Employment Law Alert Blog

EEOC Updates “COVID-19 Technical Assistance Questions and Answers” with a Focus on Return-to-Work Guidance

EEOC Updates “COVID-19 Technical Assistance Questions and Answers” with a Focus on Return-to-Work Guidance

The U.S. Equal Employment Opportunity Commission (EEOC) is continuing to offer COVID-19 related guidance to support employers and employees in navigating the workplace during the pandemic. As we discussed in a previous blog post, the EEOC updated its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance (first published in 2009) to specifically address the COVID-19 pandemic. In addition to the Pandemic Preparedness guidance, the EEOC has issued What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, technical assistance guidance that contains numerous COVID-19 related questions and answers. Similar to the pandemic preparedness guidance, the technical assistance addresses employer’s obligations under the Americans with Disabilities Act (ADA), specifically as they relate to accommodation requests and medical exams due to COVID-19, as well as other COVID-19 related workplace issues. The EEOC has continued to regularly update the technical assistance since its initial publication in March 2020, with the most recent updates in June 2020. The EEOC has explained that EEO laws like the ADA and Rehabilitation Act continue to apply during the COVID-19 pandemic, but do not interfere with or prevent employers from following guidelines and suggestions made by the Centers...

Reopening Considerations for New Jersey: What Employers Need to Know About OSHA

Reopening Considerations for New Jersey: What Employers Need to Know About OSHA

As New Jersey begins to reopen under Governor Murphy’s reopening plan and more employees prepare to return to their physical workplaces, employers must continue to navigate a myriad of federal, state, and local guidance regarding how to best protect their workforces and prevent the spread of COVID-19. While many employers, particularly those outside of the construction industry, may not be used to regular dealings with the United States Department of Labor Occupational Safety and Health Administration (OSHA), all employers must consider OSHA’s COVID-19 Guidelines as they prepare reopening plans. While OSHA’s reopening guidance is advisory in nature, employers should remember that the Occupational Safety and Health Act’s (“OSH Act”) General Duty Clause (Section 5(a)(1)) requires all employers to provide employees with workplaces that are free from recognized harms that are likely to cause death or serious physical harm, which could include exposure to COVID-19. Thus, employers should be careful to ensure that their reopening plans comply with OSHA’s guidelines (along with more stringent state or local guidelines if they exist). The OSHA Guidelines categorize risk of worker exposure to COVID-19 from low to very high and lay out specific measures of protection that are recommended at each risk level. Employers...

Third Circuit Clarifies Requirements for “Regarded As” ADA Claims

Third Circuit Clarifies Requirements for “Regarded As” ADA Claims

In Eshleman v. Patrick Industries, the United States Court of Appeals for the Third Circuit issued a significant decision concerning claims brought under the American With Disabilities Act (ADA) by employees alleging their employers perceived them to be disabled. The decision clarifies the pleading requirements in such cases and explains the ADA provision that exempts employers from liability for disabilities that are “transitory and minor.” Notably, the Court did not provide a specific definition of a “minor” disability, leaving that determination for the lower courts on a case-by-case basis. Background William Eshleman took leave from his job as a truck driver for Patrick Industries to have a module removed from his lungs. Six weeks after he returned to work he suffered a severe respiratory infection and was out of work for four days. Patrick Industries terminated his employment after his second shift back to work. At various times, the employer gave Eshleman different reasons for his termination. Eshleman brought suit alleging the shifting reasons for his termination were pretextual and the true reason was that his employer regarded him as disabled in violation of the ADA. The perceived disability was alleged to be that he “suffered from [a] long-term or...

Supreme Court Asked to Decide Prior Salary/Equal Pay Act Issue

Supreme Court Asked to Decide Prior Salary/Equal Pay Act Issue

The Fresno County Office of Education has requested the Supreme Court to hear an appeal from an en banc decision of the Ninth Circuit Court of Appeals holding that the Equal Pay Act (“the EPA”) prohibits an employer when setting the compensation of a female employee from considering her compensation at her prior job. If the Supreme Court agrees to hear the County’s appeal, it will be the second time the case will come before the Supreme Court. Previously, the Supreme Court vacated the Ninth Circuit’s decision because one of the appellate court judges who considered Fresno County’s appeal passed away, and was not replaced before the Ninth Circuit issued its opinion. Given that there is now a properly issued Ninth Circuit opinion, and given a split among the Courts of Appeals over whether and under what circumstances the EPA permits a new employer’s consideration of a woman’s prior salary when setting compensation, it seems likely that the Supreme Court will take up the case. Background After teaching middle school for a number of years, Aileen Rizo was hired by Fresno County as a math consultant. The county employed a twelve-level job classification system and each level was comprised of...

New York Issues Guidance on Use of Sick Leave and Paid Family Leave for COVID-19

New York Issues Guidance on Use of Sick Leave and Paid Family Leave for COVID-19

As discussed previously, New York recently passed a COVID-19 sick leave law that provides job protection and paid leave for employees who are subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19 (“COVID-19 quarantine leave” or “quarantine leave”). New York State has since published guidance (“Guidance”) and FAQs relating to the COVID-19 sick leave law (“FAQs”), which discuss, among other things, how employees may be compensated under the new law, through a combination of benefits that include COVID-19 sick leave, New York’s Paid Family Leave (PFL), and short-term disability (DBL) benefits while in quarantine. Under the COVID-19 sick leave law, as clarified by the Guidance and FAQs: An employee who works for a small employer – one with ten or fewer employees as of January 1, 2020 (with a net income of less than $1 million in the prior tax year) – and is subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York, department of health, local board of health, or any other government entity authorized to issue such an order due to COVID-19 (“quarantine order”) is entitled to unpaid sick leave until the termination of...

Amendments to Pennsylvania’s Unemployment Compensation Act Bring New Notice Obligations and Temporary Relief for COVID-19 Related Unemployment Benefit Charges for Employers

Amendments to Pennsylvania’s Unemployment Compensation Act Bring New Notice Obligations and Temporary Relief for COVID-19 Related Unemployment Benefit Charges for Employers

In connection with the continuing challenges arising from COVID-19, Pennsylvania Governor Tom Wolf recently signed into law amendments to Pennsylvania’s Unemployment Compensation Law, which are included in Act 9 of 2020 (“the Act”). The Act imposes new notice obligations on employers and includes “emergency provisions” that relax eligibility and access requirements for individuals filing COVID-19 related unemployment benefit claims and, among other things, provide relief to employers for charges incurred under certain circumstances. Some key provisions of the Act are discussed more fully below. New Notice Requirements The Act adds a new section (206.1) to Pennsylvania’s Unemployment Compensation Law, requiring employers to now provide separating employees with notice about the availability of unemployment compensation, regardless of whether the employer is liable for payment of contributions to the state’s unemployment compensation system. Although the Act is silent about the required form of notice, it must include the following information: Availability of unemployment compensation benefits to workers who are unemployed and qualify for benefits; An employee’s ability to file an unemployment compensation claim in the first week that employment stops or work hours are reduced; Availability of assistance and information about unemployment compensation claims on the Pennsylvania Department of Labor and Industries,...

The National Labor Relations Act and COVID-19

The National Labor Relations Act and COVID-19

One law that has not received much attention in the midst of COVID-19 is the National Labor Relations Act (NLRA). The NLRA is a federal law that governs labor relations for most private sector employers in the United States. The statute is enforced and interpreted by the National Labor Relations Board (NLRB), which is headquartered in Washington, DC and has regional offices throughout the country. The NLRA provides employees with various rights, including the right to engage in protected concerted activity, the right to join and to refrain from joining a labor union, and the right to have a union collectively bargain their terms and conditions of their employment. As recent developments demonstrate, both union and non-union employers should keep the NLRA in mind when conducting their workforce planning. Protected Concerted Activity The NLRA protects employees who engage in protected concerted activity. Generally speaking, this means that employees have the right to band together to demand better working conditions with or without a union. Concerns that employees raise about health and safety issues at work, which very well may include COVID-19-related concerns, could constitute protected concerted activity entitling employees to protection. See, e.g., Contemporary Cars, Inc. v. NLRB, 814 F.3d...

New Jersey Further Expands Family Leave and Temporary Disability Benefits in the Wake of COVID-19

New Jersey Further Expands Family Leave and Temporary Disability Benefits in the Wake of COVID-19

On April 14, 2020, Governor Phil Murphy signed into law Senate Bill S2374, which further amends the New Jersey Family Leave Act (FLA) and the New Jersey Temporary Disability Benefits Law (TDBL), including the Family Leave Insurance program (FLI), expanding on prior amendments signed into law on March 25, 2020 (included in Senate Bill 2304), as part of the state’s initial response to the early stages of the COVID-19 pandemic. These amendments are effective immediately and apply retroactively to leave taken on or after March 25, 2020. As the pandemic has continued, so too have the Legislature’s attempts to address its impact on New Jersey citizens, which have included efforts to protect New Jersey employees who are in need of temporary leave and/or income replacement benefits as a result of circumstances caused by COVID-19. Prior to the COVID-19 related amendments, eligible employees working for covered employers could, under the FLA, take up to 12 weeks of job-protected leave in any 24-month period for the following three reasons: The birth of a child, including a child born pursuant to a valid written agreement between the employee and a gestational carrier The adoption or foster care placement of a child Caretaking for...

Pennsylvania Issues New Executive Order Mandating Additional COVID-19 Disease Control Measures

Pennsylvania Issues New Executive Order Mandating Additional COVID-19 Disease Control Measures

On April 15, 2020, the Secretary of the Pennsylvania Department of Health issued an order aiming to blunt the continued and expansive spread of COVID-19 throughout Pennsylvania (“Order”). The Order, which took effect on April 19, 2020, requires additional disease control measures to further protect workers and customers of any life-sustaining business (“Business”) that has remained open during the COVID-19 disaster emergency. The original list of Businesses can be found here, and includes companies such as healthcare service providers; restaurants offering carry-out, delivery, or drive-through services; food, medical equipment, and chemical manufacturers; and utility and telecommunication companies, among others. The Order requires any such Business, other than a healthcare provider, to implement certain social distancing, mitigation, and cleaning protocols. These measures are in addition to those included in Pennsylvania’s April 6, 2020 building safety measures executive order, which requires covered businesses to clean and disinfect high-touch areas in accordance with CDC guidelines in spaces accessible to customers, tenants, or other individuals, and maintain pre-existing cleaning protocols established in the facility for all other areas of the building, ensure the facility has a sufficient number of employees to perform the required cleaning protocols effectively and in a manner ensuring the safety...

New York State Enacts Expansive Statewide Sick Leave Law

New York State Enacts Expansive Statewide Sick Leave Law

On April 3, 2020, Governor Cuomo signed into law New York State’s fiscal year 2021 budget, which adds a new section 196-b to the New York Labor Law to include sick leave requirements for New York employers of all sizes, and which the Governor’s office has described as the strongest paid sick leave law in the nation. Although employees may not begin to use sick leave under the new law until January 1, 2021, current employees begin to accrue leave on September 30, 2020. (As discussed in our prior blog, the State also recently passed a COVID-19 sick leave law that provides leave for New York employees who are subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19.) Key provisions of the new law are summarized below. Amount and Accrual of Sick Leave The amount of sick leave an employer must provide employees, and whether such leave must be paid, depends on an employer’s size, and for certain employers, income level. Employers with four or fewer employees in any calendar year must provide employees with up to 40 hours of unpaid sick leave in any calendar year; except that if such an employer has a...