Noticeably, the rhetoric from the AFL-CIO has been focused on “all workers” as opposed to “their members.” Plagued by a continuing decline in membership, unions seemingly recognize that they cannot let this opportunity to organize more workers pass them by. In an April 30 opinion piece published by the Chicago Sun-Times, Gary Perinar, executive secretary-treasurer of the Chicago Regional Council of Carpenters, declared: “The importance of unions is more obvious than ever during the COVID-19 pandemic…Of all the injustices exposed by this public health crisis, the risks faced by non-union workers are the most apparent.” It was a direct call to non-union workers. 

Indeed, many of the headlines about labor activity during this pandemic have not involved unions. For example, there have been walkouts to protest unsafe work conditions in nonunion workplaces such as Amazon warehouses in Staten Island, New York; Amazon-owned Whole Foods grocery stores in Chicago and other locations; and McDonalds workers in Chicago have sued the corporation over safety concerns (albeit, this one was financially backed by the S.E.I.U.). Even gig workers delivering groceries for Instacart called for a work stoppage. Such activity, of course, confirms that some workforces are ripe for union organizing. 

As businesses begin to reopen (and essential businesses begin to move forward), they will be forced to deal with employee concerns and demands over personal protective equipment, wages, hazard pay, paid sick leave, disability accommodations, and the status of laid off employees.  These very matters – job insecurity, safety concerns, and benefits – are what unions rely upon to organize workers. 

So now what?  Get your union avoidance plan in place. 

  1. Identify who your “supervisors” are (as defined by the National Labor Relations Act) and get them trained on identifying and dealing with union organizing. A “supervisor” cannot be represented by a union. They are also agents of your company, so training is key. They should be directed on what their role should be in avoiding union organization and what they can and cannot do in the event that union organizing has already begun.
  2. Review policies for clarity, perceived unfairness, and employee relations. A union will often focus employees on unfair policies. 
  3. Benchmark wages and benefits. A union will often promise more money. So, it is best to be prepared with a response.
  4. Identify employee relations problems now and deal with them before employees turn to a union. Get feedback from the group of employees who are vulnerable to union organization. Sometimes, it is as simple as tweaking a supervisor’s management style.
  5. Train management on positive employee relations. Your supervisors need to know about the importance of providing regular feedback to employees and maintaining open communication with them.
  6. Get a communications plan in place in the event that union organizing begins or has begun. 

While you may already have much to consider during these unusual times, being aware of the potential threat of union organizing at your workplace is not enough. Assessment and planning are necessary so that if the need arises, response can be timely, effective, and within the parameters of the National Labor Relations Act.

OSHA Revises COVID-19 Guidance….Again

Contributed by guest author Matthew Horn, May 22, 2020

Previously, OSHA issued guidance indicating that most employers only had to record or report confirmed COVID-19 cases when provided with objective evidence that an employee contracted COVID-19 at work.  In practice, this put the burden on employees to submit evidence to employers establishing that their COVID-19 cases were contracted at work.

OSHA recently issued revised guidance on this issue, which goes into effect on May 26, 2020. Under the revised guidance, OSHA puts the burden on the employer to make a “reasonable determination” as to whether a confirmed COVID-19 case was contracted at work. In order to make that determination, OSHA suggests that employers:

1) Question the employee as to how he/she believes he/she contracted COVID-19;

2) Discuss with the employee his/her out-of-work activities that may have resulted in exposure; and

3) Review the employee’s work environment for potential COVID-19 exposure.

If, after taking those steps, the only logical explanation is that the employee contracted COVID-19 at work, then the case should be recorded or reported to OSHA, as appropriate. 

Moving forward, employers should prepare a questionnaire to be filled out by employees with confirmed COVID-19 cases, inquiring as to the topics OSHA has identified in its guidance—much like an accident report. Employers can use those questionnaires to guide them in their OSHA-related decision making process, as well as if/when a workers’ compensation or civil suit is filed.