Labor & Employment Law Blog

In an effort to provide employers with more tools to make their workplace safe, the EEOC gave the green light on Thursday April 23, 2020, to test employees for COVID-19.  This announcement comes on the heels of guidance issued last week that confirmed that employers may take temperatures and make inquiries of their employees relating to symptoms of COVID-19. 

We recently discussed San Francisco’s efforts to stay On The Cutting Edge Of The Cutting Edge with regard to Paid Sick Leave, but now both San Francisco and San Jose have passed new employee leave ordinances setting the bar even higher.

Employers with less than 500 employees have been wading through the intricacies of the federal Families First Coronavirus Response Act (“FFCRA”) that provides paid sick leave to employees of those companies.  According to Executive Order N-51-20 (the “Order”) issued by Governor Newsom, the FFCRA does not go far enough to protect workers who grow and harvest food, work in food facilities, and deliver food from food facilities. 

In the first of its kind, a class action lawsuit has been filed in Florida District Court alleging Celebrity Cruises ignored the U.S. Centers for Disease Control and other regulators and allowed “business as usual” instead of heeding warnings. The case was brought under the Jones Act. The class could possibly be as large as 10,000 members.

In Anthony v. TRAX International Corp. (April 17, 2020, Case No. 18-15662), the Ninth Circuit held the limitation of using after-acquired evidence to merely mitigate damages did not extend to evidence used to show that an Americans with Disabilities Act (“ADA”) plaintiff is not a qualified individual, an element of a prima facie case of disability discrimination.

We recently discussed the Los Angeles Supplemental Paid Sick Leave Ordinance (“LA SPSLO”), which requires certain employers to provide supplemental paid sick leave benefits to its employees for purposes relating to COVID-19. Following the issuance of this Emergency Order, on April 11, 2020, the Los Angeles Office of Wage Standards issued rules and regulations intended to help affected businesses better understand their responsibilities under the new LA SPSLO. These new regulations provide clarity on the following issues:

In an age discrimination case filed by a federal Department of Veterans Affairs employee, the U.S. Supreme Court held that a federal employee or applicant may establish that an adverse personnel action took place by showing that their age was simply a “motivating factor” in the federal employer’s decision.  Babb v. Wilkie 589 U.S. __ (2020).

On January 31, 2020, the U.S. Citizenship and Immigration Services (USCIS), which operates under the Department of Homeland Security (DHS), announced and made available a new version of Form I-9 (Rev. 10/21/2019), Employment Eligibility Verification.  Employers may begin using the new form as of January 31, 2020 but must use this form exclusively no later than May 1, 2020 for all new employees or where any reverification applies.  The previous version,  which has a revision date of “Rev. 07/17/2017 N,” will be invalid as of April 30, 2020. After April 30, 2020, employers who fail to use the new Form I-9 may be subject to penalties under the Immigration and Nationality Act.

In yet another forum, the novel coronavirus pandemic has disrupted “business as usual.”  The U.S. Equal Opportunity Commission (“EEOC”) confirmed Tuesday that it has largely paused its issuance of key notices that start the clock for workers to sue their employers for discrimination. 

The California Judicial Council, under the leadership of Chief Justice Tani G. Cantil-Sakauye, is the policymaking body of the California courts.  In accordance with an executive order from Governor Gavin Newsom last month, on Monday April 6, 2020 the California Judicial Council approved 11 temporary emergency rules, extending deadlines and providing for remote litigation proceedings.