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Archive for the ‘Coronavirus – Employment Law Blog’ Category

Statute of Limitations Tolled in California Amid Pandemic

Posted on: August 3rd, 2020

By: Matthew Jones

In response to the COVID-19 pandemic, California’s Governor Gavin Newsom issued a “state of emergency” for the entire State. In response, the California Judicial Council adopted several Emergency Rules to implement during the pandemic. In particular, Rule 9 states that all statute of limitations for civil causes of action are tolled from April 6, 2020 until 90 days after the state of emergency related to COVID-19 is lifted by the Governor. Therefore, if a party’s claim would have expired pursuant to the applicable statute of limitations during this timeframe, such claims are still very much alive. In regard to those claims, there is currently no deadline to file them since the “state of emergency” has yet to be lifted by the Governor. Once lifted, claimants will have six months to file their respective claims.

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Pennsylvania Offers Certain Employers Help with Hazard Pay

Posted on: July 23rd, 2020

By: Justin Boron

Last week, the governor made $50 million available to businesses, health care non-profits, public transit agencies, and certain economic development organizations to cover hazard pay for ‘front line’ employees exposed in life-sustaining industries exposed to COVID-19 risks. The payments must go toward paying employees in certain industries, including healthcare, food manufacturing, food retail, childcare, janitorial, transit, and security services.

The hazard pay is a $3/hour raise on the employee’s regular pay rate paid during the ten-week period from August 16, 2020 to October 24, 2020. It also must be used to supplement—rather than supplant—any eligible overtime, benefits, existing employer-paid, hazard pay, or any scheduled increases to current compensation. The funding also may be used only to pay direct, full-time and part-time employees earning less than $20/hour, excluding fringe benefits and overtime.

Eligible businesses must apply online with the Department of Community and Economic Development.  The amount of funding is limited to $1,200 per full-time equivalent employee for up to 500 employees per location.

Employers relying on this program will need to be careful to assimilate the hazard pay correctly into their pay system to ensure compliance with wage-and-hour regulations. One question left unanswered is whether the adjusted regular rate that includes hazard pay should be used for calculating the overtime rate. It’s likely that additional guidance will be issued, so employers using a hazard pay grant will need to track updates.

If you have questions or would like more information, please contact Justin Boron at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

New Jersey and COVID-19: What Businesses Need To Know About Reopening Plans

Posted on: July 13th, 2020

By: Ashley Hobson

New Jersey has been one of the most proactive and reactive states amidst the COVID-19 pandemic. As of the publication of this Blog, the State has only entered into the second stage of its reopening, which still excludes indoor dining and attendance at bars, indoor exercise at gyms and other fitness studios, and attendance at nightclubs.

As the state continues to slowly reopen its doors, employers must be keenly aware of the many regulations imposed on newly reopened facilities. Not only are New Jersey businesses advised to follow CDC and OSHA Guidelines in reopening their businesses, they must follow guidelines imposed by the state.  Despite the initial closure of many retail operations, on April 15, 2020, Executive Order No. 122 provided a short, but comprehensive list of cleaning requirements for business that remained open and those that would eventually reopen. The guidelines include, but are not limited to, routine cleaning and disinfecting of highly touched areas, maintaining routine cleaning procedures in areas that are not highly touched, and ensuring there are enough workers to implement the cleaning protocols.

As employees remain cautious about a return to work, many employees across the state, however, remain unable to return to their positions because their employers can only reopen as a part of the 3rd stage of Governor Phil Murphy’s plan.  As a result, the current employment rate increased to 15.2% in May 2020, which represents a drastic increase from 3.3% in the prior year.

To continue to prepare for the growing number of the unemployed, on July 1, 2020, New Jersey’s Department of Labor expanded the number of eligible weeks for a claimant by 20 weeks. The additional 20 weeks will begin after the claimant has exhausted the initial 26 weeks of the state’s unemployment and the 13 weeks of the federal Pandemic Emergency Unemployment Compensation (“PEUC”).

In addition to the additional state benefits, the Department of Labor and Workforce Development announced that eligible workers will be able to receive a larger percentage of their wages under the Temporary Disability Insurance and Family Leave Insurance programs. The changes to the legislation will provide:

  • Workers with up to 12 consecutive weeks of Family Leave Insurance or 56 days of intermittent days and
  • Increase of the maximum benefit amount to 85% of the employee’s average weekly wage with a maximum of $881 per week.

The increased benefit amount and time adds to the growing list of protections under New Jersey’s ever-expanding protections for the employed and unemployed. It will remain to be seen if additional expansions will be announced after the expiration of the additional 20 weeks of unemployment compensation and if the state will also increase the benefit amount as the unemployment rate continues to hover in the double digits.

All of these new changes remind employers that they must remain vigilant in understanding their obligations during these very unusual times.  Of course, if you have any questions, please contact one of our New Jersey Labor & Employment team members.

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

OSHA Issues Guidance On Reopening for Non-Essential Businesses

Posted on: June 24th, 2020

By: Hillary Freesmeier

The Occupational Safety and Health Administration, better known as OSHA, has recently released its Guidance on Returning to Work for those businesses that have been deemed “non-essential” during the COVID-19 pandemic.

The Guidance directs a Three Phase approach to reopening and identifies several categories employers should address in their reopening plans. OSHA continues to encourage employers to consider ways in which to utilize workplace flexibility, such as teleworking, and alternative business operations to provide goods and services to customers, such as curbside pickup.

During Phase 1, employers should consider allowing employees to telework when possible and feasible. For employees returning to the workplace, employers should consider limiting the number of people in the workplace and maintain strict social distancing practices. Flexibilities should also be offered for high risk workers and for those whose household members are considered to be at high risk. Non-essential business travel should be limited.

During Phase 2, employers should continue to make teleworking available where possible, but can allow non-essential business travel to resume. Restrictions on the number of people in the workplace can be eased, but moderate to strict social distancing should be maintained. Employers should also continue to accommodate vulnerable workers as they did in Phase 1.

During Phase 3, businesses may resume unrestricted staffing.

Employers should also develop and implement policies and procedures for preventing, monitoring, and responding to any possible emergence or resurgence of COVID-19 in their workplace or community.

All reopening plans should address:

  • Hazard assessment, which should include practices and procedures to determine when, where, how, and to what sources of COVID-19 employees are likely to be exposed to in the workplace;
  • Hygiene, including practices for hand washing, cleaning, and disinfection;
  • Social distancing;
  • Identification and isolation of sick employees, including employee self-monitoring, screening, and isolation procedures;
  • Returning to work after an employee recovers from COVID-19 or has completed a self-quarantine after exposure to a person with COVID-19;
  • Controls for safe work practices, including providing for personal protective equipment based on your hazard assessment results;
  • Workplace flexibility for teleworking and sick leave;
  • Training to ensure employees know how to identify the signs, symptoms, and risk factors associated with COVID-19 and to prevent the spread in the workplace;
  • Anti-retaliation for those who adhere to guidelines or raise workplace safety concerns.

The Guidance also provides that employers may:

  • Conduct worksite COVID-19 testing if done in a transparent, non-retaliatory manner, and
  • Take worksite temperature checks or other health screenings, such as temperature/symptom screening, self-checks, self-questionnaires, etc.; however, employers should ensure these are conducted in a confidential manner as required by the Americans with Disabilities Act
    • Be aware that if you decide to record these results, these records may qualify as medical records under the Access to Employee Exposure and Medical Records standard, which would require employers to retain the results for 30 years and follow confidentiality standards. However, employers may take employee temperature in real time and forgo maintaining records of the results.

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

OSHA Issues Updated Guidance On When Employers Must Record COVID-19 Cases

Posted on: June 8th, 2020

By: Elizabeth Fellmeth

In OSHA’s original guidance from April 2020, the agency acknowledged the difficulty in determining whether a COVID-19 case was “work-related” due to possible employee infections from outside the workplace.  Most employers did not have a reporting obligation unless the employer had “objective evidence” that the COVID-19 case was work-related.  Under the new guidance set forth below, OSHA confirms COVID-19 is a recordable illness, and all employers – including non-health care employers – are expected to investigate COVID-19 cases and make a determination of work-relatedness.

OSHA’s COVID Recordability Test

A COVID-19 case must be recorded if:

  1. The case is a confirmed case of COVID-19 as defined by the Center for Disease Control and Prevention (CDC)[1]
  2. The case is work-related; and
  3. The case results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.

If the employee meets these three requirements, the COVID-19 case should be recorded on the employer’s OSHA 300 log.  A COVID-19 case should also be coded as a respiratory illness.  In accordance with existing regulations, the only employers that are exempt from maintaining such records are those with 10 or fewer employees or certain low-risk industries.[2]

The key issue for an employer in assessing a COVID-19 case is determining whether it is “work-related.” OSHA’s new guidance indicates it will consider the following factors in determining whether an employer has made a reasonable determination on this issue:

  1. The reasonableness of the employer’s investigation into work-relatedness. 

Under this new standard, it would be reasonable for an employer to engage in the following steps upon learning of the employee’s COVID-19 illness:

  • Ask the employee how he or she believes the virus was contracted;
  • Discuss with the employee activities at work and outside of work that may have led to the illness; and
  • Review the employee’s work environment for potential exposure.

OSHA also notes that “due weight” should be given to the opinion of a medical provider or a public health authority in making a determination.  With that said, the employer is not expected to undertake extensive medical inquires.

  1. The evidence available to the employer.

This will include the information reasonably available to the employer at the time it made the decision about work-relatedness.  However, it can be changed later when the employer learns additional information that may impact the determination.

  1. The evidence that a COVID-19 illness was contracted at work.

The new guidance outlines some evidence that weigh in favor or against work-relatedness:

  • Evidence that may weigh in favor of work-relatedness includes:
    • Several cases developing among workers who work closely together and there is not an alternative explanation; and
    • An employee testing positive shortly after lengthy, close exposure to a customer or coworker who has a confirmed case and there is not an alternative explanation.
  • Evidence that may weigh against work-relatedness includes:
    • A worker who tests positive is the only worker in his or her vicinity to contract the virus and his or her job duties do not involve frequent contact with the public; and
    • A worker who contracts COVID-19 has close contact with a family member or close friend who is not a coworker who has the virus.

In summary, it is imperative that employers conduct a reasonable and objective evaluation for work-relatedness when assessing COVID-19 cases in the workplace.


[1] The CDC defines a confirmed case as an individual who tests positive for SARS-CoV-2, the virus that causes COVID-19.

[2] https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904SubpartBAppA