Coronavirus – Law and the Workplace Fri, 27 Nov 2020 20:12:38 +0000 en-US hourly 1 https://wordpress.org/?v=5.5.3&lxb_maple_bar_source=lxb_maple_bar_source New York Court Dismisses Amazon Workers’ COVID-19 Health and Safety Claims /2020/11/new-york-court-dismisses-amazon-workers-covid-19-health-and-safety-claims/ Mon, 09 Nov 2020 15:22:29 +0000 /?p=6273 Continue Reading]]> *** UPDATE: On November 24, 2020, the Plaintiffs in Palmer, et al. v. Amazon.Com, Inc., et al. filed a notice of appeal. The Plaintiffs appealed Judge Cogan’s order dismissing the case to the Second Circuit. We will continue to monitor this case and provide updates. ***

On November 2, 2020, the Eastern District of New York issued a notable decision regarding an employer’s compliance with federal and state public health law during the COVID-19 pandemic. This is not the only case of its kind during the pandemic, and we certainly don’t expect that it will be the last as employers should be prepared to defend claims that they did not follow the governing health protocols or otherwise ensure the health and safety of their employees.

Relevant Background

In Palmer, et al. v. Amazon.Com, Inc., et al., case number 20-cv-2468 (E.D.N.Y. 2020), employees working at an Amazon fulfillment center on Staten Island, New York, and members of their households, brought claims against the online retailer. The plaintiffs asserted Amazon’s actions constituted a public nuisance and it failed to provide a safe workplace under federal and New York COVID-19-workplace guidance. The plaintiffs also alleged that the employer failed to timely pay New York State COVID-19 sick leave.

Against the background of the COVID-19 pandemic, the court noted the CDC’s recommendations that employers (i) take steps to reduce transmission of the virus at the workplace, (ii) develop flexible leave policies, and (iii) reduce face-to-face contact between employees.  Likewise, New York State guidance requires employers to, among other things, operate at reduced capacity, stagger shifts and tasks to minimize congestion, and conduct regular cleaning. The New York State COVID-19 Paid Sick Leave Law also requires large employers like Amazon to provide at least two weeks of paid sick leave to employees subject to a COVID-19 quarantine order.

In this case, plaintiffs argued “Amazon’s productivity requirements prevent[ed] employees from engaging in basic hygiene, sanitization, and social distancing[,]” causing employees to skip hand washing, skip sanitizing workplaces, and operate in a way that prevented social distancing in the facility. Plaintiffs further claimed the air conditioning at the facility was only available in certain areas, preventing proper social distancing, and Amazon’s employee contact tracing was inadequate.

Plaintiffs also argued Amazon did not apply the New York COVID-19 leave law appropriately by failing to clearly communicate the availability of leave and promptly pay employees who took leave. Further, they argued Amazon’s existing leave policies were inadequate and did not encourage employees to take leave if they experienced symptoms of COVID-19.

The Court’s Decision

The court dismissed the plaintiffs’ public nuisance and breach of duty to provide a safe workplace claims, finding that the primary-jurisdiction doctrine applied. This doctrine allows courts to defer ruling on matters that should be left to the discretion of an appropriate administrative agency to decide. Here, the court explained that the federal Occupational Safety and Health Administration (OSHA) is specifically charged with regulating health and safety in the workplace, and has broad discretion to enforce the Occupational Safety and Health Act. According to the court, “the central issue in this case is whether Amazon’s workplace policies at [the fulfillment center] adequately protect the safety of its workers during the COVID-19 pandemic.” In that regard, the court found OSHA is the proper actor “to strike a balance between maintaining some level of operations in conjunction with some level of protective measures” because it has the expertise and discretion to analyze whether Amazon’s employment practices created an unsafe workplace or otherwise complied with applicable guidance.

The court further noted that even if the primary-jurisdiction doctrine did not apply, the plaintiffs’ public nuisance claim would fail because the claim requires plaintiffs’ injury be different in kind from any injury suffered by the public. Here, the plaintiffs’ alleged injuries – that is, increased risk of contracting COVID-19 and related fear of the same – is a risk common to the public and importantly, the public cannot avoid contracting COVID-19 simply by avoiding the fulfillment center or its employees.

With regard to the plaintiffs’ breach of duty to provide a safe workplace claim brought under the New York Labor Law, the court found this claim to be essentially a negligence claim. The court found to the extent the claim was based on a past harm, that plaintiffs’ safe workplace claim was barred by New York State’s Workers’ Compensation Law, which bars employees from bringing negligence claims against employers arising from workplace injuries or illnesses. To the extent the claim was based on the threat of future harm, it failed because negligence claims cannot be brought for potential future harm that has not yet occurred.

Finally, the court dismissed the plaintiffs’ claims that Amazon failed to pay COVID-19 sick leave, finding that COVID-19 leave pay is not ‘wages’ for purposes of the New York Labor Law’s pay requirements. Despite the New York State Department of Labor’s (NYDOL) COVID-19 “Frequently Asked Questions” webpage stating that COVID-19 paid sick leave is subject to the State’s frequency of pay requirements, and the court’s recognition that an agency’s consistent and long-standing interpretation of a law it administers is entitled to deference, the court found the NYDOL’s position was in fact not entitled to deference. Specifically, the court found that the Department’s stance conflicted with prior guidance stating that paid sick time is generally not a benefit for which the Labor Law imposes a prescribed method of payment.

Takeaways

The court’s ruling is notable for many reasons, including insofar as it recognizes that determining whether an employer complied with workplace safety standards is best left to OSHA, the federal agency that is suited to analyzing such issues. The case is also a reminder that New York’s Workers’ Compensation Law provides a strong defense to claims of workplace injuries that were allegedly the result of an employer’s negligence, including when it comes to implementing the health and safety requirements that employers must follow during the COVID-19 pandemic. Of course we will continue to monitor this case, and others like it, and report on any noteworthy developments.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

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New Jersey Governor Issues Executive Order Addressing COVID-19 Health and Safety Requirements for Employers /2020/10/new-jersey-governor-issues-executive-order-addressing-covid-19-health-and-safety-requirements-for-employers/ Fri, 30 Oct 2020 20:02:57 +0000 /?p=6256 Continue Reading]]> On October 28, New Jersey Governor Phil Murphy issued an Executive Order addressing health and safety requirements for New Jersey employers that require or permit their workers to be physically present in the office. The Order supplements other guidance that was previously issued for certain industries – including retail, gyms and fitness centers, and child care.

Below is a brief summary of what New Jersey employers need to know about the Order.

Minimum Health and Safety Protocols.

Beginning on Thursday, November 5, all employers that require or permit their workers to be physically present in the office to perform work must, at minimum, abide by the following requirements:

  • Physical Distancing – Employers must require that individuals maintain at least six feet of distance from one another to the maximum extent possible, including but not limited to during meetings, in common areas such as restrooms and breakrooms, and when individuals are entering and exiting the workplace. If the nature of the work does not allow six feet of distance to be maintained, employers must ensure that employees wear face coverings and install physical barriers whenever possible.
  • Face Coverings – Employers must require employees, visitors, and customers two years of age and older to wear face coverings, except when: (1) employees are at their workstations and are more than six feet apart from other individuals, (2) individuals are alone in a walled office, or (3) doing so is impracticable due to the nature of the business. Employers must provide face coverings at no cost to employees. The Order also requires that employers provide reasonable accommodations to employees, customers, and visitors who cannot wear a mask because of a disability.
  • Sanitation Materials – Employers must provide sanitation materials – such as hand sanitizer that contains at least 60% alcohol and sanitizing wipes that are approved by the EPA for COVID-19 – at no cost to employees, customers, and visitors.
  • Hand Hygiene – Employers must ensure that employees practice regular hand hygiene and provide employees with: (1) break times for repeated handwashing throughout the workday, and (2) access to adequate hand washing facilities.
  • Cleaning – Employers must clean and disinfect all high-touch areas in accordance with DOH and CDC guidelines.
  • Daily Health Checks – Prior to each shift, employers must conduct daily health checks of employees, such as temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires. The Order does not explicitly require health checks for customers and visitors.
  • COVID-19 Cases in the Workplace – Employers must immediately separate and send 凯发国际版home employees who appear to have symptoms consistent with COVID-19. Employers must also: (1) promptly notify all employees of any known exposure to COVID-19 at the worksite in accordance with the confidentiality requirements under Americans with Disabilities Act and other applicable law, and (2) clean and disinfect the worksite in accordance with CDC guidelines.

Penalties for Noncompliance.

The Order izes the Commissioner of the Department of Labor and Workforce Development to establish a mechanism to receive and investigate complaints of noncompliance with the Order. Penalties for violations include imprisonment for up to six months, a fine of up to $1,000, or both. The Order also empowers the Commissioner to order businesses to close in the event of noncompliance.

Despite these potential penalties, the Order contains a couple of protections for employers. First, employers must be provided with an opportunity to correct alleged or confirmed violations. The Order also expressly states that it does not create a private right of action by employees for violation of the Order.

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The Order izes the Department of Health to impose additional health and safety standards relevant to COVID-19 on employers. Proskauer’s team is closely monitoring guidance related to the COVID-19 pandemic and will continue to provide updates as they become available.

Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

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[Podcast]: Recent Developments on California’s COVID-19 Supplemental Paid Sick Leave Law /2020/10/podcast-recent-developments-on-californias-covid-19-supplemental-paid-sick-leave-law/ Thu, 08 Oct 2020 18:29:08 +0000 /?p=6236 Continue Reading]]>

In this episode of The Proskauer Brief, partner Harris Mufson and associate Phil Lebel discuss recent legal developments in California, specifically a new supplemental paid sick leave law and coronavirus (COVID-19) exposure notification requirements. Tune in as we discuss steps employers can take to ensure compliance with these new requirements.

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Harris Mufson: Welcome to The Proskauer Brief: Hot Topics in Labor and Employment Law. I’m Harris Mufson and on today’s episode I’m joined by Phil Label and we are going to discuss recent legal developments in California, specifically with respect to supplemental paid sick leave and COVID exposure notification requirements. Phil, why don’t we start with the supplemental case paid sick leave that was recently enacted in California. Can you describe that new law for our listeners?

Phil Lebel: Sure, a couple of weeks ago Gavin Newsom signed a law that added a new section to the Labor Code Section 248.1, that established supplemental paid COVID-19 sick leave.  Previously, several local jurisdictions in California including Los Angeles, San Francisco, and San Jose had enacted their own supplemental COVID-19 leave laws and this was designed to encompass the entire workforce in the state and address those employees who were not covered by the federal Families First Coronavirus response act.  The new law provides leave for employees who are unable to work for one of the following three reasons. So one, the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19, the employee is advised by a healthcare provider or others treated to self-quarantine or self-isolate due to concerns related to COVID-19 or the employee prohibited working by the employer due to health concerns related to the potential transmission of COVID-19. Notably the law only provides leave for employees who are required to physically go into work to do their job and not people who only work at 凯发国际版home or remotely during this period. That’s not necessarily the case with some of the local supplemental COVID-19 laws.

Harris Mufson: In terms of this leave coinciding with other paid leaves, like for example, leave under the Families First Coronavirus Response Act or other leaves under applicable state or local laws, can you describe how this leave fits into that group?

Phil Lebel: The supplemental COVID-19 leave law that’s provided in Labor Code Section 248.1 is designed to cover only those employees who are not covered by the federal Families First Coronavirus Response Act leave extension. It only covers employers that have 500 or more employees and who are therefore not covered by federal Law. That’s the same with all of the local ordinances that have established supplemental COVID-19 leave. So it’s really meant to work as a stop gap to provide leave where there was none before.

Harris Mufson: Got it. I believe it’s also a hosting requirement, can you speak a little more about that?

Phil Lebel: Correct, the labor commissioner created a poster that is supposed to be posted in places where employees congregate at work, in the event when employees are not congregating anywhere either because they are primarily working remotely or for whatever other reason the law provides that the poster can be distributed to employees electronically.  The poster is available on the labor commissioner’s website and there are several translations that are available.  In addition, there is language in Labor Code Section 248.1 that requires employers to provide leave balance information to employees who are eligible for this type of leave.

Harris Mufson: Let’s shift now to the other law that was recently passed in California that contains certain notification requirements for employees who test positive for the coronavirus. Phil, can you walk our listeners through that new legal requirement in California?

Phil Lebel: Governor Newsom recently signed AB 865 which, among other things, added section 6409.6 to the California Labor Code. That law requires that employers take a number of steps within one business day of notice of a potential exposure to COVID-19 in the workplace. So first, the employer has to provide written notice to all employees and employers of sub-contracted employees who were on the premises at the same worksite as the infected or potentially infected individual, that they may have been exposed to COVID-19. The law also requires that the employer provide the same written notice to a union, if any exists. The notice also has to provide all potentially exposed employees in any union with information regarding COVID-19 related benefits, as well as the anti‑retaliation and anti-discrimination protections under California Law, and notify all of those individuals of the employers disinfection and safety plan that the employer will implement in the wake of the potential exposure to COVID-19 in the workplace. Section 6409.6 also requires when an employer learns of a certain number of cases that meet the State Department of Public Health definition of a COVID-19 outbreak, that the employer, within 48 hours, notify the local public health agency of the names, number, occupations, and the worksites for employees that were infected or diagnosed with COVID‑19.

Harris Mufson: Phil, when does this new notification law take effect?

Phil Lebel: The law takes effect January 1, 2021. So employers have some time to get their safety plans together and they should follow local, state, and CDC guidelines regarding disinfection and safety plans.

Harris Mufson: Certainly interesting developments in California and thanks Phil for providing that to our listeners. And thank you for joining us on The Proskauer Brief today. Stay tuned for more insights on the latest hot topics in labor and employment law and be sure to follow us on Apple Podcasts, Spotify, and Google Play.

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DCFMLA COVID-19 Leave Extended through October 9, 2020 /2020/09/dcfmla-covid-19-leave-extended-through-october-9-2020/ Wed, 23 Sep 2020 15:45:47 +0000 /?p=6207 Continue Reading]]> Quick Hit:  The temporary expansion of the DC Family and Medical Leave Act to provide D.C. employees up to 16 weeks of unpaid, job-protected “COVID-19 leave” has been extended through October 9, 2020.   The D.C. Office of Human Rights has published an updated notice reflecting the extended effective date, which employers “must post and maintain… in a conspicuous place and transmit it to employees working remotely.”  Note that should the Mayor extend the declared COVID-19 public health emergency beyond October 9, 2020, this leave expansion will likely be extended again.

More Detail: As we previously reported, the D.C. COVID-19 Support Emergency Amendment Act and the Coronavirus Support Clarification Emergency Amendment Act of 2020 (collectively, the “CSEA”) allow employees in the District to temporarily take unpaid, COVID-19 leave under an amendment to the D.C. Family and Medical Leave Act (“DCFMLA”).  The expansion of the law allows employees in the District who have worked for 30 days for an employer of any size to take up to 16-weeks of COVID-19 leave “if the employee is unable to work due to:

  • A recommendation from a healthcare provider to quarantine or isolate, including because the employee or an employee’s household member is high risk for serious illness from COVID-19;
  • A need to care for a family member or a member or an individual with whom the employee shares a household who is under a government or health care provider’s order to quarantine or isolate; or
  • A need to care for a child whose school or place of care is closed or whose childcare provider is unavailable to the employee.”

The law permits employers to obtain “reasonable certification of the need for COVID-19 leave,” as specifically set forth in the law:

  • If the leave is necessitated by the recommendation of a health care provider to the employee, a written, dated statement from a health care provider stating that the employee has such need and the probable duration of the need for leave.
  • If the leave is necessitated by the recommendation of a health care provider to an employee’s family member or individual with whom the employee shares a household, a written, dated statement from a health care provider stating that the individual has such need and the probable duration of the condition.
  • If the leave is needed because a school, place of care, or childcare provider is unavailable, a statement by the head of the agency, company, or childcare provider stating such closure or unavailability, which may include a printed statement obtained from the institution’s website.

Like other bases for DCFMLA leave, employees may elect, but are not required to use, other non-statutory paid leave provided by their employer (e.g., vacation time) while on COVID-19 leave.  In addition, the expansion provides that employees using the new leave “shall not be required, but may elect, to use leave provided under this section before other leave to which the employee is entitled under federal or District law or an employer’s policies, unless otherwise barred by District or federal law.”

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

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DOL Updates FFCRA Regulations in Light of Recent SDNY Decision /2020/09/dol-updates-ffcra-regulations-in-light-of-recent-sdny-decision/ Wed, 16 Sep 2020 20:56:23 +0000 /?p=6200 Continue Reading]]> On September 11, 2020 the U.S. Department of Labor (“DOL”) issued revised Families First Coronavirus Response Act (“FFCRA”) regulations in response to a federal court decision striking down certain portions of its previous regulations.

The temporary FFCRA regulations. Subsequently, on August 3, 2020, in response to a lawsuit brought by the State of New York challenging the regulations, a Southern District of New York court ruled that four parts of the regulations were invalid – specifically, the: (1) exclusion from coverage of employees whose employers do not have work available for them (such as those on furlough or temporary layoff), (2) requirement for employer approval for intermittent leave, (3) definition of “health care provider” for purposes of an employer’s ability to exclude such employees from FFCRA coverage, and (4) notice and documentation requirements for taking leave.

Below is a summary of updated regulations on each of these topics.

The Work-Availability Requirement

The revised regulations reaffirmed the DOL’s prior position that leave may only be taken under the FFCRA if there is work available to the employee from which to take leave. In response to the district court’s finding that the requirement was invalid because the work-availability requirement was only explicitly applied to three of the six qualifying reasons for FFCRA leave, the revised regulations now apply the work-availability requirement to all six reasons for leave, which, according to the revised regulations, was the DOL’s intent all along.

The revised regulations also explain the DOL’s reasoning for imposing this requirement. As an initial matter, the FFCRA uses the words “because of” and “due to” in identifying the six covered reasons for which an employee may take leave, which the Supreme Court has interpreted in the context of other statutes to require “but-for” causation. Under a “but-for” causation standard, leave is not available if the need for leave occurred due to another, non-COVID-19-related reason. For example, if there is no work to perform because the employer closed the worksite or conducted layoffs, any COVID-19-related reason would not be a “but-for” cause of the employee’s inability to work. In such a case, the regulations reiterate that leave is not available.

Nevertheless, the DOL emphasizes in the revised regulations that the work-availability requirement does not permit an employer to avoid granting FFCRA leave by claiming or creating a lack of work for an employee (such as furloughing an employee in response to a request for FFCRA leave). This is because the FFCRA contains anti-retaliation provisions, which prohibit employers from discharging, disciplining, or discriminating against employees for taking leave. Therefore, employers are prohibited from making work unavailable in an effort to deny FFCRA leave.

The Employer-Approval Requirement for Intermittent Leave

The revised regulations also reaffirm the DOL’s prior position that employer approval is required to take leave intermittently. The text of the FFCRA statute is silent with respect to intermittent leave, and the DOL thus exercised its rulemaking ity to address the issue by permitting intermittent leave in two situations:

  1. Where an employee is working in-person in the workplace, only when taking leave to care for a child whose school, place of care, or child care provider is closed or unavailable due to COVID-19 (as allowing intermittent leave for other reasons – for example, because the employee is under a COVID-19-related quarantine or isolation order – would be incompatible with Congress’s goal of slowing the spread of COVID-19); and
  2. When an employee is teleworking, for any of the six covered reasons for leave.

In either situation, the initial regulations stated that intermittent leave could only be taken if approved by the employer. The district court invalidated the employer-approval requirement on the basis that the DOL did not adequately explain its reasoning for imposing it. In response, the revised regulations explain the basis for the employer-approval requirement by stating that the employer-approval requirement is necessary to “balance[] the employee’s need for leave with the employer’s interest in avoiding disruptions.” The revised regulations also explain that requiring employer approval for intermittent FFCRA leave is consistent with its approach to intermittent leave under the Family and Medical Leave Act (“FMLA”).

Despite holding its ground on the employer-approval requirement, the DOL’s revised regulations go on to clarify what constitutes intermittent leave for purposes of a school closure, stating that “hybrid-attendance” situations constitute individual, separate FFCRA-qualifying events. As such, for example, if an employee requires leave every other week, only on certain days of the week, or only for a certain number of hours each day during the times when the employee’s child is not physically present in school, a new qualifying reason arises each time the school closes and, therefore, leave is not considered “intermittent” and employer approval is not required. On the other hand, if an employee whose child’s school is fully closed/remote learning only requests to take FFCRA leave for only certain periods of time, that would be a request for intermittent leave, requiring employer approval. Additional information about back-to-school and leave under the FFCRA is available on our blog here.

The Definition of “Health Care Provider”

The FFCRA excludes “health care providers” from eligibility for FFCRA leave. The revised regulations narrow the definition of “health care provider,” thereby expanding the number of employees who may be eligible for FFCRA leave.

The definition of “health care providers” included in the initial regulations was held invalid by the district court due to concerns that the definition was overly broad and prevented too many employees from using FFCRA leave. For example, under the original definition, many employees were excluded from coverage if they were employed at a hospital, medical school, or another place where medical services are provided, even if they were not in a role of providing patient care.

Under the revised regulations, it “is not enough that an employee works for an entity that provides health care services.” Instead, the revised regulations adopt a narrower definition of “health care provider,” which includes:

  1. Employees who are “health care providers” under the FMLA – such as medical doctors, dentists, nurse practitioners, social workers, and physician assistants, among others; and
  2. Employees who are “employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care” – such as nurse assistants, medical technicians, and laboratory technicians, among others.

However, employees such as IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers do not fall under the “health care provider” exclusion and therefore may now be eligible for FFCRA leave.

The Notice and Documentation Requirements

Finally, the regulations have been revised to require that employees provide notice of the need for FFCRA leave as soon as practicable, rather than prior to taking leave, as was required under the prior regulations.

The FFCRA statute permits employers to require that employees provide notice: (1) after the first workday of leave (for paid sick leave), or (2) as soon as practicable, when the necessity for such leave is foreseeable (for expanded family and medical leave). The DOL’s initial regulations listed the documentation that must be provided in order to take leave and stated that such documentation must be provided “prior to” taking leave. The district court held that this timing requirement – that notice be provided “prior to” taking leave – is inconsistent with the statutory text of the FFCRA.

The revised regulations do not modify the statute’s notice requirements noted above. However, they do clarify that documentation need not be provided “prior to” taking leave, but rather may be provided as soon as practicable, which, the revised regulations note, will in most cases be at the same time as an employee requests leave but which may not necessarily always occur before leave begins.

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Due to the “time-limited nature of the FFCRA leave benefits, the urgency of the COVID-19 pandemic and the associated need for FFCRA leave, and the pressing need for clarity in light of the [court decision],” the revised regulations take effect on September 16, 2020. Therefore, employers should immediately ensure that their policies and practices are up to date and consistent with the above.

Our team is closely monitoring the DOL’s FFCRA guidance and regulations and will continue to provide updates as they become available.

Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

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EEOC Updates Its COVID-19 Guidance (Again) /2020/09/eeoc-updates-its-covid-19-guidance-again/ Fri, 11 Sep 2020 21:44:44 +0000 /?p=6197 Continue Reading]]> On September 8, 2020, the EEOC released an updated technical assistance document addressing COVID-19 and the federal anti-discrimination laws enforced by the agency, including the Americans with Disabilities Act (“ADA”). Our previous posts about the EEOC’s prior COVID-19 guidance are available here and here.

The updated guidance includes 18 new questions and answers, most of which were adapted from a webinar conducted by the agency in March. Several other responses have also been updated. Most of the new questions and updates involve three topics: (1) disability-related inquiries and medical examinations, (2) confidentiality of medical information, and (3) reasonable accommodations. The following are some highlights from the guidance on each of these topics.

Disability Related Inquiries and Medical Examinations

The ADA places restrictions on the medical information employers may request from applicants and employees and when employers may (and may not) conduct medical examinations. To that end, the updated guidance clarifies that during the COVID-19 pandemic, employers may ask employees who will be physically present in the workplace if they have COVID-19, symptoms consistent with COVID-19, or received a test for COVID-19.

Employers may also administer COVID-19 testing to detect the presence of the virus on a periodic basis or before employees are permitted to enter the workplace. However, as set forth in previous guidance based on caution issued by the CDC, the EEOC makes clear that employers may not condition employees’ return to the workplace on undergoing testing for COVID-19 antibodies.

Employers conducting COVID-19 viral testing should ensure that: (1) their testing program is consistent with current CDC guidance, and (2) that the tests they are using are considered accurate and reliable. According to the guidance, employers may then exclude those with COVID-19 or symptoms associated with COVID-19 from the workplace. Employees who refuse to answer questions or submit to testing may also be barred from entering. However, if an employee requests an accommodation with respect to the screening process, the employer’s usual reasonable accommodation process should be followed.

Despite the leeway that the guidance provides to employers to screen employees for COVID-19, it also includes a number of practices that employers should avoid. For example:

  • Employers should not request information regarding COVID-19 symptoms or illness or require COVID-19 testing for employees who are 100% teleworking and therefore not interacting with coworkers or customers.
  • Employers should not ask employees whether they have family members who have COVID-19 or symptoms associated with COVID-19, as the Genetic Information Nondiscrimination Act (“GINA”), among other things, prohibits employers from inquiring into family medical history, including asking questions about the manifestation of a disease or disorder in an employee’s family members. However, according to the guidance, GINA “does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease” – that is, phrasing the inquiry more broadly to focus on employee close contact with anyone (including, but not limited to family members) who may have the virus.
  • While employers are permitted to conduct universal COVID-19 screenings and testing and to make certain inquiries of its employees as set forth above, employers should not single out a particular employee to answer COVID-19-related questions or to undergo testing unless the employer has “a reasonable belief based on objective evidence that this person might have the disease.”

Confidentiality of Medical Information

The ADA generally requires employers to keep medical information confidential and in a separate file from the employee’s regular personnel file. The updated guidance clarifies that an employee who knows that a coworker has COVID-19 symptoms may report this information to a supervisor without violating the ADA. The ADA also “does not prevent the manager from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health ities.” The guidance, however, advises employers to “make every effort to limit the number of people who get to know the name of the employee.”

After an employer learns that an employee has or may have COVID-19, the guidance states that employers may interview the employee to determine which other individuals may have been exposed. The employer may then notify these people, so long as the employer does not reveal the employee’s identity. Even if other employees are able to ascertain the employee’s identity based on the overall circumstances, the employer is prohibited from confirming this information.

Regarding the requirement that employers keep medical information separate from the employee’s regular personnel file, the guidance advises that a manager or supervisor who receives medical information while teleworking should follow the employer’s existing confidentiality protocols to the extent feasible. To the extent this is not feasible, the guidance advises that the supervisor must safeguard this information to the greatest extent possible until it can be properly stored.

Reasonable Accommodations

The ADA requires employers to provide reasonable accommodations to qualified employees with disabilities so that they can perform essential functions of the job, unless doing so would place an undue hardship on the employer. With more employees teleworking during the pandemic, employers and employees who require accommodations should discuss “whether the same or a different accommodation could suffice in the 凯发国际版home setting.” The updated guidance acknowledges that some employees “may already have certain things in their 凯发国际版home to enable them to do their job so that they do not need to have all of the accommodations that are provided in the workplace.” The guidance advises employers and employees to be “creative and flexible” to ensure that employees can telework effectively.

In addition, when businesses reopen and employees return to the worksite following a period of telework during the COVID-19 pandemic, employers are not automatically required to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement. According to the updated guidance, “if there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation.” In addition, if the employer can effectively address the employee’s need with another accommodation at the workplace, the employer may choose that alternative. Finally, because the “ADA never requires an employer to eliminate an essential function as an accommodation,” employers are not required to continue telework if doing so requires excusing the employee from performing an essential job function. This is true even if the employer temporarily excused performance of one or more essential functions during the period of remote work.

Nevertheless, the remote work period during the COVID-19 pandemic may still be relevant to determining whether or not the employee is entitled to telework as an accommodation. According to the guidance, this remote work period may inform “whether or not this employee . . .  could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information.”

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Our team is closely monitoring the EEOC’s guidance on the COVID-19 pandemic and will continue to provide updates as they become available.

Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

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Intersection Between Return-to-School and FFCRA /2020/08/intersection-between-return-to-school-and-ffcra/ Fri, 28 Aug 2020 15:00:16 +0000 /?p=6183 Continue Reading]]> As we Questions and Answers on the intersection of return-to-school and the FFCRA. The new guidance is straightforward:

  1. If the school’s operations are 100% virtual, the FFCRA is available for eligible employees.
  2. If the school’s operations are hybrid (i.e., students attend the school in person on alternate days), the FFCRA is available for eligible employees on days when their child is not permitted to attend school in person and must instead engage in remote learning so long as the employees need the leave to actually care for their child during that time and only if no other suitable person is available to do so.
  3. If the school offers both in person and virtual option and the employee chooses a virtual route, the FFCRA is not available, unless other provisions of the FFCRA apply such as, for example, if because of COVID-19, the child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, the employee may be eligible to take paid emergency sick leave under the FFCRA to care for the child.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

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CDC Updates Guidance on Travel During the COVID-19 Pandemic /2020/08/cdc-updates-guidance-on-travel-during-the-covid-19-pandemic/ Thu, 27 Aug 2020 15:46:57 +0000 /?p=6179 Continue Reading]]> On August 21, 2020, the Centers for Disease Control and Prevention (“CDC”) updated its guidance on Travel during the COVID-19 Pandemic. Previously, the guidance recommended that travelers self-quarantine for 14 days after: (1) all international travel, and (2) domestic travel to areas with a high concentration of COVID-19 cases. The guidance now recommends that travelers “follow state, local, and territorial travel restrictions,” which may include “testing requirements, stay-at-凯发国际版home orders, and quarantine requirements upon arrival.” For international travel, the CDC recommends visiting the destination’s Office of Foreign Affairs or Ministry of Health or the U.S. State Department website for information about quarantine requirements.

Despite the CDC’s shift away from the 14-day quarantine recommendation upon return from international travel, CDC Level 3 Travel Health Warnings remain in place for nearly 200 countries – recommending that travelers avoid all nonessential travel to these areas. In addition, foreign nationals who have been to China, Iran, most countries in Europe, the United Kingdom, Ireland or Brazil during the past 14 days are still not permitted to enter the United States due to a Presidential declaration. According to the U.S. State Department, citizens and legal permanent residents are permitted to return from these areas, but may be required to travel through select airports with enhanced screening procedures.

Furthermore, in recent weeks, a number of states have issued travel advisories and guidance for travelers, several of which include either a mandated or recommended 14-day self-quarantine following return from travel to certain “hot spot” areas. For example, on June 24, New York Governor Andrew Cuomo issued an Executive Order requiring all travelers entering New York from a state or territory with a high positive test rate to quarantine for 14 days. The New York Department of Health has been publishing an updated list of states and territories that meet the criteria for quarantine. As of August 27, 2020, this list includes over thirty states and territories. Those who violate the quarantine order may be subject to a civil penalty of up to $10,000 or imprisonment up to 15 days. Notably, the Order does not require a self-quarantine after international travel. However, any federal restrictions and guidance regarding such travel would still apply.

Other states that have issued advisories or guidance requiring or recommending a self-quarantine following travel include (but are not limited to): Connecticut, Massachusetts, New Jersey, Pennsylvania, and Washington, D.C.

In light of this federal and state guidance, employers should: (1) continue to monitor the travel restrictions and recommendations in the jurisdiction in which they operate, and (2) consider how these may impact business travel policies and, for employers who have resumed in-person operations, policies regarding return to work following international or out-of-state travel. Employers are also advised to consult with counsel, as certain considerations including anti-discrimination, wage and hour, and leave policies may be implicated.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

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Department of Labor Releases Guidance on Lost Wages Assistance Program /2020/08/department-of-labor-releases-guidance-on-lost-wages-assistance-program/ Fri, 14 Aug 2020 16:13:05 +0000 /?p=6172 Continue Reading]]> On August 8, 2020, the President issued an executive memoranda establishing the Lost Wages Assistance (“LWA”) program, a new unemployment benefit intended to replace the recently-expired $600 per week Federal Pandemic Unemployment Compensation (“FPUC”) payment.

As a refresher, the CARES Act created three unemployment benefits programs: (1) Pandemic Unemployment Assistance (“PUA”), providing benefits for those not traditionally eligible for unemployment; (2) Pandemic Emergency Unemployment Compensation (“PEUC”), providing 13 additional weeks of benefits for those whose benefits expire; and (3) FPUC, providing a $600 per week additional benefit if the individual received other unemployment benefits in that week. While PUA and PEUC are funded until the end of this year, the FPUC benefit was set to end on July 31. Congress and the President were unable to agree on a replacement or extension, and the program expired without substitute. It was in that context that the President announced the LWA program, which the Department of Labor clarified on Wednesday.

As of August 14, no state has implemented LWA, and it is likely that the legality of the program will be challenged. Notwithstanding the foregoing, here is what you should know about the program.

Is this the same program as FPUC?

No. LWA is an entirely new program.

How much money will claimants receive under LWA?

LWA is designed as a $400 per week benefit. Of the $400/week benefit, the federal government will pay for $300. States can then elect to provide the additional $100 benefit.

How is LWA funded?

While states will administer the program, the $300 benefit funded by the federal government will be covered by grants through the Department of 凯发国际版homeland Security–more specifically, $44 billion in funds initially earmarked for the FEMA Disaster Relief Fund (“DRF”). If states choose to pay the additional $100 benefit, those funds will be drawn from either already-allocated CARES Act funds or other sources of state funding.

What is the term of the LWA program?  

LWA is available for weeks of unemployment ending on or after August 1, 2020 until weeks of unemployment ending on or before December 27, 2020. However, the program will end prematurely if: (i) FEMA runs out of funds; (ii) the total value of the DRF falls below $25 billion; or (iii) Congress passes other legislation addressing unemployment benefits.

Who is eligible for LWA?

Individuals receiving the following benefits are eligible for LWA:

  • Unemployment Compensation for Federal Employees;
  • Unemployment Compensation for Ex-Service Members;
  • Pandemic Emergency Unemployment Compensation;
  • Pandemic Unemployment Assistance;
  • Extended Benefits;
  • Short-Time Compensation;
  • Trade Readjustment Allowances; and
  • Payments under the Self-Employment Assistance program.

While these are the same programs that qualified someone to receive FPUC benefits, there is one key difference. Whereas anyone who received $1 of the above benefits qualified for all $600 of FPUC, only those receiving at least $100 per week of the above benefits are eligible to receive LWA.

LWA benefits are unlikely to be paid any time in the near future as states must take various steps to administer the program and, as described above, the program is likely to face legal challenges. Moreover, Congress and the White House have expressed interest in reaching another agreement on unemployment benefits–though those discussions have reportedly stalled. [CNN – “Congressional Action on New Relief Package Likely to Wait Until September – At Least”]. We will continue to monitor these developments.

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SDNY Decision Strikes Down Portions of DOL’s FFCRA Regulations /2020/08/sdny-decision-strikes-down-portions-of-dols-ffcra-regulations/ Tue, 11 Aug 2020 20:44:52 +0000 /?p=6168 Continue Reading]]> On August 3, Judge Paul Oetken of the Southern District of New York issued a decision invalidating various portions of the Department of Labor’s rules implementing the federal Families First Coronavirus Response Act (FFCRA).

The FFCRA is the federal law that provides emergency relief and support to employees who need to take leave from work for COVID-19 related reasons during the pandemic. The two key provisions of the law are the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA).  Both apply only to employers with fewer than 500 employees.  The EFMLEA amends the federal Family and Medical Leave Act to provide a new type of covered public health emergency leave for eligible employees who take leave, for up to 12 weeks, to care for their child if the child’s school or place of care has been closed, or the child’s child care provider is unavailable, due to a public health emergency with respect to COVID-19 declared by Federal, State, or local ities.  The EPSLA provides up to two weeks of paid sick leave to eligible employees for any of the following reasons: (1) if they are subject to a quarantine or isolation order; (2) if they have been advised by a health care provider to self-quarantine; (3) if they are experiencing COVID-19 symptoms and are seeking a medical diagnosis; (4) if they are caring for an individual who is subject to a quarantine order or who has been advised to self-quarantine; (5) if they are caring for their child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19; or (6) if they are experiencing any other substantially similar condition.

Work-Availability Requirement

Under both the EFMLEA and EPSLA, employees who are able to work from 凯发国际版home are ineligible for paid leave.  The DOL’s Final Rule implementing the FFCRA, issued in April 2020, also excluded from coverage employees whose employers did not have work available for them. As the Court explained, the Final Rule, “excludes from these benefits employees whose employers ‘do[] not have work’ for them.” In other words, under the Final Rule, employees who were on a leave of absence, or furlough, for example, due to a lack of work were not eligible for paid leave under the FFCRA.

The State of New York challenged the DOL’s interpretation on the grounds that the work-availability requirement contravened the FFCRA’s text and purpose.  The Court’s decision first noted that under the DOL’s Final Rule the work-availability requirement applied only to employees who took leave under the EFMLEA, or the EPSLA for reasons 1, 4, or 5 listed above. The court ultimately struck down the work-availability requirement because it was not based on a permissible construction of the FFCRA. First, the Rule’s differential treatment of the six EPSLA qualifying reasons was unreasoned and contrary to the FFCRA’s language. Second, the DOL’s proffered reasoning – that the work-availability requirement was justified because the employee would not be able to work even if they did not have a qualifying reason to take leave – was circular and insufficient. In essence, the Court held that the work-availability requirement was not well-reasoned, and therefore struck down the requirement as an impermissible construction of the FFCRA.

Health Care Provider Definition

Under the FFCRA, employers may elect to exclude “health care providers” from the statutory leave entitlements. The Court considered whether the DOL’s definition of “health care provider”, as articulated in the Final Rule, exceeded the DOL’s statutory ity.

Initially, the Court noted that the FMLA, which provides the relevant definition for the FFCRA provisions at issue, defines “health care provider” as: “(A) a doctor of medicine or osteopathy who is ized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or (B) any other person determined by the Secretary to be capable of providing health care services.”  The Rule’s definition invoked the ity provided by section B above, and included not only anyone employed at a doctor’s office, hospital, health care center, and other enumerated health care facilities, but also:

any individual employed by an entity that contracts with any of these institutions to provide services or maintain the operation of the facility where the individual’s services support the operation of the facility, [and] anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.

The court struck down this “expansive” definition, finding the FFCRA required a “minimally role-specific determination.” According to the court, the Secretary of Labor was required to determine whether an employee was capable of furnishing healthcare services. In contrast, the DOL’s definition was based on the nature of the employer, rather than the employee’s role or duties. The court reasoned that even if the DOL’s definition was consistent with the FFCRA’s purpose to exempt from the statute employees who are essential to a functioning healthcare system, the definition was still overbroad. As such, the court struck down the DOL’s “health care provider” definition.

Intermittent Leave

The DOL’s Final Rule limited the circumstances under which employees could take FFCRA leave intermittently. The Rule permitted intermittent leave only if the employee and employer agreed, and, even then, only for certain qualifying reasons. Specifically, intermittent leave could only be taken if the employee took leave to care for a child whose school or place of care was closed, or whose child care was unavailable.

Here, the court agreed with the DOL’s interpretation limiting intermittent leave only to child care purposes, finding it to be in line with the DOL’s public-health justification for the restrictions: employees taking leave for the other reasons may be infected with COVID-19 by virtue of their need for leave, and present public health risks if they return to work before the risk of contagion subsides.  As such, the court found that because intermittent leave is not addressed in the statutory text of the FFCRA, the DOL’s Final Rule as it relates to limiting intermittent leave to child care purposes was entitled to deference because it was reasonable.

However, the Court found that the Final Rule’s requirement that the employer consent to intermittent leave was unreasoned. The Court determined that while the DOL’s public health reasoning justified limiting intermittent leave to child care purposes, it did not justify requiring employers’ consent for intermittent leave. Because the DOL provided no other justification for the employer consent requirement, this portion of the Rule was unreasoned.

The court therefore upheld restrictions on intermittent leave in cases where an employee is (or has the potential to be) exposed to the virus, but struck down the requirement that the employer consent to providing intermittent leave in the case of child care leave. Therefore, intermittent leave may only be taken if an employee’s qualifying need is to care for a child whose school or place of care is closed or unavailable, and employees do not need employer consent to take such intermittent leave.

Documentation Requirements

The Final Rule also required employees submit certain documentation to their employer prior to taking FFCRA leave. Despite the DOL’s various arguments, including that the documentation requirements were not onerous, the court struck down the documentation requirements as unlawful preconditions to leave. The court upheld the substance of the documentation requirement, including that employees are required to provide their employer with documentation indicating “their reason for leave, the duration of the requested leave, and, when relevant, the ity for the isolation or quarantine order qualifying them for leave” but not the requirement that such documentation be provided to the employer in advance of taking the leave.

Of course, we will continue to monitor these developments, including any further rules and guidance issued by the DOL regarding the FFCRA.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

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D.C. Requires Employers To Provide Paid and Unpaid COVID-19 Leave /2020/07/d-c-requires-employers-to-provide-paid-and-unpaid-covid-19-leave/ Tue, 28 Jul 2020 20:26:51 +0000 /?p=6161 Continue Reading]]> Quick Hit:  Employees in the District of Columbia are currently eligible for paid and unpaid COVID-19 related leave under measures that temporarily expand the D.C. Family and Medical Leave Act (“DCFMLA”) and D.C. Accrued Sick and Safe Leave Act (“ASSLA”).

Key Takeaway:  D.C. employers now must navigate an additional set of paid and unpaid leave requirements.  D.C. employers should review these new requirements and update their policies to reflect these temporary measures.

More Detail:

As we D.C. COVID-19 Support Emergency Amendment Act and the Coronavirus Support Clarification Emergency Amendment Act of 2020 (collectively, the “CSEA”) which replaced all previous COVID-related legislation and temporarily amended the ASSLA and DCFMLA to create new COVID-19 leave.  COVID-19 related leave under the CSEA is only available for the duration of the COVID-19 public health emergency, which as of the writing of this article has been extended through October 9, 2020.  Additionally, unless it is extended, the CSEA “shall remain in effect for no longer than 90 days, as provided for emergency acts of the Council of the District of Columbia in section 412(a) of the District of Columbia 凯发国际版home Rule Act, approved December 24, 1973 (87 Stat, 788; D.C. Official Code § 1-204.12(a)).”

ASSLA Expansion:  The CSEA requires employers (except for health care providers) with between 50 and 499 employees to provide employees with up to two weeks (for a maximum of 80 hours) of paid “public health emergency leave” for any of the reasons paid leave is available under the Families First Coronavirus Response Act.  For part-time employees, employers are required to provide paid leave “for the usual number of hours the employee works in a 2-week period.”

In order to be eligible for this leave, the employee must have “commenced work for the employer at least 15 days before the request for leave.”  Additionally employees may only use this new paid leave benefit “concurrently with or after exhausting any other paid leave to which the employee may be entitled for covered reasons under federal or District law or an employer’s policies.”  The law allows employers to “reduce the monetary benefit of the paid leave provided under [the CSEA] by the amount of the monetary benefit the employee will receive for paid leave taken under federal or District law or the employer’s policies” if the employee elects to use paid leave provided under the CSEA concurrently with other paid leave.

DCFMLA Expansion:  The CSEA also creates a new temporary category of DCFMLA leave.  The expansion of the law allows employees in the District who have worked for 30 days for an employer of any size to take up to 16-weeks of COVID-19 leave “if the employee is unable to work due to:

  • A recommendation from a healthcare provider to quarantine or isolate, including because the employee or an employee’s household member is high risk for serious illness from COVID-19;
  • A need to care for a family member or a member or an individual with whom the employee shares a household who is under a government or health care provider’s order to quarantine or isolate; or
  • A need to care for a child whose school or place of care is closed or whose childcare provider is unavailable to the employee.”

The law permits employers to obtain “reasonable certification of the need for COVID-19 leave,” as specifically set forth in the law:

  • If the leave is necessitated by the recommendation of a health care provider to the employee, a written, dated statement from a health care provider stating that the employee has such need and the probable duration of the need for leave.
  • If the leave is necessitated by the recommendation of a health care provider to an employee’s family member or individual with whom the employee shares a household, a written, dated statement from a health care provider stating that the individual has such need and the probable duration of the condition.
  • If the leave is needed because a school, place of care, or childcare provider is unavailable, a statement by the head of the agency, company, or childcare provider stating such closure or unavailability, which may include a printed statement obtained from the institution’s website.

Like other bases for DCFMLA leave, employees may elect, but are not required to use, other non-statutory paid leave provided by their employer (e.g., vacation time) while on COVID-19 leave.  In addition, the expansion provides that employees using the new leave “shall not be required, but may elect, to use leave provided under this section before other leave to which the employee is entitled under federal or District law or an employer’s policies, unless otherwise barred by District or federal law.”

Notice Requirement:  The D.C. Office of Human Rights issued guidance indicating that employers must post notice regarding the expansion of DCFMLA under the CSEA “in a conspicuous place and transmit it to remote employees.”  The notice is available here.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

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