NYC Earned Safe and Sick Time Amendments Effective September 30, 2020

By Saima Sheikh and Fanny Ferdman on October 2, 2020 Posted in New York

On September 28, 2020, New York City Mayor Bill de Blasio signed into law a bill (Intro. 2032-A (Cohen)) amending the New York City Earned Safe and Sick Time Act (ESSTA) to align it with the New York State Sick Leave Law (NYSSLL), which went into effect on September 30, 2020. For more information about the NYSSLL, please refer to our client alert. The effective date of the amended ESSTA law is also September 30, but some employers can require that their employees refrain from using any additional paid safe or sick leave until on or after January 1, 2021 Continue Reading

California Expands Family Leave to Employees of Small Employers

By Joseph S. Persoff on September 24, 2020 Posted in California

California passed a new law expanding family leave rights to employees working for employers with five to 50 employees. The family leave rights were previously limited to employees of employers with more than 50 employees.

Under this new law, employees of small employers would be entitled to up to 12 weeks of unpaid leave during any 12-month period to:

Bond with a new child.
Tend to the employee’s own “serious health condition.”
Care for a child, parent, grandparent, grandchild, sibling, spouse or domestic partner who has a “serious health condition.”
Undergo various duties related to active duty service in the U.S. armed forces by the employee or the employee’s spouse, domestic partner, child or parent.

A “serious health condition” is a physical or mental condition involving either inpatient care or continuing treatment or supervision by a health care provider. An employee qualifies for these rights upon 1,250 hours of service for the employer during the previous 12-month period.

The law takes effect January 1, 2021.

Whaddaya Call It? DOL Proposes New Independent Contractor Test

By Todd Lebowitz on September 23, 2020 Posted in Independent Contractor

Soda or pop? Pill bug or roly poly? What you call things depends on where you live. In 2014, the New York Times published this 25-question dialect quiz that will tell you, with startling accuracy, where you or your parents are from.

The test is fun, and you can see how words and dialects vary from region to region.

But some things should not vary from region to region — federal laws.

The Fair Labor Standards Act (FLSA) has one definition of “employ,” but when it comes to deciding who is an employee and who is an independent contractor, different courts in different states apply different standards. The DOL is trying to fix that.

Under a proposed new rule, released on September 22, the same test would be used in all parts of the country, regardless of whether you call your lunch sandwich a hoagie, sub, or grinder. Continue Reading

Texas Announces Plan to Ease Restrictions and Allow Expanded Operations of Most Businesses Statewide

By Ashlee Grant on September 18, 2020 Posted in Texas

Citing a continued decline in the rate of hospitalizations throughout the state, Texas Gov. Greg Abbott issued a pair of executive orders on Thursday, Sept. 17, 2020, aimed at easing restrictions on businesses and hospitals throughout the state. Most notably, most businesses throughout the state will be allowed to operate at 75 percent capacity beginning Monday, Sept. 21, 2020.

Executive Order GA-30’s Expanded Occupancy Levels

Since June 28, 2020, Texas businesses have been allowed to reopen, but only at 50 percent capacity of their facilities. Under Executive Order GA-30, restaurants, retail stores, nonessential office buildings and manufacturing facilities, gyms and exercise facilities and classes, museums, and libraries will be allowed to operate at 75 percent capacity of their indoor facilities. The order also completely eliminates occupancy limitations on outdoor areas, establishments and venues, including restaurant patios and outdoor dining areas, as long as social distancing is maintained between different groups. Bars, however, will remain closed, since they are considered hot spots for the spread of COVID-19. Continue Reading

Anxious About Tort Liability? Ohio Enacts House Bill 606, ‘Good Samaritan Expansion Bill,’ to Limit Employer Liability for COVID-19 Exposure

By Teddy Webb on September 17, 2020 Posted in Civil Action Lawsuits

Ohio Gov. Mike DeWine signed HB 606 into law on Monday, Sept. 16, 2020. Known as the “Good Samaritan Expansion Bill,” the law protects employers, both private and public, from civil action lawsuits for damages stemming from COVID-19 exposure, except in reckless or wanton exposure cases. In relevant part, the new law reads:

SECTION 2. (A) No civil action for damages for injury, death, or loss to person or property shall be brought against any person if the cause of action on which the civil action is based, in whole or in part, is that the injury, death, or loss to person or property is caused by the exposure to, or the transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof, unless it is established that the exposure to, or the transmission or contraction of, any of those viruses or mutations was by reckless conduct or intentional misconduct or willful or wanton misconduct on the part of the person against whom the action is brought. Continue Reading

DOL Issues New Guidance on Several FFCRA Issues

By Greg Mersol on September 14, 2020 Posted in Department of Labor

Introduction

The Families First Coronavirus Response Act (FFCRA) was enacted just under six months ago in the wake of closings prompted by the then new coronavirus pandemic. As most employers know, the FFCRA created leave rights for many employees of employers with fewer than 500 employees for absences caused by the virus and its aftermath.

The FFCRA was itself a large and complicated bill, assembled in a remarkably short period of time, that borrowed aspects from the federal Fair Labor Standards Act and Family and Medical Leave Act (FMLA). Not surprisingly, the bill failed to answer a number of questions posed by employers and employees alike, and during the weeks that followed its enactment, the U.S. Department of Labor (DOL) issued scores of FAQs addressing many of those questions, and on April 1, 2020, only two weeks after the bill’s passage, it issued regulations that, for the most part, echoed the statements made in the FAQs. We have addressed many of those matters in this firm’s own FAQs about the FFCRA. Continue Reading

California Enacts COVID-19 Sick Leave for Workers

By Nancy Inesta and Joseph S. Persoff on September 11, 2020 Posted in California

Last week, California enacted a law, Assembly Bill (AB) 1867, providing supplemental COVID-19-related sick leave to food-sector workers and workers employed by a company with 500 or more employees nationwide. The law requires employers of such employees to provide sick leave – in addition to any other leave the employee may be entitled to – for the following three situations:

The worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
The worker is advised by a health care provider to self-quarantine or to self-isolate due to concerns related to COVID-19.
The worker is prohibited from working by the covered worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

Workers’ Compensation and Employer Liability in the Era of COVID-19

By Joel Griswold and Lindsay McCall on September 10, 2020 Posted in Workers' Compensation

With companies continuing to reopen for in-person operations amid the coronavirus (COVID-19) pandemic, many employers are left wondering if they could face increased liability related to employees contracting COVID-19 in the workplace. Liability related to contracting a virus in the workplace could take the form of a negligence action or a claim for workers’ compensation.

Typically, under state workers’ compensation laws, routine transmissible viruses such as the flu or common cold do not provide employees with a valid claim for workers’ compensation. Additionally, even if such diseases are covered by state workers’ compensation laws, employees generally have the burden of proving that their contraction of the virus arose out of and in the course of their employment. Given COVID-19’s transmissibility, this could be a challenging hurdle for employees. However, some states have introduced legislation that either lowers or shifts the burden of proof in workers’ compensation cases. Some of this new legislation is outlined below, but for a comprehensive look at workers’ compensation and employer liability in a particular state, contact the BakerHostetler COVID-19 Employment Issues Coronavirus Task Force. Continue Reading

Joint Employment Test Gets Muddied Again: Federal Court Rejects New DOL Test

By Todd Lebowitz on September 9, 2020 Posted in Department of Labor

Muddy Waters is how you want your blues, not how you want your laws.

A federal district judge in New York yesterday kicked up a lot of mud in an area of the law that had finally seen some clarity – the definition of “joint employment.” Now we’re back in the muck.

Yesterday’s ruling struck down the Department of Labor (DOL) regulation on “joint employment.” The DOL’s regulation, 29 CFR 791.1 to .3, took effect in March 2020, after a Notice and Comment Period that included 57,000 comments. The purpose of the DOL’s rule was to bring clarity to the meaning of “joint employment” under the Fair Labor Standards Act (FLSA). Before the rule, the meaning of “joint employment” had been a grime-filled slopfest.

Return to Work: What Employers Should Know About AB 1281, CCPA Notice Requirements and Recent Labor Law Guidance

By Alan L. Friel, Jeewon Serrato and Catrina Wang on September 8, 2020 Posted in California

While most privacy news and alerts have been focused on the collection and processing of customer data (see our earlier posts about interest-based advertising and the House Judiciary Committee’s Antitrust Hearing with Big Tech, for example), privacy issues related to data collected from employees and business-to-business (B2B) contacts increasingly are becoming a concern for businesses. As we have highlighted in the past, laws outside the U.S., like the EU General Data Protection Regulation (GDPR), have extraterritorial scope, and they provide equal protections to all natural persons, including customers, employees and B2B contacts. The California Consumer Privacy Act (CCPA) follows this global trend and defines “consumers” as California residents, thus providing the same level of rights to employees and B2B contacts who are California residents as well as customers. This article provides an overview of the latest legislative changes under the CCPA as they relate to company obligations concerning employee and B2B data, including exemptions, as well as practical tips for assessing when a company should reexamine employee and B2B privacy issues, including return-to-work (RTW) strategies. Continue Reading