The New York District Office of the Equal Employment Opportunity Commission recently commented that it had received an increasing number of charges relating to the COVID-19 pandemic, all of which alleged violations of the reasonable accommodation mandate of the Americans with Disabilities Act (ADA).  While the number of filings was not disclosed, the New York State Division of Human Rights and the City Commission also indicated a growing number of such complaints, many alleging refusal to recall workers with disabilities due to health and exposure. As States around the country re-open their economies, compliance efforts should focus upon the anti-discrimination and accommodation provisions of the ADA and similar non-federal statutes.

Late last week, the Occupational Safety and Health Administration (“OSHA”) issued new guidance for employers that are reopening their businesses and returning employees to work. Intended as a supplement to the agency’s earlier Guidance on Preparing Workplaces for COVID-19, this guidance does not offer any new recommended practices or strategies for minimizing and preventing the spread of coronavirus (“COVID-19”). Instead, this guidance provides examples for how employers can incorporate recommended practices for COVID-19 control and prevention into reopening and return to work strategies, with continued focus on infectious disease control and prevention (e.g., hand hygiene; cleaning and disinfection), social distancing, workplace controls and flexibilities (e.g., methods for identifying sick individuals and removing them from the workplace), and employee training.

Under OSHA’s guidance, employers are at a minimum expected to ensure the following:

  • Hazard Assessment: Risks of exposure to COVID-19 in the workplace are addressed through completion of a documented hazard assessment and implementation of corresponding controls, such as engineering controls (e.g., physical barriers), administrative controls (e.g., staggered shifts, health screening, workplace policies), and, when applicable, use of personal protective equipment (“PPE”).
  • Use of Preventive Controls: Risks of exposure to COVID-19 and spread of the disease are prevented and minimized through good hygiene (e.g., hand hygiene, respiratory etiquette, and protocols around cleaning and disinfection), social distancing, and immediate identification and removal of sick individuals from the workplace.
  • Policies and Procedures: Effective policies and procedures are in place to minimize employees’ exposure risks, such as procedures for prompt injury and illness reporting, remote work, sick leave, and workplace flexibility.
  • Employee Training: Employees are trained on potential workplace exposures to COVID-19 and how to prevent the spread of COVID-19 at work, including risks of exposure to COVID-19, the employer’s COVID-19 related policies and procedures, and safe work practices (e.g., use of cloth face coverings, good hygiene practices, and cleaning and disinfection measures).

OSHA’s new guidance also broadly addresses health screening, temperature checks, COVID-19 testing, and use of PPE. More specifically, OSHA’s guidance conveys that OSHA’s standards and regulations generally permit employers to conduct health screening measures, such as questionnaires, temperature checks, and COVID-19 testing to prevent sick people from entering the workplace. In doing so, however, OSHA instructs employers to ensure compliance with guidance from the Centers for Disease Control and Prevention (“CDC”) and U.S. Equal Employment Opportunity Commission (“EEOC”), along with applicable state and local laws. Employers will also need to ensure effective controls are in place to prevent COVID-19 exposures while conducting employee screening through use of effective social distancing or PPE as appropriate and may need to comply with additional OSHA standards and regulations. For example, on-site screening of employees and corresponding documentation of screening results may incur compliance obligations under OSHA’s PPE and medical records standards.

No matter how employers plan to address COVID-19 risks within the workplace, OSHA’s guidance reminds employers that they need to be aware of evolving guidance from the CDC and location specific circumstances. Further, OSHA’s guidance re-emphasizes to employers that employees have a right to raise workplace safety and health concerns without fear of retaliation, which includes a right to raise concerns over the employer’s COVID-19 policies and procedures.

Jackson Lewis attorneys and the dedicated COVID-19 Task Force are available to assist employers with workplace health matters and to answer any questions.

On June 18th the California Department of Public Health issued guidance broadly mandating that individuals in California wear face coverings in most circumstances.  This new state guidance follows face-covering mandates previously issued by many California cities and counties.

The state guidance specifies that individuals engaged in work whether at the workplace or offsite must wear face coverings when:

  1. Interacting with any member of the public in-person,
  2. Working in a space visited by the public, even if no member of the public is present,
  3. Working in a space where food is prepared or packaged for sale or distribution,
  4. Working in or walking through common areas of a business, or
  5. When driving or operating public transportation, including private car service.

The new guidance provides several exemptions from its requirements.  For example, individuals who have a medical condition that prevents them from wearing face-covering or if wearing one would create a risk to the person related to their work.  Individuals exempted from wearing a face-covering due to a medical condition who are employed in a job with regular contact with others should wear a non-restrictive alternative, such as a face shield with a drape on the bottom, as their condition permits.

The State encourages employers to review industry-specific guidance available regarding the wearing of face coverings and masks.

The State also indicates surgical masks (manufactured paper masks) should be reserved for medical personnel, as well as workers in manufacturing, food processing, community/social services, social work, in-home daycare, law enforcement/public safety, and schools. Workers using surgical masks should start every day with a new mask. The guidance states employees in such industries should be provided surgical masks at work.

N95 masks, masks that as a respirator that blocks particles, are also reserved for medical personnel and other industries where they are required. As with surgical masks, the guidance states N95 masks should be provided by employers in industries where they are required.

California employers should also check city and county orders where they operate to determine if additional requirements apply to their industry.

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.

The Department of Homeland Security (DHS) once again is extending its flexibility regarding the physical presence requirements for I-9 inspection for another 30 days until July 19, 2020, 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 provide written documentation of their remote onboarding and telework policy for each covered employee.

The eligibility requirements are unchanged, applicable to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no flexibility is implemented. ICE has said, however, that DHS will evaluate on a case-by-case basis situations where existing or newly hired employees are subject to COVID-19 quarantine or lockdown protocols. 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.

Previously, employers that were served notices of inspection (NOIs) during the month of March 2020 (and had not yet responded) were granted an automatic 60-day extension from the effective date to respond. ICE is now granting an additional 30-day extension, but notes that this will be the final extension.

DHS will continue to monitor the COVID-19 national emergency and provide updates as needed. Employers should monitor the DHS and ICE websites for updates regarding extensions and the termination of those extension.

Jackson Lewis attorneys will provide updates as they become available.

Reportedly, USCIS will soon announce the temporary furlough of the majority of its employees – 15,000 employees, or three-fourths of its workforce.

The furloughs will begin in August 2020 if the agency does not receive additional fiscal support.

While being called temporary, the head of the American Federation of Government Employees is concerned the reduction-in-force may become permanent and result in a USCIS “brain drain.” In recent months, USCIS has experienced a dramatic decline in revenue because fewer immigrant and non-immigrant petitions are being filed due to the COVID-19 pandemic, related travel restrictions, the uptick in Requests for Evidence (RFEs) on filed petitions, and recent Administration restrictions on legal immigration.

The agency has asked the Administration and Congress for relief: a $1.2 billion loan and an average 21% increase in fees to shore up their budget shortfall. [

As of now, neither has been instituted. USCIS had partly re-instituted premium processing, which collects an additional $1,440 fee per case. However, this apparently will not help enough.

Because USCIS is self-funded, any decrease in filed petitions and applications directly reduces its revenues. In FY 2018, there was a 17% decrease in petitions filed. Despite this, delays and backlogs continue to grow. Much of this is attributed to the same “extreme vetting” that may be continuing to reduce the number of cases filed, including more focus on small technical errors, the complex new public charge rule, and more RFEs. Beyond that, a hiring freeze has been in effect since February 2020 on most positions other than asylum staff, who are there to push cases through the process.

Jackson Lewis attorneys will continue to provide updates as the negotiations continue.

 

Requirements for recording and reporting of occupational injuries and illnesses are unique in California, with the state having more stringent obligations than federal Occupational Safety and Health Administration (“OSHA”) around both reporting of “serious injuries” and what constitutes a work-related injury or illness. To complicate the matter further for California employers, the State of California Department of Industrial Relations’ Division of Occupational Safety and Health (“Cal OSHA”) recently issued guidance on recording and reporting of coronavirus (“COVID-19”) cases, which differs from guidance issued by federal OSHA.

Please find the full article on the Jackson Lewis OSHA Blog.

Requirements for recording and reporting of occupational injuries and illnesses are unique in California, with the state having more stringent obligations than federal Occupational Safety and Health Administration (“OSHA”) around both reporting of “serious injuries” and what constitutes a work-related injury or illness. To complicate the matter further for California employers, the State of California Department of Industrial Relations’ Division of Occupational Safety and Health (“Cal OSHA”) recently issued guidance on recording and reporting of coronavirus (“COVID-19”) cases, which differs from guidance issued by federal OSHA.

Much like federal OSHA’s guidance on COVID-19 recording and reporting, Cal OSHA’s guidance contends that employers need to assess COVID-19 cases for work-relatedness and record them on the company’s log (i.e., 300, 300A and 301 or equivalent forms) when the COVID-19 case satisfies recording criteria by leading to death, lost time, medical treatment beyond first aid, or loss of consciousness. Under Cal OSHA’s guidance, employers may also need to report the COVID-19 case when work-related and results in the employee’s death or hospitalization. But, unlike federal OSHA requirements, Cal OSHA’s guidance makes clear that employers may also need to record a COVID-19 case, and potentially report, if it causes a “significant injury or illness” as diagnosed by a licensed medical or healthcare professional. In addition, any work-related COVID-19 case that results in a fatality or hospitalization needs to be reported, regardless of how long has passed from the possible exposure event due to differences in Cal OSHA’s requirements for reporting.

Some other significant differences in Cal OSHA’s guidance around recording and reporting of COVID-19 cases include the following:

  • Confirmed COVID-19 Case: Cal OSHA like federal OSHA considers a positive COVID-19 test to provide confirmation of COVID-19 infection. Yet unlike federal OSHA, Cal OSHA’s guidance conveys that there may be circumstances where an employer must record or report a COVID-19 case without a test result confirming the presence of COVID-19. Cal OSHA also takes the position that in some cases recording and reporting obligations will apply to a suspected COVID-19 case and some employee illnesses which have yet to be diagnosed as COVID-19.
  • Sickness at Work: Because of Cal OSHA’s more stringent requirements for reporting of a “serious injury or illness,” Cal OSHA’s guidance contends that employers need to report a case when an employee becomes sick at work if it constitutes a “serious injury or illness” without regard for whether it is work-related. Under this guidance, California employers may have an obligation to report a COVID-19 case to the agency, even if it is ultimately determined not to be work-related.
  • Workers Compensation Considerations: In direct response to California Governor Newsom’s order on workers compensation eligibility for essential workers that contract COVID-19, Cal OSHA’s guidance advises employers that the work-related determination for recording and reporting obligations under Cal OSHA regulations remains separate from the determination for workers compensation eligibility.

While in the end, both federal OSHA and Cal OSHA agree that COVID-19 cases will be recordable and reportable in some cases employers in California need to be diligent in assessing instances of COVID-19 to ensure they comply with California’s more stringent recording and reporting obligations.

Jackson Lewis attorneys and the dedicated COVID-19 Task Force are available to assist employers with workplace health matters and to answer any questions.

 

The ongoing COVID-19 pandemic is requiring athletic departments at all NCAA levels to plan for their fall 2020 athletic schedules while taking all necessary steps to keep their athletes safe. In addition to requiring its returning football players to submit to a COVID-19 test, Ohio State University has asked all the players on their football roster, and their parents, to execute an acknowledgment of risk waiver regarding the COVID-19 pandemic before being allowed to return to campus for voluntary summer workouts.

The “Buckeye Pledge” document specifically requests that players take personal responsibility for their own health and “help stop the spread of COVID-19.” It asks players to acknowledge and accept, “I may be exposed to COVID-19 and other infections.”

The two-page pledge, which every Buckeye football player has signed, requires players to agree to testing and potential self-quarantining, monitoring for coronavirus symptoms, including reporting a fever of 100.4 or higher, reporting any potential exposure in a timely manner, and practicing and following Centers for Disease Control and Prevention (CDC) guidelines, including the wearing of masks and practicing social distancing.

Although failure to comply with the agreed upon terms in the Buckeye Pledge will not affect any individual student-athlete’s scholarship, it may lead to “the immediate removal of athletic participation privileges” and the potential loss of access and use of athletic facilities for the athlete.

Ohio State Athletic Director Gene Smith explained that the Buckeye Pledge allows coaches, trainers, strength coaches, and athletic administrators to remind student-athletes of the commitment that each of them and their parents has made to the University and their teammates if they are observed not wearing a mask or utilizing proper social distancing.

Although Smith explained that the University “does not view the pledge as a legal document,” the Buckeye Pledge contains specific waiver language.

It reinforces that athletes and their parents:

“understand COVID-19 is a highly contagious virus and it is possible to develop and contract the COVID-19 disease, even if I follow all of the safety precautions above and those recommended by the CDC, local health department, and others. I understand that although the university is following the coronavirus guidelines issued by the CDC and other experts to reduce the spread of infection, I can never be completely shielded from all risk of illness caused by COVID-19 or other infections.”

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the COVID-19 pandemic’s effect on collegiate and professional sports. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

IRS Notice 2020-46 addresses the tax treatment of employees who elect to have their employers donate sick, vacation or personal leave as cash payments to charitable organizations that provide relief to victims of the COVID-19 pandemic.

The Notice provides that the donated leave should be not be treated as W-2 wages to the donating employees.  The donated leave should not be included in Box 1 [wages subject to income tax], Box 3 [wages subject to Social Security tax] or Box 5 [wages subject to Medicare tax] of the Form W-2.  But employees may not claim a charitable contribution deduction for the value of the donated leave.

The Notice also provides that an employer making the cash payments of the donated leave to a charitable organization may either claim a charitable contribution deduction for the payments or a compensation deduction.

The tax treatment provided by the Notice is essentially identical to prior IRS guidance regarding leave-based donations made regarding Hurricane Harvey and Tropical Storm Harvey, Hurricane Irma and Tropical Storm Irma, and the Ebola Virus.

Please contact a team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

Additional restrictions on entry into the U.S. may be expected soon. Initial indications are that the Administration is considering barring H-1B, H-2B, L-1, and J-1 status among other non-immigrant visa categories.

On April 22, 2020, President Donald Trump issued the “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following COVID-19 Outbreak.”

Business and advocacy groups continue to argue that these measures will harm, rather than help, the economy. Like all of the other COVID-related restrictions, indications are that there will be a number of exceptions, including exceptions for healthcare workers and those involved in the food supply chain. However, it is unclear how the exceptions would be implemented.

Jackson Lewis attorneys will continue to follow this issue and provide updates as soon as they become available. In the meantime, if you have employees who are abroad with currently valid non-immigrant visas, consider bringing them back to the United States sooner rather than later. Please contact a Jackson Lewis attorney with any questions.