If we are right to think that the unravelling of lockdown will be accompanied by a sharp increase in the number of employees requesting to work from home, then many employers will shortly start to face some serious posers in relation to the flexible working scheme. These are not new questions, but will be thrown into starker prominence by the sheer number of requests you may have to deal with at the same time. Of course you should grant them where you can, but what if you are unsure?
Throughout the current public health emergency, the U.S. Equal Employment Opportunity Commission (EEOC) has been providing regular updates to its guidance on COVID-19 and compliance with the Americans with Disabilities Act (ADA) and other federal employment statutes (see our prior posts here). On June 11, 2020, the EEOC provided answers to approximately 10 new questions, most addressing COVID-19 return-to-work issues. Among those, several have broad application to nearly every private sector employer.
- The EEOC clarified that although the ADA forbids discrimination against employees who are associated with persons with disabilities, the law does not require that employers provide an accommodation to a non-disabled employee based on the disability-related needs of a family member or other person with whom the employee is associated. This suggests therefore, for example, that an employer need not accommodate a non-disabled employee who requests to work from home because he or she lives with someone who is at a greater risk of severe illness from COVID-19 due to an underlying medical condition (but the employer can do so if it so chooses).
By now, many employees working from home in the lockdown will have made quite firm decisions around how they wish to operate going forward. Some will have decided that there is nothing in their lives quite like their family and, for that reason, that they wish to extend their WFH indefinitely. Others, on probably very similar grounds, will want to get back to the office as a matter of some urgency.
One way or another, we think that employers can expect a significant upswing in flexible working requests starting more or less at the moment that the government relaxes its “WFH if you can” guidance.
Much has been written on the shift in the balance of power around flexible working applications. The pandemic has moved the employer’s usual starting point from “We haven’t done it before, so it probably won’t work, so no”, to “We have done it before and it broadly did work, so, well, what now?”
On June 5, 2020, Illinois Governor Pritzker signed into law HB 2455, which creates a rebuttable presumption of workers’ compensation coverage for first responders and front-line workers who are exposed to and contract COVID-19. This recent legislative enactment follows the withdrawal of Illinois Workers’ Compensation Commission’s emergency rule which included similar language.
In enacting this legislation, Illinois becomes the latest state to create a presumption of workers’ compensation coverage specific to COVID-19 and joins Alaska, Arkansas California, Kentucky, Michigan, Minnesota, Missouri, New Hampshire, North Dakota, Utah, Washington and Wisconsin, all of which have created a presumption of coverage extending to varying sectors of employment. Continue Reading
The world of work has remained broadly the same for the last 100 to 200 years – offices might have lost the wood panelling, trains become less smoky (inside and out!), top hats turned into bowler hats then no hats, beards have gone in, out, then back into fashion, but the central tenet remains – I pay you money, I expect you to turn up to work and do your job. This holds true even for those industries that loudly trumpet their ‘disruptive’ ways ” – you only have to visit the newest glass palaces that stand for many modern offices to see the nattily dressed employees largely ignoring the free foosball, PlayStation, beanbags in the break-out rooms, etc., and glued to their desks in rows, just like the same battery chickens of a century ago. The more you fill the office with free fruit and things that look like play and relaxation, the more you are actually giving your staff the least possible reason to leave the building.
We all know that employers have a legal obligation under federal law, as well as under various state and local laws, to provide their employees with a safe work environment free from sexual harassment, and that under certain circumstances, an employer can be held legally responsible for harassment directed at its employees. However, do companies have a legal obligation to protect their customers against sexual harassment perpetrated by their employees and supervisors? This was the issue recently considered by the United States Court of Appeals for the Third Circuit in Yucis v. Sears Outlet Stores, LLC.
In Yucis, a female customer, Elisabeth Yucis, visited a Sears Outlet store to shop for a refrigerator. While at the store, she was allegedly subjected to harassing and inappropriate comments by one of the store’s male sales manager. For example, the manager allegedly asked her “What is a pretty girl like you doing in a place like this?, and when she tried to show him a photo of the type of refrigerator she wanted, he suggestively asked “Are there photos on there that I’m not supposed to see?” When she indicated she was uncomfortable with his comments, the manager allegedly said, “I am married and so are you, I am just having fun,” and as she tried to end the encounter, the male supervisor gave her his business card and said, “Text me later if you feel lonely.” Unsurprisingly, Ms. Yucis found these comments unwelcome, and that they made her feel degraded. Continue Reading
In this post from Squire Patton Boggs’ Capital Thinking blog, our colleagues Kirk Beckhorn, Pablo Carrillo, Keith Bradley, Karen Harbaugh, George Schutzer and Tom Reems discuss changes to the Paycheck Protection Program established by the CARES Act as a result of the signing of the Paycheck Protection Program Flexibility Act of 2020 in to law on June 5, 2020.
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On June 5, 2020, President Donald Trump signed into law a bill, the Paycheck Protection Program Flexibility Act of 2020 (H.R. 7010), that will give borrowers of the US$670 billion PPP more time to spend the PPP proceeds and use them on a broader categories of expenses while still qualifying to have the loans forgiven.
In this way, the law is intended to help address widespread concern that PPP borrowers may be stuck with the debt because the programs’ requirements to have the loans forgiven are unduly burdensome. Continue Reading
With the Americans with Disabilities Act (ADA) now 30 years old, most people, and certainly all HR professionals and employment lawyers, know that it is unlawful to discriminate against employees (and applicants) on the basis of a physical or mental disability. What is less widely known, however, is that the ADA not only prohibits discrimination based on known or disclosed disabilities, but also discrimination against individuals who are “regarded as” disabled. A recent case from the US Court of Appeals for the Third Circuit (which covers Delaware, New Jersey, and Pennsylvania) examined this “regarded as” prong of the ADA, and specifically, an exception to it when the perceived disability at issue is of short duration and minor in its limitations.
William Eshleman started working as a truck driver for Patrick Industries in July 2013. In 2015, he took two months of medical leave for a procedure to have a nodule removed from his lung and tested for cancer. After this leave, Mr. Eshleman returned to work at full capacity, without any restrictions, but about six weeks later, he contracted a severe respiratory infection, requiring him to miss two days of work. Mr. Eshleman thereafter returned to work, at full capacity, but on his second day back, Patrick Industries terminated his employment, offering multiple explanations for its decision. Initially, it informed Mr. Eshleman that his employment was terminated due to “performance issues,” despite the fact that his most recent performance review was “excellent.” Thereafter, Mr. Eshleman was told that he was fired because he had not called out sick during his recent leave for the respiratory infection. Patrick Industries then offered a third reason – “behavioral issues” – as the reason for its decision. Continue Reading
Please join colleagues in our Venture Law Meetup Group for a monthly webinar on Friday June 5 at 9 am EDT. Leah G. Brownlee will be joined by Matthew Cooper and Matt Secrist to discuss considerations for getting back to the office in the COVID-19 pandemic. Register using this link.
This complimentary webinar series aims to equip executive officers and founders of new start-ups with the knowledge and tools needed to navigate the various aspects of launching and growing a new venture.
We would like to thank our event co-sponsors: BioEnterprise, BioOhio, Case Western Reserve University, Cleveland Clinic Innovations, Cleveland Health-Tech Corridor, Cleveland State University, CWRU LaunchNET, Flashstarts, Good Marketing, Inc., Greater Cleveland Chinese Chamber of Commerce, Marcum LLP, Merrill Datasite, OhioX, Plug and Play Cleveland and StartInCLE.
USCIS announced on May 29, 2020 that it will resume premium processing for Form I-129, Petition for Nonimmigrant Workers and Form I-140, Immigrant Petition for Alien Workers, in stages during the month of June. Premium Processing Service has been suspended since March 20, 2020 due to the coronavirus pandemic (COVID-19).
Premium processing provides expedited processing for certain nonimmigrant categories filed via Form I-129, Petition for Nonimmigrant Worker, and immigrant categories filed via Form I-140, Immigrant Petition for Alien Worker. By filing Form I-907, Request for Premium Processing Service, and paying an additional filing fee of $1,440, USCIS guarantees processing within 15 calendar days or it will refund the premium processing service fee and will continue with expedited processing. The initial response within 15 days is normally approval or a request for additional evidence.
USCIS will resume its premium processing service in the following stages: Continue Reading