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 Equal Employment Opportunity Commission updated its What You Should Know About Covid-19 and the ADA, the Rehabilitation Act and Other EEO Laws resource to add Q&As about employers’ authority to require testing or ask questions about COVID-19 symptoms, confidentiality of COVID-19 diagnoses, and reasonable accommodations, as well as considerations for furloughs/layoffs, treatment of older workers. Most of this guidance was provided in the EEOC’s March 27 webinar and other resources.

Continue Reading EEOC Expands COVID-19 Guidance on Testing, Medical Inquiries, Confidentiality, Accommodations, and More

In this new pandemic world, employers are grappling with many questions. One of them is when can they require employees to provide the results from any COVID-19 tests that they have taken, in the context of granting leave and returning to work.

Continue Reading When Can Employers Require Employees to Provide COVID-19 Test Results?

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

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?

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

As businesses slowly begin to reopen, workers are being recalled to the workplace. Some of them are expressing reluctance to return due to increased health risks from COVID-19 based on underlying medical conditions or age. Others are struggling with child care issues as schools remain closed for the remainder of the academic year and summer care programs are canceled. Some employers have asked what are their obligations to such workers under the law? Can they terminate them, or do they have to accommodate them?

Continue Reading Recalled Workers Don’t Want to Return Because of Health Risks or Child Care – Now What?