Handling Political Activity and Expression in the Workplace

The 2020 presidential election, coupled with nationwide civil unrest and a global pandemic, is creating a lot of conversation in employees’ personal and professional lives. In a February 2020 survey, employees reported:

  • 78% discuss politics at work;
  • 47% said the discussion of politics negatively impacted their performance;
  • 33% take in more political news at work; and
  • 36% avoid co-workers based on political ideology.

Clearly, political activity and expression is an increasingly important influence in the workplace. But what can employers do to ensure it does not create a negative work environment?  Keep reading to find out more about the key laws that affect how an employer may handle political activity or expression and some tips for addressing these tricky situations.

First Amendment Myth

Imagine a scenario in which you have a politically active employee who talks passionately about the presidential election, often wears political apparel, and displays political messages in his Zoom backgrounds. Another employee complains about this person, but when the politically active employee’s supervisor counsels him about it, he claims First Amendment protections.   Is the employee correct?

Significantly, the First Amendment applies only to government action (and thus government employers), not to private employers.  Employees of a private employer do not have First Amendment protections to engage in political expression at work, though they may have some protections under other laws, as discussed below.

Public employees do have First Amendment rights, but there are some caveats:

  • The speech must be a matter of public concern; and
  • It depends on a balance of whether the speech interferes with workplace duties, creates a conflict, or undermines public trust and confidence.

Continue Reading

California Passes Bills Expanding Rights to Both Paid and Unpaid Leave

California Assembly Bill 1867 (signed by California Governor Gavin Newsom on September 9, 2020) and Senate Bill 1383 (signed on September 17, 2020) significantly expand the rights of California employees to both paid and unpaid leave.  In addition, and especially as they relate to Senate Bill 1383, these laws will require California employers to promptly revise their policies and procedures when it comes to reviewing employee requests for unpaid leave.

Assembly Bill 1867

To recap, the Families First Coronavirus Response Act (“FFCRA”) provides that employees are entitled to up to 80 hours of paid sick leave for reasons related to COVID-19.  FFCRA, however, applies only to employers with fewer than 500 employees.  Like many ordinances adopted after the passage of FFCRA, AB 1867 attempts to fill the gap left by FFCRA by applying to employers with 500 or more employees.

AB 1867 fills this gap in two ways.  First, it creates new California Labor Code section 248, which mirrors Governor Gavin Newsom’s prior Executive Order N-51-20.  Section 248 requires entities with 500 or more employees to provide their “food sector workers” with up to 80 hours of “COVID-19 food sector supplemental paid sick leave.”  Second, it also creates new Labor Code section 248.1.  This section applies more broadly than section 248 as it requires that employers with 500 or more employees provide all employees with up to 80 hours of “COVID-19 supplemental paid sick leave.” Continue Reading

California Modifies the ABC Test – But It Doesn’t Really Help

Last year, California Governor Gavin Newsom signed Assembly Bill (“AB”) 5, which signaled a seismic shift in the way California employers classify workers as either independent contractors or employees.  On September 4, 2020, Governor Newsom signed AB 2257, which modifies (slightly) some of the rules and provisions of AB 5.

To recap, AB 5 codified the California Supreme Court’s decision in Dynamex.  In Dynamex, the Supreme Court rejected the multifactor test set forth in S.G. Borello & Songs, Inc. v. Department of Industrial Relations for classifying workers and announced a new, more objective standard for determining worker classification for the purposes of the California wage orders.  Under this new standard, the burden is on the hiring entity to establish that the worker is an independent contractor who was not intended to be included within the coverage of the California wage orders.  In order to satisfy this burden, the hiring entity must establish all of the following:  (1) that the worker is free from the control and direction of the hiring entity in connection with the performance of work, (2) that the worker performs work that is outside the usual course of the hiring entity’s business, and (3) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. Continue Reading

Department of Labor Narrows FFCRA Exemption for Health Care Providers and Affirms Guidance Regarding Intermittent Leave

The Department of Labor (DOL) recently modified its guidance regarding leave under the Families First Coronavirus Response Act (FFCRA). These changes pertain most significantly to the applicability of FFCRA leave to employees of health care providers and the intermittent use of FFCRA. The changes – which take effect on September 16, 2020 – are a response, in part, to a recent New York federal district court opinion invalidating some of the DOL’s prior guidance. (See here.)

Here’s what you need to know about the DOL’s new guidance:

Health Care Providers. The DOL narrowed the applicability of the FFCRA exemption for health care providers.  Under the new guidance, not all employees of health care providers are exempt from FFCRA. Only the following employees may be excluded: (1) licensed doctors of medicine, nurse practitioners, chiropractors, dentists, and others permitted to issue FMLA certifications under 29 C.F.R. 825.125; and (2) employees who provide diagnostic, preventive, or treatment services, or “other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” This exemption includes, among others, nurses, medical technicians, and laboratory technicians. We recommend that health care providers seeking to exempt some employees from FFCRA talk to their legal counsel about whether the exemption applies.

The DOL encourages health care providers to minimize use of the exemption to the extent possible in order to prevent the spread of COVID-19. Employers may choose to allow some types of FFCRA leave (e.g., leave for employees with COVID-19 symptoms) and not others (e.g., childcare leave). Continue Reading

BOLI Permanently Expands OFLA for Eligible Working Parents Impacted by COVID-19

On the day that its temporary rule was set to expire, the Oregon Bureau of Labor and Industries (“BOLI”) issued a permanent rule to allow employees to continue to avail themselves of protected “sick child leave” under the Oregon Family Leave Act (“OFLA”) to care for a child whose school or childcare provider has been closed in conjunction with a statewide public health emergency, including COVID-19. We previously blogged about BOLI’s temporary rule here.

Based on public comment received during the permanent rule-making process, as well as the fluid nature of safety protocols with respect to childcare providers and school re-openings, the agency determined that its now permanent rule would benefit from additional, immediate clarifications to other OFLA rules.  Accordingly, BOLI simultaneously issued another set of temporary rules (effective September 14, 2020 through March 12, 2021) of which employers should be aware both with respect to implementing the expanded sick child leave and to the extent they want to provide input during the public comment period.

Under the temporary amendments, BOLI broadly defines “childcare provider” to include any “place of care” or person who cares for a child. “Place of care” includes day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.  The physical location does not have to be solely dedicated to such care.  A person who cares for a child includes nannies, au pairs, babysitters, and individuals who regularly provide childcare at no cost, for example, grandparents, aunts, uncles, or neighbors. Continue Reading

FFCRA Update: DOL Issues New Guidance Regarding Childcare Leave

The DOL recently updated its guidance regarding when childcare leave can be taken under the Families First Coronavirus Response Act (or “FFCRA”).  FFCRA requires most employers to provide employees with up to 12 weeks of protected leave, paid at 2/3rds the employee’s regular rate of pay, up to a maximum of $200 a day (reimbursed in the form of a tax credit), if an employee is unable to work or telework because the employee’s child’s school or place of care is closed for reasons related to COVID-19.

As we start the new school year, many schools are still either partially or fully closed for in-person learning, and the DOL just issued new guidance regarding what it means to be “closed” for purposes of FFCRA leave:

  • If a school has moved to online instruction or a similar model in which children are expected to attend class and/or complete assignments at home, it is still considered “closed” for FFCRA purposes.
  • If a school is operating on an alternative day or similar hybrid basis (e.g., students alternate between days attending school in person and days participating in remote learning), it is considered “closed” for FFCRA purposes only on the days that the child is not permitted to attend school in person and must instead engage in remote learning. (Note that while intermittent FFCRA leave is at the employer’s discretion, this new guidance suggests that FFCRA leave should be made available intermittently for periods of home learning.)
  • If a school gives parents a choice between having their child attend in person or participate in a remote learning program for the fall, the school is not considered “closed” for FFCRA purposes. If parents choose to have their child remain home because, for example, they are worried about their child contracting COVID-19, they are not entitled to paid leave under FFCRA.

We previously blogged about childcare leave under FFCRA here and here.  If you have any questions, please contact us.

Oregon Now Requires Face Coverings in Public and Private Offices

The Oregon Health Authority recently updated the state’s COVID-19 guidance to expand the use of face coverings to public and private offices. Under the new rule, masks, face coverings, or face shields are required at all times for office employees, including in hallways, bathrooms, elevators, lobbies, break rooms, and other common spaces, unless employees are at individual work spaces or in meeting rooms where six feet of distance from other people can be consistently maintained.

This guidance expands upon the face covering requirements we wrote about here, which applied to employees, visitors, and customers of specified covered businesses, such as grocery stores, retail businesses, and restaurants.

In addition, Oregon OSHA has released a draft of a temporary rule regarding employer obligations related to face coverings, social distancing, and sanitation in the workplace. You can read our post about that temporary rule here. OSHA is accepting comments on that rule through the end of August, with an anticipated effective date of September 14.

New York Federal District Court Rules Four Provisions of COVID-19 Paid Leave Rule Invalid

On August 3, 2020, a federal judge in the Southern District of New York held that four provisions of the U.S. Department of Labor’s (DOL) Final Rule (the Final Rule) implementing the Families First Coronavirus Response Act (FFCRA) are invalid.  This ruling is limited for now, as the court did not issue a nation-wide injunction, but its reasoning could be applied in other jurisdictions around the country.  For that reason, employers should be aware that changes to FFCRA obligations may be forthcoming.

As we discussed in a previous post, the FFCRA obligates employers to offer sick leave and expanded family leave to employees who cannot work because of certain reasons related to the pandemic.  At issue here are two major provisions of the FFCRA: Emergency Family and Medical Leave Expansion Act (EFMLEA), which entitles employees to partially paid leave to care for a dependent child due to COVID-19 school or daycare closures, and the Emergency Paid Sick Leave Act (EPSLA), which requires employers to provide paid sick leave to employees who are experiencing one of six qualifying COVID-19-related circumstances.  (See here for additional information.)

After concluding that New York had standing to challenge DOL’s Final Rule, the court considered the validity of four provisions: the work-availability requirement, the definition of health care provider, the prohibition on intermittent leave, and the documentation requirements. Continue Reading

Seattle Municipal Code Protections for Hotel Employees Take Effect

On July 1, 2020, legislation went into effect providing additional protections for certain hotel and motel employees in Seattle.  The legislation was enacted to protect Seattle hotel workers from harassment and discrimination, unsafe workloads, and job insecurity and to provide increased access to medical care.

Hotel Employees Safety Protections

In hotels and motels with 60 or more guest rooms or suites, the hotel employer must take certain steps to prevent hotel worker assault and harassment, including:

  • Providing a panic button to each employee assigned to work in or deliver items to a guest room;
  • Immediately responding when an employee activates the panic button by sending a security guard, hotel representative, or other employee to assist;
  • Posting a notice in each guest room referencing the ordinance to deter assaults; and
  • Developing a written policy against violent or harassing conduct by guests.

If the hotel employer learns that an employee was the victim of violent or harassing conduct, the employer must provide the accused guest with a written notice, take steps to safeguard employees from any future violent or harassing conduct by the guest, reassign the employee to an equivalent or better assignment at the employee’s request or consent, and give the employee up to 16 hours of paid time to seek legal help and/or obtain counseling services. Continue Reading

EEOC Guidance: Employers Cannot Test Employees for COVID-19 Antibodies

The legal landscape continues to shift rapidly during the COVID-19 pandemic.  As we reported here and here, Equal Employment Opportunity Commission (“EEOC”) guidance allows employers to require employee temperature checks, as well as worker testing aimed at detecting COVID-19, even though such testing by an employer would ordinarily raise issues under the Americans with Disabilities Act.  Daily temperature screening can be one tool to help stop the spread of COVID-19, as can be testing for COVID-19 when the circumstances warrant a more aggressive approach.  However, the EEOC has issued further guidance clarifying that while employers may continue to test for COVID-19 itself, employers may not test for COVID-19 antibodies.  The guidance says that antibody tests are not “job related and consistent with business necessity,” and therefore cannot be used as a basis for allowing employees to return to work or as a proxy for COVID-19 immunity.

For specific guidance on COVID-19 testing and workplace safety measures, please contact us.

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