September Updates

COVID-19: Executive Order Extending Unemployment Insurance

On August 8, 2020, the White House released several executive memoranda intended to address the ongoing impact of the COVID-19 pandemic. The CARES Act expanded UI benefits to up to $600 per week in response to economic strain caused by COVID-19.  The expanded benefit expired on July 31, 2020, but a new executive memorandum directs the Federal Emergency Management Agency to provided $44 billion in previously-approved disaster aid to states for lost wages. Each state will be allowed to determine the level of increased employment benefits they will offer, up to a maximum of $400/week. Each state is also required to fund 25% of the increase.

DOL Releases Guidance on Application of FFCRA to Federal Contracts

On August 3, 2020, the U.S. Department of Labor (DOL) issued guidance on how the Families First Coronavirus Response Act (FFCRA) applies to workers subject to federal contracts. Specifically, the guidance addresses how to pay employees who are subject to federal contracts while on FFCRA leave, including the applicable rate of pay and managing health benefits. Federal contractors should review the guidance to ensure proper administration of FFCRA leave.

DOL’s Joint Employer Standard Struck Down

The U.S. Department of Labor (DOL) issued a joint employer standard that went into effect in March of this year. However, on September 8, 2020, a federal district court in New York struck down the rule as too narrow in the vertical joint employment context (e.g., staffing agency, subcontractor, labor provider, etc.). The court said that the DOL’s rule requiring that actual control be exercised over the worker contradicts the Fair Labor Standards Act (FLSA), and the rule’s elimination of other factors was also not consistent with the FLSA. Further, the DOL did not provide sufficient reasoning for the changes to the standard. Although the DOL is expected to appeal this decision, employers relying on the DOL’s standard should review joint employer relationships with legal counsel for compliance.

EEOC Releases Guidance on Managing Opioid Addition in the Workplace

Employers face growing challenges as opioid use and abuse increases across the nation.  The Equal Employment Opportunity Commission (EEOC) has released technical guidance on managing some aspects of addiction that may interface with employers.  The guidance contains a Q&A and answers a number of questions about how prescription opioid use and addiction impacts workplace compliance with the Americans with Disabilities Act, qualification for employment, and management of safety and job performance.

7^th Circuit: FAA Applies to Food Delivery Drivers’ Arbitration Agreements

On August 4, 2020, in Wallace v. Grubhub Holdings, Inc., the Seventh Circuit Court of Appeal enforced arbitration agreements for food delivery drivers. Specifically, the court stated that the drivers did not fall under the transportation worker exemption of the Federal Arbitration Act (FAA). Additionally, the court reiterated that, in order to be considered a transportation worker for purposes of the FAA, the interstate movement of goods must be a central part of the job description of the class of workers to which they belong.

Alabama: New Notice and Reporting Requirements for Separations and New Hires

An emergency rule adopted on July 10, 2020 imparts new notice and reporting requirements for Alabama employers. Effective immediately, employers must provide separating employees notice regarding unemployment benefits at time of separation.  Sample notice language is provided in the emergency rule, and this notice may be distributed by letter, email, text message, or flyer.

Additionally, the Alabama Department of Labor announced that it has begun enforcing new hire reporting obligations.  All employers of five or more employees are required to report all new hires to the AL DOL, including reporting of recalled employees. Reporting can be completed through Alabama’s New Hire Electronic Filing System.

California: Appeals Court Limits PAGA Filings

On August 13, 2020, in Robinson v. Southern Counties Oil Co., a California Court of Appeal stated that subsequent PAGA claims from different employees for the same time period and same claims are precluded where an initial claim was already made. This will likely create a first to file scenario for PAGA claims made against employers, thereby excluding duplicate claims. Additionally, the court stated that former employees cannot be PAGA representatives if the PAGA claims arose after their employment ended with the company because they are not “aggrieved employees” as required under PAGA. Employers should review PAGA litigation strategies with legal counsel in light of this ruling.

Connecticut: Masks Mandatory Everywhere

On August 14, 2020, the Acting Governor issued an executive order requiring individuals age two or older to wear a mask, both indoors and outdoors, if they are unable to maintain at least 6 feet of distance from others. Masks are also required when using the services of any taxi, car, livery, ride-sharing or similar service, or any means of mass public transit, or while within any semi-enclosed transit stop or waiting area. There are exceptions for children in childcare settings and for safety reasons related to a medical condition. If someone refuses to wear a mask for medical reasons, they must have written documentation from a healthcare provider or appropriate government agency that they are qualified for the exemption.

Kansas: Adds LGBTQ Protections to Anti-Discrimination Rules

On August 21, 2020, the Kansas Human Rights Commission (KHRC) Board said it would begin accepting complaints of sex discrimination where allegations include discrimination based on LGBTQ status and all derivatives of “sex.” The Board viewed the U.S. Supreme Court decision in Bostock v. Clayton County issued in June, expanding the definition of “sex,” to also apply to the Kansas Act Against Discrimination (KAAD). Employers should update anti-discrimination policies accordingly.

Massachusetts: Juneteenth Becomes New State Holiday

Beginning next year, “Juneteenth,” will become an annual statewide holiday in Massachusetts.  June 19^th is a date intended to recognize racial freedom and equality, joining a list of other holidays covered by the Blue Laws, a collection of Massachusetts regulations controlling business hours on Sundays and certain holidays. Juneteenth joins the list of holidays deemed “partially restricted” under the Blue Laws.  Employers may open businesses on Juneteenth, but employers subject to the retail exemption to the Blue Laws cannot require employees to work on that day.  Employees may choose to do so voluntarily, and if so, must receive premium pay.  Premium pay starts at 1.2x the employee’s regular rate of pay in 2021, decreasing to 1.1x in 2022, and phasing out entirely in 2023.

Philadelphia, PA: Wage Equity Ordinance Unblocked, Enforcement Begins

In 2017, Philadelphia Mayor Jim Kenney signed a Wage Equity Bill that prohibited employers from inquiring into or requiring prospective employees to disclose wage and fringe benefit history.  The bill went into effect on May 23, 2017, but legal challenges to the prohibition on salary inquiries resulted in a preliminary injunction that prevented that provision of the bill from going into effect.  In February, the U.S. Court of Appeals for the Third Circuit sided with the City of Philadelphia, removing the injunction.

The Philadelphia Commission on Human Relations announced that they are enforcing the commission as of September 1, 2020, and that the provisions of the ordinance apply to all interviews, applications, and hiring decisions made on or after September 1, 2020.  Employers can review the Commission’s guidance on the ordinance here.

Tennessee: New COVID-19 Isolation and Quarantine Guidelines

The Tennessee Department of Health recently issued new guidelines on when and how long to self-isolate and quarantine if having symptoms of COVID-19 or if having “household contacts” with someone who has COVID-19. The guidelines somewhat mirror the isolation framework set forth by the CDC, but add more detail, such as what to do when symptoms return. Employers should review the new guidelines for coordination with attendance and leave policies.

Washington: Supplemental Paid Sick Leave for Food Production Workers

On August 13, 2020, Proclamation 20-67 requires food production employers to provide workers with emergency supplemental paid sick leave for a qualifying, COVID-19-related events between August 18, 2020 and November 13, 2020. The amount of required leave depends on the individual’s work schedule. Applicable food production employers are not permitted to operate unless they provide the required leave. Employers should review the requirements and update leave policies for compliance.

Wisconsin: Mitigating Unemployment Insurance Charges for COVID-19

Wisconsin Act 185 permits employers to avoid the cost of initial UI benefit claims, filed between March 12, 2020 and December 31, 2020, from being charged to their UI accounts. The Department of Workforce Development recently announced that employers must take affirmative steps to continue taking advantage of this non-charging benefit. Going forward, for initial UI claims related to COVID-19 and filed after July 1, 2020, employers have 30 days from the date the claim is filed to submit the UCB-18823-E  form to avoid associated UI charges.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

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