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.


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.


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

As the number of COVID-19 infections in certain states continues to rise, so does the number of states added to the tristate area travel advisory.  Ten additional states were added to the existing list, including the following: Alaska, Delaware, Indiana, Maryland, Missouri, Montana, North Dakota, Nebraska, Virginia and Washington.  Travelers from these states, as

The IRS recently issued further guidance under the CARES Act expanding the categories of individuals eligible for coronavirus-related plan distributions and loans, and providing additional administrative guidance on relief offered under the Act.

Background

As described in our April 3, 2020 Advisory, the CARES Act:

  • eliminates the 10% early withdrawal penalty on up to $100,000 in coronavirus-related distributions for qualifying individuals;
  • allows qualifying individuals to include coronavirus-related distributions in income over three years;
  • allows qualifying individuals to repay coronavirus-related distributions to a retirement plan in one or more installments within three years;


Continue Reading IRS Issues Guidance on CARES Act for Retirement Plans

Law360 (July 15, 2020, 4:21 PM EDT) — The coronavirus has been novel in more ways than one. On one end of the spectrum, employers confront new questions of almost philosophical dimensions.

How much risk is too much risk? What risks should we ask our employees to accept? Where is the line between ordinary risk

JOIN US: TUESDAY, JULY 21, 2020 | 12:30PM EST

Four months ago, the Dow was close to 30,000, employment rates were at historic highs, the coronavirus was still “novel,” and millions had not yet taken to the streets in global protests against police brutality and racial inequality. The workplace we now return to exists in

Here’s the scenario – Your Ambulatory Clinic just reopened in May, and since then one of the RN’s, let’s call her Rita, has been late multiple times, and is often on her phone when she should be working. When she was called in by the Director, Rita said, “I have been late because I feel this place is unsafe. Patients are coming in without face masks, we don’t have sanitizer at the desk, and this is just not a safe work situation. I want to make a complaint.”

  • Does Rita have a claim?
  • Can Rita sue?
  • Can you still give Rita the lateness warning?

The answer to all of these questions is YES. Rita may have a claim, she can sue, and finally, yes you should still give her the lateness warning. Healthcare providers beware, this type of complaint may well become more prevalent.


Continue Reading Not What The Doctor Ordered – A New Whistleblower Law for NY Healthcare Employers

As the number of COVID-19 infections in certain states continues to rise, so does the number of states added to the tristate area travel advisory.  Eight additional states were added to the existing list, including the following: California, Georgia, Iowa, Idaho, Louisiana, Mississippi, Nevada and Tennessee.  Travelers from these states, as well as Alabama, Arkansas,

In a press conference earlier today, the Governors of New York, New Jersey and Connecticut announced that travelers to the tristate area from states with spikes in COVID-19 infection rates would be required to quarantine for 14 days. The joint travel advisory applies to individuals traveling to the tristate area from the following states: Alabama, Arizona, Arkansas, Florida, North Carolina, South Carolina, Washington, Utah, and Texas.

However, this list of states is subject to change based on the metrics set forth by the joint travel advisory.  Any person arriving from a state with a positive test rate higher than 10 per 100,000 residents over a 7-day rolling average or a state with a 10% or higher positivity rate over a 7-day rolling average, will be required to quarantine.


Continue Reading Quarantine Mandated For Travelers To Tristate Area, Effective June 25, 2020

In response to the COVID-19 outbreak, Congress, the Department of Labor (“DOL”) and the Internal Revenue Service (“IRS”) have each offered temporary relief from certain legal requirements applicable to employee benefit plans. Some of this temporary relief impacts participants’ rights under ERISA-covered employee benefit plans.

This Advisory focuses on the impact of the temporary relief on ERISA participant notice requirements, and also briefly summarizes that temporary relief.

Continue Reading COVID-19 Relief Triggers ERISA Participant Notice Requirements