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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Latest from Labor and Employment Law Update

Contributed by Jacqueline Lentini McCullough, May 27, 2020 U.S. Immigration laws and regulations have always required immigration attorneys to have a certain level of creativity to problem solve. Keeping current on regulation changes, combined with creativity, helped me navigate the paths to my clients’ goals even when they took unexpected turns. The COVID-19 pandemic has taken creative problem solving and preparedness to a whole new level. Here are six situations I am helping clients navigate. Work-from-Home Effect on H-1Bs U.S. Citizenship and Immigration Services (USCIS) is a traditional organization that has not caught up with some of the modern…
Contributed by guest author Matthew Horn, May 26, 2020 After the Workers’ Compensation Commission withdrew its proposed Emergency Rule declaring that any employee in an “essential industry” contracting COVID-19 will be rebuttably presumed to have contracted COVID-19 at work, the legislature and business groups met and worked through a proposed amendment to the Workers’ Compensation Act addressing the issue. Under the proposed amendment, which appears set to pass, first responders, frontline workers, and most “essential employees” will be rebuttably presumed to have contracted COVID-19 at work, if they have a confirmed case of COVID-19, and the presumption is…
Contributed by Beverly Alfon, May 26, 2020 If your “essential” workforce is not already organized, consider this your wake-up call.  As this pandemic has worn on, and more “essential workers” have fallen ill to COVID-19, labor unions have become noticeably more active. Just last Monday, the AFL-CIO filed suit in federal court to compel the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard, aimed at forcing the agency to mandate certain safety actions by employers.  Noticeably, the rhetoric from the AFL-CIO has been focused on “all workers” as opposed to “their members.” Plagued by a…
Contributed by guest author Matthew Horn, May 22, 2020 Previously, OSHA issued guidance indicating that most employers only had to record or report confirmed COVID-19 cases when provided with objective evidence that an employee contracted COVID-19 at work.  In practice, this put the burden on employees to submit evidence to employers establishing that their COVID-19 cases were contracted at work. OSHA recently issued revised guidance on this issue, which goes into effect on May 26, 2020. Under the revised guidance, OSHA puts the burden on the employer to make a “reasonable determination” as to whether a confirmed COVID-19 case…
Contributed by Carlos Arévalo, May 18, 2020 How cities, counties and states are actively enforcing their COVID-19 orders is all over the map, but criminal and/or civil penalties are on the books in some areas.  For example, last Friday, May 15, the Illinois Governor directed the Illinois Department of Public Health (IDPH) to add an emergency rule called “Pandemic or Epidemic Respiratory Disease – Emergency Provisions.”  The emergency rule authorizes IDPH to “take means it considers necessary to restrict and suppress dangerously contagious or infectious diseases, especially when existing in epidemic form.”  This specifically includes the power to seek…
Contributed by Rebecca Dobbs Bush, May 18, 2020 Late Friday, May 15th, the SBA released long overdue guidance on how to determine and apply for forgiveness of loans received under the Paycheck Protection Program. The application and corresponding instructions can be found here on the SBA website. Within the application and instructions, several common questions have finally been answered: How do we calculate payroll costs?  Do we go by pay period date or pay date?  What if the 8-week covered period doesn’t match up with our payroll? A payroll cost must be either incurred OR paid. Initially, the CARES…
Contributed by guest author Andrew Podgorny, May 15, 2020 On May 13, 2020, the SBA and Treasury issued additional guidance with respect to the necessity certification that borrowers must make when applying for a PPP loan. FAQ #46 provides a safe harbor for borrowers receiving loans which are less than $2 million and also indicates that, in the event the SBA determines that a borrower receiving a loan in excess of $2 million lacks an adequate basis for making the necessity certification, such borrower will be afforded the opportunity to repay the loan. Specifically, FAQ #46 states: Question: How…
Contributed by Kelly Haab-Tallitsch, May 11, 2020 On April 29, 2020, the Department of Labor (DOL) and the Treasury Department issued guidance extending certain timeframes related to employee benefit plans due to the COVID-19 outbreak. The agencies acknowledge that plan sponsors, participants and beneficiaries may have difficulty meeting the standard timeframes due to the national emergency and the extensions are intended to help maintain group health plan coverage. Relief for Participants and Beneficiaries A joint final rule issued by the DOL and Treasury provides that all group health plans, disability plans, other employee welfare benefit plans subject to the…
Contributed by Michael Wong, May 8, 2020 During the COVID-19 pandemic we have seen multiple shifts in views by the public and employees.  Initially, the issue was what to do if an employee requested a face mask. However, businesses are now facing different questions: Can you require employees to wear a face mask? Can you require customers or members of the public to wear a face mask when coming into your business? What most do not realize is that both of these questions raise potential ADA issues. EMPLOYEES – The short answer is, YES.  A business can require its…
Contributed by Peter Hansen, May 6, 2020 Recent changes to the Illinois Human Rights Act (IHRA) require all Illinois employers to provide sexual harassment prevention training to all employees by December 31, 2020, and once per year thereafter – and tasked the Illinois Department of Human Rights (IDHR) with creating a model sexual harassment training program employers could use to meet that requirement. After several delays, the IDHR released its model sexual harassment prevention training program along with an FAQ. Now that we have the IDHR’s model training, all Illinois employers should begin planning on how they will administer…
Contributed by Sara Zorich, May 5, 2020 While some states are beginning to loosen their stay at home orders, others continue to only be open for essential business. On April 10th we reported on the relaxation of the CDC guidance for safety practices for essential workers. This included advice from the CDC that critical infrastructure workers may be permitted to continue to work, or return to work, following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented by the employer including pre-screening employee’s temperatures prior to starting work. We have seen a major uptick…
Contributed by Carlos Arévalo, May 5, 2020 A couple of weeks ago, we examined two general factors that the Treasury will be examining to determine PPP loan forgiveness, namely whether at least 75% of the borrowed funds have been spent on “payroll costs” and whether employers maintained the same headcount and salary levels for full-time equivalent (FTE) employees. On Sunday May 3rd, the Treasury issued additional guidance regarding the impact of layoffs on the headcount calculation for purposes of loan forgiveness. Specifically, FAQ #40 asked whether a borrower’s PPP loan forgiveness amount would be reduced if the borrower laid…
Contributed by John Hayes, May 1, 2020 In an update to our previous blog on Illinois extending its stay-at-home order through May 30, 2020, Governor Pritzker’s latest Executive Order on COVID-19 (Executive Order No. 2020-32), issued April 30, 2020, mandates that all businesses that have employees physically reporting to a work-site must post the guidance from the Illinois Department of Public Health (IDPH) regarding workplace safety during the COVID-19 emergency.  The guidance is found on the IDPH website, and informs employees that their employer should: Make sure that employees can maintain at least 6 feet of…
Contributed by John Hayes, April 30, 2020 With the constantly shifting state and local stay-at-home orders and the potential relaxing of these orders on the horizon, the question for employers still remains: What do we do if an employee has COVID-19? Once an employer receives a report that an employee has tested positive for or is presumed to have COVID-19, the employer should do the following: Instruct the infected employee to stay home for the longer of the period of time recommended by his or her health care provider or the applicable health department or until 1) at least…
Contributed by Beverly Alfon, April 28, 2020 While most employers do not take issue with CDC and OSHA recommendations related to hand washing, sanitizing, personal protective equipment (PPE), or even employee screening – the  social distancing aspect of these guidelines often provoke the greatest resistance from manufacturing employers:  “We’re just not set up to operate that way.” Over the last few weeks, we have all seen the headlines regarding Smithfield, JBS, and Tyson.  The meat processing plants have become alleged hot beds for COVID-19, leading to plant closures.  Last week, Smithfield workers sued the company alleging that the…
Contributed by Brian Wacker, April 28, 2020 On Monday, April 27, 2020, Missouri Governor Mike Parson announced “Phase One” of the “Show Me Strong Recovery Plan” to gradually reopen the economic and social activity in the state, beginning on May 4, 2020.  As part of Phase One, the Missouri Department of Health and Senior Services issued an Order relaxing restrictions on businesses and social activities.  The relaxed restrictions are: Retail sales businesses can re-open, so long as the number of individuals in the retail location is limited as follows: if the location is less than 10,000 square feet, then…