These Newsletters are not intended as legal advice since each situation depends specifically on the facts presented. Persons reading these Newsletters should seek competent legal advice with regard to the subjects contained herein before making any employment or other decisions.
Inside this Issue
1. COVID-19 Liability Waivers
2. OSHA Updates Guidance On Returning To Work With COVID-19
3. EEOC Updated Covid-19 Guidance on 6/17/2020
4. NLRB Issues Joint Employer Final Rule
5. NLRB Clarifies What Can Be Included In Non-Solicitation Rules
6. NLRB Restores Longstanding Standard for Employee Discipline In Advance Of A First Contract
7. U.S. Department Of Labor Issues Field Assistance Bulletin (“FAB”) No. 2020-4 on June 26, 2020
as to Family First Coronavirus Response Act (“FFCRA”) Paid Sick Leave
COVID-19 Liability Waivers
In the recent President Trump campaign rally in Tulsa, OK, persons who requested tickets had to agree to a waiver. The waiver said:
“By clicking register below, you are acknowledging that an inherent risk of exposure to Covid-19 exists in any public place where people are present. By attending the rally, you and any guests voluntarily assume all risks related to exposure to Covid-19 and agree not to hold Donald J. Trump for President, Inc.; BOK Center; ASM Global; or any of their affiliates, directors, officers, employees, agents, contractors or volunteers liable for any illness or injury.”
This was basically an assumption of risk, which is the strongest and primary waiver provision. A second type of waiver is to prevent liability from injury caused by business’ ordinary negligence or in some cases for gross negligence. Courts generally disfavor waivers for gross negligence. Some waivers also contain hold harmless clauses indemnifying a party for any loss caused by the indemnifying party and additionally any loss incurred by the indemnifying party.
Severability clauses are seen in most waivers which means that if one provision is found unenforceable, the remaining provisions remain enforceable. A slightly different twist in a waiver is to include a covenant not to sue regardless of what facts occur.
Do waivers between employers and employees have any standing since they are traditionally disfavored by courts as against public policy? For example, it is not possible to waive a right to file worker’s compensation claims. Employers should consider waivers which include assumption of risk from outside vendors such as guests, customers and suppliers.
Under current Illinois law it is doubtful that an employer/employee waiver will be enforceable.
Waivers are everywhere. If you go to your gym, a daycare center or private school, you will see waivers. If any employer wishes a waiver to be drafted, call Stan on his cell 630-888-2787.
OSHA Updates Guidance On Returning To Work With COVID-19
OSHA issued Guidance 4045-06 2020 which explains the three phases of re-opening as well as most frequently asked questions and answers.
Phase 1 is to make telenet working available when possible and consider accommodations on an individual basis depending on risk, including consideration for elderly individuals.
Phase 2 suggests that businesses continue to make telework available where possible but some business travel can resume with limitations on a number of people in the travel group, social distancing and other accommodations.
Phase 3 businesses resume unrestricted staffing at work sites.
Reopening plans should include hazard assessment, hygiene, social distancing, identification and isolation of sick employees, return to work after illness or exposure policy, engineering controls, workplace flexibility rules, training and a policy of anti-retaliation.
The entire guidance can be viewed at www.osha.gov//publications/OSHA4045
EEOC Updated Covid-19 Guidance on 6/17/2020
The Center for Disease Control (“CDC”) said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace? (6/17/20)
No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.
The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.
NLRB Issues Joint Employer Final Rule
The National Labor Relations Board issued its final rule on February 26, 2020, governing joint-employer status under the National Labor Relations Act. The final rule restores the joint-employer standard that the Board applied for several decades prior to the 2015 decision in Browning-Ferris, but with the greater precision, clarity, and detail that rulemaking allows. As a result, the final rule provides clear guidance in this significant area of the law.
To be a joint employer under the final rule, a business must possess and exercise substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees. The final rule defines key terms, including what are considered “essential terms and conditions of employment,” and what does, and what does not, constitute “direct and immediate control” as to each of these essential employment terms. The final rule also defines what constitutes “substantial” direct and immediate control and makes clear that control exercised on a sporadic, isolated, or de minimis basis is not “substantial.”
Evidence of indirect and/or contractually reserved control over essential employment terms may be a consideration for finding joint-employer status under the final rule, but it cannot give rise to such status without substantial direct and immediate control. Importantly, the final rule also makes clear that the routine elements of an arm’s-length contract cannot turn a contractor into a joint employer.
The joint-employer standard under the NLRA is a matter of consequence because it determines whether a business is an employer of employees directly employed by another employer altogether. If two entities are joint employers, both must bargain with the union that represents the jointly employed employees, both are potentially liable for unfair labor practices committed by the other, and both are subject to union picketing or other economic pressure if there is a labor dispute.
In announcing the final rule, NLRB Chairman John F. Ring stated, “This final rule gives our joint-employer standard the clarity, stability, and predictability that is essential to any successful labor-management relationship and vital to our national economy.” He added, “With the completion of today’s rule, employers will now have certainty in structuring their business relationships, employees will have a better understanding of their employment circumstances, and unions will have clarity regarding with whom they have a collective-bargaining relationship.”The NLRB issued a Notice of Proposed Rulemaking concerning joint-employer status under the NLRA on September 13, 2018. In response to its request for public comments, the Board received and considered nearly 29,000 comments. The final rule was effective April 27, 2020.
NLRB Clarifies What Can Be Included In Non-Solicitation Rules
In a decision issued on May 29, 2020 in Wynn Hotels the Board clarifies what constitutes a lawful non-solicitation rule.
A non-solicitation rule prohibits employees from conducting union business during working time. Under two prior decisions held that solicitation for a union, although lawfully prohibited during “working time” is permitted when there is a “brief” interruption of work. The Wynn Board overruled two decisions stating that for seventy-five years “working time is for work.” Accordingly where an employee makes statements to co-worker during working that are intended and understood as an effort to persuade an employee to vote in a particular way in a union election, that employee has engaged in solicitation subject to discipline under an employer’s validly enacted and applied no solicitation rules. The Wynn decision is a departure from the Board appointed by the Obama Administration.
NLRB Restores Longstanding Standard for Employee Discipline In Advance Of A First Contract
The National Labor Relations Board has overruled a 2016 decision that changed an employer’s duty to bargain over discipline with a newly certified union prior to reaching a first collective bargaining agreement. In a decision released on June 23, 2020 in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, the Board reinstates 80 years of precedent that employers have no statutory obligation to bargain before imposing discretionary discipline that is materially consistent with the employer’s established policy or practice.
On August 26, 2016, the Board overturned Total Security Management Illinois 1, LLC, which imposed a new obligation on employers upon commencement of a collective-bargaining relationship. Total Security Management required an employer, with limited exceptions, to provide a union with notice and opportunity to bargain about discretionary elements of an existing disciplinary policy before imposing “serious discipline,” such as suspension, demotion or discharge. The Board’s decision in 800 River Road explains how the pre-discipline bargaining obligation created in 2016 conflicted with prior Supreme Court and Board precedent, misconstrued the Supreme Court’s unilateral-change doctrine with respect to what constitutes a material change in working conditions, and imposed a complicated and burdensome bargaining scheme that was irreconcilable with the general body of law governing statutory bargaining practices.
U.S. Department Of Labor Issues Field Assistance Bulletin (“FAB”) No. 2020-4 on June 26, 2020
as to Family First Coronavirus Response Act (“FFCRA”) Paid Sick Leave
FABs are intended to prepare field offices with enforcement guidance. The FAB provides guidance for Wage and Hour Division (“WHD”) investigators regarding when an employee may take leave under the FFCRA to care for his or her child based on the closure of a summer camp, summer enrichment program, or other summer program for COVID-19 related reasons.
The FFCRA requires covered employers to provide eligible employees with up to two weeks of paid sick leave and up to twelve weeks of expanded family and medical leave, of which up to 10 weeks may be paid (collectively “FFCRA leave”). FFCRA leave may be taken if the employee is unable to work or telework due to a need to care for his or her child whose place of care is closed due to COVID-19 related reasons. 29 C.F.R. § 826.20(a)(v), (b). A “place of care” is a physical location in which care is provided for the employee’s child while the employee works and includes summer camps and summer enrichment programs. Id. § 826.10(a). An employee who requests FFCRA leave must provide the employer information in support of the need for leave either orally or in writing, including an explanation of the reason for leave and a statement that the employee is unable to work because of that reason. Additionally, in the case of leave to care for the employee’s child whose school or place of care is closed, the employee must provide the name of the child, the name of the school or place of care, and a statement that no other suitable person is available to care for the child. Id. § 826.100(e).
An employee who requests leave to care for his or her child based on the closure of a summer camp, summer enrichment program, or other summer program is subject to the same requirements described above and should provide the name of the specific summer camp or program that would have been the place of care for the child had it not closed. 29 C.F.R. § 826.100(e)(2). This requirement to name a specific summer camp or program may be satisfied if the child, for example, applied to or was enrolled in the summer camp or program before it closed, or if the child attended the camp or program in prior summers and was eligible to attend again. There may be other circumstances that show an employee’s child’s enrollment or planned enrollment in a camp or program.
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