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U.S. COVID-19: New FFCRA Q&A – Key Takeaways Regarding the “Need” for Leave, Joint Employers and Domestic Workers

The federal Department of Labor (“DOL”) is closing in on 100 informal “questions and answers” (the “Q&A”) relating to the Families First Coronavirus Response Act (“FFCRA”), having issued Q&A #s 89-93.  The new Q&A address steps employers may take when determining whether employees truly “need” FFCRA leave; issues relating to domestic workers; and a reminder for joint employers that prohibitions on adverse action, interference and retaliation may apply even to employers who are not covered by the FFCRA.

Determining Whether Employees Have A Qualifying Reason For Leave

Three of the five new Q&A provide critical guidance for employers on permissible questions and documentation requirements to ensure that leave is being taken in appropriate circumstances.

In the first Q&A (# 91), the DOL posits a factual scenario in which an employee with children has been teleworking productively for several weeks despite school closings, but then requests FFCRA leave.  The hypothetical employer wonders:  Can I ask my employees why they are now unable to work or if they have pursued alternative child care arrangements?”  The DOL responds affirmatively, indicating that an employee may be asked “to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work.”

Employers should “exercise caution” in this area, however, because, according to the DOL, the more questions asked, the greater “the likelihood that any decision denying leave based on that information is a prohibited act.”  There are many reasons why an employee may not have initially needed

U.S. COVID-19: Biometrics and Business Re-Opening

Now that wearing gloves has become the new normal because of the COVID-19 pandemic, biometric privacy litigation, which in recent years has centered on employers’ use of finger-scan timekeeping technology, may ultimately shift in focus to the measures that businesses implement as employees return to the workplace and customers begin to frequent their favorite establishments.  Body temperature checks, used to screen employees and visitors for a fever, are one such measure being considered as a first line of defense for public health.

To mount a defense against, or avoid altogether, biometric privacy class action litigation, businesses open to the public and employers must have a comprehensive understanding of the thermometer or thermal imaging technology selected—and the data it captures—before rolling out temperature screenings on a widespread basis.  Among the technologies available are:

  • Non-contact infrared thermometers that use lasers to measure temperature from a distance;
  • Thermal imaging cameras that detect elevated skin temperatures compared against a sample of average temperature values;
  • Monitoring systems that use thermal and color visual imaging to detect fevers in high-volume pedestrian areas; and
  • “Wearables” that can use radiometric thermometry measuring electromagnetic wave emissions.

While temperature screening has been endorsed by the Centers for Disease Control and Prevention, the Equal Employment Opportunity Commission, and various state and local governments, biometric privacy laws have not been suspended or amended.  The Illinois Biometric Information Privacy Act (“BIPA”) regulates the possession, collection, capture, purchase, receipt, and sale of “biometric identifiers” and “biometric information”—defined to include retina or iris

Managing Counter-Party Risk in the Pandemic – Part I

Part I: Getting on the Same Page

Globally, boards and management teams are taking stock of current operations and finances to identity vulnerabilities to the unprecedented distress that markets are anticipating from the pandemic for the next 12-18 months.  As part of those discussions, many retail businesses (and those with operations related to retail, like landlords, logistic companies, shipping interests, etc.) are focusing on receivables and risk weighting as to the collectability and the follow-on impact of doubtful accounts.

These conversations will inevitably lead to the age-old conflict that pins finance and legal functions – that are largely focused on risk – against business/sales functions, which are generally focused on sales and keeping customers happy.  Pre-pandemic, sales teams historically had a leg up as revenue generation inevitably trumped risk mitigation in the context of strategic decisions.  However, the same behavior and cultures that have been allowed to prevail when there was only a handful of distressed counter-parties cannot persist where companies are now dealing with entire portfolios of customers and vendors in varying degrees of stress and distress.

To be effective with mitigation, it means that Finance, Legal and Sales need to quickly get on the same page in terms of identifying the level of risk each counterparty poses to the business (and how that counterparty’s inability to pay or deliver goods/services will impact the overall business).  In doing so, companies will be better able to allocate scarce resources to counterparties that pose the greatest degree of near-term risk while

A Checklist for the U.S. Food Retail Industry in Light of COVID-19 Re-openings

May 8, 2020

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On April 24, 2020, Alaska became the first state to allow restaurants to reopen to dine-in customers (subject to certain precautions) since the COVID-19 pandemic began.  On April 27, 2020, Georgia and Tennessee followed suit.  Several other states have announced similar plans to reopen restaurants to dine-in customers throughout May.

Each state has its own requirements for re-opening, and many include some combination of the following restrictions: 1) workers must wear masks; 2) restaurants can only allow outdoor dining; 3) establishments can only be filled to a certain capacity (typically 25% or 50%); 4) reservation-only dining; and 5) hand sanitizer must be available at each table or at the restaurant’s entrance.

In light of these re-openings, we suggest that companies in the food retail industry consider the following, if they have not done so already:

  • Determine whether it is financially feasible to reopen if required to comply with the guidance set forth in the applicable order(s), or, if located in a state that has not yet provided rules for re-opening, consider which requirements would or would not be feasible.
  • Determine what supplies and goods will be required to reopen and develop a plan for sourcing the same.
  • Determine whether any physical modifications to the business will be required (i.e. barriers or screening between employees and customers and the spacing of payment terminal and cash registers).
  • Consider developing a process for providing temperature screening for employees who are showing signs of illness and review sick leave policies in order to

U.S. COVID-19: California Governor Newsom Announces Guidelines for Some Non-Essential Retailers to Reopen

One day before allowing “low-risk” retailers to reopen on a limited basis, California Governor Gavin Newsom on Thursday announced guidelines for certain retailers, manufacturers and other businesses to reopen fully during Stage 2 of the state’s reopening plan.

Even prior to full implementation of these guidelines, retailers perceived as presenting a lower risk of spreading COVID-19 can reopen on a limited basis, such as by offering curbside pickup, as early as today.  As we previously reported, Newsom has stated that such retailers include shops that sell items such as clothing, books, music, toys, sporting goods, and flowers.

At the press conference on Thursday, it was recommended that retailers offering curbside pickup take precautions such as having employees wear masks and gloves, bringing merchandise to a designated pickup location at the entrance or curbside, and encouraging use of payment methods and devices that reduce contact between employees and customers.

Whether non-essential retailers can reopen will also depend on the county and city where they are located. Seven Bay Area shelter-in-place orders have been extended through May 31. Los Angeles County’s order is set to expire May 15. Governor Newsom has stated that local governments have a right to issue and enforce stricter orders than the state, where warranted.

Under the state’s reopening roadmap, prior to reopening, all businesses are expected to:

  • Perform a detailed risk assessment and implement a site-specific protection plan
  • Train employees on how to limit the spread of COVID-19, including how to screen

Redefining Extraordinary Circumstances in the Wake of COVID-19: Finding Consistency in Difficult Times

Humanity has largely embraced the “we are in this together” mentality from a health crisis perspective. Yet, even as world leaders scramble to contain the COVID-19 pandemic, we have yet to fully grasp the follow-on impact from the pandemic and particularly, how it will affect world economies. For this “second phase” of the world’s response to the pandemic, the ultimate question is whether business and financial counter-parties will equally share the risk of loss. Bankruptcy judges have jurisdiction to fashion remedies for parties in their courtroom, but Congress and COVID-19 have left them no choice but to rule on issues immediately in front of them without the ability to limit the impact of their decisions on other market players. With a goal of tempering the COVID-19 related damage, recent difficult decisions in U.S. Bankruptcy Courts have invoked unprecedented results, but employing U.S. Bankruptcy Courts as our method of policing the economic impact of the pandemic may disproportionately impact risk-shifting.

Our economy relies on numerous players, all of whom are impacted (and impact one another): (a) unemployed people can neither pay their rent nor inject discretionary spending to restart retail and other industries; (b) retail tenants that do not generate income cannot pay their rent, resulting in commercial landlords/property owners potentially defaulting on their mortgages; (c) lenders with overdrawn revolvers cannot (or will not) further extend credit to defaulting borrowers; (d) companies that are cash-strapped cannot pay employees, landlords or lenders. Stated simply, there will be an echoing breakage if a disproportionate amount of the

U.S. COVID-19: California Announces Phased-In Reopening, Starting With Curbside Pickup

California Gov. Gavin Newsom announced on Monday that certain low-risk retail businesses will be allowed to reopen on a limited basis if they meet state guidelines and conditions to be announced on Thursday, including by allowing curbside pickup as early as this Friday.

Newsom said shops that sell items such as clothing, books, music, toys and sporting goods, as well as florists, are as among those who will be allowed to reopen on a limited basis if they meet the state guidelines.  Associated manufacturers that support the retail industry would also be allowed to begin production.

Whether a particular retail location can reopen, and under what conditions, also depends on the county and city where it’s located.  Six Bay Area counties announced last week that their shutdown orders will continue through the end of May: These include Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, and the City of Berkeley.  Los Angeles’s county’s order is set to expire May 15, after which the county is expected to phase in reopenings.

Governor Newsom in his briefing acknowledged that counties and cities have the right to issue orders that may be stricter than the state’s order.  However, he said some counties will be allowed to move further into the reopening process depending on certain criteria, including the stability of Covid-19 hospitalizations and the state’s ability to conduct more testing and contact tracing.

The California Retailers Association’s COVID-19 web page links to a summary of county and city orders within

COVID-19 in 19: Workplace Temperature Screening: Who, Where and How

The notion that U.S. employers would engage in broad-scale temperature screening of employees and visitors would have once been unthinkable. But the realities of COVID-19 are changing the workplace, as least for the time-being. With the encouragement of the CDC and certain state and local governments, and a green light from the EEOC, many employers are implementing daily temperature screening as one means of keeping their employees healthy. As part of our continuing series of 19-minute teleconferences on the impacts of COVID-19, join us as we discuss best practices for temperature screening and highlight potential issues employers should keep in mind.

Event Details

Date Tuesday, May 5, 2020 Time 1 p.m. to 1:19 p.m. PDT 2 p.m. to 2:19 p.m. MDT 3 p.m. to 3:19 p.m. CDT 4 p.m. to 4:19 p.m. EDT

Register to attend >

U.S. COVID-19: Illinois Employers Take Note: Key Employment Provisions of the Illinois COVID-19 Executive Order Effective May 1, 2020

On April 30, 2020, Governor Pritzker issued Executive Order 2020-32, effective May 1, extending social distancing requirements and, among other things, issuing new guidelines for Illinois employers.

The key employment-related aspects of the Executive Order are as follows:

  • All employers are required to evaluate which employees are able to work from home, and are encouraged to facilitate remote working when possible.
  • All employers that have employees who are physically reporting to a work site must post this guidance from the Illinois Department of Public Health and the Office of the Illinois Attorney General regarding workplace safety during the pandemic.
  • When working, all individuals who are able to medically tolerate a face covering (which includes “a mask or cloth face-covering”) are required to cover their nose and mouth with a face covering when in a public place and unable to maintain a six-foot social distance. This includes public indoor spaces such as stores.
  • All employers operating Essential Businesses and Operations and engaged in Minimum Basic Operations must take proactive measures to ensure compliance with “Social Distancing Requirements.”
    • Social Distancing Requirements include: “maintaining at least six-foot social distancing from other individuals, washing hands with soap and water for at least 20 seconds as frequently as possible or using hand sanitizer, covering coughs or sneezes (into the sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and not shaking hands.”
    • In addition, employers should, where possible:
      • Provide employees with “appropriate face coverings” and require that employees wear face

Motions to Dismiss Granted in ADA Gift Card Cases

A New York federal court has granted motions to dismiss in four separate cases alleging that the failure to offer gift cards in Braille violates the ADA. The rulings by U.S. District Court Judge Gregory H. Woods (Southern District of New York) all hold that the plaintiffs in those cases failed to state a claim for violation of the ADA, and also lack standing.  The rulings allow plaintiffs to file an amended complaint within 15 days.

As we previously reported, the lawsuits were among more than 100 such complaints alleging that failure to offer gift cards in Braille violates Title III of the Americans with Disabilities Act.

ADA Does Not Require Offering Braille Gift Cards

Judge Woods issued the first opinion last Thursday, and the following day issued rulings in the other three cases referencing that opinion. Judge Woods concluded that the complaints failed to state a claim because the ADA does not require retailers to create specialty goods for the visually impaired.  In doing so, Judge Woods rejected the three theories advanced by plaintiff: (1) that gift cards are goods that need to be accessible; (2) that gift cards are places of public accommodation that must be independently accessible; and (3) that plaintiff was denied access to the defendant’s services when it denied plaintiff a Braille gift card.

With respect to the first theory, Judge Woods concluded that Title III prohibits a public accommodation from discriminating based on disability when providing “access to” whatever goods and services the

COVID-19 in 19: U.S. Employer Guidance for Reopening the Workplace

Increased discussion of reopening the U.S. economy has raised numerous questions as employers prepare to return their employees to the workplace. In just the last week, President Trump’s White House issued its Opening Up America Again three-phased approach for re-opening the economy, the Equal Employment Opportunity Commission issued guidance about returning to work, and the states of Texas, Georgia, South Carolina and Vermont have issued plans to rescind their shelter in place orders in phases – all while other states have extended their shelter in place orders. While there is no single roadmap to reopening in these continuing uncertain times, employers should begin to consider what measures will help ensure a safe, orderly return to business.

Join us for this 19-minute discussion on these and other rapidly changing guidelines.

Event Details

Date Tuesday, April 28, 2020 Time 1 p.m. to 1:19 p.m. PDT 2 p.m. to 2:19 p.m. MDT 3 p.m. to 3:19 p.m. CDT 4 p.m. to 4:19 p.m. EDT

Register for the teleconference >

Proposed House Bill Could Save Cannabis Businesses Suffering During the COVID-19 Crisis

April 24, 2020

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The Emergency Cannabis Small Business Health and Safety Act (the “Act”), introduced by House Reps. Earl Blumenauer (D-OR) and Ed Perlmutter (D-CO), could help an industry which employs at least 250,000 Americans amid the coronavirus pandemic. Despite being designated an “essential service,” cannabis businesses, and those businesses serving the cannabis industry, are largely shut out from receiving financial assistance under the recently passed CARES Act. The lack of equal access leaves an industry already suffering disproportionate financial burdens under normal conditions, especially vulnerable. The Act as proposed clears the way for cannabis businesses to apply for and receive access to federal programs such as the Paycheck Protection Program and the U.S. Small Business Administration Economic Injury Disaster Loan Program, which offer forgivable federal loans for business expenses, including, payroll, rent, debt obligations and utility payments. Given that cannabis remains federally illegal as a Schedule I drug, it remains to be seen whether the Act will be passed and the necessary aid distributed. However, the Act is a light at the end of an otherwise gloomy tunnel for an industry providing medical services to thousands of Americans daily.

U.S. COVID-19: Preparing a Reopening Plan – Five Steps to Take Right Now

As state governments and businesses look towards restarting the economy, the consensus is that as the U.S. gradually re-opens, the look and feel of businesses will change dramatically. Before the world can return to its full pre-COVID-19 normal, this interim period between the lifting of shelter in place orders and the broad distribution of vaccines or effective treatments is projected by experts to last at least one, and possibly as long as two years. This client communication will focus on public facing businesses which must significantly change their operations to reduce the risk of coronavirus transmission. Non-healthcare businesses which have frequent contact with the general public, such as retailers, are deemed by the Occupational Safety and Health Administration (OSHA) to be medium exposure risk. Before such businesses re-open, they should have a comprehensive reopening plan addressing the following:

1. Monitor Best Health Practices and Guidelines

The Centers for Disease Control (CDC) sets national standards and guidelines for responding to COVID-19. The CDC uses its website to communicate with the public, which is updated frequently as their recommendations change based on circumstances. CDC recommendations are widely deemed to be standard practice for the United States, and cover a range of topics such as social distancing, treatment of surfaces and use of materials; they also contain specific guidance for both healthcare and non-healthcare related businesses. While the guidelines have changed over time as the situation has evolved, reliance on their recommendations offers a measure of protection as the CDC guidelines are the

U.S. COVID-19: New CDC Guidance Allows Potentially-Exposed “Critical Infrastructure Workers” to Remain at Work – with Precautions

April 23, 2020

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The Centers for Disease Control and Prevention (“CDC”) recently issued guidance applicable to “critical infrastructure workers,” and safety precautions employers should take when those workers are potentially exposed to COVID-19.

The CDC has generally recommended that any individual who has recently been in close contact with a person with COVID-19 (someone in their household or family member) should “self-quarantine” at home for at least 14 days, self-monitor for symptoms consistent with COVID-19, and check his or her temperature twice a day. Some employers have been applying this guidance to their employees, instructing any employee with a potential exposure to self-quarantine at home for 14 days.

Recognizing that certain essential businesses and functions need to continue operating even during the pandemic, the CDC has now updated its guidance for “critical infrastructure workers,” as defined by the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (“CISA”). Personnel (including contracted vendors) in 16 different sectors of work are considered “critical,” including:

  • Federal, state, & local law enforcement;
  • 911 call center employees;
  • Janitorial staff and other custodial staff; and
  • Other designated workers in the following sectors: chemical, commercial facilities, communications, critical manufacturing, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, materials and waste, transportation systems, and water and wastewater.

Under the new guidance, critical infrastructure workers may be permitted to continue working following a potential exposure to COVID-19. A potential exposure means being in a household or

Coronavirus: UK Job Retention Scheme online portal now open / employee consent

April 20, 2020

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Online portal

Today, the UK Coronavirus Job Retention Scheme (‘CJRS’) online portal has opened for employers to make applications for furlough grants.  You can find the portal here.

Claims can only be made in respect of furloughed employees who were on an employer’s PAYE payroll on or before 19 March 2020 and who were notified to HMRC on an RTI submission on or before 19 March 2020.  Employees who were employed as at 28 February 2020 and on payroll (that is, notified to HMRC on an RTI submission on or before 28 February 2020) and who were made redundant or stopped working for the employer after that date, but prior to 19 March 2020, will also qualify for the CJRS if the employer re-employs them and puts them on furlough.

In relation to claims made under the CJRS, employers should retain all records and calculations in respect of its claims, including records of the amount claimed for each furloughed employee and the period for which each employee is furloughed.

If an employer is furloughing less than 100 employees, in addition to providing certain employer-related details, it is required to enter various employee-specific information. This includes the employee’s name, National Insurance number, claim period and claim amount, and payroll/employee number (optional).  If an employer is furloughing 100 or more employees, it can upload a file with the above information rather than input it directly into the portal.  HMRC will accept .xls .xlsx .csv .ods file types.

Is the California Attorney General Delaying or Loosening Enforcement of the CCPA due to Covid-19? (United States)

April 17, 2020

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Not at this time.

In light of Covid-19, many companies are deciding whether they can (or should) put their compliance plans on hold in order to handle more pressing matters. As things currently stand, the California AG has not indicated that there will be any delay in enforcement, slated to begin on July 1, 2020. Although there is a large push from the business community to delay, an unidentified advisor from the AG’s office recently stated that their office is “committed to enforcing the law upon finalizing the rules or July 1, whichever comes first.”

While the AG’s position could change as the Covid-19 pandemic continues to evolve, companies should assume the deadline for enforcement will remain in place and should continue moving toward full compliance (to the extent practical) with the CCPA by July 1.  Although enforcement is slated to begin in July, it is important to remember that compliance began on January 1, 2020. To the extent priorities need to be established, companies should consider the following:

  • Make sure to comply with deadlines for responding to data subject access, deletion, opt-out requests.
  • Review your publicly-facing documents (e.g., privacy notices) for compliance with the CCPA. If the final regulations have not come out by May 15, 2020, begin the process of reviewing and revising based upon the then-current draft of the regulations. At this point, and presuming that there are no further proposals, that would be the Second Modified Proposed Regulations.
  • Make sure that you have a cookie-compliance strategy,
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