LABOR AND EMPLOYMENT IMPLICATIONS OF CORONAVIRUS June 23, 2020 - - PowerPoint PPT Presentation

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LABOR AND EMPLOYMENT IMPLICATIONS OF CORONAVIRUS June 23, 2020 - - PowerPoint PPT Presentation

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LABOR AND EMPLOYMENT IMPLICATIONS OF CORONAVIRUS June 23, 2020 Presented by: Presented by: Christine A. Samsel Todd Fredrickson Brownstein Hyatt Farber Schreck, LLP Fisher & Phillips LLP Phone: 303-223-1133 Phone: 303-218-3650 Email:

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Presented by: Presented by: Christine A. Samsel Todd Fredrickson Brownstein Hyatt Farber Schreck, LLP Fisher & Phillips LLP Phone: 303-223-1133 Phone: 303-218-3650 Email: csamsel@bhfs.com Email: tfredrickson@fisherphillips.com

LABOR AND EMPLOYMENT IMPLICATIONS OF CORONAVIRUS

June 23, 2020

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What We’ll Cover Today

  • Wage & hour law and remote work
  • Discrimination, adverse impact, and retaliation
  • Layoffs, furloughs, and the WARN Act
  • Workplace safety and health checks (ADA implications)
  • Accommodations, leaves, and time off
  • Compliance with federal, state, and local guidance and

policies, and third-party liability

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WAGE & HOUR LAW AND REMOTE WORK

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WAGE & HOUR LAW – EXEMPT EMPLOYEES

  • Exempt employees generally must receive their full salary for

any workweek in which work is performed

  • No compensation reductions for exempt employees based on reduced

working hours or reduced workweek schedule

  • No proration of the salary threshold
  • Salary reductions
  • Can be prospective only
  • Should not be tied directly to reduction in hours (e.g., 60% pay for

60% of hours)

  • References: Federal Fair Labor Standards Act (FLSA), CO

Overtime and Minimum Pay Standards Order (COMPS Order) No. 36, 7 CCR 1103-1 (2020)

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WAGE & HOUR LAW – EXEMPT EMPLOYEES

  • Employer-required usage of accrued PTO
  • What does the policy say?
  • Can allow employees to go into negative accrual
  • But cannot reduce exempt employee compensation when PTO runs
  • ut, with very limited exceptions
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WAGE & HOUR LAW – EXEMPT EMPLOYEES

  • Some employers changed exempt employees to non-exempt

status during the crisis

  • Consider whether to revert back or leave as-is
  • Are exempt employees still exempt upon return?
  • Do they satisfy the duties test? What duties are they performing?

Filling in for non-exempt workers?

  • Analysis is particularly important in states where it is a quantitative

versus a qualitative analysis (e.g., California)

  • Good opportunity to examine proper classification
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WAGE & HOUR LAW - REMOTE WORK

  • Even when employees are working remotely, employers must

comply with applicable law, including:

  • Tracking and compensating non-exempt employees’ working time
  • Providing for required meal and rest periods
  • Reasonably ensuring safe working conditions
  • Providing necessary work equipment and reimbursing expenses in

accordance with applicable law

  • Data privacy, confidentiality and security considerations
  • Workers’ compensation/employer liability insurance may cover

employee and third-party injuries at home

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WAGE & HOUR LAW - NON-EXEMPT EMPLOYEES

  • Remember that non-exempt employees may be entitled to

compensation for:

  • Time waiting in line for temperature checks
  • Wellness checks and certifications conducted at home before

reporting to work

  • Donning and doffing personal protective equipment
  • Obtaining employer-required medical certifications and tests
  • Time working remotely is particularly hard to track
  • This time should be tracked and compensated as appropriate

under applicable law

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WAGE & HOUR LAW - ANTICIPATED LITIGATION

  • We expect to see burgeoning litigation on these issues
  • Wage-and-hour claims by exempt employees whose

compensation was reduced or whose duties no longer qualify them for an exemption

  • Wage-and-hour claims by non-exempt employees for failure to

pay for all time worked

  • Claims for failure to reimburse employees for expenses incurred

in accordance with applicable law

  • Taking employees below minimum wage in certain pay periods
  • Some jurisdictions require reimbursement of all expenses reasonably

incurred in performing duties, such as California and Illinois

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DISCRIMINATION, ADVERSE IMPACT, AND RETALIATION

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DISCRIMINATION, ADVERSE IMPACT, AND RETALIATION

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DISCRIMINATION, ADVERSE IMPACT, AND RETALIATION

  • Types of cases we’re seeing:
  • ADA/ADAAA disability and associational disability claims.
  • FMLA interference and retaliation claims.
  • ADEA (associated with layoffs/furloughs).
  • Pandemic-related harassment due to national origin, race, etc.
  • First Amendment claims.
  • Adverse or disparate impact.
  • RIF context typically.
  • Lack of intentional discrimination.
  • Neutral policy disproportionately impacting protected groups under

Title VII, ADEA, etc.

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DISCRIMINATION, ADVERSE IMPACT, AND RETALIATION

  • Retaliation and related claims
  • See above statutes.
  • Families First Coronavirus Response Act (FFCRA) interference and

retaliation claims:

  • Failure to provide paid sick or emergency FMLA leave.
  • Discipline or discharge in retaliation for exercising rights.
  • OSHA 11(c) Claims
  • Claims under the National Labor Relations Act
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DISCRIMINATION, ADVERSE IMPACT, AND RETALIATION

  • State law claims starting to emerge:
  • Public policy wrongful discharge.
  • General whistleblower claims and CO’s new whistleblower statute.
  • Invasion of privacy.
  • Some tort claims ( and worker’s comp exclusivity).
  • A word about remedies . . .
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LAYOFFS, FURLOUGHS AND THE WARN ACT

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FEDERAL AND STATE WARN ACTS

  • Federal Worker Adjustment and Retraining Notification

(WARN) Act applies to employers with 100+ employees (not counting part-time/short-term workers) where certain actions

  • ccur. Triggers include:
  • Plant closing
  • Mass layoff
  • State WARN Acts (e.g., NY, CA) have different – usually lower

– thresholds for covered employers and/or triggering events

  • More employee-favorable
  • Many states are implementing/modifying mini-WARN Acts to address

the COVID crisis

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FEDERAL AND STATE WARN ACTS

  • Federal WARN Act requires 60 days’ notice of triggering

event, subject to certain exceptions allowing shorter notice

  • Unforeseeable business circumstances
  • COVID crisis likely qualifies – at least in the early stages
  • Will it apply in a resurgence?
  • Faltering business
  • “Physical calamity”
  • Notice still required as soon as reasonably practicable
  • Per the DOL, the WARN Act still applies even in this crisis
  • State WARN Acts do not always have the same exceptions
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FEDERAL WARN ACT

  • Furloughs that extend more than 6 months may be deemed to

be “employment losses”

  • There are notice requirements for short-term furloughs/layoffs

extended beyond 6 months

  • Subject to certain exceptions, it counts as a “layoff” as of the date the

furlough commenced, not when it hit the 6-month mark

  • Reduction of 50% or more in employees’ work hours for each
  • f six consecutive months can also trigger WARN Act
  • bligations
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FEDERAL WARN ACT

  • Consolidation of employment losses
  • Cannot avoid WARN Act requirements by spreading out employment

losses over a period of time

  • 90-day aggregation period under federal WARN Act
  • Examine the 90-day period surrounding any planned reduction

events

  • Including the 6-month anniversary of furloughs – potentially

looking back to the date it commenced – or reduction in work hours

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LAYOFFS AND FURLOUGHS

  • State law requirements for payout of accrued vacation and

final wages

  • Furlough as a subterfuge for layoff?
  • CA, for instance, considers a furlough of more than a payroll period to

be a “termination,” triggering payout of accrued PTO

  • In many jurisdictions, written notices of layoffs and/or

furloughs or reduction in hours are required for unemployment purposes

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LAYOFFS, FURLOUGHS AND WARN ACT - ANTICIPATED LITIGATION

  • We expect to see a significant uptick in the number of federal WARN

Act cases (and state cases, where applicable) filed by year-end.

  • These are especially likely regarding “COVID-Round 2”
  • There already have been numerous cases filed
  • Hooters in Florida sued less than a month after the crisis hit
  • Hertz and Enterprise sued in Florida
  • Hometown Buffet sued in CA under the state WARN Act
  • Also a medical spa in Missouri, a tech company in Silicon Valley, a debt

collection agency in Nevada, etc.

  • More will doubtless follow
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LAYOFFS, FURLOUGHS AND WARN ACT – ANTICIPATED LITIGATION

  • Cases asserting discrimination in bringing people back from

layoffs and furloughs also likely will increase

  • Especially “paternalistic” approaches to determining who comes back

to work and when

  • Expect to see a significant uptick in state law cases regarding

layoffs and furloughs, and failure to comply with applicable state law regarding the timing of payout of accrued compensation and PTO

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WORKPLACE SAFETY AND HEALTH CHECKS (ADA Implications)

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WORKPLACE SAFETY AND HEALTH CHECKS

  • Heavily regulated and required under federal, state, and local

law.

  • Face masks, social-distancing, and other precautions.
  • Increasing presence by OSHA.
  • ADA/ADAAA implications:
  • EEOC loosening the rules regarding pre-employment medical exams

and inquiries (see attached guidance).

  • Asking about COVID-19 symptoms.
  • Temperature-taking.
  • Requiring employees with symptoms to stay home.
  • Return to work/fitness for duty notes.
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WORKPLACE SAFETY AND HEALTH CHECKS

  • ADA/ADAAA implications (cont.):
  • Applicant considerations:
  • After a conditional job offer is made:
  • Employers can screen for symptoms
  • Take temperatures
  • Delay start dates for those with COVID-19
  • Antibody tests not permitted.
  • Confidentiality of COVID-19 information, such as employee

temperatures.

  • Reasonable accommodation during the pandemic.
  • The interactive process remains key.
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ACCOMMODATIONS, LEAVES AND OTHER TIME OFF

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EMPLOYEES WHO REFUSE TO RETURN TO WORK

  • Why is the employee refusing to return?
  • Employee prefers unemployment
  • Generalized anxiety about COVID
  • Reasonable safety concerns
  • Disability (physical or mental)
  • Vulnerable individual
  • Residing with a vulnerable individual
  • Personal illness
  • Caring for a family member who is ill
  • Child care
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EMPLOYEES WHO REFUSE TO RETURN TO WORK

  • Non-protected reasons:
  • Preference to remain on unemployment
  • Generalized anxiety about COVID-19
  • Use caution in evaluating this; there are many potentially

protected reasons employees may decline to return to work

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EMPLOYEES WHO REFUSE TO RETURN TO WORK

  • Potentially protected reasons:
  • ADA and related state law
  • National Labor Relations Act (NLRA)/Occupational Safety and Health

(OSH) Act – reasonable safety concerns

  • Protected leaves – determine eligibility under:
  • FFCRA (employers with <500 employees)
  • State leave, including new Colorado paid sick leave law, which also

addresses “public health emergencies” and child care issues, among

  • ther things
  • And don’t forget about “regular” FMLA leave (e.g., where the employee

is personally ill or caring for ill family members)

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EMPLOYEES WHO REFUSE TO RETURN TO WORK

  • Potentially protected reasons:
  • Colorado Public Health Order
  • Order prohibits reporting to work/leaving home if ill, other than for medical care
  • Businesses must permit teleworking to the extent feasible
  • Vulnerable individuals cannot be compelled to perform in-person work, even at a

“critical business,” and are “strongly encouraged” to stay home

  • Businesses must provide accommodations to vulnerable individuals, prioritizing

telecommuting

  • Employers are “encouraged” to make accommodations for those who reside with or are

caring for vulnerable individuals or have child or elder care obligations to the greatest extent possible, preferably through flexible scheduling or telecommuting

  • “Vulnerable individuals” are those individuals who are 65 and older, have chronic lung

disease or moderate to severe asthma, have serious heart conditions, are immunocompromised, are pregnant or have been determined to be high risk by a licensed healthcare provider (narrower definition than earlier Orders)

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ACCOMMODATIONS, LEAVES, AND TIME OFF

  • Considerations applicable to various laws
  • E.g., ADA, FFCRA, CO Public Health Order
  • Start with the basic ADA-style interactive process
  • Consider teleworking in all cases where it may be appropriate
  • Remote work as a presumptively reasonable accommodation if you’ve been

doing it so far

  • Ability to perform the essential functions of the position under the

ADA

  • Vulnerable individuals
  • Documentation issues
  • Tracking various leaves (e.g., concurrent versus cumulative)
  • Personal Protective Equipment (PPE) issues under the ADA
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ACCOMMODATIONS, LEAVES, AND TIME OFF – ANTICIPATED LITIGATION

  • There is likely to be an onslaught of litigation related to:
  • Denial of leave and/or retaliation under the FFCRA/FMLA
  • Particularly re child care issues, with school re-openings in limbo
  • Discrimination against vulnerable individuals
  • Either forcing them to return to work or imposing “involuntary”

accommodations

  • State paid sick leave laws
  • ADA and state law accommodation issues
  • Employee benefits also may be implicated, resulting in ERISA and
  • ther claims where, for instance, individuals lose coverage and may

not have been provided proper COBRA notice

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COMPLIANCE WITH FEDERAL, STATE, AND LOCAL GUIDANCE AND POLICIES; THIRD PARTY LIABILITY

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COMPLIANCE WITH FEDERAL, STATE, AND LOCAL GUIDANCE AND POLICIES

  • We’re also starting to see third-party liability cases.
  • Construction context.
  • Retail, restaurants, and other establishments.
  • Ways to mitigate that risk?
  • Following laws and guidance.
  • Implementing and following workplace/worksite policies.
  • Compliance with federal laws and guidance:
  • CDC guidance.
  • OSHA regulations and guidance.
  • EEOC technical assistance.
  • Compliance with state law and guidance.
  • Governor Polis’s Executive Orders
  • CDPHE orders.
  • City ordinances and guidelines.
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COMPLIANCE WITH FEDERAL, STATE, AND LOCAL GUIDANCE AND POLICIES

  • Other ways to mitigate risk?
  • Executive orders from President: directing federal agencies, like

OSHA, to make exceptions for employers who attempt in good-faith to follow agency regulations.

  • Implementing and following policies:
  • Jobsite or workplace polices.
  • Return-to-work policies.
  • Employee reporting of symptoms/diagnoses.
  • Use of customer or third-party waivers, notices, and symptom

questionnaires.

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COVID RESOURCES

  • EEOC Guidance re Pandemic Preparedness in the Workplace and the Americans with Disabilities Act

(https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities- act)]

  • EEOC Guidance re What You Should Know About COVID-19 and the ADA, etc. (June 11, 2020)

(https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-

  • ther-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term)
  • U.S. Department of Labor Wage & Hour Division Rule regarding the FFCRA (as corrected)

(https://www.federalregister.gov/documents/2020/04/10/2020-07711/paid-leave-under-the-families-first- coronavirus-response-act-correction)

  • Department of Labor Questions and Answers regarding the FFCRA

(https://www.dol.gov/agencies/whd/pandemic/ffcra-questions)

  • Department of Labor Questions and Answers regarding COVID-19 and the WARN Act (pdf available

through this link: https://www.dol.gov/agencies/eta/layoffs/warn)

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COVID RESOURCES

  • OSHA Guidance on Returning to Work (June 18, 2020) (pdf available at this link: https://www.osha.gov/)
  • U.S. Department of Labor and U.S. Department of Health and Human Services Guidance on Preparing

Workplaces for COVID-19 (March 9, 2020) (pdf available at this link: https://www.dol.gov/newsroom/releases/osha/osha20200309)

  • White House Guidelines for Opening Up America Again (April 16, 2020)

(https://www.whitehouse.gov/openingamerica/)

  • Colorado Seventh Amended Public Health Order 20-28, Safer at Home and in the Vast, Great Outdoors

(June 18, 2020) (https://drive.google.com/file/d/1BdMbwLeI0sY5xmvWk555jCewPvgTJb9e/view)

  • Colorado Executive Order D2020 091, Safer at Home and in the Vast, Great Outdoors (June 2, 2020)

(https://drive.google.com/file/d/1gzySbpk2MWLAHzfMaABcHGTKpxxqsHw0/view)

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ON THE FRONT LINES OF WORKPLACE LAW TM

Final Questions

Presented by: Presented by: Christine A. Samsel Todd Fredrickson Brownstein Hyatt Farber Schreck, LLP Fisher & Phillips LLP Phone: 303-223-1133 Phone: 303-218-3650 Email: csamsel@bhfs.com Email: tfredrickson@fisherphillips.com

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ON THE FRONT LINES OF WORKPLACE LAW TM

Thank You

Presented by: Presented by: Christine A. Samsel Todd Fredrickson Brownstein Hyatt Farber Schreck, LLP Fisher & Phillips LLP Phone: 303-223-1133 Phone: 303-218-3650 Email: csamsel@bhfs.com Email: tfredrickson@fisherphillips.com