On July 29, 2020, U.S. District Court Judge George B. Daniels of New York issued a nationwide injunction barring the Department of Homeland Security from enforcing the Administration’s Public Charge Rule during the declared national health emergency in response to the COVID-19 pandemic.

The Rule makes it harder for foreign nationals to obtain green cards or even to extend or secure non-immigrant status. It was meant to go into effect on October 15, 2019. Before that could happen, in an earlier decision, Judge Daniels enjoined it. Ultimately, the U.S. Supreme Court lifted the injunction, but left open the possibility of further filings in the lower courts.

New York, Connecticut, and Vermont took up that challenge and sought a new injunction based on “new harms” that had become apparent due to the COVID-19 pandemic. Despite the Supreme Court ruling, Judge Daniels agreed he could review the case again. He wrote in his opinion that the plaintiffs provided “ample evidence that the Rule deters immigrants from seeking testing and treatment for COVID-19, which in turn impedes public efforts . . . to stem the disease.” He also noted that many immigrants who were affected by the Rule continued to work during COVID-19 to provide healthcare, food, and sanitization across the country and were essential to COVID-19 recovery.

Although the Administration had issued an alert earlier this year indicating that immigrants would not be penalized under the Public Charge Rule for seeking COVID-19 treatment, the Judge agreed that the alert did not go far enough and simply added to the “confusion and chaos” that was leading immigrants to forego care. He stated, “What were previously theoretical harms have proven to be true. We no longer need to imagine the worst-case scenario, we are experiencing its dramatic effects in very real time.”

In a companion case, Judge Daniels also issued a nationwide injunction barring the Department of State (DOS) from enforcing its version of the Public Charge Rule and its attendant Health Insurance Proclamation for visa applicants abroad. He stated that the plaintiffs were likely to succeed on their claims that the Rule as applied by the DOS violated the Administrative Procedures Act, because no reasonable justification for the Rule had been offered and because proper notice and comment procedures were not followed. The Judge also found the Rule was likely contrary to the Immigration and Nationality Act (INA).

The Administration probably will appeal these decisions. If you have questions regarding the applicability of the new injunctions, Jackson Lewis attorneys are ready to assist.

 

The Mine Safety and Health Administration (“MSHA”) has declined to issue an Emergency Temporary Standard (“ETS”) to address pandemic safety for miners. MSHA determined that issuance of an ETS was unnecessary for COVID-19 because MSHA’s existing health and safety standards allow MSHA to require mine operators to take action to abate COVID-19 health hazards in mines.

Recently the United States Court of Appeals for the District of Columbia Circuit rejected a union’s request for the Court to compel MSHA to issue an ETS. On the legislative path, a bipartisan group of House members are advocating legislation to require MSHA to issue an ETS to address pandemic safety for miners. The proposed legislation is called the “Covid-19 Mine Worker Protection Act.”

Sponsors of the “Covid-19 Mine Worker Protection Act” include Matt Cartwright (D-PA) and David McKinley (R-WV). In a recent press release, Representative Matt Cartwright stated: “The COVID-19 pandemic increases the need for stronger safety protections for these miners. This bipartisan bill would ensure reasonable workplace safety standards to protect miners from COVID-19 on the job and ensure miners can continue their essential work without fear of further endangering themselves or their families.” According to Representative McKinley’s press release, the legislation is supported by the United Mine Workers of America, among others.

A Senate version of the “Covid-19 Mine Worker Protection Act” was introduced earlier this year by Senator Joe Manchin (D-WV). Among other requirements, that Senate version would require MSHA to issue an ETS within 7 days of enactment to protect miners from COVID-19 exposure, and to issue a permanent comprehensive infectious disease standard within 2 years. Senator Manchin has conveyed that he “will keep working to include this language in future COVID-19 funding packages to protect our miners during this global health crisis.”

While MSHA is presently enforcing COVID-19 safety through its existing safety standards, operators should know that miners are more likely than ever to raise concerns about COVID-19 safety in the workplace. Mine operators can avoid potential issues by providing the appropriate levels of attention to COVID-19 as they do all workplace health and safety issues.

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

OSHA quietly updated its COVID-19 FAQs in mid-July to add guidance that took an extremely broad (and arguably unenforceable) interpretation of an employer’s responsibility to report COVID-19 hospitalizations and fatalities.  Just as quietly, over the last weekend in July, it removed the updated Reporting FAQs.   Now employers are left to speculate whether the guidance is gone for good, or whether they need to be on the alert for the guidance to return.

Under 29 C.F.R. § 1904.39(b)(6), all employers – including low-risk employers exempt from most OSHA recordkeeping requirements – must contact OSHA to report certain serious work-related injuries and illnesses.  Employers have 8 hours to report a work-related fatality that occurs within 30 days of the work-related incident precipitating it.  Employers have 24 hours to report an in-patient hospitalization if the hospitalization occurs within 24 hours of the work-related incident.  This standard has been almost impossible for employers to comply with through the COVID-19 epidemic.

First, the determination of whether an employee’s COVID-19 infection is work-related at all is difficult, given the wide community spread of the disease.  OSHA’s May 19 revised enforcement guidance made plain that it views COVID-19 as a recordable infectious disease – unlike, for example, a cold or the flu.  (Note that this enforcement guidance expressly refers only to recordable incidents and does not reference the totally separate standard for reporting incidents.  Nevertheless, as it remains the only guidance on determination of work-relatedness of COVID-19, many employers are using this guidance to also guide their analysis of work-relatedness for reporting as well.  Read Courtney Malveaux’s blog entry discussing this guidance here.)

Second, it is almost impossible to define a specific “work-related incident” which led to a COVID-19 infection, due to its usual asymptomatic presentation during the first days after infection.  If an employee is asymptomatic on her last day of work on Tuesday, receives a confirmed positive COVID-19 test on Thursday, and isn’t hospitalized until two weeks later – when does the “within 24 hours of the work-related incident” period begin to run?

Per the now-deleted FAQ, that period would begin to run as soon as the employer knew that she was both (1) hospitalized and (2) COVID-19 positive – even though that is two weeks after she was last at work.  As written, the FAQ even entirely removed any consideration of work-relatedness from the analysis and collapses the two 24-hour periods into one – a complete departure from the requirements of the regulation.   The FAQ similarly removes the work-relatedness determination from reports of COVID-19 fatalities.  Essentially, if these FAQs were enforceable, employers could be required to notify OSHA any time any of their employees were hospitalized or died of COVID-19 – even if the employee had not reported physically into work for months.

Employers should remember that OSHA’s FAQs are merely guidance, and do not carry the same weight as a legally enforceable regulation that has gone through a notice and comment period.  So even if these interpretations pop up again in OSHA’s FAQs or elsewhere in OSHA’s COVID-19 guidance, there are strong arguments against enforceability.  However, it is helpful for employers to understand the broad interpretation that OSHA has, at least, considered long enough to draft and post answers to FAQs – even if they only left them up for a few days.

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

With everyone focusing on the coronavirus (“COVID-19”) pandemic, the Occupational Safety and Health Administration (“OSHA”) has quietly moved forward with issuing a final rule on occupational exposures to beryllium and beryllium compounds (collectively “beryllium”). Having begun rulemaking in January 2017, the agency’s proposed beryllium standard has been in flux for some time, as well as modified through revisions during rulemaking proceedings. But now, OSHA has again finalized requirements for occupational exposures to beryllium in standards for the general (29 CFR 1910.1024), construction (29 CFR 1926.1124), and shipyards (29 CFR 1915.1024) industries. Health standards provided in the final rule are also set to go into effect on September 14, 2020.

Under the final rule, OSHA maintains that employees’ exposure to beryllium should be limited to a 8-hour time-weighted average (“TWA”) of 0.2 µg/m3 as this permissible exposure limit (“PEL”) will reduce employees risk of health impairment or disease to the greatest extent feasible. OSHA also requires that employers limit employees’ short-term exposure to 2.0 µg/m3 over a 15-minute sampling period (“STEL”) and act to control or minimize beryllium exposures when sampling shows employees have a 0.1 µg/m3 8-hour TWA. The standard also requires specific protections for employees that may be exposed to beryllium while at work.

Like other health standards, OSHA’s final rule requires that employers in the general, construction, and shipyard industries conduct an exposure assessment to identify and evaluate occupational beryllium exposures. Following the assessment, employers must then determine and implement appropriate methods for control, which may include use of engineering controls, respiratory protection, personal protective equipment, and other administrative controls. Employers should include these controls in a written exposure control plan that contemplates management of beryllium work areas, monitoring of control effectiveness, and general housekeeping procedures. Employers may also need to implement medical surveillance programs for employees with exposure to beryllium, paying specific attention to employees that develop a beryllium sensitization as this can lead to chronic beryllium disease.

Finally, employers must ensure proper training and recordkeeping. More specifically, employers must effectively train employees with potential exposures to beryllium on sources of potential exposures and associated exposure hazards and control measures. Employers must also maintain accurate records on their exposure assessments, medical surveillance, and program implementation.

If you have questions 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.

 

The legal landscape has changed radically since the start of 2020. While COVID-19 has profoundly impacted the Golden State, and the world, new employment laws are still driving change for California employers.

Join Jackson Lewis P.C. on Wednesday July 29 at 10:00 a.m. PST for a mid-year employment law webinar, where we will share critical mid-year updates, provide an overview of key rulings, and discuss pending new laws for 2021.

Topics

  • Mid-year reminders about local minimum wage increases and paid family leave benefits
  • New ordinances and requirements instituted as a result of COVID-19
  • Employment case updates, including status of independent contractors and employment arbitration agreements
  • Pending state legislation relating to employment and employee benefits

Webinars are CLE-accredited in California, Illinois, New York, Missouri and Texas. We are also accredited providers of HRCI and SHRM

For more information and to register, click here.

On July 24, 2020, the State of California released a “COVID-19 Employer Playbook” to guide employers in planning and preparing for the safe reopening of their businesses.  It combines guidance from various California agencies to ensure that employers have the tools they need to plan for a safe and clean workplace.  Notably, the Playbook is not meant to be exhaustive, as it does not include county-specific health orders, nor is it a substitute for existing safety and health-related regulatory requirements such as those from Cal/OSHA.

The Playbook provides guidance for managing and preventing outbreaks in the workplace, regulations for reporting identified cases, cleaning and disinfecting protocols, return to work guidelines following a confirmed case, and California paid sick leave requirements.  It also offers a comprehensive list of resources for employers, including industry-specific checklists from state regulatory agencies that monitor and enforce COVID-19 statutes and orders. These agencies include the Department of Alcoholic Beverage Control, the Department of Consumer Affairs, and the Department of Industrial Relations (which incorporates the California Division of Occupational Safety and Health and the Division of Labor Standards Enforcement).

Lastly, the Playbook educates employees on ways they can protect themselves and others, both in the workplace and at home. This includes enforcing face-covering requirements and suggested language and de-escalation measures for communicating with workers, customers, and visitors in the workplace about face coverings.

Jackson Lewis is tracking new rules and regulations related to COVID-19 and workplace safety. If you have questions or concerns about complying with California workplace regulations, contact a Jackson Lewis attorney to discuss.

USCIS confirmed that its planned furlough of 70% of its workforce (13,400 employees) will be postponed at least until the end of August. The ostensible reason for the furlough was a budget shortfall, even though USCIS is a fee-based service that historically has covered costs.

The furlough announcement, when coupled with the anti-immigration agenda from the White House, caused some to question the claim that USCIS had of a $571-million deficit for FY 2020. Agency and indeed recent reports show that USCIS will end the fiscal year with a budget surplus large enough to keep employees on the payroll for now. In the meantime, Congress will have to time to act to provide emergency relief for FY 2021. As of July 10, 2020, the surplus was reportedly $121 million.

Senators Patrick Leahy (D-Vt.) and John Tester (D-Mont.) wrote to Acting Secretary of Homeland Security, Chad F. Wolf, when they learned of the surplus, which was in “stark contrast” to the previous deficit prediction. The Senators implored the agency not to put more American jobs “on the line” at this time of “unprecedented unemployment.” They made it plain that it was not just the employees who would be harmed.

[T]housands of United States Citizens, employers, and students rely on USCIS work, including members of the military. The loss of these valuable jobs will also cause hardship to the communities where these federal workers live and work – communities already struggling with the pandemic.

The USCIS Deputy Director for Policy, Joseph Edlow, stated that the changed forecast, occurring after an investigation, is due to increased revenue over the past few weeks. This revenue could be the result of Cap H-1B filings and the opening up of premium processing. At the end of March, USCIS suspended premium processing. On June 1, 2020, the agency slowly started resuming it. By June 22, 2020, premium processing became available for all I-129 petitions, including cap-subject petitions. At $1,440 for each petition, this resumption could account, at least partly, for the increased USCIS revenues. Given the current processing delays and the pent-up demand for premium processing, an increase in revenue could have been expected – and the fear of an almost-total halt in immigration processing alleviated.

USCIS union members (members of the American Federation for Government Employees) speaking to reporters explained that while the pandemic has decreased petitions, the agency has been crippled by “previous policy decisions that have restricted legal immigration.” In 2018, there was 17% decrease in petitions and applications. Since then, the public charge rule and increases in vetting, denials, requests for evidence, interviews, delays, and backlogs have led individuals and companies to file fewer petitions and applications. For some companies, it has become easier and more predictable to move jobs out of the United States into more welcoming environments. The impact of such a move is the opposite of what is needed in the U.S. economy’s recovery.

Senator Leahy expects to address the USCIS’ 2021 deficit with the next COVID-19 relief package.

If you have any questions, please contact a Jackson Lewis attorney.

As the COVID-19 pandemic continues, the battle over when or if employers should be liable for personal injuries arising from coronavirus exposure allegedly caused during employment lurks on the horizon.

The United States Court of Appeals for the D.C. Circuit recently rejected a union’s request for the Court to compel the U.S. Department of Labor’s Mine Safety and Health Administration (“MSHA”) to issue an Emergency Temporary Standard (“ETS”) for infectious diseases. In Re: United Mine Workers of America.

Like the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), which develops and enforces safety and health rules for workplaces, MSHA is tasked with developing and enforcing workplace safety and health rules for U.S. mines. Both agencies are within the U.S. Department of Labor.

MSHA must provide an ETS when miners are exposed to grave danger from exposure to harmful substances, agents or other hazards if the ETS is necessary to protect the miners from the grave danger. MSHA denied the union’s request for an ETS for COVID-19, which the union then challenged in federal court. The U.S. Court of Appeals for the D.C. Circuit ruled that it would not compel MSHA to issue the ETS finding it was not unreasonable for MSHA to determine that an ETS was unnecessary.

MSHA determined that issuance of an ETS was unnecessary for COVID-19 because MSHA’s existing health and safety standards allow MSHA to take require mine operators to take action to abate COVID-19 health hazards. MSHA assured the Court that its existing standards impose COVID-19 related duties on mine operators. MSHA shared that it is issuing safety citations to operators for COVID-19 health and safety violations.

As the pandemic rages on throughout different parts of the country not previously hard hit at the onset of the pandemic, miners are more likely than ever to raise concerns about COVID-19 in the workplace and may even refuse to work if they do not believe the mine operator is taking all necessary precautions to protect them against the COVID-19 hazard. Section 105(c) of the Mine Act prohibits mines from discriminating or retaliating against miners, miner representatives and applicants for employment for engaging in safety and health activities, including identifying hazards, requesting or participating in MSHA inspections, and refusing to engage in unsafe acts. These conditions, coupled with the assurances from MSHA regarding COVID-19 related enforcement, are likely to lead to an uptick in MSHA’s COVID-19 enforcement activity.

This sharpened awareness of COVID-19 health and safety issues is not unique to mines. The D.C. Court of Appeals noted that MSHA’s ETS provision tracks OSHA’s ETS provision. Earlier in June, the D.C. Court of Appeals struck down the AFL-CIO’s petition to compel OSHA to issue an ETS for COVID-19. The D.C. Circuit stated that OSHA’s decision not to issue an ETS was entitled to considerable deference. The Court also noted that OSHA had other existing statutory and regulatory tools at its disposal to ensure that employers are protecting employees against the COVID-19 hazard in the workplace.

While mine operators and employers often welcome employee participation as part of ensuring a safe workplace for all, it is important to be mindful that COVID-19 related issues are likely, at least for now, to be scrutinized by MSHA and OSHA. Mine operators can avoid potential issues by providing the appropriate levels of attention to COVID-19 related issues as they do to all other workplace health and safety issues.

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

Deadlines are a large part of employee benefit plan administration.  The past 12 – 18 months have contributed to potential confusion about standard deadlines and added new deadlines plan administrators will not want to overlook.  During this period, the IRS created a one-time window deadline, published extensions for some plans’ deadlines, and other deadlines were not extended but are rapidly approaching.  July and August 2020, bring the most immediate deadlines for plan administrators.

In March, as part of the COVID-19 relief, the IRS extended the deadline for the end of the second six-year remedial amendment cycle for pre-approved (including volume submitter) defined benefit plans to July 31, 2020.  The same relief postponed the beginning of the Cycle 3 remedial amendment period to August 1, 2020, but the end date for Cycle 3 remains January 1, 2025.  We initially discussed this extension in a March 2020, blog.

The IRS opened the determination letter program through its Revenue Procedure 2019-20, published in May of 2019.  The revenue procedure permanently opened the determination letter program for Individually Designed Plans (IDP) that meet the requirements of a “merged plan” as defined in the revenue procedure.  The procedure also opened a limited, 12-month window for statutory hybrid plans, e.g., cash balance plans, to submit for a determination letter.  That 12-month window ends August 31, 2020.  As we stated in our May 2019, blog, plan sponsors and practitioners would welcome additional, periodic opportunities to obtain determination letters on other plans.

The IRS also issued COVID-19 relief extending Form 5500 filing deadlines for some plans based on the plan year-end date.  The relief ended on July 15, 2020, and DID NOT extend filing deadlines for calendar year plans.  The Form 5500 or Form 5558 extension filing deadline for a 2019 calendar year plan remains July 31, 2020.  All other filing deadlines associated with Form 5500 filings for plan years ending after December 31, 2019, are not extended and should be filed timely as in prior years according to the plan year-end date.

The Bottom Line:

  • Pre-approved defined benefit plans’ second six-year remedial amendment period ends July 31, 2020;
  • The determination letter submission window for statutory hybrid plans, e.g., cash balance plans, ends August 31, 2020; and
  • Calendar year plans required to file Form 5500s must still file the Form 5500 or the Form 5558 extension by July 31, 2020.

We are available to help plan administrators sort through applicable deadlines.  Please contact a team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

The U.S. Department of Labor (“DOL”) recently issued additional clarification on its FAQs and guidance regarding the FMLA and the FFCRA in the context of the COVID-19 pandemic.  Some highlights include:

Telemedicine Visits Are “In-Person” Visits with a Healthcare Provider under the FMLA

Telemedicine visits (those medical appointments that are conducted by remote video conference via computers or mobile devices) will be considered as “in-person” visits with a health care provider under the FMLA.  However, to be considered an “in-person” visit, the telemedicine appointment must:

  • include an examination, evaluation, or treatment by a health care provider;
  • be performed by video conference;
  • and be permitted and accepted by state licensing authorities.

The DOL reasons that this approach serves the public’s interest because health care facilities and clinicians are under advisories to prioritize urgent and emergency visits and to preserve personal protective equipment and patient-care supplies.  However, the DOL notes that telemedicine visits will be considered “in-person” visits only until December 31, 2020.

COVID-19 Tests May be Required Before Returning to Work From FMLA Leave

The DOL also provides updated guidance on whether an employer can require employees returning from FMLA leave to get a COVID-19 test before returning to work.  The DOL explains that the FMLA does not prohibit an employer’s return-to-work COVID-19 testing requirement, as long as the testing requirement applies to all employees returning from any type of leave, whether FMLA or non-FMLA.  Note, however, that an employer should also consider any applicable state law or order that may impose restrictions on when COVID-19 testing is permitted and what types of COVID-19 tests are permitted.

DOL Provides Insights into Reopening and Return to Work Scenarios under the FFCRA

The DOL also added additional questions and answers to the FAQs on the Families First Coronavirus Response Act (“FFCRA”).  In these new FAQs, the DOL explains:

  • When an employee returns to work from FFCRA leave and there are lingering concerns regarding whether the employee is returning to work too soon and could potentially expose others to COVID-19, an employer may:
    • Consider temporarily reinstating the employee to an equivalent position with less co-worker interaction or require the employee to telework, and
    • Require an employee comply with job requirements that are unrelated to being out on FFCRA, such as a general requirement that any employee be tested for COVID-19, or telework, if the employee has interacted with a COVID-infected person.  Such a requirement must apply to all employees.
    • The DOL cautions that an employer may not require an employee to telework or be tested for COVID-19 simply because the employee took FFCRA leave.
  • The FFCRA emergency paid sick leave is limited to a total of 80 hours, even if an employee took FFCRA before being furloughed and is now returning to work from furlough.  Any balance under 80 hours of emergency paid sick leave can be taken through December 31, 2020 for qualifying reasons.
  • If an employee took expanded FMLA prior to a furlough, an employee is still entitled to any balance of FMLA leave under 12 weeks upon returning to work after a furlough.
  • An employer may not extend an employee’s furlough because the employee will need to take FFCRA leave to care for the employee’s child upon return to work.  The DOL reminds employers that they may not discriminate or retaliate against employees (including prospective employees) for exercising or attempting to exercise rights under the FFCRA.

Links

Links to the updates discussed in this blog are below:

COVID-19 and the Family and Medical Leave Act Questions and Answers (See Questions 12 and 13 for more information on the above discussion.)

COVID-19 and the American Workplace (FFCRA FAQ) (See Questions 94-97 for more information on the above discussion.)

Employers are encouraged to continue to check for updates to DOL FAQs and guidance, which is continually evolving during this COVID-19 pandemic.

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.