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The Impact of COVID-19 on Employment Law

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The Impact of COVID-19 on Employment Law

This course will cover the various ways COVID-19 has impacted employment law. We will also discuss changes in employment law that are likely to develop as the world continues to adjust to COVID-19 and the “new normal.” While COVID-19 has affected almost every part of day to day living in the United States and abroad, the workplace will undoubtedly be a different place due to COVID-19. It is important for attorneys assisting clients with issues related to COVID-19 to understand how the employment law landscape has changed due to COVID-19.

Presenters

Abby Larimer
Counsel
FordHarrison

Transcript

Abby Larimer: Hi, my name is Abby Larimer and I am counsel at Ford Harrison. I've been practicing employment law for about a decade now, and this past year was certainly like no other. This course will cover the various ways that COVID-19 has impacted employment law. We will also discuss changes in employment law that are likely to develop as the world continues to adjust to COVID-19 and the new normal. While COVID-19 has affected almost every part of day to day living in the US and abroad, the workplace will undoubtedly also be a different place due to the pandemic. It is important for attorneys who are assisting clients with issues related to COVID-19 to understand how the employment law landscape has changed due to COVID-19.

  Some of our learning objectives today will be to understand the legal developments and employment law related to COVID-19, to understand what employers can and cannot do when calling employees back into the workplace, to discuss litigation trends related to employment law and COVID-19, to understand areas where legal developments are expected to related to the workplace and understand current employment law as it relates to vaccines. Of course, for each of these topics, we could probably spend a full hour on each one and there's so much that everyone knows that has happened in the past year. So we'll just try and cover at least what are some of the most important trends even at a high level to give you a basic understanding about what we've been seeing in employment law and what we think we will continue to see. And also like everything related to COVID-19, this is a constantly changing situation with regulations and guidance coming out all the time. And so it's really important to always try and stay up to date and make sure that the information you have is the most recent.

  So on that note, I think we all remember when the pandemic first started and how it went in a very short amount of time from okay, are we going to be home for a week to suddenly we're into this remote workforce. And I know I had calls it went from just a few days from determining whether employees were still going to be going onto sales trips to suddenly dealing with employee furloughs and layoffs and pay cuts. So one initial area of the law that had an immediate impact due to COVID-19, had to do with the federal WARN adjustment and retraining notification act. This is more commonly known as the federal WARN Act. WARN generally requires large employers, those with a hundred or more employees to provide at least 60 days advanced notice to employees before a plant closing or a mass layoff affecting more than 50 people at a single site of employment. So of course, when COVID happened, a lot of businesses said, "We have to lay everyone up and we cannot provide the 60 day notice."

  So one of the first legal questions that employers had to deal with was whether COVID-19 triggered the natural disaster or unforeseeable business circumstance exceptions under WARN, which would permit employers from being exempted from the requirement of providing the normal notice that they would under federal WARN. And this still is a question that is working its way through the legal system over a year later. In one recent case out of Florida, Benson versus Enterprise Leasing Company of Florida, a court refused to dismiss a WARN class action that was related to the COVID-19 layoffs. Without evaluating any of the evidence and just looking at the allegations and the pleading, the judge said that that the layoffs were not a direct result of COVID-19, but an indirect result. And thus, the judge did not dismiss the class action. So I think it's going to be really interesting to see what courts are going to determine.

  And we can expect that judges and courts are going to very carefully scrutinize layoff decisions that were made at the outset of COVID to see whether depending on the real facts of each case if employers did properly avoid liability under WARN due to COVID-19, or if they're not going to fit into any one of these limited business exceptions. So this is just one of the many examples of employment law that was immediately impacted by COVID. And again, as everything continues to change, we know that employment laws will too. It's also likely that as litigation continues and cases continue to make their way through the court system, that there is going to be a bit of inconsistent guidance from judges while the post COVID employment landscape gets sorted out. Now, we'll talk about some of the other areas of employment law that have been impacted by COVID-19 and what is currently happening and what we expect to see. And again, we'll just try and fit as much in here as possible.

  Another area of employment law that was immediately impacted by COVID-19 was employee leave or paid sick leave. Paid sick leave law was already developing quickly, even before COVID with a lot of state and local governments passing different regulations, requiring employers to provide a patchwork of various forms of employee leave or employee paid sick leave. COVID-19 really sped up this trend and the Biden administration has also said it will make paid sick leave an area of focus. So some of the first legislation that came out of COVID-19 was the Families First Coronavirus Response Act, which was passed around March 18th of 2020. And this required certain employers to provide emergency paid sick leave and emergency family and medical leave. The act applied to private employers with under 500 employees and certain public employers. This leave was funded by a dollar for dollar payroll tax credit.

  So with regard to emergency paid sick leave this entitled covered employees to be able to receive two weeks or up to 80 hours of paid sick leave at the employee's regular rate of pay when the employee was unable to work because of the employee being quarantined pursuant to federal state or local government orders, or the advice of a healthcare provider and or the employee was experiencing COVID-19 symptoms and seeking a medical diagnosis. The act also provided for two weeks or up to 80 hours of paid sick leave at two thirds of the employee's regular rate of pay, because the employee was unable to work due to a need to care for an individual subjected to a quarantine, pursuant again, to a federal state or local government order or advice to the healthcare provider or to care for a child under 18 years of age whose school or childcare provider was closed or unavailable for reasons related to COVID-19.

  Employees were also allowed to take paid sick leave at two thirds of the employee's regular rate of pay if the employee was experiencing a substantially similar condition as specified by the Secretary of Health and Human services. Additionally, employees were entitled to receive up to an additional 10 weeks of paid expanded family and medical leave at two thirds the employee's regular rate of pay where the employee who had been employed for at least 30 calendar days was unable to work due to a need to care for a child again, whose school or child care provider was closed or unavailable for reasons related to COVID-19.

  And if you remember studying for a final, cramming the night before and thinking, "Well, when I'm a lawyer, I'm never going to have to learn a law in one night before I have to start advising clients." Well, if that was how you approach studying in law school, then you were prepared for when the FFCRA rolled out. FFCRA leave was initially set to expire on December 31st, which in March of last year, really sounded like it was going to be in place for too long. And why on earth would we need to have the FFCRA go all the way to December? Well, of course, here we are now. And obviously there was a need for it to continue. So even though the FFCRA expired on December 31st because of the Consolidated Appropriations Act, FFCRA leave became optional starting effective January 1st, 2021.

  So this meant that there was no longer a requirement for covered employers to participate and offer this kind of leave to employees, but employers would continue to receive tax credit for any payments made to employees for leave for covered reasons. This was initially extended through March 31st. Then in March of 2021, with the American Rescue Plan, this extended the deadline beyond March 31st, again, allowing employers to voluntarily continue the program. Employees may now use such leave for also obtaining the COVID-19 vaccine, recovering from any illness or condition related to getting the vaccine or seeking or awaiting the result of a COVID-19 test. If the employee has been exposed to COVID-19, or the employer has requested the test.

  The available leave was also reset as of April 1st. So employees were eligible for up to 10 days of emergency paid sick leave, and 10 weeks of an emergency FMLA between April 1st and September 30th. And again, the employers are not required to provide an FFCRA leave, but will be eligible for these payroll tax credits if they do so and otherwise follow the requirements of the FFCRA. And this was really supposed to help employers encourage employees to get vaccinated and to provide an option for employers seeking to encourage or require employees to get the COVID-19 vaccine.

  Another interesting change in the American Rescue Plan Act is that they included some non-discrimination language for both paid sick leave and EFMLA. The American Rescue Plan Act also contains non-discrimination language for both paid sick leave and EFMLA. And in this case, if an employer discriminates and only provides leave in favor of highly compensated employees or full-time employees, or on the basis of employee tenure, then the employer is not going to be able to obtain tax credits for any leave that they have paid under the current FFCRA framework. Also, under initially the FFCRA state and local government employers were not entitled to receive the payroll tax credit, but under the American Rescue Plan Act, it appears that the credit has been extended to some of these employers. So certain governments may be eligible for these dollar to dollar payroll tax credits.

  And I certainly think because this continues to go forward, as we continue to have developments with COVID-19, this is probably something that's going to change. Is it going to be extended again in September in some various form? We've certainly seen a huge rise in litigation related to employee leave and a lot of this saying that employers did not properly administer FFCRA leave. So it's going to be interesting again to see how that litigation plays out and where the courts fall. There's other interesting questions that have come up with the American Rescue Plan Act. For example, when it's voluntary, can employers offer one kind of leave and not the other? So maybe you offer emergency paid sick leave, but not the expanded FMLA and still qualify for the tax credits. Again, all things that we'll be waiting to see as this situation continues to go forward.

  So unemployment was another area where the law changed a lot due to COVID-19. The Coronavirus Aid Relief and Economic Security Act, or the CARES Act as more commonly known, was signed into law on March 27th. And one of the biggest impacts of this law was that it greatly expanded who was entitled to apply for unemployment insurance. Unemployment insurance has typically been limited to people who were just classified as employees. And I think what happened with COVID is everyone saw the need for other types of individuals and workers to be able to get unemployment insurance. So this referred to independent contractors and also the self-employed became eligible for certain of unemployment insurance.

  And there were all kinds of different enhanced unemployment programs, including the Pandemic Unemployment Assistant Program, Pandemic Emergency Unemployment Compensation Program, the Federal Pandemic Unemployment Compensation Program and the Mixed Earner Unemployment Compensation Program. And now by mid-2021, we are seeing that a lot of these enhanced federal benefits are ending. And interestingly enough, this is also causing some litigation. For example, some states are being sued because of their decisions to drop the extra unemployment benefits. We can likely expect that unemployment insurance benefits is going to be another area of law where there will be a lot of changes in the next few years. I think this really highlighted the need that a lot of Americans for unemployment and the Biden administration has proposed continuing to bolster unemployment insurance benefits going forward. So we'll see if there will be some expansion or recognition of the need for unemployment, for independent contractors and the self-employed.

  Another question that came up for a lot of employers related to unemployment was what to do about remote employees. And these were not the remote employees that were teleworking before COVID. We're talking about the people who maybe lived in New York City and then suddenly relocated to Florida for what they thought would be two weeks and then suddenly it turned into six months. Questions rose which state should you file for unemployment when these employees are remote and temporarily or not so temporarily working somewhere else? Each state has different rules about who would be considered an employer. Previous guidance from the Department of Labor in determining the correct state for remote employee or an employee who's performing work in multiple states is looking at the localization of services. So where's the employee working the majority of the time, the base of operations, which is where the employee has a base of operations and performs some services, the place of direction and control, which is where the employee is receiving direction control from the employer and performs, again, some services, the residence where the employee resides or any sort of reciprocal agreements of state to have reciprocity.

  So again, it's going to be interesting as we move to this remote and possibly hybrid workplace, and people might be splitting their time between two different states in multiple locations. What's going to happen with unemployment insurance, and is there going to be some more common rules instead of looking at everything state by state? And we'll just have to wait and see. So moving on to our next topic, another law that you've probably heard about, even if you're not an employment lawyer in the news constantly is the Americans with Disabilities Act and all the different issues that arose under the ADA. So generally the ADA restricts how much medical information an employer can ask about medical tests and diagnosis. And generally, again, these are a lot of limitations about what is considered to be a medical examination of employee.

  And generally employers are only allowed to ask certain questions when they are job related and consistent with business necessity. And again, there's different rules depending on different stages of the where the employee is, if it's a hire. The ADA generally restricts how much medical information an employer can ask about medical tests or diagnoses to an employee. This is what's considered a medical examination of employee and generally any sort of questions... And there's a lot of guidance out there on this that depending on as an applicant and our current employee, but it has to be tied back to be job related and consistent with business necessity.

  Now the EEOC issued some guidance that recognized the public safety concern at stopping the pandemic and did provide some guidance on what employers can ask again when it is job related and consistent with business necessity. So the EEOC has said that employers can ask about exposure, adherence to CDC guidelines, including social distancing and whether the employee has symptoms of COVID-19. Now one interesting thing is that because of GINA, the Genetic Information Non-discrimination Act, employers cannot ask about family members. This is considered an improper medical question about family members that would be eliciting family history, which is not permissible under GINA. Now you could again, ask employees whether they've had contact with anyone diagnosed with COVID-19, or who may have symptoms.

  And there are a lot of misconceptions about the ADA and what employers can and cannot ask. And a lot of people are under the impression that you cannot ask anything about an employee's medical status under the ADA and that's not true. If an employee refuses to take part in a screening or refuses to provide some of this information and we'll get into some more of the exceptions with vaccines in a minute, but generally an employer can bar an employee from coming in if they're not going to provide this information. Again, there's a strong public policy in preventing the spread of the pandemic and preventing outbreaks in workplaces.

  Another area where we've seen a lot of litigation under the ADA is related to accommodation requests. So under the ADA, an employer's obligation is to explore if the employer can provide a reasonable accommodation that allows the employee to perform the essential functions of their job. The interactive process under the ADA is always supposed to be a very fact specific inquiry. We are seeing a lot of litigation right now related to accommodation requests and the ADA. And probably the two most common are with remote working and personal protective equipment. So this doesn't cover someone who just generally doesn't want to report to work because of a fear. There actually does have to be some sort of disability or underlying medical condition for this request.

  And there's no bright line rule as to whether an employer has to offer remote work or specific PPE in every situation. Again, this is going to depend on the specific job, the facts of the situation, what is going on with the employee, whether it's going to allow the employee to perform the essential functions of their job. And this is another area that's also going to continue to develop of course, as vaccines become more commonly available and once vaccines get FDA approval. And I think we'll again, just see a lot of development in what employers are doing and how courts are coming down on these kinds of cases. And again, while a generalized anxiety is not enough to keep someone out of the workplace, but someone may have legitimate and real underlying mental health conditions that could play into this. And so I think sorting through that is going to be another challenge for employers and the courts.

  And one of the most important parts about the ADA that keeps coming up with COVID is that the ADA requires employers to keep all employee health information confidential. And so this can include certain information related to an employee's vaccine status and information about the employee's symptoms related to COVID-19. And again, it must be kept in a confidential medical file and kept separate from the employee's regular personnel file.

  The next thing we're going to talk about is workplace safety. So the part of the Department of Labor that governs workplace safety is OSHA, which stands for Occupational Safety and Health Administration. So where OSHA came in as it relates to COVID-19 while there's nothing specific about a pandemic under OSHA, OSHA does have a general duty clause, which says that, "Each employer shall furnish to each of his employees employment and a place of employment, which are free from recognized hazards that are causing or likely to cause death or serious physical harm to employees." And this is section 5A1 of the OSHA act of 1970.

  And again, while not necessarily being direct, this is something saying that employers do need to take precautions to prevent a COVID outbreak from happening in the workplace under these guidelines. OSHA also has record keeping requirements and OSHA did issue some guidance too, that COVID-19 could be considered a recordable illness. And under the record keeping requirements, COVID-19 becomes a recordable illness if the following conditions are met: if the case is confirmed as a COVID-19 case by CDC guidelines, if the case is determined to be work related as defined by OSHA regulations, and the case involves one or more of the general recording criteria set forth in OSHA regulations as well.

  Factors to determine work relatedness that would be examined include the reasonableness of the employer's investigation into work relatedness. Again, with the understanding that sometime a small employer cannot conduct an extensive medical inquiry, but rather can take steps such as asking the employee how they believe they contracted COVID-19, while respecting privacy discuss with the employee at his work and out of work activities that could have led to COVID-19 illness that could possibly rule out the workplace and also review the employee's work information for any sort of potential exposure.

  Another factor is going to be the evidence that was available to the employer and evidence that a COVID-19 illness was contracted at work. Employers do not need to record a COVID-19 illness, if the employer cannot determine whether it is more likely than not that the workplace exposure cause COVID-19 after a reasonable and good faith inquiry. OSHA has also issued some industry specific guidelines, particularly for healthcare workers, which obviously were very directly affected by COVID-19. And some of these new guidelines are actually being rolled out in July of 2021. And under these guidelines, non-exempt facilities, healthcare facilities have to conduct a hazard assessment and have a written plan to mitigate virus spread. Certain employees must also be provided with N95 mask respirators and other personal protective equipment and receive paid time off for vaccination and recovery from vaccination side effects.

  And even those employers who are not considered to be healthcare or in the healthcare industry, OSHA still recommends that employers classify the risk of worker exposure to COVID-19 based on an occupational risk period and based on an occupational risk pyramid. And so the risk of COVID-19 during an outbreak is going to vary, of course, depending on the industry, again, requiring individual risk assessments focused on again the specific industry and what's going on with that employer. Another industry that's attracted a lot of attention with regard to workplace safety has to do with the meat industry, meat processing. And there were some early breaks at meat processing plants that made it into the news.

  And I think we can continue to see OSHA possibly release more guidance. I think a lot of people were really wondering when we were going to receive the first OSHA guidance in 2020 and it has been a little slow moving, but hopefully now we'll there will be a little more guidance out there for employers to follow. So workers' compensation, another area of employment law that was impacted by COVID-19 and has to do with workplace safety. Generally under workers' compensation workers compensation laws are going to vary against state by state, generally routine illnesses and infections are not going to be covered under worker compensation laws. A common approach taken by multiple state governments with regard to COVID-19 to provide some protection for employees who have been working is to make infections presumed to have occurred at work under certain circumstances.

  And this is particularly for certain categories of workers like essential workers, including first responders, grocery store workers, educators, and health providers. And sometimes the presumption also has to do with when the employee last reported to work and were they required to go in. And while initially some workers' compensation cases were they were actually being dismissed and employees weren't getting reimbursed for COVID related costs that has been changing going forward. And we have been seeing some results where their workers' compensation in favor of the employee is saying that this was something that was contracted at work and should be covered by workers' compensation.

  So again, we're just going to have to see how this is going to change as people start coming back to work, and we get more people actually in the workplace and not working remotely, if workers' compensation is going to be expanded. And again if there's going to be more variants of COVID and how this keeps going. So another area to watch another area unfortunately, where employers have to make sure that they're compliant with many different states and make sure that they're following each state's particular guidance.

  There were also developments in the wage and hour fields as if employers didn't already have enough difficulty trying to correctly determine exempt or not exempt status. COVID also threw a wrench into a lot of the analysis behind an employee's classification under the Federal Fair Labor Standards Act. So just as a reminder, generally employees that work over 40 hours in any given work week are entitled to be compensated. Generally employees that work over 40 hours in any given work week are entitled to be compensated at a rate at one and a half times a regular rate of pay for that overtime worked over 40, unless they can be somehow exempted from the FLSA or whatever applicable state law could apply. So as a reminder to be exempt as an administrative professional, the employee must be compensated on a salary or fee basis, that's defined in the regulations, at a rate that's not less than $684 per week.

  And the employee's primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employee's customer. And the employee's primary duty must include the exercise of discretion and independent judgment with respect to matters of significance. To satisfy the executive exemption, an employee must be compensated on a salary basis as defined in the regulations again, at a rate not less than $684 per week. The employee's primary duty must be managing the enterprise or managing a customarily recognized department or subdivision of the enterprise. And the employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent and the employee must have the authority to hire or fire other employees or the employee's suggestions and recommendations as to hiring, firing, advancement, promotion or any other change of status must be given particular weight.

  Other common exemptions include the outside sales exemption, which applies to an employee's whose primary duty is making sales or obtaining orders and who is customarily and regularly engaged away from the employer's places of business and the retail sales exemption, which does require that a certain portion of the employee's pay is in the form of commissions. So if you remember at the beginning of this talk, we talked about when everyone started doing furloughs and pay cuts and people were sent home transitioned to a workforce. And of course a lot of people had their job duties changed during that time. For how long? Maybe a couple weeks, maybe a couple months. But one thing to note is whether an employee's job duties could have changed so drastically that they no longer became exempt. So maybe for example the executive exemptions, somebody is normally exempt from overtime because they're responsible for managing employees.

  Well, what if all those employees that they're normally managing have been furloughed? Or someone who maybe under the administrative exemption. Before maybe their primary job duty did include discretion and independent judgment with respect to matters of significance, but due to a lack of work, perhaps the employee was in the hospitality industry, which drastically changed almost overnight with people not going to hotels. So with someone who was previously exempt, was this classification proper for them going forward. Initially with outside sales exemptions someone who's not traveling, it's unlikely that the entire outside sales exemption went away, but also what's going to happen to that as we move forward. And you don't have the traveling salesman going door to door, who's going to be at someone's house maybe that they're conducting meetings all over Zoom now. And what's that going to look like?

  And then did someone's pay either bring them below a salary threshold or for a retail sales exempt employee, perhaps their commissions really dropped. And so they're no longer qualified for that exemption. So again one of the unintended side effects of some of these immediate impacts of COVID-19 that I think people thought at first, this is going to be one or two weeks. And now over a year later we're trying to figure out again, what does this mean for this area of law?

  And also employers may have challenges when they're performing screening procedures for employees that include temperature checks and making sure that they're still compliant with any applicable wage and hour law, including the FLSA or any state law. California is pretty specific on this, for example but making sure that if the screening procedures are taking so long that this becomes compensable time, that employees are being compensated for this.

  So now onto one of the hottest topics right now, which is the issue of vaccines. So one of the first questions that a lot of people were getting can an employer mandate having all of the employees get vaccinated. And a lot of employers, I think, shied away from this initially, because they were just worried that if this became a requirement that so many people would choose not to get at the vaccine and then quit, that they would lose a substantial part of their workforce. There were some studies that said approximately 30% of the workforce would quit immediately if they were required to get a vaccine.

  And guidance has been that employers generally can require employees to get vaccinated with a few exceptions, going back to the ADA. If the employee has a disability or medical condition that prevents them from getting vaccinated or under Title VII, if an employee has a sincerely held religious belief, practice, or observation that also prevents them from getting vaccinated. And for employees who are under these categories, an employer again, should grant a reasonable accommodation unless doing so is going to cause an undue hardship, which is more than a de minimis cost to the employer.

  Something else to flag is that if you're dealing with a unionized workforce, a vaccine mandate may require some bargaining. And in a very recent court decision, this is on June of 2021 in Bridges versus Houston Methodist Hospital, a court actually did uphold that the employer was entitled to issue a vaccine mandate. This is when a group of employees at a hospital were required to get a vaccine, brought a lawsuit against the employer over this mandate. And again, the court came down and said, "Yes, employers, they are entitled to require the employees to get a vaccine." This is something that also we could see some differing court opinions on this topic. It may also change when the vaccine becomes FDA approved and is no longer authorized under emergency use.

  And we may also see some other developments as things happen like we have to get booster shots and the initial vaccine isn't going to be enough. And if there's going to be again resistance to further shots down the line. So since a lot of employers were apprehensive about requiring a vaccine or having an employee mandate, a lot of employers decided to offer incentive programs. So the EEOC guidance said that employers can institute a vaccine incentive program so long as the incentive was not significant enough as to be coercive. And the EEOC said that this was permissible, even though a pre-vaccination questionnaire may require some disability related screening questions.

  Another challenge for employers was trying to determine if employees' family members would also get vaccines and whether the employers could do anything to also help incentivize or require family members. And actually due to GINA, while employers can offer a vaccine for a family member without an incentive, employers cannot do incentive programs for family members because the pre-vaccination questionnaire would solicit information about family medical history that's otherwise not allowed under GINA. But employers can ask about the vaccine status of family members, because that does not solicit information about the medical history. It's just about their vaccine status. I think we can expect to see more litigation related to employees challenging any sort of vaccine mandate.

  So far, haven't seen a lot of employees challenging the incentive programs. It seems to be that most people were happy to get some sort of incentive for getting the vaccine, but definitely will be interesting to see and watch as this continues to go on. Another hot topic just overall in the news is privacy, data privacy and privacy rights. And we'll talk a little bit now about employee privacy rights. This not something to gloss over when it comes to the pandemic. We've certainly talked a lot already about the ADA and keeping medical information confidential and separate from the employee's personnel file. Another common misconception that you probably see from your crazy aunt or uncle on Facebook, is about HIPAA. They can't be asked by their employers, whether they've been vaccinated or had COVID because of HIPAA.

  And generally, actually HIPAA does not apply to employers. So that is just something that is not true. HIPAA, however, does apply to group health plans. So there are some questions as to whether COVID-19 could trigger HIPAA coverage as it relates to group health plans. So let's say that an employer is requiring a mandatory return to work COVID-19 test, would this become some sort of medical benefit that could trigger HIPAA? But again, HIPAA is not going to prevent an employer from generally asking about vaccine status.

  Another very interesting area of employee privacy rights that's less on the federal level, but more on the state level has to do with the monitoring of employees, either remote or in the office. So I think a lot of people when people first went remote or very concerned about employees, continuing to perform all their job duties and wanted to know could they videotape employees, could they otherwise take secret pictures of employees through their camera. And those certainly bring up some very interesting privacy implications that I think will continue to develop again, as we go into a remote and hybrid workforce.

  I have also seen questions about whether employers can track employees who are in the workplace to ensure that they're conforming with social distancing guidance. And again, we get into some really tricky areas here. For example, California prohibits employers from tracking employees without the employees' consent. So let's say, you want to say, "Okay. Everyone has to say within six feet of each other, and we're going to enforce this by somehow monitoring where our employees are coming and going," that's something to really be wary about, but again, could see some additional guidance on this going forward.

  Moving on to our next topic discrimination. So discrimination and particularly retaliation claims really made a bulk of employment law and employment litigation. And that's taken a backseat right now to a lot of these other issues, but there's certainly been employment law changes that have come out due to COVID. So for one, the EEOC that it's paying particular attention to and has passed a resolution condemning violence against Asian Americans and Pacific Islanders with again, not just violence, but discrimination and harassment with particular concerns of race and national origin claims arising out of the pandemic.

  Additionally, with regard to employee furloughs, employers need to be careful that when they are bringing their employees back, are they bringing everyone back for neutral job related reasons. And we are seeing some litigation that arises from people feeling like they were discriminated against based on whether they were called to come back or not called to come back. Again like employment law, everything's across the board. So employers would be mindful to perform some sort of analysis and make sure that they're not being discriminatory. And I think we can expect that as we continue to bring people back and transition back into the workplace and some people come back or not that there could be, again, a rise in these kinds of discrimination claims.

  And another question that I'm also seeing a lot too has to do with discrimination based on vaccination status. And again, generally just vaccinated or unvaccinated is not going to be a protected category under federal law. Unless again, we're talking about the ADA and religious accommodation. So like this case I mentioned earlier where the employees were allowed to have a mandate as it stands now and certainly with regard to a lot of the different guidelines that we're getting from the CDC that vaccinated and unvaccinated people can be treated differently, that different safety rules are going to apply to people who are vaccinated and don't have to wear a mask. Whereas likely if you are unvaccinated, you're still going to have to be wearing a mask in the office and your work might be a little restricted and that's not going to be something that's going to be discriminatory federal law. I think we can also expect to see some harassment claims arise out of these same categories. Harassment against Asian Americans, alleged harassment based on vaccination status, unvaccinated status and what would happen with that?

  We've already touched on some remote workforce issues, but I did also want to talk about those in a little bit more detail. Again, this probably pushed us 20 years ahead into where the United States could be with remote work. And so many employers maybe had some level of remote work, but really we're not equipped to handle this sudden movement to a remote or hybrid workforce as it happened. So one immediate area where there are a lot of remote work issues about going back to wage and hour, how are employers effectively monitoring use time when they're home. And the Department of Labor did actually issue some helpful guidance on one longstanding rule, the Continuous Workday Rule. And under the Continuous Workday Rule, generally all time between the first principal work activity and the last principle work activity of the day, if you think from whistle to whistle, is considered to be compensable.

  So earlier in 2020, the DOL issued guidance relaxing this rule for employees teleworking because of COVID-19 reasons, with the recognition that the workday is looking a little bit different than it did before. So if you think before someone is coming into the office and they're clocking in, working throughout the day, maybe you take a couple small breaks. That's nothing like what happened to a large part of the American population, which you might work a four hour chunk in the morning and then you have to also become a kindergarten teacher and then go back to work later in the day. And certainly all of that different time is not going to be considered compensable under the FLSA.

  The Department of Labor also issued some guidance at the end of 2020 saying that midday commuting time when an employee is working part of the day at home and then heads into the workplace is also generally not going to be compensable time. And under the FLSA normally commuting time is not considered to be compensable time. So the time that an employee is driving to work and driving home for work is not also going to be that are part of the workday.

  So in 2020, this guidance that came out from the Department of Labor said that this also applies when somebody is now having to commute in the middle of the day. Before someone might be commuting in the morning, that would be logical, but now someone might have childcare obligations. And maybe again, they're working at home part of the day, working in these different blocks of time. And so even if they are working at home for part of the day and then drive into the office later, that that part of the commute was not going to be compensable.

  And so, again, where this is going to get really interesting going forward, this guidance only applied to people who were teleworking due to COVID-19. And what about all the other remote workers who were working remotely before? And what happens as a lot of American employers are going to be adopting this remote or hybrid workforce? How are the wage and hour laws going to change to keep up with this and reflect the reality of how a lot of people are performing their jobs now.

  I think we can also expect to see there may also be some change is about legally what could constitute harassment. Harassment legally has been considered to extend behavior that can occur outside the workplace, but it's certainly taking on a different form as people are now interacting with their coworkers over different mediums, like Zoom. I had a moment at first when I thought, oh wow we're now that all employees are working away from each other, no one's in the workplace, that we're going to see a lot of these claims go down because if people are interacting less or in different ways, there's just not going to be this opportunity, but certainly that was not correct.

  I think we all know of a very famous incident in the news with a certain CNN legal analyst in a Zoom meeting and forgetting that his camera was on. And so I think that's something that employers, again, need to be wary about. And how is the law around here going to change because of people working remotely. With remote workers, we'll also see a lot of changes related to absences leaves and PTO that again, I think we will have some changes in our leave laws, but what's going to change with a much bigger part of the population working remotely now? Are employers still going to comply with the FMLA in the same way, make sure that they're properly monitoring. Are there going to be any changes to that?

  And another area where we can expect to see a lot more litigation is also, we talked a little bit about just employee privacy rights, but sort of related to that, security and company security. And when you have all these employees working remotely, is everyone really coming in on a secure network? Are companies taking the right precautions and what sort of litigation is going to arise out of that. And lastly, with remote workers, I just wanted to touch briefly on workers' compensation that we did talk about before. But one thing I think a lot of people are surprised to know is that under certain circumstances, workers' compensation can cover injuries that are sustained by remote workers when they're working at home.

  So there's going to be a whole analysis there. That's certainly not to say that every time someone's injured when they're working at home, it's going to be covered by worker's compensation, but employers should not just think because somebody is working from home that they're not going to have to worry about workers' comp. And so again, this can be an issue also making sure that you have the right worker's compensation insurance. If someone, again, we've talked about how employees move to different states and are working remotely in areas and whether you're going to have to make sure that you're compliant and get all the right workers, compensation insurance.

  And lastly, while we have touched on some state and local regulations, certainly the main focus here has been federal law and what has happened under federal law, but state and local regulations have also been impacted by COVID. First, there's been shelter in place orders. That was one of the first things that came out. Who was an essential worker? Who was going back to work and who wasn't? That was certainly rushed guidance that came out that could be really inconsistent the board with different levels. And this is something that is still a challenge for employers with people in multiple states. Some states were open and were allowing employees to go back to work faster than others. And so when dealing with either employees or employers who are in an area where there is still a shelter in place, it's important to be mindful of that to make sure that all parties are being compliant.

  There's also a variance in regulations related to personal protective equipment. And again, this is something that different states have put different ordinances and this is definitely something else that is going to continue to change as more employees are brought back into the workforce. And we again, adapt to this new normal as to what our work life and the workplace is going to look like after living through this pandemic. So with regard to PPE, again, so there's some different state regulations. I'm just going to touch on a few. And again, I think this is going to be changing a lot. So you definitely want to make sure that you're compliant with the latest guidelines. But in New York, for example, employers must provide face coverings for employees in customer-facing positions. New Jersey has a regulation that restaurants and food services businesses must provide face coverings to employees.

  California recently came out with some OSHA guidance in June 2021, which did loosen restrictions for vaccinated employees, but also required employers to provide N95 masks or respirators. In June 2021, California OSHA issued some additional guidance about what would happen when employees are coming back into the workplace and it loosened restrictions for vaccinated employees, but then also made a requirement that for unvaccinated employees, employers, generally, were going to have to provide N95s or respirators to unvaccinated employees upon request under certain circumstances. And again, still required employees to maintain a COVID protection plan. This is guidance again, that's just starting to roll out and because all of this is so new, it has yet to be challenged in the court system. I think we can anticipate that there will be some challenges to a lot of these state and local rules about what employers are required to do to their employees.

  And I think that courts are... It has been difficult for employers with the lack of guidance and the lack of regulation, and a lot of this all coming in at the last minute or after employers had to make a decision. And so a lot of employers took their best guess as to what would be legally compliant and what was not going to be legally compliant. And now it'll be up to the courts to decide.

  Another area to be mindful of is that some states are also requiring employers to provide this information to employees in a language other than English. For example, Oregon is requiring to provide resources, safety resources, safety training, and safety guidelines to employees in Spanish, recognizing that a significant portion of today's workforce may be bilingual or English may not be the first language and want to make sure that all the information about how to prevent COVID-19 in the workplace is properly making its way down to employees.

  Also, as we're seeing different states and municipalities pass more guidelines for employers to follow, other states are starting to dial everything back. For example, Michigan has now passed some new state guidelines that are more in line with federal rules. And in fact have actually said the guidance provides to employers that employers can use their best judgment when interpreting a lot of these rules and when implementing workplace safety procedures. So again different trends, different ways that COVID will continue to impact employment law on the state and local level.

  So I really appreciate you listening today as we talked about the impact of COVID on employment law. As I've mentioned many times we could have talked about this probably for a few more hours and we're going to continue just to see a lot of changes. Again, to recap, there were many notable changes in the area of employee leave, paid sick leave, family medical leave.

  I think we will continue to see a lot of litigation related to employment law and COVID-19, as we've discussed before many issues with the Americans Disability Act, privacy of employee records. And we'll also continue to see a lot of legal development that are related to the remote workforce and how remote employees are treated and classified under state law. And again, the vaccine as more people continue to get vaccinated and start coming back into work. And then employers start feeling more comfortable with vaccine mandates. I do anticipate that we'll be seeing a significant amount of litigation as it relates to vaccine. And attorneys should continue you to be mindful, to keep track of trends related to employment laws and COVID-19. I think we're going to continue to see a lot of COVID related litigation over the next few years.

  The healthcare industry was the hardest hit, and that may very well likely it being due to the fact that healthcare workers were pretty consistently working throughout this time under relatively normal circumstances and what's going to happen to other industries as again, we go back into the workplace and this continues to drag on. A lot of single plaintiff litigation has been discussed related to leave issues. The class action litigation again, that has tended to be more related to wage and hour issues. And I think we will be seeing probably some more WARN cases in the class action arena as those continue to be developed and then filed.

  And I'm sure, just as it's interesting to look back on our presentations from a year ago about the issues we were considering with employment law, what it's going to look like in a year or two years when we're looking back to this timeframe now and seeing how much has changed. Again with a different administration, the continued use of vaccines, and also whether employers tend to again go with some sort of remote hybrid model, or if we're just going to go back to everyone being in the office like before, which I'm just not sure that that's going to be what happens. So I really appreciate you listening today. And I hope that this helped answer some questions or just made you think about some of the legal implications of COVID-19 with respect to employment law. Thank you very much.

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