Screening for COVID-19? Update Your Protocol!

By Karen M. Buesing on October 26, 2020 Posted in Employment Counseling & Workplace Claims Prevention, Workplace Safety & OSHA

Employers screening for COVID-19 should consider updating their screening and other protocols following new guidance issued by the U.S. Centers for Disease Control (CDC) and a new study on how long the coronavirus can live on surfaces.

The new definition greatly expands persons who will be considered close contacts, and is just the latest change prompted by what scientists have learned regarding the spread of COVID-19. The CDC now also concedes that the virus can be “airborne” — a term with specialized meaning in the public health setting — but that is not the primary means of transmission. And another new study suggests the virus can live as long as 28 days on cold hard surfaces (such as an iPhone) – at least in an experimental laboratory setting.

New York State Releases Guidance on the State’s New Sick Leave Law

By Andrew C. Karter on October 22, 2020 Posted in Employment Counseling & Workplace Claims Prevention, Medical & Other Leaves, Wage & Hour

New York employers waiting for clarification on the newly effective New York State Sick Leave Law (“Sick Leave Law”) need wait no longer: on October 20, 2020, the state issued initial guidance – titled the New York State Paid Sick Leave FAQ (the “Guidance”) – interpreting the law.

The Sick Leave Law applies to all private sector workers in the state and became effective September 30, 2020. Although employees were entitled to begin accruing paid sick leave on the effective date, employers are not required to allow employees to use such leave until January 1, 2021.

In adopting the new law, New York joins several other states – and some localities, including New York City, which has its own sick leave ordinance – in requiring employers provide paid sick leave for employees beyond the temporary leave requirements relating to the pandemic.

Key provisions from the Sick Leave Law and newly released Guidance follow below.

Can Employers Require that Employees Get the Flu Shot?

By Melissa Torres on October 20, 2020 Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Workplace Safety & OSHA

Flu season is upon us. Can employers require a flu shot? More importantly, should they?

The Centers for Disease Control and Prevention (CDC) emphasizes that getting a flu vaccine this year is “more important than ever during 2020-2021 to protect yourself and the people around you from flu, and to help reduce the strain on healthcare systems responding to the COVID-19 pandemic.”

COVID-19 Related Litigation Surges: What Employers Can Do To Minimize Exposure

By Nicholas Erickson on October 14, 2020 Posted in Employment Counseling & Workplace Claims Prevention, Employment Litigation, Medical & Other Leaves, Whistleblower & Retaliation Claims, Workplace Safety & OSHA

The much-anticipated surge of COVID-19 pandemic-related litigation has begun. As the pandemic continues to lay siege to the United States economy, claimants’ lawyers and government agencies have begun setting their sights on employers.

Use of Form I-765 Approval Notices for I-9 Verification Due to COVID-19

By Rachel L. Perez on October 6, 2020 Posted in Employment Counseling & Workplace Claims Prevention, Immigration Planning & Compliance

Employers who accept certain Form I-765 Approval Notices specifically approved during the pandemic for I-9 documentation purposes must reverify the employees presenting such documents no later than December 1, 2020. Delays in production of Employment Authorization Documents (EADs) due to the COVID-19 pandemic have forced some foreign national workers to experience a lapse in employment authorization or to postpone employment altogether. Accordingly, on August 19, 2020, the U.S. Citizenship and Immigration Services (USCIS) temporarily expanded the List of Acceptable Documents for Form I-9 to assist employers who have been impacted by EAD production delays. Due to COVID-19, for a limited time, employers can accept a Form I-765 Approval Notice (also known as Form I-797, Notice of Action) with a Notice date on or after December 1, 2019 through and including August 20, 2020, for Form I-9 employment eligibility verification purposes in lieu of an EAD Card (also known as Form I-766).

Traps for the Unwary: Responding When An Employee Quits

By Brian Noh on September 29, 2020 Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

You may have been there: a valuable employee angered by some new development, announces “I quit!” and storms out, then shows up for work the next day as though nothing happened. Or a rapidly failing underperformer submits a written resignation, but it’s not effective until 60 days later. What’s an employer to do? Can/should an employer march them out the door?

A voluntary resignation can be unintentionally converted into an involuntary discharge if the employer isn’t careful, and the consequences can prove costly. Below are some of the more common scenarios involving tricky resignations, and some of the measures that employers might take to minimize issues.

Background Checks and the Fair Credit Reporting Act: Keep It Simple!

By Kimberly Rivera on September 22, 2020 Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Litigation, Privacy

Employers who conduct background checks, beware! It might be time to revisit your standard documents and screening processes to ensure they comply with the Fair Credit Reporting Act (FCRA). The number of lawsuits brought under the FCRA has more than doubled since 2009. FRCA litigation was the highest on record at the close of 2019, and continues to rise. Many of these cases have been brought on a class basis for purely procedural violations and resulted in multi-million dollar settlements.

The good news for employers is that in the context of FCRA compliance, less is more, and a quick review of current forms and practices can alleviate any concerns regarding potential exposure.

Department of Labor Addresses Court Ruling By Issuing New FFCRA Leave Regulations

By Paul J. Rutigliano on September 16, 2020 Posted in Employment Counseling & Workplace Claims Prevention, Medical & Other Leaves, Wage & Hour

In response to a New York federal court striking certain aspects of the Department of Labor’s regulations interpreting the Families First Coronavirus Response Act (FFCRA), last week the DOL issued a revised Temporary Rule (the “Revised Rule”), in some ways resisting and in others yielding to the court’s ruling. In particular, the Revised Rule maintains the DOL’s prior positions that FFCRA leave is available only if the employer has work available for the employee to do and that employees must have the employer’s consent to intermittent leave for certain qualifying conditions, but it narrows the DOL’s prior definition contained in the original Rule of health care provider and modifies the prior requirement that employees provide documentation of the need for leave prior to taking it.

Employers Not Racing to Implement Employee Payroll Tax Deferral

By Karen M. Buesing and Montaye Sigmon on September 14, 2020 Posted in Employee Benefits, Wage & Hour

Offering eligible workers the option to suspend the employee share of Social Security payroll taxes through year-end may sound good at the moment, but concerns about next year are leaving many employers wary. Indeed, the Wall Street Journal reported that some of the nation’s largest employers have rejected the President’s payroll tax deferral plan, and Bloomberg reported that no major private employer has stepped forward to take advantage of the plan. Under guidance issued by the IRS on August 28, 2020, employees would need to repay those deferred taxes in the first four months of 2021.

Employees Are Responsible for Logging Remote Work Hours

By Adrienne Scheffey on September 9, 2020 Posted in Employment Counseling & Workplace Claims Prevention, Wage & Hour

Employers have struggled with identifying remote working hours for non-exempt employees juggling telework, child care and/or virtual learning during the pandemic. Employees will now bear the burden of properly recording those hours, under new enforcement guidance issued by the Department of Labor (DOL) in late August.