August 2020 E-Update

Click here to view entire E-Update as a PDF

Back to School – DOL Offers FFCRA Guidance on Hybrid Schedules and Optional Remote Learning

As the school year begins, employers are struggling to understand how the paid leave mandates under the Families First Coronavirus Response Act (FFCRA) apply to the varied iterations of school reopening. The Department of Labor has updated its Q&A resource to address some of these questions. For more, click here.

CDC Updates COVID-19 Guidance on Testing, Quarantine, and Release from Isolation

In the past several weeks, the Centers for Disease Control and Prevention revised its guidance on several significant issues of interest to employers –whether testing is required following exposure to COVID-19, when to quarantine, and when to stop home isolation. For more, click here.

NLRB Issues Additional COVID-19 Advice Memos

As we detailed last month, the National Labor Relations Board’s (NLRB) Division of Advice (DOA), an arm of the General Counsel’s (GC) Office, has been busy releasing to the public Advice Memoranda addressing complex or novel legal issues that have arisen during COVID-19 pandemic. Advice Memoranda contain the recommendations of the OGC to the Board on specific issues, and offer some guidance to employers, both unionized and non-union.  For more, click here.

D.C. Enacts COVID-19 Workplace Protections. The District of Columbia Council passed the Protecting Businesses and Workers from COVID-19 Emergency Amendment Act of 2020, which temporarily mandates certain COVID-19 workplace protections for all employers with at least one employee in D.C.   For more, click here.

Virginia Adopts First-in-Nation COVID-19 Workplace Safety Standards.  On July 27, 2020, Virginia’s COVID-19 Emergency Temporary Standard (“ETS”), 16VAC25-220, went into effect after being adopted by the Department of Labor and Industry’s (DOLI) Virginia Occupational Safety and Health (VOSH) Program and the Virginia Safety and Health Codes Board.   For more, click here.

“Distraction” May Be Associational Discrimination Under ADA, But Not Here. While rejecting an employee’s claim that he was subjected to unlawful discrimination under the Americans with Disabilities Act for his association with his disabled grandfather, the U.S. Court of Appeals for the Seventh Circuit explained the major forms of associational discrimination, including “distraction.” For more, click here.

Employees May Be Prohibited From Linking to Company Website on Personal Blogs.  The National Labor Relations Board held that a company’s policy prohibiting employees from linking to the company’s website on their personal blogs was lawful under the National Labor Relations Act. For more, click here.

Decision by Committee Cannot Overcome Supervisor’s Racist Statements. The U.S. Court of Appeals for the Fourth Circuit (which includes Maryland, North and South Carolina, Virginia, and West Virginia) found that, although the promotion decision in question was made by committee, the decision was nonetheless led – if not controlled – by a racist supervisor. For more, click here.

HR Official Loses Title VII Protections Due to Her Unreasonable Oppositional Conduct.   Although Title VII protects those who oppose discrimination under that law, such opposition must be reasonable, as the U.S. Court of Appeals for the Eleventh Circuit stated in finding an HR official’s solicitation of another employee to sue the company to be unreasonable.  For more, click here.

Uber and Lyft Drivers Found to Be Employees, Not Independent Contractors. In a major development impacting the gig economy, a state court judge in California rejected the argument from Uber and Lyft that their drivers were independent contractors. The court found that, under the ABC test, such drivers were actually employees. For more, click here.

New Resources for Government Contractors. This month, there were several developments of relevance to federal contractors and subcontractors.  For more, click here.

The surge in telecommuting during the COVID has raised many issues for employers, including compliance with the Fair Labor Standards Act. The DOL has issued guidance on telework pay that explains the legal standards applicable to the FLSA’s requirement to track and pay for employees’ hours worked, including remote workers.  For more, click here.