On the evening of Monday, March 16, the House amended the Families First Coronavirus Response Act (“FFCRA”) (HR 6201) by amending the bill with what are being called “technical corrections.”

The previous bill, passed by the House on March 14, contained two main centerpieces: (1) new paid Family and Medical Leave to deal with the

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Employers are in uncharted territory with the COVID-19 pandemic, which has created complicated employment issues that continue to evolve by the hour. Join Kelley Drye’s Labor and Employment co-chairs Barbara Hoey and Mark Konkel and senior associate Diana Hamar as they share practical advice for

As federal, state and local governments continue to develop their responses to the COVID-19 outbreak, employers may find themselves in uncharted territory as to how to deal with emerging employee issues.

There are three overriding rules that all employers should remember:

  1. Think safety first. Keeping those employees who are infected or at risk of infection at home to ensure that the rest of the workforce is safe should be the number one priority.
  2. Think about how you can keep your business going.  Make sure your work-from-home policies and technology are up to date, and remind employees how to use them.
  3. Avoid stereotypes. Do not allow employees to assume that people of certain ethnicities are at a higher risk than others. If you become aware of any discrimination or harassment—stop it immediately.

Below are some general answers to questions our clients have been asking.  However, please be aware that this is a very fact-specific and complex topic; COVID-19 related employment issues are evolving by the hour. Employers are cautioned to stay abreast of federal, state, and local government advisories, and to consult legal counsel before making employment decisions or changing policy.


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With the arrival of 2019 novel coronavirus (“COVID-19”) to the United States, employers should begin thinking about strategies to mitigate business interruptions, ensure employee safety, and avoid unnecessary litigation.

Know Your Resources

Employers should continue to monitor reliable guidance provided by the U.S. Centers for Disease Control and Prevention (“CDC”) and local public health agencies. Understanding how COVID-19 is transmitted and what steps can be taken to protect diagnosed or exposed employees is essential to dispelling employee fears. Employers can educate employees on prevention and symptoms and should be prepared to answer employee concerns regarding workplace safety. The following are guides which may be helpful to employers:


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When Trump was a brand-new President (or force of nature, depending on how you look at it), we observed that the dawn of his administration would not necessarily augur wholesale changes to the overall landscape of legal concerns for employers.  Why?  Because, as with so many things in Trumpworld, there didn’t appear to be a coherent labor policy, or (given the inexperience of some of his closest team members) even policy competence.

In fairness, however, marauding Huns didn’t have to be particularly artful or finessed about the way they sacked whole cities, right?  In a transformative conquest, a blunt hammer probably works as well as a rapier with pinpoint accuracy.

And so it is with Trump.  With just about eight months of activity, we have seen the Presidential administration do what Trump is best at:  take direct aim at what Obama did and do the opposite.  Incremental changes to labor and employment law and regulation under Trump (and some related developments in the courts) have, one by one, almost entirely reversed course on many of the pet labor and employment initiatives the Obama administration championed, among them:

    • Limitations on class action waivers, which made it more difficult for large groups of plaintiffs to sue companies.
    • “Joint employer” standards that gave labor unions ammunition to argue that multiple franchisees (think McDonald’s), which in the past were treated as separate employers, are in fact joint employers.  Those standards, now reversed, gave unions one big fish for organizing instead of many little ones.
    • A DOL focus on policing the misclassification of employees as independent contractors by employers—a move sometimes made by employers to reduce tax and employee benefits liabilities.
    • Limitations on OSHA drug testing rules covering employees.
    • “Blacklisting” regulations that would require federal contractors to publish claims brought against them alleging labor and employment law violations.
    • Providing additional fiscal resources to the EEOC and OFCCP, instead merging these employment-related agencies into a single entity.
    • Expansions of the so-called “persuader rule,” which required employers to disclose paid relationships with individuals or firms helping employers fight union organizing campaigns.
    • New FLSA overtime regulations, which would have raised the “salary threshold” under which overtime must always be paid and expanded overtime pay entitlement to as many as four million American workers.
    • A National Labor Relations Board stocked with progressives who increased burdens on employers and decreased burdens on unions, in favor of an NLRB much more likely to roll back Obama-era changes.


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On May 11, 2016, the Occupational Safety and Health Administration (“OSHA”) finalized a recordkeeping and reporting rule to “modernize injury data collection to better inform workers, employers, the public, and OSHA about workplace hazards.”

Currently, OSHA requires employers to keep a record of work-related injuries and illnesses.  Under the new rule, employers will send OSHA injury and illness data that the employers are already collecting for posting on the agency’s website without any personally identifiable information.  Using data collected under the new rule, OSHA will create a public database on work injuries and illnesses.

The new provision becomes effective August 10, 2016, and the new reporting requirements will be phased in over two years.  As of January 1, 2017, all businesses with 250 or more employees in industries currently required to keep OSHA injury and illness records must electronically submit information annually from OSHA Forms 300, Log of Work Related Injuries and Illnesses; 300A, Summary of Work-Related Injuries and Illnesses, and 301, Injury and Illness Incident Report.  Businesses with 20-249 people in high-risk industries must electronically submit OSHA Form 300A annually.


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Last year was a ‘big year’ in New York in terms of new employment laws, and 2016 is shaping up to be just as big – as employers come into compliance with the many new laws, and brace for additional changes to come.

Among the most significant new laws are the series of statutes signed by the Governor in October, which all go into effect next week – January 19, 2016 – and which focus on women’s rights and gender equality.  While some of these laws do not break new ground– as they mirror existing federal legislation – they increase penalties, expand the scope of existing laws, and will likely cause the issues of gender equality to be more in the forefront than they were before passage.

Combined with the new minimum wage and an aggressive “employee friendly” agenda by the Governor and the Attorney General, New York employers should stand by and be ready for even greater changes.


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Reprinted with permission from Law360 and Porfolio Media, Inc.

The Occupational Safety & Health Act requires that the U.S. Occupational Safety & Health Administration (OSHA) observe a rulemaking process that is, in many ways, more rigorous and protracted than the rulemaking processes required of regulatory agencies by the Administrative Procedure Act or other statutes.  While