Empire State Alert:  New York State Sick Leave Is Finally Here (US)

As we reported here, among the sweeping pieces of legislation signed during the early periods of the COVID-19 pandemic was the passage of New York’s permanent statewide sick leave law.  Under the New York statewide sick leave law, all employers in New York State are required to provide sick leave.  The law takes effect on September 30, 2020 and employees will begin accruing leave on that date; however, employees are not eligible to begin using accrued leave until January 1, 2021. Continue Reading

Government ropes English employers into new self-isolation push

Regulations come into force today which impose new obligations on employers in England to help enforce the coronavirus self-isolation regime.

The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 apply to any person who is officially notified (other than via the NHS Smartphone app) that they have tested positive for Coronavirus or been in close contact with someone who has, in either case after 28 September. “Close contact” means face-to-face contact with someone less than one metre apart, spending over 15 minutes within two metres of someone, or travelling in a car or other small vehicle (i.e. not a bus) with an individual or in close proximity to someone else on an aeroplane. Boats and trains get no specific mention.

That person is then required to self-isolate and must generally notify the authorities both of the address where they will do that and of anyone else in the same household. They must then stay at home, leaving only for a very limited number of permitted purposes, including obtaining medical treatment for themselves or a pet, fulfilling a legal obligation such as attending a court or Tribunal, attending the funeral (but not wedding) of a close family member and obtaining “basic necessities” where it is not possible to obtain these in any other manner [NB, the usual threshold in legislation is that which is “not reasonably practicable”, so demonstrating that it is actually impossible to obtain your basic necessities except by leaving the house is a high burden indeed].

So much we know. What is new are Regulations 7 and 8.

Regulation 8 says that once notified of the obligation to self-isolate, the worker must tell his employer as soon as practicable and in any case before he next goes back to the workplace. Regulation 7 then says that an employer aware that a worker is required to self-isolate must not knowingly allow that person to attend anywhere “other than the designated place” (i.e. his home) during the isolation period “for any purpose related to the worker’s employment”. [Although the new Regulations refer to “employer” and “employment”, they apply equally to workers and agency workers. This is not an issue for Schedule E employees only].

A handful of key points for employers:

I. If the employee fails to notify the employer in line with Regulation 8, he commits an offence.

II. If the employer is aware of that obligation to self-isolate but nonetheless requires or allows the employee to do something work-related anywhere else in breach of Regulation 7, then it also commits an offence.

III. Individual Company directors and managers can also commit an offence under the new Regulations if there is a breach of Regulation 7 by the employer which is found to have been committed through their negligence or with their consent or connivance.

IV. The new Regulations are enforced by a fixed penalty regime under which the guilty party (employee, company, director) is fined £1,000 for a first offence up to £10,000 from the 4th offence onwards. There is no requirement that each fixed penalty notice applies to the same worker, so the financial consequences for an employer or director of allowing multiple employees to continue to come in or travel on business knowing that they should not could be very significant.

V. There is no requirement that the employer’s awareness of the requirement to self-isolate should have come direct from the worker in question via Regulation 8. An indication from a colleague or family member would also usually suffice. Equally, the Regulations refer only to the actual awareness of the employer, not to any constructive knowledge, i.e. where it suspected or ought reasonably to have known, but did not join the dots. It is likely given the Public Health objective of these Regulations that an employer turning a blind eye or not asking obvious questions in such circumstances would be found to have been aware nonetheless.

VI. The employer is not responsible for the worker’s breach of the self-isolation rules unless he is out and about for a purpose related to his employment. It would therefore make good sense for employers to notify both the worker and his line manager in writing that he should not be requested, let alone required, to leave his house for any work purposes, however fleeting. Indeed, if the second wave of the coronavirus is even half as serious as it now appears may be the case, it may make good sense for employers to provide all their employees and workers with a brief pre-emptive written reminder of these new rules anyway, whether they are currently WFH or not.

VII. Nothing in these Regulations prevents a self-isolating worker from carrying out his activities at home or the employer from requiring compliance with all and any other incidental obligations of his doing that work, except anything requiring the worker to leave his designated place of self-isolation.

Spain’s new decree on remote working

Working in SpainA new decree (Royal Decree-law 28/2020) was passed on 22 September to regulate remote working in Spain.

As for many countries worldwide, Spain has recently seen a marked increase in the number of employees working from home as part of its bid to decrease physical contact between individuals and curb the COVID-19 pandemic. Prior to March 2020 when the pandemic hit, remote and home-working was relatively unusual in Spain and therefore largely unregulated. As a result, it was widely acknowledged that there needed to be a legal framework to protect and designate the rights and obligations of employers and employees alike in that new world of homeworking.

This new decree is it, the result of months of negotiations. However, despite those extensive negotiations, there are sadly still some areas where the decree does not provide the level of detail and clarity that employers might reasonably expect to help them to implement these arrangements in practice. We would expect and hope that many of these points will receive early consideration in the case-law which will no doubt swiftly grow up around this new decree.

Continue Reading

The joy of six – but cold comfort for UK employers in latest pandemic measures

Social Distancing in an OfficeSo what price now,  your long-planned initiative for returning your workforce to the office?  How much of your RTO plan is still standing among the smoking wreckage of the Government’s message only two months ago that employees should “start to go back to work now” if they can?  What does Michael Gove mean by the statement yesterday that “if you are in a Covid-secure workplace then you should be there if your job requires it”, but that otherwise you should work from home?  And with the Rule of Six still drying on the paper, is it true that you can now have 30 people at a funeral but only 15 at a wedding because you can only go to a person’s funeral once and there is less likely to be a disco?

Let us start with the basics.  The Government’s change of tack does not alter the law in any way.  Continue Reading

US Department of Labor Proposes New (and Relaxed) Independent Contractor Test (US)

Definition of the word Minimum wage in a dictionaryOn September 22, 2020, the US Department of Labor (DOL) issued proposed regulations aimed at codifying the classification of independent contractors under federal wage and hour law. If adopted—and the DOL has indicated it plans to fast-track the rulemaking process in order to issue final regulations by January 2021—the rule change would significantly relax the parameters for defining independence. The purpose of the proposed rule change, according to Labor Secretary Eugene Scalia, is to clarify which workers are truly independent, and therefore not protected by federal minimum wage and overtime laws. Continue Reading

A Guide for Employers Considering A Mandatory Flu Vaccination Policy (US)

As if 2020 hasn’t already presented more than its fair share of challenges, flu season is now rapidly approaching. Combined with the still ongoing COVID-19 pandemic, employers are more concerned than ever before with ensuring that their employees stay healthy and productive. As a result, many employers are weighing the pros and cons of encouraging, facilitating, or even requiring that their employees be vaccinated for the flu as a way to protect their workforce against the spread of yet another contagious respiratory infection during the fall and winter months. However, employers need to understand the legal nuances associated with such policies as well as their related obligations to their employees before implementing mandatory vaccination policies or deciding to offer on-site flu shots. (Please note that the discussion in this post relates only to flu vaccination issues, and not issues that may arise once a COVID-19 vaccine is developed and made available, as the circumstances relating to that vaccine may be different than those that apply to flu vaccination.) Continue Reading

California’s COVID-19 Sick Leave: Expanded and Articulated (US)

AB 1867 was signed into law by Governor Newsom on September 9, 2020. The purpose of the bill is to eliminate gaps in coverage so that many more employee have access to paid sick days if they are exposed to or test positive for COVID-19 in 2020. This means that the new law applies to individuals employed at companies too big to qualify under the Families First Coronavirus Relief Act (“FFCRA”) passed by Congress in March and it also applies to individuals who may have been designated as essential, such as health care workers, and therefore exempt under the FFCRA. Employers who took advantage of designating some employees as exempt under the FFCRA may want to revisit that choice because, unlike FFCRA leaves, AB 1867 does not include a tax credit to offset the cost of providing the leave.

Who Is Entitled to Leave?

Beginning September 19, 2020, private employers with 500 or more employees nationwide (as well as certain health care providers and emergency responders), must provide employees supplemental paid sick leave if they are unable to work because:

  • They are subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  • They were advised by health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
  • Their employer prohibits them from working due to health concerns related to the potential transmission of COVID-19.

The law only applies to employees who must leave their home for work. Continue Reading

Department of Labor Issues Updated Families First Coronavirus Response Act Regulations, But Does Little To Resolve Employer Uncertainty (US)

The Families First Coronavirus Response Act (FFCRA) was enacted on March 18, 2020. The sweeping federal legislation provides emergency paid sick leave (EPSL) and expanded paid Family and Medical Leave (EFML) to certain covered workers impacted by the COVID-19 pandemic. On April 1, 2020, the U.S. Department of Labor (DOL) issued regulations implementing the FFCRA and answering, at least in part, some questions related to coverage, eligibility, use, and job restoration. We first reported on those regulations when they were issued, and prepared a five-part summary of the FFCRA and the DOL’s regulations soon thereafter.

Judicial Challenge to the DOL’s Regulations

Within days after the DOL promulgated its regulations, the State of New York filed suit challenging the validity of certain portions of the DOL’s regulations. On August 3, 2020, Judge J. Paul Oetken—a federal district court judge for the Southern District of New York—struck down portions of the DOL’s regulations as exceeding the scope of the agency’s authority. Among other findings, Judge Oetken invalidated regulations arbitrarily limiting the intermittent use of FFCRA leave; ruled overbroad the DOL’s definition of “health care providers” who may be exempted from leave entitlement; and decried the DOL’s application of the so-called “work availability” requirement, whereby only employees whose employers have work for them to do are eligible to utilize EPSL or EFML for a covered reason. Judge Oetken was unreserved in his criticism, noting that, although “[t]his extraordinary crisis has required public and private entities alike to act decisively and swiftly in the fact of massive uncertainty, and often with grave consequence,” the crisis “also calls for renewed attention to the guardrails of our government. Here, DOL jumped the rail.” The order left many employers uncertain as whether the regulations remained in effect at all, or if so, in what jurisdictions. Continue Reading

EEOC Provides Welcome COVID-19-Related Guidance To Employers As Employees Return To The Workplace (US)

On September 8, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance concerning COVID-19 and the workplace. The update provides much-needed answers to questions that have been troubling employers struggling to adapt to circumstances presented by the still-ongoing public health emergency.

Can we test employees for COVID-19 prior to allowing them back in the workplace?

The Americans with Disabilities Act (ADA) generally prohibits employers from requiring employees to submit to medical examinations or testing. An exception exists, however, when that testing is “job related and consistent with business necessity.” The EEOC’s updated guidance explains that as long as the testing is consistent with current guidance from the Centers for Disease Control and Prevention (CDC), employers can administer COVID-19 testing to employees prior to initially allowing them back into workplace. Employers also may periodically test employees who have returned to work to confirm that they do not have the virus and thereby present a direct threat to others. The EEOC’s updated guidance confirms that testing under these circumstances – again, so long as the testing is compliant with current CDC guidance – will meet the “business necessity” standard under the ADA. Continue Reading

All zeros and ones – EAT sums up burden of proof for disciplinary decisions (UK)

Back in March we posted here a piece about dismissing to protect the employer’s corporate reputation. In that case the employer made a very difficult choice between the claimed (ultimately, actual) innocence of the employee and the harm which continuing to employ him might do if he turned out to be guilty. On the facts, the dismissal was found fair, but as if to reinforce that dismissing to protect corporate reputation is always a risky business, here is another example from earlier this month with the opposite conclusion. Continue Reading