Category: Labor & Employment

Mary Jane and the Remote Workplace

As shelter in place orders were rolled out in California, many businesses transitioned their workforce to remote work for the first time. Employers had to determine how to track hours worked or what qualified as a business expense. However, other unique questions arise with a remote workforce, such as how to handle employees using marijuana while working from home.

Over a decade ago, when California passed the Compassionate Use Act, an employee questioned an employer’s right to prohibit marijuana use. The California Supreme Court in Ross v. Ragingwire held the employer need not accommodate medicinal marijuana use, irrespective of the Compassionate Use Act of 1996. Ross reasoned that since the California Fair Employment and Housing Act (FEHA) does not require employers to accommodate illegal drug use, the employer could lawfully deny employment to individuals using medical marijuana, which remains illegal under federal law.

More recently, in 2016 California legalized marijuana for recreational use, which further complicated employee marijuana use at work. Despite the change in marijuana’s legal status, the law reiterated that an employer could have a policy against the use of drugs while working or at the workplace.

While the law permits employers to prohibit drug use at work, now a large portion of workers are working remotely, Unfortunately, the lines for employees may be blurred since they are in their own homes (and many people seem to need a little extra help getting through this pandemic).

Employers should remind employees that during working hours, the expectation is that employees will comply with all policies of the company, including drug and alcohol policies. If the company does not have a drug and alcohol policy, it may want to include information prohibiting the use of drugs and alcohol while performing work in a remote work agreement or work from home policy.

If a manager or supervisor suspects that an employee is using marijuana or other drugs while performing work for the company, the supervisor should be instructed to reiterate the company’s policies.

The more difficult aspect of a remote workplace is handling an employee who is clearly under the influence while working, such as appearing intoxicated at a video conference. In California, an employer can only request an employee undergo a drug test under limited circumstances, including if there is reasonable suspicion that the employee is under the influence. While there may be sufficient evidence to request a drug test, due to concerns surrounding COVID-19 including overwhelmed medical providers, an employer will need to more carefully consider whether to insist an employee submit to a drug test at this time. Similarly, as some employers are actually hiring new employees during COVID-19, they too may wish to consider whether to postpone typical post-offer, pre-hire drug tests until the current health crisis has calmed down. Of course, drug tests are still necessary for employees in safety-sensitive positions, but they typically are not working remotely.

If an employee voluntarily requests leave for drug rehabilitation, assuming the employer’s workforce is over 25 employees, the employer should grant the leave pursuant to California Labor Code Section 1025, unless the leave would result in an undue hardship. Other leaves may also apply, so employers should consult with their Jackson Lewis attorney. However, of note, all the new COVID-19 California Paid Sick Leaves are limited to either actual COVID-19 diagnosis or exposure, caring for family, or childcare issues only. As such there will be no need to grant paid sick leave to an employee who claims pandemic stress-induced drug use.

Employers should also be cautious that they are not overstepping into trying to control an employee’s lawful off-duty activities. This may include, for instance, seeing social media posts from employees using marijuana at home. Unless it’s clear from the post that the marijuana usage occurred during working hours, employers should refrain from taking any action.

Jackson Lewis P.C. © 2020

For more on remote working considerations, see the National Law Review Employment Law section.

Did Economic Uncertainty Make My PPP Loan Necessary?

The United States Department of the Treasury (Treasury) and the Small Business Administration (SBA) continue to issue information and guidance with respect to the Paycheck Protection Program (PPP) and the loans made available under it by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). One of the most recent items of note is the SBA’s updated PPP Loan FAQs, which in particular added FAQ 31 and FAQ 37. The answers to these two questions purport to provide guidance, retroactively, on one of the particular certifications that applicants were required to make in the PPP loan application process. This guidance, not coincidentally, came on the heels of negative press regarding the fact that larger companies (notwithstanding the CARES Act’s waiver of affiliation rules and employee sizes that made them otherwise eligible) were some of the recipients of funds appropriated to the PPP loan program.

So, what are the borrowers in the PPP to make of this? Below is an outline that may be helpful to a borrower that is evaluating next steps in light of this new “guidance” and how it plays into the certification initially made at loan application time.

Good Faith Certification

The PPP loan documents required the applicant to certify in good faith to several items. One of those certifications (Loan Necessity Certification) provided that: “Current economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant?” Without having the commentary now available in the PPP Loan FAQs, early borrowers understood that the CARES Act did not require that the business had no other means of obtaining credit. That certainty and clarity was provided by the CARES Act itself, which provided that the requirement that an applicant be unable to obtain credit elsewhere was not applicable to the PPP loans. However, no other guidance or definitions were provided with respect to the Loan Necessity Certification.

Guidance

The SBA’s updated version of its PPP Loan FAQs includes, in pertinent part, the following new items:

31. Question: Do businesses owned by large companies with adequate sources of liquidity to support the business’s ongoing operations qualify for a PPP loan?

Answer: In addition to reviewing applicable affiliation rules to determine eligibility, all borrowers must assess their economic need for a PPP loan under the standard established by the CARES Act and the PPP regulations at the time of the loan application. Although the CARES Act suspends the ordinary requirement that borrowers must be unable to obtain credit elsewhere (as defined in section 3(h) of the Small Business Act), borrowers still must certify in good faith that their PPP loan request is necessary. Specifically, before submitting a PPP application, all borrowers should review carefully the required certification that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” Borrowers must make this certification in good faith, taking into account their current business activity and their ability to access other sources of liquidity sufficient to support their ongoing operations in a manner that is not significantly detrimental to the business. For example, it is unlikely that a public company with substantial market value and access to capital markets will be able to make the required certification in good faith, and such a company should be prepared to demonstrate to SBA, upon request, the basis for its certification.

37. Question: Do businesses owned by private companies with adequate sources of liquidity to support the business’s ongoing operations qualify for a PPP loan?

Answer: See response to FAQ #31.

These new FAQs, in effect, modify the Loan Necessity Certification such that additional factors are now part of that certification. Whether these new factors are applicable to all borrowers, or just the “businesses owned by large companies”, is unclear. However, the answers seem to indicate that all borrowers should assess their economic need for the loans with these other factors in mind: (a) their current business activity, and (b) their ability to access other sources of liquidity to support their ongoing operations in a manner that is not significantly detrimental to the business.

Suggested Steps and Response

So, what should a borrower do in light of these new factors, and apparent change or at least qualifier thrown in midstream?

Unless or until additional information or guidance is provided, we suggest that a borrower revisit the certification that it initially made, and do so with additional attention to the facts and circumstances existing as of the date of the Loan Necessity Certification. If those facts and circumstances have changed since that date to the positive for the borrower and its economic position, then it might be prudent to evaluate the Loan Necessity Certification at two additional points in time: (a) the time it received the loan proceeds, and (b) the date of the newest guidance.

If a borrower revisits its Loan Necessity Certification, and does not feel good about the initial certification, the government is allowing a borrower to return the PPP loan proceeds on or before May 7, 2020, and that borrower will be deemed to have made the Loan Necessity Certification in good faith. This means that the borrower will avoid the possibility of civil or criminal enforcement with respect to that certification.  Although we believe testing of the good faith certification should as of the date it was made, the recent developments and problematic guidance make it unclear whether other points in time might have bearing on the evaluation of a borrower’s Loan Necessity Certification. That is the reason for the mention of testing at additional points of time.

To assist in revisiting the initial Loan Necessity Certification, a borrower should consider working backwards to the point of time in question, and borrower should reduce to writing the consideration and analysis of the economic uncertainty and its needs for the PPP loan. Issues or factors that might be useful in the analysis include:

  • The current and projected impact of COVID-19 to the business, and the uncertainties surrounding those projections, including any communications from customers or clients regarding their level of business with the borrower and their respective economic conditions;
  • Recent history of the business and its performance in the wake of other economic downturns;
  • Existing levels of cash reserves or cash equivalents, and the borrower’s ability to access other sources of capital and what the terms and conditions of such sources of capital might be;
  • Current or projected plans for retention or reduction of workforce or payroll costs of such workforce, and the ability of borrower to reinstate such workforce to pre-COVID-19 levels;
  • Reaction and measures taken by competitors to COVID-19;
  • Actions or measures that borrower is considering, or has already taken, to address the economic uncertainty outside of workforce or payroll reduction.

For the borrower that revisits the Loan Necessity Certification and determines that it did make the certification in good faith, the written work product should be saved in case that part of a borrower’s PPP loan is questioned in the future. In that regard, the Treasury has advised that borrowers receiving $2 million or more of PPP loan proceeds will be audited. The audit will likely focus on the Loan Necessity Certification, as well as other aspects of the loan and loan process, including (i) number of employees, (ii) the determination of the size of the loan, and (iii) use of the loan proceeds.

If the consideration and analysis of the Loan Necessity Certification makes a borrower uncomfortable, then it should consult its advisors and maybe also consider returning the amount of any loan proceeds by May 7th.

© 2007-2020 Hill Ward Henderson, All Rights Reserved

For more on PPP loan administration, see the National Law Review Coronavirus News section.

Avoid Losing Money: Achieve Full Remote Access with Speed, Security & Scalability

Are your employees fully capable of accomplishing the same work that they could have done while in the office? Ideally, their in-office PC experience can be duplicated (securely) at home without any latency issues. If that’s not the case, your organization could be losing money with lost billable hours, or underutilization of existing solutions, etc. It’s paramount for the bottom line that your remote access capabilities are allowing your employees to achieve maximum efficiency to conduct business in a remote capacity.

There are three key areas of focus that need attention when planning a cost-effective and capable remote access strategy: speed, security, and scalability. “Putting effective security measures in place today along with mitigating remote access performance issues and ensuring the ability to adjust user access and scale will undoubtedly put you at a competitive advantage and positively affect your organization’s bottom line,” says Donnie W. Downs, President & CEO of Plan B Technologies, Inc.

First and foremost, the reliance on your employee’s end user device (or lack thereof) has a significant impact on what must be considered. There are two paths an organization can take to provide remote access to end users. The first is to allow end user devices to join the network as though they were plugged into a network jack in the office. The most common way to achieve this type of direct access is through a Virtual Private Network or VPN. The second approach is to present desktops and applications in a virtual session. This allows applications to be run on server horsepower in the organization’s datacenter and be used remotely from an end user device. Several products provide this capability, usually referred to as VDI or Terminal Services.

These options result in significantly different architectures. The primary difference is the level of dependency on the end user’s device. The VPN style solution relies heavily on the device’s capability and configuration. It’s required to provide all of the applications and computing power required by each end user. The VDI/Terminal services style solution requires much less from the end users devices. It is simply an interface to the remote session. The tradeoff is that a much more robust infrastructure is required in the organization’s data center or cloud.

Regardless of which way your organization is providing remote access today (VPN or virtual session), the speed, security and scalability (or lack thereof) will directly impact your cost.

SPEED

“To remain productive while working remotely, users need the same capabilities and performance they have when in the office,” says Downs. This translates to several things. They should be able to access all of the software and data they need. They should be able to access these resources using familiar workflows that don’t require separate remote access training. However, the most commonly missed requirement is that the remote access platform needs to provide adequate performance, so the remote access experience feels just like being in the office. Any latency will no doubt cause frustration and could ultimately affect your billable hours.

For direct access platforms this is a simple, yet potentially expensive formula. The remote access system needs to provide enough bandwidth so that the client device can access application servers, file servers, and other resources without slowing down. On the datacenter side, this means designing sufficient connectivity to the on-prem or cloud environments. Connectivity on the client-side, however, will always be more unpredictable. Slow residential connections, unreliable WIFI, and inconsistent cellular coverage are all challenges that will need to be addressed on this type of solution.

Performance within VDI/Terminal Services platforms is much more complex. Similar to direct access, we need to provide adequate bandwidth from the client to the remote access systems. However, this type of system typically has less demanding network requirements than a direct access system.  Advanced VDI/Terminal Services platforms also offer a wide variety of protocol optimizations that can accommodate high latency or low bandwidth connections. That’s only half of the puzzle though. Because the user is accessing a virtual session running in the datacenter, that session needs to provide adequate performance. At a basic level, this means that the CPU and memory must be sized correctly to accommodate the number of users. But the platform also needs to match in-office capabilities such as multiple monitors, 3D acceleration, printing, and video capability. Full-featured VDI/Terminal Services platforms provide these capabilities, but they must be properly designed and deployed to realize their full potential.

SECURITY

“Remote access can expose your business to many risks – but it doesn’t have to be this way,” says Downs. “Whether your organization is supporting 10 remote users or 1,000, you need to provide the necessary access while guarding your organization against outside threats.” For successful and secure remote access, it’s necessary to manage the risks and eliminate your blind spots to prevent data loss, phishing, or ransomware attacks.

On the surface, securing remote access environments requires many of the same basic considerations as any other public-facing infrastructure. These include mandatory multifactor authentication, application-aware firewalls, and properly configured encryption to guard your organization against security risks and protect corporate data. Remote access security is unique due to the risk introduced by the devices used by your employees. These devices can include IT managed devices that are allowed to leave the office or employee-owned unmanaged devices. If your remote access end users are logging in with their own devices, over the internet, there is room for a security breach without conducting these three protocols:

1/ Conduct Endpoint Posture Assessments

For direct access remote connectivity, security is especially relevant since the end user device is being provided a conduit into the organization network. Ideally, devices connecting to a direct access solution should be IT managed devices. This ensures that IT has the capability to control the endpoint configuration and security. However, there are many environments where direct access is required by employee-owned devices. In either case, the remote access solution should have the capability to do endpoint posture assessment. This allows an end user device to be scanned for compliance with security policies. These policies should include up to date operating system updates, valid and updated endpoint protection/antivirus, and enabled device encryption. The results of the scan (or assessment) can then be used to ensure only properly secured devices are able to connect to the network.

2/ Protect Against Key Logging and Other Malware

VDI/Terminal Services remote access systems rely on the end user device only as an interface to the virtual session. As a result, these solutions provide the ability to insulate the organization’s network from the end user device more than a direct access connection. Administrators can and should limit the ability for end user devices to pass file, print, and clipboard data, effectively preventing a compromise of the end user device from affecting the infrastructure. However, there is a gap in this insulation that is almost always overlooked. Malware on the end user device with key logging, screen recording, or remote-control capability can still allow the VDI/Terminal Services session to be compromised. Advanced VDI/Terminal Services platforms have protection for these types of attacks built in. This should be a mandatory requirement when selecting and implementing a VDI/Terminal Services solution.

3/ Deploy Robust Endpoint Protection

Regardless of the overall remote access strategy, both IT managed and employee-owned end user devices should have robust endpoint protection. Traditional definition-based antivirus products no longer provide sufficient protection. These should be combined with, or replaced by, solutions that perform both behavior analytics and advanced persistent thread (APT) protection.

SCALABILITY

Capacity planning for remote access can be very challenging. It is often one of the most varied or “bursty” workloads in an organization. Under normal operations it is used for dedicated remote workers or employees traveling. But when circumstances require large numbers of employees to be remote, as they do today, demand for these capabilities will spike. Proper planning can allow remote access systems to deal with this and keep the entire organization productive, regardless of where they are working.

There are three key elements that affect the scalability of direct access and VDI/Terminal Services solutions: software licensing, network bandwidth, and hardware capacity. It’s important to remember that these three pieces are interconnected. Upgrading any one of them will likely also require an upgrade to the others.

1/ Software Licensing

Licensing for remote access solutions is generally straight forward. There are variables in choosing the correct license type such as feature set and concurrent vs named users. But, in terms of sizing, direct access, and VDI/Terminal Services solutions are usually licensed based on the number of users they can service. Proper scalability relies on having a license pool large enough to support the entire user base. Purchasing licensing for an entire user base can be prohibitively expensive, so some vendors offer more flexible licensing. Two common flexible license models are subscription and burst licenses. Subscription licensing can often be increased or decreased as needed. Burst licensing allows for the purchase of a break-glass pool of licensing that allows for an increased user count for a short period of time. Both of these models allow remote access systems to rapidly expand to accommodate emergency remote workers. This type of flexibility should be considered when selecting a remote access platform to help save your organization from unnecessary costs.

2/ Network Bandwidth

Bandwidth and hardware flexibility are much more difficult to plan for. Indirect access and VDI/Terminal Services scenarios, each additional user requires more WAN bandwidth and more hardware resources. WAN circuits for on-prem datacenters can require significant lead time to provision and resize. There are solutions such as SD-WAN or burstable circuits that can allow flexibility and agility in these circuits. But this must be carefully preplanned and not left as a to-do item when the expanded capacity is actually needed.

3/ Hardware Capacity

Hardware scaling has similar limitations. Adding remote access capacity can require hardware resources ranging from larger firewalls to additional servers depending on the specific remote access platform. Expanding physical firewall and server platforms requires the procurement of additional hardware. During widespread emergencies, unpredictable availability of hardware can lead to significant delays in getting this done. Fortunately, most remote access platforms allow the integration of on-prem and public cloud-based deployments. A common strategy is to deploy systems into the public cloud as an extension of the normal production environment. These systems can then be spun up when needed to provide the additional capacity. This is a complex architecture that requires diligent design and planning, but it can provide a vast amount of scalability at reasonable cost.

Positioning your organization with a remote access strategy that can scale will save you time and money in the future. It’s unknown how long the effects of the coronavirus pandemic will impact the landscape of remote work for organizations. Planning and preparing to continue to conduct business with a secure and robust remote access strategy in place will put you ahead of your competition.

© 2020 Plan B Technologies, Inc. All Rights Reserved.

For more on remote working see the Labor & Employment section of the National Law Review.

Chicago City Council Introduces COVID-19 Anti-Retaliation Ordinance, Reflecting Growing Trend

On April 22, 2020, Chicago Mayor Lori Lightfoot, with the backing of several Aldermen, introduced the COVID-19 Anti-Retaliation Ordinance (the “Ordinance”), which, if enacted, would prohibit Chicago employers from retaliating against employees for obeying a public health order requiring an employee to remain at home as a consequence of COVID-19.  This reflects a growing trend among states and local governments in enacting protections against retaliation amid the COVID-19 pandemic.

The Ordinance would prohibit employers from demoting or terminating a “Covered Employee”[1] for obeying an order issued by the Mayor, the Governor of Illinois or the Chicago Department of Public Health requiring the Covered Employee to:

(1) Stay at home to minimize the transmission of COVID-19;

(2) Remain at home while experiencing COVID-19 symptoms or sick with COVID-19;

(3) Obey a quarantine order issued to the Covered Employee;

(4) Obey an isolation order issued to the Covered Employee; or

(5) Obey an order issued by the Commissioner of Health regarding the duties of hospitals and other congregate facilities.

An employer would also be prohibited from retaliating against a Covered Employee for obeying an order issued by the employees’ treating healthcare provider relating to subsections (2), (3) and (4) above.

Finally, the anti-retaliation protections would extend to Covered Employees who are caring for an individual who is subject to subsections (1)-(3) above, and would apply even if workers have exhausted any earned sick-leave time available pursuant to Chicago’s Paid Sick Leave Ordinance.

Affirmative Defense

The Ordinance would allow an employer to assert an affirmative defense if it relied upon a reasonable interpretation of the public health order at-issue and, upon learning of the violation of the Ordinance, cured the violation within 30 days.

Penalties/Damages

The Ordinance has teeth:  violations can lead to fines of up to $1,000 per offense per day, and Covered Employees who have been retaliated against may pursue the following recovery in a civil action: (i) reinstatement; (ii) damages equal to three times the full amount of wages that would have been owed had the retaliatory action not taken place; (iii) actual damages caused directly by the retaliatory action; and (iv) costs and reasonable attorneys’ fees.

Next Steps

The Ordinance has been referred to the Chicago Committee on Workforce Development for further deliberation.

A Growing Trend

The protections the Ordinance would afford to employees are consistent with a growing trend among state and local governments in response to the COVID-19 crisis.  Similar protections have been established through emergency orders or rules in New Jersey, Michigan and Washington which prohibit employers from disciplining or terminating employees for requesting or taking time off after contracting or, in some circumstances, being exposed to COVID-19.  Other states, such as New York and California, have issued guidance applying existing federal, state, and local anti-discrimination and anti-retaliation laws to prohibit employers from discriminating against or refusing to provide reasonable accommodations for employees who contract or are otherwise impacted by the virus. As state legislative and executive responses continue to rapidly evolve, employers should ensure that they are familiar with the latest guidance in each state where their employees are located.

[1] “Covered Employee” generally means any employee who, in any particular two-week period, performs at least two hours of work for an employer while physically present within the geographic boundaries of the City of Chicago.  Chicago, Ill., Mun. Code § 1-24-010.

© 2020 Proskauer Rose LLP.
For more on COVID-19 related employment ordinances, see the National Law Review Coronavirus News section.

What Should You Do About D&I Efforts During a Pandemic? Exactly What You Were Doing Before

The tremendous economic uncertainty emerging in the wake of COVID-19 is forcing law firm leaders to contend with challenges they’ve never faced before. People are scared, and for good reason. Given the enormous financial pressure firms feel, it’s understandable that leaders may opt to push diversity and inclusion efforts to the back burner for a while — or is it?

Let’s review what we know about the business case for creating more diverse firms.

In other words, improving law firm diversity is an imperative for any firm hoping to compete in the marketplace. That was true before the pandemic, and it’s still true today, despite how much more difficult it may be to achieve this goal.

Here’s the good news: expensive, outward-facing diversity and inclusion initiatives that are more about marketing than substance probably are not the best use of constrained law firm resources. Instead, firm leaders should consider simple, effective interventions that will protect the progress they have made in elevating more women and minority attorneys to power, and make it possible for that work to continue:

Help women and minority partners build their profiles remotely. Now that all in-person avenues to developing business are closed, firms are thinking strategically about how their attorneys should move those efforts online. But top-down orders to “leverage LinkedIn” or “keep up with your contacts virtually” are not useful to attorneys who didn’t have robust “old boy” networks to begin with. Online networking is a skill, just like other business development techniques. If your firm was providing coaching support to high-potential attorneys to help them with business development in the real world, that same support is needed now for new kinds of marketing efforts. Attorneys are going to need tutorials that walk them through best practices and provide support by phone or email. Marketing departments can create these resources or contract outside support to do this training work. Then they must oversee the execution to ensure attorneys stay part of the online conversation in their target industries. Is it possible to assign marketing department staff to this task, particular those who typically staff events and may have extra capacity?

Keep the content coming. Social media profiles are only as strong as the content attorneys have to share there. We know that implicit bias can make it more difficult for women and minority attorneys to demonstrate their subject-matter expertise and be considered for the same opportunities as less experienced white men. This makes thought leadership articles and opportunities to be featured as an “expert source” in key media outlets all the more important for building these attorneys’ reputation with prospects. When putting your firm’s experts forward on webinars, thought leadership articles and media pitches, consider who’s being included — and who’s not. If the faces of your firm’s most important expertise are all white men, you’re sending the message that your other attorneys are somehow less qualified to lead in a crisis.

Bear equity in mind when handling award nominations. The earliest and most chaotic weeks of the COVID crisis happened to coincide with an already busy time on many legal marketers’ calendars: award season. Nominations for “rising star” and other programs are typically due in spring, and gathering client testimonials, case examples and other supporting materials can be time consuming and logistically challenging under normal circumstances. And we know that the required effort (which of course comes on top of keeping up with billable work), combined with the often-gendered tendency to be more reticent about self-promotion, means that award nominees can be less than representative of a firm’s diversity anyway. This year, women bearing the brunt of new childcare and homeschooling responsibilities, along with those who care for extended family members, had even less bandwidth and energy to put themselves forward for industry honors. What can your team do to ensure that your award nominees reflect the true diversity of your emerging lawyers, rather than an oversampling of those privileged enough to have more spare time on their hands?

Make evaluations more transparent and consider what “fairness” means right now. In addition to thinking about the intersection of inclusion and business development, firm leaders will need to consider how to evaluate the work attorneys do under these extraordinary circumstances. Obviously it would not be fair to hold attorneys to the standards for billable hours that they would during a normal year, but what should revised standards look like? As noted, women are taking on a greater share of the childcare, homeschooling and household duties under lockdown, which makes it more difficult for them to bill the same number of hours or develop as much new business as men. How can you make sure they won’t be penalized for this when it comes time to make decisions about compensation and promotion? Questions about how to fairly and holistically evaluate attorneys’ work long predate the current crisis, and they are going to become more urgent in the months to come. The current system continues to reward white men above other demographic groups. It’s time for reform.

No question this is a frightening time for firm leaders, and they will want to focus their limited attention on what matters most for the survival of the firm. That shortlist should include a continued commitment to diversity and inclusion. The business case is clear, and hard-won gains for women and minorities are hanging in the balance.

© 2020 Page2 Communications. All rights reserved.

ARTICLE BY Debra Pickett of Page 2 Communications.
For more on continuing normal business operations amid COVID-19, see the National Law Review Coronavirus News section.

Connecticut Further Revises “Safe Workplace Rules for Essential Employers,” Requiring All Employees to Wear Face Masks or Face Coverings At All Times

On April 17, 2020, the Connecticut Department of Economic and Community Development materially revised its previously issued “Safe Workplace Rules for Essential Employers.” Now, all employees working at every workplace that remains open during the COVID-19 pandemic must wear a face mask or face cloth covering at all times.

Employers are required to provide masks or face coverings to employees and, if infeasible because of supply-chain shortages, employers must provide materials for employees to make their own masks or face coverings. Employers must provide these materials, along with the Centers for Disease Control tutorial showing how to make masks and face coverings or, alternatively, compensate employees for reasonable and necessary costs to make their own masks and face coverings.

The new requirements do not apply to employees whose health or safety would be negatively impacted by wearing a mask or face covering due to a medical condition.  And employees are not required to produce medical documentation to verify the stated condition.

© 1998-2020 Wiggin and Dana LLP

For more on states’ COVID-19 legislation, see the Coronavirus News section of the National Law Review.

Sole Proprietors, Independent Contractors and Self-Employed Individuals Addressed in Latest Paycheck Protection Program Guidance

On April 14, 2020, the Small Business Administration (“SBA”) issued its interim final rules regarding the Paycheck Protection Program (“PPP”), a $350 billion part of the Coronavirus Aid, Relief and Economic Security (“CARES Act”), to sole proprietors, independent contractors and self-employed individuals. Four days earlier the PPP loan application process opened for this group of applicants. These interim rules provide information for sole proprietors, independent contractors and self-employed individuals who are seeking a PPP loan.

Eligibility

Self-employed individuals are eligible to apply for a PPP loan provided certain eligibility requirements are met. To be eligible for a PPP loan, the individual must: (1) have filed a Form 1040 Schedule C for 2019; (2) have been in operation as of February 15, 2020; and (3) have a principal place of residence in the United States. The interim rules clarify that partnerships, instead of partners, are eligible to apply for a PPP loan. The partnership should file the application and claim each partner’s share of self-employment income from the partnership as “Payroll Costs” (see below).

Maximum Loan Amount

“Payroll Costs” are the base for determining the maximum loan amount for self-employed applicants. Payroll Costs for a self-employed applicant include wages, commissions, income or other similar compensation paid to employees, and net earnings from self-employment. Net earnings from self-employment are indicated on Schedule C of Form 1040 as net profit. Self-employment earnings in excess of $100,000 are excluded from the calculation of Payroll Costs. Payroll Costs also include health insurance, retirement benefits and unemployment benefits. The maximum amount of a PPP loan for a self-employed applicant is the lesser of $10,000,000 or 2.5 times the average monthly Payroll Costs.

Allowable Uses and Loan Forgiveness

Self-employed applicants are subject to the same limitations on allowable uses of PPP loan proceeds and loan forgiveness as business concerns. The amount of loan forgiveness will depend on the amount of loan proceeds spent by the self-employed applicant during the 8-week period following the first disbursement of PPP loan proceeds. A self-employed applicant must have claimed, or be entitled to a claim, a deduction for business expenses on Form 1040 Schedule C for those expenses to be considered for forgiveness. Those expenses must also qualify as allowable uses of PPP loan funds.

©2020 von Briesen & Roper, s.c

For more on the CARES Act, see the National Law Review Coronavirus News section.

Could the COVID-19 Pandemic Impact Child Custody and Relocation?

As a result of the COVID-19 pandemic, many face uncertainty about their jobs and careers. The last week of March saw 6.6 million Americans applying for unemployment benefits, and many more experienced reduction in their compensation. The uncertainty could lead to more people choosing to relocate closer to family or take jobs that may require them to relocate for different economic opportunities. If you share physical custody of your children with their parent, what should you consider before making the decision to relocate?

Under Michigan law, a parent is prohibited from relocating a child, whose custody is governed by a court order, more than 100 miles from the child’s legal residence at the time of the original court order. As a result, parents who share custody of their child and want to relocate will need court permission. MCL 722.31. The court analyzes a parent’s request to move with a child in four steps. The first is to determine whether the relocating parent can support the move of the child by analyzing the following factors:

  1. Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.
  2. The degree to which each parent has complied with and utilized his or her time under a court order governing parenting time with the child and whether the parent’s plan to change the child’s legal residence is inspired by that parent’s desire to defeat or frustrate the parenting time schedule.
  3. The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child’s schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent, as well as whether each parent is likely to comply with the modification.
  4. The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.
  5. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

MCL 722.31

What impact, if any, does the COVID-19 pandemic have on a court’s analysis of the above factors? First of all, as far as the COVID-19 pandemic relates to the potential quality of life of a particular geographic region, as more and more data becomes available regarding the outbreak, certain regions of the country that found themselves more susceptible to COVID-19 may be less likely to increase the quality of life for a parent and child. Certain geographic areas may pose more of a health risk to families until the development of a vaccine. Second, many parents, although acting reasonably and in the best interests of their child, have informally agreed to modify their parenting time due to Gov. Whitmer’s Stay Home, Stay Safe order. Although it is difficult to imagine a court would criticize a parent for putting a child’s health first, lapses in parenting time and parental absence can dramatically impact a child’s relationship with a parent, which a court may be hard pressed to ignore, despite good intentions. At the end of the day, a parent’s desire to provide more stable financial and family support during this uncertain time may not necessarily result in a court approving the move.

© 2020 Varnum LLP

For more on family & other laws affected by COVID19, see the Coronavirus News section of the National Law Review.

To Provide an N95 Mask or Not to…That is the Question Plaguing Some Employers (US)

One of the biggest questions plaguing employers during the COVID-19 pandemic is whether or not to provide employees with respirators—the holy grail of all PPE at this time. On March 11, 2020, the White House issued a Presidential Memorandum, entitled “Making General Use Respirators Available,” which mandated all necessary efforts by the government and public at large to make respiratory devices available for use by healthcare workers during the COVID-19 pandemic to mitigate against further transmission of the virus. In response, OSHA has issued several forms of temporary enforcement guidance for the Respiratory Protection standard, as well as its April 13, 2020 Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19), and both the healthcare and general industries have scrambled to comply with this exacting standard in the face of extensive shortages.

As we recently discussed here, OSHA issued two enforcement guidance memos on April 3, 2020, regarding issues surrounding the use of respiratory equipment. The first memorandum discusses the use of respiratory protection and the N95 mask shortage due to COVID-19, specifically outlining enforcement discretion to permit the extended use and reuse of respirators, as well as the use of respirators that are past their manufacturer’s recommended shelf life—when following the directions set forth in the memorandum (i.e., attempting to obtain other NIOSH-approved respirators and using all other feasible engineering controls) and when used as recommended by the CDC. The reasoning behind the memorandum is the sad fact that the pandemic has limited the availability for N95 filtering facepiece respirators to only workers in the healthcare and emergency response fields (and even then there are not enough respirators to go around). The second memorandum provides similar guidance on the use of respiratory protection equipment certified under the standards of other countries or jurisdictions during the COVID-19 pandemic, if the methods set forth in the first memoranda are unavailable. Both memoranda explicitly explain their application to both (1) healthcare personnel exposed to actual and potential COVID-19 patients, as well as (2) workers exposed to other respiratory hazards due to the shortage of respirators resulting from the COVID-19 pandemic response.

On April 8, 2020, OSHA issued further guidance and announced the expansion of temporary guidance provided in a March 14, 2020 memorandum regarding supply shortages of N95 masks or other filtering facepiece respirators (FFRs) due to the COVID-19 pandemic. The memorandum expands application of mandatory fit-testing requirements in the March 14 memorandum beyond healthcare to all workplaces covered by OSHA—where there is required use of respirators—and explains that “OSHA field offices will exercise enforcement discretion concerning the annual fit-testing requirements, as long as employers have made good-faith efforts to comply with the requirements of the Respiratory Protection standard and to follow the steps outlined in the March 14, 2020 memorandum.”

Notably, all three memoranda outline some version of this statement: “Due to the impact on workplace conditions caused by limited supplies of N95 FFRs, all employers should reassess their engineering controls, work practices, and administrative controls to identify any changes they can make to decrease the need for N95 respirators. Employers should, for example, consider whether it is possible to increase the use of wet methods or portable local exhaust systems or to move operations outdoors. In some instances, an employer may also consider taking steps to temporarily suspend certain non-essential operations.” OSHA also clarified that “[a]ll employers whose employees are required to use or are permitted voluntary use of respiratory protection must continue to manage their respiratory protection programs (RPPs) in accordance with the OSHA respirator standard, and should pay close attention to shortages of N95s during the COVID-19 pandemic. Paragraph (d)(1)(iii) in section 1910.134 requires such employers to identify and evaluate respiratory hazards in the workplace, and paragraph (c)(1) requires employers to develop and implement written RPPs with worksite-specific procedures and to update their written programs as necessary to reflect changes in workplace conditions that affect respirator use.” OSHA confirmed this fact in its April 13, 2020 Interim Enforcement Response Plan, where it again focused on healthcare and emergency response job tasks with “high” and “very high” occupational exposure risk to COVID-19.

So who should be provided respirators in the first place then? OSHA has not yet put forth any guidance saying that it will require (or even recommend, consistent with CDC guidance for the general public) NIOSH-approved respiratory protection in the typical working environment, except for employees working within 6 feet of patients “known to be, or suspected of being, infected with SARS-CoV-2 and those performing aerosol-generating procedures.” The agency has also clarified that the use of PPE, including respiratory protection, should not take the place of other prevention strategies.

However, whether respiratory protection is required is still a case-by-case analysis, the outcome of which will be dependent on each employer’s internal hazard assessment and the risk category within which the employer’s workers fall (as described in OSHA’s guidance). Only for high risk and very high risk positions does OSHA recommend the use of respiratory protection, including NIOSH-approved N95 devices, as well as face shields or goggles—in accordance with CDC guidance for hospital preparedness. For medium risk workplaces, the guidance notes that situations requiring employers to use respirators are rare. And for lower risk workplaces, OSHA does not even recommend additional PPE, let along respirators. Instead, the agency directs that “[w]orkers should continue to use the PPE, if any, that they would ordinarily use for other job tasks.” Therefore, employers falling into the latter two categories that want to provide respiratory protection may be stuck between a rock and a hard place until supply levels increase and agency guidance expands.

That said, OSHA recognizes the difficulties at hand and has clarified that its inspectors will be given specific enforcement discretion when enforcing the Respiratory Protection standard during the COVID-19 outbreak. In exercising this discretion, inspectors are instructed to refer to OSHA’s guidance outlined herein, to continue to check for additional or modified guidance, and to always assess “whether the employer is making a good-faith effort to provide and ensure workers use the most appropriate respiratory protection available for exposures to SARS-CoV-2.” Per OSHA’s Interim Enforcement Response Plan, assessing good-faith efforts will be accomplished by the following:

  • Implementing the hierarchy of controls in an effort first to eliminate workplace hazards, then using engineering controls, administrative controls, and safe work practices to prevent worker exposures to respiratory hazards;
  • Prioritizing efforts to acquire and use equipment according to OSHA’s guidance memorandum above;
  • Performing a user seal check each time an employee dons a respirator, regardless of whether it is a NIOSH-certified device or not, and do not use a respirator on which they cannot perform a successful user seal check; and
  • Training workers to understand proper usage, maintenance, sanitation, and storage of respirators and other PPE.

In other words, it is hard to get respirators in the first place, even for healthcare and emergency workers falling into the high and very high risk categories. So, employers must implement comprehensive backup plans involving the use of engineering controls, administrative controls, safe work practices, and other appropriate PPE. However, if respirators are available for your workers, and they need and are provided respirators for their particular position, they must be used in the context of a comprehensive respiratory protection program that meets the requirements of OSHA’s Respiratory Protection standard (29 CFR 1910.134), at least to the greatest extent possible, including the requirements for medical exams, fit testing, and training.

© Copyright 2020 Squire Patton Boggs (US) LLP

For more on respirator availability & usage, see the National Law Review Coronavirus News section.

Are Tech Workers Considering Unionizing In The Wake Of COVID-19?

Big tech companies by and large have remained union-free over the years unlike their peers in other industries such as retail and manufacturing. However, earlier this year – and before the COVID-19 pandemic upended workplaces across America – unions scored their first major organizing victory in the tech sector when employees at Kickstarter voted to form a union. According to at least one recent report, more tech company workers may soon be following suit.

The Teamsters, Communications Workers of America, and the Office and Professional Employees International Union all reported an uptick in inquiries from non-union employees about prospects of unionizing the companies they work for, including in the tech and gig economy sectors. One of the reasons cited by these workers was a feeling that not enough is being done to protect employees against the spread of COVID-19, particularly those who work in e-commerce fulfillment centers or drive for ride-sharing apps. There also was concern by employees who were, at least at one point, denied remote work arrangements when they believed their jobs were suited for such an arrangement.

It remains to be seen whether organized labor will be able to augment its numbers based on these workers’ concerns. Several things may complicate any such efforts, including unprecedented layoffs and an almost singular focus by people across the nation on the ongoing pandemic itself.

To the extent unions try to capitalize on the unrest, there are many reasons employers facing organizing attempts should be concerned. For example, one of the most effective tools a company can consider to stave off a unionization attempt are large, all-employee meetings where leaders of the organization communicate directly to the workforce why forming a union isn’t in the company’s or employees’ best interests. In an era where social distancing is a necessity, such meeting – at least in-person – likely won’t be a viable option. In addition, mail-in ballot union elections may become the standard as long as social distancing requirements remain in effect, which are less preferred than live secret-ballot voting booths.

Accordingly, employers desiring to remain union-free should give thought to what talking points, materials, and strategies – as well as communications channels – they have available to them now around this issue. Waiting to do so until after a union petition hits may place them at a significant disadvantage.

© 2020 BARNES & THORNBURG LLP

For more industries impacted by COVID-19, see the National Law Review Coronavirus News section.