On April 23, 2020, Illinois Governor J.B. Pritzker announced he will be extending the state stay-at-home order through May 31, 2020. While the new executive order has not yet been published as of the date of this blog’s publication, a press release issued by the governor’s office previews modifications to the order, including:
Earlier this month, the US Department of Labor (DOL) promulgated regulations to implement the recently enacted Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA), both of which are part of the broader Families First Coronavirus Response Act (FFCRA). The regulations address several key issues that were unclear in the original statutory language. Still, as explained below, several critical questions surrounding the EPSLA and EFMLEA remain unanswered.
Subject to certain eligibility requirements, the plain language of the FFCRA requires employers to furnish EPSLA and EFMLEA leave to their workers if the business has fewer than 500 employees in the United States. The regulations make clear, however, that the determination of whether an employer falls under this threshold must be made on a rolling basis at the time a particular employee requests leave (rather than, for instance, as of the FFCRA’s April 1 effective date).
This approach will require employers to take a “snapshot” of employee headcount at different intervals to assess the paid-time-off and leave entitlements of particular employees. And the regulations in fact even recognize that the approach may result in employees of the same entity having different paid-time-off and leave rights depending on when the employee requests leave. For example, a company with 499 or fewer employees in April may need to grant leave to employees, but if its payroll is over 500 in May, it can deny a request for FFCRA leave at that time.
The regulations also clarify that, for purposes of determining employee headcount under the FFCRA, employers must include all full-time and part-time employees, employees on leave, and day laborers supplied by a temporary agency. If the company is a “joint” or “integrated” employer under previous DOL standards, the employees of all entities must be counted together. The regulations also clarify that independent contractors do not count towards the 500-employee threshold (although it remains to be seen how this concept applies to workers who are excluded from the FFCRA calculation but are misclassified as independent contractors). See 28 C.F.R. § 826.40. The DOL further clarifies that employees who have been temporarily laid off or furloughed, and not subsequently reemployed, do not count toward the 500-employee threshold for determining employer eligibility under the FFCRA. See 29 C.F.R. § 826.40(a)(1)(iii).Continue Reading DOL issues new guidance on Families First Coronavirus Response Act (FFCRA)
Effective April 16, 2020, an emergency amendment to Illinois’ workers’ compensation rules will make it easier for workers at essential businesses to obtain workers’ compensation benefits for COVID-19 related injuries. Specifically, the emergency amendment creates a rebuttable presumption that exposure of a “COVID-19 First Responder or Front Line Worker” to the virus arises out of and in the course of, and is causally connected to, their employment.
The emergency amendment broadly covers any individuals employed as police, fire personnel, emergency medical technicians, or paramedics and all individuals employed and considered as first responders, health care providers engaged in patient care, corrections officers, and the crucial personnel identified under Section 1, Parts 7-12 of the Illinois March 20, 2020 stay-at-home executive order. The reference to Parts 7-12 of the stay-at-home order means employees who work for the following types of businesses will be considered “COVID-19 First Responders or Front Line Workers”:
Continue Reading Illinois makes workers’ compensation more accessible for COVID-19 essential workers
The New Jersey Supreme Court recently affirmed the reinstatement of an employee’s complaint alleging disability discrimination based on his registered medical marijuana user status, reasoning that the employee was entitled to disability protections despite violating the employer’s drug policies. This case, as well as recent amendments to the state’s medical marijuana law, indicate that employers in New Jersey should engage in the interactive process when considering accommodation requests from registered users and should not take any adverse action against a registered user simply because of their status.
On March 23, 2020, in Comcast Corp. v. National Association of African American Owned Media, the Supreme Court resolved a circuit split on whether discrimination claims brought under section 1981 require “but-for” causation or whether they can be analyzed under Title VII’s “motivating factor” test. The Court confirmed “but-for” causation is required.
The plaintiff in the case, Entertainment Studios Network (ESN), is an African American-owned television network operator that sought to have Comcast carry its channels. Comcast refused, citing reasons such as lack of programming demand, bandwidth constraints, and a preference for other types of programming that ESN does not offer. ESN and the National Association of African American-Owned Media sued, alleging Comcast violated 42 U.S.C. section 1981, which guarantees “[a]ll persons…the same right…to make and enforce contracts…as is enjoyed by white citizens.”
On appeal from the district court’s dismissal of ESN’s complaint for failure to state a claim, the Ninth Circuit reversed, holding ESN was only required to plead that race played “some role” in Comcast’s decision-making process.
Continue Reading Supreme Court confirms race discrimination claims under section 1981 require “but-for” causation
On March 20, 2020, Illinois Governor J.B. Pritzker issued an executive order directing all Illinois residents to “stay at home.” The order goes into effect on Saturday, March 21, 2020 at 5 p.m. (CT), and lasts through April 7, 2020. Illinois now joins the ranks of California and New York, which have issued similar “stay at home” orders.
Under the order, all “non-essential” businesses must stop operating except with respect to minimum basic operations or operations consisting of individuals working from home. “Minimum basic operations” consist of the minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, or for related functions. To the extent employees must still work, businesses must ensure they comply with social distancing requirements:
Continue Reading Illinois governor issues “stay at home” order in response to COVID-19