Labor, Employment, Benefits & Immigration

With just a few weeks left in FY 2020, the OFCCP has published new lists of 2,450 establishments for audit. Federal contractors and subcontractors are highly encouraged to check the lists—one for supply and service contractors (which includes universities/colleges for the first time in three years), and one for construction contractors. The lists can be found here. The CSAL lists reflect a number of changes at OFCCP that are new. First, in a new era of remote audits, OFCCP District Offices

Gender segregation in bathrooms, which some conservatives have predicted for decades would be undermined by sex discrimination laws, has in fact proven to be a persistent target for civil rights litigation in at least one narrow respect:  when bathroom access by the transgendered is restricted. The United States Court of Appeals for the Fourth Circuit, which hears federal cases brought in Maryland and Virginia, and three other southeastern states, recently re-addressed the subject as it affected a transgendered public school

The Center for Disease Control (“CDC”) previously advised that it was not necessary for asymptomatic individuals to be tested even after a known exposure to COVID-19. This guidance drew sharp criticism from many, including the Infectious Disease Society of America. On September 18, 2020, the CDC reversed its course. Now, because of “the significance of asymptomatic and pre-symptomatic transmission,” guidelines state that anyone who has been within 6 feet of a person with COVID-19 for at least 15 minutes should

On September 16, 2020, the U.S. Department of Labor published emergency regulations (making them effective as of the day of publication) revising certain portions of the Families First Coronavirus Response act (FFCRA) in response to a decision from a federal court in New York finding certain portions of the previous regulations invalid. The court had struck down four important provisions of the existing regulations relating to: The work-availability requirements Employer consent to intermittent leave The definition of “health care provider” Documentation required for leave The court’s

For those who may have missed it during a pandemic summer, on May 7, 2020 Governor Hogan allowed hundreds of Maryland bills to become law, some of which will have direct implications on employers. A summary of the employment related laws, along with recommendations on how employers can implement them in the workplace, is provided in Miles & Stockbridge’s June 8, 2020 publication titled “Maryland Enacts Host of New Laws”. Each of the laws discussed therein will become effective on

With Labor Day upon us, many families are facing the start of a school year with remote or hybrid learning. As a result, many employees must figure out how to satisfy their work obligations while making alternate arrangements for childcare until schools re-open in-person. During this time, employers must keep in mind that the Family First Coronavirus Response Act (FFCRA) may provide paid leave to eligible employees struggling to arrange for childcare as the result of school closures. As detailed in a

On August 24, 2020, the U.S. Department of Labor released a Field Assistance Bulletin to provide guidance addressing how employers should track the number of hours worked by employees who are working remotely. While the guidance was issued to respond to current conditions caused by the COVID-19 pandemic, the guidance is a summary of existing law and applies to all remote working arrangements, not just those resulting from the pandemic. Under the federal Fair Labor Standards Act, employers have an obligation

In September 2019, the California legislature passed, and Governor Gavin Newsom signed into law, Assembly Bill 5 (“AB5”), which established a more stringent test for classifying workers as independent contractors. This so-called “ABC test” requires a hiring entity to establish all three of the following conditions in order to classify an individual as an independent contractor: The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract

On August 3, 2020, a federal court in the Southern District of New York overturned key provisions of the Families First Coronavirus Response Act (FFCRA)—the federal law requiring certain employers to provide eligible employees with emergency paid sick leave (EPSL) and expanded family and medical leave (EFML) for specified reasons related to COVID-19—significantly broadening employee eligibility to receive emergency leave under the Act. The unexpected decision came in response to a challenge by the state of New York, which sought

As more and more employees are returning to work, it is no surprise that employers are dealing with an influx of new issues. Guidance from the CDC and other agencies seems to change regularly, and employers may struggle to keep their policies up-to-date with the changes. Since the start of the pandemic, the CDC has provided recommendations for individuals who were infected with the coronavirus to self-quarantine for a period of time.  Employers have used these recommendations to determine when an

On July 27, 2020, a new rule went live, making it easier for retirement plans to communicate with participants electronically. This new rule modernized an existing rule that was becoming obsolete. Existing Rule Employer benefit plans must disclose certain information to participants. Information can be delivered electronically if delivery is calculated to ensure actual receipt. Receipt is presumed if information is sent to participants who have e-mail access at their workplace and who actively consent to electronic delivery, subject to additional conditions. Specifically, electronic

On July 21, 2020, the National Labor Relations Board (NLRB) issued a decision in General Motors LLC, 369 NLRB No. 127 (2020) which fundamentally changed the standard for, “determining whether employees have been lawfully disciplined or discharged after making abusive or offensive statements — including profane, racist, and sexually unacceptable remarks — in the course of activity otherwise protected under the National Labor Relations Act” (Act). Prior to its decision in General Motors, the NLRB had established three different setting-specific tests

New Optional-Use FMLA Forms On July 16, 2020, following a period of public comment, the DOL published new optional-use FMLA forms. The forms were revised by the DOL to make them easier to understand and use.  For instance, the forms now contain fewer questions requiring written responses. Instead, the forms use statements and check boxes. This change is intended to cut down on the time it takes to complete the form and to cut down on the need for follow up

On July 15, 2020, the Virginia Safety and Health Codes Board adopted the Emergency Temporary Standard, Infectious Disease Prevention, SARS-CoV2 Virus that Causes COVID-19 (ETS), making Virginia the first state to adopt COVID-related workplace safety regulations. The text of the ETS is currently being finalized and will go into effect upon publication, which is expected to occur the week of July 27, 2020. The ETS will remain in effect for at least six months. The ETS is designed to supplement current

On July 8, 2020, the Supreme Court of the United States issued two new opinions applying First Amendment religious rights to employers. The first case, Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267 (July 8, 2020), overturned the Ninth Circuit in expanding the individuals employed by religious institutions that are exempt from anti-discrimination laws. The second case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, No. 19-431 (July 8, 2020), overturned a nationwide injunction instituted

Effective July 1, 2020, Virginia’s employment laws are substantially changing to provide broader protections to employees in many areas. We previously summarized the Virginia Values Act (VVA), which goes into effect on July 1, 2020, and subjects employers with more than five employees to new state claims for, among other things, gender identity and sexual orientation discrimination and for larger damage awards. Because of the significance and volume of the new laws going into effect July 1, 2020, we covered the

Effective July 1, 2020, Virginia’s employment laws are substantially changing to provide broader protections to employees in many areas.  We previously summarized the Virginia Values Act (VVA) here which goes into effect on July 1, 2020 and subjects employers with more than five employees to new state claims for, among other things, gender identity and sexual orientation discrimination and for larger damage awards. Because of the significance and volume of the new laws going into effect July 1, 2020, we will

Last night, President Trump signed a Presidential Proclamation imposing entry restrictions on certain foreign nationals in temporary work visa statuses, including H-1B, L-1, J-1 and H-2B, and related categories for dependents, with some exceptions. The restrictions will take effect on June 24, 2020, at 12:01am EDT and will expire on December 31, 2020, subject to possible extensions. Additionally, the Proclamation extends the current restrictions on certain immigrant visa applicants until December 31, 2020. The Proclamation will only impact foreign nationals

According to media and other sources, the Trump Administration will likely issue a Presidential Proclamation instituting additional immigration restrictions by the end of this month. The Proclamation is likely to extend the April 22, 2020, Presidential Proclamation, “Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” which suspended immigrant visa processing for some applicants for permanent residency for 60 days. The new Proclamation is also expected to impose temporary

On Thursday, June 18, the Supreme Court rejected the Trump Administration’s attempt to end the Deferred Action for Childhood Arrivals (DACA) program for undocumented immigrants brought to the country as children, known as “Dreamers.” The 5 to 4 decision was written by Chief Justice John G. Roberts Jr. and joined by the court’s four liberal justices. The Supreme Court held that the Department of Homeland Security (DHS)’s effort to terminate the DACA program was arbitrary and capricious, and remanded the

In a seminal 6–3 decision for LGBTQ rights on Monday, June 15, 2020, the Supreme Court of the United States held plainly: An employer who fires an individual merely for being gay or transgender defies the law. The Opinion by Justice Gorsuch, issued more than eight months after the Supreme Court heard oral arguments in the three consolidated cases at the center of this action, provides that an employer who intentionally treats a person worse because of sex—such as by

Last week, the U.S. Equal Employment Opportunity Commission (EEOC) released additional information within its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” guidance. In March 2020, the EEOC began periodically releasing frequently asked questions and corresponding answers about the intersection of the laws it enforces and COVID-19. As the enforcer of workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA), the Rehabilitation Act, Title VII of the Civil Rights Act (“Title

You don’t need a legal blog to tell you that the country is in a state of extreme unrest regarding the killings of George Floyd, Ahmaud Arbery, Breonna Taylor and so many other Black people, at the hands of police and in other racially charged incidents. People in the United States and abroad have engaged in protests about issues related to race in America, including police brutality and institutional racism. In addition to people protesting in the streets, millions more

On May 7, 2020, in accordance with Article II, Section 16(c) of the Maryland Constitution, Governor Hogan allowed hundreds of Maryland bills to become law without his signature. Many of these laws will have direct implications on the workplace that employers should be aware of. A summary of these employment-related laws is provided below. All will become effective on October 1, 2020. Expansion of Employers’ Notification and Reporting Obligations for Workforce Layoffs S.B. 780, referred to as “Maryland’s Mini-WARN Act” (a state

Businesses required by the Occupational Safety and Health Administration (OSHA) to maintain a log of work-related injuries and illnesses—referred to as an “OSHA 300 Log”—must now pay additional attention to whether employee cases of COVID-19 are “work-related” and therefore recordable. As of May 26, 2020, OSHA has announced that its earlier enforcement guidance— exempting employers (except for those in certain high-risk industries) from recording cases of COVID-19 absent obvious indications of “work-relatedness”—will be rescinded and replaced with a revised enforcement

U.S. Citizenship and Immigration Services (USCIS) today announced that it will resume premium processing for Form I-129 and Form I-140 petitions in phases over the next month. On March 20, USCIS announced the temporary suspension of premium processing for all Form I-129 and I-140 petitions due to the coronavirus (COVID-19). Effective June 1, 2020, USCIS will accept Form I-907, Request for Premium Processing Service, for all eligible Form I-140 petitions. Effective June 8, USCIS will accept premium processing requests for: H-1B petitions filed

On May 8, 2020, the Office of Federal Contract Compliance Programs (“OFCCP”) announced the issuance of a new form that federal contractors must use to ask job applicants and employees to self-identify as disabled. This is the first revision to the form since March 2014, when the regulations implementing Section 503 of the Rehabilitation Act of 1973 were revised, and contractors were required to perform data collection regarding applicants and employees with disabilities. The 2014 regulations require federal contractors subject

On April 11, 2020, Virginia Governor Ralph Northam signed into law the Virginia Values Act (VVA), which will subject employers with more than five employees to state claims for discrimination with increased damages.  The new law, which goes into effect July 1, 2020, also adds gender identity and sexual orientation to the list of classes protected under the Virginia Human Rights Act (VHRA). Prior to the passage of the VVA, the VHRA only applied to employers with more than 5 and

Governor Larry Hogan allowed Senate Bill 780 to become law without his signature on May 7, 2020. The law will become effective on October 1, 2020. This new law significantly revised the existing Economic Stabilization Act (MD Code, Labor and Employment §11-301 – §11-304)(“Act”) and will drastically change Maryland employers’ notification and reporting obligations regarding workforce layoffs. Previously, the Act provided voluntary guidelines for employers who intended to lay off employees regarding the provision of notice to those employees. Under the

The COVID-19 emergency has impacted businesses throughout the country, from placing restrictions on reopening to dealing with the nuances of the CARES Act. Another workplace issue that will rise out of this national emergency is how the workers’ compensation system will deal with COVID-19 claims. Workers’ compensation is usually the exclusive remedy for employees injured at work. The system benefits employees by providing injured employees the prospect of swift and sure compensation, without having to prove their employer was at fault.

On Sunday, May 3, 2020, the Centers for Disease Control and Prevention (CDC) updated their Frequently Asked Questions for General Business and released guidance for Symptom-Based Strategy to Discontinue Isolation for Persons with COVID-19. The new guidance is targeted at assisting employers as they try to navigate the landscape of reopening businesses during the COVID-19 outbreak. When returning individuals to work, the employer should take proactive measures to prevent the spread of the virus in the workplace, including limiting social interaction,

Until recently, employers had largely ignored unemployment claims other than to contest an occasional claim. Now, however, as employers consider different options to address the impact of the COVID-19 pandemic on their business, they find themselves struggling to understand the system and the impact it may have on their operations. While unemployment rules and regulations will vary on a state-by-state basis, there are some general principles that employers should understand to help them develop the best business plan for their

On April 22, 2020, President Trump issued a proclamation suspending the entry of certain immigrants for 60 days. The proclamation applies only to a limited group of new immigrants who are currently outside the United States and does not impact foreign nationals who are in the U.S. or who are seeking to enter on temporary visas. However, the proclamation does leave the door open for future restrictions, which may impact those in temporary work visa status such as H-1B, TN

On April 17, 2020, the EEOC updated its guidance initially published on March 17, 2020, entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” to address additional employment concerns in the wake of the COVID-19 pandemic. Notable new topics addressed by the guidance, including issues related to temporary accommodations, undue hardship and returning to work, are discussed below. For a summary of the topics previously addressed by the EEOC in this guidance,

Employees concerned about the coronavirus and its impact on their health and that of their family members have been speaking out in the workplace, on social media and in the press. Employees have been raising issues such as social distancing in the workplace, available safety equipment and disinfecting their workspaces. There have been a number of recent articles concerning discipline issued to employees for raising those concerns. Employees’ concerns and discussions about those concerns are likely to increase as businesses

As businesses continue to wait for curves to begin to flatten, there is little doubt that there will be increased pressure to resume operations as quickly as possible. Businesses should begin to consider now how they will comply with best practices to safeguard employees and avoid situations that put their employees at risk. Jeff Johnson’s March 26 blog post touched on OSHA’s emphasis to that date and is a good starting place for professional managers trying to anticipate problems that good

One of the few good things about a pandemic is that it can trigger the human instinct to share. If you are thinking about adopting or expanding a leave-sharing or PTO donation program, remember to consider the tax consequences to employees. The simplest form of a leave-sharing program is where one employee donates PTO to another employee or an employer-managed PTO bank. The donated PTO can be used by another employee for any reason or for certain reasons specified by the

Is COVID-19 a disability under the ADA? To qualify as disabled under the Americans with Disabilities act, an individual must be: A person who has a physical or mental impairment that substantially limits one or more major life activities; A person who has a record of such an impairment; or A person who is regarded as having such an impairment.1 According to recent guidance released by the EEOC in a March 27 webinar, it is unknown whether COVID-19 would itself qualify as a disability under

The Coronavirus Aid, Relief, and Economic Security Act (“Act”) contains several business relief provisions, including an employer payroll tax deferral (“Deferral”) and a companion provision allowing an employee retention credit (“Credit”). 1.    Deferral The Act allows for deferral of the employer portion of Social Security tax imposed by I.R.C. Section 3111(a). Deferral does not apply to employee income tax withholding, the employee or employer portion of the Medicare tax, or the employee portion of the Social Security tax. There are no employer eligibility requirements

On April 1, 2020, the IRS finalized Form 7200 – Advance Payment of Employer Credits Due to COVID-19 and the accompanying instructions. The Form provides additional guidance for eligible employers to take advantage of refundable tax credits under the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief and Economic Security Act (CARES) Act. Background Employer Relief under the FFCRA. Under the FFCRA, an eligible employer’s costs associated with required paid family and sick leave are offset dollar-for-dollar (up to

The spread of COVID-19 is taking the world by storm with unprecedented and far-ranging consequences. During this extraordinary time, many employers are dealing with difficult issues regarding their workforces amidst office closures, shelter-in-place orders and other disruptions. Below we provide general guidance to common questions and scenarios with respect to workers in H-1B status during this challenging time, although particular cases will require an individualized assessment. 1.    Can an H-1B worker be furloughed or placed in other unpaid leave status? No, an

In response to the significant challenges related to the COVID-19 pandemic, the U.S. Department of Homeland Security (DHS) and the Department of State (DOS) have recently implemented temporary operational changes and immigration-related measures. Below are some of the important updates impacting U.S. employers and their foreign national workers. Suspension of Routine Visa Services by the DOS The DOS is temporarily suspending routine, non-emergency visa services at all U.S. embassies and consulates. Embassies and consulates will cancel all routine immigrant and nonimmigrant visa

The U.S. Department of Labor (DOL) yesterday issued its Families First Coronavirus Response Act (FFCRA) “Employee Rights Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act” poster for most public employers and private employers with fewer than 500 employees to post in the workplace. The poster informs employees of their rights under the FFCRA. The DOL also posted helpful frequently asked questions concerning the poster. The frequently asked questions clarify that the posting requirement

Unfortunately, many of the regulations governing employers’ obligations to their employees provide little guidance on how to navigate a global health pandemic like coronavirus. This is particularly true for regulations issued by the Occupational Safety and Health Administration (OSHA), which are the primary source of an employer’s obligations to provide a safe working environment, but are ill-suited to address the current health crisis. To provide clarity on the obligations of employers relating to Coronavirus, OSHA recently created a COVID-19 Resource

Employers with a unionized workforce are familiar with the general prohibition under the National Labor Relations Act (NLRA) against unilaterally changing terms and conditions of employment that are specifically covered by an existing collective bargaining agreement (CBA). For terms and conditions not specifically covered by an existing CBA, employers also know that they may not make changes without bargaining to an agreement or reaching an impasse over those issues. However, what may an employer do when faced with an unforeseen

On March 24, 2020, the Department of Labor issued its first published guidance relating to the Emergency Paid Sick Leave (EPSL) and Emergency FMLA (EFMLA) established under the Families First Coronavirus Response Act (FFCRA). For a full explanation of the FFCRA, please see our prior blog.  The three guidance documents from the DOL are available here, here and here. The most notable piece of information is that the law is going into effect a day earlier than anticipated—on April 1, 2020.

As the Coronavirus (COVID-19) spreads, a growing number of employers are considering terminating or furloughing employees. This has raised a number of Maryland unemployment compensation questions that, although not specifically related to the COVID-19 pandemic, result from its effects on employees and employers alike. This article provides guidance on the most common COVID-19 related unemployment issues. Determining a claimant’s weekly benefit amount (WBA) in Maryland. A claimant’s WBA is approximately 54% of gross weekly wages up to a maximum of $430 per

With the novel coronavirus (COVID-19) causing Employers to switch to teleworking or temporarily shuttering their operations, government contractors have special challenges. Some employees of government contractors may not be able to work remotely under the terms of the government contract and others who perform classified work or need access to government networks may not be able to telework. Therefore, due to COVID-19, temporary furloughs of employees working for government contractors are likely. Government contractors should plan now for possible furloughs

On March 18, 2020, the United States Senate passed the revised “Families First Coronavirus Response Act,” (“FFCRA”) that had been passed by the United States House earlier this week, which President Trump has now signed.  The FFCRA becomes effective within 15 days (April 2, 2020), so employers should immediately begin preparations to ensure compliance with the law. Importantly, the new law does not require that employers provide paid leave for employees who are off work just because of an office closure.

On March 16, 2020, the United States House of Representatives passed a “corrected” version of the Families First Coronavirus Response Act (FFCRA), which made some notable changes to the provisions impacting employers. The FFCRA’s major requirements for employers relate to paid leave, as follows: Emergency Paid Sick Leave (EPSL).  Private employers with fewer than 500 employees and all public employers must provide 80 hours of paid leave to all full-time employees who need to miss work because of illness or quarantine, or