The leftover turkey is gone, holiday decorations are going up, and the year that seemed like it would never end is finally winding down. Like so many other things in 2020, employers are being forced to forgo their annual holiday parties for the health and safety of their employees. But fear not! There is still fun to be had. As New Year’s Eve approaches without the promise (or threat) of alcohol-induced party shenanigans, we offer five cocktail-themed legal issues for employers to keep in mind as they ring in the New Year.

Eggnog with FFCRA sprinkles: Few drinks evoke the holiday season better than eggnog. Like eggnog, the Families First Coronavirus Response Act (FFCRA) was tasty in December but will leave a bad taste in your mouth on Jan. 1, 2021. That is because the emergency paid sick leave and expanded family and medical leave benefits provided by the FFCRA, which provided eligible employees to up to two weeks of paid sick leave and up to 12 weeks of expanded FMLA leave for certain qualifying reasons related to COVID-19, are set to expire on Dec. 31. Remember that employees cannot “cash out” any unused leave. Employees who are out on FFCRA leave in late December should be advised that their leave will expire on Jan. 1. Unless and until Congress decides to extend the FFCRA or provide some other benefit, FFCRA leave benefits end in 2021.

Old fashioned bourbon and new DOL independent contractor regulations: From hipster speakeasies to social media influencers, many mixologists have their own recipes for the classic Old Fashioned cocktail. Similarly, authorities have used a plethora of different legal factors to determine whether a worker is properly classified as an independent contractor for the purposes of determining the applicability of minimum wage and overtime wage requirements under the Fair Labor Standards Act. This is likely to change in the new year. The U.S. Department of Labor has proposed to codify a five-factor test to give employers more certainty about whether a worker is an independent contractor. Those factors include the nature and degree of the employer’s control over the work, the worker’s opportunity for profit or loss, and the amount of skill required in the work. If you are empowering your workers to create their own recipes, you may be able to classify them as independent contractors. Whether you spruce up your cocktail with a smoked sprig of locally grown rosemary or you handcraft artisanal ice cubes, the classic recipe for independent contractor analysis is likely to become more uniform next year.

Moscow Mules and cybersecurity: Unlike the fizzy and fun Moscow Mule, digital safety is not something to take lightly. As if businesses didn’t have enough to worry about, cyberattacks have skyrocketed during 2020. The National Security Agency recently cautioned that Russian hackers are targeting remote work platforms. The huge increase in employees working from home due to the pandemic offers cybercriminals exponentially more threat vectors that can be utilized in attacks on employers. Your vodka might be from Russia with love, but it is essential for companies to soberly and proactively assess security gaps, consider appropriate insurance needs, and adequately back up their data.

Champagne minimum wage increase: Like the bubbles in your champagne glass, Florida’s minimum wage rate is going up. On Nov. 3, Florida voters approved Amendment 2, which amends Florida’s constitution to gradually increase the state minimum wage to $15/hour by the year 2026. This means that starting Jan. 1, 2021, the minimum wage in Florida will increase by $.09 to $8.65/hour. On Sept. 30, 2021, the minimum wage will rise from $8.65/hour to $10/hour. After Sept. 30, 2021, the minimum wage will increase by $1 per year until 2026, as provided by scheduled increases. As their employees toast Amendment 2, employers must make sure to comply.

Mystery punch: The new year will bring a new administration in the federal government. Like any new administration, President-elect Joe Biden will likely seek to change course on a number of policies implemented by the outgoing administration over the last four years. Details on any specific changes are light at the moment, but it is safe to say that this mystery punch has the potential to shake things up.

Whatever your drink of choice on New Year’s Eve, be sure to keep an eye on these issues in 2021. Happy New Year!

Michael represents local governments and corporate clients in labor and employment litigation and commercial litigation. 

Brooke handles labor and employment litigation, commercial litigation, and appellate matters. 

To read the original article in the Daily Business Review, click here. 

The post Cheers to a Fresh Start in the New Year: What Employers Need to Know for 2021 appeared first on Weiss Serota Helfman Cole + Bierman.

1. UPDATED RETURN-TO-WORK GUIDANCE

On July 20, 2020, the CDC updated its guidance for determining when individuals with COVID-19 may discontinue isolation and return to work. Whereas the CDC previously recommended either a test-based strategy or a symptom-based strategy, the CDC now recommends that employers should utilize only symptom-based criteria for determining when and how employees may return to work. The guidance provides that persons with COVID-19 who were directed to care for themselves at home may discontinue isolation if:

• At least 10 days have passed since symptom onset and
• At least 24 hours have passed since resolution of fever without the use of fever-reducing medications and
• All COVID-related symptoms (e.g., cough, shortness of breath) have improved.

In light of the CDC’s updated guidance, we recommend that employers follow this symptom-based approach when determining when employees may return to work following an absence due to COVID-19.

2. CAN I STILL REQUIRE EMPLOYEES TO UNDERGO COVID-19 TESTING BEFORE THEY RETURN TO WORK?

Despite the CDC’s latest guidance, the CDC acknowledges that a test-based strategy may be utilized in the following circumstances:

• With individuals who are severely immunocompromised;
• When individuals wish to discontinue isolation or other precautions earlier than would occur under the symptom-based strategy;
• Depending upon a healthcare provider’s advice and the availability of testing.

Note that where a test-based strategy is used, the CDC requires negative test results from at least two (2) consecutive respiratory specimens collected ≥24 hours apart. All test results should be final before isolation is ended.

3. DOES THE 14 DAY QUARANTINE STILL APPLY?

The CDC continues to recommend that individuals with known exposure to COVID-19 undergo fourteen (14) days of quarantine.

4. IMPACT OF CONTINUED SCHOOL CLOSURES

A. CAN EMPLOYEES SEEK EMERGENCY LEAVE FOR SCHOOL CLOSURES IN THE FALL OF 2020?

The Families First Coronavirus Response Act (FFCRA) provides benefits for qualified employees who are unable to work because of the need to care for their child because the child’s school or place of care has been closed due to COVID-19. Although most Florida school districts have not yet formally announced whether or not they will open for on-campus learning in the Fall of 2020, if schools do remain closed, qualified employees will be entitled to Emergency Paid Sick Leave (EPSL) and Emergency FMLA (E-FMLA) benefits under the FFCRA, which is in effect until December 31, 2020 ¹.

B. WILL EMPLOYEES QUALIFY FOR LEAVE UNDER FFCRA IF SCHOOLS GIVE THE OPTION OF IN-PERSON INSTRUCTION OR VIRTUAL LEARNING, AND THEY OPT FOR VIRTUAL LEARNING?

Likely not. If an employee’s child is enrolled in school that opens but gives families the option of virtual learning, the employee will not qualify for EPSL or E-FMLA because the school is not actually closed due to COVID-19. School closure is required for EPSL and E-FMLA benefits under FFCRA.

C. WILL EMPLOYEES QUALIFY FOR LEAVE UNDER FFCRA IF THEIR CHILD’S SCHOOL CLOSES BUT OTHER DISTRICT SCHOOLS OPEN FOR IN-PERSON INSTRUCTION?

This question is up for debate and the DOL has not yet weighed in. On the one hand, employers might reasonably deny FFCRA benefits to employees if there is a potential open school in the employee’s district which could enroll the employee’s child, even if the child’s prior/current school is closed. On the other hand, it might be unreasonable to expect an employee to remove their child from their current school and enroll them in a new school. It might also place an untenable burden on those schools within a district that elect to open up to in-person instruction.

5. CAN EMPLOYERS EXEMPT HEALTH CARE PROVIDERS AND EMERGENCY RESPONDERS IF THEY DID NOT PREVIOUSLY DO SO?

The FFCRA permits employers to exempt health care providers and emergency responders from receiving its leave benefits. Many employers who previously elected not to exempt such employees are now determining that they can no longer operate effectively with their health care providers and/or emergency responders taking leave pursuant to the FFCRA. Because the FFCRA specifically allows employers the option to exempt or not exempt these employees in accordance with their needs, employers may reasonably take steps to change their prior policies with regard to exempting these workers. Any policy change should be done in an equitable, consistent manner.

Under FFCRA, “Health Care Provider includes any individual who is capable of providing health care services necessary to combat the COVID-19 public health emergency, including not only medical professionals, but also workers necessary to keep hospitals and health care facilities supplied and operational, workers involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat COVID-19. “Emergency Responder” includes those who 1) interact with and aid individuals with physical or mental health issues; 2) ensure the welfare and safety of our communities and Nation; 3) have specialized training relevant to emergency response; and, 4) provide essential services relevant to the public’s health and well-being.

The information contained in this document does not constitute legal advice. If you have questions about the matters discussed, please feel free to contact any of our labor and employment lawyers.

¹ Employees who have already used all 12 weeks (of Emergency-FMLA and/or FMLA leave) in the designated 12 month year are not eligible for additional leave under Emergency-FMLA or FMLA.

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• Differences between the Emergency Family and Medical Leave Act (“EFMLA”) and the Family and Medical Leave Act (“FMLA):  EFMLA expires on December 31, 2020, while FMLA has no expiration date.  EFMLA applies to all employers with fewer than 500 employees (including employers with less than 50 employees), while FMLA generally does not apply to employers with fewer than 50 employees.  Employers may exempt health care providers and emergency responders from EFMLA, but not from FMLA.
• Private employers with fewer than 50 employees can deny EPSL and EFMLA in limited circumstances:  A small, private employer is exempt from providing EPSL and EFMLA to care for the employee’s child whose school or place of care is closed and/or unavailable, when 1) such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating a minimal capacity; 2) the absence of the employee(s) requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or 3) the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services of the employee(s) requesting leave provide, and those labor or services are needed for the small employer to operate at minimal capacity.  For these reasons, the employer may deny the leave only to those otherwise eligible employees whose absence would cause the employer’s expense and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity.  This contingency is limited to the “childcare” provisions of FFCRA, and small employers cannot deny EPSL when it is based on the other stated reasons.
• Small private employers must maintain documentation of denial: If an employer with fewer than 50 employee denies the leave (as described immediately above), the small employer must document the facts and circumstances that meet the criteria to justify denial, but is not required to send the documentation to the U.S. Department of Labor (“DOL”).  Instead, the employer should retain these records, in their own files, for at least 4 years.
• Use of personal time off (PTO) under EFMLA:  An eligible employee may elect to use, or an employer may require that an employee use, their EFMLA leave concurrently with any leave offered under the employer’s leave policies (i.e., PTO, vacation lave, or sick leave).
• Intermittent leave is generally permitted:  If the employer and employee agree, the EFMLA and EPSL may be taken intermittently.  The agreement need not be in writing, but the parties must have a clear and mutual understanding about the parameters.  Intermittent leave may be taken even if the employee is otherwise teleworking.
• However, intermittent use of EPSL is prohibited if the employee is exposed to COVID-19 and must report to a worksite:  If emergency leave is sought because the employee 1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; 2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; 3) is experiencing symptoms of COVID-19 and is taking leave to obtain a medical diagnosis; 4) is caring for an individual who is either subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or 5) is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services, an employee who reports to a worksite is prohibited from taking EPSL on an intermittent basis.  When leave is taken for these reasons, the employee has a high risk of sickness related to (or exposure to) COVID-19 and should not risk reporting to work.
• Parameters of “telework:”  The paid leave provisions of FFCRA apply to employees who are unable to work or “telework.”  Telework means no less work than if it were performed at the worksite.  Employees must record and be compensated for all hours actually worked during telework.  An employer is not required to compensate employees for unreported hours worked while teleworking, unless the employer knew or should have known about the telework.
• Definition of “son” and “daughter” for FFCRA purposes:  FFCRA includes leave for an employee who is unable to work because they must care for a son or daughter whose school, place of care, or childcare provider is unavailable due to the COVID-19 public health emergency.  “Son” or “daughter” includes children under age 18 years of age and children age 18 or older who are incapable of self-care because of a mental or physical disability.
• “Childcare Provider” expanded:  FFCRA includes leave for an employee who is unable to work because they must care for a son or daughter whose school, place of care, or childcare provider is unavailable due to the COVID-19 public health emergency.  In addition to providers who receive compensation for providing child care on a regular basis (and are licensed and regulated under State Law), “childcare provider” can also include an unpaid family member or friend who regularly cares for the employee’s child.
• Impact of local quarantine or isolation orders:  The first qualifying reason for EPSL is when an employee is unable to work because he or she is subject to a Federal, State, or local COVID-19 quarantine or isolation order.  Quarantine or isolation order includes when a Federal, State, or local government authority has advised categories of citizens (e.g. of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing these categories of employees to be unable to work.
• Self-quarantine, explained:  The second qualifying reason for EPSL is when an employee is unable to work because he or she has been advised by a health care provider to self-quarantine for a COVID-19 reason.  The advice to self-quarantine must be based upon a health care provider’s belief that the employee either 1) has or may have COVID-19 or 2) is particularly vulnerable to COVID-19.  In order to qualify under this category, the self-quarantining must prevent the employee from working or teleworking.
• Seeking a medical diagnosis, explained:  The third qualifying reason for EPSL is when an employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.  The triggering symptoms are fever, dry cough, shortness of breath, or other symptoms identified by the U.S. Center for Disease Control (“CDC”).  Leave taken for this reason is limited to the time the employee is unable to work because he/she is taking affirmative steps to obtain a diagnosis.
• Requests for leave to care for a child:  An employee requesting to take EPSL (under category 5) or EFMLA to care for his or her child must provide 1) the name of the child being cared for; 2) the name of the school, place of care, or childcare provider that closed or became unavailable due to COVID-19 reasons; and 3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.
• Two-parent households:  Generally, an employee does not need to take emergency leave if another suitable individual (co-parent, co-guardian, or usual childcare provider) is available to provide the necessary care.  An employee’s request for EPSL and/or EFMLA must include a statement representing that no other suitable person is available to care for the child during the period of the requested leave.  However, there is no mechanism for an employer to verify the availability of another co-parent.
• Who qualifies as a “Health Care Provider:”  This category includes any individual who is capable of providing health care services necessary to combat the COVID-19 public health emergency, including not only medical professionals, but also workers necessary to keep hospitals and health care facilities supplied and operational, workers involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat COVID-19.
• Who qualifies as an “Emergency Responder:” This category includes those who 1) interact with and aid individuals with physical or mental health issues; 2) ensure the welfare and safety of our communities and Nation; 3) have specialized training relevant to emergency response; and, 4) provide essential services relevant to the public’s health and well-being.
• Health care coverage: An employee who takes EFMLA is entitled to continued coverage under the employer’s group health plan and on the same terms as if the employee did not take leave.  Employees in a group health plan who take EPSL or EFMLA are responsible for paying the same portion of the plan premium that the employee paid prior to taking such leave.  If the premiums are adjusted, the employee is required to pay the new employee premium contribution on the same terms as other employees.
• Tax reimbursements for private employers:  Private (not public) employers qualify for reimbursement through refundable tax credits from the Dept. of Treasury, for all qualifying wages paid under the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Act (EFMLA).
• Layoffs are permitted.  FFCRA does not protect an employee from employment actions, such as layoffs, that would have affected the employee regardless of whether or not the leave was taken.  The employer, however, must demonstrate that the employee would have been laid off even if he or she had not taken the leave.
• Keep FFCRA records for 4 years:  An employer is required to retain all documentation provided pursuant to FFCRA for 4 years, regardless of whether or not the leave was granted or denied.  If the employee provided oral statements to support his/her request for leave, the employer must document and retain such information for 4 years.

The information contained in this document does not constitute legal advice.  If you have questions about the matters discussed, please feel free to contact any of our labor and employment lawyers.

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On Friday, March 13, 2020, the U.S. House of Representatives passed the Families First Coronavirus Response Act (the “Act”). If passed by the U.S. Senate, the Act will have ramifications on employers throughout the Country. Although a Senate vote is not yet scheduled, a vote is expected in the coming days. We will continue to keep you updated as to any potential amendments to the Act.

The charts below summarize the benefits proposed by the version of HR 6201 issued on March 13, 2020.

1. Additional Paid Sick Time Off During Public Health Emergency

2. Paid Sick Time Accruals

3. Emergency FMLA Leave

4. Emergency Leave Pay

[1] Employers with 50 or fewer employees may seek reimbursement from the Secretary of Treasury for the costs of providing the 2 weeks of additional paid sick leave.

[2] The portion of the bill includes an enforcement mechanism, making it unlawful for a covered employer to restrain or deny the exercise of any right provided under the Act. It also makes it unlawful to consider taking paid sick time as a negative factor in any employment action or to count the paid sick time under a no-fault attendance policy or any other absence control policy. An aggrieved individual may assert a cause of action against any employer who violates these provisions and seek injunctive relief, damages (in the form of wages, salary, employment benefits, or other compensation) plus interest, liquidated damages, equitable relief, and attorney’s fees and costs.

[3] If an employee’s normal workweek is less than 40 hours, the employee shall earn paid sick time based upon their normal workweek.

[4] Employees are only entitled to 12 workweeks of leave during any 12 month period (i.e. this is not in addition to any other FMLA leave).

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As the Coronavirus (COVID-19) outbreak spreads across the Country, employers are faced with difficult questions regarding their workforces. Here are some of the frequently asked questions that we have been addressing of late:

What do we do if one of our employees tests positive for the virus? You should send that employee and all employees who worked closely with that employee home for a 14-day period of time, to ensure the infection does not spread. Before the employees depart, ask them to identify all individuals who worked in close proximity (up to six feet) with them in the previous 14 days to ensure you have a full list of those who should be sent home. You should also ask your cleaning company to undertake a deep cleaning of your affected workspaces. If you work in a shared office building or area, you should inform building management so they can take whatever precautions they deem necessary.

One of our employees came into contact with someone who had a presumptive positive case of COVID-19. What should we do? Take the same precautions as noted above. Treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees. Communicate with your affected workers to let them know that the employee is asymptomatic for the virus but you are acting out of an abundance of caution.

One of our employees has been exposed to the virus and interacted with clients and customers. What should we do? Take the same precautions as noted above with respect to coworkers, treating the situation as if the exposed employee has a confirmed case of COVID-19 and sending home potentially infected employees that he came into contact with. As for third parties, you should communicate with customers and vendors that came into close contact with the employee to let them know about the potential of a suspected case.

What should we do if an employee has recently traveled to an affected area or otherwise may have been exposed to the COVID-19 coronavirus? If the CDC or state or local public health officials recommend that people who visit specified locations remain at home after traveling, an employer may ask an employee what locations they have traveled to, even if the travel was for personal reasons. During a pandemic, an employer does not have to wait until an employee develops symptoms to ask questions about potential exposure to a pandemic during recent travel.

Can we impose mandatory quarantine periods on employees who return from a trip to an area with a known outbreak? Yes. We recommend 14 days.

Can we require a sick employee to stay home against their will? Yes. You may also ask them to seek medical attention and get tested for COVID-19. The CDC states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace.

Can an employee refuse to come to work because of fear of infection? Employees are only entitled to refuse to work if they believe they are in imminent danger. That generally means “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately.” Most work conditions in the United States do not meet the elements required for an employee to refuse to work, unless there has been an actual case of COVID-19 in the workplace.

Can we prohibit an employee from traveling to a non-restricted area on their personal time? You generally cannot prohibit otherwise legal activity, such as travel abroad by an employee. However, you may want to consider requiring employees to notify you of any overseas travel so that you can monitor the situations in those places.

We have an employee who has recently traveled overseas to a country that is not on any restricted list, but we’re worried about the risk of transmission. Should we institute a quarantine? No – there is likely no greater risk of this employee being infected with the COVID-19 coronavirus than any of your other employees. 

Can employees refuse to travel as part of their job duties? Yes, but only if the travel is to a location where a realistic threat exists. However, employers should be sensitive to older, disabled or pregnant employees even if the travel is to a location deemed “safe.” If employees refuse to travel for business to any other country for fear of catching the COVID-19 coronavirus, try to work out an amicable resolution.

Should we institute a temporary remote work policy in light of the COVID-19 coronavirus outbreak? Whether you implement a remote work policy is entirely dependent on your organization’s circumstances and the area of the country where your workers reside. You may not want to introduce a new system in place if you have had not yet had time to test and develop your remote work capabilities. On the other hand, if you have established protocols in place, this could be a good opportunity to leverage them.

What infrastructure should we have in place for a remote work plan? You will want to identify the roles that are critical to your business operations and determine whether those individuals can carry out their jobs while working remotely. If you can proceed, the next critical component is assessing your technological capabilities. Is there support in place to assist with the inevitable questions and IT problems that will arise? Is there sufficient security and privacy protocols in place? Considering these questions will help you determine whether you can move forward with a remote work plan.

What can we do to prepare for a possible remote work scenario? Take an inventory of the types of equipment your workers would need to get their job done and ensure they have access to them. This could include laptops, desktop computers, monitors, phones, printers, chargers, office supplies, and similar materials. Employees may want to develop a “ready bag” that they take home with them at the end of each day that would allow them to begin working remotely at a moment’s notice. This would obviously include laptops, smartphones, and other related technology, but could also include physical items (such as binders, documents, and materials).

What are some concepts we should keep in mind to ensure our remote work time is productive and successful? You may want to agree on a single communications platform that all workers will be required to participate in. It could be email, text messaging, instant messaging, Slack, Skype, Zoom Conferencing, or some other designated tool. Keep an eye on the bigger picture and track overall productivity, not moment-by-moment activities. Another concern for workers not used to working remotely is that they may feel untethered and disconnected from the organization during this time period. Some tactics to prevent and overcome this problem include: Developing and distributing an agenda for all team get-togethers and meetings, as well as meeting minutes and task lists after they are completed, so that those unable to attend can feel part of the action; Schedule virtual team lunches and digital social time where workers can interact on a social level.

Must we keep paying employees who are not working? Generally no. Under the Fair Labor Standards Act, minimum wage and overtime requirements attach to hours worked, so employees who are not working are typically not entitled to the wages the FLSA requires. One possible difference relates to employees treated as exempt FLSA “white collar” employees whose exempt status requires that they be paid on a salary basis. Generally speaking, if such an employee performs at least some work in the employee’s designated seven-day workweek, the salary basis rules require that they be paid the entire salary for that particular workweek. There can be exceptions, such as might be the case when the employer is open for business but the employee decides to stay home for the day and performs no work. Of course, an employer might have a legal obligation to keep paying employees because of, for instance, an employment contract, a collective bargaining agreement, or some policy or practice that is enforceable as a contract or under a state wage law. Finally, we caution employers to consider the public relations aspect of not paying employees who may not be working if they have contracted or are avoiding the COVID-19 coronavirus. Given the publicity surrounding this outbreak, it is possible the media may make issue of that and/or damage your reputation and employee morale. Consider the big picture perspective when making decisions regarding paying or not paying your employees. Also, continue to monitor legal developments as the federal government may address this issue with new legislation.

Can we charge time missed to vacation and leave balances? Yes —The FLSA generally does not regulate the accumulation and use of vacation and leave. The salary requirements for exempt “white collar” employees can implicate time-off allotments under various circumstances. However, what an employer may, must, or cannot do where paid leave is concerned might be affected by an employment contract, a collective bargaining agreement, or some policy or practice that is enforceable as a contract or under a state wage law.

Should we discontinue work-related social events? Possibly. Given the apparent ease of transmission of the coronavirus, it certainly makes sense to limit or postpone unnecessary social events for the time being. However, should an employer wish to hold social gatherings, we suggest that they be kept small (less than 50 people) and that any food or beverages offered be individually wrapped (i.e., no bowl of popcorn or keg of beer) to limit the potential spread of germs.

My workforce is unionized. Can my company make changes to unionized employees work schedules or duties in response to the COVID-19 coronavirus? Possibly. Employers generally have a duty to bargain in good faith over mandatory subjects of bargaining such as wages, hours, and terms and conditions of employment. Generally speaking, employers who make unilateral changes to these facets of employment may be subject to unfair labor practice charges that would apply even in emergency situations such as this one, unless your collective bargaining agreement provides otherwise. Many collective bargaining agreements contain provisions that allow for employer flexibility in determining work assignments, scheduling, and layoffs. The first authority for determining your rights and obligations is your own collective bargaining agreement. However, the general duty to bargain over changes in contractual terms may be suspended where compelling economic exigencies compel prompt action. The law views “compelling economic exigencies” as extraordinary, unforeseen events having a major economic effect that requires the employer to take immediate action and make a unilateral change. Certainly, coronavirus could qualify.

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Partners Brett Schneider and Brooke Ehrlich discuss the impact of Amendment 2 for employers, including municipalities and which options to consider. To read the full article, please click here.

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