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As employees begin returning to work over the coming weeks, employers will face unique challenges created by the risk of workplace exposure to the coronavirus.  These risks take on an added urgency in a number of states where workers’ compensation coverage may not create an absolute bar to lawsuits related to workplace exposure to COVID-19.  In fact, such lawsuits have already commenced with the April 6, 2020 filing of Toney Evans v. Walmart, Inc., et al., No. 2020-L-003938 in Cook County, Illinois.  This first lawsuit has many employers – quite rightly – worried about whether the tort immunity typically provided by workers’ compensation laws will protect them given the unique nature of the COVID-19 pandemic.  The best response to mitigate this risk will be to conduct a comprehensive review of workplace health and safety practices to help minimize the risk of workplace transmission of COVID-19 while carefully evaluating additional ways to limit exposure as government restrictions subside.
Continue Reading Does workers’ compensation protect employers from liability arising from workplace transmission of COVID-19?

In the first phase of an effort to restart parts of Texas’ economy, on April 27, Texas Governor Greg Abbott issued an executive order allowing certain businesses – retail establishments, restaurants, movie theaters, shopping malls, museums, libraries, golf courses, and services provided by an individual working alone in an office – to reopen on May 1, 2020, with most subject to certain restrictions regarding occupancy.  Governor Abbott’s order, Executive Order GA-18, supersedes his prior executive stay-at-home order (Executive Order GA-16) and any conflicting local order, including, as discussed below, such orders that impose a civil or criminal penalty for failure to wear a face covering.

Executive Order GA-18 continues to allow business providing “essential services” to operate.  “Essential services” continues to include everything listed by the U.S. Department of Homeland Security in its Guidance on the Essential Critical Infrastructure, Version 3.0 or any subsequent version, plus religious services conducted in churches, congregations, and houses of worship.
Continue Reading Texas partially reopens businesses effective May 1st

Texas employers who have opted out of workers’ compensation coverage may face significantly increased workplace risks in the weeks and months ahead. All employers will face unique challenges due to the risk of workplace exposure to COVID-19. But, the potential liability from COVID-19 workplace illnesses is particularly problematic for Texas employers who have opted out of the workers’ compensation system. Specifically, Texas employers who have opted out of the workers’ compensation system will not have the benefit of workers’ compensation’s preclusive effects. They face the substantial risk that simple negligence will be enough to support employee claims arising from COVID-19 exposure. As a result, it is imperative for opt-out Texas employers to carefully review and update their workplace health and safety practices to maximize mitigation of any risk of workplace transmission of the coronavirus.
Continue Reading Texas employers who do not participate in workers’ compensation face heightened workplace liability risks as employees return from COVID-19 quarantine

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.

Employer Coverage Issues under the FFCRA

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)

Recently, additional action has been taken at both the state and county levels in Texas to prevent the spread of COVID-19. At the state level, Governor Greg Abbott has issued three executive orders mandating both roadway and air travelers originating at certain locations to self-quarantine for a period of 14 days upon their arrival in Texas. Governor Abbott has also issued an executive order instructing all individuals in Texas, except where necessary to provide or obtain essential services, to minimize social gatherings and minimize in-person contact with people who are not in the same household. At the county level, the shelter in place orders issued last week by Dallas, Harris, and Travis counties have all been amended or clarified.
Continue Reading Texas update: Governor Abbott issues statewide executive orders while counties amend stay-at-home orders

As of March 28, 2020, there are over 103,000 reported cases of COVID-19 in the United States. In Dallas County, there are 439 confirmed cases—an increase of 72 cases from the prior day—and the number of cases is expected to rise. Given the current environment, employers should be cognizant of Dallas’ Earned Paid Sick Time Ordinance (the “Ordinance”), which takes effect on April 1, 2020. While there has been significant question as whether the Ordinance violates the Texas Constitution, the City of Dallas recently has suggested it intends to enforce the statute after the effective date of April 1, 2020.

The Ordinance originally took effect on August 1, 2019 (for employers with 6 or more employees) and mirrors the paid sick leave ordinances passed by Austin on February 15, 2018 and San Antonio on October 3, 2019. The Austin ordinance is currently enjoined and is before the Texas Supreme Court. See City of Austin, Texas, et al. v. Tex. Ass’n of Bus., et al., No. 19-0025 (Tex. filed Jan. 10, 2019). The San Antonio ordinance is also enjoined, and the Dallas ordinance, while not enjoined, is the subject of a lawsuit pending in the Eastern District of Texas. See ESI/Emp. Sols., LP, et al. v. City of Dallas, No. 4:19-CV-00570-ALM (E.D. Tex. filed July 30, 2019).
Continue Reading Employers should be ready to comply with Dallas’ paid sick leave ordinance during the COVID-19 pandemic

Texas is taking a localized approach in trying to slow the spread of COVID-19. Since Monday, March 23, 2020, county and city governments from some of Texas’s largest metropolitan areas have issued “stay home-work safe” orders. This includes Dallas County, Harris County (where Houston is located), and Travis County (where Austin is located).

Each of the three orders affecting Dallas, Houston, and Austin allow “Essential Businesses” to remain open. While each order has a slightly different definition of “Essential Businesses,” all three orders include in their definitions of essential businesses the 16 critical infrastructure sectors identified by the Cybersecurity and Infrastructure Security Agency (CISA). “Non-essential businesses” are allowed to continue operations on a limited basis in varying degrees under each of the three orders. More detail on each of the orders is below.

For specific information on your city or business, employers should review the relevant order and its impact with the assistance of counsel to determine whether their operations are “Essential Businesses.” Determining whether your operations are essential businesses is highly fact specific, and companies should exercise caution when making that determination. Those businesses deemed “non-essential” should also consult their attorneys to assess next steps allowed under the applicable order.

Continue Reading Texas metro areas issue shelter-in-place orders to slow the spread of COVID-19

As the novel coronavirus (COVID-19) spreads domestically in the United States, employers should take proactive action to address employee concerns regarding COVID-19, plan for the potential impact of its transmission at the workplace, and be ready to take action in the event of suspected or actual virus exposure at work.

Centralized communication and planning: Employers should ensure they have a centralized leadership team to address workplace communications regarding COVID-19. In addition, a COVID-19 taskforce should review employer policies in the context of virus outbreak.

  1. The COVID-19 taskforce should consist of members of operations, security, HR, legal, and IT.
  2. Employers should instruct supervisors to refrain from questioning employees regarding suspected illnesses. Further, employers should direct supervisors and employees to route all concerns regarding COVID-19 to specifically identified members of the employer’s COVID-19 taskforce.
  3. The COVID-19 taskforce should prepare communications to distribute to the workforce describing:
    • The steps the employer is taking to respond to COVID-19 to ensure a safe workplace.
    • The sources employees can consult for information regarding COVID-19 (e.g., the US Centers for Disease Control (CDC), the World Health Organization, and the local public health department).
    • Actions employees can take to reduce exposure risk (e.g., washing hands)
    • The employer’s leave, sick, and telecommuting policies.

Contingency plans: Employees may be absent from work not only due to illness, but also in the event of self-quarantine or to care for dependents who are ill or at home due to daycare and school closures. As a result, employers should plan now for how their businesses will continue to operate in the event that a large portion of the workforce is absent. Employer contingency plans should identify key personnel and duties, and provide for cross-training of personnel on duties that are essential to continuous operation of the business.

Continue Reading Action items for employer task forces responding to novel coronavirus (COVID-19)

On December 16, 2019, the U.S. Department of Labor (DOL) published its first significant revision since 1968 to its interpretation of the calculation of the “regular rate” under the Fair Labor Standards Act (FLSA).[1] The regulations address whether certain fringe benefits must be included in calculating an employee’s regular rate for overtime purposes. With the publication of this final rule, the DOL seeks to not only provide clarity as to what is excluded from the regular rate, but also update regulations to better reflect the 21st-century workplace.

The DOL published a Notice of Proposed Rulemaking (NPRM) underlying the new regular rate rule on March 29, 2019. Comments to the proposed rule were submitted by small business owners, individual workers, unions, and professional associations. In response to those comments, the DOL made some modifications to the proposed rule before adopting it.

Continue Reading DOL final rule updates exclusions from employees’ regular rate