Despite California’s recent statewide closures for indoor operations at restaurants, movie theaters, family entertainment centers, zoos, wineries, and closures for select hospitality businesses across more than 30 counties, Oakland passed a new right to reemployment ordinance. Like the Los Angeles ordinance, Oakland’s Ordinance is limited to industries related to certain hospitality operations, such as airport hospitality providers, event centers, hotels, and covered restaurant employers, including fast-food restaurants.

The Ordinance specifies that the airport hospitality providers are businesses that provide food, beverage, retail, or other consumer goods or services to the public at the Oakland International Airport. The Ordinance also applies to a variety of airport service providers at the Oakland International Airport.

The Ordinance covers only event centers in the City of Oakland that are more than fifty thousand (50,000) square feet or have five thousand (5,000) or more seats.

Under the Ordinance, a “Covered Restaurant Employer” is an employer with more than 500 employees, regardless of where the employees are employed, or is a Franchisee associated with a Franchisor or a network of Franchises that employ more than 500 employees in the aggregate.

The Ordinance applies to any employee who (i) was employed for at least six (6) months in the twelve (12) months preceding January 31, 2020, and (ii) whose most recent separation from employment occurred after January 31, 2020, was due to an economic, non-disciplinary reason, including but not limited to a lack of business due to a government-issued stay-at-home order, bankruptcy, or reduction in force. An employee working for a covered employer under the Ordinance need only work at least two (2) hours a week within the City of Oakland. There are additional rules in the ordinance regarding eligible employees.

Under the ordinance, a covered employer must offer eligible laid-off employees, in writing, any job positions that become available after the effective date of the Ordinance that the employee is qualified for with the employer. The employer may provide notice either by registered mail to the employee’s last known physical address, and by email or text to the extent, the employer has that information.

The Ordinance specifies that an eligible employee is qualified for a position if the employee:

  • Held the same or substantially similar position with the employer, or
  • Is or can be qualified for the position with the same training that would be provided to a new employee hired into that position.

Eligible laid-off employees shall be given no less than ten (10) days from the postmark date of the mailed letter and dates of email and text notification to accept or decline the offer.

Employers must also provide written notice to laid-off employees, who are not called back due to lack of qualifications if a person is hired other than a laid-off employee. The notice shall be provided within thirty (30) days of the date of hire. In addition, the employer must document the reason for the decision not to rehire the laid-off employee and must maintain this written document for at least three (3) years.

Jackson Lewis continues to track state and local regulations pertaining to COVID19. If you have questions about compliance with this ordinance or other COVID19 issues, contact a Jackson Lewis attorney to discuss.

On April 16, 2020, California Governor Gavin Newsom issued Executive Order N-51-20, (“Executive Order”) which provides COVID-19 related paid sick leave for “food sector workers” who work for larger employers in the state. The California legislature is now considering codifying those leave requirements with Senate Bill 729.

Read the full article on the Jackson Lewis Disability, Leave & Health Management Blog.

In a new effort to use existing regulations to respond to the ongoing public health emergency, OSHA cited an Ohio healthcare company for alleged serious violations of OSHA’s respirator regulations. OSHA launched an investigation at three of the employer’s healthcare facilities after seven employees were hospitalized with COVID-19.

Even though the employer provided the necessary N95 respirators to its healthcare workers, OSHA alleges that the employer committed two violations of OSHA’s respirator standard: (1) failure to have a written respirator program and (2) failure to provide a medical evaluation to determine employees’ ability to use a respirator in the workplace. OSHA’s press release announced that it cited each of the employer’s three facilities for the same two violations and a total proposed penalty of $40,482.

While OSHA has up to six months to issue a citation, the Administration’s enforcement activity in response to the COVID-19 pandemic to this point has been modest, and the Administration’s critics have called on OSHA to take more aggressive enforcement actions. Similarly, OSHA has faced continued scrutiny to issue emergency regulations that address worker protections against the spread of COVID-19. However, the Administration has consistently pushed back against the need for emergency regulations and argues that its existing regulations—such as the respirator standard cited here—are sufficient to address the risks of COVID-19.

OSHA’s enforcement actions in this matter could suggest greater enforcement is on the horizon. OSHA’s Principal Deputy Assistant Secretary, Loren Sweatt, even released a statement highlighting the Administration’s enforcement action, which suggests that the citation has gained attention from OSHA’s leadership in Washington, D.C.

These citations demonstrate that even where employees provide necessary safety equipment, like N95 respirators for health care workers, they still must comply with all technical aspects of OSHA’s regulations. OSHA’s regulations encompass a wide scope of detailed obligations for employers, and even employers who strenuously work to provide a safe workplace can inadvertently violate a regulation.

For now, it does seem that OSHA is carefully cherry-picking cases with seemingly bulletproof facts and has targeted the healthcare industry because of front-line workers’ obvious exposure to COVID-19. In this instance, the cited employer allegedly had seven employees hospitalized due to COVID-19. Those types of facts definitely put a target on an employer’s back. As the numbers of COVID-19 cases rise around the country, particularly in places that were not hard hit at the beginning of the pandemic in March and April, we are likely to see an uptick of enforcement activity from OSHA.

Just because OSHA issues citations, however, does not mean they are valid. The Agency is under pressure to demonstrate that it remains effective in combatting the COVID-19 pandemic without a specific infectious disease standard. Jackson Lewis attorneys are available to assist employers to ensure that they are in compliance with all OSHA regulations and to defend against any citations issued.

You can hear the parents wailing across the country (almost like kindergartners on their first day of school), as states begin to announce their plans to keep physical schools closed or alternate between in-school and virtual classes for the upcoming year. The collective parent wail is outmatched only by that of their employers, who are faced with the Hobson’s choice of what to do with employees who will now seek more flexibility in scheduling, work expectations or remote work to account for their continued childcare and home-schooling obligations.

Outside of any FFCRA obligation or state paid sick leave/school leave/family leave obligation (some of which now cover this scenario), in most jurisdictions there is no legal obligation to accommodate parents who cannot perform their job because of childcare issues.  But parents often account for a third of the workforce. An inflexible approach may lead to a loss of key employees and negatively impact the ability to attract future talent. And there is increasing concern that the nature of an employer’s response to this issue may contribute to claims of disparate impact against women or discrimination based on family responsibilities.

As a practical matter, employers, who are facing their own economic struggles, can ill afford to pay employees for unproductive time spent educating, supervising or caring for children at home. And the job still needs to get done. This has left many employers asking, “Is there a solution to this “academic” problem?”

Certainly, not a simple one. Once you move beyond leave obligations, employers will need to leverage flexibility and creativity.

Some options employers may consider, include:

  • Create or expand permanent remote work roles: Reimagine roles to facilitate long-term remote work opportunities, achieving corresponding savings by decreasing or redesigning commercial real estate footprints.
  • Create temporary “transitional” remote work opportunities: While not legally required, employers can go “above and beyond” to create temporary but productive work opportunities that can be performed remotely. In creating such roles, employers would have the ability to define the duties, compensation level, and duration of the programs. Think outside of designated job titles and identify productive work that can be performed on a temporary basis remotely. Clear communication reserving all rights to modify or discontinue programs is critically important.
  • Enhance flexible scheduling: Allow employees to work around school hours or around their spouse’s schedule so they can share the childcare. (The DOL recently added FAQ 15 allowing employers to pay employees who work in separate smaller blocks throughout the day only for hours actually worked without violating the continuous workday rule.)
  • Expand childcare benefits: If you need workers physically present at the workplace on a full or part-time basis, consider offering onsite childcare or partnering with a service to provide childcare benefits or education.
  • Support Home Tutoring: Encourage or assist employees who need childcare to look for college-aged (or even high school-aged) students (particularly those interested in going into education) who may also be learning remotely and may have time to provide childcare or tutor during the day. Perhaps even provide an on-line forum where such information can be shared (with appropriate disclaimers, of course). Consider hosting a virtual “Tutor/Childcare Fair” providing options and resources for employees or providing a stipend to help defray the costs of tutoring/childcare.
  • Adjust FSA benefit plans: Consider allowing mid-year changes to FSA plans in accordance with recent IRS guidance.
  • Modify FTE Status: Consider allowing employees who are struggling to manage work and childcare responsibilities to switch temporarily to part-time or reduced hours, with corresponding reductions in pay.
  • Create temporary unpaid leave programs:   Develop temporary unpaid leave programs for employees who have no statutory or company sources of paid or unpaid leave available to them.
  • Explore temporary or permanent transfers: Allow employees to transfer to open positions that can better accommodate the remote work or flexible scheduling. Allow remote work where possible.

As the saying goes, “necessity is the mother of invention.” Employers can brainstorm ways to get through this time period, knowing that with the right planning and communication they can lawfully discontinue and sunset any voluntary programs. Employers adopting such initiatives would be well-served to communicate the temporal or other limitations of such programs and perhaps have employees sign acknowledgments confirming that any special “COVID-19” programs can be modified or discontinued at the employer’s sole discretion.

In addition, while many employers have been very lenient to date with the productivity of employees working remotely, now that it appears the need may continue through the end of the year and possibly for the entire school year, employers should approach this next wave of flexibility requests with more intention. Set forth the expectations for the job and talk to employees about performance issues that have arisen with any previous flexibility. Make sure they understand that while you are willing to work with them during this difficult time, and want them to succeed, ultimately, it will require effort on their part to ensure that the job gets done.

Of course, even the most flexible employer may find it difficult to allow flexibility in every role. In those circumstances where there is no protected leave available, and the employer is either not interested in providing an accommodation or it is not possible to accommodate in a fashion that will allow the job to get done, then the choice may need to be left to the employee as to whether they continue in the position (and find someone to provide childcare) or whether they need to step away from the job during this time.

As employers consider these programs and individual requests, employers must strive to ensure consistency and avoid assumptions about who in a family acts as the primary caregiver. Even if a request cannot be granted, handling each request in a thoughtful, deliberate manner will go a long way to promoting employee retention and limiting risk.

As the new school year approaches, stay educated on the latest COVID-19 developments here or contact your Jackson Lewis attorney for assistance.

The Department of Homeland Security (DHS) has extended its flexibility regarding the physical presence requirements for I-9 inspection for another 30 days, until August 19, due to the ongoing precautions related to the COVID-19 pandemic.

Eligible employers may continue to inspect Section 2 documents remotely (e.g., over video link, fax, or email) and must have a written documentation of their remote onboarding and telework policy that is available to employees. If employers are not eligible for the flexibility, they may continue to designate authorized representatives to act on their behalf to review documents in person.

All employees who were onboarded remotely must report to their employer within three business days for in-person verification once the employer’s normal operations resume. This date may be different (earlier or later) than the date the government policy ends.

How does DHS define who is eligible for flexibility and when does that flexibility end as normal operations resume?

DHS has said that if employees are physically present at a work location, flexibility does not apply. This rigid interpretation lacks understanding of the complexity of the current workforce, such as when Human Resources professionals are not on site. Therefore, each employer should design a policy around its particular situation, so the employer’s actions are defensible.

ICE may significantly increase audits as soon as worksites start reopening. Therefore, it is important to have a plan for reinstituting “normal” I-9 processes and making a good faith effort to comply. For more information on possible steps to take, please see our prior blog.

Jackson Lewis attorneys are available to assist in determining the best steps to take based on your company’s particular circumstances and will continue to provide updates as they become available.

Colorado has enacted the Healthy Families and Workplaces Act (SB20-205) (HFWA) to require employers to provide employees with up to six days, or up to 48 hours, of earned paid sick leave.

Employers with at least 16 employees must begin providing earned paid sick leave on January 1, 2021. All employers, regardless of size, must begin providing earned paid sick leave effective January 1, 2022.

Effective immediately, the HFWA requires that employers, regardless of size, comply with the federal Emergency Paid Sick Leave Act in the Families First Coronavirus Response Act (FFCRA), which stays in effect until December 31, 2020. The Emergency Paid Sick Leave Act provides up to 80 hours of sick leave for COVID-19-related reasons. The HFWA does not require employers to comply with the Emergency Family and Medical Leave Expansion Act of the FFCRA, which provides 12 weeks of pay to care for children whose school or place of care is closed, or childcare provider is unavailable, because of COVID-19-related reasons.  Read more.

In a move that was not surprising due to the spike of COVID-19 cases in the United States, Prime Minister Justin Trudeau of Canada and the Mexican Foreign Ministry have both announced the continuation of the COVID-19 border restrictions between Canada, Mexico and the United States.  These restrictions were first announced in March and have been extended four times since then.  The restrictions are now set to expire on August 21, 2020 but are subject to further extensions.

These closures are not meant to affect essential goods and services.  But travel for tourism including but not limited to sightseeing, recreation, gambling or attending cultural events is non-essential and not allowed.  The restrictions only affect land ports of entry.

Please reach out to your Jackson Lewis attorney for any questions regarding this border closure.

The National Labor Relations Board Union (NLRBU), which represents the employees of the National Labor Relations Board (NLRB), wants NLRB General Counsel (GC) Peter Robb to rescind his guidelines about how to conduct representation elections in-person during the COVID-19 pandemic.

The alternative is to conduct such elections by mail ballot. Most NLRB elections during the pandemic have been conducted by mail ballot. Employers disfavor mail ballot elections. For more on the GC’s guidelines, see our blog, NLRB General Counsel Issues Guidelines for In-Person Elections During COVID-19 Pandemic.

According to Bloomberg Law, the NLRBU’s objection to the guidelines is contained in a press statement issued by NLRBU President Burt Pearlstone. Pearlstone said the GC’s protocols “will expose NLRB employees to Covid-19, particularly in the many parts of the country that are reeling from record-breaking Covid-19 numbers.”

The NLRB sought input from the NLRBU during the preparation of the guidelines. However, NLRBU representatives said the GC “refused all the significant proposals the union put forth.” The NLRB has disputed that claim.

Conventional wisdom among management labor attorneys is the guidelines likely will not result in any significant increase in in-person voting during the pandemic. The guidelines are not mandatory and NLRB Regional Directors expressly retain discretion about what method of balloting is best in each case. Further, the guidelines are the GC’s; the five-member NLRB retains the ultimate authority to approve them, in whole or in part, and to decide how its elections are to be conducted.

Please contact a Jackson Lewis attorney with any questions.

One of the worst developments of the COVID-19 pandemic has been its impact to college sports and the unfortunate sacrifice of athletics programs across the country affecting all levels of NCAA and NAIA competition.

Since March, hundreds of collegiate varsity programs have been discontinued, with more cuts likely coming.

Eliminating a varsity sport is never an easy decision for college administrators. However, the current economic reality caused by the pandemic has forced many institutions to make this difficult decision. Although the elimination of sports is typically economic-motivated, the potential impact of these decisions on federal law compliance must be considered prior to taking an action.

Prior to finalizing the decision to eliminate a sport, administrators should appropriately calculate the impact that reclassifying or eliminating a sport will have on the institution’s compliance with Title IX.

Title IX requires each institution to appropriately provide athletic opportunities accommodating the interest and athletic abilities of its students. To comply with the Interests and Abilities component of Title IX, institutions must provide competition opportunities at the appropriate competition level while meeting at least one part of the “three-part test” for competitive opportunities. Both aspects are critical.

Competition Level. Institutions should look to the two-part test in assessing whether their school would still be providing competition at the appropriate competition level after elimination or reclassification of a program. A school should be able to demonstrate that it is still providing competition at the appropriate level, even after elimination or reclassification of a program, by meeting one of the two tests offered.

The first test requires institutions to assess information related to the competitive level of scheduled competition for its remaining varsity programs. A close proportionality of the percentage of events scheduled at the equivalent competition level for men’s and women’s sports is indicative of compliance with the first test for competition levels.

The second test for competition levels involves a demonstration that the institution has a history of and is continuing to upgrade the competition level for the underrepresented sex. Declassification of sports participated in by the underrepresented sex on campus will present an issue for institutions who rely on the second test to demonstrate that they are providing the equivalent quality of competitive opportunities for men’s and women’s sports.

Competition Opportunities. In addition to assessing the competitive levels of men’s and women’s sports, schools must ensure that they continue to provide equivalent competitive opportunities for men and women student-athletes after reclassifying or eliminating varsity sports. This assessment involves an analysis of the three-part test for competitive opportunities. To comply, institutions will need to demonstrate that they accommodate interests and abilities under at least one of the following three parts:

Part I:            Proportional participation of male and female athletes in varsity  athletics program; or

Part II:          A history of program expansion for the under-represented sex; or

Part III:        Present accommodation of interests and abilities.

While cutting the over-represented sex’s (often, men’s) sports opportunities has been supported by some courts as a legal method to comply with Part I – Proportionality, the reclassification or elimination of a sport may jeopardize an institution’s ability to demonstrate compliance with Part II or Part III. Institutions cutting sports should take care in ensuring they will be able to manage the rosters of its remaining sports to stay within an appropriate threshold of proportionality.

Institutions unable to demonstrate equitable proportionality under Part I will be left with either Part II or Part III of the three-part test to demonstrate compliance. Part II of the competition opportunity test assesses whether the institution has a continued history of program expansion for the underrepresented sex. Part III of the three-part test for participation opportunities is the most complex. The reclassification or elimination of a varsity sport will not help an institution demonstrate that it is actively and fully accommodating the interests and abilities of students on campus, as the existence of a varsity sport carries with it a presumption that there is sufficient interest and ability to sponsor the sport at the varsity level. Therefore, institutions will have to intensively evaluate all aspects of Part III in order to demonstrate that the university is still adequately accommodating for interests or abilities under Part III, even though the school cut or reclassified sports programs.

Attorneys in Jackson Lewis’ Collegiate and Professional Sports Practice Group and Higher Education Group are available to assist and answer any questions that may arise relating to the elimination of athletic programs while maintaining Title IX compliance.

On July 13th two of the largest school districts in California, Los Angeles Unified School District and San Diego Unified School District announced that the school year would start in August with students attending virtually – only. They have been joined by several school districts in Orange County, San Francisco , and Sacramento. Assisting employees as they attempt to balance work and childcare can be complicated in these difficult times.

Applicable Leaves

In recent months the federal and local governments passed paid leave laws with a focus on supporting families due to sudden school closures.

The federal Families First Coronavirus Response Act (FFCRA) provides paid leave for employees who needed to care for a child while their school or childcare provider was closed due to COVID-19 related reasons. FFCRA is limited to employers with under 500 employees with smaller employers of 50 or less potentially exempted from the Act. FFCRA requires employers to provide a maximum of 80 paid hours of leave for full-time employees.

The Department of Labor (“DOL”) published a Questions and Answers Page, which provides clarity to the issue of virtual schooling. The DOL states, “[i]f the physical location where your child received instruction or care is now closed, the school or place of care is ‘closed’ for purposes of paid sick leave and expanded family and medical leave. This is true even if some or all instruction is being provided online or whether, through another format such as ‘distance learning,’ your child is still expected or required to complete assignments.” As such, if an employee is FFCRA eligible he or she would be permitted to take leave under the Act.

The California Labor Commissioner has also released a Frequently Asked Question page clarifying that employees may apply their California Paid Sick Leave to a covered leave under California Labor Code section 230.8, a statute that allows employees to take leave due to a school emergency. The City of San Diego’s paid leave includes care for a child whose school or childcare provider is closed due to a public health emergency as a covered reason for its local sick leave.

Several cities and counties in California have also passed local supplemental paid sick leave ordinances requiring paid leave for employees caring for children whose schools or childcare are closed due to COVID-19. These ordinances were intended to cover larger employers not covered under the FFCRA and provide a maximum of 80 paid hours of leave. Since the FFCRA deems a closure to include virtual schooling, it would seem the same would apply for these ordinances intended to mirror the FFCRA and often reference the FFCRA in their definitions. As such, as school starts virtually in August, many employees may be seeking paid leave under the local ordinances and FFCRA to assist with virtual schooling.

Remote Work

Some employees may have already exhausted available leaves, and other employees may request to work remotely while supporting children with e-learning. If an employee is not already teleworking, there are some things employers should consider:

  • Reimbursements for use of personal internet and telephone
  • Remote Work/Telework Policies including maintaining confidential business information
  • Minimum Salary requirements for exempt employees
  • Tracking all hours worked for non-exempt employees, including meal and rest periods

Employers may also want to prepare a telework agreement to ensure that the company and the employee share an understanding of the employee’s duties and hours while working remotely.

To ensure you are staying on top of national and local regulations surrounding COVID-19 in real-time register for the Jackson Lewis COVID-19 Advisor.  Our firm has attorneys nationwide from multiple practices and industries actively assisting businesses on the rapidly evolving COVID-19 workplace challenges.