Hunton Employment & Labor Perspectives

As detailed in our previous alert, Texas Governor Greg Abbott recently committed to begin the gradual process of reopening businesses in Texas. On April 17, 2020, Governor Abbott issued two Executive Orders that relate to the strategic reopening of select services as the first step to open Texas in response to the COVID-19 pandemic.

Impact on Retail Employers

Executive Order GA 16 (“E.O. GA-16”) allows businesses that provide retail services that are not “essential services" to reopen, albeit with restrictions. Specifically, E.O. GA-16 establishes a “retail to-go” model that will allow such  businesses to reopen starting April 24, 2020, provided the reopened establishments deliver the items to customer’s vehicle, home or other location. Notably, Texas employers who reopen operations to provide retail to-go services are required to be in strict compliance with the terms required by the Texas Department of State Health Services (DSHS).

On April 16, 2020, Governor Gavin Newsom issued Executive Order N-51-20, which requires California employers in the food sector industry to provide certain workers affected by the COVID-19 pandemic with up to 80 hours of supplemental paid sick leave.

As state unemployment agencies are inundated with new claims, the US DOL recently provided instructions to states for implementing the Pandemic Emergency Unemployment Compensation Program (PEUC) of the CARES Act in its April 10, 2020 guidance.  PEUC allows states to enter into agreements with the Secretary of Labor to pay up to 13 weeks of unemployment benefits to eligible individuals, through December 31, 2020.  We highlight the important takeaways below.

As discussed in our previous alert on this issue, the CARES Act established a $349 billion U.S. Small Business Administration (SBA) Paycheck Protection Program (PPP) to provide immediate access to capital for small businesses who have been impacted by COVID-19. On April 13, 2020, Texas Governor Greg Abbott provided additional guidance to Texas employers when he announced that investment banking, securities and investment management firm, Goldman Sachs, will partner with San Antonio-based nonprofit organization, LiftFund, to provide $50 million in loans to small businesses. Specifically, Goldman Sachs will provide the capital, and LiftFund and other community development financial institutions will administer the funds. Texas business owners can now apply for a PPP loan and find more information about the program on the LiftFund website.

Los Angeles (LA) Mayor Eric Garcetti has issued an emergency order modifying the City’s recently passed COVID-19 supplemental paid sick leave requirements.  The prior ordinance, adopted on March 27, 2020, by the LA City Council, had required LA employers with 500 + employees nationally, to provide up to 80 hours of supplemental paid sick leave.  In a nod to the instrumental role employers will play in the City’s revival in the aftermath of the coronavirus crisis, Mayor Garcetti modified the paid leave requirements in a number of key ways.

On April 10, the Department of Labor published corrections to its regulation on the Families First Coronavirus Response Act and fixed an internal inconsistency regarding concurrent use of employer-provided paid time off and paid expanded family medical leave under the Act.

We previously covered the initial DOL rule on Families First here.  The Families First Act provides up to 12 weeks of paid leave for employees of small to mid-sized businesses for certain coronavirus-related reasons.

On Saturday, April 11, 2020, Virginia Governor Ralph Northam officially signed the Virginia Values Act into law.  The bill’s headlining purpose—adding gender identity and sexual orientation to the list of classes protected under the Virginia Human Rights Act (VHRA)—is commendable and has garnered widespread support.  However, other, more technical changes in the bill that are unrelated to the headlining purpose are poised to change the landscape of employment litigation in Virginia and could lead to a significant increase in discrimination lawsuits filed in Virginia’s state courts.  Virginia employers are well served to begin preparing now for this new procedure in the handling of employment discrimination charges and litigation, as the bill’s new provisions go into effect on July 1^st.

EEOC guidance on COVID-19 continues to evolve as the medical community learns more about the virus.  On April 9, 2020, the EEOC expanded the list of symptoms about which employers may ask when screening employees entering the workplace, without running afoul of the Americans with Disabilities Act (ADA).  Previously, employers were permitted to ask individuals if they were experiencing fever, chills, cough, sore throat, or shortness of breath. In the agency’s most recent update to its “Technical Assistance Questions and Answers about COVID-19,” it acknowledged that the medical profession now recognizes that the virus may present with the additional symptoms of a sudden loss of smell or taste, as well as gastrointestinal problems, such as nausea, diarrhea or vomiting.  Inquiries about these symptoms are now permitted, as well.

Almost overnight, COVID-19 has radically altered the American workplace.  Employers and employees alike have been forced to adapt to unique issues related to employee health, compensation, leave, and in unfortunate circumstances, furlough or lay-off.

Such change may be accompanied by grievances, concerns, and fears.  And in some instances, employees will desire to communicate those anxieties to the greater public at large.  Naturally, employers will want to have some degree of control over this messaging, while preserving the rights of employees to express themselves individually or collectively.  These principles are sometimes difficult to reconcile.  But a recent NLRB decision, Karen Jo Young v. Maine Coast Regional Health Facilities, issued on March 30, illuminates some fundamental principles that can help employers manage this balance during these difficult circumstances.

Factual Summary

On Wednesday, the CDC issued interim guidance for implementing safety practices for critical infrastructure workers who may have had exposure to a person with suspected or confirmed COVID-19.  We’ve summarized the highlights below: