COVID-19

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Summer is coming to an end, and you know what that means: school is back in session. We’ve previously provided general guidance on the challenges facing students, parents and employers this fall as students return to school during the pandemic. This post focuses specifically on what employers doing business in New York should be considering.

The same overarching analysis applies when determining your obligations if an employee is seeking leave to care for children who would be in school if not for COVID-19:

  • Does FFCRA apply?
  • Does a state or local Emergency COVID-19 leave law apply in our jurisdiction?
  • Does a paid sick leave law apply in our jurisdiction?
  • Does a company benefit or policy apply?

New York has a number of leave laws that are implicated by school closures. Fortunately, employers need not worry about New York State’s Paid Family Leave for purposes of school closures. New York has explicitly stated in its FAQ that a COVID-related school closure is not a qualifying reason for purposes of Paid Family Leave benefits under the law. An employee may, however, avail himself or herself of such benefits if the employee or the employee’s minor dependent child is subject to a mandatory or precautionary order of quarantine or isolation issued by the State, department of health, local board of health, or government entity.

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Continue Reading Back to School Cheat Sheet for Employers: New York

The EEOC again updated its Technical Assistance Questions and Answers (Q&A), which we have been following closely, and previously covered on June 11, 2020.

In its most recent update, the EEOC addressed specific questions related to administering COVID-19 tests (Q&A, A.7); permitting employees into the physical workplace, and permissible COVID-19 questions (Q&A, A.8, A.9, A.11, A.12, A.13, and A.14). The EEOC also updated its guidance regarding confidentiality of medical information (B.5, B.6, B.7, and B.8), as well as reasonable accommodations and teleworking (D.8, D.14, D.15, D.16, D.17, and D.18).…
Continue Reading UPDATE: EEOC Updates COVID-19 Technical Assistance Publication with Q&A

We’ve previously provided general guidance on the challenges facing students, parents and employers this fall.  This post focuses on what employers doing business in California need to consider in response to their employee’s requests for time off work due to school or childcare facility closures.

What are your obligations if an employee is seeking leave to care for children who would be in school or daycare if not for COVID-19 related closures:

  • Does FFCRA apply?
  • Does a state or local Emergency COVID-19 leave law apply in your jurisdiction?
  • Does a paid sick leave law apply in your jurisdiction?
  • Does a company benefit or policy apply?

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Continue Reading Back to School Cheat Sheet for Employers: California

We’ve previously provided general guidance on the challenges facing students, parents and employers this fall.  This is the first week of remote school for all Chicago Public School students, and this post focuses on what employers doing business in Illinois need to consider.

The same overarching analysis applies when determining your obligations if an employee is seeking leave to care for children who would be in school if not for COVID-19:

  • Does FFCRA apply?
  • Does a state or local Emergency COVID-19 leave law apply in our jurisdiction?
  • Does a paid sick leave law apply in our jurisdiction?
  • Does a company benefit or policy apply?

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Continue Reading Back to School Cheat Sheet for Employers: Illinois

This fall’s return to school will be a challenge for students, parents, and employers alike.  Most states are dealing with a wide array of approaches to begin the school year.  The approaches can generally be categorized in four broad categories:

  1. In-Person: All staff and students are learning onsite.
  2. Hybrid/Blending Learning: To reduce the density in school buildings, students attend school onsite some of time and would be remote learning for the rest of the time.
  3. Only Remote: No students in school buildings and remote learning for all.
  4. Families opting out of school in an abundance of caution and deciding to homeschool.

Like everything related to COVID-19, school re-opening plans are fluid.  Some school districts planned in-person or hybrid returns this fall, but quickly shifted to only remote learning.  Others will likely transition to only remote as the virus continues to spike.  The constant flux has encouraged a sizable population of parents to opt-out of the system and homeschool their children in micro-schools or pandemic pods.  Pods are small groups of children working with an in-person tutor.…
Continue Reading Back to School and the FFCRA: A Study Guide

In an August 13 decision the National Labor Relations Board upheld an administrative law judge’s decision denying William Beaumont Hospital’s motion for an in-person hearing for an unfair labor practice charge. The charge was brought by the Michigan Nurses Association  alleging “numerous Section 8(a)(3) and (1) violations during an organizing campaign.” The Board shot down the Hospital’s “list of sundry problems” which could potentially occur during a video hearing as speculative and premature, and found that in light of the Michigan Nurses Association’s claims of anti-union tactics the judge’s decision that the pandemic constituted “compelling circumstances” warranting a remote hearing was not an abuse of discretion. The decision can be found here.

Although the Board’s decision may usher in more frequent remote hearings in the future, it’s not all bad. The same day as the Board’s decision in William Beaumont Hospital, the NLRB’s Division of Advice published 5 new advisory memos addressing COVID-19 related questions posed by different Regional Offices. In each case, the Division applied established law and recommended dismissal. Although, each advisory memo was written in response to an individual unfair labor practice charge and the Division’s conclusions are binding only as to the parties involved in that particular case, they provide some insight as to how similar cases might be handled and make it clear  that COVID-19 pandemic or not – the same rules apply.

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Continue Reading NLRB Approves Video Hearing For Nurses Against Hospital’s Opposition – But It’s Not All Bad…

On August 3, 2020, New York federal Judge Paul Oetken, vacated several significant provisions of the U.S. Department of Labor’s April 1, 2020 Final Rule, which construes the Families First Coronavirus Response Act (“FFCRA” or the “Act”), finding that the DOL exceeded its rulemaking authority. State of New York v. United States Department of Labor et al., 20-cv-03020-JPO (S.D.N.Y. August 3, 2020).

Particularly significant for New York employers, this decision changes how they determine which employees are entitled to FFCRA leave and how they can administer those leaves.  The question remains, however, whether the vacated provisions of the DOL’s regulations are still valid in states outside of New York.

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Continue Reading New York v. United States: S.D.N.Y. Vacates Key Provisions in DOL’s Final Rule Limiting Paid Leave Under the FFCRA

Chicago, the nation’s third largest school district, reversed course and said it would begin the academic year remotely in September.  This shift leaves New York City as one of the only major school systems still planning to offer in-person classes this fall.  Like the spring school shutdown, continued remote learning presents many challenges for working parents.  Many wonder how they can put in full workdays without sacrificing their child’s education, job performance, and sanity.

Rather than ignoring the challenges for employees with school-aged children, employers can proactively act to help their parent employees and mitigate their own legal risks.  Employers are facing employment lawsuits related to the COVID-19 pandemic on a number of fronts and childcare challenges will certainly be an issue.  For example, one recently filed lawsuit by a California woman against her former employer alleges “she was fired because her young children were making noise during business calls while she was working from home because of the coronavirus pandemic.”

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Continue Reading Getting a Passing Grade When Office + School = Home

On July 28, the United States Court of Appeals for the District of Columbia Circuit (“DC Circuit”) declined to rehear the unanimous ruling of a three-judge DC Circuit panel that denied the AFL-CIO’s request that the court compel the U.S. Occupational Safety and Health Administration (“OSHA”) to an emergency temporary standard (“ETS”) to protect workers from coronavirus.  This rejection of the AFL-CIO’s petition for rehearing en banc, signals that the AFL-CIO’s five-month effort to compel OSHA to issue an ETS has likely come to an end.

Unless the Supreme Court agrees to review the ruling, or OSHA reconsiders its position (both quite unlikely), employers will not be subject to a new workplace health standard for COVID-19.  Instead, they will continue to be subject to the Occupational Safety and Health Act’s (“OSH Act’s”) “general duty” to protect their employees from recognized workplace hazards, as well as the myriad of OSHA regulations and guidance that direct employers on specific elements of workplace safety (i.e., PPE, training, recordkeeping).  But before we roll the credits on this fast and furious litigation, perhaps a recap is in order.

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Continue Reading Compel OSHA to Issue an Emergency Temporary Standard for COVID-19? The DC Circuit Says No to the AFL-CIO (Twice)

On Monday, July 20, 2020, the U.S. Department of Labor published additional guidance, addressing questions arising from the COVID-19 pandemic under the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), and the Families First Coronavirus Response Act (“FFCRA”).

In this post, we highlight some of the guidance relating to wage and hour issues, and management of a remote workforce.

This guidance is particularly apropos, as more and more employers realize that the “new normal” is a world of remote work, with some employers extending telework on an indefinite basis.

Here are some interesting questions the DOL answered and our take-aways from the guidance.

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Continue Reading When Home = Work: New DOL Guidance on Managing Your Remote Workforce