Table Of Contents
CHAPTER 1 THE COVID-19 PANDEMIC
1.1 Introduction
1.2 The Importance Of Preparedness For The Next Generation Of Essential Decisions
1.3 The Scope Of The Issues Employers Must Address
1.4 Overview Of Publication
1.5 The CDC’s Critically Important Role
1.6 Abbreviations Used Throughout The Guide
CHAPTER 2 COMMUNICATIONS AND CRISIS MESSAGING
2.1 Introduction
2.2 How To Periodically Communicate To Employees During The Pandemic
2.3 What To Communicate To Employees During The Pandemic
2.4 When To Communicate To Employees During The Pandemic
2.5 Communications Concerning An Employer’s Vaccination Policy
CHAPTER 3 CENTERS FOR DISEASE CONTROL AND PREVENTION GUIDANCE
3.1 Introduction
3.2 COVID-19 Overview
3.3 CDC Guidance For Fully Vaccinated People
3.4 CDC Guidance For Employers Regarding COVID-19
3.5 CDC Guidance And The Return To Work
3.6 CDC Industry Specific Recommendations And Recommendations For Critical Infrastructure And High Risk Employees
CHAPTER 4 WAGE AND HOUR CONSIDERATIONS
4.1 Introduction To Federal And State Wage-Hour Issues Raised By COVID-19
4.2 Wage And Hour Obligations For California Employers
4.3 Wage And Hour Obligations For New York Employers
4.4 Wage And Hour Obligations For Illinois Employers
4.5 U.S. DOL FAQs Re: The FLSA And COVID-19
CHAPTER 5 STATE AND FEDERAL WARN REQUIREMENTS
5.1 Introduction
5.2 The Federal Worker Adjustment And Retraining Notification Act (“Federal WARN”)
5.3 The California Mass Layoff And Termination Law
5.4 The New York WARN Act
5.5 The Illinois WARN Act
CHAPTER 6 THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT
6.1 The Initial Congressional Response To The COVID-19 Pandemic
6.2 Structure And Enforcement Of The FFCRA
6.3 The Emergency Family And Medical Leave Expansion Act
6.4 The Emergency Paid Sick Leave Act
6.5 Considerations Under Both The Emergency-FMLA And EPSLA Provisions Of The FFCRA
6.6 Tax Credit Rules Are Key To Financing The Costs
6.7 Unemployment Expansion Under The FFCRA
CHAPTER 7 LEAVES OF ABSENCE BEFORE AND AFTER THE FFCRA
7.1 Introduction
7.2 Leaves Of Absence Available Under Federal Law
7.3 Leaves Of Absence Available Under California Law
7.4 Leaves Of Absence Available Under New York Law
7.5 Leaves Of Absence Available Under Illinois Law
CHAPTER 8 THE CARES ACT
8.1 Overview Of The CARES Act
8.2 Amendments To The FFCRA
8.3 The Paycheck Protection Program
8.4 Tax Implications Of The CARES Act, The CAA And The ARPA
CHAPTER 9 UNEMPLOYMENT INSURANCE BENEFITS
9.1 Introduction To COVID-19’s New Legal Environment
9.2 Overview Of California UI Compensation And Benefits
9.3 Overview Of New York UI Compensation And Benefits
9.4 Overview Of Illinois UI Compensation And Benefits
9.5 The CARES Act And Unemployment Insurance
CHAPTER 10 EMPLOYMENT DISCRIMINATION CONSIDERATIONS
10.1 Introduction To COVID-19’s New Legal Environment
10.2 Applying Federal And State Discrimination Laws To The COVID-19 Pandemic
10.3 Disability Discrimination
CHAPTER 11 WORKPLACE SECURITY AND OSHA ISSUES
11.1 Introduction
11.2 Rules On Employee Health And Safety
11.3 Enforcement And Potential Consequences Of Non-Compliance
11.4 Retaliation Is Prohibited
11.5 New York Health & Essential Rights Act
CHAPTER 12 WORKERS’ COMPENSATION ISSUES
12.1 Introduction
12.2 California Workers’ Compensation Law
12.3 New York Workers’ Compensation Law
12.4 Illinois Workers’ Compensation Law
12.5 COVID-19 Vaccine Injuries And Workers’ Compensation
CHAPTER 13 EMPLOYMENT IMMIGRATION ISSUES ASSOCIATED WITH THE COVID-19 PANDEMIC
13.1 Introduction
13.2 Overview Of Common Business Visas
13.3 Layoffs And Furloughs Of Employees On Sponsored Work Visas
13.4 Optional Practical Training (“OPT”) For F-1 Students After Graduation
13.5 PERM Labor Certifications Sponsorships For Permanent Residency And DOL
13.6 COVID-19 Related Changes To US Immigration Processing
13.7 COVID-19 Travel Ban
13.8 I-9 Verification
13.9 E-Verify TNC Tolling
CHAPTER 14 TRADITIONAL LABOR CONSIDERATIONS
14.1 Introduction
14.2 What Non-Union Employers Need To Know About Traditional Labor Law During The COVID-19 Pandemic
14.3 What Unionized Employers Need To Know About Traditional Labor Law During The COVID-19 Pandemic
CHAPTER 15 RE-OPENING BUSINESS DURING THE PANDEMIC
15.1 Introduction
15.2 Vaccinations Will Play A Key Role In Business Continuation And Re-opening
15.3 Overview Of California’s Re-opening Guidance
15.4 Overview Of New York’s Re-opening Guidance
15.5 Overview Of Illinois’ Re-opening Guidance
CHAPTER 16 WHAT FUTURE WORKPLACES WILL LOOK LIKE
16.1 Introduction
16.2 Changes In How Employees Work
16.3 Changes In Where Employees Work
16.4 COVID-19 Contingency Planning
16.5 The Biden Administration’s Response To COVID-19
16.6 Potential Employment Law Changes
16.7 Employment Litigation Arising Out Of The COVID-19 Pandemic
16.8 Conclusion
APPENDIX A Centers for Disease Control and Prevention – Guidance for Business and Employers Responding to Coronavirus Disease 2019 (COVID-19)
APPENDIX B Centers for Disease Control and Prevention – Health Alert: Coronavirus Disease 2019
APPENDIX C Centers for Disease Control and Prevention – 14-Day Log for Monitoring Symptoms
APPENDIX D Centers for Disease Control and Prevention – Interim Public Health Recommendations for Fully Vaccinated People
APPENDIX E Centers for Disease Control and Prevention – Things to Know About the COVID-19 Pandemic
APPENDIX F Centers for Disease Control and Prevention – Cleaning and Disinfecting Your Facility
APPENDIX G U.S. Department of Labor – FFCRA: Workplace Poster
APPENDIX H U.S. Department of Labor – FFCRA: Employee Paid Leave Rights
APPENDIX I U.S. Department of Labor – FFCRA: Employer Paid Leave Requirements
APPENDIX J FFCRA Sample Leave Request Form
APPENDIX K FFCRA Regulations – Paid Leave Under the Families First Coronavirus Response Act, 29 CFR Part 826
APPENDIX L U.S. Department of Labor – Families First Coronavirus Response Act: Questions and Answers
APPENDIX M U.S. Department of Labor – Families First Coronavirus Response Act Notice: Frequently Asked Questions
APPENDIX N U.S. Equal Employment Opportunity Commission – Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, OLC Control # EEOC-NVTA-2009-3
APPENDIX O Occupational Health and Safety Administration – Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace
APPENDIX P Occupational Health and Safety Administration: Worker Exposure Risk to COVID-19 Poster
APPENDIX Q Occupational Health and Safety Administration – Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19)
APPENDIX R California Proclamation of a State of Emergency (March 4, 2020)
APPENDIX S California Exec. Order No. N-31-20 (March 17, 2020)
APPENDIX T California Exec. Order No. N-33-20 (March 19, 2020)
APPENDIX U California Exec. Order No. N-33-20 – List of Essential Critical Infrastructure Workers (March 22, 2020)
APPENDIX V California Department of Industrial Relations – Coronavirus Disease (COVID-19) – FAQs on Laws Enforced by the California Labor Commissioner’s Office
APPENDIX W New York Proclamation of a State of Emergency (March 7, 2020)
APPENDIX X New York Paid Sick Leave Law (March 18, 2020)
APPENDIX Y New York Exec. Order No. 202.8 (New York State on PAUSE) (March 20, 2020)
APPENDIX Z New York Exec. Order No. 202.17 (April 15, 2020)
APPENDIX AA U.S. Equal Employment Opportunity Commission, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws
APPENDIX BB SBA Paycheck Protection Program – Loan Forgiveness Application (Form 3508)
APPENDIX CC California Exec. Order No. N-51-20 (April 16, 2020)
APPENDIX DD New York State Department of Health – NY Forward Safety Plan Template
APPENDIX EE State of New York Senate Bill S1034B – Health and Essential Rights Act (the “HERO At”)
APPENDIX FF California Exec. Order No. N-09-21 (June 17, 2021)
About The Authors
Richard J. Simmons is a Partner in the law firm of Sheppard, Mullin, Richter & Hampton LLP in Los Angeles. He represents employers in various employment law matters involving litigation throughout the country and general advice regarding state and federal wage and hour laws, employment discrimination, wrongful discharge, employee discipline and termination, employee benefits, affirmative action, union representation proceedings, and arbitrations. Mr. Simmons received his B.A., summa cum laude, from the University of Massachusetts, where he was a Commonwealth Scholar and graduated in the Phi Kappa Phi Honor Society. He received his J.D. from Berkeley Law at the University of California at Berkeley where he was the Editor-in-Chief of the Industrial Relations Law Journal, now the Berkeley Journal of Employment and Labor Law.
Mr. Simmons argued the only case before the California Supreme Court that produced a victory for employers and business in 2018. He was recently recognized as the Labor and Employment Attorney of the Year by the Los Angeles Business Journal and was inducted into the Employment Lawyers Hall of Fame. He has lectured nationally on wage and hour, employment discrimination, wrongful termination, and other employment and labor relations matters. He is a member of the National Advisory Board to the Berkeley Journal of Employment and Labor Law, published by Berkeley Law at the University of California at Berkeley. He was also appointed by the California Industrial Welfare Commission as a member of three Minimum Wage Boards for the State of California.
Brian D. Murphy is a partner with Sheppard, Mullin, Richter & Hampton LLP in the firm’s New York office. Mr. Murphy is an employment defense litigator defending management in all areas of employment law, with a particular focus on wage and hour class and collective action litigation under Rule 23 and the Fair Labor Standards Act, and class claims under the Fair Credit Reporting Act. In addition to defense litigation, Brian also provides counsel and advice to employers concerning workplace investigation of claims of discrimination, harassment, and retaliation, restrictive covenants, employment contracts, personnel policies, and reductions-in-force. Brian also develops training programs and conducts trainings for clients concerning appropriate workplace behavior and wage and hour compliance.
Mr. Murphy has written extensively throughout his career on a number of employment topics and has been published in the New York Law Journal, the National Law Journal, Law360, and Corporate Counsel. He is also the co-author of the Wage and Hour Manual for New York Employers.
He received his J.D. from Saint John’s University School of Law and his B.A. from University of Buffalo. For multiple years, Brian has been recognized as a Rising Star Super Lawyer for the New York Metro Area. He is admitted to practice in New York, the U.S. Court of Appeals in the Second Circuit, and the U.S. District Court for the Southern, Eastern, and Western Districts of New York.
Adam R. Rosenthal is a Partner in Sheppard Mullin’s Labor and Employment Practice Group in the firm’s San Diego (Del Mar) and Los Angeles offices. Mr. Rosenthal represents a broad spectrum of employers in all areas of employment law before federal and state courts, the American Arbitration Association and JAMS. He has significant trial and arbitration experience in single plaintiff and class action cases involving wage and hour disputes such as allegations of missed meal and rest breaks, unpaid overtime, off-the-clock work and time shaving, wrongful termination, sexual harassment and disability discrimination, defamation, misclassification of manager “exempt” employees, and non-compete agreements and trade secrets.
Adam frequently lectures on employment law issues to in-house legal departments, trade associations and business and HR groups. He has written a number of articles and is also the co-author of the Employer’s Guide to COVID-19 and Emerging Workplace Issues.
Mr. Rosenthal represents national and international clients in retail, transportation, high-tech, manufacturing, healthcare, biotech, financial services, food services and non-profit organizations. He received his law degree from the University of California, Davis in 2006 and his undergraduate degree from the University of California, Los Angeles, cum laude.
