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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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.

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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

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.

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

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

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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

As businesses and employers parse the 880-page Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), which President Trump signed into law on March 27, 2020, we offer this analysis of the unemployment compensation provisions in the Act. This Employment Law Commentary is part of a series addressing the employment-related provisions of the CARES Act.The CARES Act builds on and partially modifies the Families First Coronavirus Response Act (“FFCRA”) enacted on March 18, 2020. As we described in our <a href="https://elc.mofo.com/topics/families-first-coronavirus-response-act-paid-family-sick-leave.html" target="_blank">Employment Law Commentary analyzing the FFCRA</a>, the FFCRA provides $1 billion in emergency grants for unemployment programs and auxiliary measures, like easing work search requirements and eliminating waiting time requirements for individuals to receive unemployment compensation.The CARES Act goes much further, with three game-changing unemployment insurance components:(1) Pandemic Unemployment Assistance, which allows states to extend unemployment benefits through December 31, 2020, to self-employed individuals, gig-economy workers, independent contractors, and others who would not be eligible otherwise; (2) Pandemic Unemployment Compensation, which provides people receiving unemployment benefits through their state programs with an additional $600 weekly benefit until July 31, 2020; and (3) Pandemic Emergency Unemployment Compensation, which allows states to provide an additional 13 weeks of unemployment assistance to workers who are unemployed due to COVID-19. The CARES Act also gives states $100 million to support work sharing programs that allow employees to receive unemployment benefits when their employers reduce their hours and wages in lieu of layoffs.The federal government will cover not only the entire cost of these measures—allocating substantial sums to do so—but will also cover the administrative costs associated with implementing these measures.Pandemic Unemployment AssistanceThe Pandemic Unemployment Assistance provision may be the most groundbreaking unemployment insurance provision in the CARES Act. This provision extends unemployment benefits to “covered individuals” who are not ordinarily eligible for unemployment benefits, such as self-employed people, gig-economy workers, independent contractors, and people who have exhausted their regular unemployment benefits. “Covered individuals,” for purposes of Pandemic Unemployment Assistance are people who are both (1) not otherwise eligible for regular unemployment compensation under state or federal law and (2) able to self-certify that they are otherwise able to work and available for work except that they are unemployed, partially unemployed, or unable or unavailable to work because:<ul><li>The individual has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19 and seeking a medical diagnosis; </li></ul><ul><li>A member of the individual’s household has been diagnosed with COVID-19; </li></ul><ul><li>The individual is providing care for a family member or a member of the individual’s household who has been diagnosed with COVID-19; </li></ul><ul><li>A child or other person in the household for which the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and such school or facility care is required for the individual to work; </li></ul><ul><li>The individual is unable to reach the place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency; </li></ul><ul><li>The individual is unable to reach the place of employment because the individual has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; </li></ul><ul><li>The individual was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of the COVID-19 public health emergency; </li></ul><ul><li>The individual has become the breadwinner or major support for a household because the head of the household has died as a direct result of COVID-19; </li></ul><ul><li>The individual has to quit his or her job as a direct result of COVID-19; </li></ul><ul><li>The individual’s place of employment is closed as a direct result of the COVID-19 public health emergency; or</li></ul><ul><li>The individual meets any additional criteria established by the Secretary of Labor for unemployment assistance.</li></ul>Employees who can telework and who otherwise are receiving paid sick leave or other paid leave are not eligible for Pandemic Unemployment Assistance. Covered individuals are eligible to receive the regular benefits they would have received if eligible under state law, plus the additional $600 per week benefit that is available to all unemployed workers under the Pandemic Unemployment Compensation provision described below. This program applies to the period beginning on or after January 27, 2020 and will be in effect until December 31, 2020. The Act also waives the usual one-week waiting period to receive benefits. Significantly, the federal government will reimburse the states the entire cost of providing these benefits.Pandemic Unemployment CompensationThe CARES Act’s Pandemic Unemployment Assistance provision increases state law unemployment benefits by an additional $600 per week until July 31, 2020, provided the state agrees to participate in the program. The $600 federal benefit will be paid across the board, regardless of the recipient’s income. Thus, unemployed people can conceivably receive more in unemployment benefits than they earned before they became unemployed. The Act also contains measures to prevent states from trying to deduct or offset the federal payment from other types of benefits. For example, states receiving funds to distribute Pandemic Unemployment Compensation may not reduce “the amount determined under the State law” nor factor in additional compensation received by individuals through Medicaid or the Children’s Health Insurance Program. This program applies to the period starting from the date upon which a state government enters into an agreement to receive the relevant funds from the federal government.Pandemic Emergency Unemployment CompensationThe CARES Act will also allow participating states to provide up to 13 weeks (until December 31, 2020) of unemployment benefits to individuals who: (1) have already exhausted their unemployment compensation benefits (i.e., the individual has received the maximum available under a state’s unemployment compensation laws or the individual’s right to unemployment compensation has expired); (2) do not currently qualify; and (3) are simply “able to work, available to work, and actively seeking work.” The benefit amounts will be the same as those available to individuals eligible for Pandemic Unemployment Assistance and Pandemic Unemployment Compensation (i.e., their regular weekly benefit, plus $600 increase). This program applies to the period starting from the date upon which a state government enters into an agreement to receive the relevant funds from the federal government.More information regarding the CARES Act is available from our Coronavirus (COVID-19) Resource Center, where we discuss the CARES Act’s <a target="_blank" href="https://www.mofo.com/resources/insights/200327-overview-cares-act-loan-programs.html">loan programs to provide liquidity to businesses</a> (as well as <a target="_blank" href="https://www.mofo.com/resources/insights/200327-cares-sba-loan-eligibility-process.html">eligibility and application processes for these</a>); the CARES Act’s <a target="_blank" href="https://www.mofo.com/resources/insights/200330-bankruptcy-relief-cares-act.html">bankruptcy relief measures</a> and <a target="_blank" href="https://www.mofo.com/resources/insights/200330-cares-act-enacted.html">financial services provisions</a>; how the CARES Act <a target="_blank" href="https://www.mofo.com/resources/insights/200327-corona-air-relief-act.html">imposes limitations on employee compensation for businesses receiving aid</a>; the CARES Act <a target="_blank" href="https://www.mofo.com/resources/insights/200327-coronavirus-covid-19-cares-act.html">specific tax relief provided for individuals and businesses</a>; and, finally, the CARES Act’s <a target="_blank" href="https://www.mofo.com/resources/insights/200327-contractor-relief-cares-act.html">impact on federal contractors</a>.

CARES Act – What Employers Should Know (Part II): Unemployment Insurance Benefits

As businesses and employers parse the 880-page Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), which President Trump signed into law on Ma

CARES Act – What Employers Should Know (Part II): Unemployment Insurance Benefits

On 23 March 2020, Boris Johnson announced that the UK would effectively be going into "lockdown" for a period of at least three weeks, in order to tackle the spread of coronavirus. This means closing all non-essential shops and public spaces and banning public gatherings of more than two people. Individuals are only allowed to leave their house for one of four reasons: shopping for basic necessities, one form of exercise per day, medical need or travelling to and from work, but only where this absolutely cannot be done from home.[1] The police will have powers to enforce these restrictions through issuing fines, although, unlike in some other countries, there is not (yet) a requirement for individuals to carry documentation explaining why they are not in their house.These restrictions will, of course, have a huge impact on every aspect of life and will place employers, employees and the self-employed in a situation that would scarcely have been imaginable even a few weeks ago. The UK Government has announced a number of proposals designed to assist businesses and protect workers – and the self-employed – financially throughout the coming months. Most notably, these include (i) a funded furlough scheme – the "Coronavirus Job Retention Scheme"[2] (the "Scheme"), which will be available to all businesses in the UK to avoid layoffs; (ii) a "self-employed income support scheme"; and (iii) changing the rules on payment of statutory sick pay. The UK Government also announced cash-flow assistance measures to help business during this difficult period.In this alert, we will:<ul><li>Examine the Scheme in further detail;</li><li>Explain the latest changes to statutory sick pay rules;</li><li>Consider the position for self-employed workers; and</li><li>Provide answers to some commonly asked questions.</li></ul><div>Read our <a href="https://www.mofo.com/resources/insights/200327-covid-19-uk-employers.html" target="_blank">client alert</a>.</div>

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Managing Partner, London

Annabel is a partner at Morrison Foerster and co-Managing Partner of the London office.

Annabel Gillham


Trevor has over 30 years of experience in providing corporate and international tax advice. His practice focuses on advising client on the tax planning aspects of international transactions and strat

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Lara Sirimanne is an associate in the London employment practice of Morrison & Foerster. She advises domestic and international clients on the full spectrum of both contentious and non-contentious emp

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Oliver Spratt is Of Counsel based in the London office of Morrison Foerster. 

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COVID-19 Update – What Do the Latest Proposals Mean for UK Employers?

On 23 March 2020, Boris Johnson announced that the UK would effectively be going into "lockdown" for a period of at least three weeks, in order to tackle the sp

COVID-19 Update – What Do the Latest Proposals Mean for UK Employers?

By unanimous vote on March 25, 2020, the Senate passed the largest stimulus measure the United States has ever seen, the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). The bill—totaling a whopping 880 pages—tackles numerous issues on several fronts in an effort to stabilize the economy during the Coronavirus crisis. Included in the bill are provisions related to employers and employees. In this article, we address the provisions of the CARES Act regarding employees’ entitlement to Public Health Emergency Leave and Paid Sick Leave and states’ entitlement to grants to pay and process unemployment claims. In the coming days, our Employment Law Commentary will address additional employment-related provisions of the CARES Act, and our colleagues across the firm will publish analyses of the other provisions of the bill, all of which will be available at our Coronavirus (COVID-19) Resource Center.The CARES Act modifies the Families First Coronavirus Response Act (“FFCRA”) enacted March 18, 2020. As we described in our prior <a href="https://elc.mofo.com/topics/families-first-coronavirus-response-act-paid-family-sick-leave.html">Employment Law Commentary analyzing the FFCRA</a>, the FFCRA created two new kinds of paid leave for employees of employers with fewer than 500 employees. First, the FFCRA expanded the available leave under the Family and Medical Leave Act (“FMLA”) by requiring covered employers to provide up to 12 weeks of paid leave due to “a qualifying need related to a public health emergency.” Second, the FFCRA created the Emergency Paid Sick Leave Act, which requires covered employers to provide employees up to 80 hours of paid sick leave for a qualifying purpose. In addition to creating new types of paid leaves, the FFCRA included the Emergency Unemployment Insurance Stabilization and Access Act (“EUISA”), which allocates emergency funds to states to pay and handle processing of unemployment compensation claims.The CARES Act is now before the House of Representative, which is expected to approve it on March 27, 2020.Public Health Emergency Leave (Sec. 3601)Under the FFCRA, employees of covered employers are entitled to up to 12 weeks of leave where the employee is unable to work (or telework) due to a need to care for a child of the employee under age 18 if the child’s school or place of care has been closed or the child’s care provider is unavailable due to a public health emergency (i.e., COVID-19). The first 10 days of Public Health Emergency Leave are unpaid (though employees may use their accrued vacation and sick leave during this time), while leave after the 10 days is paid. The FFCRA included a cap on this paid leave of $200 per day and $10,000 in the aggregate. The CARES Act clarifies that these caps are per employee and only for the Public Health Emergency Leave portion of the FFCRA. The new provision states, “An employer shall not be required to pay more than $200 per day and $10,000 in the aggregate for each employee for paid leave under this section.”Emergency Paid Sick Leave Act (“EPSLA”) Limitation (Sec. 3602)The FFCRA created the EPSLA, which requires covered employers to provide up to 80 hours of paid sick leave for full-time employees and an amount equal to the average number of hours that part-time employees work, on average, during a two-week period. This paid sick leave is available when an employee is unable to work (or telework) due to the following reasons:<ol><li> The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;</li><li>The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;</li><li>The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;</li><li>The employee is caring for a family member who is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;</li><li>The employee is caring for their son or daughter if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable due to COVID-19 precautions; or</li><li>The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.</li></ol>The FFCRA capped this paid sick leave at $511 per day and $5,110 in the aggregate for sick leave taken due to reasons (1), (2), or (3) above and $200 per day and $2,000 in the aggregate due to reasons (4), (5), or (6) above. As with the Paid Public Health Emergency Leave, the CARES Act clarifies that these caps apply “for each employee.”Unemployment Insurance (Sec. 3603)The FFCRA created the EUISA, which expands unemployment benefits and provides grants to states for processing and paying claims of unemployment compensation. Among the conditions for any state to receive a grant under the EUISA, the state must: (1) require employers to notify employees at the time they lose their jobs of the availability of unemployment compensation, (2) ensure that unemployment compensation applications and assistance with them are accessible in at least two media (in-person, by phone, and/or online), and (3) take certain steps to ensure the successful processing of applications. The original text of the EUISA mirrored language in the Social Security Act, which requires that applications for unemployment compensation (as well as assistance with applications) be accessible in at least two of the following three media: in-person, by phone, and/or online. The CARES Act softens this requirement so that recipient states must provide access and assistance in two of the three media only “to the extent practicable.”OMB Waiver of Paid Family and Paid Sick Leave (Sec. 3604)The CARES Act amends the FFCRA to permit the Director of the Office of Management and Budget to exclude from certain employers of the U.S. government from entitlement to Public Health Emergency Leave and Paid Sick Leave.Paid Leave for Rehired Employees (Sec. 3605)The CARES Act changes the eligibility requirements for employees who to receive leave under the FMLA due to “a qualifying need related to a public health emergency.” Under the FFCRA, only employees who had been employed for at least 30 days were eligible for this leave. The CARES Act expands this eligibility to include rehired employees—specifically, employees laid off after March 1, 2020 (but who had worked at least 30 of the 60 days prior to the layoff) and then rehired.Federal Contractor Authority (Sec. 3610)The CARES Act provides that funds made available through the stimulus to federal contractors may be used to modify contracts as necessary so as to keep employees and subcontractors who would otherwise be employed on federal government sites (and who cannot telework) in “a ready state.” This provision is effective through September 30, 2020.Technical Corrections (Sec. 3611)Section 3611(7) of the CARES Act empowers the Secretary of Labor to issue regulations regarding leave under the FMLA due to “a qualifying need related to a public health emergency.” Previously, the Secretary of Labor’s regulatory powers in the FFCRA were limited to excluding healthcare and emergency responders from the definition of employee and to exempting small businesses of less than 50 employees from the requirements of providing FMLA leave due to “a qualifying need related to a public health emergency,” which, when doing so, would jeopardize their viability.

CARES Act – What Employers Should Know (Part I): Paid Emergency Sick and Public Health Emergency Leave and More

By unanimous vote on March 25, 2020, the Senate passed the largest stimulus measure the United States has ever seen, the Coronavirus Aid, Relief, and Economic S

CARES Act – What Employers Should Know (Part I): Paid Emergency Sick and Public Health Emergency Leave and More

Since we <a href="https://elc.mofo.com/topics/families-first-coronavirus-response-act-paid-family-sick-leave.html" target="_blank">last reported</a> on the recently enacted <a href="https://www.congress.gov/bill/116th-congress/house-bill/6201/text" target="_blank">Families First Coronavirus Response Act</a> (“FFCRA”), the U.S. Department of Labor (“DOL”) released Fact Sheets for <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave" target="_blank">employees</a> and <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave" target="_blank">employers</a> and a set of <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-questions" target="_blank">Questions and Answers</a> (“Q&As”) clarifying several issues related to the paid leave and <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions" target="_blank">posting requirements</a>. The DOL also issued guidance on its <a href="https://www.dol.gov/agencies/whd/field-assistance-bulletins/2020-1" target="_blank">initial enforcement of the FFCRA</a>. As the DOL <a href="https://www.dol.gov/newsroom/releases/whd/whd20200324" target="_blank">noted</a>, this is its “first round of published guidance.” While helpful, the DOL’s guidance is not binding law and leaves many questions unanswered. The DOL plans to publish official regulations on or before April 1, 2020.A few notable takeaways from the DOL’s recently issued guidance on the FFCRA:The FFCRA takes effect on April 1, 2020.The DOL pushed up the FFCRA’s effective date. The FFCRA’s paid leave provisions are now effective on April 1, 2020, and are scheduled to expire on December 31, 2020. The FFCRA will not apply retroactively.How to determine the coverage threshold.The FFCRA applies to private employers with less than 500 employees. The DOL says that employers should determine coverage at the time an employee takes paid leave under FFCRA. Employers should count all full-time and part-time employees within the United States, including:<ul><li>employees on leave;</li></ul><ul><li>temporary employees who are jointly employed by the employer and another company (regardless of whether the jointly-employed employees are on only one employer’s payroll); and</li></ul><ul><li>day laborers supplied by a temporary agency (regardless of whether the employer is the temporary agency or the client firm if there is a continuing employment relationship).</li></ul>Workers who are properly classified as independent contractors under the Fair Labor Standards Act (“FLSA”) are not counted for determining coverage.Related businesses can be combined for determining FFCRA coverage.Typically, a company counts only its employees (at any facility or division within the U.S.) towards the FFCRA coverage threshold. Where separate companies are part of the same corporate family (such as subsidiaries or parents) or a company has an ownership interest in another company, those companies will be considered separate employers under the FFCRA unless they can be considered joint employers under the FLSA or meet the <a href="https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FOH_Ch39.pdf" target="_blank">“integrated employer test” under the Family and Medical Leave Act of 1993</a> (“FMLA”). The DOL’s recent joint employer final rule identifies various factors used to determine whether two entities are joint employers. The integrated entity test also considers several factors, including common management, interrelation between operations, centralized control of labor relations, and degree of common ownership or financial control. Separate employers will need to determine whether they can (or even would want to) satisfy either of those tests for purposes of potentially exceeding the FFCRA threshold. When considering that issue, related companies should be mindful that determination of joint employer or integrated entity status can result in joint and several liability for claims under the FLSA and FMLA.Exemptions for small businesses.Businesses with less than 50 employees may be able to obtain an exemption from the FFCRA when compliance would jeopardize the viability of the business as a going concern. Although employers can be reimbursed for FFCRA paid leave through tax credits, many small businesses may not have the liquidity to pay for the leave up front. Other than stating that these employers should document why the exemption should apply to them, the DOL essentially leaves it to small businesses to determine if the exemption might apply. DOL’s regulations may provide additional guidance.FFCRA paid leave is not required for closures or furloughs.The DOL clarifies that employers are not required to pay either type of FFCRA leave if they close their worksite or furlough employees. This is true whether the closure of the worksite or furlough was due to lack of business or because of a “Federal, State or local directive.” If an employee is on paid FFCRA leave when the employer closes the worksite, the employer only has to pay for the paid leave the employee used before the worksite closed.Employees cannot use FFCRA paid leave for reduced hours they lost.Employees whose work hours are reduced may not use either type of FFCRA leave for the hours they no longer are scheduled to work. The DOL said this is because those employees are not prevented from working those hours due to a COVID-19 qualifying reason, even if the reduced hours were “somehow related to COVID-19.”Calculating hours for part-time employees.Under the FFCRA, a part-time employee is entitled to leave for his or her average number of work hours in a two-week period. DOL instructs employers to calculate the hours of leave based on the number of hours the employee is normally scheduled to work. For example, if a part-time employee is regularly scheduled 25 hours per week, the employee would be eligible for up to 25 hours of paid leave per week (or 50 hours over a two-week period).Where the normal hours scheduled are unknown or the part-time employee’s schedule varies, employers are allowed to either: (1) use a six-month average to calculate the average daily hours; or (2) if an employee has been employed for less than six months, use the number of hours that the company and the employee agreed upon at hiring or the average hours per day the employee was scheduled to work during their term of employment.Part-time employees may take paid sick leave for the calculated number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to 10 weeks after that.Overtime hours are included in calculating the amount of FFCRA paid leave.The DOL said that employers must include overtime in calculating the amount to pay employees must receive for both types of FFCRA paid leave, but overtime premiums do not need to be included.  For the FMLA expansion leave, employers are required to pay an employee for hours the employee would have normally scheduled to work even if that is more than 40 hours a week. The emergency paid sick leave, however, requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week, but the total number of hours paid is capped at 80.Calculating the regular rate.DOL states that the regular rate of pay used to calculate both types of FFCRA paid leave is the average of an employee’s regular rate over a period of up to six months prior to the date on which the employee takes leave.  For employees who have worked for their employer for less than six months, the regular rate used to calculate their leave is the average of their regular rate of pay for each week that they have worked for their current employer. Commissions, tips, and piece rates must be incorporated into determining the regular rate.FFCRA leave may be taken intermittently only with the employers agreement.Although the DOL encourages employers to allow employees to take FFCRA paid leave intermittently, it does not require it.Required records for FFCRA paid leave.Employers wanting to obtain a tax credit for providing paid leave under FFCRA must maintain the following records:<ul><li>Paid sick leave: Employers must require employees taking paid sick leave to provide appropriate documentation in support of the reason for the leave, including: the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested. Documentation of the reason for the leave will also be necessary, such as the source of any quarantine or isolation order, or a copy of the federal, state or local quarantine or isolation order related to COVID-19 applicable to the employee. </li></ul><ul><li>Paid FMLA expansion leave: Employers must require employees taking paid FMLA expansion leave to provide appropriate documentation similar to a conventional FMLA request, such as a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider. </li></ul>The DOL advises employers to consult with the Internal Revenue Service (“IRS”) for applicable forms, instructions, and information on the procedures for obtaining tax credits for FFCRA paid leave.Employees cannot collect unemployment while on FFCRA leave.Employees who are on FFCRA leave are not eligible for unemployment insurance. The DOL, however, notes that partial unemployment benefits may be available to employees whose hours or pay have been reduced under certain state law.The DOL provided guidance on the posting requirements.The DOL issued <a href="https://www.dol.gov/agencies/whd/pandemic" target="_blank">model notices</a> of the requirements for both types of FFCRA paid leave. The DOL indicates that all covered employees (including small businesses) must post the notices in a conspicuous place where employees can easily see them. A covered employer can satisfy the posting requirement by emailing or direct mailing the notices to employees, or posting the notices on an employee information internal, or external, website. The notices do not have to be posted in multiple languages or shared with recently laid-off individuals.The DOL will not bring enforcement actions against employers before April 17, 2020, so long as they act “reasonably” and “in good faith.”In order to enable covered employers to come into compliance with the FFCRA, the DOL said it will not enforce the FFCRA from March 18 through April 17, 2020, and would not pursue enforcement actions against covered employers, so long as the employer has made reasonable, good faith efforts to comply with the FFCRA. The employer will be found to have acted “reasonably” and “in good faith” when all of the following facts are present:<ul><li>The employer remedies any violations, including by making all affected employees whole as soon as practicable.</li></ul><ul><li>The violations of the FFCRA were not “willful” based on the criteria set forth in McLaughlin v. Richland Shoe, 486 U.S. 128, 133 (1988) (the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited . . .”).</li></ul><ul><li>The DOL receives a written commitment from the employer to comply with the FFCRA in the future.</li></ul>The DOL noted that after stay of enforcement is lifted on April 17, 2020, it intends to fully enforce any violations of the FFCRA.

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.

DOL Releases "First Round of Published Guidance" on the Families First Coronavirus Response Act

Since we last reported on the recently enacted Families First Coronavirus Response Act (“FFCRA”), the U.S. Department of Labor (“DOL”) released Fact Sheets for 

DOL Releases "First Round of Published Guidance" on the Families First Coronavirus Response Act

On March 18, 2020, Governor Cuomo of New York signed into law a <a href="https://www.nysenate.gov/legislation/bills/2019/a10153">statewide quarantine leave bill</a> related to the COVID-19 pandemic (the “New York law”).  The New York law went into effect immediately on March 18 and provides paid leave, unpaid leave, and expands New York’s paid family leave and disability benefits to employees who are subject to a “mandatory or precautionary order of quarantine or isolation.”  On the same date, <a href="https://elc.mofo.com/topics/families-first-coronavirus-response-act-paid-family-sick-leave.html">President Trump signed into law the federal Families First Coronavirus Response Act (“FFCRA”)</a>.  We have been counseling clients around the country regarding a variety of employment issues related to COVID-19 and provide this article as a useful tool for our clients with employees in New York in particular. <h4>U.S. DEPARTMENT OF LABOR PUBLISHES FFCRA GUIDANCE</h4>As a preliminary matter, we note that the U.S. Department of Labor (“DOL”) confirmed in <a href="https://www.dol.gov/agencies/whd/pandemic">its regulatory guidance issued yesterday, March 24</a>, that FFCRA leave and benefits will go into effect on April 1, 2020.  We will provide a more detailed discussion of the DOL’s guidance in a separate alert, but briefly note here that it answers several, but not all, previously open questions.  One potential ambiguity that may remain unresolved is whether shelter in place (“SIP”) or stay at home (“SAH”) orders that have now been implemented by the governors of a growing list of states, including but not limited to, California and New York, constitute a “quarantine or isolation order related to COVID-19” for purposes of the FFCRA.  The March 24 DOL guidance does not address this question.  But the DOL is expected to be publishing further guidance as we get closer to the April 1 FFCRA effective date, so this is certainly an issue about which employers should work closely with legal counsel before making decisions.<h4>INTERPLAY OF THE FFCRA AND THE NEW YORK LAW</h4>We provide further details about the New York law and its interplay with the FFCRA below.OverviewThe benefits available to employees under the New York law differ depending on the size and/or net income of the employer.  The FFCRA applies to employers with fewer than 500 employees, but the DOL can exempt employers with fewer than 50 employees if providing paid leave would jeopardize the viability of the business.  The New York law expressly provides that an employee covered under both the New York law and any federal law or regulation related to COVID-19 is entitled to the difference between the benefits under the New York law and the benefits available, if any, under the federal law or regulation. Eligible Employees The New York law applies to employees who are “subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York, the department of health, local board of health, or any government entity duly authorized to issue such order due to COVID-19.” Similar to the FFCRA open issue noted above, the New York law is vague on what constitutes a “mandatory or precautionary order of quarantine or isolation.”  But guidance from the New York State Department of Health arguably suggests that mandatory or precautionary quarantine or isolation applies to persons who have tested positive for COVID-19, been in close contact with or have had proximate exposure to someone who has tested positive, or traveled to China, Iran, Japan, South Korea, or Italy while COVID-19 was prevalent.  If that were the case, Governor Cuomo’s recent Executive Order 202.8, which requires all non-essential businesses and non-profit entities in New York to fully reduce their in-person workforce at any work location, would not fit within the meaning of “mandatory or precautionary order of quarantine or isolation” under the new law.  We may expect further guidance from the New York State Department of Labor Commissioner on this topic.The New York law contains carve-outs for certain employees:<ul><li>It does not apply to any employee who is deemed asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work, including telework, while under a mandatory or precautionary order of quarantine or isolation.  </li></ul><ul><li>An employee shall not receive paid sick leave benefits or other paid benefits provided by the New York law if the employee is subject to a mandatory or precautionary order of quarantine after non-work, voluntary travel to a high-risk country as determined by the Centers for Disease Control and Prevention and if the employee was provided notice of the travel health warning and this carve-out.  Such employee is entitled to use accrued leave provided by the employer, or to the extent that the employee does not have accrued leave or sufficient accrued leave, unpaid sick leave for the duration of the quarantine or isolation order.</li></ul>Unlike the FFCRA, the New York law does not provide paid sick leave to employees who are unable to work because they are experiencing symptoms of COVID-19 and seeking a medical diagnosis or even have been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19, among other reasons. Covered EmployersThe chart below details the amount of paid sick leave available to an eligible employee based on the size and/or net income of the employer.  Of significance is that unlike the FFCRA, the New York law applies to employers with 500 or more employees.  Under the New York law, the number of employees is measured as of January 1, 2020, and the net income refers to the previous tax year. Eligible employees do not receive both the paid sick leave available under the New York law and the paid sick leave available under the FFCRA.  If the New York law provides them with greater benefits, they are entitled to the difference between the benefits under the New York law and the benefits available under the FFCRA. The New York law is silent on how each day of paid sick leave pay should be calculated and whether part-time employees are entitled to the same amount of paid sick leave as full-time employees.  We may also expect to see further guidance from the New York State Department of Labor Commissioner on these topics, as the new law authorizes the Labor Commissioner to issue guidance and regulations, including “standards for the use, payment, and employee eligibility of sick leave pursuant to this act.”<table style="width: 0px;" cellpadding="0" cellspacing="0" border="0"><thead><tr><td valign="top" width="155" style="width: undefined%; height: auto;">Employer Size</td><td valign="top" width="231" style="width: undefined%; height: auto;">New York Law</td><td valign="top" width="231" style="width: undefined%; height: auto;">FFCRA</td></tr></thead><tbody><tr><td valign="top" width="155" style="width: undefined%; height: auto;">500 or more employees</td><td valign="top" width="231" style="width: undefined%; height: auto;">14 days of paid sick leave to each eligible employee</td><td valign="top" width="231" style="width: undefined%; height: auto;">Not applicable</td></tr><tr><td valign="top" width="155" style="width: undefined%; height: auto;">100 or more employees but fewer than 500 employees</td><td valign="top" width="231" style="width: undefined%; height: auto;">14 days of paid sick leave to each eligible employee</td><td valign="top" width="231" style="width: undefined%; height: auto;">Up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period</td></tr><tr><td valign="top" width="155" style="width: undefined%; height: auto;">Between 50 employees and 99 employees</td><td valign="top" width="231" style="width: undefined%; height: auto;">Five days of paid sick leave to each eligible employee, and unpaid leave until the termination of the quarantine or isolation order</td><td valign="top" width="231" style="width: undefined%; height: auto;">Up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period</td></tr><tr><td valign="top" width="155" style="width: undefined%; height: auto;">Between 11 and 49 employees</td><td valign="top" width="231" style="width: undefined%; height: auto;">Five days of paid sick leave to each eligible employee, and unpaid leave until the termination of the quarantine or isolation order</td><td valign="top" width="231" style="width: undefined%; height: auto;">Potential exemption from the DOL, but otherwise, up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period</td></tr><tr><td valign="top" width="155" style="width: undefined%; height: auto;">10 or less employees and a net income of greater than $1 million</td><td valign="top" width="231" style="width: undefined%; height: auto;">Five days of paid sick leave to each eligible employee, and unpaid leave until the termination of the quarantine or isolation order</td><td valign="top" width="231" style="width: undefined%; height: auto;">Potential exemption from the DOL, but otherwise, up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period</td></tr><tr><td valign="top" width="155" style="width: undefined%; height: auto;">10 or less employees and a net income of $1 million or less</td><td valign="top" width="231" style="width: undefined%; height: auto;">Unpaid leave until the termination of the quarantine or isolation order</td><td valign="top" width="231" style="width: undefined%; height: auto;">Potential exemption from the DOL, but otherwise, up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period</td></tr></tbody></table> Existing Sick Leave BenefitsThe New York law provides that “[s]uch leave shall be provided without loss of an officer or employee’s accrued sick leave.”  It is unclear whether “accrued sick leave” refers to existing mandatory sick leave, such as mandatory sick leave for employees in New York City and Westchester County, and/or to existing employer policies.  The FFCRA is clearer on the topic; the FFCRA does not diminish the right and benefits of an employee under “other Federal, State, or local law,” “collective bargaining agreement,” or “existing employer policy.”Anti-Retaliation and Job RestorationThe New York law provides that an employer shall not “discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee because such employee has taken leave pursuant to this act.”  The New York law also requires an employer to restore an employee who has returned to work following leave taken under the New York law to his or her “position of employment held by the employee prior to any leave taken pursuant to this act with the same pay and other terms and conditions of employment.” The paid sick leave portion of the FFCRA provides that it is unlawful for an employer “to discharge, discipline, or in any other manner discriminate against an employee” who takes leave under the FFCRA and “has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act (including a proceeding that seeks enforcement of this Act), or has testified or is about to testify in any such proceeding.”  The FFCRA is silent on the topic of job restoration as to paid sick leave, but in its Family and Medical Leave Act (“FMLA”) expansion portion, it expressly exempts an employer with fewer than 25 employees from FMLA’s job restoration section if the employer meets certain conditions.  Paid Family Leave and Disability Benefits The New York law expands paid family leave and disability benefits to employees of employers with fewer than 100 employees.  It does not address whether these expanded benefits are available to employees of employers with 100 or more employees.Whereas paid family leave benefits are available only to employees who need to take a leave due to family issues, the New York law expands the definition of “family leave” for eligible employees to include: any leave taken by an employee from work when an employee is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19; or to provide care for a minor dependent child of the employee who is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19.  The New York law also expands the definition of “disability” to include: any inability of an employee to perform the regular duties of his or her employment or the duties of any other employment which his or her employer may offer him or her as a result of a mandatory or precautionary order of quarantine or isolation due to COVID-19; and when the employee has exhausted all paid sick leave provided by the employee’s employer under the new law. Employees who meet both definitions are entitled to collect paid family leave and disability benefits concurrently, up to $840.70 in paid family leave and $2,043.92 in disability benefits per week.

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Eric Akira Tate co-chairs the firm’s Global Employment and Labor Group. He represents technology and other companies in bet-the-company trade secrets and employee mobility cases.

Eric Akira Tate

Eric Tate chairs the firm’s Global Employment and Labor Group. He has represented technology and other companies in the biggest and most highly-publicized trade secrets and employee mobility cases across multiple industries. Eric also represents companies in whistleblower, wage and hour, and other employment litigation.

Eric Tate

New York COVID-19 Paid Leave and Recent Federal Coronavirus Developments

On March 18, 2020, Governor Cuomo of New York signed into law a statewide quarantine leave bill related to the COVID-19 pandemic (the “New York law”).  The New 

New York COVID-19 Paid Leave and Recent Federal Coronavirus Developments

In a welcome development for U.S. employers, the U.S. Equal Employment Opportunity Commission (EEOC) has issued an updated <a target="_blank" href="https://templatelab.com/ada-rehabilitaion-act-coronavirus/">announcement</a> and updated <a target="_blank" href="https://www.eeoc.gov/facts/pandemic_flu.html">guidance</a> for employers about what they can and cannot ask their employees as they seek to protect their workforces against COVID-19. These updates provide valuable clarity to employers about the EEOC’s position on the types of health-related inquiries that an employer can make in light of the “direct threat” posed by COVID-19, without running afoul of the restrictions typically imposed by the Americans with Disabilities Act (ADA). Below, we highlight key clarifications that the updated EEOC guidance provides to employers about how they can screen current employees for COVID-19:1) Can an employer take employees’ temperatures during the COVID-19 pandemic?Yes, but treat the information as confidential medical records. The ADA restricts an employer’s ability to take employees’ temperatures, but the EEOC’s updated guidance clarifies that the COVID-19 pandemic now rises to the level of a “direct threat” that allows employers to take employees’ temperatures as a screening measure during this pandemic.When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?Generally, measuring an employee’s body temperature is a medical examination. Because the CDC [Centers for Disease Control] and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.The EEOC cautions that the information collected from the temperature checks must be protected as a confidential medical record under the ADA, which restricts disclosure of such information.2) Can an employer ask employees whether they are experiencing symptoms consistent with COVID-19?Yes, but treat the information as confidential medical health records. The ADA typically limits what an employer can ask employees about medical conditions, but the EEOC’s updated guidance states that an employer can make certain inquiries if an employee calls in sick or reports feeling ill at work.How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.The EEOC’s guidance also suggests that an employer can make similar inquiries of employees who report feeling ill at work. Again, employers are required to treat such information as a confidential medical record under the ADA.3) Can an employer require an employee with COVID-19 symptoms to stay home?Yes, in fact the CDC says that you should do so. The EEOC’s new guidance provides that an employer can require an employee to stay home if the employee displays symptoms consistent with COVID-19.Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19? Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.The EEOC notes that if an illness is sufficiently serious that it poses a “direct threat,” like COVID-19 at present, an employer may send an employee home without violating the ADA.4) Can an employer require an employee returning from sick leave to provide a doctor’s note?Yes, but be flexible. The EEOC’s guidance states that an employer can require an employee returning from sick leave to provide a doctor’s note verifying the employee’s fitness to return to work, although the EEOC encourages employers to be flexible in seeking such verifications in light of the burden on healthcare providers.When employees return to work, does the ADA allow employers to require doctors' notes certifying their fitness for duty? Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.5) If a COVID-19 vaccine is developed, can employers require their employees to take the vaccine?No, if the employee requires accommodation for a disability or sincere religious belief. According to the EEOC, employers cannot implement an across-the-board requirement for employees to get a COVID-19 vaccine, if/when a vaccine is developed and available.May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him [or her] from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him [or her] from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost" to the operation of the employer’s business, which is a lower standard than under the ADA).Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it. As of the date this document is being issued, there is no vaccine available for COVID- 19.In other words, the EEOC advises that employers may consider encouraging employees to receive an influenza vaccine, but that the ADA and Title VII of the Civil Rights Act will restrict employers from requiring all employees to receive a vaccine, even if/when one is available.Closing ThoughtsThe EEOC has underscored that this guidance is contingent on the current state of affairs and that the range of permissible inquiries by employers may expand or contract based on recommendations from the CDC and other public health officials. Although this guidance is not static, it provides valuable information to U.S. employers as they seek to protect their workplaces from COVID-19, particularly when they operate essential activities that require employees to continue reporting to the workplace.

EEOC Issues Updated Guidance for Employers on COVID-19

In a welcome development for U.S. employers, the U.S. Equal Employment Opportunity Commission (EEOC) has issued an updated announcement and updated guidance for

EEOC Issues Updated Guidance for Employers on COVID-19

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Tori Dalcourt Angle is an associate in the Government Contracts practice in Morrison Foerster’s Washington, D.C. office.
Tori advises clients on various government contract matters, including both pre

Victoria Dalcourt Angle

Victoria Angle

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

As the number of reported cases of COVID-19 continues to increase dramatically, several states, including Califo

The last week brought a wave of unprecedented government orders for non-essential businesses to close and people to stay at home. These orders have forced many employers to lay off or furlough large portions of their workforces or completely shut down their businesses on extremely short notice. We provide here an update to our prior alerts regarding <a href="https://elc.mofo.com/topics/Coronavirus_COVID-19_for_Employers_Leaves_Furloughs_and_the_WARN_Act.html">Leaves, Furloughs and the WARN Act</a> and <a href="https://elc.mofo.com/topics/implications-of-californias-coronavirus-stay-at-home-order-for-employers.html">the Implications of California’s Coronavirus Stay at Home Order for Employers</a> to provide more nuts and bolts information for employers navigating these waters.Read our <a href="https://www.mofo.com/resources/insights/200323-covid-19-warn-act-layoffs-furloughs-closings.html" target="_blank">client alert</a>.

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Nuts and Bolts of Furloughs, Layoffs, and Plant Closings in the Age of Coronavirus (COVID-19) Stay-At-Home Orders: The WARN Act and Beyond

Coronavirus: Steps Employers Should Be Taking

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The last week brought a wave of unprecedented government orders for non-essential businesses to close and people to stay at home. These orders have forced many 

Nuts and Bolts of Furloughs, Layoffs, and Plant Closings in the Age of Coronavirus (COVID-19) Stay-At-Home Orders: The WARN Act and Beyond

On March 19, 2020, California Governor Gavin Newsom issued a statewide <a href="https://www.gov.ca.gov/2020/03/19/governor-gavin-newsom-issues-stay-at-home-order/">Stay at Home Order</a>, California Executive Order No. N-33-20 (“Order”), in response to the growing COVID-19 pandemic. The Order is effective immediately and shall stay in place until further notice.The Order calls for all California residents “to stay at home or at their places of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors.” The Order clarifies, however, that Californians working in “critical infrastructure sectors” as identified by the federal Cybersecurity & Infrastructure Security Agency (CISA) or the governor “may continue their work.” The Order cautions residents who need to leave their homes to “practice social distancing” at all times.Critical Infrastructure SectorsThe Order cites to CISA’s March 19, 2020 <a href="https://www.cisa.gov/sites/default/files/publications/CISA-Guidance-on-Essential-Critical-Infrastructure-Workers-1-20-508c.pdf">Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response</a> (the “CISA Memorandum”) and to CISA’s web page on <a href="https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19">Critical Infrastructure Sectors</a> for guidance on the types of businesses and industries that are exempt from the order. The CISA Memorandum provides detailed information regarding what classes of workers qualify as critical within the following sectors:<ol><li>Healthcare/Public Health</li><li>Law Enforcement, Public Safety, First Responders</li><li>Food and Agriculture</li><li>Energy</li><li>Water and Wastewater</li><li>Transportation and Logistics</li><li>Public Works</li><li>Communications and Information Technology</li><li>Other Community-Based Government Operations and Essential Functions</li><li>Critical Manufacturing</li><li>Hazardous Materials</li><li>Financial Services</li><li>Chemical</li><li>Defense Industrial Base</li></ol>Stay Home Except For Essential ServicesThe <a href="https://www.gov.ca.gov/2020/03/19/governor-gavin-newsom-issues-stay-at-home-order/">press release</a> for the Order posted on the governor’s website also links to a new page at www.covid19.ca.gov entitled “<a href="https://covid19.ca.gov/stay-home-except-for-essential-needs/">Stay home except for essential needs</a>,” which provides guidance about the Order. In addition to the critical infrastructure sectors identified by CISA, the guidance states that businesses that provide “critical government services, schools, childcare, and construction, including housing construction” are exempt from the Order. It also states that the following businesses providing essential services will remain open:<ol><li>Gas stations</li><li>Pharmacies </li><li>Food: Grocery stores, farmers markets, food banks, convenience stores, take-out and delivery restaurants </li><li>Banks</li><li>Laundromats/laundry services</li></ol>The following businesses, however, must close:<ol><li>Dine-in restaurants</li><li>Bars and nightclubs</li><li>Entertainment venues</li><li>Gyms and fitness studios</li><li>Public events and gatherings</li><li>Convention centers</li></ol>Potential Liabilities for Violations of the OrderEmployers could face various liabilities if they require employees to report to work in violation of the Order or take adverse action against them for refusing to report. Employers violating the Order can face penalties under California “Government Code section 8665” and various sections of the California Health & Safety Code.[i]  In addition, California Labor Code § 1102.5(c) prohibits employers from retaliating against “an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation” or who reports potential violations of law to either the employer or government agencies. Noncompliance can result in penalties of up to $10,000 per violation in addition to penalties available under other laws and typical remedies available in wrongful termination cases.[ii] Employees discharged for refusing to come to work in violation of the Order may also have claims for termination in violation of public policy, a.k.a. Tameny claims, since that action could arguably contravene the “substantial public policy principle[s]” behind the Order.[iii] Workers compensation laws may also not preempt claims for employees experiencing workplace injuries or illnesses, including emotional distress, stemming from public policy violations.[iv]What Employers Should DoEmployers should first determine how their business is impacted by the Order. Employers providing essential services are allowed to remain open, while bars, dine-in restaurants, and others are expressly required to close. Many other employers will need to determine if they provide critical infrastructure services exempt from the Order based on the <a href="https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce">CISA Memorandum</a>, the “<a href="https://covid19.ca.gov/stay-home-except-for-essential-needs/">Stay Home Except For Essential Needs</a>” webpage, and the most recent available guidance from the California governor’s office.  Businesses that must close should determine whether their employees can work from home or consider other options. For example, employees affected by this Order may be entitled to paid leave under the recently passed Families First Coronavirus Response Act, which we discuss in more detail <a href="https://elc.mofo.com/topics/families-first-coronavirus-response-act-paid-family-sick-leave.html">here</a>. Furloughed or laid-off employees may also be entitled to unemployment insurance benefits.California employers should be mindful that the California governor has partially suspended the California WARN Act, which would have required 60 days’ notice for any mass layoffs, terminations, or relocations, but employers are still required to provide as much notice as practicable, as discussed in our post <a href="https://elc.mofo.com/topics/Employers-Get-Temporary-Relief-From-the-California-WARN-Act.html">here</a>.  Several other states and localities have also recently issued similar “stay at home” or “shelter in place” orders. Local orders within California may be enforceable under the same laws criminalizing violation of the statewide Order, and other states may have similar or alternative enforcement mechanisms.[i] Cal. Health & Safety Code §§ 120125, 120140, 131080, 120130(c), 120135, 120145, 120175, 120150.[ii] Cal. Labor Code § 1102.5(f).[iii] Tameny v. Atl. Richfield Co., 27 Cal. 3d 167 (1980).[iv] Livitsanos v. Superior Court, 2 Cal. 4th 744 (1992) (holding Tameny claims exempt from preemption by state workers’ compensation laws).

Implications of California’s Coronavirus Stay at Home Order for Employers

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Implications of California’s Coronavirus Stay at Home Order for Employers

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On March 19, 2020, California Governor Gavin Newsom issued a statewide Stay at Home Order, California Executive Order No. N-33-20 (“Order”), in response to the 