Businesses are constantly challenged by the ever-evolving landscape of labor and employment law, with new legislation and judicial developments occurring almost daily fueling a seemingly never-ending stream of litigation. For companies operating in multiple states, complying with this patchwork of federal, state, and local laws and developments can be daunting. Knowing these issues are a top concern for management and in-house counsel, Morrison Foerster keeps pace with this rapidly evolving landscape. MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues covering key judicial, litigation and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Co-Chair, Global Employment and Labor Practice

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Andrew Turnbull represents companies on a broad range of labor and employment litigation and counseling matters. He has successfully defended clients in complex employment litigation before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, including advising on all aspects of OFCCP compliance, creating and implementing affirmative action plans, defending OFCCP audits and onsite investigations, conducting mock pay equity audits, drafting and developing business ethics policies and programs, and complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act.

Andrew Turnbull

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MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues, covering key judicial, litigation, and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits. To learn more about our capabilities, please visit the <a href="https://www.mofo.com/capabilities/employment-labor" target="_blank">Employment + Labor</a> practice page and read about our <a href="https://www.mofo.com/people?practices=Employment%20%2B%20Labor" target="_blank">Team</a>.

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Fourth Circuit Stays Injunction of Trump DEI Executive Orders

President Trump Rescinds Affirmative Action for Federal Contractors and Requires Enforcement Plan to End Unlawful DEI at Private Companies

FAR Council Withdraws “Pay Equity and Transparency” Proposed Rule

The “Preventative Duty”: New Law Places Active Duty on Employers in the UK to Prevent Sexual Harassment in the Workplace

Good News for Employers: Texas Court Blocks FTC’s Non-Compete Ban

Return-to-work orders, employee safety, and inevitable litigation arising from the COVID-19 pandemic are top of mind for employers across every industry around the globe. In this webinar, Morrison & Foerster LLP and Sard Verbinnen & Co. team up to offer timely advice on how to navigate the urgent legal and communications-related issues surrounding the return of employees to the workplace in the wake of the COVID-19 pandemic and how to reduce legal and reputational risk. Speakers include:<ul><li>Emily Claffey, Managing Director, Sard Verbinnen & Co., moderates</li><li>Ellen Davis, Managing Director, Sard Verbinnen & Co.</li><li>Janie Schulman, Partner, Employment + Labor Group, Morrison & Foerster LLP</li></ul>Watch the <a target="_blank" href="https://www.mofo.com/resources/video-audio/200528-legal-communications-considerations.html">full video</a>.

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Legal & Communications Considerations in the COVID-19 Environment: Return to Work

Legal & Communications Considerations in the COVID-19 Environment: Return to Work

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Return-to-work orders, employee safety, and inevitable litigation arising from the COVID-19 pandemic are top of mind for employers across every industry around 

Businesses around the country closed their physical doors abruptly weeks ago as state governors signed executive orders intended to stem the tide of new COVID-19 cases and save lives. Just recently, the first states to allow limited business openings have released guidelines for businesses to continue to reduce the spread of the virus when they reopen. These guidelines are a first look at the workplace hygiene rules that will apply to employers as businesses continue to reopen. Businesses that are planning ahead can be proactive by considering how they can implement these measures.Read our <a href="https://www.mofo.com/resources/insights/200505-first-state-reopen-businesses.html" target="_blank" style="font-weight: bold;">client alert</a>.

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First States to Reopen Businesses Provide Glimpse of New Workplace COVID-19 Hygiene Rules for Employers

Practical Considerations for Requiring Employees to Report to Work in Light of COVID-19 Stay-at-Home Orders

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Businesses around the country closed their physical doors abruptly weeks ago as state governors signed executive orders intended to stem the tide of new COVID-1

First States to Reopen Businesses Provide Glimpse of New Workplace COVID-19 Hygiene Rules for Employers

We have waited for weeks that seemed like years for the government to allow us to reopen our businesses and schools; and, now that the big day is just around the corner, we must have plans in place to protect our employees and customers or clients (and ourselves as well). The Centers for Disease Control (CDC) has anticipated this day and, on April 28, published its reopening guidance for cleaning and disinfecting public spaces, workplaces, businesses, schools, and homes. There are three elements for employers (and everyone else), all designed to reduce the risk of exposure to COVID-19:<h3 style="text-align: center;">Develop a plan</h3><h3 style="text-align: center;">Implement that plan</h3><h3 style="text-align: center;">Maintain and revise that plan as needed</h3>Here are the highlights of the CDC’s recommendations for each of these categories:<h3>DEVELOP YOUR PLAN</h3>Depending on the size of your organization, you may want to appoint a small committee and divide physical areas or groups of employees into to sub-groups with different needs. For your business as a whole and for each group, the plan should include:<ol><li>Determine what needs to be cleaned. If the area is outdoors, disinfection is not generally required, although some frequently touched outdoor items will need to be disinfected. If the premises have not been occupied for seven days or more, normal cleaning will suffice. If the entire building has been closed for a substantial period of time, the water system should be checked.</li><li>Determine what needs to be disinfected. Frequently touched hard surfaces should be routinely disinfected (e.g., tables, doorknobs, light switches, handles, desk, keyboard, toilets, faucets, and sinks).</li><li>Soft and porous items are more difficult to disinfect, and those items should be stored if possible. If they are necessary for your business, they should be cleaned or laundered following the manufacturer’s directions.</li><li>For items that must be cleaned and disinfected, clean first (with soap and water), then disinfect with an EPA-approved disinfectant (basically, one-third cup bleach to one gallon of water).</li><li>Identify the employees who will be responsible for moving items that are to be stored and those responsible for washing and disinfecting. Don’t hoard but do make sure you have sufficient soap and disinfectants on hand: and, to the extent potent disinfectants will be used, be sure you have the appropriate masks on hand. (Depending on local guidelines for reopening, all employees may be wearing masks anyways and, when necessary, gloves. See <a href="https://elc.mofo.com/topics/covid-should-employers-require-employees-to-wear-facemasks.html" target="_blank">our recent ELC blog post</a> for more information about masks in the workplace.). For details about the safety of your custodial staff, see https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html.  </li><li>To safely reopen your business, you must be sure your employees maintain safe behavioral practices (e.g., social distancing, frequent hand washing, wearing masks and gloves, staying home when sick).</li><li>Adopt practices that reduce the possibility of exposure. Encourage employees to disinfect hard surfaces before and after they use them (copy machines, printers, keyboard). Reduce the use of porous products.</li></ol><h3>IMPLEMENT YOUR PLAN</h3>The person (or group of people) supervising your plan should read all manufacturers’ instructions for the cleaning and disinfection products you will be using (and, if you have them, the cleaning instructions that came with your furniture and equipment). The next step is obvious: put on your masks and gloves, and start cleaning.<h3>MAINTAIN AND REVISE YOUR PLAN</h3>If it becomes apparent that a cleaning procedure used for certain items is not working, change the procedure. Remember, the goal is to reduce the risk of exposure to the virus. If the CDC or other governmental entity publishes revised procedures, update your plan as necessary.This CDC guidance on cleaning and disinfecting is only the beginning of the guidance on reopening. On April 30, 2020, CNN reported that the CDC “<a target="_blank" href="http://cdn.cnn.com/cnn/2020/images/04/30/reopening.guidelines.pdf">drafted a 17-page document</a> that details interim guidance on how businesses, schools, churches, mass transit, and other organizations should handle safely reopening to the public amid the coronavirus pandemic.”<a href="file:///C:/Users/btk1/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234235209-v2-Reopening_guidelines.docx#_edn1">[i]</a> The document, which lays out a three phase plan for reopening, reportedly remains under review by the Trump Administration.<a href="file:///C:/Users/btk1/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234235209-v2-Reopening_guidelines.docx#_edn2">[ii]</a> Although the rules for reopening will vary by state and even county, many of the country’s governors and state and local public health officials will no doubt look to the CDC guidance when crafting reopening rules for employers. We are monitoring developments and will report further when the draft guidance is finalized.<a href="file:///C:/Users/btk1/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234235209-v2-Reopening_guidelines.docx#_ednref1">[i]</a> “<a href="https://www.cnn.com/2020/04/30/health/coronavirus-usa-cdc-reopening-bn-wellness/index.html" target="_blank">CDC's draft guidance for reopening amid coronavirus includes spaced-out seating in schools, disposable menus in restaurants</a>,” CNN, 4/30/20<a href="file:///C:/Users/btk1/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234235209-v2-Reopening_guidelines.docx#_ednref2">[ii]</a> Id.

Cleaning the Workplace in Anticipation of Reopening—And Keeping it Clean!

We have waited for weeks that seemed like years for the government to allow us to reopen our businesses and schools; and, now that the big day is just around th

Cleaning the Workplace in Anticipation of Reopening—And Keeping it Clean!

On April 17, 2020 and April 23, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) again revised its guidance for employers dealing with the COVID-19 pandemic, this time providing advice involving disability accommodations under the Americans with Disabilities Act (ADA) and claims brought under Title VII of the Civil Rights Act (prohibiting discrimination on the basis of race, color, national original, religion and sex) and under the Age Discrimination in Employment Act. These guidelines apply to employees currently working in businesses permitted to remain open under the various stay-at-home orders in effect around the country and in jurisdictions with no stay-at-home orders and to employees who will return to work as the stay-at-home orders are lifted. Most notable, for the first time, the EEOC announced it is permissible for employers to test employees returning to work for the presence of the Coronavirus. Here are the key points:<h3>ADA Issues</h3>1.    During the pandemic, if an employee requests an accommodation for a medical condition either at home or in the workplace, may the employer ask for information to determine if the condition is a disability?Yes, if it is not obvious or already known. The employer may request medical documentation sufficient to determine whether the employee’s “disability” is covered by the ADA and whether the requested accommodation is required (including how the proposed accommodation will enable the employee to continue performing the “essential functions” of his or her position). Possible questions might include (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether some other form of accommodation could effectively address the issue, and (4) whether the proposed accommodation will enable the employee to continue performing the essential functions of his or her position.2.    If there is some urgency to providing an accommodation or the employer has limited time to discuss the request during the pandemic, may the employer provide a temporary accommodation?Yes, during the pandemic. If the employer chooses to forgo or shorten the exchange of medical information discussed above (the interactive process), the employer may simply grant the request (with or without an end date). After governmental restrictions are partially or fully lifted, the need for accommodations may change, and there may be more requests for short-term accommodations. At that time, the employer may engage in the interactive process and fix an end date for the accommodation based on changing public health directives. These considerations could also apply to employees who have disabilities exacerbated by the pandemic.3.    May an employer ask employees now if they will need reasonable accommodations in the future when they are permitted to return to the workplace?Yes, for employees with known disabilities. The employer may inquire about accommodations the employees believe they may need when they return to the workplace and otherwise begin the interactive process.4.    Based on the circumstances of the pandemic, may a requested accommodation be denied because it poses an undue hardship?Yes, provided the employer can establish that the undue hardship is a “significant difficulty or expense.” For example, it may be significantly more difficult to provide temporary assignments. And budget concerns may be considered in light of the employer’s loss of income during the pandemic. Although an employer cannot reject a proposed accommodation simply because the accommodation costs money, the employer may consider its current budgetary constraints in reaching its conclusion. When possible, another no-cost accommodation should be sought.<h3>Civil Rights Issues</h3>5.    How can employers try to reduce and address workplace harassment that may arise as a result of the pandemic?Employers should expressly communicate to their workforces that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic such as national origin or race. Practical anti-harassment tools are provided by the EEOC and can be found <a target="_blank" href="https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm#_Toc453686319">here</a> and <a href="https://www.eeoc.gov/eeoc/task_force/harassment/risk-factors.cfm">here</a>.<h3>General Return to Work Issues</h3>6.    Can an employer make COVID-19 testing a requirement of return-to-work?Yes. The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. The EEOC previously stated that the presence in the workplace of an employee with COVID-19 (or an employee exhibiting symptoms associated with the virus) would pose a direct threat to the health of others. Applying these considerations to return-to-work circumstances, the EEOC has confirmed that “an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”If an employer makes testing a condition of returning to work, the employer must ensure that the method(s) of testing are accurate and reliable. The EEOC recommends consulting <a href="https://www.fda.gov/medical-devices/emergency-situations-medical-devices/faqs-diagnostic-testing-sars-cov-2" target="_blank">guidelines</a> released by the U.S. Food and Drug Administration as to what testing method(s) are considered safe and accurate. Employers may also consult resources from the CDC and public health authorities for relevant information about safe and accurate tests. Employers are also encouraged to consider the incidence of false-positives and false-negatives associated with various different testing methods. Note that the EEOC only endorses testing employees to “determine if they have the virus,” and has not addressed testing for antibodies to the virus to determine whether an employee had the virus in the past. It may be that the EEOC intended its guidance to broadly apply to antibody tests also, but the omission may have been intentional because the presence or absence of antibodies does not indicate whether an employee currently presents a “direct threat” to the health and safety of employees in the workplace. Finally, the EEOC states that accurate testing only reveals if the virus is currently present, and a negative test does not mean the employee may not acquire the virus after undergoing the test.7.    With regard to the ADA, as government stay-at-home orders are modified or lifted, how will employers know what other steps they can take to screen employees for COVID-19 when entering the workplace?As indicated above, the ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity, and employers are permitted to exclude employees with a medical condition that would pose a direct threat to health or safety. An employer’s conduct (for example, taking temperatures and asking about other symptoms) will be permitted by the ADA so long as that conduct is consistent with advice from the CDC and public health authorities for that type of workplace at that time.8.    If an employer requires returning workers to wear personal protective gear and engage in infection control procedures, must the employer grant an employee’s request for modification of the requirements?It depends. If an employee asks for an accommodation for a disability or religious reasons, the employer should accommodate the request whenever it can reasonably do so (that is, when the requested accommodation is feasible and not an undue hardship on the employer’s business operations). Examples provided by the EEOC for disability accommodation include non-latex gloves, modified face masks for interpreters or others who communicate with an employee who lip reads, or gowns designed for individuals who use wheelchairs. For religious accommodation, the EEOC gives the example of modified equipment due to religious garb. The EEOC acknowledges that these are just examples. The EEOC states that the employer and employee should discuss the matter, and the employer may provide an alternative if it is feasible and does not pose an undue hardship for the employer.Note: Although the EEOC has stated that an employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (regular handwashing and social distancing), there are other privacy issues to consider. Some of these additional issues are discussed <a target="_blank" href="https://www.mofo.com/resources/insights/200420-should-employers-require-employees-to-wear-facemasks.html">here</a>.

EEOC Issues "Return to Work" COVID-19 Guidelines for Employers

On April 17, 2020 and April 23, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) again revised its guidance for employers dealing with the COVID-19

EEOC Issues "Return to Work" COVID-19 Guidelines for Employers

As employers begin considering return to work strategies, many are wondering whether they should permit or require individuals to wear facemasks at work. It may be surprising to many companies, but the Occupational Safety and Health Administration (“OSHA”) has published detailed standards and guidance relating to employees wearing personal protective equipment (“PPE”), which can include simple facemasks. OSHA has also published guidance on dealing with COVID and guidance for employees in the workplace. Moreover, there are big differences between whether an employer mandates employees wear a facemask and whether employees do so voluntarily.Read our <a target="_blank" href="https://www.mofo.com/resources/insights/200420-should-employers-require-employees-to-wear-facemasks.html">client alert</a>.

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Few lawyers in the world have Miriam Wugmeister’s breadth and understanding of privacy and data security laws, obligations, and practices. 

Miriam H. Wugmeister | Privacy and Data Security Lawyer

Few lawyers in the world have Miriam Wugmeister's breadth and understanding of privacy and data security laws, obligations, and practices. In the words of her clients, she is “extremely practical and phenomenally smart. Just about one of the best privacy advisers there is” (Chambers USA). Co-chair of Morrison & Foerster’s market-leading Global Privacy and Data Security Group and ranked among the top in the profession by all major directories, Ms. Wugmeister is regularly called upon by some of the world’s largest and most complex multinational organizations to confront their most difficult U.S. and international privacy challenges. “Tremendous at helping you come up with practical solutions to real problems” (Chambers USA), she develops cutting-edge solutions for clients that marry legal compliance with business realities.

Miriam Wugmeister

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Of Counsel

Lloyd W. Aubry, Jr. is a member of our Employment and Labor Group. Lloyd’s practice encompasses all aspects of employment and labor law, including litigation and counseling.

Lloyd Aubry

Lloyd Aubry’s practice encompasses all aspects of employment and labor law, including litigation and counseling. He represents public and private clients in a variety of matters relating to wage and hour law, employment discrimination, wrongful discharge, safety and health issues, and National Labor Relations Act (NLRA) issues. Mr. Aubry represents clients before administrative agencies and in state and federal court. A significant part of his practice involves expert testimony and consulting on issues relating to the Department of Industrial Relations. In this capacity, he has served for both employers and employees.

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Associate

Eric has experience defending class action, labor and employment, and intellectual property matters, including developing procedural strategies for clients preparing for trial, as well as examining in

Eric Gebert

Should Employers Require Employees to Wear Facemasks?

As employers begin considering return to work strategies, many are wondering whether they should permit or require individuals to wear facemasks at work. It may

Should Employers Require Employees to Wear Facemasks?

DOL Issues Regulations for Paid Leave Under the Families First Coronavirus Response Act

On April 6, 2020, the United States Department of Labor (“DOL”) published regulations regarding the paid leave programs previ

DOL Issues Regulations for Paid Leave Under the Families First Coronavirus Response Act

In response to the coronavirus pandemic, Congress has passed legislation to encourage continued payment of wages and benefits by providing relief to employers in the form of payroll-related tax credits, loans, and tax-deferral programs, including:<ul><li>for businesses with fewer than 500 employees, tax credits to cover the cost of paid sick and paid family leave coverage required for those employees;</li></ul><ul><li>tax-free forgiveness of certain government-guaranteed loans to small businesses to cover payroll and operating expenses during the coronavirus pandemic;</li></ul><ul><li>a payroll tax credit for qualifying wages during a time when the employer’s business has been suspended or experienced a significant decline in revenue; and</li></ul><ul><li>deferral of an employer’s portion of 2020 Social Security taxes not recovered under the payroll tax credit.</li></ul><div>Read our <a target="_blank" href="https://www.mofo.com/resources/insights/200402-payroll-tax-relief.html">client alert</a>.</div>

Domnick advises the firm’s clients on all matters relating to executive compensation, with a focus on compensation and benefits aspects of corporate transactions, including mergers, spin-offs and initial public offerings. 

Domnick Bozzetti

Domnick advises the firm’s clients on all matters relating to executive compensation, including designing, drafting, negotiating and implementing equity and non–equity–based incentive compensation arrangements (including compensatory partnership interests), severance, change in control and executive employment agreements, non–qualified deferred compensation plans and related issues concerning tax (including sections 162(m), 280G and 409A) and securities law issues.

Payroll Tax Relief Provisions of COVID-19 Legislation

In response to the coronavirus pandemic, Congress has passed legislation to encourage continued payment of wages and benefits by providing relief to employers i

Payroll Tax Relief Provisions of COVID-19 Legislation

On Tuesday afternoon, the Treasury Department released its <a target="_blank" href="https://home.treasury.gov/policy-issues/top-priorities/cares-act/assistance-for-small-businesses">guidance</a> concerning the Paycheck Protection Program (PPP), which was authorized by Congress under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Under the PPP, qualified small businesses, eligible non‑profits, self-employed individuals, and independent contractors may apply for loans to cover payroll costs, rent, and utilities.  Some or all of the loan amounts may be forgiven as long as designated criteria are fulfilled.Read more on <a target="_blank" href="https://govcon.mofo.com/small-business/treasury-department-issues-guidance-and-application-for-paycheck-protection-program-loans/">MoFo's Government Contracts Insights Blog</a>.

Tina is a partner in Morrison & Foerster’s Government Contracts practice. She represents a wide variety of government contractors including information technology, defense, biotechnology, and pharmace

Tina Reynolds

Tina is co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She counsels a wide variety of government contractors on compliance with federal acquisition and ethics regulations. She drafts and negotiates contracts on their behalf and has been involved with numerous internal investigations and compliance reviews, and with bid protest, contract claims, and False Claims Act litigation. She also advises on M&A transactions involving government contractors.

Tina D. Reynolds

Damien is a partner in the firm’s Government Contracts & Public Procurement practice. He represents clients in all facets of government contracts transactions, as well as regulatory counseling, subcon

Damien Specht

Damien C. Specht

Treasury Department Issues Guidance (and Application) for Paycheck Protection Program Loans

On Tuesday afternoon, the Treasury Department released its guidance concerning the Paycheck Protection Program (PPP), which was authorized by Congress under the

Treasury Department Issues Guidance (and Application) for Paycheck Protection Program Loans

With the onslaught of various state and local shelter-in-place orders, new health and safety guidelines for workplaces, and the ensuing economic downturn, many companies need to act quickly to address the unprecedented challenges due to the COVID-19 pandemic. When responding to these challenges, both unionized or non-union employers should be careful not to run afoul of the National Labor Relations Act (“NLRA” or the “Act”). Below, we provide some practical guidance for employers on how to avoid labor law violations when confronting these issues in their workplace.<h4>PROTECTED CONCERTED ACTIVITY</h4>Section 7 of the NLRA generally applies to all U.S. employers, whether they are unionized or not. Section 7 of the Act guarantees employees (except for management and supervisors), even if they are not part of a union, “the right to … engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”An employee’s right to engage in protected concerted activity under Section 7 has been interpreted broadly. One clear example of concerted activity is when two or more employees complain to their employer about workplace health and safety conditions. An individual who brings a complaint on behalf of a group of employees to the attention of management or seeks to initiate, induce, or prepare his or her coworkers to engage in group action may also be engaging in concerted activity under the Act. Disciplining or discharging the employee for engaging in concerted activity constitutes an unfair labor practice (“ULP”), for which the National Labor Relations Board (“NLRB”) could seek make-whole remedies, including reinstatement and backpay.  Can an Employee Refuse to Work for COVID-19 Concerns?Employers need to be cautious when responding to employees refusing to work due to safety concerns. If an employee raises concerns, even if he or she is mistaken about the risk, the employee may be engaging in protected activity under the NLRA. Employers should assess those concerns carefully before taking any adverse action.  Can an Employee Be Asked to Remove a Negative Post on Social Media About His or Her Employer’s Response to COVID-19? Employees can engage in protected concerted activity on social media. If an employee posts comments on social media that could reasonably be viewed as trying to encourage other employees to band together to protest workplace issues, such as workplace safety or an employer’s decision to cut employee wages or furlough employees, it could qualify as protected activity.<h4>COLLECTIVE BARGAINING</h4>Employers who have employees represented by a union are generally prohibited from making unilateral changes to the terms and conditions of employment for those employees without first bargaining with their union. Employers are required to bargain with the union over mandatory subjects of bargaining that “vitally affect” the represented employees’ wages, hours, and working conditions, such as changes to employees’ jobs (e.g., work assignments, pay, schedules, etc.), changes to workplace health and safety standards, and layoffs or furloughs of represented employees. Making unilateral changes without first providing the union notice and a meaningful opportunity to bargain can result in ULP charges or orders requiring the employer to bargain with the union before proceeding with the change.Given the numerous state shelter-in-place orders, as well as the health, safety, and economic challenges employers are facing from the growing COVID-19 pandemic, many employers need to act swiftly to make changes to their workforce. Some employers may not be able to undertake traditional bargaining with union representatives, particularly if their businesses are being forced to close as nonessential services under shelter-in-place orders. Although employers, in many instances, will still need to adhere to their obligations under their collective bargaining agreements (“CBAs”) and the NLRA, they may have some flexibility when implementing certain changes.Is Bargaining Required? An employer that needs to make changes to wages, hours, or other terms and conditions of employment that are mandatory subjects of bargaining should first review their applicable CBA and memorandums of understanding with the union to determine if those subjects are already covered or if it has discretion to act. A CBA may already address how to handle certain situations or include a protocol for making those changes. For example, if the employer is contemplating layoffs, the CBA may already provide a protocol for layoffs that would work for the employer’s current circumstances. If the CBA does not address the needed action or the company needs to change the CBA protocol in order to respond to the current COVID-19 situation, employers should consider options that might allow them to take unilateral action. These options can include:<ul><li>Checking the management rights clause in their CBA to see if they have the right to unilaterally make the contemplated change;</li></ul><ul><li>Determining whether their CBA has a force majeure clause that would cover the COVID-19 pandemic; or</li></ul><ul><li>Considering whether there is an applicable exception to bargaining given the exigencies of the current situation.</li></ul>As a practical matter, even when an employer does not have to bargain, it may want to notify the union in advance of implementing the change to preempt any dispute and determine whether the parties can reach a mutually acceptable agreement. An employer may also have a good relationship with its union, and the union may be willing to provide concessions, particularly in these circumstances where the employer may need to make changes to avoid potential furloughs, layoffs, or shutdowns in the near term. Employers should consider the impact of making unilateral changes on their ongoing relationship with their unions and employees, which may prove critical if the employer needs to ramp up again quickly.Does a Management Rights Provision in a CBA Relieve an Employer from Bargaining?Many CBAs contain a management rights clause that reserves the employer’s right to decide certain workplace issues during the term of a CBA. Some management rights clauses will expressly allow employers to take unilateral action to determine various issues for the workforce, such as schedules, work rules, staffing size, and other critical issues.The Board recently adopted the more lenient “contract coverage” standard to determine whether the management rights clause in a CBA allows employers to act unilaterally.[1] Under the “contract coverage” standard, the Board reviews the plain language in the CBA to determine whether the change is permissible. If the unilateral actions are “within the compass or scope” of the CBA, the change will not violate the NLRA. However, if the unilateral action is not “within the compass or scope” of the CBA, the employer will violate the NLRA unless it can show that the union “clearly and unmistakably waived its right to bargain” the change or that unilateral action was privileged for some reason.Applying that standard to current COVID-19 context, a broad management rights’ provision in the CBA that grants the employer the right to implement new rules and policies and to revise existing ones could allow the employer to unilaterally implement new attendance or safety rules without violating the Act. Some management rights provisions also allow employers to layoff employees without bargaining.Will the Force Majeure Clause in the CBA Allow Unilateral Changes?A force majeure clause is a contractual provision that excuses a party’s performance of its obligations under the contract if performance because impossible or impracticable. For example, following the September 11, 2001 attacks, Northwest Airlines Corp. invoked the force majeure clause in its CBAs to layoff a substantial number of its employees, in response to which one of the unions filed a grievance.[2]Many CBAs do not have a force majeure clause. Even if the applicable CBA contains such a clause, whether the current COVID-19 situation triggers the force majeure clause will vary by employer, depending on the exact language of the contract provision and the effect that the COVID-19 situation is having on the business.Is There an Exception to an Employer’s Bargaining Obligations Under the NLRA?The Board has held that an employer is authorized to make unilateral changes when “economic exigencies” compel prompt action. An underlying reason for not requiring bargaining when there is an economic exigency is that “an unforeseen occurrence, having a major economic effect, is about to take place that requires the company to take immediate action.”[3]Economic exigency requires a “compelling business justification,” and an employer that attempts to prove economic exigency carries a “heavy burden.” A mere business necessity or inconvenience does not equate to an economic exigency that excuses bargaining. For example, “loss of an account representing 14 percent of revenue” was found not to qualify as an economic exigency.[4] Whether the COVID-19 situation triggers the economic exigency, exception will depend on the employer’s particular circumstances. The NLRB’s General Counsel recently issued a memo on March 27, 2020 providing examples of circumstances where employers experienced economic exigencies that allowed them to avoid decision bargaining. Although the memo does not provide specific guidance on bargaining obligations relating to COVID-19, some of the cases referenced indicate that a number of employer actions directly due to the COVID-19 situation could qualify for the economic exigencies exception. For example, in Port Printing & Specialties,[5] where the parties did not have an existing CBA, the Board held that an impending hurricane and the mandatory citywide evacuation that was ordered in anticipation of the hurricane were uniquely exigent circumstances that privileged the employer to layoff employees without bargaining it decision with the union. The Board, however, found that the employer violated the NLRA by not offering to bargain the effects of the layoff. While this guidance is helpful, an employer that plans to justify a unilateral change based on the economic exigency exception needs to be prepared to show that the change was compelled by the exigency and that the exigency was caused by external events, was beyond the employer control, or was not reasonably foreseeable.  Must an Employer Still Bargain the Effects of Its Change?The legal grounds that justify an employer’s unilateral change may not necessarily relieve the employer of its notice and bargaining obligations with the union, at least with respect to the effects of the change. For example, an employer’s decision to partially close one of its facilities may trigger the employer’s obligation to bargain over the effects of the closing on its unionized employees. Bargaining over the effects of such a decision “must be conducted in a meaningful manner and at a meaningful time, and the Board may impose sanctions to insure its adequacy.”[6] Even if an employer feels legally comfortable moving forward with a unilateral change, it should be prepared to engage in good faith negotiations over the effects of that change.If Bargaining Is Required, How Can It Be Done in Light of Imminent Need to Act and Social Distancing Challenges?The NLRA requires employers to give “adequate” notice and bargain in good faith with the union until it either reaches a deal or reaches impasse. Impasse typically occurs when, after exhaustive good faith negotiations, the parties are no longer willing to make concessions. How quickly impasse can be reached depends on the circumstances.Employers needing to act quickly to respond to the COVID-19 epidemic can likely give the union expedited notice of the change and request the parties bargain quickly given that time is of the essence. If it is a single issue, the notice and meaningful opportunity to bargain needed to reach impasse can be done quickly. Depending on the circumstances, an employer may be able to reach impasse with the union on a single issue within a few days.In some situations, the employer may need to postpone bargaining sessions, such as a situation where the employer is currently bargaining a new CBA. In those instances, employers may want to ask the union if it will agree to temporarily postpone bargaining (e.g., 30-60 days) until the COVID-19 situation appears to be receding. If a union is unwilling to postpone bargaining and the employer cannot meet, the employer should communicate the business and operational reasons for needing to delay bargaining. The key is proactive and timely communication with the union.The various state shelter-in-place orders and need for social distancing may cause practical challenges for bargaining too. Usually good-faith bargaining requires face-to-face meetings at regular times. However, because the current situation is not business as usual and a union cannot compel the employer’s bargaining team to meet in person, particularly in violation of governmental orders, employers and unions can bargain by video conference or phone and exchange proposals by email. The <a target="_blank" href="https://www.fmcs.gov/">Federal Mediation and Conciliation Service</a> even offers certain technology to assist parties with bargaining in light of the pandemic.How Does the Current Pandemic Impact Obligations for Responding to Information Requests? Under the Act, the employer has a duty to supply the union with information that is “relevant and necessary” to allow the union to bargain intelligently and effectively with respect to wages, hours, and other conditions of employment. For example, if the union asks the employer for the employer’s business plan in response to the COVID-19 situation, the employer may need to provide that information. The employer should try to provide its response by the deadline requested by the union and if it is unable to meet the union’s deadline, still stay engaged with the union and inform the union of the delay. Once the employer has gathered the relevant information or has otherwise determined that the requested information does not exist or is impossible to gather, the employer should respond in writing to the union. If the information requested is particularly sensitive and contains confidential information, the employer may wish to contact the union to see if an accommodation can be reached, such as limiting the use of the information through a confidentiality agreement. <h4>UNION ELECTIONS</h4>On March 19, 2020, the Board <a target="_blank" href="https://www.nlrb.gov/news-outreach/news-story/national-labor-relations-board-suspends-representation-elections-through">announced</a> that it was suspending all representation elections effective immediately through and including April 3, 2020. Although an employer has a free speech right to communicate with its employees, if the employer is facing a pending election, it should still be cautious in its communications with its employees as to avoid any accusation that it improperly tainted the union election. For example, the employer should not say anything to its employees that could be deemed a threat for voting for the union or a promise for certain benefits in exchange for voting against the union. <h4>UNION STRIKES</h4>Most CBAs contain a provision prohibiting employees from striking during the term of the CBA. This provision would preclude employees from striking if an employer refused to modify the CBA mid-term, such as employees striking because the employer refused to changes hours or other working conditions to respond to issues related to COVID-19. Employers, however, should be mindful that even if the applicable CBA contains a no-strike provision, under the Act, refusal to work because of “abnormally dangerous conditions” is not a strike in violation of a no-strike clause.  For example, certain employees may argue that they are not being provided sufficient protective equipment, such as masks or gloves, while interacting in person with hundreds of potentially contagious customers per day. The employees’ decision to walkout of the job based on a good faith and objective belief that their working conditions are “abnormally dangerous” may not be violating the CBA.The answer to many of the issues discussed above is heavily fact-based, and we may see new developments arise in the traditional labor area in response to the COVID-19 situation. We are closely monitoring various developments related to the COVID-19 situation and regularly updating our Coronavirus (COVID-19) Resource Center with advice on the myriad issues that continue to develop. [1] MV Transportation, Inc., 368 NLRB No. 66 (Sept. 10, 2019).[2] Newsome v. Northwest Airlines Corp., 225 F. Supp. 2d 822 (W.D. Tenn. 2002). This case was decided under the Railway Labor Act, which applies to airlines, railroads, and related companies. It is not binding precedent under the NLRA.[3] Pleasantview Nursing Home, Inc. v. NLRB, 351 F.3d 747, 755-56 (6th Cir. 2003).[4] Angelica Healthcare Servs. Grp., 284 NLRB 844, 853 (1987).[5] 351 NLRB 1269 (2007). [6] First Nat’l Maint. Corp. v. NLRB, 452 U.S. 666, 681-82 (1981).

Andrew co-chairs the firm’s Global Employment and Labor Group. He represents companies on a broad range of labor and employment litigation and counseling matters, successfully defending clients in number complex matters before federal and state courts and administrative agencies.

Avoiding Labor Violations When Responding to the COVID-19 Pandemic

With the onslaught of various state and local shelter-in-place orders, new health and safety guidelines for workplaces, and the ensuing economic downturn, many 

Avoiding Labor Violations When Responding to the COVID-19 Pandemic

On March 28, 2020, the United States Department of Labor (“DOL”) published additional guidance on nearly two dozen more “critical issues” that the DOL had not addressed in its previous guidance on the recently enacted <a target="_blank" href="https://www.congress.gov/bill/116th-congress/house-bill/6201/text">Families First Coronavirus Response Act</a> (“FFCRA”). Our March 26, 2020 report on the notable takeaways from the previous guidance can be <a target="_blank" href="https://elc.mofo.com/topics/dol-releases-first-round-of-published-guidance-on-the-families-first-coronavirus-response-act.html">found here</a>. In addition to providing a few clarifications on the previous guidance, the <a target="_blank" href="https://www.dol.gov/agencies/whd/pandemic/ffcra-questions">latest round of guidance</a> is notable for discussing the definition of a “health care provider” and “emergency responder” who may be excluded from coverage under the FFCRA. The DOL also further defines the scope of the small business exemption for purposes of exclusion from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act. The guidance also addresses whether public sector employees may take paid family and medical leave. The DOL indicated that it will continue to add guidance as these benefits go into effect on April 1, 2020.Here are a few highlights of the DOL’s updated guidance on the FFCRA:Required records for FFRCA paid leave.<a href="https://elc.mofo.com/topics/dol-releases-first-round-of-published-guidance-on-the-families-first-coronavirus-response-act.html">Our last post</a> on the DOL guidance detailed the “appropriate documentation” employers must maintain to obtain a tax credit for providing paid leave under the FFCRA. The most recent iteration of the DOL guidance relaxed that requirement, stating only that employers “should retain appropriate documentation in your records” and directing employers to consult with the Internal Revenue Service for further guidance. The DOL also added that employers are not required to provide leave if the employee has not provided materials “sufficient to support the applicable tax credit.”Similarly, employers may require employees who are taking expanded family and medical leave to provide additional documentation in support of their leave, in accordance with the current certification rules for conventional Family and Medical Leave Act (“FMLA”) leave requests.   Amount of tax credits allowed.The DOL clarified that if an employer chooses to supplement or adjust the pay mandated under the FFCRA with paid leave the employer already provided under its paid leave policy, the employer is not entitled to a tax credit for any paid sick leave or expanded family and medical leave that is not required to be paid under the FFCRA or for the amount that exceeds the limits set forth under the FFCRA.Small business exemptions under the FFCRA.For the purposes of the FFCRA, the DOL defines a small business as an employer (including a religious or nonprofit organization) with fewer than 50 employees. A small business is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 reasons when doing so would jeopardize the viability of the small business as a going concern. One of the following three conditions must be met for the small business to claim this exemption:<ol><li>The provision of paid sick leave or expanded family and medical leave would result in the small business’ expenses and financial operations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; </li> <li>The absence of the employee requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of the employee’s specialized skills, knowledge of the business, or responsibilities; or </li> <li>There are not sufficient able, willing, and qualified workers who will be available at the time and place needed to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.</li></ol>Counting employees to determine coverage under the FFCRA.Employers should use the number of employees on the day the employee’s leave would start to determine whether the employer has fewer than 500 employees for purposes of providing expanded family and medical leave and paid sick leave. The language found in the FMLA’s definition for employer does not apply to the Emergency Family and Medical Leave Expansion Act for purposes of expanded family and medical leave. COVID-19 related leave after already using FMLA leave.An eligible employee is entitled to take paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave the employee may have previously taken under the FMLA. Moreover, this paid sick leave is in addition to other leave provided under federal, state, or local law; an applicable collective bargaining agreement; or the employer’s existing company policy.If the employer was covered by the FMLA prior to April 1, 2020, the employee’s eligibility for expanded family and medical leave depends on how much FMLA leave he or she has already taken during the applicable 12-month period. During a 12-month period, employees may take only a combined total of 12 workweeks of FMLA leave for traditional FMLA-qualifying reasons and for child care as provided under the Emergency Family and Medical Leave Expansion Act. An employee who has already taken 12 workweeks of FMLA leave during the applicable 12-month period prior to requesting expanded family and medical leave will not be entitled to expanded family and medical leave during that 12-month period. If the employee takes paid sick leave concurrently with the first two weeks of expanded family and medical leave, which may otherwise be unpaid, those two weeks count toward the 12 workweeks in the 12-month period. This analysis does not apply if the employer first becomes covered under the FMLA on April 1, 2020. Definition of a “health care provider.”The new guidance defines a “health care provider” who is not entitled to paid sick leave and/or expanded family and medical leave under the FFCRA, as any employee employed at any:<ul><li>doctor’s office, hospital, health care center, or clinic;</li></ul><ul><li>post-secondary educational institution offering health care instruction;</li></ul><ul><li>medical school;</li></ul><ul><li>local health department or agency;</li></ul><ul><li>nursing or retirement facility or home; </li></ul><ul><li>home health care provider;</li></ul><ul><li>any facility that performs laboratory or medical testing; </li></ul><ul><li>pharmacy; or </li></ul><ul><li>any similar institution, employer or entity, permanent or temporary.</li></ul>This definition of a “health care provider” includes any individuals employed by an entity that contracts with the above institutions, employers, or entities to provide services or to maintain the operation of the facility, such as anyone employed by an entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. To minimize the spread of COVID-19, the DOL encourages employers to be “judicious” when using this definition to exempt health care providers from provisions of the FFCRA.Definition of “emergency responder.”An emergency responder who may be excluded from paid sick leave or expanded family and medical leave by his or her employer under the FFCRA, is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This category includes, but is not limited to: military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.As with employers of “health care providers,” the DOL also encourages employers of “emergency responders” to be judicious when exempting their employees from the provisions of the FFCRA.Public sector employees’ right to take sick leave under the FFCRA.Paid sick leave under the Emergency Paid Sick Leave Act: The DOL states that public sector employees are generally entitled to paid sick leave if they work for a public agency or other unit of government unless the employee is a health care provider or emergency responder.Paid family and medical leave under the Emergency Family and Medical Leave Expansion Act: The DOL states that if the employee is a federal employee, he or she is not likely entitled to expanded family and medical leave, as the Emergency Family and Medical Leave Expansion Act only amended Title I of the FMLA (federal employees are typically covered by Title II of the FMLA). Likewise, if the public sector employee is a health care provider or emergency responder, he or she may be excluded by the employer from being able to take expanded family and medical leave under the FFCRA.We will continue to monitor the situation as we await the DOL’s additional guidance and official regulations. As the situation continues to rapidly evolve, please keep checking our <a href="https://elc.mofo.com/" target="_blank">blog</a> for employment-related developments.

DOL Issues Newly Updated Guidance on Critical Issues for Employers Regarding the Families First Coronavirus Response Act

On March 28, 2020, the United States Department of Labor (“DOL”) published additional guidance on nearly two dozen more “critical issues” that the DOL had not a

DOL Issues Newly Updated Guidance on Critical Issues for Employers Regarding the Families First Coronavirus Response Act