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

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Co-Chair, Global Employment and Labor Practice

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

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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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In the wake of the U.S. Food and Drug Administration’s first grant of Emergency Use Authorization (EUA) for a COVID-19 vaccine, the Equal Employment Opportunity Commission (EEOC) updated its pandemic guidance to address the legal issues surrounding the intersection of the COVID-19 vaccine and Equal Employment Opportunity (EEO) laws. The guidance—in the form of Technical Assistance Questions and Answers called What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (“New Guidance”)—is the EEOC’s first substantive position statement on the requirements of EEO laws relative to vaccines since the 2009 H1N1 influenza pandemic and paves the way for COVID-19 vaccines in the workplace. During the H1N1 pandemic, EEOC advised employers, “Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it,” and noted that any employer requirement that employees take the influenza vaccine must allow for reasonable accommodations for disabilities and sincerely held religious beliefs under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (“Title VII”).In its New Guidance, EEOC has backed off of its recommendation of avoiding vaccine mandates but never squarely states that employers may require COVID-19 vaccines. Nevertheless, based on EEOC’s conclusion that vaccines are not regulated “medical examinations” and the inclusion in the New Guidance of an entire section devoted to the rules governing the administration of mandatory vaccine programs, it appears EEOC agrees that employers may indeed mandate vaccines, subject to a number of caveats.

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What Employers Need to Know: EEOC Serves Up COVID-19 Vaccine Guidance

Virginia Becomes the First State to Adopt COVID-19 Workplace Safety Mandates

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In the wake of the U.S. Food and Drug Administration’s first grant of Emergency Use Authorization (EUA) for a COVID-19 vaccine, the Equal Employment Opportunity

What Employers Need to Know: EEOC Serves Up COVID-19 Vaccine Guidance

With the New Year rapidly approaching, employers should prepare for the flurry of new California employment legislation. The recent legislation presents new compliance challenges and requirements for California employers, including obligations related to the ongoing pandemic, reinforcing or expanding leave protections, wage and hour compliance risks, and much more. We discuss some of the most notable developments below. Employers should review their policies and procedures in light of these developments.<h4>COVID-19</h4>AB 685 imposes new COVID-19-related notification and reporting obligations and authorizes Cal/OSHA to shut down operations that place workers at risk of exposure.Effective January 1, 2021, AB 685 requires employers that receive a “notice of potential exposure” (which may come from a variety of sources, as discussed below) to COVID-19 to take the following actions within one business day of the notice:<ol><li> Provide written notice to all employees, and the employers of subcontracted employees, who were at the same worksite as a “qualifying individual” within the “infectious period” that they may have been potentially exposed to COVID-19. If the employees are unionized, written notice must also be provided to the exclusive representative of the employees. The “infectious period” is currently at or around 10 days, depending on whether the individual actually develops symptoms. The State Department of Public Health will be responsible for determining the length of the “infectious period.”<a href="file:///C:/Users/btk1/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234379514-v7-ELC_re__California_Legislation.docx#_ftn1">[1]</a></li><li>Provide all employees who may have been exposed (and their exclusive representative, if any,) with information regarding COVID-19-related benefits to which the employees may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as anti-retaliation and anti-discrimination protections.</li><li> Notify all employees, and the employers of subcontracted employees (and their exclusive representative, if any) of the disinfection and safety plan that the employer plans to implement and complete, which must be consistent with the guidelines of the federal Centers for Disease Control.</li></ol>A “qualifying individual” includes someone who has a positive test for COVID-19, is diagnosed with COVID-19 by a licensed health care provider, is ordered to isolate for COVID-19 by a public health official, or dies due to COVID-19, as determined by a public health department. The “notice of potential exposure” may come from a variety of sources, including a public health official or licensed medical practitioner, a qualifying individual’s representative or emergency contact, the employer’s own testing protocol, or a subcontracted employer.AB 685 also requires employers with a COVID-19 “outbreak” within its premises to notify, within 48 hours, the local public health agency of the names, number, occupation, and worksite of the employees who meet the definition of a “qualifying individual” under AB 685. The term “outbreak” is to be defined by the State Department of Public Health, which currently defines “outbreak” as “at least three COVID-19 cases among workers at the same worksite within a 14-day period.”AB 685 also provides that employers should not disclose employees’ “medical information unless otherwise required by law” or “retaliate against a worker for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate.”From January 1, 2021, until January 1, 2023, AB 685 authorizes Cal/OSHA to shut down an entire worksite or a specific worksite area that exposes employees to an imminent hazard related to COVID-19. An imminent hazard is defined as any condition or practice that poses a hazard to employees, which could reasonably be expected to cause death or physical harm immediately or before the imminence of such hazard can be eliminated through Cal/OSHA’s enforcement process. Any shutdown order must not “materially interrupt the performance of critical governmental functions essential to ensuring public health and safety functions or the delivery of electrical power or water.” From January 1, 2021, until January 1, 2023, Cal/OSHA can also issue citations to employers for serious violations related to COVID-19 without providing 15-day advance notice. AB 1867 provides supplemental COVID-19 paid sick leave to employees.Effective September 19, 2020, AB 1867 provides supplemental paid sick leave until the later of December 31, 2020, or the expiration of any federal extension of the Emergency Paid Sick Leave Act. AB 1867 applies to private employers with more than 500 or more employees and certain employers who employ health care providers or emergency responders or operate a food facility. It requires these employers to provide supplemental COVID-19 paid sick leave to employees who are unable to work due to: (1) COVID-19-related federal, state, or local quarantine or isolation orders; (2) self-quarantine or isolation order by health care provider due to COVID-19-related concerns; or (3) their employer barring them from the worksite due to health concerns related to COVID-19.AB 1867 provides 80 hours of supplemental COVID-19 paid sick leave to an employee whom the employer considers “full time” or has worked or was scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date the employee took COVID-19 supplemental paid sick leave. If the employee is not “full-time,” the employee’s supplemental paid sick leave is based on his or her normal schedule over the prior two weeks. The employer is not required to pay more than $511 per day or more than $5,110 in the aggregate to an employee for COVID-19 supplemental paid sick leave.SB 1159 makes injury from COVID-19 presumptively compensable under workers’ compensation law.For an employee who tested positive or was diagnosed with COVID-19 within 14 days after a day that the employee worked at a worksite at the employer’s direction, SB 1159 provides a rebuttal presumption that the employee’s COVID-19-related illness is an occupational injury that is eligible for workers’ compensation benefits. SB 1159 is effective through January 1, 2023.<h4>Protected Leave</h4>SB 1383 significantly expands California Family Rights Act rights for employees of small businesses.The California Family Rights Act (“CFRA”) authorizes eligible employees to take up to 12 weeks of unpaid, job-protected family and medical leave in a 12-month period. Currently, the CFRA applies to private employers with 50 or more employees within 75 miles of the employer’s worksite. Effective January 1, 2021, SB 1383 expands the CFRA to employers with five or more employees and eliminates the 75 mile requirement.SB 1383 also expands the types of leave that can be used under CFRA. CFRA currently allows employees to take leave to care for a “family member” who has a serious health condition. “Family member” is currently defined as a minor child, a spouse, or a parent. SB 1383 expands the definition to include adult children, siblings, grandparents, grandchildren, and domestic partners. SB 1383 additionally eliminates the CFRA restriction that allows an employer employing both parents of a child to limit CFRA leave to a total of 12 weeks for both parents due to bonding with a newborn child, adopting a child, or foster care placement. Moreover, SB 1383 eliminates the “key employee” exemption, allowing an employer to deny reinstatement to an employee who takes CFRA leave if the employee is among the highest paid 10% of the employer’s employees and the denial is necessary to prevent “substantial and grievous economic injury” to the employer.<ul><li>AB 2017 amends section 233 of the California Labor Code by providing employees with the “sole discretion” to designate the type of paid sick leave used. Currently, employers must permit an employee to use half of the employee’s sick leave entitlement to attend to the illness of a family member. Effective January 1, 2021, AB 2017 will prevent employers from incorrectly designating an employee’s sick leave as kin care and unintentionally depleting the number of hours an employee has to take leave when caring for a family member.</li></ul><ul><li>AB 2992 expands protections under sections 230 and 230.1 of the California Labor Code. Currently, those laws require employers to provide protected leave for employees who are victims of domestic violence, sexual assault, or stalking. Starting January 1, 2021, AB 2992 will expand the protected leave to employees who are victims “of a crime that caused physical injury or that caused mental injury and a threat of physical injury.”</li></ul><h4>Independent Contractors</h4>AB 2257 and AB 323 exempt more California workers from the ABC test under AB 5. As we <a href="https://elc.mofo.com/topics/California-Issues-A-New-Round-Of-Employment-Laws.html">reported</a>, AB 5 codified the expansive ABC test under the California Supreme Court’s Dynamex decision for purposes of determining whether a worker was misclassified as an independent contractor. AB 5 exempted numerous occupations from the ABC test.After challenges from various industries and professions, the California legislature passed AB 2257 and AB 323 to expand the number of exemptions under AB 5. For example, AB 2257 creates a new “single-engagement” business-to-business exemption from the ABC test for a “stand-alone non-recurring event in a single location, or a series of events in the same location no more than once a week” (e.g., an indie music band performing at a non-recurring event). Additional requirements must still be met for this exemption to apply, including that neither party is subject to the control and direction of the other, each party has the ability to negotiate its own rates, each party maintains its own business location, and each party provides its own tools, vehicles, and equipment to perform services under the parties’ contract.AB 2257 also creates new entertainment industry exemptions from the ABC test, including: (1) recording artists; (2) songwriters, lyricists, composers, and proofers; (3) managers of recording artists; (4) record producers and directors; (5) musical engineers and mixers engaged in the creation of sound recordings; (6) musicians engaged in the creation of sound records; (7) vocalists; (8) photographers working on recording photo shoots, album covers, and other items for press and publicity purposes; (9) independent radio promoters; and (10) any other individual “engaged to render any creative, production, marketing, or independent music publicist services related primarily to the creation, marketing, promotion, or distribution of sound recordings or musical compositions.” Musicians and vocalists who are not royalty-based participants in the work created during any specific engagement will be considered employees. Additional exemptions include, but are not limited to, licensed landscape architects, specialized performers teaching master classes, registered professional foresters, real estate appraisers and home inspectors, and feedback aggregators. Referral agencies for a non-exhaustive list of occupations such as caddies, photographers, and interpreters were also exempted from AB 5.AB 323, dubbed the “Save Local Journalism Act,” provides for a one-year extension until January 1, 2022, of the exemption of newspaper distributors and publishers from the ABC test.In addition, California voters recently approved an additional exemption to AB 5, Proposition 22, a California ballot that provides for classification of drivers who offer their services through app-based platforms as independent contractors.  Adoption of Proposition 22 shows that it is indeed possible, albeit expensive, for industry and professional groups to make their case for AB 5 exemption directly to voters.<h4>EEO Reporting</h4>SB 973 requires California private employers with 100 or more employees to submit pay data for its workforce to the Department of Fair Employment and Housing (“DFEH”) on an annual basis. The first submission deadline is March 31, 2021. The pay data must include information about the number of employees by race, ethnicity, and sex in the following categories: (1) executive or senior level officials and managers; (2) first or mid-level officials and managers; (3) professionals; (4) technicians; (5) sales workers; (6) administrative support workers; (7) craft workers; (8) operatives; (9) laborers and helpers; and (10) service workers. Employers must also provide previous year W-2 earnings and hours worked for all employees in a searchable and sortable format.<h4>DLSE Complaints and Whistleblowers</h4>Starting January 1, 2021, AB 1947 expands the statute of limitations from six months to one year to bring a complaint with the Division of Labor Standards Enforcement (“DFEH”) for any employee who believes that he or she was discharged or otherwise discriminated against in violation of any law enforced by the Labor Commissioner. AB 1947 also amends Labor Code section 1102.5, which provides whistleblower protections, to allow a court to award reasonable attorney’s fees to a prevailing plaintiff.<h4>No-Rehire Clauses in Settlement Agreements</h4>We <a href="https://elc.mofo.com/topics/California-Issues-A-New-Round-Of-Employment-Laws.html">reported</a> last year that AB 749 prohibited no-rehire provisions in settlement agreements with employees who filed a claim against an employer in court, before an administrative agency, in an alternative dispute resolution forum, or through the employer’s internal complaint process. One notable exception to AB 749 was where the employer had made a good faith determination that the employee engaged in sexual harassment or assault or “if there is a legitimate non‑discriminatory or non-retaliatory reason for terminating the employment relationship or refusing to rehire the person.” AB 2143, effective January 1, 2021, expands the no-rehire clause prohibition exception to include good-faith determination that the employee engaged in criminal conduct. AB 2143 was also amended to require employees to make “good faith” complaints to qualify for the no-rehire clause protection.<h4>Corporate Board Composition</h4>AB 979 requires publicly held companies whose principal executive office is located in California to have a minimum of one director from an underrepresented community by the end of 2021. For companies with more than four but fewer than nine directors, AB 979 requires a minimum of two directors from underrepresented communities by the close of 2022. For companies with nine or more directors, AB 979 requires a minimum of three directors from underrepresented communities by the end of 2022. “Director from an underrepresented community” is defined as an “individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender.” A company is subject to a fine of $100,000 for a first violation of AB 979 and $300,000 for a second or subsequent violation. Similar to SB 826, which contains similar provisions for companies to have a minimum number of female directors, AB 979 may be subject to various legal challenges.<h4>Wage and Hour Enforcement</h4>AB 3075 requires a company, when filing the company’s statement of information with the California Secretary of State, to include information about whether any officer, director, member, or manager of the company has an outstanding final judgment issued by the DFEH or a court of law, for which no appeal is pending, for the violation of any wage order or provision of the Labor Code.AB 3075 also lowers the bar for an employee to establish successor liability for “any wages, damages, and penalties owed to any of the judgment debtor’s former workforce.” Under AB 3075, successorship may be established if any of the following criteria are established: (1) company uses substantially the same facilities or substantially the same workforce to offer substantially the same services as the judgment debtor; (2) company has substantially the same owners or managers that control the labor relations as the judgment debtor; (3) company employs as a managing agent any person who directly controlled the wages, hours, or working conditions of the affected workforce of the judgment debtor; or (4) company operates a business in the same industry and the business has an owner, partner, officer, or director who is an immediate family member of any owner, partner, officer, or director of the judgment debtor. While legislative history suggests that AB 3075 was introduced to prevent businesses from closing their operations and starting new ones to avoid liability for payments to employees, AB 3075’s language appears to go beyond this narrow scenario and potentially apply, for example, to a third-party company engaged in an asset purchase. <a href="file:///C:/Users/btk1/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234379514-v7-ELC_re__California_Legislation.docx#_ftnref1">[1]</a> See the State Department of Public Health’s website for the latest guidance on this topic: <a href="https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Employer-Guidance-on-AB-685-Definitions.aspx">https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Employer-Guidance-on-AB-685-Definitions.aspx</a>.

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Of Counsel

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

Lloyd Aubry

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

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.

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Kwan Park’s practice focuses on employment and labor litigation.
Kwan’s entire legal career has focused on representing employers. He seeks to understand each client’s unique business needs and objectives and relentlessly works to achieve them, whether in employment and labor litigation or in addressing novel legal issues.











Kwan Park

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Another Round of New California Employment Laws

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With the New Year rapidly approaching, employers should prepare for the flurry of new California employment legislation. The recent legislation presents new com

Another Round of New California Employment Laws

While the use of masks to combat the spread of COVID-19 has become a politicized issue in the United States, the scientific community largely agrees that wearing face coverings is one of the most effective ways to slow infections. State and local governments have issued orders requiring residents to wear masks in public, with some advising employers to provide their employees with face coverings or reimburse the reasonable cost of obtaining one. Governor Gavin Newsom of California, for example, has issued a number of mandates to slow infections. One of those mandates is that all individuals must wear a mask or face covering in public or common spaces statewide. Federal agencies such as the CDC and OSHA have issued non‑binding guidelines that also advise people to wear masks in public.It might seem that as long as businesses comply with these federal, state, and local requirements and guidelines regarding masks, they can expect to be shielded from lawsuits related to their mask-related policies. A few recently filed putative class action lawsuits, however, show that plaintiffs and their attorneys are nevertheless seeking ways to turn mask issues into litigation.See more on <a target="_blank" href="https://classdismissed.mofo.com/ada/warnings-from-recent-face-mask-litigation/">MoFo's Class Dismissed Blog</a>.Morrison & Foerster’s <a href="https://www.mofo.com/capabilities/class-actions-mass-torts.html">Class Action + Mass Torts Group</a>, <a href="https://www.mofo.com/capabilities/employment-labor.html">Employment + Labor Group</a>, and Coronavirus Task Force have advised and represented many clients on developing COVID-19 protocols and emerging claims related to COVID-19.

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Associate

Michelle Sosa-Acosta is an associate in the  Securities Litigation, Securities Enforcement, and Investigations + White Collar Defense Groups in Morrison Foerster’s San Francisco office. 

Michelle Sosa-Acosta

Are You Covered? Warnings From Recent Face Mask Litigation

While the use of masks to combat the spread of COVID-19 has become a politicized issue in the United States, the scientific community largely agrees that wearin

Are You Covered? Warnings From Recent Face Mask Litigation

On September 11, 2020, the Office of Federal Contract Compliance Programs (OFCCP) released <a href="https://www.dol.gov/agencies/ofccp/foia/library#Q1" target="_blank">a list of nearly 900 federal supply and service contractors and subcontractors</a> that it will be sending Corporate Scheduling Announcement Letters (CSALs) to for potential audits of over 2,200 contractor establishments. For the first time, the CSAL list includes audits focusing on contractors’ promotion practices and accommodations of individuals with disabilities. The list reveals that OFCCP will be sending CSALs for various types of compliance reviews, including:<ul><li>402 Establishment Compliance Reviews;</li><li>31 FAAP Reviews;</li><li>67 Corporate Management Compliance Evaluations;</li><li>500 Compliance Checks;</li><li>500 Accommodation Focused Reviews;</li><li>500 Promotion Focused Reviews; and</li><li>250 Section 503 Focused Reviews.</li></ul><h4>Proactive Steps If Your Company Is On the CSAL List</h4><ul><li>Timeline for Potential Audit: OFCCP sends CSALs to service and supply contractors as a courtesy to let them know that one or more of their establishments may be scheduled for an OFCCP audit. CSALs provide contractors with at least 45-days advance notice to prepare for the compliance review. Although receipt of a CSAL does not necessarily mean that a contractor’s establishment has been selected for an audit, contractors receiving CSALs are typically scheduled for an OFCCP audit.</li><li>Notify Relevant Staff to Watch for CSALs: CSALs are typically sent to the HR Director (or designated point of contact) at the establishment on OFCCP’s CSAL list. As these individuals are not always responsible for the contractor’s affirmative action compliance (or even aware of the contractor’s affirmative action obligations), contractors should notify HR personnel and other designated points of contact at their establishments to keep a lookout for those notices in the next few weeks.</li><li>Prepare for Audit upon Receipt of CSAL: Contractors that receive CSALs should take advantage of the advance notice by immediately reviewing their affirmative action practices in preparation for a potential audit. Investing ample time up front to have a good initial submission can potentially save significant costs in defending an audit and avoid unnecessary adverse findings. The review should generally begin with determining which type of compliance review will be conducted (i.e., establishment review, compliance check, accommodation focused review, etc.) and then using the <a target="_blank" href="https://www.dol.gov/agencies/ofccp/compliance-checks/scheduling-list">applicable OFCCP scheduling letter</a> as a guide for preparing the initial submission, should the contractor be selected for an audit. In addition, if the review requires submission of the contractor’s affirmative action plan (AAP), the contractor should ensure its AAP is completely compliant and ready for review. Contractors should also review other compliance areas, including their outreach and recruitment efforts, compliance with notice posting and job listing requirements, and accommodation practices.</li><li>Pay Close Attention to Areas Showing Adverse Impact: OFCCP has been very effective at pursuing and settling systemic discrimination cases in the last few years. In many instances, the best defense to these claims is having a good offense. If a contractor has potential indicators of discrimination for hiring, promotions, terminations, or compensation, it should immediately analyze those areas, under the attorney-client privilege, to ensure that the data and similarly situated employee groupings (SSEGs) underlying those indicators are accurate or that the contractor has legitimate explanations for those indicators.</li><li>Do Not Expect Extensions for Responding to the Scheduling Letter: Contractors have 30 days from the date they receive a scheduling letter to provide OFCCP the items requested in the itemized listing attached to the scheduling letter, which usually includes a request for a copy of the contractors’ AAP for the establishment under review. Under the current administration, unless there are extraordinary circumstances, OFCCP usually will provide a one-time extension of the 30-day period for data supporting the AAP only if: (1) the contractor requests the extension before the 30-day period expires; and (2) the contractor timely submits its AAP narrative (non-data portion) within the 30-day period of receiving the scheduling letter.</li><li>No CSAL Does Not Mean No Audit: Contractors should not assume they are safe merely because they have not received a CSAL. OFCCP is not required to send CSALs. A contractor may be scheduled for a compliance review even if it did not receive a CSAL. It is also possible for a contractor to be scheduled for a compliance review at a location that did not receive a CSAL. </li></ul>Andrew Turnbull routinely assists contractors with preparing for and defending OFCCP audits. If you have any questions about this alert, he can be reached at <a href="mailto:aturnbull@mofo.com">aturnbull@mofo.com</a>.

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OFCCP Issues New List of Advance Audit Notices

In a Long-Anticipated Move, the Trump Administration Revokes Executive Order 13495, Giving Service Contractors More Flexibility when Hiring Predecessor Contractor Employees 

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On September 11, 2020, the Office of Federal Contract Compliance Programs (OFCCP) released a list of nearly 900 federal supply and service contractors and subco

OFCCP Issues New List of Advance Audit Notices

On July 27, 2020, Senate Republicans introduced the HEALS Act, its response to the Democrat-backed stimulus bill, the HEROES Act. Although the HEALS Act is currently on life support in light of the stalemate in negotiations over the competing bills, employers should nonetheless take notice of one lesser publicized piece of the Senate’s proposed stimulus package: the SAFE TO WORK Act (the “Act”). The Act would create a liability shield (with retroactive effect) for employers and others “to discourage insubstantial lawsuits relating to COVID-19 while preserving the ability of individuals and businesses that have suffered real injury to obtain complete relief.”Read our <a target="_blank" href="https://www.mofo.com/resources/insights/200811-safe-to-work-act.html">client alert.</a>

The SAFE TO WORK Act: An In-Depth Guide for Employers to the Senate's Proposed Coronavirus Liability Shield

On July 27, 2020, Senate Republicans introduced the HEALS Act, its response to the Democrat-backed stimulus bill, the HEROES Act. Although the HEALS Act is curr

The SAFE TO WORK Act: An In-Depth Guide for Employers to the Senate's Proposed Coronavirus Liability Shield

On July 15, 2020, the Virginia Department of Labor and Industry (DOLI) Safety and Health Codes Board voted 9-2 to approve the nation’s first emergency workplace regulation related to COVID-19. The new regulation was issued in response to Virginia Governor Ralph Northam’s directive in May 2020 to address workplace safety issues in Virginia given the lack of response from the federal Occupational Health and Safety Administration (OSHA). While the final text of the regulation has yet to be issued, the regulation will require Virginia employers to implement various policies and procedures to reduce the spread of COVID-19 in the workplace. <h3>Background</h3>Virginia has established the Virginia Occupational Safety and Health (VOSH) to oversee workplace and safety compliance. While VOSH’s regulations mostly follow OSHA standards, VOSH can establish additional workplace safety standards beyond OSHA’s requirements. Since the outbreak of the COVID-19 pandemic in the United States, many state officials and employee advocacy groups have been waiting for OSHA to take an active role in protecting workers from the spread of the virus. While OSHA issued guidance for employers on safety standards related to COVID-19, the guidance is non-binding. Multiple parties, from lawmakers to workers’ advocate organizations, have attempted to get OSHA to issue an emergency standard related to COVID-19, but OSHA has thus far declined to do so.In May 2020, Governor Northam issued an executive order calling for increased workplace safety standards for COVID-19, given the lack of federal guidelines. Governor Northam is not alone in his frustration. Oregon OSHA, for example, is expected to issue a similar regulation shortly, following that state’s Governor Kate Brown issuing numerous executive orders, including the expansion of mandatory face coverings, intended to slow the spread of COVID-19. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) continues to urge OSHA to create an emergency workplace standard for COVID-19, and it is currently appealing the U.S. Court of Appeals for the D.C. Circuit’s rejection of the AFL‑CIO’s request for an order mandating OSHA create such a standard.<h3>Effective Date and Coverage</h3>The new regulation will become effective once it has been published in a Richmond, Virginia general circulation newspaper, which is expected to happen during the week of July 27, 2020. DOLI states that the regulation is still being finalized and that training and outreach resources for employers will be provided. It is anticipated to be in effect for six months from its effective date, unless the Safety and Health Codes Board extends the regulation or repeals it earlier. Most private and public employers in Virginia will have to comply with the regulation.<h3>New Requirements</h3>The regulation will require employers to assess whether their workplace is at “very high,” “high,” “medium,” or “lower” risk for exposure to COVID-19. The regulation provides various factors for employers to consider in assessing the risk level within their workplace, including whether the work environment is outdoors or indoors, the type of tasks being undertaken, and whether there are shared spaces for employees to use. Employers that determine their workplace presents hazards or job tasks at the “very high,” “high,” or “medium” risk levels must:<ul><li>Provide COVID-19 related trainings to their employees within 30 days of the effective date of the regulation; and</li><li>Implement a written Infectious Disease Preparedness and Response Plan within 60 days of the effective date of the regulation.</li></ul>Employers that determine their workplaces are at the “low” risk level are not required to develop the response plan or provide training, but they will be required to inform their employees in writing about hazards/characteristics of COVID-19 and measures to minimize exposure. VOSH plans to develop a written information sheet for employers to use to comply with the notification requirement.Regardless of risk level, the new regulations will require all employers to take various actions to mitigate the risk of exposure of COVID-19 in their workplaces, including: <ul><li>Encourage employees to self-monitor for COVID-19 symptoms;</li><li>Develop and implement policies and procedures for employees to report when they are experiencing symptoms consistent with COVID-19; </li><li>Bar from the workplace employees or other persons, including customers and visitors, who have known or suspected COVID-19 cases until cleared to return to work, although employees can still telework during that period;</li><li>Discuss with subcontractors, temporary placement agencies, and staffing firms that service the employer the importance of having their workers who are known or suspected to have COVID-19 cases to stay home and not report to work until cleared to return;</li><li>In accordance with law (including HIPAA and the ADA), develop and implement policies and procedures for employees to report when they have a suspected or confirmed COVID‑19 case;  </li><li>Within 24 hours of discovering a confirmed COVID-19 case in the workplace, inform: (a) employees and other employers’ employees who may have been exposed of their possible exposure; (b) the building owner; and (c) VOSH, while maintaining confidentiality of the infected employee in accordance with the ADA and other applicable law;</li><li>Notify VOSH if three or more persons present at the workplace test positive within a two-week period;</li><li>Develop and implement policies about return to work for known or suspected cases of COVID-19 using either a symptom‑based or test‑based strategy;</li><li>Develop policies and procedures to ensure employees observe physical distancing on the job and at paid breaks on employer’s property, including using announcements and signs to promote distancing and taking actions to decrease congregation of personnel within the workplace;  </li><li>Comply with respiratory and personal protective equipment standards applicable to the employer’s industry if social distancing is not possible and allow for reasonable accommodations for medical conditions;</li><li>Close or control access to common work areas, such as breakrooms and cafeterias;</li><li>Implement various sanitation measures for commonly used areas; and</li><li>Provide flexible sick leave, telework, and staggered shifts when feasible.</li></ul>Employers that comply with Center for Disease Control guidelines that provide the same or equal protection as the regulation will be considered compliant. <h3>Enforcement/Penalties</h3>VOSH will be responsible for the enforcement of the new regulation. Employers that violate these new mandates can face fines of up to $130,000 for willful or repeated violations, with smaller fines for lesser violations. VOSH will also consider good‑faith efforts to comply with the regulations and CDC guidance when determining whether an employer is in compliance.The regulation also prohibits employers from retaliating against employees who raise reasonable concerns about COVID-19 infection risks in the workplace, whether that concern is raised with the employer, co-workers, government agencies, or the media, including through social media. While the current version of the regulation does not provide employees with a private right of action for retaliation or violations of the regulation, as of July 1, 2020, Virginia’s whistleblower protection law provides a private right of action for retaliating against employees for reporting any violation of federal or state law. <h3>Practical Implications</h3>In light of this new regulation, Virginia employers may want to reassess whether remote work is possible. If an option exists for most or all employees to telework, employers may want to allow for such telework while this rule is in effect. Even if full telework is not possible, staggered shifts or days could also mitigate some of the compliance and logistical challenges created by the new rule.Where having staff onsite is necessary for the business, employers should review their current COVID-19-related practices and procedures to ensure that they comply with the new regulation for any employees reporting to the workplace. Employers that determine their workplace is at the higher risk levels of exposure will need to consider putting more extensive mitigation efforts in place.Given the inaction at the federal level, more states are likely to follow Virginia’s lead. A number of other states have their own OSHA plans, including California, Maryland, Oregon, and Washington. Interestingly, OSHA retains the right to revoke state plans and require that only federal standards be applied. Whether it will do so if more states enact regulations similar to Virginia remains to be seen. Morrison & Foerster summer associate Marcus Kennedy-Grimes contributed to the writing of this post.

Virginia Becomes the First State to Adopt COVID-19 Workplace Safety Mandates

On July 15, 2020, the Virginia Department of Labor and Industry (DOLI) Safety and Health Codes Board voted 9-2 to approve the nation’s first emergency workplace

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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