Following last month’s federal court ruling that the U.S. Department of Labor had exceeded its authority under the Families First Coronavirus Response Act (FFCRA) in formulating certain regulatory provisions, the DOL has now issued a revised Final Rule, which becomes effective on September 16, 2020. These revisions do the following: (1) reaffirm the work-availability requirement, (2) reaffirm employer approval of intermittent leave, (3) modify the timing requirement for documentation, and (4) scale back the broad exemption for health care providers. Employers nationwide will need to make adjustments to their FFCRA procedures in accordance with the revised Final Rule.

Continue Reading DOL Revises FFCRA Final Rule: What This Means for Covered Employers

The U.S. Department of the Treasury issued, on August 28, 2020, a Notice concerning President Trump’s Presidential Memorandum concerning employers’ deferral of payroll taxes.  Here are the key points:

Continue Reading Treasury Department Provides Guidance on President Trump’s Deferral of Payroll Taxes

In light of the global racial justice movement, I know that all major (and most not-so-major) corporations are thinking about diversity, equity and inclusion right now. They are promoting DE&I initiatives in the workplace, and proudly trumpeting their activities to their workforce and the public. And that’s good, because this is an important issue. But what’s not good is when companies rush in blindly, because those anti-discrimination initiatives can (ironically) end up violating the anti-discrimination laws!

Continue Reading Hey CEOs – Be Careful About Diversity Hiring Quotas!

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

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?

The killing of George Floyd, an African American, at the hands of a white Minneapolis police officer, was a tragic moment in our country’s history.  It has sparked weeks of public protests in cities and states across the U.S.  Individuals have gone to the streets to voice their concerns about the issues of racial injustice in American society.  While police brutality may be at the forefront, the movement is aimed at shedding light on all areas of racial inequality.  Many high-profile figures, from politicians to stars to professional athletes, have been vocal about their condemnation of racial bias.  They have further indicated in no uncertain terms that any individual, company, or organization that remains silent on issues of racial inequality is in fact complacent and part of the problem.

Continue Reading The Important Role Employers Play in Addressing Racism in Light of the George Floyd Tragedy

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?

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