Following the shocking events of January 6, 2020, there have been many reports of individuals who have been terminated, suspended or resigned from employment as a consequence due to their involvement in the deadly storming of the Capitol building or their active support of President Trump’s “stolen election” narrative. But what exactly are the parameters of when an employer can take action against an employee for engaging in off-duty activities that an employer may find repugnant? We first blogged about this issue back in 2017, in light of the deadly white nationalist/supremacist rally in Charlottesville. But a refresher seems timely.
Continue Reading Can Employers Terminate for Off-Duty Conduct (Say, Like Storming the Capitol)?

On January 6, 2021, the U.S. Department of Labor announced its Final Rule to provide guidance on the determination of whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The Final Rule, which largely adopts the Proposed Rule (discussed in our September E-update), is scheduled to take effect on March 8, 2021 – after the change in administration. These so-called “midnight regulations,” issued during the lame-duck period between the election and the new president’s inauguration, can be placed on hold by the incoming President before they take effect – and President-Elect Biden has already indicated that he will issue an executive order that will halt or delay all such midnight regulations.

Continue Reading DOL’s Final Rule Makes It Easier to Achieve Independent Contractor Status – But Will It Take Effect?

The paid sick leave and family leave mandates under the Families First Coronavirus Response Act (FFCRA) end on December 31, 2020; however, the stimulus bill passed by Congress on December 22, 2020 permits employers to voluntarily provide those paid leave benefits, and receive the corresponding tax credit, through March 31, 2021. President Trump is expected to sign the bill into law.

Back in March, near the beginning of the COVID-19 pandemic, Congress passed the FFCRA, which, among other things, imposed two leave mandates on employers with fewer than 500 employees: (1) a two-week emergency paid sick leave (“EPSL”) mandate for employees who are unable to work or telework due to six specific COVID-19-related reasons; and (2) a temporary expansion of coverage under the Family and Medical Leave Act (FMLA), to enable employees to take their twelve weeks of FMLA leave for school and child care closures associated with COVID-19 (EFMLA), including a ten-week paid leave component. Significantly, employers are reimbursed for the cost of the leave(s) through a tax credit.


Continue Reading Employers May Voluntarily Extend FFCRA Paid Leave Benefits and Receive a Tax Credit – Through March 31, 2021

As distribution of the COVID-19 vaccine begins, the Equal Employment Opportunity Commission has modified its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws resource to address the impact of federal non-discrimination laws on an employer’s vaccine requirements. Of particular interest, the EEOC makes the following points with regard to the Americans with Disabilities Act, Title VII and the Genetic Information Nondiscrimination Act:

Notably, the EEOC emphasizes that federal antidiscrimination laws do not interfere with or prevent employers from following guidelines and suggestions from the CDC or other governmental public health authoritiesThe EEOC also refers employers to the FDA’s website for more information on the Emergency Use Authorization of COVID-19 vaccines, which differs from the normal approval process.


Continue Reading EEOC Provides COVID-19 Vaccine Guidance

With the COVID-19 vaccine finally becoming a reality, healthcare employers, who were first to receive the vaccine for distribution to their workforce, are addressing questions of how to implement vaccination programs. Other employers are thinking about these issues as well, in preparation for the time when vaccines are more widely available. Below, we have addressed many common, and some not so common, questions about vaccines in the workplace.

Continue Reading Vaccines in the Workplace: A Practical Guide for Employers

With apologies to William Shakespeare, these past couple of weeks have been rather confusing, with two of the major federal agencies leading the battle against COVID-19 – the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) – issuing somewhat, well, inconsistent guidance on the use of cloth face coverings or masks.

For many months now, the CDC has told us that cloth masks help to control the spread of COVID-19 by providing a barrier to help prevent the wearer’s respiratory droplets from reaching others – but that the masks did not protect the wearer. And because such cloth masks had no protective function, OSHA naturally declared that they were not personal protective equipment (PPE), which is significant because there may be OSHA-mandated employer obligations relating to the use of PPE in the workplace (e,g. fit testing, training, documentation, etc.).


Continue Reading Cloth Masks: PPE or Not PPE? That Is the Question

On Wednesday, December 2, 2020, the Centers for Disease Control and Prevention (CDC) revised its recommended quarantine period for those individuals who were in close contact with a person with COVID-19. The revised guidance, while still ideally recommending a 14-day quarantine period, now permits exposed individuals to end quarantine after 7 days with a negative test (collected within 48 hours of the final day of quarantine), or 10 days without a test. This development will allow employers to bring exposed employees back into the workplace much faster than before.

Continue Reading The CDC Decreased The COVID-19 Quarantine Period: What This Means for Employers

Effective February 19, 2021, Montgomery County’s Ban-the-Box law is becoming far more restrictive and will apply to all employers – not just those with 15 or more employees.

As employers with employees in Montgomery County, Maryland should know, Montgomery County had previously enacted a Ban-the-Box law that prohibited inquiries about an applicant’s arrest or conviction record until the end of the first interview. (The “Box” refers to the box, contained on many employment applications, that must be checked if the applicant has a criminal record.) This law has now been amended, with expansive new protections for applicants and employees of all Montgomery County employers.


Continue Reading Montgomery County’s Ban the Box Law Is Becoming More Restrictive

It’s that time of year when many folks look forward to seeing family members near and far. In the context of the pandemic, however, the CDC and many state and local officials are recommending that folks avoid travel and gatherings with those outside of the immediate household.  Given the workplace impact of employees’ holiday travel – with possible infections, exposures, and quarantines – employers are wondering whether they can prohibit employees from traveling during the holidays. And the answer, of course: It’s complicated.

Continue Reading It’s The Holiday Season – Can Employers Restrict Personal Travel?

In my occasional series of blog posts involving I-can’t-believe-they-said-that employee excuses, here’s one that made my jaw drop.

Many of you are familiar with the Wal-Mart greeter – that friendly person at the store entrance who used to welcome shoppers with a hello and perhaps an offer of assistance. (And I say “used to” because apparently the position has been replaced by a  “customer host” position that provides more customer service and theft prevention functions throughout the store). This position, which was created by founder Sam Walton, was a large part of the company culture.  It seems obvious that the essential function of a greeter is, well, to greet customers. Which would necessarily require the greeter to actually be present in order to do so, right?


Continue Reading Extraordinary Employee Excuses: Attendance Is Not An Essential Job Function of a Greeter?