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 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. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, such as:<ul><li>OFCCP compliance</li><li>Creating and implementing affirmative action plans</li><li>Defending OFCCP audits and onsite investigations</li><li>Conducting mock pay equity audits</li><li>Drafting and developing business ethics policies and programs</li><li>Complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act</li></ul>He is also well-versed in defending clients against claims alleging trade secret misappropriation, breach of post-employment restrictions, wage-and-hour violations, discrimination, and retaliation.Andrew routinely develops practical, proactive strategies to help employers minimize risk on various human resource matters. Andrew regularly advises clients on:<ul><li>EEO and diversity</li><li>Wage-and-hour</li><li>High-stakes employee terminations</li><li>Executive disputes</li><li>Reductions in force</li><li>Leaves of absence</li><li>Accommodations</li><li>Pay equity</li><li>Employee selection processes</li><li>Employment testing</li><li>Contingent workers </li><li>Policy development and application</li></ul>In addition, Andrew advises on a wide range of employment transactional matters, such as drafting and negotiating executive employment agreements and separations, overseeing internal investigations and audits of employment issues, and conducting employment diligence on mergers, acquisitions, and other corporate transactions.He has significant experience advising technology and other companies on protecting against the loss of trade secrets, proprietary information, and current and prospective clients. Andrew also represents employers in matters involving union avoidance, negotiating and drafting collective bargaining agreements, handling union grievances, and avoiding and defending unfair labor practice charges.<h4>Federal Contractor Experience</h4><ul><li>Defended numerous OFCCP audits, including closing audits with a finding of no violations against a major accounting firm, a language learning software provider, and a technology consulting company</li><li>Obtained complete dismissal of a significant OFCCP complaint against a large aerospace and space transport company</li><li>Performed mock SCA audits for various contractors</li><li>Led labor and employment diligence for $1 billion acquisition of international security firm</li><li>Developed and overhauled numerous affirmative action plans and EEO training programs</li><li>Analyzed subcontractor status for numerous companies to determine OFCCP coverage, including for a large semiconductor manufacturer</li><li>Conducted E-Verify and I-9 audit for a national dispute consulting contractor</li><li>Performed “single entity” analysis for one of the largest mutual life insurance companies</li><li>Conducted pay equity audits for contractors, including for a software and consulting company</li><li>Obtained DOL approval under the SCA for self-funded fringe benefit program of an aviation and space contractor</li><li>Advised a multinational package delivery company on establishing program to conduct denied party screening under lists maintained by OFAC and BIS while minimizing risk of discrimination claims and compliance with background check laws</li><li>Advised a global coffee and coffeehouse chain on establishing hiring processes to avoid discrimination claims while complying with ITAR/EAR</li><li>Developed business ethics policies and programs for a large pharmaceutical manufacturer</li></ul><h4>Other Representative Experience</h4><ul><li>Defended education association against claims by former employers of two executives alleging breach of restrictive covenants and theft of trade secrets and confidential information</li><li>Obtained preliminary injunction enforcing a noncompetition agreement and other restrictive covenants against a former senior sales executive of a technology firm</li><li>Led internal investigation of sexual harassment claims against COO of a public real estate firm</li><li>Advised a global food manufacturer in avoiding litigation while terminating employee threatening whistleblower claims based on employer’s confidential information</li><li>Defended former senior executives of a global manufacturer of performance fabrics against allegations of misappropriation of trade secrets and breach of noncompetition agreements</li><li>Advised an entrepreneur in creating startup while minimizing risk of his former employer pursuing enforcement of restrictive covenants </li><li>Assisted a property management firm in navigating internal investigation of whistleblower claims related to alleged fraud, ethics violations, and sexual harassment by senior executive</li><li>Won motion for reconsideration convincing court to grant summary judgment in gender discrimination and retaliation case against a large DC employer </li><li>Obtained terminating sanctions and attorneys’ fees and costs for discovery violations in a discrimination suit against a large utility provider </li><li>Obtained favorable arbitration decision for a software company in claims by former executive alleging breach of his employment agreement</li><li>Advised a company board in navigating termination of CEO and successfully defended CEO’s breach of contract and wage claims</li><li>Defended numerous EEOC charges, including against a national event planner, a multinational professional services company, and an operator of research and development centers for the government</li><li>Defended and settled over 30 unfair labor practice charges against a national call center operator</li><li>Negotiated new collective bargaining agreements with four separate unions in bankruptcy of an international maritime shipping company</li><li>Awarded pro bono achievement award for defending a non profit in litigation and several administrative audits before the EEOC and state agencies related to a former employee’s whistleblower and discrimination claims, including defending multiple onsite investigations</li><li>Oversaw validation of pre-employment tests for a national food service distributor</li></ul>Prior to joining MoFo, Andrew was a human resources manager for an Inc. 500 company, ranked as one of the fastest-growing private companies in the United States.Andrew is a member of the steering committee and actively involved in the Washington Metro Industry Liaison Group. He is also a member of the firm’s global Environmental, Social, and Governance (ESG) steering committee.<h4>Rankings</h4><ul><li>Recommended for Government Contracts – Legal 500 US 2019 </li></ul>

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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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Following the publication of our January 31, 2020 Client Alert, “Coronavirus: Steps Employers Should be Taking,” the Centers for Disease Control (“CDC”) and the

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Updated Coronavirus (COVID-19) Guidelines For Employers

Updated Coronavirus (COVID-19) Guidelines For Employers | Employment Law Commentary

Updated Coronavirus (COVID-19) Guidelines For Employers | MoFo ELC | Latest Employment Law Developments and Commentary

Following the publication of our January 31, 2020 Client Alert, “<a href="https://elc.mofo.com/topics/coronavirus-steps-employers-should-be-taking.html">Coronavirus: Steps Employers Should be Taking</a>,” the Centers for Disease Control (“CDC”) and the Occupational Safety and Health Administration (“OSHA”) have issued new guidance for employers about how to respond to the recently discovered coronavirus, COVID-19.In addition, the mayor of San Francisco has declared a local emergency, announced <a href="https://protect-us.mimecast.com/s/-jefC1wBEMs04X83FygJSE?domain=sf.gov">here</a>. It also appears that California has a confirmed case of community transmission (someone who caught the virus locally from an unknown infected person). Although the number of confirmed cases in the U.S. remains small, the situation is fluid and employers should stay abreast of developments and guidelines as they are issued.  The latest recommendations follow.CDC UpdateThe CDC notes that for “the general American public, such as workers in non-healthcare settings and where it is unlikely that work tasks create an increased risk of exposures to COVID-19, the immediate health risk from COVID-19 is considered low.” Nevertheless, the CDC advises that employers take the following steps to reduce the risk of exposure:<ul><li>Encourage sick employees to stay home. <ul><li>In particular, those with respiratory illness are recommended to stay home until they are fever free for at least 24 hours. </li><li>To encourage employees to stay home when needed, employers should maintain flexible policies that permit employees to stay home when sick.</li><li>Symptom-free people with low-risk exposures are advised to self-observe until 14 days after their last potential exposure. </li><li>Employers may recommend that employees with low-risk exposures check their temperature before arriving at the workplace.</li></ul></li><li>Separate sick employees when possible, and encourage employees to practice good hand hygiene and coughing and sneezing etiquette. <ul><li>Posters, in particular, can be a helpful tool for informing employees about hygiene etiquette.  </li><li>Educational materials developed by the CDC, including fact sheets, posters, checklists, planning guides, videos, and podcasts, can be found online.</li><li>In addition, employers should provide disposable wipes so that employees may wipe down regularly used surfaces.</li></ul></li><li>Perform routine environmental cleaning, although no additional disinfection beyond routine cleaning is recommended at this time. </li><li>Be mindful of employee travel, and advise employees to check the CDC’s online health notices, check themselves for symptoms, and notify their supervisors if they travel to high-risk areas or become sick during travel.  <ul><li>Traveling employees should contact their healthcare providers if they need healthcare services while abroad and may contact consular offices for additional assistance finding healthcare resources abroad.</li></ul></li><li>Inform employees that if they live with individuals who have contracted COVID-19, they should inform their supervisors and refer to CDC guidance on how to conduct risk assessments.</li><li>Inform employees of possible exposure if those with whom they work have confirmed cases of COVID-19, and conduct risk assessments as needed, but maintain employee confidentiality as required by the Americans with Disabilities Act. </li></ul>Perhaps most importantly, the CDC specifically advises that employers “do not make determinations of risk based on race or country of origin, and be sure to maintain confidentiality of people with confirmed coronavirus infection.”The CDC further recommends that employers develop an Outbreak Response Plan. In doing so, employers should be mindful of the objectives of such plans, which typically include:<ul><li>Reducing transmission;</li><li>Protecting high-risk individuals;</li><li>Maintaining operations; and</li><li>Minimizing adverse effects on other businesses and consumers.</li></ul>When developing Outbreak Response Plans, the CDC recommends:<ul><li>Involving employees in the development and review of the plan;</li><li>Communicating with employees about policies and benefits that can be used to implement the plan;</li><li>Conducting focused analyses and exercises using the plan to identify potential gaps; and</li><li>Sharing best practices with other businesses.</li></ul>Effective Outbreak Response Plans should:<ul><li>Analyze exposure and health risks to employees;</li><li>Identify critical functions, roles, and supply chain elements, and prepare for the effects of increased absenteeism;</li><li>Incorporate human resource policies that are consistent with public health recommendations and with state and federal workplace laws;</li><li>Establish processes for communicating to employees and business partners about the Outbreak Response Plan;</li><li>Refer to plans developed by the communities in which the business operates;</li><li>Make note of channels of communication with state and local health departments and methods for disseminating local outbreak information;</li><li>Minimize exposure among employees and between employees and the public when called for by public officials;</li><li>Offer, where feasible and recommended by local health authorities, flexibility in work locations and work hours by, for example, permitting telecommuting or staggering shifts;</li><li>Limit or cancel non-essential travel to or from communities where outbreaks have been detected; and</li><li>Lay out procedures for activating and terminating the Outbreak Response Plan.</li></ul>OSHA GuidanceIn addition to CDC guidance, employers should be mindful of guidance from OSHA. OSHA’s general COVID-19 guidance can be found online. While OSHA has yet to develop standards specific to COVID-19, OSHA’s website identifies several existing standards that may be applicable, available online. Potentially applicable standards include those for:<ul><li>Recording and Reporting Occupational Injuries and Illness;</li><li>Personal Protective Equipment, specifically standards regarding: <ul><li>General requirements;</li><li>Eye and face protection;</li><li>Respiratory protection; and</li><li>Hand protection;</li></ul></li><li>General Environmental Controls, specifically standards regarding sanitation; and</li><li>Toxic and Hazardous Substances, specifically standards regarding: <ul><li>Access to employee exposure and medical records;</li><li>Bloodborne pathogens;</li><li>Hazard communication; and</li><li>Occupational exposure to hazardous chemicals in laboratories.</li></ul></li></ul>Notably, OSHA has stated that, unlike the common cold or the flu, COVID-19 is a recordable illness that should be reported in accordance with OSHA’s Injury and Illness Recordkeeping and Reporting Requirements.Employers should also be mindful of potentially applicable state plans, which can be found through OSHA’s website.Key TakeawaysAs with other communicable respiratory illnesses like the flu, employers should encourage sick employees to stay home to limit the risk of exposure to COVID-19. Businesses should also review their policies and develop Outbreak Response Plans that may be implemented in the event of an outbreak as advised by public officials.  Nevertheless, any response should be based upon facts, proportionate to the actual risks, and should be mindful of the need to remain compliant with existing employment and labor laws and regulations.Based on guidance from public health authorities, employers may want to consider temporary changes to their operating protocols, such as:<ul><li>Prohibiting business travel to or from high-risk areas;</li><li>Limiting non-essential travel;</li><li>Postponing large gatherings;</li><li>Reducing non-essential contact with business partners and clients;</li><li>Educating employees about risks and precautions as recommended by public officials;</li><li>Providing employees with tools to improve hygiene, such as hand sanitizers, disinfectant wipes, and tissues;</li><li>Recommending or requiring that employees with elevated risks of exposure to COVID‑19 work remotely for 14 days without symptoms before being permitted to return to the worksite;</li><li>Permitting other sick and high-risk individuals, such as those with other medical conditions, to work remotely, take time off, or work flexible hours as reasonably necessary.</li></ul>All businesses should be mindful of the public health risks associated with COVID‑19. Measured responses can protect employees and employers alike without running afoul of the law. Still, employers must remember that the discovery of the coronavirus does not relieve them of their existing obligations to their employees under the law. Listen to public officials and always be careful not to contravene laws protecting employees, such as prohibitions against discrimination, confidentiality protections, health and safety regulations, and employee leave laws, just to name a few.For more information about how employers should respond to the emergence of COVID-19, please refer to our prior client alert on this topic, available <a href="https://www.mofo.com/resources/insights/200131-coronavirus-employers.html?utm_source=publication&utm_medium=email">here</a>. If you need more specific guidance, feel free to contact one of the members of our <a href="https://www.mofo.com/capabilities/employment-labor.html">Employment and Labor Group</a>.

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