On July 13, 2020, three prominent whistleblower law regulators spoke at PLI’s Corporate Whistleblowing in the Coronavirus Era 2020, which was co-chaired by Orrick partners Mike Delikat and Renee Phillips. With the standard disclaimer that their comments and opinions were their own and not the official comments of their respective agencies, each spoke about their agencies’ whistleblower program’s current progress, challenges, and priorities. READ MORE
[Update: The Ordinance was enacted on July 3, 2020.]
In an unprecedented move, on June 23, 2020 the San Francisco Board of Supervisors voted in favor of legislation that requires San Francisco employers with 100 or more employees to “offer a right to reemployment” to certain workers whom the employer laid off due to the COVID-19 pandemic and its resulting shelter-in-place orders. According to the city’s rules, this ordinance goes into immediate effect upon signature by San Francisco Mayor London Breed, which must occur within 10 calendar days of receipt of legislation. Unless reenacted, the ordinance will expire on the sixty-first day after its enactment. READ MORE
On June 22, 2020, the White House issued the “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” which is the latest in a series of U.S. immigration restrictions purportedly tied to the COVID-19 outbreak and its impact on the American economy. READ MORE
On June 11, the U.S. Equal Employment Opportunity Commission (“EEOC”) again updated its compendium FAQs on COVID-19 and the workplace. The latest revisions provide additional guidance on non-discrimination obligations under various federal non-discrimination laws as employees return to work. We previously blogged about the agency’s FAQ guidance here. READ MORE
I. Premium Pay and COVID-19
Although many Americans have suffered furloughs or job losses while those more fortunate are able to work, albeit remotely, workers deemed “essential” under state executive orders and federal guidelines continue to perform their job functions in public-facing circumstances outside of the home. State lawmakers across the country have introduced measures to provide premium or hazard pay to compensate essential workers for the heightened risk of exposure to COVID-19. In addition, the House of Representatives included a premium pay component in its latest COVID-19 response measure. These measures impose the benefits and obligations of additional pay upon different groups of workers and employers, respectively, despite the same overlapping legislative intent. Moreover, the measures raise several important legal questions regarding employment classification and state pre-emption laws. As many states begin to reopen their economies while both the public and private sectors face significant budget constraints, a question remains: will these premium pay measures be dismissed by lawmakers in light of the economic downturn or set the stage for further discussions on either the state or federal level in providing additional pay to those who continue to work during a declared public emergency. READ MORE
As the COVID-19 pandemic continues to financially impact companies worldwide, employers have been working to implement creative compensation strategies to mitigate the financial impact on their workforce, continue to incentivize employees and reward on-site essential workers. While cash is king, equity awards have long been a key component of an overall compensation and benefits strategy for many companies, from small to large, private and public. In difficult economic times such as these, granting equity awards can help companies save cash while filling a compensation gap created by salary reductions, unpaid furloughs or decreased benefits. Equity awards could also soften the blow to employees losing their jobs due to layoffs and redundancies resulting from an employer’s Coronavirus-related financial losses and cost-cutting measures. READ MORE
The CDC recently released guidance describing how employers in office buildings can implement procedures and take actions to create a safe and healthy workplace and protect employees and visitors. This tailored guidance for employers in office buildings follows CDC’s general workplace guidance for all employers. Below is a summary of the noteworthy provisions from the CDC’s recent guidance. READ MORE
On May 26, 2020, the Center for Disease Control and Prevention (“CDC”) released its anxiously awaited Interim Guidelines for COVID-19 Antibody Testing (the “Guidelines”). As set forth in further detail below, the Guidelines make clear that COVID-19 antibody testing should not be used to make decisions about returning employees to the workplace.
While the Guidelines detail some encouraging data developed from early studies on antibody testing, several concerns remain. On the encouraging side, the CDC states in the Guidelines that “nearly all immune competent individuals” will develop an immune response following infection with COVID-19 and recurrence of COVID-19 illness “appears to be very uncommon,” suggesting that COVID-19 antibodies may confer at least some short-term immunity. Consistent with this observation, the Guidelines further note that in experiments involving primates, infection and subsequent development of antibodies resulted in protection from reinfection. Additionally, the Guidelines note that antibody development in humans correlates with a marked decrease in viral load in the respiratory tract. According to the CDC, taken together, these observations suggest that the presence of antibodies may decrease a person’s infectiousness and offer some level of protection from reinfection. However, the Guidelines make clear that definitive data are lacking and it remains uncertain whether individuals with antibodies are protected against reinfection with COVID-19, and if so, the duration of that protection and what concentration of antibodies is needed to confer protection.
In addition to these issues, the CDC raises several other concerns in the Guidelines regarding antibody testing. The Guidelines note that some antibody tests can lead to false positive results, when they react with the presence of antibodies to other coronaviruses like the common cold. Moreover, the CDC cautions that certain individuals may not develop detectable antibodies even after infection while others’ levels could wane over time to be undetectable. The timing of antibody tests can affect the result as well; as the CDC notes, the most useful antibodies for assessing antibody response are not present early in infection, and only become detectable 1-3 weeks after symptom onset. Thus, antibody test results may not definitively indicate the presence or absence of current or previous COVID-19 infection.
In light of the continuing uncertainty regarding these issues, the CDC affirmatively states that COVID-19 antibody testing results “should not be used to make decisions about returning persons to the workplace.” The CDC specifically notes that although certain testing can have “high positive predictive value” indicating at least some degree of immunity, “until the durability and duration of immunity is established, it cannot be assumed that individuals with truly positive antibody test results are protected from future infection.” In addition to stating that employers should not use antibody testing to determine eligibility to return to the workplace, the CDC also recommends against using antibody testing to make decisions about admitting individuals to other congregate settings, such as schools, dormitories, or correctional facilities.
Finally, the CDC states that its Guidelines do not affect existing guidance from public health authorities and other governmental agencies on maintaining social distancing and using PPE in the workplace. The CDC notes that healthcare workers and first responders should continue to use PPE even if they test positive for COVID-19 antibodies. Further, while those who test positive for antibodies and do not have a recent history of “a COVID-19 compatible illness” have a low likelihood of active infection, they should still follow general recommendations to prevent the spread of infection.
While this area is rapidly evolving, employers now have affirmative guidance from the CDC that antibody testing should not be used to make decisions about bringing employees back to work. Since the EEOC has largely deferred to the CDC on this issue, employers who condition an employee’s return to work on a positive test for antibodies may be subject to claims by both the individual and the EEOC.
On 13 May 2020, the UK government published guidance giving employers much needed clarity on how holiday entitlement and pay operate during the Coronavirus pandemic. It considers both those who continue to work and those who have been placed on furlough under the Coronavirus Job Retention Scheme.
When the government issued travel advice against all non-essential travel back in mid-March, perhaps we might have been forgiven for thinking that summer plans would be unaffected. However, it is becoming clear that such plans will also have to be put on hold and so employees may be considering cancelling their holiday bookings. READ MORE