On November 19, 2020, the California Occupational Safety and Health Standards Board unanimously adopted emergency temporary standards on COVID-19 prevention in the workplace.  For much of the pandemic, California’s Division of Occupational Safety and Health (“Cal/OSHA”) has advised employers to follow its general and industry-specific guidance on various measures to implement to minimize the risk of employees’ exposure to COVID-19.  However, the new emergency standards will be binding and enforceable against nearly all California employers.  The emergency standards will become effective immediately on November 30, 2020, if approved as expected by the Office of Administrative Law (“OAL”) after the required 10-day review period.  Thus, employers must act quickly to ensure they are in compliance with the new standards and the requirement to prepare and implement a written COVID-19 Prevention Program.
Continue Reading Cal/OSHA Adopts New COVID-19 Emergency Standards Requiring Immediate Action by Employers in California

In an effort to combat the recent rise in COVID-19 cases in New Jersey, on October 28, 2020 Governor Murphy signed Executive Order 192 (the “Order”), mandating health and safety standards to protect New Jersey’s workers during the pandemic.  Effective November 5, 2020, the Order requires every business, non-profit and governmental or educational entity to implement certain protocols to protect employees, customers, and all others who come into physical contact with its operations. Key takeaways are summarized below.
Continue Reading New Jersey Governor Murphy Orders New COVID-19 Workplace Protocols

On January 1, 2021, various new and amended employment laws will go into effect in California. Below is a summary of some of these laws that employers should make themselves aware of heading into the new year.  All laws discussed in this post go into effect on January 1, 2021, unless otherwise noted.
Continue Reading New Employment Laws to Look Out for in 2021

Effective immediately, Senate Bill (SB) 1159 is a new California law that establishes presumptions about workers’ compensation benefits for employees who contract COVID-19.  This article explains in a series of questions and answers what employers need to know about workers’ compensation under this new law if an employee tests positive for COVID-19.
Continue Reading Mother of All Presumptions 2.0: Expanding Workers Compensation Benefits to Employees That Test Positive for COVID-19

On September 17, 2020, Governor Newsom signed Assembly Bill (AB) 685 into law, establishing new requirements for employers to notify employees and their unions about a potential COVID-19 exposure in the workplace.  The new law, which will be in effect from January 1, 2021, until January 1, 2023, also requires employers to report a COVID-19 “outbreak” at the worksite to local health authorities.  Further, AB 685 relaxes the pre-citation requirements that the Division of Occupational Safety and Health (“Cal/OSHA”) must follow before issuing a citation for a serious violation related to COVID-19.  This article breaks down the various requirements of the new law and identifies potential complications or issues that employers should be aware of when attempting to comply with the new requirements.
Continue Reading Enactment of AB 685 Establishes COVID-19 Exposure Notice Requirements for California Employers and Cal/OSHA Enforcement Changes

On September 18, the Board’s GC issued GC Memo 20-14, entitled Summaries of Advice Merit Determinations Related to Coronavirus Disease 2019 Issues for the purpose of giving the public a better understanding of the GC’s approach to COVID-19 related issues.  What emerges is a clear message—while the pandemic can impact certain obligations under the National Labor Relations Act, the agency will not permit employers to use the pandemic as a sword to engage in unlawful conduct.  Under Agency guidelines, advice memos in such “go” cases cannot be released until the case is closed.  Accordingly, rather than release actual advice memos, the GC’s September 18 memo contained a series of anonymous case summaries in which an employer’s actions relating to the virus were deemed unlawful.  Over the past several months, we have reported on advice memos from the NLRB General Counsel’s Division of Advice finding various employer actions in dealing with COVID-19 issues to be permissible under the NLRA (see our recent postings here and here).  The GC’s latest memo includes a list of these earlier advice memos in which an employer’s COVID-19 conduct was found lawful.  What follows is a description of some of the issues and settings rendering these matters meritorious and therefore “go” cases.
Continue Reading GC Finds Merit in COVID-19 Related ULP Cases in GC Memo 20-14

Did an NLRB’s Regional Director abuse her discretion when she directed a mail ballot election instead of an in-person (manual) ballot election during the COVID-19 pandemic?  Though not getting the attention it deserves, this is an extremely important issue going to the very integrity of the Board’s representation process.  Manual balloting has long been the Board’s preferred manner of conducting an election because mail balloting is held under less controlled conditions and, thus, more prone to irregularities.  Moreover, mail ballot elections may result in lower employee election participation.  Most importantly to employers, mail ballot elections also generally favor unions.
Continue Reading The Board Weighs In on the COVID Mail Ballot Controversy

The National Labor Relations Board’s (“NLRB” or Board”) Division of Advice[1] recently released five memos dealing with issues related to the COVID-19 pandemic—concluding in all five that dismissal of the pending unfair labor practice charge (“ULP” or “charge”) against the employer was warranted.  These advice memos come on the heels of a series of advice memos issued by the Division of Advice in July, which also recommended the dismissal of COVID-19-related charges filed against employers.  Although these advice memoranda do not carry the same weight as a Board decision, they shed light on how the regional offices may view these matters going forward and can be used as a roadmap for employers who are undoubtedly navigating similar issues in their businesses during the pandemic.
Continue Reading NLRB Releases More Employer-Friendly COVID Advice

With some employees returning to the office, and many states now permitting non-essential business travel, business managers are beginning to reassess the feasibility of a mobile workforce.  One barrier to business travel, however, is state by state travel restrictions which vary substantially and may be inconsistent.  In addition, the Centers for Disease Control and Prevention (CDC) continues to recommend that employers “minimize non-essential travel,” and offers guidelines for safer business travel during the Coronavirus pandemic.
Continue Reading Navigating Business Travel Through the Pandemic

On August 3, 2020, U.S. District Judge J. Paul Oetken issued a decision in State of New York v. U.S. Department of Labor, et al., No. 1:20-cv-03020 (S.D.N.Y. Aug. 3, 2020), which vacated several portions of the Department of Labor’s (“DOL”) regulations concerning the Families First Coronavirus Response Act (“FFCRA”).
Continue Reading New York Federal Court Vacates Several Portions of DOL Regulations Regarding FFCRA Leave

As Congress grapples with the next tranche of COVID-19 legislation, one key issue that has remained at the forefront of the debate is whether, and to what extent, Congress will limit COVID-19 exposure lawsuits against businesses and non-profit organizations that remain operational during the pandemic.
Continue Reading With Immunity and Justice For All? Congress Weighs Unparalleled Tort Reform for Businesses in Light of COVID-19 Pandemic