Hunton Employment & Labor Perspectives

As reported on the Business Immigration Insights blog, employers, already dealing with a chaos of urgent-action items caused by COVID-19, must not overlook the stringent posting requirements under US Department of Labor (DOL) regulations for employees in H‑1B, H-1B1, and E-3 status, and for all employees, regardless of status, who are being sponsored for green cards through labor certification (“PERM”).

Read more here.

The United States Senate today passed the Families First Coronavirus Response Act and sent it to President Trump’s desk.  The President is expected to sign the bill into law this week.

The bill, which provides for paid sick leave and expanded family leave for certain employees for coronavirus-related reasons, passed the Senate without substantive changes.  The House initially passed the bill on Friday night, but made technical corrections to it late Monday.

For full details on how the legislation may affect employers, see our previous coverage of the bill here and here.

No doubt recognizing the unprecedented impact on business, Governor Gavin Newsom issued an Executive Order suspending the notice requirements under the California Worker Adjustment and Retraining Notification Act (WARN Act), Cal. Lab. Code §§ 1401(a), 1402, 1403. The Executive Order suspends existing law that could have otherwise required employers to provide 60 days’ notice before instituting mass layoffs, relocations, or terminations, and could potentially have imposed steep penalties on employers who failed to do so.  Certain notice obligations remain, however, under the Executive Order.

Employers in the difficult position of making workplace reductions because of COVID-19-related business losses should spare a moment for consideration of layoff notice obligations under the federal Worker Adjustment Retraining Notification Act of 1988, 29 U.S.C. § 2100 et seq. (“WARN”) and its state counterparts (so-called “mini-WARN” laws). The “unforeseen business circumstances” exception in federal WARN and most analogous state laws may excuse strict compliance with notification requirements, but employers should take the time now to analyze the applicability of this exception rather than make assumptions about it.

The US Occupational Safety and Health Administration (“OSHA”) recently published Guidance for Preparing Workplaces for COVID-19 (“Guidance”), outlining steps employers can take to help protect their workforce. The Guidance focuses on the need for employers to implement engineering, administrative, work practice controls and personal protective equipment (“PPE”), as well as considerations for doing so. While there is no specific OSHA standard covering infectious disease or COVID-19 in particular, some OSHA requirements may apply to preventing occupational exposure to the virus including OSHA’s Bloodborne Pathogens standard (29 C.F.R. § 1910.20) Personal Protective Equipment (29 CFR 1910 Subpart I) Hazard Communication (29 C.F.R. § 1910.1200) and Recording and Reporting Occupational Injuries and Illnesses (29 C.F.R. § 1904). Also, the General Duty Clause of OSHA which requires employers to provide a “place of employment . . . free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

Thanks to a recent bill signed by Governor Andrew Cuomo on February 6, 2020, striking employees in the State of New York must now only wait fourteen days until they are eligible to receive unemployment benefits. Senate Bill 7310 amends New York Labor Law § 592, reducing the waiting period for unemployment benefit eligibility for striking employees from seven weeks to two weeks.

In an effort to prevent the spread of COVID-19, many employers are permitting, and in some cases requiring, employees to work from home. One unforeseen consequence of requiring employees to work from home is some jurisdictions mandate that employers reimburse their employees for certain expenses incurred as a result of their employment. Accordingly, employers may be required to reimburse employees for reasonable expenses they incur for equipment and services necessary to work from home, such as cell phone, internet, and computer usage expenses.

COVID-19 has disrupted the global economy and employers may soon face the need to reduce expenses associated with exempt employees. Employers can place exempt employees on furlough, or, in some cases, reduce salaries and hours, without jeopardizing the FLSA exemption, but exceptions may need to be made for certain employees on work-authorized visas.

The House amended its Coronavirus Response Bill late on March 16, 2020 and sent it on to the Senate.

Paid Sick Leave Changes

 The sick leave provisions of the bill remained largely intact, and would entitle employees of employers with fewer than 500 employees to take up to 80 hours of paid sick leave for coronavirus-related reasons, including required quarantining, caring for family members with the illness, or for emergency school closings.  To review our initial summary of the bill, which includes discussion of portions of the bill that were unaffected by the technical amendments, click here.  The amendments include a $511 daily cap for leave benefits for employees with their own personal coronavirus-related medical conditions, and a $200 cap for employees caring for others with such symptoms or for school closings.

Importantly, the sick leave amendments also allow the Secretary of Labor to grant exemptions to employers where the secretary determines that imposition of the paid sick leave requirements would “jeopardize the viability of the business as a going concern.”  It also allows healthcare and emergency response employers to apply for exemptions from the Secretary of Labor so that the law would not apply to their employees.

Employers with collective bargaining agreements and union relationships know they generally cannot make unilateral changes to terms and conditions of employment.  But in an unprecedented emergency like the coronavirus (COVID-19) outbreak we are all facing, union bargaining obligations may be relaxed, either based on the terms of a collective bargaining agreement, or under National Labor Relations Board law.  As employers are forced to make ever more difficult operational decisions in the face of this emerging threat, here are some issues unionized businesses should consider when contemplating major workplace changes.

Consider Contract Terms First

 It goes without saying that employers with collective bargaining agreements should first examine the language of their contracts to determine whether they provide for any increased flexibility in decision-making during emergencies, such as a public health emergency.  If the terms of a company’s CBA specifically allow for increased operational flexibility during emergency situations, then the CBA should govern, and the employer should proceed accordingly.