COVID-19 Resources

CWC is pleased to make available the information and resources on this page as a service to all of the nation’s employers who are trying to manage the impact of COVID-19 on their workplace legal and compliance requirements. This page will be continuously updated by our staff regarding COVID-19 compliance and risk management developments at both the federal and state levels. If you have any workplace compliance or risk management questions related to COVID-19, or if you’d like to make us aware of any developments we might have missed, please email us at info@cwc.org.

FAQs

It depends. If the symptoms of the condition are severe enough to qualify as a “serious health condition” and the employee has not maxed-out the allowable amount of protected leave within the 12-month leave year, then the employee would more likely than not be eligible for FMLA-protected leave. In order to make this determination, employers must conduct an individualized assessment of the employee’s request. 

For more information, go HERE
 
The FMLA protects those individuals who either have “a serious health condition” or for caring for family members who have a “serious health condition.” Serious health condition refers to a an illness, injury, impediment, or physical or mental condition that involves (a) inpatient care at a hospital, hospice, or residential medical care facility; or (b) continuing treatment by a health care provider. Attempting to avoid contracting a serious health condition, such as COVID-19 is not covered under the FMLA. 
 
Under normal circumstances, this line of questioning may be considered a disability-related inquiry, which requires you to show that the question is job-related and consistent with business necessity. However, according to EEOC, because COVID-19 has been declared a pandemic, such question would not constitute a disability-related inquiry. During the pandemic, employers may ask this question to individuals who recently traveled (including business or personal travel). 
 
The short answer is no. Because COVID-19 has been identified as an international pandemic, separating employees who display signs familiar to the condition would be permissible under the ADA and the Rehabilitation Act because the condition is serious enough to pose a direct threat to the workplace — a permissible basis for sending such employee(s) home. 
For more information, go HERE

Under normal circumstances, taking an employee’s temperature would be considered an impermissible medical examination unless you can show that the medical examination is job-related and necessary to conduct your business.  According to the EEOC, because COVID-19 has become widespread in the community, employers may take its employees’ temperatures. Employers should not single out employees, but instead should take all of its employees’ temperatures in the department. 
 
Currently, OFCCP is continuing conducting its compliance reviews, focused reviews, and complaint investigations. However, with respect to physical onsites, the Agency has indicated that it will employ other means, such as using WebEx, Skype, and telephone interviews instead of physically coming onsite. The Agency has also announced that for employers who cannot make employees available, it will remain flexible and provide reasonable extensions when necessary. 
For additional information, go HERE
In short, yes. Because COVID-19 is an international pandemic as emphasized by the World Health Organization, employers who are subject to the Americans with Disabilities Act, as amended, and the Rehabilitation Act may be permitted to do things that would normally be impermissible, such as taking an employee’s temperature. 
For additional information, go HERE

Federal Response Feed

Posted April 1, 2020 by Mr. Michael Eastman

CWC has confirmed with OFCCP Director Craig Leen that the agency intends to continue offering contractors flexibility during the COVID-19 pandemic. As we mentioned to members in a recent policy alert, OFCCP is open and operational but the agency has implemented telework arrangements for all OFCCP staff. During this time, compliance evaluations will continue, but as you might expect, OFCCP will be granting reasonable adjustments and extensions in response to contractor concerns and evolving business circumstances.

 

Along these lines, OFCCP is granting what it refers to as a 30-day “extraordinary circumstances” extension after receipt of the desk audit scheduling letter. This would be in addition to the 30-day extension OFCCP already provides when the contractor is able to provide its basic E.O. 11246, Section 503, and VEVRAA AAPs within 30 days of receiving the scheduling letter. Furthermore, OFCCP is also generally providing at least two weeks to respond to information requests (and potentially longer), depending on the complexity of the requests. Note that these extensions and adjustments could be longer depending on the specific circumstances presented.

OFCCP will also be focusing on virtual compliance assistance, including “virtual” onsite evaluations (which may be conducted over the web or telephone). CWC also has confirmed with OFCCP that if a physical onsite is needed, it will be scheduled after the pandemic is over.

 

Finally, OFCCP has advised that if contractors would like to receive an electronic scheduling letter (in addition to a hard copy letter) during this time, they may do so by reaching out to the OFCCP Regional Director overseeing the review for the facility in question. For more information on OFCCP’s regional offices, please see https://www.dol.gov/ofccp/contacts/regkeyp.htm.

 

The agency’s senior leadership also emphasized to us that in the unlikely event contractors have any trouble obtaining reasonable resolution to these or similar issues, they are encouraged to contact OFCCP Ombudsman Marcus Stergio. Mr. Stergio can be reached at Stergio.Marcus@dol.gov.

Posted March 30, 2020 by Mr. Michael Eastman

The new Emergency Paid Sick Leave and Emergency Family and Medical Leave Expansion laws set to go into effect this week. Employers looking for compliance assistance are reminder to check updates from the Wage and Hour Division. Additional FAQs have been added over the last few days addressing matters such as intermittent leave and interaction between the new leave laws and the FMLA among other things. 

Posted March 29, 2020 by Mr. Michael Eastman

On March 27, the National Labor Relations Board's General Counsel published a memorandum summarizing cases where the Board has evaluated an employer's duty to bargain in emergency situations. The new guidance summarizes four cases addressing public emergencies and five addressing emergency situations particular to individual employers.

Posted March 27, 2020 by MANAGER

The U.S. Citizenship and Immigration Services (USCIS) has announced several updates related to the processing of visa applications in response to the ongoing COVID-19 outbreak and which may be of interest to CWC members.
First, USCIS is suspending the processing of Form I-907 “premium processing” applications for all I-129 (used for H-1B visas) and I-140 petitions until further notice. The agency will continue to process petitions with previously accepted Form I-907s, however, petitioners who don’t receive agency action on their case within 15 calendar days or whose I-907s were mailed but have not yet been accepted as of March 20 will receive a refund of the $1,440 filing fee. USCIS will notify the public when it plans to resume premium processing.
Second, USCIS has announced that those responding to requests for evidence (RFEs) and notices of intent to deny (NOIDs) which are dated between March 1 and May 1, 2020 will have an extra 60 days from the deadline contained in those RFEs and NOIDs by which to submit their responses.
Lastly, the agency announced that it would “accept all benefit forms and documents with reproduced original signatures” for the duration of the COVID-19 national emergency. For example, the submission of many agency forms must normally contain original “wet” signatures. Under the new guidance, all USCIS forms may contain photocopied or similarly reproduced signatures so long as the reproduction is derived from an actual original signature (no copies of copies) and the original versions are maintained by the individual or entity and available at the request of USCIS.

Posted March 27, 2020 by Mr. Michael Eastman

On March 27, the EEOC posted a recorded webinar on its website addressing questions submitted by the public related to the laws enforced by the EEOC and COVID-19.

We'll be reviewing the 42-minute webinar this afternoon and will let you know of any significant developments. In the mean time, you can access it here.

Posted March 25, 2020 by Mr. Michael Eastman

DOL has published a Field Assistance Bulletin announcing that it will not bring enforcement actions against employers who are attempting, in good faith, to comply with the new coronavirus-related leave mandates passed by Congress. According to the bulletin, DOL will not begin enforcement until April 18, 2020.

Employers are reminded that the leave provisions are not exclusively enforced by DOL as the leave provisions provide a private right of action.

Posted March 25, 2020 by Mr. Michael Eastman

The Department of Labor's Wage and Hour Division has posted to its web page a copy of the poster that all covered employers must post in conspicuous places around the workplace. DOL has also published some FAQs directly related to the poster, such as where it may be posted if employees are teleworking.

Posted March 24, 2020 by Mr. Michael Eastman

This afternoon (3/24/2020) the Department of Labor's Wage and Hour Division issued its first FAQs interpreting the new paid leave mandates that were included in the Families First Coronavirus Response Act. While these first FAQs do not include much new information, they do explain some of DOL's initial thinking about how it will interpret the new law.

Posted March 24, 2020 by Mr. Michael Eastman

Today, March 24, 2020, the Internal Revenue Service published a news release describing their approach to implementing the new federal paid leave tax credits. The guidance provides several examples and states that more information will be forthcoming in the next week.

By way of reminder, on March 20, the U.S. Treasury Department, the Internal Revenue Service, and the U.S. Department of Labor announced that small and midsize employers covered by the new Families First Coronavirus Response Act can begin to take advantage of two new refundable payroll tax credits that are designed to immediately and fully reimburse them, dollar-for-dollar, for the cost of providing federally mandated COVID-19-related leave to their employees.  Such reimbursement will take the form of a tax offset against payroll taxes.

Posted March 23, 2020 by Mr. Michael Eastman

The EEOC has announced that it will post a pre-recorded webinar on the afternoon of Friday, March 27, 2020 to address questions related to COVID-19 that go beyond what is addressed in the agency's current guidance.  If you are interested in submitting a question, please sent it to COVID19.Questions@eeoc.gov by 9:00 p.m. eastern time Wednesday, March 25. 

Posted March 23, 2020 by MANAGER

3/23/2020
OFCCP announced last week that from March 17, 2020 through June 17, 2020 (and possibly longer), any
new federal contracts to provide COVID-19 relief efforts will be exempt from the affirmative action obligations under Executive Order 11246, Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans’ Readjustment Assistance Act. The exemption does not apply to existing contracts, and does not apply to the processing of complaints of discrimination in either new or existing contracts. More information is available at: https://www.dol.gov/ofccp/nie.htm.

Posted March 20, 2020 by MANAGER

3/20/20
The Department of Homeland Security (DHS) announced today that employers who have implemented remote working policies in response to COVID-19 will not be required to review the employee’s employment authorization documentation “in-person” when completing the Form I-9. Rather, employers can inspect the authorization documents remotely (e.g., over video link, fax, or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing the I-9.

Employers who take advantage of this remote review policy should write “COVID-19” as the reason for the physical inspection delay in the “Additional Information” field.  Once normal operations resume, employers must, within three business days, physically review the authorization documentation in-person for any I-9s completed remotely and should add “documents physically examined” with the date of inspection to the “Additional Information” field.

Employers are permitted to use this I-9 remote review process for 60 days (until May 19, 2020) or until the National Emergency is terminated (within three days thereafter), whichever comes first.

The announcement was posted by U.S. Immigration and Customs Enforcement and is available online at: https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance

Posted March 19, 2020 by Mr. Michael Eastman

CWC has reached out to all major federal agencies that regulate the workplace to learn how coronavirus operational changes, such as telework policies, may impact employers and other stakeholders. Today, the Equal Employment Opportunity Commission (EEOC) notified us that they are working in a 100% telework environment. The agency’s electronic portals are working and they are continuing to conduct intake interviews by phone. In addition, many EEOC offices have sent up email boxes for “fax to email” services for attorneys to submit charges to EEOC.

 

The EEOC’s portal for respondents is open and the EEOC continues to send notifications and receive position statements through the portal. EEOC staff tell CWC that they will use their portal as fully as possible, perhaps at times in combination with email, to send out resolution documents. The EEOC is also experimenting with conducting mediation sessions remotely, with one office reporting holding four mediation sessions by phone just yesterday.

 

EEOC staff have also told CWC that they will not be able to operate as efficiently when it comes to handling mail as most offices do not have immediate access to their mail. To help alleviate the impact of this, the EEOC is requesting that all parties using email and the portals as much as possible. 

 

We’ll continue to monitor agency operational changes. Please let us know if you have any questions.

 


Posted March 19, 2020 by Mr. Michael Eastman

Last night, President Trump signed into law H.R. 6201, the Families First Coronavirus Response Act. The bill includes two separate paid leave mandates that will impact private sector employers with fewer than 500 employees (note, larger employers may have subsidiaries that are covered).

 

The first provision expands the Family and Medical Leave Act to provide a new category of leave for employees who are unable to work (or telework) to take leave to care for a son or daughter during a school closure or if child care is unavailable due to a public health emergency related to coronavirus. Employers are not required to pay employees for the first ten days of leave. However, after that, employers must provide partial wage replacement for employees on leave. Formulas in the bill provide minimum and maximum amounts of payment. Please note that although this provision is an amendment to the FMLA, it includes many of its own special definitions and rules. For example, it employees who have worked for an employee for as little as a month are covered.

 

The second provision implements a new paid sick leave requirement. This provision requires covered employers to provide 80 hours of paid sick leave for full-time employees for one of six enumerated purposes related to the coronavirus outbreak, including remaining in quarantine or isolation as ordered by a health care provider, self-isolating, seeking treatment for symptoms of COVID-19, caring for an individual under quarantine or self-quarantine, or caring for a child whose school is closed or whose child care provider is unavailable due to COVID-19. This law also provides formulas to determine the minimum and maximum amount of payments required.

 

Employers that make payments under the new provisions may apply for a tax credit against payroll taxes for 100% of covered payments. The new leave provisions are set to go into effect two weeks from today and expire on December 31, 2020.

 

CWC plans to publish a more complete analysis of the new law tomorrow.


Posted March 19, 2020 by Mr. Michael Eastman

CWC has reached out to all major federal agencies that regulate the workplace to learn how coronavirus operational changes, such as telework policies, may impact employers and other stakeholders. The National Labor Relations Board (NLRB) has provided us the following helpful details.

Hearings: Any previously scheduled NLRB hearings through March 31 have been postponed. Hearings scheduled for April 1 or later are still scheduled but may be postponed.

Elections: All elections scheduled prior to April 3 have been indefinitely postponed. 

Filings and Correspondence: Service of all Board and ALJ decisions and orders will only take place using the NLRB’s E-Service. The Board is encouraging any party with proceedings before the Board to sign up for E-Service by sending an email to e-Service@nlrb.gov. Additional information is available on the NLRB’s website.

 

We’ll continue to monitor agency operational changes. Please let us know if you have any questions.


Posted March 19, 2020 by MANAGER

CWC Rapid Response Update
CWC ramped up our COVID-19 Team to rapidly provide information to our members quickly and effectively. We will provide daily updates and move quickly to get information to assist members to get you accurate information.

State Response Feed

Posted March 31, 2020 by Mr. Michael Eastman
On March 27, the Fresno County California Department of Public Health issued an Order that requires employers, among other things, to conduct daily health screenings of employees. Specifically, employers are to screen for signs of "febrile respiratory illness," which is defined as "a new or worsening episode of either cough or shortness of breath, presenting with fever ... or chills in the previous 24 hours."

In addition, the Order requires employers to exclude from work all employees who have had febrile respiratory illness symptoms for seven days from the day that they are identified as having symptoms.

The Order is silent on whether it applies to employees working on-site or teleworking, raising numerous legal and practical questions. Violation of the Order is punishable by fine or imprisonment, among other sanctions. 





Posted March 25, 2020 by Mr. Michael Eastman
The Health Division of Oakland County, Michigan, has issued an emergency order, effective at noon on March 25, 2020, that requires employers remaining open to conduct health screens of employees daily. Among other things, employers are required to check for fever and, if a touchless thermometer is available,the order strongly recommends preforming a temperature check in lieu of verbal confirmation. More information is available in this news release.
Posted March 24, 2020 by MANAGER
Does an Illinois employer need to reimburse employees for work-related expenses due to mandatory telework during the COVID-19 pandemic? 
It depends. On January 1, 2019, Illinois enacted Public Act 100-1094, which amended its Wage Payment and Collection Act (820 ILCS § 115) by adding a new Section 9.5, entitled reimbursement of employee expenses. This provision requires employers to “reimburse an employee for all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.” 
The term “necessary expenditures” is defined as “reasonable expenditures or losses required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer” (emphasis added). As Illinois employers begin implementing telework options for its employees – including those who normally do not telework – they should be mindful of this provision of the Wage Payment and Collection Act. For employees who normally do not telework, the employer may be required to reimburse the employee for expenses, i.e. internet connections and phone calls on personal devices,  associated with maintaining the employer’s operations.  It is unlikely that this provision will apply to those employees who normally have the option to telework during normal business operations. 
Members who have businesses in Illinois should check with their counsel to ensure that they are complying with Illinois’s Wage Payment and Collection Act. 
 
Posted March 24, 2020 by Mr. Michael Eastman
New Jersey's Department of Labor and Workforce Development has published guidance that shows the interaction of the state's various leave law and benefits, such as unemployment insurance and temporary disability insurance, in light of common situations being experienced by workers in light of the coronavirus outbreak.
Posted March 24, 2020 by Mr. Michael Eastman
California's Labor and Workforce Development Agency maintains a webpage with useful state resources here. Guidance from the California Department of Industrial Relations regarding the use of state leave laws for COVID-19 related reasons is available here.

San Francisco's Office of Labor Standards has assembled various guidance documents and resources on its website. Guidance on the city's paid sick leave law related to COVID-19 is available here.
Posted March 23, 2020 by MANAGER

Several governors throughout the country have now issued executive orders requiring individuals to stay at their place of residence, unless attending to essential business such as buying groceries or filling prescriptions. Some of these orders are having an impact on employers’ ability to require employees to physically report to work. For example, a recent order by New York Governor Andrew Cuomo requires all employers except those “providing essential services” to “reduce the in-person workforce at any work locations by 100%.”  Similarly, California Governor Gavin Newsom’s N-33-20 essentially requires people to work from home unless they work in an critical infrastructure sector.

              While many employers have already implemented an indefinite full-time telework policy for their workforces, those who haven’t should be aware that the number of states implementing such mandatory telework orders is likely to increase as the COVID-19 outbreak continues.

Posted March 23, 2020 by Mr. Michael Eastman
Oregon's Bureau of Labor and Industries has updated FAQs regarding COVID-19 and leave under the state's paid sick leave law. Among other things, the new FAQs provide guidance on using leave to care for a child due to a COVID-19-related school closure.
Posted March 20, 2020 by MANAGER

The New Jersey Attorney General’s Division of Civil Rights has issued GUIDANCE surrounding the COVID-19 virus and its potential impact on discrimination and the use of job protected leave. In the guidance, employers are reminded that they are prohibited from terminating an employee because they suspect that the employee could have contracted COVID-19, even if the employee turns out to be healthy. Such action would be inconsistent with, and potentially in violation of, the State’s Law Against Discrimination as the employer’s action may be deemed as taking an action because of a perceived disability. In that same vein, employers should be aware of their duty to take reasonable action to cure any harassing conduct an employee may face that is related to the COVID-19 virus.

For purposes of job protected leave, the guidance makes clear that a diagnosis of COVID-19 meets the state’s family medical leave law definition of “serious health condition,” thereby enabling an employee take up to 12 weeks of leave to care for themselves or a family member, subject to certain conditions. And finally, the guidance emphasizes that employees may be able to use any accrued Earned Sick Time to care for a healthy child whose school or daycare has been closed as a result of the COVID-19 pandemic.

Posted March 20, 2020 by MANAGER

New York Governor Andrew Cuomo has signed legislation mandating that employers give their workers paid sick leave and job protection if they are “subject to a mandatory or precautionary order of quarantine or isolation…” The amount of sick leave to be given is dependent on the employer’s size. Employers with 100 or more employees must give affected employees 14 days of paid sick leave while employers with 11 to 99 employees or with 10 or fewer employees but more than $1 million in net yearly income must give employees 5 days of paid sick leave and then unpaid leave. Employers having less than 10 employees but a net income of less than $1 million aren’t required to offer paid leave but must allow employees to take unpaid leave for the duration of the quarantine order.

Importantly, employers may not require employees to exhaust any previously accrued paid sick leave before allowing them to take leave under the new law, nor may they retaliate or discriminate against them for exercising their right to take leave.

Posted March 20, 2020 by MANAGER

California’s Governor Gavin Newsom has issued an executive order easing the notice provisions under the state’s Worker Adjustment and Retraining Notification (WARN) Act, the law requiring employers to give employees a 60 day notice before implementing certain mass layoffs, relocations, or terminations at covered establishments. Temporary or emergency shutdowns necessitated by the COVID-19 pandemic are likely to trigger layoffs which could require these WARN act notices.

Under the new executive order, employers are relieved of the 60 day timeframe but they must still provide to the affected employees “as much notice as is practicable" and provide "a brief statement of the basis for reducing the notification period," in addition to certain other requirements. The California Labor & Workforce Development Agency is expected to provide guidance by March 23 concerning how the executive order is to be implemented. The order will remain in effect for the duration of the state’s declared state of emergency.

                Employers should work closely with counsel when conducting any mass layoff of their workforce and be aware that the federal WARN Act, which applies to employers with 100 or more employees, remains unaffected by Governor Newsom’s order.

COVID-19 Network

CWC’s newest online community for members to discuss workplace compliance issues in light of the COVID-19 outbreak, Join Now!

Related Resources

Layoff Notification Laws During Unsettled Times
The dramatic impact of the coronavirus on business operations has created an environment where many employers are considering significant layoffs. Paid Leave Mandates and COVID-19 Web Workshop
Congress passed legislation in March 2020 establishing two new federal leave mandates related to the coronavirus outbreak. This web workshop walks through what we know. Recorded March 26, 2020. Congress Approves Massive Coronavirus Stimulus Bill Creating Temporary Paid Leave Mandates
The coronavirus relief bill signed into law by President Trump on March 18 contains new paid leave mandates that will be in effect until the end of the year. Our memo provides an overview. Legal Considerations and Practical Planning Tips for Responding to the Coronavirus Outbreak
The coronavirus outbreak is becoming an immediate health risk in the U.S. and its effect on the increasing mobility of an international workforce has raised understandable concerns.