In another installment of the NILG’s 2020 Virtual Conference Webinar Series, OFCCP’s National Policy team presented updates on the Agency’s directives, regulatory activity, policies and procedure developments.

Director of Policy and Program Development, Tina Williams confirmed “the agency has been busy” and walked attendees through the policy developments and upcoming Agency initiatives.  Highlights of the presentation included:

  1. Announcement that OFCCP will not be extending the COVID-19 National Interest Exemption.  The Agency initiated the exemption in March 2020 in response to the COVID-19 pandemic.
  2.  Update that the Agency is in the process of developing Religious Exemption and Resolution Procedures final rules.  The recently final rule addressing TRICARE providers was also discussed.
  3. Discussion of focused reviews, including the Agency’s completed Section 503 focused reviews, upcoming VEVRAA reviews and development of promotion and religious accommodation focused reviews.  Ms. Williams explained OFCCP is in the process of developing landing pages for these latter types of focused reviews and acknowledged the promotion reviews “will be slightly tricky.”
  4. Acting Deputy Director of Policy, Christopher Seely provided a recap of the Directives OFCCP released in FY 2020
  5. OFCCP intends to continue its Town Hall programs with the introduction of virtual Town Halls on “yet to be determined topics” by the end of the calendar year
  6. The Agency is working on new recognition programs and initiatives, including Closure Letters with Distinction.
  7. Ms. Williams echoed Director Leen’s comments from the webseries Opening Remarks regarding support for the Indian and Native American Employment Rights Program (INAERP)
  8. The Agency is also working on finalizing scheduling letters and audit procedures for construction contractors.
  9. As a final point, the presentation touched on the Agency’s work on  publishing additional technical assistance guides, including a guide for Supply & Service contractors.

To conclude the webinar, Ombusman Marcus Stergio presented on the OFCCP’s Ombuds Service.  To date, the Ombuds Service has handled 85 referrals and is looking forward to handling more.

The NILG’s 2020 Virtual Conference continues in the coming weeks and we will be sure to keep you updated along the way.

Employers wondering whether Virginia is the new California just got their answer: California has some catching up to do.

In a split vote, the Virginia Safety and Health Codes Board (which includes author Courtney Malveaux) passed a first-in-the-nation standard to address COVID-19 in workplaces. Virginia Occupational Safety and Health (VOSH), the state’s version of the Occupational Safety and Health Administration (OSHA), now will enforce a standard that mandates — and in some instances exceeds — guidance issued by the U.S. Centers for Disease Control and Prevention (CDC) and OSHA. The new standard covers most private employers in Virginia, as well as all state and local employees.

In addition to CDC and OSHA guidelines, the standard includes provisions that require employers to:

  • Provide flexible sick leave policies, telework and staggered shifts when feasible;
  • Provide both handwashing stations and hand sanitizer when feasible;
  • Assess risk levels of employers and suppliers before entry;
  • Notify the Virginia Department of Health of positive COVID-19 tests;
  • Notify VOSH of three or more positive COVID-19 tests within a two-week period;
  • Assess hazard levels of all job tasks;
  • Provide COVID-19 training of all employees within 30 days (except for low-hazard places of employment);
  • Prepare infectious disease preparedness and response plans within 60 days;
  • Post or present agency-prepared COVID-19 information to all employees; and
  • Maintain air handling systems in accordance with manufacturers’ instructions and American National Standards Institute (ANSI) and American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) standards.

The standard protects employees who raise reasonable concerns about infection control to print, online, social or other media. It also requires building and facility owners to report positive COVID-19 tests to employer tenants. The standard exempts private and public institutions of higher education with re-opening plans certified by the State Council of Higher Education in Virginia (SCHEV) and public school divisions that submit re-opening plans to the Virginia Department of Education. No such exemptions are provided to private elementary and secondary schools.

The standard also implements provisions that echo CDC and OSHA guidance, including requirements to:

  • Place requirements on workplaces based on hazard levels (i.e., “very high,” “high,” “medium,” and “low”);
  • Screen employees prior to entry to work;
  • Establish requirements for employees with COVID-19 positive tests and symptoms before returning to work;
  • Require social distancing or, when social distancing is not possible, respiratory protection; and
  • Clean and disinfect commonly used areas and equipment.

The emergency standard will take effect upon publication at the end of July and is set to expire within six months or upon expiration of the Governor’s State of Emergency or the enactment of a permanent standard.

Virginia is a “State Plan” state that operates its own occupational safety and health program under an OSHA grant. There are twenty-seven other “State Plan” states that might also consider similar COVID-19 standards as well.

If you have questions or need assistance in an OSHA or VOSH matter, please reach out to a member of the Jackson Lewis Workplace Safety and Health Practice Group.

In an effort increase the use of the in-person or manual ballot method for conducting secret ballot elections, the National Labor Relations Board (NLRB or Board) General Counsel (GC) has issued comprehensive “suggestions” for conducting manual elections safely during the COVID-19 pandemic. Memorandum GC 20-10 “Suggested Manual Election Protocols” (July 6, 2020). These guidelines were developed in collaboration with NLRB Regional Directors (RDs) and others.

The NLRB conducts secret ballot elections among employees to determine whether they desire union representation. The RDs order the elections be held in-person or, where circumstances warrant, by mail balloting. The NLRB prefers manual balloting. Employers also prefer manual voting because it maximizes employee participation and minimizes the possibility of voting improprieties. (For an extensive discussion of manual ballot elections and concerns about mail balloting, see our article, Plan Ahead Employers: NLRB Ordering Mail Ballot Elections Because of COVID-19 Concerns.)

Concerns about conducting in-person elections safely during the COVID-19 pandemic has resulted in RDs ordering mail ballot elections in almost all recent cases. The RDs’ authority to do this is unchanged. The introduction to the protocols observes:

[RDs] will continue to make . . . decisions [about in what manner elections are conducted] on a case-by-case basis, considering numerous variables, including, but not limited to, the safety of Board agents and participants when conducting the election, the size of the proposed bargaining unit, the location of the election, the staff required to operate the election, and the status of pandemic outbreak in the election locality.

NLRB elections must be conducted in strict privacy, out-of-sight and earshot of all supervisors and union officials. The suggested protocols are extensive and add significant burdens on employers, particularly given the six-foot social distancing requirement. These suggestions include (but are not limited to):

  • –           A larger than usual voting area, spacious enough for social distancing between Board agents, voters, observers, and separate tables.
  • –           Plexiglass barriers between voters, agents, and observers.
  • –           Floor markings to enforce distancing and traffic flow, with separate entrances and exits for voters.
  • –           Consistent cleaning of the voting area according to established CDC hygiene and safety standards.
  • –           Inspecting the voting area by videoconference hours before the election.
  • –           Staggering voter releases from their assigned work to avoid overcrowding in the voting area.
  • –           Requiring that employers certify the number of individuals who have been in the facility in the preceding 14 days who have tested positive for COVID-19, or been told to assume they are positive, or are awaiting test results, or have symptoms or been in contact with someone who had tested positive in the previous 14 days. The certification must be provided between 24 and 48 hours before the election.
  • –           Requiring that every non-voter who will be in the voting room (observers, union and employer representatives, and employees witnessing the vote count) certify in advance that they meet the above standards.

RDs have the ultimate authority and discretion to decide how elections will be conducted and are not required to direct manual ballot elections despite the new protocols. Thus, the NLRB can ignore the protocols or establish substitute or additional protocols. The NLRB also may decide that all elections be conducted by mail ballot for the foreseeable future.

Please contact a Jackson Lewis attorney with any questions about this development or the NLRB.

In a surprise announcement, District Judge Allison D. Burroughs, U.S. District Court for the District of Massachusetts, announced a reversal of the government decision that was announced just last week regarding students in F-1 or M-1 nonimmigrant status. Foreign students will now be able to enter the United States and remain even if they are only taking online courses. The government agreed to resume the flexibility it had announced in March when COVID-19 forced most colleges and universities to go online.

On July 6, 2020, ICE sent higher education into chaos by announcing a last-minute change from that flexibility. Colleges and universities that had been working on re-opening plans for months were being asked either to turn on a dime and create new plans immediately that included in-person teaching or to forgo having foreign nationals on campus. This was not only disruptive to the schools; it also wreaked havoc on the lives of the students who had already made plans for the fall semester, including housing and travel. More significantly, the announcement dashed the dreams of many students and had the potential to harm the universities financially – possibly depriving them of needed tuition payments.  Some members of Congress writing to USCIS and DHS called the sudden change “cruel and unconscionable.” They noted that the over one million foreign nationals who attend universities across the country are important not only for the talent and diversity they bring, but also for the financial support that they give to the universities and to the economy. In one recent year, international students added close to $41 billion to the U.S. economy leading to the creation of 458,290 jobs.

The change in policy led to two suits in the United States District Court in Massachusetts – one filed by the two prominent universities that was joined by close to 200 other institutions, and another filed by the Attorney General of Massachusetts that was joined by the states of Colorado, Connecticut, Delaware, Illinois, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Wisconsin and the District of Columbia in a separate suit in the District of Massachusetts challenging the Administration’s order. Suits also had been filed by the California Attorney General on behalf of colleges and universities in that state.

It appears that the likelihood of a quick and decisive loss led the Administration to back down. For some time, it has been creating an unwelcoming atmosphere for foreign students. Perhaps this reversal of policy will help turn the tide.

Sacramento has passed the Sacramento Worker Protection, Health and Safety Act (Ordinance No. 2020-00260) which is effective as of July 15, 2020.

The ordinance requires all employers operating in the City of Sacramento to comply with certain specified safety practices and protocols, many of which are recommended by the California Department of Public Health and the Centers for Disease Control and Prevention (CDC), and requires larger employers to provide supplemental paid sick leave to employees for COVID-related reasons.

Required Safety Protocols

The ordinance requires that all Sacramento employers implement the following safety protocols:

  1. Daily cleaning and disinfection of high-touch areas in accordance with guidelines issued by the CDC.
  2. Maintaining cleaning protocols established by the employer for all work sites.
  3. Establishing protocols for action upon discovery that the worksite has been exposed to a person with a probable or confirmed case of COVID-19.
  4. Providing employees with access to regular handwashing with soap, hand sanitizer, and disinfectant wipes.
  5. Cleaning common areas, including break rooms, locker rooms, dining facilities, conference rooms, training rooms, and restrooms, both daily and between shifts.
  6. Providing face coverings for employees to wear at the worksite, mandating that employees wear the face coverings (except to the extent the employee can maintain proper physical distancing in accordance with guidance from the CDC); and establishing proper physical distancing protocols.
  7. Informing all employees, in writing, of the required protocols, both in English and in any other language spoken by at least 10 percent of employees.

The ordinance also provides that an employee may refuse to work if the employee reasonably believes that an employer is not complying with the required safety protocols.

Supplemental Paid Sick Leave

The ordinance also creates a supplemental paid sick leave requirement, similar to those passed by several cities in recent months.

Unlike the safety protocol requirements, this portion of the ordinance only applies to employers that have 500 or more employees nationally and are not covered by the federal Families First Coronavirus Response Act (FFCRA).

As with other similar local ordinances, the Sacramento’s ordinance provides 80 hours of paid time off for full-time employees; part-time employees receive paid time off  equal to their average number of hours worked over a two-week period. The supplemental paid sick leave is paid at the employee’s regular rate of pay, subject to caps on the amount that must be paid to an employee on a daily and aggregate basis.

Supplemental paid sick leave may be used for the following reasons:

  1. The employee is subject to quarantine or isolation by a federal, state, or local order or is caring for a family member who is subject to such an order.
  2. The employee is advised by a health care provider to self-quarantine due to COVID-19 or is caring for a family member who is so advised.
  3. The employee chooses to take off work because the employee is over 65 years of age or is considered vulnerable due to a compromised immune system.
  4. The employee is off work because the employer’s work location temporarily ceases operation due to a public health order or other public official’s recommendation.
  5. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
  6. The employee is caring for a minor child because of a school or daycare closure due to COVID-19.

The ordinance contains other requirements, which employers operating in Sacramento should ensure they are following.

The ordinance will remain in effect until December 31, 2020.

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.

A week after the NCAA Division III Membership Committee encouraged institutions to make the best decisions for their student-athletes’ “happiness, health and safety,” the Division’s Administrative Committee has provided some administrative relief for institutions should the ongoing impact of  COVID-19 affect 2020-21 seasons of athletic competition.

Two blanket waivers have been approved for all Division III sports:

  1. All student-athletes whose sports fail to complete more than 50% of their maximum contests/dates of competition due to COVID-19 will receive a season-of-competition waiver to ensure they can have an opportunity for four meaningful seasons of participation.
  2. Any student-athlete who is unable to participate due to COVID-19 or their team fails to complete more than 50% of their maximum contests/dates of competition due to COVID-19 and the student-athlete is otherwise eligible for the 2020-21 season is eligible for a two-semester/three-quarter extension of eligibility to extend their 10 semester/15 quarter eligibility clock and alleviate an institution’s need to file an additional extension of eligibility waiver if the student-athlete seeks to maintain full-time enrollment.

These waivers will eliminate eligibility concerns as institutions face competition decisions as the 2020-21 year progresses and alleviate the administrative burden should seasons need to be cancelled after they begin.

The waivers also permit student-athletes to make more informed enrollment decisions prior to the upcoming academic year.

For teams that complete more than 50% of their maximum contests/dates of competition, individual waivers may still be pursued on a case-by-case basis through the regular waiver process. Waivers typically require circumstances beyond a student-athlete’s control, hardship, or other extenuating circumstances. The extent to which other COIVD-19-related circumstances will satisfy these typical waiver requirements remains to be seen.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the NCAA in its ongoing response to COVID-19. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

While many counties around California moved into accelerated reopening, San Francisco County set its own pace. Though San Francisco has paused some reopening for now, as COVID-19 infection rates change, additional businesses will eventually be permitted to reopen.

San Francisco created detailed requirements for businesses, whether essential or otherwise, to follow during the pandemic. All businesses that are operating must have workers, including volunteers and contractors, self-evaluate their health on a daily basis before each shift. Some businesses are also required to ask COVID-19 screening questions of employees, contractors, and volunteers before starting work. The San Francisco Department of Public Health further encourages businesses and organizations to conduct health screening, even if not required to do so. Employers may use a variety of methods to conduct screening including the use of a physical handout, an automated phone call, or an online survey, but should ensure screening includes the Department’s required screening questions. Employers should also establish clear procedures for health screening activities, which identify who will conduct the screening, safety measures used during screening activities, methods for documenting health screening, and procedures the employer will follow if screening identifies an individual with COVID-19 symptoms or exposure. If documenting health screening activities, employers should be aware that the records could fall into the definition of an employee exposure record or medical record and be subject to thirty-year retention requirements in California Code of Regulations Title 8, Section 3204. The handout created by the city provides a list of questions for an employee to answer every day that they report to a worksite, and includes questions like, “Within the last 10 days have you been diagnosed with COVID-19 or had a test confirming you have the virus.” The same questions are also available on a website that employers may direct employees to. Notably, the San Francisco Department of Public Health is discouraging the use of temperature checks as part of an employer’s health screening procedures and indicates that measuring temperatures should only be used in “special circumstances in very specific settings where measuring temperatures is required.”

As asking employees about their symptoms and exposure to COVID-19 does not replace other safety measures,  in addition to these health checks, San Francisco employers must also prepare a social distancing protocol. The employer’s social distancing protocol should clarify how employees may maintain a physical distance of 6 feet or more throughout the day, alternative safety measures if social distancing is not feasible, and protective measures to prevent unnecessary contact. All employees should be trained on the protocol and a copy of the protocol should be posted on-site someplace that employees will see it.

Similar to the general State requirements for businesses that are operating, San Francisco businesses must take precautions to protect employee health including:

  • Making sure that employees do not come to work sick.
  • Ensure desks and work areas are at least 6 feet apart.
  • Clean break rooms, bathrooms, and other common areas frequently.
  • Do not let employees use shared equipment like microwaves, water coolers, or drinking fountains.
  • Make cleaning supplies, hand sanitizer, tissues, and soap and water easily available.

As is now mandated across the state, San Francisco employers must require everyone to wear a face covering and encourage good hygiene practices.

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.

Foreign nationals with approved permanent residence applications but no actual permanent resident card (known as Green Cards) are not the only ones dealing with the printing back-up at USCIS. After deciding to bring the printing of Green Cards and all other employment authorization documents in-house, USCIS is not able to keep up with the demand. It reportedly has a backlog of 75,000 other employment authorization documents (EADs) in addition to a backlog of 50,000 Green Cards.

Green Card holders are required by law to carry evidence of their permanent residency status. For most, this means carrying their unexpired residency cards. Green card holders who are changing jobs also may choose to use the unexpired residency card to prove that they have employment authorization and complete Form I-9 employment verification documents. The delayed card production creates harm in both of these situations. The EAD card production delays create further chaos and harm to these workers. Not only must a foreign national working on an EAD present a valid card to start new employment, but the card itself, generally valid for only one or two years, needs to be renewed and presented for reverification to allow the foreign national to continue working. Work interruptions caused by the lack of card production at USCIS unfairly harm both the employee and the employer.

Certain foreign nationals with EADs (such as refugees), those whose cards are based on adjustment of status applications, and students filing for STEM OPT EADs may continue working for up to 180 days with an expired EAD if their renewal application was submitted prior to the expiration date of their current card. But foreign nationals who are dependents of L-1 and J-1 visa holders and DACA recipients who are working on EADs have no such “grace period.” These days, even that six-month grace period may not be enough if card production stops or is delayed further.

The inability of the government to do its job leads to extreme consequences. Employees are not able to start or continue jobs — putting their families at serious risk. It also undermines employers who cannot hire essential workers and end up having to put continuing projects at risk. Given USCIS’ self-inflicted printing problem, perhaps it is time the Department of Homeland Security (DHS) prioritizes printing, come up with an interim card solution, or at the very least, create new and longer “grace periods” based upon timely filing of EAD applications.

Please reach out to your Jackson Lewis attorney for strategies on how to deal with the current backlog.

 

On July 13, 2020, the State of California announced that, due to the surge in COVID-19 cases and hospitalizations, the following industries must close indoor operations on a statewide basis:

  • Restaurants
  • Wineries and tasting rooms
  • Movie theaters
  • Family entertainment centers
  • Zoos and museums
  • Cardrooms

Bars, breweries, and pubs are required to close all operations (indoor and outdoor).

In addition to these statewide closures, Governor Newsom ordered the closure of indoor operations for select businesses across 30 counties that have been on the County Monitoring List for three or more consecutive days. This order applies to the following sectors and events:

  • Gyms and fitness centers
  • Places of worship
  • Offices for non-critical infrastructure sectors
  • Personal care services (including nail salons, massage parlors, and tattoo parlors)
  • Hair salons and barbershops
  • Malls and shopping centers
  • Indoor protests

According to the California Department of Public Health, all industry and sector guidance documents that have been issued to date, including all infectious control measures such as the use of face coverings, will apply to outdoor settings and must be adhered to.

Outdoor operations may be conducted under a tent, canopy, or another sun shelter, so long as no more than one side is closed to allow for sufficient air movement.

These closures will remain in effect until further notice.

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.

Under the Transportation Security Administration’s (TSA) new “Stay Healthy. Stay Secure.” Campaign, screening procedures are being changed to allow for more social distancing and to limit physical contact while still maintaining needed security procedures during the summer travel season.

In mid-April, due to COVID-19, TSA recorded its lowest travel volume ever: approximately 87,500 travelers per day. Although TSA anticipates a higher volume of travelers during the summer, it does not expect anywhere close to its daily average of 2.5 million travelers screened in recent years. At the same time, more than 1,000 TSA employees, mostly screeners, have tested positive for COVID-19.

Changes to expect at airports nationwide include the following:

  • Social distancing (six feet) among travelers in lines and among TSA officers
  • ID verification without physical contact between the traveler and the TSA officer (g., asked to hold up ID or place it on the screening device)
  • Plastic shielding in various locations
  • Increased cleaning and disinfecting of frequently touched surfaces including bins and screening equipment
  • TSA officers will be wearing masks and gloves and, perhaps, face shields
  • At the traveler’s request, TSA officers will use a new pair of gloves for a pat-down
  • Travelers can bring up to 12 ounces per passenger of hand sanitizer in carry-on bags, but the sanitizer must be removed from the carry-on for screening

TSA recommends that travelers allow additional time to get through screening. Travelers also are advised to:

  • Practice good hygiene by washing your hands before and after screening
  • Wear a facemask during screening (although you may be asked to remove it for identification purposes)
  • Remove belts and personal items from your pockets and place them in your carry-on before getting into the security queue
  • After screening, move out of the screening area to “re-pack”

Because some airlines have specific rules, TSA recommends checking with your airline regarding any COVID-19 rules or guidance.

As to travel destinations, it is important to check with your airline, the Department of State, and the state or country to which you are traveling to determine whether there are travel advisories, travel restrictions, or quarantines in place. As of July 1, 2020, the European Union has reopened its members’ borders to select countries – but not to United States residents (although there are exemptions). The list will be reviewed bi-weekly and countries will be added or deleted based upon their handling of the epidemiological situation, containment measures, and reciprocity.

If you have questions about travel restrictions, Jackson Lewis attorneys are available to assist you.