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Employers nationwide who underwent temporary layoffs, furloughs and/or employee schedule reductions due to the coronavirus pandemic must be on the lookout for a new wave of federal WARN Act notices that are likely coming due this Fall. Additional notices may be required for covered employers under who, according to the federal WARN Act, engaged in certain employment decisions that have lasted longer than 6 months and result in “employment loss” for full time employees, which is broadly defined.
On August 3, 2020, the Federal District Court for the Southern District of New York determined that the Department of Labor (DOL) overstepped its authority with respect to certain key regulations promulgated under the Families First Coronavirus Relief Act (FFCRA). The State of New York sued the DOL in federal court arguing the DOL’s interpretation of the FFCRA unlawfully narrowed workers’ eligibility for leave provided under FFCRA. The court sided with New York and vacated the portions of the Final Rule related to: (1) the “work-availability” requirement; (2) the definition of “health care provider;” (3) the provisions relating to intermittent leave; and (4) the documentation requirements. For now, this decision only impacts the Southern District of New York, as we wait to see if the DOL will appeal to the Second Circuit or revise portions of the Final Rule.
New York, New Jersey, Connecticut and Pennsylvania recently announced travel restrictions for individuals entering the respective states to continue efforts to slow the transmission of COVID-19. Individuals traveling from states with high COVID-19 infection rates must quarantine for 14 days upon arrival.
On June 26, 2020, Philadelphia Mayor Jim Kenney signed the Essential Workers Protection Act which prohibits employers from retaliating against employees who raise concerns about a business’s COVID-19 response plan. The new ordinance applies to all employers in Philadelphia and protects employees who make a good faith communication based on job duties that discloses information that may evidence a violation of a COVID-19 public health order. Importantly, the ordinance imposes a rebuttable presumption that an employer has retaliated against a whistleblowing employee if any adverse employment action is taken against them within 90 days of the employee’s protected disclosure.
On June 23, 2020, the National Labor Relations Board (NLRB) upheld an employer's right to unilaterally discipline employees without any obligation to bargain about the decision with a newly-elected union if the parties have not yet entered into a collective bargaining agreement ("CBA"). 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (June 23, 2020) (Care One).