On August 14, 2020, the U.S. Department of Labor Office of Inspector General (“OIG”)—the Department’s watchdog—released a report finding that the COVID-19 global pandemic has significantly increased the number of whistleblower complaints received by the Occupational Safety and Health Administration (“OSHA”).  OSHA’s Whistleblower Program enforces 23 statutes that prohibit employers from retaliating against employees when they report employer violations of various workplace safety, consumer product, environmental, financial reform, and securities laws.

In the report, the OIG noted that the pandemic has resulted in a 30% jump in whistleblower complaints during the four-month period of February 2020 through May 2020 as compared to the same period in 2019—from approximately 3,150 complaints in 2019 to approximately 4,100 in 2020.  Of the whistleblower complaints filed from February 2020 through May 2020, approximately 1,600 (39%) were related to COVID-19, such as claims that someone was retaliated against for claiming violations of guidelines regarding social distancing or personal protective equipment.

The report also noted that a shortage of investigators, coupled with the increase in complaints, has caused delays in completing investigations.  The OIG made three recommendations to OSHA: filling a handful of vacant whistleblower investigator positions, considering an extension of its pre-pandemic pilot program nationwide to more efficiently screen complaints, and creating a “caseload management plan” that improves the agency’s ability to evenly divide up investigations among its investigators.

The report serves as a reminder to employers of just one of the many risks present in the current environment.  While whistleblower investigations might take longer than usual for the time being, the OIG report has brought COVID-19 workplace safety to the forefront and employers can expect OSHA to treat whistleblower complaints seriously.  What can employers do to protect themselves?  There is no fail safe solution, and in an environment like the current one, complaints are going to happen.   Listening to the concerns of employees and following guidance from the CDC, OSHA, and state authorities will help employers minimize the risk.

To help employers in regulated human and animal food operations navigate ongoing challenges from the coronavirus (“COVID-19”) pandemic, the U.S. Food and Drug Administration (“FDA”), Centers for Disease Control and Prevention (“CDC”), and Occupational Safety and Health Administration (“OSHA”) have joined in publishing the sixteen page “Employee Health and Food Safety Checklist for Human and Animal Food Operations During the COVID-19 Pandemic” (“Checklist”). Without adding new guidance, the Checklist offers food employers with human and animal food operations a “quick reference” guide on measures the FDA, CDC, and OSHA believe are necessary to protect workers and operations from COVID-19 exposure risks, including health monitoring, social distancing, and food safety measures.

In the Checklist’s first section identifies key preventive measures for employees’ health and safety, with specific focus on COVID-19 hazard assessments and controls, employee health monitoring, and implementation of social distancing and infectious disease control and prevention practices. The Checklist also emphasizes the need for these preventive measures and controls to be communicated to employees through signage, demarcations around the facility, and employee trainings. The Checklist further emphasizes the need for employers to have a plan for managing a COVID-19 case and potential outbreak, including plan to identify and isolate sick employees, collaborate with local public health authorities, and ensure effective notification of potential COVID-19 exposures.

The Checklist’s second section shifts to focusing on food safety measures. This portion of the Checklist showcases having a food safety plan or Hazard Analysis, and Risk-Based Preventive Controls or a HACCP plan to identify and control potential hazards, which contemplates the impact of COVID-19 circumstances. For example, the Checklist directs regulated human and animal food operators to plan for a potential scaling back of operations due to worker absenteeism or unavailability of ingredients from manufacturing delays. The Checklist also iterates the importance of current good manufacturing practices, basic sanitation measures, and food safety protocols to prevent food contamination.

All in all, the Checklist is not a standard, regulation, or new agency guidance and as such does not create any new legal obligations. The Checklist does, however, provide a comprehensive list of standards, regulations, and federal agencies have determined are applicable to regulated human and animal food operations in response to COVID-19. For the reasons, the Checklist can be helpful for employers in this industry to assess their operations and adequacy in COVID-19 response planning.

If you have questions, would like additional information, or need assistance, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.

For many, the start of school looks different this year: from all virtual, to hybrid, to parent’s choice.  Employers required to provide leave under the Federal Families First Coronavirus Act (“FFCRA”) may be wondering how to administer FFCRA leave under this new regime.

Not to be out-classed, the U.S. Department of Labor (“DOL”) issued new FAQs regarding use of FFCRA leave in these new school opening arrangements and clarified when FFCRA leave is not available.

The new FAQs – numbers 98, 99, and 100, respectively, provide guidance. Specifically:

  • An employee may take FFCRA leave on a child’s remote learning days in a hybrid learning method: Some schools are using a “hybrid” or “alternate day” attendance method.  Generally, this is when a school is open every day, but students are only on-site some days and remote learning on other days.  According to the DOL, an employee is eligible to take paid leave under the FFCRA on days when the employee’s child is not permitted to attend school in person and must instead engage in remote learning.  The DOL clarifies that this leave can be taken as long as the employee is actually caring for the child during that time and only if no other suitable person is available to do so.
  • FFCRA leave is not available to take care of a child whose school is open for in-person attendance, but the employee chose a remote learning option for the child:  Some schools provided parents with a choice between having their child attend school in-person or participate in a remote learning program.  If a remote learning program was chosen, FFCRA leave is not available because the school is not “closed” due to COVID-19 reasons.  Rather, the child is home because the employee chose to have the child remain home. However, the DOL provides the caveat that if, because of COVID-19, an employee’s child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, the employee may be eligible to take paid leave to care for the child.
  • If the school year is beginning solely under a remote learning program due to COVID-19 concerns, employees may take FFCRA leave:  An employee may take paid FFCRA leave while the child’s school remains closed and only remote learning is available, because the school is closed in this scenario.  However, if the school reopens, whether FFCRA leave is available will depend on the type of reopening, as discussed above.

The full DOL FFCRA FAQs can be found here.  The DOL periodically updates these FAQs, so this link should be checked often.

 

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

With the increase in COVID-19 cases in California and across the nation, employers are faced with a number of new challenges in the workplace, one of which is determining when employees may return to work after they have tested positive for the virus. Unfortunately, there have been mixed messages from state and federal authorities on this issue.

California’s Department of Fair and Employment and Housing (“DFEH”) released guidelines for employers about COVID-19 and the workplace, which were last updated in late July. The related FAQ indicates that, under the current circumstances, and in accordance with guidance from the Center for Disease Control (“CDC”) and the United States Equal Employment Opportunity Commission (“EEOC”), “employers may require employees to submit to viral testing but not antibody testing before permitting employees to enter the workplace…”

The DFEH guidance further indicates that decisions to allow employees to return to work may follow either a symptom-based, time-based, or test-based strategy. “Symptom-based strategy” refers to the elapsing of time following the cessation of symptoms, “time-based strategy” typically refers to the elapsing of time following an asymptomatic person’s confirmed result, and “test-based strategy” refers to requiring a person who previously tested positive to obtain a second, negative test result.

Also at the end of July, the state of California released the “COVID-19 Employer Playbook,” which provided some guidance on the minimum criteria for employees to return to work. That guidance stated that that symptomatic positive employees could return to work 24 hours after the last fever, without the use of fever-reducing medications, if there had been an improvement in symptoms and at least 10 days had passed since symptoms first appeared. This was also indicated in the California Department Public Health (“CDPH”) Order, issued in June, about responding to COVID-19 in the Workplace.

More recently, on August 24th, the CDPH released guidance which reiterates when employees who have tested positive may return to work, as follows:

  1. Individuals who test positive for SARS-CoV-2, the virus that causes COVID-19, and who have had symptoms, may return to work or school when:
    1. At least 10 days have passed since symptoms first appeared, AND
    2. At least 24 hours have passed with no fever (without the use of fever-reducing medications), AND
    3. Other symptoms have improved.
  1. Individuals who test positive for SARS-CoV-2 who never develop symptoms may return to work or school 10 days after the date of their first positive test for SARS-CoV-2.

The recent CDPH guidance states that employers should follow a time- and symptom-based strategies and discourages employers from using a test-based strategy (i.e., requiring employees to obtain a second negative test result before returning to work).

Employers should also check local public health orders for their county when determining how and when to return to the worksite an employee who has recovered from COVID-19. It is important to also confer with your employment counsel when implementing new policies and procedures related to COVID-19, particularly given that the guidance issued by government authorities continues to evolve at a rapid pace.

Jackson Lewis is tracking national, state and local developments pertaining to COVID-19 in the workplace. If you have questions about developing policies and procedures related to COVID-19 and your business, contact a Jackson Lewis attorney to discuss.

The Consent Order and Final Statement (Order) in Subramanya v. USCIS, the case seeking the agency’s issuance of long-delayed Employment Authorization Documents (EADs), has been signed and issued.

Under the Order, approximately 75,000 identified, delayed EADs are expected to be produced and mailed. The Order includes individuals who have EAD approval notices dated from December 1, 2019, through August 20, 2020, but who have not received their corresponding cards. In the meantime, these individuals will be permitted to use their Form I-797 approval notices to complete the Form I-9 employment verification process.

The Order sets out the specific schedule for production and mailing of the EADs as follows:

  • There are 27,829 individuals who have received I-765 approval notices. The production of their cards has been ordered. Their EAD cards should be mailed by August 28, 2020.
  • There are 17,736 individuals who have received I-765 approval notices, but the production of their cards has not been ordered. USCIS claims that is because biometrics are still required. Most of these individuals now have biometrics scheduled on or before September 4, 2020 (17 will not be scheduled until September 15, 2020, and one will not be scheduled until September 22, 2020). USCIS has agreed that these EADs will be mailed within seven business days of the biometrics capture.

Approximately 30,000 EADs were reportedly produced and mailed between July 22, 2020, the date the complaint was filed, and August 20, 2020.

USCIS has been ordered to pay $90,000 to defendants’ attorneys in settlement of all claims for attorneys’ fees and costs. The court will retain jurisdiction and receive reports on compliance until all identified EADs have been mailed.

For questions regarding the Order, please reach out to your Jackson Lewis attorney.

 

In 2018, California law extended anti-harassment training requirements to employers with 5 employees or more and mandated that non-supervisors also receive such training, in addition to supervisors. The original deadline for completion of that training was January 1, 2020.  Current California law requires employers with 5 or more employees to provide one (1) hour of sexual harassment prevention training to nonsupervisory employees and two (2) hours of sexual harassment prevention training to supervisors and managers.  This interactive training must occur every two years and must include prevention of abusive conduct as a component, among several other topics required to be covered.

In 2019, California Governor Newsom signed legislation extending the deadline under California Government Code section 12950.1 for initial compliance to January 1, 2021. The amendment to the California Government Code also clarified that an employer that provided sexual harassment training in 2019 is compliant with the training requirements and is not required to provide training again for two years.

Many employers delayed training in early 2020, due to COVID-19 stay at home orders and hoped by summer they could reschedule. As in-person training continues to be difficult under state and county guidance, many employers thought the Governor might further extend the deadline.

However, much like the state minimum wage increase set for January 1, 2020, neither the California legislature nor the Governor have made any moves to extend the deadline for compliance despite the ongoing pandemic.  The January 1, 2021 compliance deadline to provide sexual harassment training remains.

While providing employees in-person training may not be feasible, the California Department of Fair Employment and Housing (“DFEH”) allows for training to occur live in a classroom, online, or in “any other effective, interactive format.” Training may be completed by employees individually or as part of a group presentation and may be completed in segments as long as the total hourly requirement is met.

Regardless of how training is completed, employers should remember to retain records of all employees’ training for a minimum of two years.

Jackson Lewis provides California compliant training via webinar to allow for group presentations even while employees are remote. If your employees need to be trained, contact a Jackson Lewis attorney to discuss your training needs.

Changes in local regulations across California continue to shift the legal landscape for employers, bringing massive implications to their business. On August 18, 2020, Sonoma County passed a paid sick leave ordinance (the “Sonoma Ordinance”), which took effect immediately and sunsetting on December 31, 2020.  The Sonoma Ordinance brings sweeping changes to businesses in unincorporated Sonoma County.

Employers Covered

The Sonoma Ordinance covers employees who are not covered under the Families First Coronavirus Response Act (“FFCRA”), which was signed into law on March 18, 2020. While the FFCRA applies to companies with fewer than 500 employees, the Sonoma Ordinance covers those employees of companies with more than 500 employees either locally or nationally. Further, the Sonoma Ordinance covers employees who work more than two hours in the unincorporated areas of the County, not applying to Santa Rosa employees, which has passed its own ordinance.

Health Care Workers Included

Unlike the FFCRA and many other local ordinances, Sonoma County rejected an exemption for the health care industry and first responders. The employer may still deny the leave if the employer makes a good faith determination that granting such leave would create a staffing shortfall, such that operational needs dictate denial of some or all of the employee’s request for use of the leave.

Supplemental Leave Allowed Under Certain Conditions

Full-time employees are provided 80 hours of paid sick leave and part-time employees receive a propionate share based on a formula relating to their average hours worked.

Employees may take supplemental leave for any of the following reasons:

  1. The Employee has been advised by a health care provider to isolate or self-quarantine to prevent the spread of COVID-19;
  2. The Employee is subject to quarantine or isolation by federal, state or local order due to COVID-19;
  3. The Employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. The Employee needs to care for an individual who is subject to a federal, state or local quarantine or isolation order related to COVID-19, or has been advised by a health care provider to self-quarantine related to COVID-19, or is experiencing COVID-19 symptoms and is seeking a medical diagnosis; or
  5. The Employee takes time off work because the Employee needs to provide care for an Individual whose senior care provider or whose school or childcare provider is closed or is unavailable in response to a public health or other public official’s recommendation.

Leave Pay Cap

Similar to the FFCRA and other local ordinances, leave pay is capped at no more than $511, up from $200, per day and $5,110 for a two-week period, up from $2,000.

Coexistence with Other Available Forms of Leave/Offsets

The total number of hours of paid sick leave is in addition to any paid sick leave that may be available to the employee under California Labor Code Section 246, as well as any preexisting paid time off (vacation, sick and/or PTO) provided to employees before March 16, 2020, subject to an offset. While an employer may not require an employee to use any other paid or unpaid leave, sick pay paid time off, or vacation time provided by the employer.

Offset Explained:

If an employee has at least 80 hours of accrued paid sick leave benefits as of August 18, 2020, or at least 160 hours of a combination of paid sick leave, vacation, and paid time off benefits the obligation to provide paid sick leave under the Sonoma Ordinance shall be deemed to be satisfied.

To the extent accrued paid sick leave benefits afforded employees as of August 18, 2020, are less than 80 hours, or accrued leave benefits are less than one hundred sixty 160 hours, an Employer is required to furnish paid sick leave to the extent of such deficiency.

Documentation Requirements/Replacements

The Sonoma Ordinance specifies that employers may only take “reasonable” measures to confirm the employee’s eligibility and prohibits requiring an employee to furnish a doctor’s note or other supporting documentation. Employers may require employees to identify the basis for which the employee is requesting leave under the Sonoma Ordinance.

Further employers are prohibited from requiring employees to find or confirm a replacement as a condition of obtaining leave under the Sonoma Ordinance.

Notice Requirement

Employers are mandated to provide notice to employees of their rights under the Sonoma Ordinance by posting a notice in English and Spanish in the workplace or any intranet or email.

Employers should remain mindful of all local ordinances that may potentially affect their business. Local ordinances vary across counties and in some situations, cities, requiring employers to keep their pulse on numerous changes. Jackson Lewis is tracking state and local regulations and statutes pertaining to COVID-19 and leaves of absence. If you have questions about compliance with this ordinance or related ordinances contact a Jackson Lewis attorney to discuss.

Due to the continuation of the COVID-19 national emergency, the Department of Homeland Security (DHS) has decided to continue its temporary loosening of H-2A rules to make it easier to employ temporary, seasonal agricultural workers.

Under the rule:

  • Employers can continue to petition to employ foreign workers who are already in the U.S. in H-2A status but who are working for a different employer;
  • Employees will be able to start working for the new employer once the petition has been received by USCIS (but no earlier than the start date on the petition); and
  • Employees will have work authorization for 45 days while the case is pending.

Previously, DHS also allowed workers to remain in the U.S. beyond the usual three-year limit, but that piece of flexibility has been eliminated from the rule extension.

For I-9 purposes, employees may present as List A documentation:

  • An unexpired I-94 showing H-2A status; and
  • An unexpired foreign passport.

In the Additional Information field, employers should indicate:

  • “45 Day Extension”; and
  • The date the I-129 was submitted.

Reverification will be required by the end of the 45-day period.

If you have any questions about H-2A employment or the new rules, Jackson Lewis attorneys are available to assist you.

USCIS is in the process of entering a Consent Order to produce, on a specific schedule, Employment Authorization Document (EAD) cards for those 75,000 foreign nationals who have approved employment authorization applications but have been waiting for inordinate amounts of time for the cards themselves.  Without the cards, these foreign nationals have not been able to complete the Form I-9 employment verification process and unable to work. In the meantime, so that they are not kept waiting any longer, USCIS has agreed to some interim relief.  See our legal update here.

USCIS may be close to negotiating an agreement that would mean EADs for thousands of foreign nationals with approved applications will finally start to be produced.

Yet, first-time EAD applicants who are in H-4 or L-2 status may still face impediments. In March, when the COVID-19 crisis began and USCIS offices closed, the Application Support Centers (ACS) had to reschedule biometrics appointments. The biometrics appointment is essential and a precondition to USCIS issuing a final determination. Although USCIS agreed to reuse previously submitted biometrics to expedite processing, first-time applicants (or applicants who were not previously required to submit biometrics) had no recourse but to wait.

When ASCs started to reopen in June, individuals with appointments were subject to COVID-19 precautions, including face coverings (which may be removed for identification or photographing purposes) and social distancing. These limitations have resulted in ASCs limiting the number of daily appointments. It appears that some individuals have been told that appointments will not be available until October.

It is reported that during a three-week period, starting in mid-July, ASCs completed approximately 74,000 biometrics appointments. But on an average day pre-COVID-19, 14,000 were photographed and fingerprinted across all the field offices and ASCs. So, the backlog continues and the possibility that USCIS may furlough two-thirds of its workforce by the end of August will only exacerbate the problem.

Those who do get appointments for biometrics, interviews, or naturalization ceremonies must remember to comply with the current USCIS Visitor Policy:

  • Wear face coverings;
  • Follow signage related to social distancing;
  • Be aware that USCIS is placing specific limits on those who can accompany applicants with scheduled appointments; and
  • Do not bring or invite guests to naturalization ceremonies.

Individuals will not be allowed to enter a USCIS office if they:

  • Are experiencing symptoms of COVID-19;
  • Have had close contact within the last 14 days with a person known or suspected to have COVID-19;
  • Have been instructed by a healthcare provider to public health authority to isolate or self-quarantine with the last 14 days; or
  • Refuse to wear a face covering in accordance with USCIS policy.

USCIS asks anyone who feels sick to reschedule their appointments.

If you have any questions regarding these regulations, please reach out to your Jackson Lewis attorney. We are available to assist you in interpreting the rules and advising on how to proceed.