By: John T. Ayers-Mann and Robert A. Fisher

Seyfarth Synopsis: With the advent of the CARES Act, the Commonwealth of Massachusetts has taken steps to implement Pandemic Unemployment Assistance, a new measure aimed at providing unemployment insurance to gig economy workers and independent contractors typically ineligible for benefits.

On Monday, the Massachusetts Division of Unemployment Assistance (“DUA”) announced that the Pandemic Unemployment Assistance guaranteed under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) would become available for gig economy workers, independent contractors, and self-employed individuals.  Typically, under Massachusetts unemployment law, self-employed individuals are ineligible to receive unemployment insurance benefits and are not required to make contributions to the state unemployment insurance fund from their earnings.  However, on March 27, 2020, the federal government enacted the CARES Act, which expanded unemployment benefits to non-employee workers and self-employed individuals.  Although the DUA began implementing other provisions of the CARES Act as early as April 9, the DUA had yet to provide the additional benefits for non-employees that were guaranteed under the CARES Act.  Now, those individuals typically ineligible for unemployment insurance benefits can apply under the expanded coverage afforded by the CARES Act

Under the newly-implemented provisions of the CARES Act, non-employee applicants who are able to certify that they are able to work but are prevented from doing so due to COVID-19 related circumstances may be eligible for unemployment benefits.  In addition to unemployment benefits afforded under the state program, applicants affected by the COVID-19 pandemic can also receive an additional $600 per week in supplemental benefits under the Federal Pandemic Unemployment Assistance program.  The DUA has also explained that initially it will only pay CARES Act benefits to eligible applicants for the period beginning from March 14 to the present, but that eligible applicants will later be able to request benefits for the period beginning February 8 to the present.  In order to apply for unemployment benefits provided under the CARES Act, non-employee applicants will need to provide wage records from 2019 (including Form 1099s, pay stubs, and bank statements), along with the information that employee applicants are typically required to submit.  Once non-employee applicants apply for benefits, they will need to re-certify their need for benefits on a weekly basis via the DUA’s online portal.  For more information about the Pandemic Unemployment Assistance program, visit the DUA’s website.

By Gerald L. Maatman, Jr., Christopher DeGroff, and Matthew J. Gagnon

Seyfarth Synopsis:  The EEOC recently released updated guidance for employers trying to navigate the federal anti-discrimination laws in the COVID-19 era – entitled What You Should Know About the ADA, the Rehabilitation Act, and COVID-19. The most recent update adds significantly to the EEOC’s position on how employers should treat requests for “reasonable accommodations” in these difficult times, as well as pandemic-related harassment issues, and issues that could arise as employees start returning to work. As such, the EEOC guidance should be required reading for all employers.

As we first reported here, the EEOC released guidance for employers trying to navigate the Americans With Disabilities Act and the Rehabilitation Act in the COVID-19 era: What You Should Know About the ADA, the Rehabilitation Act, and COVID-19. The guidance gives employers practical Q&A-style guidance on how they can navigate the safety concerns associated with COVID-19 while staying in compliance with the federal disability discrimination laws. The guidance has been updated by the EEOC several times since it was issued in March. On April 9 and 17, 2020, in particular, the EEOC added significantly to its discussion of requests for reasonable accommodation during the COVID-19 emergency, pandemic-related harassment issues, and issues that could arise as employees are furloughed or laid off and as they return to work.

Reasonable Accommodation Guidance

The EEOC’s updated guidance adds several Q&A points regarding requests for reasonable accommodations. Some of the most significant points include the following:

  • For individuals who have a pre-existing condition that puts them at higher risk from COVID-19, the EEOC recommends several low-cost changes to the work environment, such as designating one-way aisles, using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers, or other accommodations that reduce chances of exposure. According to the EEOC, flexibility by employers and employees is key. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment are other possible solutions recommended by the EEOC.
  • The EEOC reminds employers that employees’ preexisting mental illnesses or disorders can be exacerbated by the circumstances brought on by the health emergency, meaning that some individuals may now be in need of reasonable accommodations that had not been necessary before. Moreover, some employees may require different accommodations to deal with changed work situations, such as an employee who may need a different accommodation so he or she can effectively work from home.
  • The EEOC also opined that employers may still request information from an employee to determine if a medical condition is a disability and that they may still engage in the interactive process to see whether a disability requires an accommodation. Employers may also choose to shorten or forego the interactive process and simply grant an employee’s accommodation on a temporary basis. Employers are encouraged to be proactive; they may ask employees with disabilities to request accommodations and engage in the interactive process for accommodations that employees believe they may need when the workplace re-opens or they return to work.
  • Employers are also advised that they are not required to provide a reasonable accommodation that would pose an “undue hardship” on the employer. In some cases, the pandemic may have changed what counts as an undue hardship for an employer. In particular, economic concerns brought on by the pandemic are relevant to determining what counts as a significant expense. According to the EEOC, “the sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration.” The EEOC cautions, however, that this does not mean that an employer can reject any accommodation that costs money: “an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic.”

Pandemic-Related Harassment Guidance

The EEOC’s updated guidance also points employers to resources and tips they can use to prevent harassment that might arise as a result of the pandemic. Among other things, the EEOC recommends that employers explicitly communicate to their employees that fear of the pandemic should not be misdirected at individuals because of their national origin, race, or other protected characteristic. The EEOC also recommends that employers advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. Employers can also make it clear that they will continue to immediately review any allegations of harassment or discrimination and take appropriate action.

Guidance Relating To Furloughs, Lay-Offs, And Returning To Work

The EEOC had little to say to employers who are forced to consider layoffs or furloughs of employees, beyond simply reminding them about its guidance regarding waivers of discrimination claims in severance agreements, which can be found here.

With respect to returning employees, however, the EEOC reiterated that the ADA allows employers to make disability-related inquiries and to conduct medical exams if they are job-related and consistent with business necessity. That includes employees who might have a medical condition that would pose a direct threat to health or safety. Determinations as to whether a medical condition is a direct threat should be based on objective medical evidence, such as guidance from the CDC or other public health authority. According to the EEOC, “employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time.” That can include taking employees’ temperatures and inquiring about symptoms for all employees who enter the workplace because those actions are consistent with CDC guidance.

Finally, the EEOC has stated that it is permissible for employers to require returning workers to wear personal protective gear and observe infection control practices (including social distancing practices, among other things), provided that they continue to engage in the interactive process with any employee who requests an accommodation regarding those requirements. Employers’ requirements to discuss an employee’s requests and determine undue hardship are not lifted even for these COVID-19-related precautions.

Implications For Employers

These are just some of the important points clarified by the EEOC in this updated guidance. The EEOC continues to update this guidance on a rolling basis as it attempts to respond to this fast-moving crisis. It is a valuable resource for employers who every day are finding themselves encountering situations that have never or only rarely been seen before in the American workplace. We encourage all employers to review in detail the entirety of the EEOC’s guidance here, and to review Seyfarth Shaw’s COVID-19 Resource Center for additional guidance and information. Seyfarth Shaw also has a response team standing by to assist however we can.

Readers can also find this post on our EEOC Countdown blog here.

By Benjamin J. Conley, Paul S. Drizner, Diane V. Dygert, and Jennifer A. Kraft

Seyfarth Synopsis: As employers look for ways to help employees impacted by the current pandemic, one option to consider is permitting employees to donate their accrued, but unused paid time off (PTO) to fellow employees in need.  For an overview of some other employer-sponsored methods, see: https://www.seyfarth.com/news-insights/employer-sponsored-disaster-relief-programs-four-options-to-consider.html.

Tax law plays a key role in how these PTO donation programs work. As a general rule, taxpayers cannot avoid taxable income by giving away their accrued PTO, unless an exception applies, such as setting the program up as a medical emergency leave-sharing plan or a qualified major disaster leave-sharing plan.  Under either of these options, the employer establishes a plan under which employees may voluntarily donate their accrued, but unused PTO for the benefit of their fellow employees in need. The programs differ based on which employees may use the PTO and for what purpose. If a plan satisfies the applicable requirements, then the donor employee is not taxed on the income.  Instead, the recipient employee receives the donated leave time as taxable wages.

Medical Emergency Leave-Sharing Plans

A medical emergency leave-sharing plan is for employees who have exhausted all of their PTO and who need more because of a “medical emergency.” A plan can allow a donor-employee to donate accrued PTO either to a “leave bank” to be held available for any other employee as needed, or to a specific co-worker.

For this purpose, a medical emergency is a medical condition of the employee or a member of the employee’s family that will require a prolonged absence from work.  An IRS ruling also approved a plan that allowed an employee to receive donated leave time if the employee required extended time off following the death of the employee’s parent, spouse or child.

Under the current circumstances, if an employee is required to be absent from work because the employee (or spouse or child) is diagnosed with COVID-19, a distribution of PTO to the employee should qualify as a proper medical emergency distribution from the plan.  It is not clear, however, how a medical emergency leave-sharing plan would apply to other situations involving COVID-19, such as when an employee is quarantined but is not (and whose family is not) actually infected.

If a leave-sharing plan allows donated leave to be distributed to an employee who did not suffer a medical emergency, the entire plan could lose its status as a medical emergency leave-sharing plan.  This could mean that all donations and distributions from the plan (not just the distributions to employees who did not suffer a medical emergency), would lose the expected tax treatment discussed above.

Major Disaster Leave-Sharing Plans

A major disaster leave-sharing plan is a plan that benefits employees adversely affected by a major disaster. For this purpose, a “major disaster” is a major disaster as declared by the President under Section 401 of the Stafford Act that warrants individual assistance or individual and public assistance from the federal government under that Act. Unlike the medical emergency leaving-sharing plan, this type of plan does not allow a leave donor to deposit leave for a specific leave recipient.  Instead, a leave donor must deposit accrued leave in an employer-sponsored leave bank for use by those employees who are adversely affected by a specific major disaster in that it caused severe hardship to the employee (or a family member) that requires the employee to be absent from work.

Further, these plans must meet the following requirements:

  • The amount of leave that may be donated by a leave donor in any year generally cannot exceed the maximum amount of leave that an employee normally accrues during the year.
  • A leave recipient may receive paid leave from the leave bank and must use this leave for purposes related to the major disaster. A leave recipient may not convert the leave into cash in lieu of using the leave.
  • The plan must adopt a reasonable time limit following the disaster for depositing the leave in the leave bank and for using it.
  • The employer must make a reasonable determination, based on need, as to how much leave each approved leave recipient may receive under the leave-sharing plan.
  • Leave deposited on account of one major disaster may be used only for employees affected by that major disaster and unused leave generally must be returned to the donor employee within a reasonable period of time.

As of the date of this update, the District of Columbia and all 50 states have been declared COVID-19 major disasters by the President, but only certain states have been declared major disasters that warrant individual assistance.  While a state’s major disaster declaration may be modified in the future to include individual assistance, currently employers can establish a qualified major disaster leave-sharing plan for the benefit of employees adversely affected by COVID-19 only in those states which have.

State-Specific Considerations

Employers considering implementing one of these PTO leave-sharing programs should first confirm that no state tax or leave law in the jurisdiction in which they operate would impact their ability to do so. Specifically, employers should review state tax guidelines to ensure that they do not depart from IRS guidance on leave sharing.  Further, employers should consider whether state or municipal leave ordinances would limit their ability to permit employees to donate leave, such as mandated sick leave, reducing their accrued leave to a level below what is permitted under local law.

By Karla Grossenbacher

Seyfarth Synopsis: During the COVID-19 crisis, employers are being thrust into situations in which they inquiring into and monitoring the private lives of their employees in unprecedented ways.  However, employees still have privacy rights and, even though some intrusions upon employee privacy are warranted during the pandemic, employers need to beware of unintended consequences of legally permissible acts and narrowly tailor these intrusions to serve the goal of safety and security in the workplace.

Most employers today probably did not think they would ever find themselves taking their employees’ temperatures to make sure they are not sick, requiring employees to fill out questionnaires regarding recent personal travel or asking employees if they are experiencing symptoms of respiratory illness – all with the blessing of the U.S. Equal Employment Opportunity Commission, no less.  Indeed, the Centers for Disease Control published on April 8, 2020, an “Interim Guidance for Implementing Safety Practices for Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19” that specifically calls for employers to measure the temperature of such workers as a  “pre-screen” before they can return to the workplace.

It might strike some people that employees have diminished privacy rights during the current global health emergency caused by the coronavirus.  However, this is not true.  Employee privacy rights are still alive and well, but the circumstances in which employers – and the world – find themselves have changed.

Privacy rights in the workplace are and have always been the product of a delicate balance between the right of employers to run their businesses and ensure safety and order in their workplaces, on the one hand, and the right of employees to keep their employers out of their private lives, on the other.  For example, every state has its own common law related to the tort of invasion of privacy, but most states adhere to the formula contained in the Restatement of Torts, 2d, which defines an invasion of privacy as an intentional intrusion upon seclusion of another that “would be highly offensive to a reasonable person.”  The determination of what is “highly offensive” to a “reasonable” person is fact-intensive and depends on a number of factors under the case law.  In other words, context matters: what is the purpose of the intrusion and was the intrusion narrowly tailored to serve that purpose?

Currently, in the situation with COVID-19, the balance between the employer’s right (indeed, obligation) to keep the workplace safe for its employees is tipping in favor of increased intrusion into matters related to employees’ health given the threat presented by COVID-19 in the workplace.  However, employers need to exercise restraint and common sense when navigating these unchartered waters.

For example, the fact that employers are legally permitted, and encouraged by the CDC, to take employee temperatures amidst the current pandemic does not end the privacy analysis.  If an employer is going to take employees’ temperatures, thought needs to be given to the execution.  Who is going to take the temperatures?  Where?  How?  How will the employer protect the safety of the person taking the temperatures?  If someone has a high temperature, what happens next?  How will that person’s privacy be protected when there is a line of other employees present waiting to have their temperature taken?  Will temperature information be recorded?  How will it be kept confidential?  The moral of the story here is that, although the employer may be acting legally in taking an employee’s temperature in the first instance, an employer could easily do so in a manner that creates additional privacy concerns and runs afoul of the law.

There will come a time when the COVID-19 crisis has passed, and when it does, there will likely be a reckoning for employers who have made the mistake of thinking their employees’ privacy rights went on a temporary hiatus during the pandemic.  Inevitably, there will be a backlash – and legal claims – from employees whose privacy rights were not properly balanced by their employers.  History will separate those employers who acted in a reasonable and thoughtful manner with respect to balancing their employees’ privacy rights from those who did not.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Teams.

By James L. CurtisAdam R. Young, Matthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis: Employees who complain about safety measures to protect employees from COVID-19 may be protected from retaliation by federal and state laws.  Employees who refuse to perform job functions may also be protected.

News media reports during the COVID-19 pandemic highlight widespread concern and anxiety from employees about safety and health precautions in the “essential” workplace.  Many employees have complained about the quality of availability of personal protective equipment (PPE) and hand sanitizer, as both have been in short supply during the nationwide epidemic.  Some employees have even refused to perform specific work tasks or refused to report to work entirely.  These concerns can result in allegations of retaliation and complaints to federal and state OSHA agencies.

Background on Section 11(c) of the Occupational Safety and Health Act (“the Act”)

Under Section 11(c) of the Occupational Safety and Health Act (and comparable state regulations), employees are protected from retaliation for raising safety concerns.  To state a prima facie case for safety-related retaliation under Section 11(c), an employee must allege (1) a protected activity, such as making internal safety complaints, complaining to OSHA, or refusing to perform unsafe tasks, (2) an adverse employment action, such as discipline or termination, and (3) causal connection between the two. The Act gives employees the right to file a whistleblower claim with OSHA within 30 days of the adverse employment action.  OSHA will then conduct an investigation of the claim; there is no private cause of action under the Act.

Is a refusal to work on the account of COVID-19 “protected activity” under Section 11(c)? 

Under the federal regulations, employees generally have no legal right to walk off the job or refuse to perform work entirely.  An employee can only refuse to perform specific tasks for which the employee has an objectively reasonable safety concern that the employer has not yet addressed.  This is according to OSHA’s most recent Investigator’s Desk Aid to the Occupational Safety and Health Act (OSH Act) Whistleblower Protection Provision.  But the reasonableness of refusing to work out of generalized fear of COVID-19 has not yet been litigated and the specific exposures to COVID-19 from the asks at issued will be evaluated on a case-by-case basis.  Given the virulence of the disease and ease of transmission, there may be a shift in thinking about whether refusing to go into an environment where interactions with customers or other employees are frequent would give rise to an objectively reasonable concern about serious injury or death.

Before finalizing disciplinary action against employees who have raised COVID-19 safety concerns and who may be refusing to work, employers should first consult with counsel and try to address employees’ concerns.  Employers should take proactive steps to communicate how the employer is addressing COVID-19 hazards and protecting employee safety consistent with CDC and OSHA guidelines.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Whistleblower & Corporate Internal Investigations, or the Workplace Safety and Health (OSHA/MSHA) Teams.

By Steve Shardonofsky and Alex S. Oxyer

Seyfarth Synopsis: The Sixth Circuit Court of Appeals recently reversed summary judgment in favor of an employer on failure to promote claims, finding that the apparent preselection of a candidate prior to the interview process cast doubt on the selection criteria and the purported reason(s) the plaintiff was not hired. The case — Stokes v. Detroit Pub. Sch. (6th Cir. Mar. 31, 2020) is a must-read for employers and hiring managers looking to avoid potential pitfalls in the hiring process.

Case Background

The plaintiff had worked for Detroit Public Schools (DPS) for ten years, most recently as Acting Deputy Executive Director of HR. He applied and interviewed for the position of Executive Director of Talent Acquisition. Instead of hiring the plaintiff, DPS hired a younger, female applicant even though she had initially applied for a different job and was not required to submit her transcript, though transcripts were normally required in the process. The plaintiff received the lowest interview scores of the three applicants interviewed during the process, and the candidate who was ultimately hired received the highest.

The plaintiff filed suit, claiming he was not selected because of his age and gender. On summary judgment, the school district argued there was no evidence of pretext because the plaintiff had performed poorly during his interview and was not the best candidate for the job, because he struggled to attract teachers while he was Acting Deputy Executive Director of HR. The district court granted the motion and dismissed the plaintiff’s claims, rejecting the argument that DPS’s non-discriminatory reasons were pretextual.

The Sixth Circuit Reverses

The plaintiff argued on appeal that there was sufficient evidence to raise a fact issue as to pretext: (1) the irregularities in the interview process; (2) that he was allegedly more qualified than the individual hired; (3) evidence that before the interview process began the school district had already chosen the candidate who was ultimately hired; and (4) the plaintiff’s positive performance reviews, which he claimed undermined the argument that he was not a good fit for the new role.

Regarding the first argument, the Sixth Circuit found that “irregularities in a company’s interview process alone do not constitute pretext sufficient to overcome summary judgment.” Id. at *5. Because the plaintiff could not show that any irregularities actually prejudiced him in the selection process or evidenced dishonesty or bad faith on the part of the school district, the irregularities were insufficient alone to raise a fact issue regarding pretext. The plaintiff’s argument that he was better qualified was also rejected by the Court. Though the plaintiff had more years working in HR and recruitment, the individual hired had teaching experience, could have been found by a reasonable decisionmaker to be better-suited for the talent acquisition job, and therefore it was not objectively clear that the plaintiff was better qualified.

However, the Court found persuasive the plaintiff’s argument that the candidate hired was potentially selected for the job before the interviews began, thus undermining and calling into question the Defendant’s non-discriminatory reasons for rejecting the plaintiff. The evidence included emails where DPS discussed how the hired applicant was a good fit for the open position, even though she had actually applied for a different job. These emails, along with the irregularities in the interview process (including the fact that the individual hired was not asked to submit a transcript and that the ultimate decision was not made unanimously as required by DPS policy), called into question and undermined the reasons Defendant presented for not hiring the plaintiff. Accordingly, summary judgment on the plaintiff’s claims was inappropriate. The Court ultimately reversed and remanded the case to the district court for further proceedings.

Implications For Employers

The Sixth Circuit’s decision outlines several pitfalls for employers in the hiring process. Whenever possible, employers should strictly follow their pre-established policies and protocols for hiring and interviews, or risk having the process and the resulting decisions called into question during litigation. While there may be legitimate reasons to bypass or change standard protocols, any deviations should be rare, well-documented, and done for legitimate reasons. Indeed, any hiring and interview processes should be conducted in good faith and should not be undertaken to rubber-stamp a decision already made, especially if the other candidates do not have a real chance to land the role.

The case also serves as a good reminder about the importance of completing performance evaluations accurately, even to a fault. If an employer later attempts to rely on an employee’s poor performance to justify an adverse action against, the reason can be undermined and raise an inference of discrimination if the deficiencies were never documented and reviews show a history of positive performance.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team.

 

By: Shireen Wetmore, Ann Marie Zaletel, Chantelle Egan, and Kerry Friedrichs

Seyfarth Synopsis: Many employers are asking whether they need to provide documentation to employees performing work during a shelter-in-place or similar order and increasingly, employees are demanding such documentation.  Should employers provide documentation to employees that explains their status as supporting essential, critical businesses?

Across the country, states and localities are enacting orders or laws that restrict which businesses may remain open and which employees may continue to report to the worksite.  These orders permit–and in some cases require–hundreds of thousands of workers to continue to report to work.  To date, most orders  either do not address documentation or expressly state that individuals do not need to carry documentation to prove that they are performing work for an essential business. While many of these orders do not require employees to carry papers identifying where they work, many employees are concerned that they will be stopped on the street or harassed.  They are scared to go to work and scared to be out on the streets.

Additionally some of these employees would find it difficult to articulate how or why their presence is deemed essential to the functioning of our infrastructure or the health and safety of local inhabitants.  One simple example to illustrate: grocery stores are clearly exempt–they feed us and supply us with necessities of daily life.  But who delivers those items for sale or cleans the store at night to keep you safe?  A third shift worker, traveling the mostly empty city streets at night on her way to work might appreciate some talisman in her pocket, whether necessary or not, to present to a wary officer or frustrated neighbor seeing her out and about.

More recently some states have begun instituting mandatory quarantines for travelers entering the state (see our blog on this topic here).  Hawaii’s requires a mandatory declaration upon arrival and quarantine, while Alaska’s requires businesses to submit a safety plan to a state agency detailing a plan to avoid the spread of COVID-19.  In other states, like Michigan, employers and partner businesses must supply–in writing–notices to workers, designating them as “critical infrastructure workers.”  All of the requirements only add to a worker’s angst.

To that end, employers may want to consider providing a letter (or better yet, a business card-sized document to fit in an employee’s wallet), verifying employment for those individuals still reporting to work at physical locations.  We have prepared sample templates for clients ranging from a printable business card template to lengthy letters detailing the employee’s and employer’s critical roles in the fight against the novel coronavirus.

While not legally necessary in all jurisdictions, such documentation may be a simple comfort to your employees.  Even if it is never used, it provides the employee with the right words to say if it is ever needed.

So what should be included in such a communication?  Again, these are unchartered waters.  However, employers may want to consider including some of the following:

  • contact information for someone who can quickly verify the individual’s travel purpose, if required and who will be available at the time the individual is traveling
  • the name of the business and, if different from the location of assignment, the address where the worker performs the work
  • reference to the order (or exemption from the order) permitting the worker to travel
  • the essential work (including the need to perform minimum basic operations for non-essential businesses) of the worker and/or business
  • tips for compliance with the applicable local and/or state orders (including resources like CDC guidelines for handwashing, social distancing, and when to stay home from work)

Not all of the above will make sense for every employer or business.  Businesses should consider carefully whether a one-size-fits-all communication is appropriate given their unique staffing and geographic locations.  If you are considering providing similar documentation for your employees, we encourage you to reach out to your favorite Seyfarth attorney.

Finally, if you made it this far, a little treat, because, if nothing else, your business card can be used to legitimize your request for the Business Women’s Special.

By: Anne Dana, Shireen Wetmore, and Chantelle Egan

Increasing fears about community spread of COVID-19 have caused a growing number of states and other localities to issue orders requiring those who are traveling to or returning to the state from out-of-state or specific “hot-spots” to quarantine for up to 14 days.

The goal of such orders is to diminish community spread of the disease.  However, for “essential” workers – who are frequently, but not always, exempted from such orders – this is adding one more complication.  For example, how should employers address the quarantine requirement for employees who voluntarily travel outside the state during personal time? What about employees who are commuting across state lines to perform work the employer deems essential?  And what about those whose job it is to transport essential goods across state lines, such as truck drivers and freight haulers, who may need to spend the night in the state?

In some cases, the orders provide certain exemptions from the quarantine requirement.  Generally the exemptions include those in the airline industry, military, healthcare, or emergency response operations.  Some orders also include exceptions for essential business needs, however, not all do.  The orders without such a carve out could be problematic, as they could hinder the transport of necessary goods.  More importantly, whether a business is “essential” may vary from state to state and locality to locality.  (See some of our prior alerts discussing “essential businesses” here (Federal), here (NY), here (CA), and here (IL).

While some employees, contractors, and suppliers were already requesting documentation supporting their critical roles (see our blog on this issue here), these requests will likely increase with these new travel restrictions. This is particularly true as states are developing their own methods for tracking compliance with the mandates, ranging from requiring proof of purpose of travel to completion of forms to requirements that businesses affirmatively submit a plan for avoiding the spread of COVID-19 to the local state agency.

The following is a high level overview of the state ordinances currently in effect as of this writing:

  • Alaska: Alaska has issued Health Mandates requiring the quarantine of both intrastate travelers (Health Mandate 12) and interstate travelers (Health Mandate 10.1). The mandates exempt those who support critical infrastructure.  However, those who believe their business in Alaska support critical infrastructure are required to submit a plan or protocol to the Dept. of Commerce outlining, inter alia, how they will support that infrastructure and protect the community from the spread of COVID-19.  Individuals arriving in Alaska must also complete a Mandatory Travel Declaration.  Failure to comply with quarantine is punishable by fine up to $25,000 or imprisonment of not more than one year.  Falsification of information on the travel form may be classified as a felony.  
  • Delaware: The Governor modified the declaration of emergency to require anyone entering Delaware from another state, and who is not merely passing through, to self-quarantine for 14 days from the time of entry or for the duration of the stay, whichever period is shorter.  The order does not apply to public health, public safety, or healthcare workers, or any other individual providing assistance to an Essential Business or providing an emergency service related to COVID-19.  Nor does it apply to individuals commuting into Delaware to work for an Essential Business or to perform Minimum Business Operations.  Nor does it apply to those traveling to care for a family member, friend, or pet in Delaware, or to the transport of family members, friends pets or livestock.  Violation is a criminal offense.  The order went into effect on March 30th and is retroactive.
  • Florida: Florida’s original order (EO 20-82) required any person whose point of departure originates from outside the State of Florida in an area with substantial community spread, to include the New York Tri-State Area (Connecticut, New Jersey and New York), and entering the State of Florida through airports to isolate or quarantine for a period of 14 days from the time of entry into the State of Florida or the duration of the person’s presence in the State of Florida, whichever is shorter. The order does not apply to persons employed by the airlines or those performing military, emergency or health response. The effective date of the order was on March 24, 2020.

A subsequent order (EO 20-86) expanded the quarantine to include those entering Florida by roadways and to include the State of Louisiana, and exempted those performing “military, emergency, health or infrastructure response, or persons involved in any commercial activity.”  The order took effect on March 27th and applies retroactively to all persons who have been in an area with substantial community spread.  It also directs for checkpoints on roadways for those entering Florida, and requires persons to provide information, including in a written form, regarding the origin of their travel and the address of their location of isolation or quarantine. Violation of the order is a second-degree misdemeanor and is punishable by imprisonment not to exceed 60 days, a fine not to exceed $500, or both. Violators must also be reported to the state department of health.

  • Hawaii: As of March 26, 2020, pursuant to the Second Supplemental Proclamation, all persons entering Hawaii, “except those persons performing emergency response or critical infrastructure functions who have been exempted by the Director of Emergency Management,” are subject to a mandatory 14 day quarantine (or the duration of their stay in Hawaii, whichever is less).  The order currently applies to all travel through May 20, 2020.  Violations are subject to a fine of up to $5,000 or up to one year in prison, or both.
  • Kansas: On March 27th, the Kansas Department of Health and Environment issued an updated quarantine requirement for Kansans who had travelled to certain hot-spots on or after specific dates as listed in the mandate, including Louisiana, Florida, Washington, Illinois, New Jersey, California, New York, and certain counties in Colorado, as well as any international or cruise ship travel. The mandate does not apply to critical infrastructure sectors, including public health, hospitals, clinics, pharmaceuticals and food supply.
  • Maryland: The Governor of Maryland has announced that no Marylander should be travelling outside of the state and that those who have traveled outside of the state should self-quarantine for 14 days. However, the order issued on March 30th did not include a reference to this requirement.
  • Massachusetts: Unlike many of the other states on this list, the Governor of Massachusetts has issued an that travelers should self-quarantine for 14 days, but has not issued and order and there is no enforcement mechanism.  Travelers arriving at the airport and train stations will receive fliers advising them to quarantine and similar advice will be posted along highways. Other states have followed suit by requesting quarantines, without directly ordering them, including New Hampshire,  , and Nevada.
  • New Mexico: The order directs all persons whose travel to New Mexico is through an airport and whose point of departure originates outside of New Mexico to self-isolate or self-quarantine for a period of at least 14 days from the date of their entry into the State of New Mexico or for the duration of their presence in the State, whichever is shorter. The order defines the terms “self-isolate” and “self-quarantine”.  The order does not apply to persons employed by airlines and those performing public safety or public health functions, such as military personnel, federal employees, those employed by a federal agency or national defense contractor, emergency first responders, healthcare workers, or individuals who are employed by shipping and freight companies.  It also directs the New Mexico Department of health to ensure compliance and enables civil or criminal penalties if warranted.  The effective date of the order was March 27th.
  • North Dakota: Requires that all individuals traveling back to North Dakota from international locations and states in the U.S. that have been classified as having widespread disease by the CDC (and includes a list) must quarantine upon reentry to the state of North Dakota for 14 days. Any “critical infrastructure workers,” as defined by the United States Department of Homeland Security are exempt. Failure to comply can result in 30 days of imprisonment and/or up to a $1500 fine.
  • Oklahoma: The order provides that all persons who enter the state by air from an area with substantial community spread, which includes New York, New Jersey, Connecticut, Washington, California and Louisiana to quarantine for a period of 14 days or the duration of the person’s stay, whichever is shorter.  It does not apply to those employed by airlines or to those performing military, emergency or health response.  The order took effect on March 29th and applies retroactively.  The order is unique in that it also requires individuals who have traveled to any of these areas to inform any individual in Oklahoma with whom they have had direct physical contact in the past 21 days of that travel.
  • Rhode Island: The order provides that any person coming to Rhode Island from another state for a non-work-related purpose must immediately self-quarantine for 14 days. The order does not apply to “public health, public safety, or healthcare workers.”  The order makes clear that any person who works in another state and cannot telework must self-quarantine when not at work (except those subject to the above exclusions).  The order took effect on March 28th.
  • South Carolina: The order provides that any individuals who enter the State of South Carolina from an area with substantial community spread, including New York, New Jersey, and Connecticut and the City of New Orleans, Louisiana, shall isolate or self-quarantine for a period of fourteen (14) days from the time of entry into the State of South Carolina or the duration of the individual’s presence in South Carolina, whichever period is shorter.  The order does not apply to individuals employed by airlines and individuals performing or assisting with military, healthcare, or emergency response operations.  The order is effective as of March 27, 2020 and is in duration for the State of Emergency unless otherwise modified or amended.
  • Texas: The order (EO-GA-11) provides that any person who enters Texas as the final destination through an airport, from a point of origin or point of last departure in New York, New Jersey, Connecticut, or New Orleans, to quarantine for 14 days from the date of entry or the duration of the person’s presence in Texas, whichever is shorter.  The order excludes those traveling in connection with military service, emergency response, health response, or critical infrastructure functions.  Covered persons have to fill out a form that designates the quarantine location and other information. Violations are a criminal offense punishable by a fine not to exceed $1,000, confinement in jail for a term not to exceed 180 days, or both.  The order went into effect on March 28th.

Texas then expanded the locations in a subsequent order to include air travel from California, Louisiana, Washington, Atlanta, Chicago, Detroit, and Miami.  This went into effect on March 30th.

It also expanded the quarantine requirement to address road travel from Louisiana in another subsequent order (EO-GA-12).  This order also excludes those traveling in connection with commercial activity — in addition to the above excluded categories of military, emergency / health response, and critical infrastructure.  This order also went into effect on March 30th.

  • Vermont: The order requires that residents and non-residents coming from outside the state self-monitor and home-quarantine for a period of 14 days.  This does not apply if the travel is for an essential purpose.  The order defines essential purpose to include travel required for: personal safety; food, beverage or medicine; medical care; care of others; and to perform work, services or functions deemed critical to public health and safety, as well as economic and national security, as set forth in Stay Home/Stay Safe.  Visitors are instructed not to travel to Vermont if they are coming from cities or regions identified as “hot spots” including Florida, Louisiana, Detroit, Chicago, New York City.  It also orders residents of New York, New Jersey, and Connecticut to stay in their home states in strict compliance with CDC travel guidance.  The order took effect March 30th.

Compliance aside, Constitution law scholars are likely gearing up to respond to (and even bring) challenges to these various orders based on, for example, the Commerce Clause, Article IV of the United States Constitution (“The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states”), the Fourteenth Amendment (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”) and other, similar protections designed to facilitate travel and commerce between states.  Perhaps with that in mind, several states appear to be limiting orders or recommendations to residents of that state only, referring to “Statelanders” instead of all travelers in and out of State.  Needless to say, the situation remains fluid.

In the meantime, however, the growing number of orders, each with unique exceptions and requiring varying forms of documentation, will require close attention from businesses relying on the interstate travel of workers and goods during this pandemic.

The COVID-19 landscape continues to rapidly evolve at the federal, state and local level. Companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with these ever-changing provisions. To stay up-to-date on COVID-19 developments, click here to sign up for our daily digest.

By Christine Hendrickson and Annette Tyman

Synopsis: On Equal Pay Day 2020, Seyfarth’s Pay Equity Group is pleased to release two reference guides: its Fourth Annual 50-State Pay Equity Desktop Reference and 2020 Developments in Pay Litigation Report.

Equal Pay Day is always a day of deep reflection and connection for our Pay Equity Group. The day is filled with webinars, phone calls and interviews, flights, in-person meetings and hallway greetings.  This year, instead of flying around the country, we are working from homes, preparing final materials in make-shift home offices between “homeschooling” sessions. At least one of our planning calls was interrupted by a new “co-worker” roller-skating down the hallway.

But putting the final touches on our communications in the quiet of the morning, we reflect on the way the global pandemic has had a way of clarifying and crystalizing the core of what is important.  As Kori Carew, Seyfarth’s Chief Inclusion & Diversity Officer, wisely stated that “Our need for connection and belonging likely hasn’t been greater for most of our lifetimes.” So even though we have made the decision to move our webinar until later in the year, we wanted to share these reference materials.  We are grateful that we can support the efforts of so many employers who are proactively working to ensure equal pay on a daily basis.  As we offer these resources to you today, we plan to hold a substantive webinar in the summer when we can collectively focus on the legal issues, trends and practices that propel our combined work and focus on ensuring equal pay for all.

As we look back at 2019 and forward to the new world that 2020 and beyond presents, we see three key trends:

  • The Continued Passage of Pay Laws: Since the beginning of 2019, we saw new pay laws enacted or strengthened in eleven states.  Alabama, which was one of only two states without any state pay equity laws, passed an equal pay law and also enacted a quasi-salary history ban.  Colorado passed a law that will require employers, beginning in January 2021 to include the pay scale on job postings.  Nebraska passed a wage transparency law. There are new or amended salary history bans in Illinois, Maine, New Jersey, New York, and Washington state.  There are also new equal pay laws or increased penalties for violations of equal pay laws in Illinois, Maryland, Nevada, New York, and Wyoming.  The Fourth Annual 50-State Pay Equity Desktop Reference outlines many of these changes at the state-level.
  • Increased Pay Litigation: Over the years, we have seen an increase in litigation under the federal Equal Pay Act and analogous state laws with noticeable focus on state law claims. With over 300 pure “pay” cases filed in the last two years, we see a concentration of cases in California, Florida, and Texas. Those cases are already generating new and intriguing legal issues that have the potential to reshape the landscape of pay equity litigation, including whether and how those claims can be maintained as collective or class actions. The 2020 edition of the Developments in Pay Litigation Report, authored by our colleague Matt Gagnon, outlines these cases and trends.
  • A Global Focus on Pay Equity: In 2019, we saw employers continue to focus on global pay equity issues, to be more transparent about pay along with an increased appetite for additional data and metrics. As our global workforces are impacted by COVID-19, we believe that the desire to connect, to demonstrate belonging will be even more important in 2020.

All of the members of the Pay Equity Group look forward to working with you and partnering with you in navigating these issues in 2020.  We stand with you to support these efforts.

Christine Hendrickson and Annette Tyman co-chair the Seyfarth’s Pay Equity Group.

By Jennifer L. Mora

On Monday, March 23, 2020, the United States Department of Transportation issued guidance for DOT-regulated employers, employees, and their service agents that might be facing challenges in meeting the department’s drug and alcohol testing requirements due to the pandemic. The guidance, which can be found here, serves to “provid[e] maximum flexibility to allow transportation industries to conduct their operations safely and efficiently during this period of national emergency.”

According to the guidance:

  • DOT-regulated employers remain obligated to comply with applicable DOT training and testing requirements. However, recognizing that compliance may not be possible in certain areas due to the unavailability of program resources, such as collection sites, Breath Alcohol Technicians (BAT), Medical Review Officers (MRO), and Substance Abuse Professionals (SAP), the guidance advises regulated employers to “make a reasonable effort to locate the necessary resources.” DOT states that as “a best practice at this time,” employers should consider mobile collection services for required testing if the fixed-site collection facilities are not available. DOT, however, reminds employers that “point-of-collection testing or instant tests are not authorized in DOT drug testing.”
  • If a DOT-regulated employer is unable to conduct DOT drug or alcohol training or testing due to COVID-19-related supply shortages, facility closures, state or locally imposed quarantine requirements, or other impediments, it must continue to comply with existing applicable DOT requirements to document why the test was not completed. If training or testing can be conducted later (e.g., supervisor reasonable suspicion training at the next available opportunity, random testing later in the selection period, follow-up testing later in the month), employers must do so in accordance with applicable modal regulations.
  • If an employers is unable to conduct DOT drug and alcohol testing due to the unavailability of testing resources, the underlying modal regulations continue to apply. For example, without a “negative” pre-employment drug test result, an employer may not permit a prospective or current employee to perform any DOT safety-sensitive functions, or in the case of the Federal Aviation Administration (FAA), the employer cannot hire the individual.
  • Recognizing the concern about potential public health risks associated with the collection and testing process in the current environment, the guidance advises employers to review the applicable DOT Agency requirements for testing to determine whether flexibilities allow for collection and testing at a later date.
  • The guidance reminds employers that it is their responsibility to evaluate the circumstances of the employee’s refusal to test and determine whether or not the employee’s actions should be considered a refusal as per 49 C.F.R. § 40.355(i). However, as the COVID-19 outbreak poses a novel public health risk, the DOT asks employers to be sensitive to employees who indicate they are not comfortable or are afraid to go to clinics or collection sites. It also asks employers to verify with the clinic or collection site that it has taken the necessary precautions to minimize the risk of exposure to COVID-19.
  • Finally, the guidance advises employers to revisit back-up plans to ensure the plans are current and effective for the current outbreak conditions. For example, these plans should include availability of collectors and collection sites and BAT, and an alternate/back-up MRO, as these may have changed as a result of the national emergency. DOT also advises employers to have regular communications with service agents regarding the service agent’s availability and capability to support the employer’s DOT drug and alcohol testing program.

Many employers with drug and alcohol testing programs, whether regulated or not, are finding it difficult to administer their programs in light of the pandemic. Employers that are not subject to DOT or any other federal or state-mandated drug testing requirements still must consider any applicable state and local drug and alcohol testing laws before making any modifications to their drug and alcohol testing programs. Employers that need to revisit their current testing programs during this uncertain time should consider working with counsel experienced in drug and alcohol testing laws and policies. We will continue to monitor these issues as they develop at the federal, state, and local level.