Employment Flash - July 2020

This edition of Employment Flash summarizes key employment law issues related to COVID-19 as well as two seminal U.S. Supreme Court rulings that protect gay and transgender employees from discrimination, and clarify the standard for age discrimination suits against the federal government. We also discuss other labor and employment-related developments in the U.S. — including from the EEOC, DOL and NLRB — as well as in the U.K., France and Germany.

COVID-19 Spotlight

• Families First Coronavirus Response Act Amends FMLA
• CARES Act Expands Unemployment Compensation Programs
• Considerations for Returning to Workplaces in the Wake of COVID-19
• Los Angeles Enacts COVID-19-Related Ordinances Regarding Worker Rights of Recall and Retention

Additional US Developments

• Supreme Court Rules Employment Discrimination Laws Protect Gay and Transgender Employees
• Supreme Court Clarifies Standard for Age Discrimination Suits Against Federal Government
• EEOC Warns Employers Preparing To Reopen Not To Discriminate Against Older Workers
• DOL Publishes Workplace Posters on Families First Coronavirus Response Act
• DOL Finalizes New Overtime and Foreign Labor Certifications Rules
• NLRB Suspends Requirement To Notify Employees of Adverse Decisions for Employers Shut Down Due to COVID-19
• NLRB Issues New Standard for Ballots With Dual Markings
• New York Court of Appeals Holds That Postmates Delivery Drivers Are Employees Entitled to Unemployment Benefits
• District Court Weighs In on Enforceability Limits of New York Restrictive Covenants
• California Court Addresses Unlimited Vacation Policies
• Ninth Circuit Clarifies Disclosure Statement and Standalone Document Requirements Under the Fair Credit Reporting Act
• November Ballot Measure Could Classify California App-Based Drivers as Independent Contractors
• San Francisco Issues Emergency Rehire Order
• DC Paid Family Leave Now in Effect

International Spotlight

• The United Kingdom
• France
• Germany

COVID-19 Spotlight

With much material published about COVID-19-related employment issues, we provide an overview of information from employment-related COVID-19 publications that the Skadden Labor and Employment Law Group has distributed to date this year, in the order in which they were released, as well as links to each of the original publications. Please refer to the original publications for additional information. The summaries in the “COVID-19 Spotlight” below are based on information available at the time of the original publication. Given the frequent legal developments occurring in connection with the rapidly evolving COVID-19 pandemic, employers should seek guidance from counsel regarding the most recent developments.

As of April 1, 2020, the Families First Coronavirus Response Act (FFCRA) amended the Family and Medical Leave Act (COVID FMLA) and created a new Emergency Paid Sick Leave Act (COVID Paid Sick Leave) applicable to private employers with fewer than 500 employees. COVID FMLA provides up to 12 weeks of leave within a 12-month period to an employee who is unable to work (or telework) due to a need to care for the employee’s child if the child’s school or place of care has been closed or the child care provider is unavailable due to the COVID-19 public health emergency. The first 10 days of COVID FMLA are unpaid, unless the employee otherwise received COVID Paid Sick Leave or elects to substitute any accrued leave, with the remaining 10 weeks paid at two-thirds the employee’s regular rate of pay with a cap of $200 per day.

COVID Paid Sick Leave provides up to 80 hours of paid leave to an employee who is unable to work and is either herself or himself subject to a quarantine order, advised to self-quarantine or experiencing COVID-19 symptoms and seeking a medical diagnosis, caring for an individual subject to a quarantine order or who has been advised to self-quarantine, or caring for her or his child whose school or place of care has been closed or is unavailable due to COVID-19. If the reason for the employee’s COVID Paid Sick Leave is related to herself or himself, the leave is paid at the employee’s regular rate of pay with a cap of $511 per day. If the reason is related to the care of another, the leave is paid at two-thirds the employee’s regular rate of pay with a cap of $200 per day.

For more information, please refer to our March 27, 2020, chart on this topic.

The Coronavirus Aid, Relief and Economic Security (CARES) Act became effective on March 27, 2020. Among other provisions in the $2 trillion stimulus package, the CARES Act expands unemployment compensation programs in several ways:

• Pandemic Unemployment Assistance: Extends unemployment compensation through December 31, 2020, for up to 39 weeks to individuals who are unable to work due to COVID-19 and who are not traditionally eligible for unemployment benefits, including independent contractors, sole proprietors and those with insufficient work history.
• Federal Pandemic Unemployment Compensation: Provides an additional $600 weekly payment through July 31, 2020, to all individuals collecting unemployment compensation, regardless of the individual’s prior earnings.
• Pandemic Emergency Unemployment Compensation: Provides an additional 13 weeks of unemployment benefits through December 31, 2020 to individuals who have otherwise exhausted their benefit eligibility under state law.
• Fully Funded First Week: Provides federal funding to states to cover the cost of the first week of unemployment benefits. (Unemployment compensation claimants were traditionally ineligible for benefits during their first week of unemployment.)
• Work Share Program Expansion: Additional federal funds were made available to states to fully fund work share programs, under which employees receive partial unemployment benefits if their hours are reduced but not eliminated by their employer.

All states have opted in to the expanded unemployment compensation programs created by the CARES Act. Continuation or expansion of some programs, such as Federal Pandemic Unemployment Compensation, will require new legislation by Congress.

Another major aspect of the CARES Act is the Paycheck Protection Program (PPP), which originally allocated $349 billion for new partially forgivable small business loans to cover, among other things, payroll costs for employers with 500 or fewer employees. The PPP allows small businesses to receive fully forgivable loans for up to eight weeks of the cost of payroll and certain other expenses, provided that the employer maintains certain employee levels and compensation amounts.

For more information, see our March 27, 2020, client alert, “CARES Act Provides Much-Needed Stimulus for U.S. Businesses, Individuals.”

Employers should consider preparing policies regarding COVID-19 and the workplace by following employee return-to-workplace guidance, regulations, statutes and orders issued by federal, state and local governments and agencies, including the World Health Organization, the Centers for Disease Control and Prevention, the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration. In addition, employers should follow state and local stay-at-home orders.

COVID-19-related policies and protocols for implementing preventative safety measures include: (i) identifying where and how workers might be exposed to COVID-19 in the workplace; (ii) promoting handwashing and providing resources that promote personal hygiene; (iii) sanitizing the workplace regularly; (iv) maintaining and updating facilities (e.g., installing high-efficiency air filters); (v) restricting nonessential business travel; and (vi) creating training for employees regarding proper sanitization and prevention techniques. In addition, employers should consider measures to monitor and respond to infections, including: (i) requiring workers to stay at home if they are sick; (ii) monitoring for local outbreaks; (iii) preparing to manage employees’ leaves of absences under federal, state and local laws; and (iv) developing policies and procedures for employees to report COVID-19 symptoms or diagnoses, or for interacting with others with such symptoms or diagnoses. If an employee is diagnosed with COVID-19, employers should send the employee home immediately, disinfect surfaces in their workspace, inform other employees who had contact with the employee of possible exposure and maintain the confidentiality of the infected employee’s medical information as required by the Americans With Disabilities Act (ADA). Employers should update personnel policies based on federal, state and local COVID-19-related laws with respect to employee paid sick leave and leaves of absences. Employers may also consider drafting and implementing health certifications for employees and visitors at each worksite.

In connection with employees returning to the workplace, employers should train and inform employees regarding COVID-19-related office policies and procedures by providing return-to-work documents, such as wage payment notices and other onboarding paperwork, and updated policies, protocols and procedures, as necessary. Employers should also train and inform workers regarding personal hygiene and personal protective equipment. Employers should implement policies to minimize contact between employees, including by enforcing social distancing; modifying workspaces; decreasing the number of employees in the workplace; considering telecommuting, virtual communications and/or the specific job positions that should return to the worksite; and the order in which workers should return. Employers may screen employees for COVID-19 when entering the workplace, including by checking temperatures, asking questions regarding symptoms and/or requiring self-reporting. Employers...