Labor and Employment Law Update

Welcome to the Labor and Employment Law Update where attorneys from SmithAmundsen blog about management side labor and employment issues. We cover topics including addressing harassment and discrimination in the workplace, developing labor law, navigating through ADA(AA), FMLA and workers’ compensation issues, avoiding wage and hour landmines, key legislative, case law and regulatory changes and much more! Learn more about our firm at www.salawus.com.

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Contributed by Jacqueline Lentini McCullough, November 25, 2020 11411781 – photograph of a u.s. department of homeland security logo. The Trump administration has enacted more than 400 immigration policy changes. That’s one change every 3.65 days the administration has been in office. Weary from the whiplash of changes and weight of additional work, many are wondering how President-Elect Joe Biden will approach immigration policy. Here are my thoughts on four issues affecting clients: The Quickest Change Will Likely Be Better Visa Processing Times COVID-19 will still slow processing as many U.S. Citizenship & Immigration Services (USCIS) employees are working…
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Contributed by Carlos Arévalo, November 18, 2020 New COVID-19 cases are surging in Illinois, and Illinois is ramping up more restrictions by instituting additional measures throughout the state. Generally, these measures have the objective of limiting gatherings and encouraging people to stay at home, but do not rise to the level of a stay-at-home order. Illinois’ Phase 4 remains in place with the following new restrictions: State of Illinois Manufacturing (Implementation of safety guidelines):  Additional COVID-19 training for all employees (even if previous training occurred) Employers to coordinate with IDPH to implement testing protocols and contact tracing Face coverings…
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Contributed by Suzannah Wilson Overholt, November 12, 2020 With the prospect of an FDA approved COVID-19 vaccine on the horizon, employers are already wondering whether they will be able to require their employees to get the vaccine. Because the pandemic has caused changes in other workplace rules, the answer to this question is not clear. The Americans with Disabilities Act (ADA) generally prohibits employers from mandating that employees receive any vaccinations unless they are job-related, consistent with business necessity, and no more intrusive than necessary. This is ordinarily a difficult standard to meet unless the employer is part of…
Contributed by Jeff Risch, November 6, 2020 As new information unfolds surrounding our understanding of COVID-19, and seeing that the odds appear to be increasing on who may actually get the virus, employers need to be vigilant in examining whether or not an employee contracts the virus at work or in the course of their employment.  In order to assist employers in this exercise and help them possibly defend against legal challenges later (including workers compensation claims), the following updated questionnaire and HR checklist may be useful. The questionnaire and checklist should be kept confidential and used only by…
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Contributed by Brian Wacker, November 5, 2020   20420214 – 3d business persons at a workshop. presentation. isolated white background. The U.S. Department of Labor (DOL) issued additional guidance to employers as to the compensability of time employees spend attending voluntary training programs under the Fair Labor Standards Act (FLSA).  In other words, if an employee attends a training program related to work, on his or her own volition and not under compulsion by the employer, must he or she be compensated? The answer, according to the DOL: it depends. Stepping back, the FLSA generally requires that non-exempt employees…
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Contributed by Allison P. Sues, October 26, 2020 As COVID-19 rates are rising throughout the country, employers may want to review the safety measures they are taking to prevent spreading the coronavirus in the workplace. The U.S. Equal Employment Opportunity Commission recently released additional guidance on the interplay between COVID-19 and an employer’s legal obligations under the Americans with Disabilities Act. Key questions and answers regarding steps that employers can lawfully take to safeguard their workplace are summarized below: May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19?  Yes.…
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Contributed by Michael J. Faley, October 22, 2020 The US Centers for Disease Control and Prevention (CDC) has revised its guidelines to define a close contact with a COVID-19 carrier to include several brief exposures. The CDC now defines “close contact” with an infected person as “[s]omeone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.”  The change now means that…
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Contributed by Suzannah Wilson Overholt, October 15, 2020 Stickers to indicate voting With the General Election on November 3rd rapidly approaching, registered voters are exploring various options for casting their ballots, be it through mail or in person early or on Election Day (November 3rd). One critical factor that may drive an individual’s voting plan is their work schedule, which raises the question of whether employers are required to give their employees time off to vote. The answer to that question depends on the state where you work. A summary of the requirements from around the Midwest is below:…
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Contributed by Carlos Arévalo and guest author Molly Arranz, October 9, 2020 Even in the pandemic, the (high) number of class action filings based upon the Illinois Biometric Privacy Act (BIPA) remains steady. And, against that backdrop come two recent decisions that may impact how employers need to shift their defense strategies. First, in McDonald v. Symphony Bronzeville Park LLC, the Illinois Court of Appeals ruled that the state Workers’ Compensation Act (WCA) and its exclusivity provisions do not bar claims for statutory damages under BIPA. The court distinguished the two, noting that while the WCA provides remedies to…
Contributed by Jacqueline Lentini McCullough, September 30, 2020 The U.S. immigration system has always been something of an obstacle course. Recent developments have made it more like an intricate labyrinth with detours, hidden delays, and dead ends if you are not careful. Here are some recent developments and how they are affecting visa compliance and processing. USCIS Budget Crisis USCIS is a fee-driven agency. Fees pay 96% of its operating costs. It claims the coronavirus has caused a devastating budget shortfall. For four months they threatened to furlough 13,000 of their 20,000 employees. Ironically, a congressional inquiry showed USCIS…
Contributed by Michael J. Faley, September 29, 2020 On September 17, 2020, the House voted 329-73 to pass the Pregnant Workers Fairness Act.  The bill seeks to clarify the law and require employers to make reasonable accommodations for employees impacted by a known pregnancy-related limitation.  Like the Americans with Disabilities Act, the bill calls for an interactive process between employers and pregnant workers to develop proper reasonable accommodations. The bill’s report states that such accommodations could possibly include, for example, providing seating, water, closer parking, properly sized uniforms and safety apparel, light duty, and extra break time to use the…
Contributed by Peter Hansen, September 14, 2020 The U.S. Department of Labor announced revised regulations interpreting the Families First Coronavirus Response Act (FFCRA) in response to a New York federal court decision declaring some FFCRA regulations invalid.  The revised regulations become effective September 16, 2020, and include several changes and clarifications that employers should be aware of: The Health Care Provider Exception.  The DOL limited the “health care provider” exception (which excluded certain employees from FFCRA eligibility) to employees who are “capable of providing health care services,” including “diagnostic services, preventive services, treatment services, or other services that…
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Contributed by Suzanne Newcomb, September 10, 2020 The Families First Coronavirus Relief Act or “FFCRA” requires employers with less than 500 employees to provide paid leave to employees unable to work (or telework) for various COVID-related reasons. Particularly relevant as many schools open either virtually or with combination of in person and virtual instruction is FFCRA’s mandate for paid leave to care for children not in school or daycare due to COVID-19. On August 27, 2020 the DOL added FFCRA FAQs 98-100 clarifying that: FFCRA is not triggered if the child’s school is open for in-person instruction but the…
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Contributed by guest author Ryan Jacobson, September 9, 2020 With the prevalence of online consumer reviews and merciless labor organizations, companies and their executives are vulnerable to attack for good reason, bad reason or no reason at all. Managing the expectations of your consumers, and of your workforce, is an important place to start. Executives who identify the problem and work diligently to arrive at viable solutions will gain a head start toward preserving the status quo. Media coverage will no doubt accelerate the harm; it is never too late to challenge the story line with a well-crafted statement…
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Contributed by Allison P. Sues, September 3, 2020 On August 31, 2020, the U.S. Department of Labor issued a new opinion letter shedding light on the application of the fluctuating workweek method for paying overtime wages required under the Fair Labor Standards Act (FLSA).   Under the FLSA, employers must pay nonexempt employees at least one and half times their regular rate for all hours in excess of 40 worked in an actual workweek.  For employees who work variable hours each week, the employer may use the fluctuating workweek method to compute the amount of overtime pay owed to a…
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Contributed by Kelly Haab-Tallitsch and Rebecca Dobbs Bush, August 31, 2020 On August 28, the IRS issued Notice 2020-65 providing brief guidance on the payroll tax deferral announced in a Presidential Memorandum issued on August 8th. The Memorandum directed the Treasury Department to issue guidance for a deferral of the withholding and payment of the employee portion of Social Security taxes to be “made available” to employers.  The IRS Notice, with very limited details, establishes the ability of an employer to defer the payroll tax, but leaves many questions unanswered. Is it Required or Voluntary? Under the Presidential Memorandum…