In a decision impacting all employers covered by the Families First Coronavirus Response Act (FFCRA), a federal court upended some of the employer-friendly limitations set forth in the U.S. Department of Labor’s (DOL) implementing regulations (i.e. the “Final Rule”): (1) the work-availability requirement, (2) the broad exemption for health care providers, (3) the employer approval of intermittent leave, and (4) the documentation requirement. Below, we first summarize the Court’s decision and then discuss the practical effect of this decision on employers.

Continue Reading Federal Court Vastly Expands FFCRA Paid Leave Mandate – What This Actually Means for Covered Employers

On July 20, 2020, the U.S. Department of Labor issued additional Q&A resources to provide guidance to employers on COVID-19-related issues under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA). While much of the guidance reiterates general principles under each of these laws, they offer some interesting insights on a few issues specific to COVID-19.


Continue Reading DOL Provides COVID-19-Related Guidance on FLSA, FMLA and FFCRA

We just got a call from a client who was notified by the state of a claim for unemployment benefits for one of their employees. Actually, their CEO. Who is still employed. And who therefore had not filed a claim for benefits. Unfortunately, they were the victims of a scam involving fraudulent unemployment benefits claims.

Continue Reading No, Your CEO Did Not Really File For Unemployment Benefits

As offices and other workplaces reopen, employers are struggling with the issue of masks and face coverings in the workplace. There has been much confusion about whether and when cloth face coverings are required, and what are an employer’s obligations with regard to their use.

Continue Reading Masks/Face Coverings in the Workplace Uncovered! What Can Employers Require?

Several federal agencies have recently issued additional COVID-19 guidance of interest to employers, including the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and the Small Business Administration (SBA). We summarize these developments below.

Continue Reading COVID-19 Agency Update: OSHA Issues Guidance on Reopening for Non-Essential Businesses; EEOC Addresses Antibody Testing and Reasonable Accommodations, Harassment and Discrimination; SBA Provides New PPP Application

Over the course of the COVID-19 pandemic, there has been a great deal of discussion – and confusion – about the use of masks and face coverings and respirators. Are they personal protective equipment (PPE)? Who should use them? Who must use them? Should employers provide them? Must employers provide them? Which one should employers provide? Should employers provide training on their use? Must employers providing training? And on and on…

Continue Reading OSHA Speaks: Face Coverings, Masks and Respirators – Oh My!

As the United States still struggles with testing capacity for active COVID-19 infections, employers are increasingly asking “may we require our employees be tested for the presence of COVID-19 antibodies?” This is particularly true following the Equal Employment Opportunity Commission’s position that employers were permitted to test for the presence of active COVID-19 infection, set forth in its What You Should Know About COVID-19 resource (Q&A 6).

Continue Reading COVID-19 Antibody Testing:  Useful Screening Tool or Impermissible Medical Examination?

Without fanfare on May 27, 2020, the Centers for Disease Control and Prevention (CDC) issued guidance for employers of office workers (as well as updated guidance for restaurants and bars). This is the first guidance that is targeted at white collar workers, with the message that employers will need to “[c]hange the way people work.”

Continue Reading CDC Issues Reopening Guidance for Offices – “Change the way people work”

In the COVID-19 recession, many employers made reductions in force en masse, thus avoiding selection decisions that might be challenged as discriminatory.  If the same employers recall or rehire employees en masse, they will continue to avoid such decisions.  But what if the employer’s need to recall or rehire is partial or gradual, such that some employees are brought back before others?  Such choices can give rise discrimination claims.  To protect itself, an employer will need to apply and document a non-discriminatory method of choosing among employees.

Continue Reading Selecting Employees for Recall or Rehire

Various federal agencies have recently issued additional COVID-19 guidance of significance (more or less) to employers, including the Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), the Internal Revenue Service (IRS), the Department of Labor (DOL), and the Federal Emergency Management Administration (FEMA). Some of this guidance applies to workplaces and employers generally, while others target specific industries, such as bars and restaurants, manufacturing, child care, schools, and mass transit. We summarize these developments below.

Continue Reading COVID-19 Agency Update: CDC and OSHA Issue Reopening Guidance, EEOC Explains Accommodation of High-Risk Workers, IRS Expands Employee Retention Credit, DOL Adds to FFCRA Q&As, FEMA Provides Exercise Starter Kit for Reopening