On July 27, 2020, due to the COVID-19 pandemic, Chile enacted legislation for parents on parental leave and for parents and caregivers of children born in or after 2013 (i.e., seven years of age or younger). Specifically, the law (i) provides parents with an extension of up to 90 days of additional parental leave benefits and (ii) allows eligible parents and caregivers to suspend their employment contract with employers in order to provide childcare and receive unemployment benefits.

Parental Leave Extension Due to COVID-19

Benefit Duration and Eligibility: The law allows employees whose parental leave expired between March 18, 2020 and July 27, 2020 (i.e., the law’s effective date), to extend their parental leave for an initial 30-day period. Thereafter, employees may extend their leave two times (i.e., for a maximum of 90 days), provided that Chile remains in a constitutional state of emergency because of COVID-19 and the law has not been repealed.

Benefit Payments: During the extended leave, eligible employees will receive the same amount of paid parental leave benefits that they received during their initial period of parental leave. The leave is paid either by a private insurer (i.e., las Instituciones de Salud Previsional (“ISAPREs”)) or, if not insured by ISAPRE, through Chile’s national health care system, el Fondo Nacional de Salud (“FONASA”). If both parents made use of the parental leave, one parent (but not both) may apply for the extension of benefits; the mother decides who will take the extended leave.

Suspending the Employment Contract Due to COVID-19 Childcare Obligations

Benefit Duration and Eligibility: The law permits eligible parents and caregivers who wish to be enrolled in unemployment insurance (and are not, for example, eligible for parental leave) to request a suspension of their employment contracts in order to (i) receive unemployment benefits and (ii) care for their child(ren). According to the law, an employee’s option to suspend an employment contract will continue as long as a child’s daycare, kindergarten or school remains closed due to COVID-19. Only one individual per household may receive this benefit.

Application Process: The law requires employees to submit an application for benefits to their employer, which the employer then must submit to the administrator of unemployment benefits in Chile, la Sociedad Administradora de Fondos de Cesantía de Chile (“AFC”). The AFC then will determine whether the employee is eligible for benefits.

Employer Requirements: The law requires employers to continue making social security and pension contributions on behalf of employees whose contracts have been suspended. In addition, employers may not terminate employees who are eligible for this benefit but choose not to apply if such employees take time off to care for a child aged seven years or younger.

Epstein Becker & Green continues to monitor the global impact of the COVID-19 pandemic on employers, and we will provide updates as new guidelines and government directives are announced.

USCIS Will Increase Filing Fees as of October 2, 2020

On July 31, 2020, the U.S. Citizenship and Immigration Service (“USCIS”) announced it will increase filing fees effective October 2, 2020. The fee increases will impact U.S. employers that hire foreign national workers by adding to the cost of sponsoring employment. The increases most applicable to U.S. employers are:

  • H-1B sponsorship: Fee raised an additional $95.
  • L-1 sponsorship: Fee raised an additional $345.
  • O-1 sponsorship: Fee raised an additional $245.
  • TN, H-1B1, and E-3 sponsorship: Fee raised an additional $235.
  • EAD application: Fee raised an additional $140.

State Department Provides Further Guidance Regarding Exceptions to the June 24, 2020, Presidential Proclamation Suspending New H-1B, H-2B, J-1, and L-1 Visa Issuance

Last month, our office detailed President Trump’s Proclamation suspending visa issuance to all new H-1B, H-2B, J-1, and L-1 visa applicants, including their family derivatives. That same proclamation provided several exceptions where these visas can still be issued by U.S. Embassies and Consulates if they meet the requirements under these exceptions.

On July 30, 2020, the State Department published further guidance regarding the “national interests” category exception. In the original Proclamation on June 24, 2020, the following were identified as what entails a “national interest” exception:

  1. Critical to defense, law enforcement, or diplomacy.
  2. Involved with the provision of medical care to individuals who have contracted COVID-19 and are hospitalized.
  3. Involved with the provision of medical research at U.S. facilities to help combat COVID-19.
  4. Necessary to facilitate the economic recovery of the U.S.

The following summarizes the details in the State Department’s guidance elaborating on its “national interest” exception, as well as the additional information it has provided about the other exceptions to the June 24, 2020, Proclamation:

  • H-1B Exceptions
    • COVID-19 Healthcare Provider or Researcher:  Any health care professional or researcher that will alleviate the effects of the COVID-19 pandemic or will conduct ongoing medical research in an area with a substantial public health benefit (e.g. cancer or communicable disease research).
    • Positions Supporting U.S. Government Agencies:  Any U.S. government agency or entity requiring the H-1B applicant to support its objectives or satisfy a treaty or contractual obligations. This includes H-1B applicants performing research, providing IT support/services, or engaging in other similar projects essential to a U.S. government agency.
    • Was Physically in the U.S. Under H-1B Status:  Any H-1B employee physically in the U.S. on June 24, 2020, and then leaves the U.S. thereafter is allowed to apply for and be issued a new H-1B visa at any U.S. Embassy/Consulate that has jurisdiction over their visa application.
  • H-2B Exceptions
    • Positions Supporting U.S. Government Agencies:  Same requirements as the H-1B exception above under the same title.
    • Was Physically in the U.S. Under H-2B Status:  Any H-2B employee physically in the U.S. on June 24, 2020, and then leaves the U.S. thereafter is allowed to apply for and be issued a new H-2B visa at any U.S. Embassy/Consulate that has jurisdiction over their visa application.
  • J-1 Exceptions
    • Travel by an au pair to provide care for a minor U.S. citizen, permanent resident (i.e. green card holder), or nonimmigrant in lawful status that has particular need (e.g., medical, special education, or sign language).
    • Travel by an au pair that prevents a U.S. citizen, permanent resident, or other nonimmigrant in lawful status from becoming a public health charge or ward of the state.
    • Childcare services provided for a child whose parents are involved with COVID-19 medical care or research.
    • An exchange program conducted pursuant to a valid agreement between a foreign government and any U.S. federal, state, or local government entity that promotes U.S. national interests, provided the agreement was in effect on or prior to June 24, 2020.
    • Interns and trainees on U.S. government agency-sponsored programs (those with a program number beginning with “G-3” on the Form DS-2019).
    • Specialized teachers in accredited educational Institutions with a program number beginning with “G-5” on Form DS-2019.
    • Programs that fulfill critical and time-sensitive foreign policy objectives.
  • L-1 Exceptions
    • COVID-19 Healthcare Provider or Researcher:  Same requirements as the H-1B exception above under the same title.
    • Was Physically in the U.S. Under L-1 Status:            Any L-1 employee physically in the U.S. on June 24, 2020, and then leaves the U.S. thereafter is allowed to apply for and be issued a new L-1 visa at any U.S. Embassy/Consulate that has jurisdiction over their visa application.
  • Family Derivative Exceptions of the Above Visas
    • If a family member spouse or minor child of an H-1B, H-2B, J-1, or L-1 was outside the U.S. or did not have a family derivative visa (i.e., H-4, L-2, or J-2 visa) on the June 24, 2020, Proclamation date—but the main principal H-1B, H-2B, J-1, or L-1  spouse/parent was either in the U.S. under that status or has a valid visa under that status on the June 24, 2020, Proclamation date—then the family derivative beneficiaries are not barred and can apply for their H-4, L-2, or J-2 visas at any U.S. Consulate or Embassy that has jurisdiction over their application. Also, if the main principal falls under any of the above exceptions for H-1B, H-2B, J-1, or L-1, then the spouse and/or minor children all will also fall under those exceptions.
  • H-1B1 and Canadian Exceptions
    • The June 24, 2020, Proclamation does not apply to H-1B1 visa applications for Chile and Singapore nationals.
    • Canadians are visa exempt. Therefore they are not subject to the Proclamation.

Please note the above exceptions are still subject to U.S. Consulate/Embassy closure due to COVID-19. If the any of the above exceptions qualify any H-1B, H-2B, J-1, or L-1 or their family derivative(s) for visa issuance but the U.S. Consulate/Embassy remains closed, then such principal and family members must await opening of that U.S. Consulate/Embassy’s visa operation section before applying for such visa.

Homeland Security and the U.S. Department of Labor Enter into Agreement to Police Employment Sponsorship of Foreign Nationals, While President Trump Signs an Executive Order to Monitor Federal Contracts Using Foreign National Workers

On July 31, 2020, both the U.S. Department of Homeland Security (“DHS”) through its U.S. Citizenship and Immigration Services Agency and the U.S. Department of Labor (“DOL”) entered into a Memorandum of Agreement (“MOA”) where both offices agreed to provide each other with access and shared information pertaining to employment-based immigrant and nonimmigrant petitions. Specifically, the MOA is to review records and data contained within the DOL’s OFLC agency that processes both PERM labor certifications under Form ETA-9089 and labor condition applications (“LCA”) under Form ETA-9035.  The MOA also establishes procedures for how USCIS can refer suspected employer violators to the DOL regarding H-1B sponsorship violations. Based on this announcement, it is even more important to ensure that all H-1B employers are paying their H-1B employees their required wage and are keeping their LCA public access files up-to-date.

In addition, President Trump signed Executive Order 13940, published under 85 FR 47879 on August 6, 2020, directing both the DOL and DHS to review federal contracts to assess any negative impact on U.S. workers of contractors’ use of foreign national workers or offshoring of work. If a negative impact does exist, then the Executive Order allows both departments to recommend appropriate corrective action. Further, the Executive Order requires both the DOL and DHS to take action, within 45 days, “to protect United States workers from any adverse effects on wages and working conditions caused by the employment of H-1B visa holders at job sites (including third-party job sites).” This includes assuring all H-1B employers are adhering to INA section 212(n)(1), which concerns LCA wage and posting requirements.

U.S. Embassies and Consulates May Gradually Reopen Visa Operations

Due to COVID-19, the U.S. State Department suspended most, if not all, visa operations as of March 20, 2020. However, on July 11, 2020, the Department of State via Twitter announced it may begin to resume visa operations in phases, depending on local conditions at U.S. Embassies and Consulates, starting July 15, 2020.

There is no centralized repository of information regarding the status of visa operations in U.S. Embassies or Consulates.  Therefore, anyone looking to apply for visas should monitor the local U.S. Embassy and Consulate’s website at usembassy.gov for updates regarding visa applications. Some U.S. Embassies and Consulates have already begun posting relevant guidance.

Visa applicants who are otherwise eligible to request an exception from the June 24, 2020, Presidential Proclamation suspending visa applications may explore making an online or e-mail request for exception directly with the local U.S. Embassy or Consulate.

The 14-Day Travel Ban from COVID-19 Hotspot Countries Remains in Effect

As of the date of this alert, the Presidential Orders banning travel to the U.S. for foreign nationals who are not U.S. Citizens or Lawful Permanent Residents of the U.S. remains in effect. The Presidential Orders ban travel to the U.S. if a foreign national has traveled to any of the following countries within 14 days of their request to enter the U.S.: China (bar began as of January 31, 2020), Iran (bar began as of February 29, 2020), the Schengen Area (bar began as of March 11, 2020), Ireland and the UK (bar began as of March 14, 2020), and Brazil (bar began as of May 24, 2020).

Travel to the U.S. remains possible if the affected foreign national quarantines in a non-travel-ban country for a minimum of 14 days before traveling to the U.S. Travelers are cautioned, however, to verify various immigration and new COVID-19 related travel requirements for the country they are traveling to.

President Trump Issues Executive Order Affecting Visa Priority Dates for Hong Kong

On July 14, 2020, President Trump issued Executive Order 13936, which removes Hong Kong from participating in the Diversity Visa Program; removes Hong Kong from the Visa Waiver Program as it applies to Guam and the Commonwealth of the Northern Mariana Islands; and moves Hong Kong into the same visa preference category as China. The visa preference category change combining Hong Kong with China is significant because Hong Kong-born nationals are now subject to the same Employment-Based first (“EB-1”), second (“EB-2”), third (“EB-3”), and fifth (“EB-5”) categories as those born in mainland China, which is a category that has historically shown to be highly subscribed and backlogged for a current visa number. Hong Kong-born foreign nationals can expect longer wait times and delays in their employment-based U.S. permanent residency applications.

District Court Issues Nationwide Injunction on Public Charge Regulations Imposed on Both USCIS and the State Department

On July 29, 2020, the U.S. District Court for the Southern District of New York issued an order temporarily enjoining USCIS from enforcing, applying, implementing, or treating as effective its Public Charge Rule for any period during which the declared national COVID-19 health emergency is in effect.

The order states that “a nationwide injunction is both necessary to redress the harms caused by the Rule and appropriate given the strong federal interest in uniformity of the national health and immigration policies at issue here.”

The same court issued a separate order stating that the motion for preliminary injunction also applies to the Department of State to halt is enforcement of the 2018 FAM Revisions to the Public Charge Rule. There, the order notes “a geographically limited injunction would be especially unworkable in a case such as this, where consular officers on foreign soil would have to determine how to apply different rules to different applicants.”

In practical terms, when filing the Form I-485 Adjustment of Status application with USCIS, the Form I-944 is not required at this time. USCIS has removed Form I-944 from its website to conform with the Court’s ruling.

DACA Upheld by the U.S. Supreme Court but DHS Will Not Follow

On June 18, 2020, the U.S. Supreme Court upheld the Deferred Action for Childhood Arrivals (“DACA”) program. In a 5-4 majority opinion issued by Chief Justice Roberts, the Court ruled that DHS’s decision to rescind DACA was arbitrary and capricious under the Administrative Procedures Act (“APA”).  The Court found DHS failed to address the heavy reliance interests by Dreamers and their families within the DACA program, weighing the agency’s termination against the required “sound policies” for government accountability codified under the APA to provide a reasoned explanation for terminating DACA. The Court remanded the issue to DHS to “consider the problem anew.”

However, following the Supreme Court decision, the White House announced it will try to wind down legal protections under DACA and will reject all initial DACA applications while limiting the protection for those renewing their DACA applications to one year, rather than two.

The White House announcement brings uncertainty to DACA applicants. Initial DACA applications filed before the USCIS guidance is issued, if any, run the risk of (1) DHS issuing a new memorandum rescinding DACA; or (2) USCIS rejecting initial applications or accepting them only to deny them later.

While the Supreme Court’s decision is a victory for Dreamers, DACA applicants will continue to face challenges and uncertainties under the Trump Administration as further restrictions or rescission of the DACA program may be attempted in the future.

Philadelphia is making sure employers err on the side of caution when it comes to COVID-19.  As of June 26, 2020, Philadelphia-based employees have additional protections from retaliation through the  unanimously passed the Essential Workers Protection Act (“EWPA” or “Act”), which prohibits retaliation against any employee who speaks out about, or refuses to work due to, the employer’s non-compliance with Pennsylvania and Philadelphia COVID-19 public health orders.  The EWPA applies to all Philadelphia employers, regardless of their size.

Anti-Retaliation

The EWPA’s anti-retaliation protection is two-pronged.  First, employers may not take an adverse employment action (e.g., terminate, reduce pay, adversely change hours, or refuse to employ) against an employee who makes a “protected disclosure.”  A protected disclosure is “a good faith communication” that reveals information that may prove a violation of a state or city COVID-19 public health order.  While the Act does not specify to whom a protected disclosure must be directed, employers should assume that the statue will be broadly construed to cover any employer-known disclosure of a violation of a state or city COVID-19 public health order.  However, a communication is not protected unless it discloses “or demonstrates an intention to disclose” information that relates to a violation of a COVID-19 public health order that could “significantly threaten the health or safety of employees or the public” and that communication was “made for the purpose of remedying such violation.”

Second, employers are prohibited from taking an adverse employment action against an employee who: (1) refuses to work in conditions they reasonably believe violate state or city COVID-19 public health orders; and (2) has notified the employer of that unsafe condition.  Employees may not refuse to work, however, if the employer offers a “reasonable alternative work assignment that does not expose the employee to the unsafe condition,” or the employer proves its compliance with all applicable public health orders.

The EWPA is employee-friendly.  Even employees who “mistakenly” allege noncompliance with a COVID-19 public health order enjoy protection, so long as the allegation was reasonable and made in good faith.  In addition, the EWPA establishes a “rebuttable presumption of retaliation” against an employer if it takes an adverse action against an employee within 90 days of the employee’s exercise of rights thereunder.

Enforcement

Employees have two mechanisms for enforcing their rights under the Act.  First, they can file a complaint with the Philadelphia Department of Labor (“DOL”) using the same procedures that currently exist for violations of the wage theft law.  If there is a violation, the DOL is authorized to seek penalties and fines, as well as order reinstatement and full restitution to the employee for lost wages and benefits.

Second, the EWPA provides employees with a private right of action.  Once administrative remedies are exhausted, employees may sue employers in court for violating the EWPA.  In addition to seeking civil penalties on behalf of the City for each day a violation occurs, successful employees may be awarded reinstatement, back pay, and other compensatory damages, and recover attorney’s fees and costs.  Filing a civil action under the EWPA will not preclude the employee from filing a wrongful termination, discrimination, or other employment law claim based on the same facts under otherwise applicable law.

What Employers Should Do Now

Philadelphia employers should take immediate steps to ensure that their workplaces comply with all Pennsylvania and Philadelphia COVID-19 public health orders.  Employers should put mechanisms in place to investigate all employee concerns raised regarding about workplace safety, and carefully document that investigation process.  In addition, supervisors and Human Resources employees should be informed of the protections offered by the EWPA and be reminded to carefully consider any planned adverse action against an employee who has raised a health or safety concern.  If a planned adverse action could be considered retaliatory, employers should consult with legal counsel before taking such action.  If you have any questions regarding the EWPA, please reach out to the authors or your Epstein Becker & Green, P.C. attorney.

While the country remains focused on the COVID-19 pandemic, U.S. employers cannot ignore the ongoing opioid epidemic or how it may affect their workforces.  On August 5, 2020, the Equal Employment Opportunity Commission (“EEOC”) released new guidance addressing the rights of opioid users in the workplace under the Americans with Disabilities Act (“ADA”).[1]  The two question-and-answer documents clarify that while current illegal drug use is not protected, employees who “are using opioids, are addicted to opioids, or were addicted to opioids in the past, but are not currently using drugs illegally” may be entitled to reasonable accommodations under the ADA.  Although the EEOC’s documents are intended to explain an opioid user’s workplace rights to the employee and their health care professional, the documents also provide helpful information to employers that may be considering taking action against an employee who uses one of these medications.

Guidance for Employees (and Employers!)

In the first document, “Use of Codeine, Oxycodone, and Other Opioids: Information for Employees,” the EEOC clarifies that employers can take adverse employment actions against workers who illegally use opioids, even if the individual has had no performance or safety issues.  Unless required by another federal law (e.g., U.S. Department of Transportation requirements), however, the ADA does not permit disqualifying or terminating an individual who legally uses opioids, including as directed in a Medication Assisted Treatment program (“MAT program”), without the employer first considering if there is a way for the employee to do the job “safely and effectively.”

The EEOC explains that a reasonable accommodation may consist of a different break or work schedule to permit treatment or therapy, a new shift assignment, or a temporary transfer to another position.  These and other reasonable accommodations may even be available for those with an opioid addiction (also called “opioid use disorders”) or a medical condition related to opioid addiction (e.g., post-traumatic stress disorder and major depression).  Additionally, an employee who leaves work to seek treatment for opioid addiction may be entitled to take sick and other accrued leave, unpaid but job-protected federal Family and Medical Leave Act (“FMLA”) leave, or other unpaid leave as a reasonable accommodation.

Importantly, the guidance stresses that the duty to reasonably accommodate does not mean that employers must lower performance standards, eliminate essential job functions, or excuse bad behavior.  Nor are employers prohibited from reducing pay if the accommodation results in less work being performed.  Although the employee need not have a specific accommodation in mind, it is the employee’s responsibility to request a reasonable accommodation for his or her legal opioid use.  The EEOC notes that employers are allowed to ask for documentation from the employee’s health care provider that confirms the legal opioid use or related disability and explains why a reasonable accommodation is necessary.

For those employers with drug testing programs, the EEOC recommends offering employees an opportunity to explain positive test results.

Guidance for Health Care Providers (and Employers!)

The second document, “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed,” is intended to guide medical providers regarding documentation of covered disabilities under the ADA.  In order to help their patients seek a reasonable accommodation, the EEOC recommends medical documentation be written using plain language explaining:

  • The provider’s professional qualifications and details regarding the nature and length of their relationship with the employee;
  • The nature of the employee’s medical condition;
  • The extent to which the employee’s opioid use would limit a “major life activity” (e.g., walking, lifting, sleeping, and/or concentrating) without treatment;
  • The need for a reasonable accommodation; and
  • Suggested accommodations, without overstating the need for any one particular accommodation in case an alternative is necessary.

The EEOC notes that providing employers with flat restrictions such as “no operating heavy machinery” is insufficient.  Instead, medical professionals should help employers determine if the employee poses a “direct threat” by providing relevant medical events or behaviors that could occur on the job (e.g., loss of consciousness), and the probability that such events may occur.  The documentation should also describe “any safety precautions that would reduce the changes the medical event or behavior will occur.”

Putting the Guidance to Work

In light of the EEOC’s guidance, employers should review their substance abuse and drug testing polices and make sure such policies distinguish between legal and illegal opioid use.  Additionally, employers who drug test their employees should consider allowing their workers to explain any positive result.  Employers should also be sure they permit employees receiving treatment for opioid addiction to use available sick and accrued leave, or FMLA leave where applicable.  Please contact Nathaniel Glasser, Garen Dodge, Anastasia A. Regne, or Eric Emanuelson for assistance with questions regarding reasonable accommodations or revisions to substance abuse and drug testing policies.

[1] The EEOC defines “opioids” as including “prescription drugs such as codeine, morphine, oxycodone (OxyContin®, Percodan®, Percocet®), hydrocodone (Vicodin®, Lortab®, Lorcet®), and meperidine (Demerol®), as well as illegal drugs like heroin. They also include buprenorphine (Suboxone® or Subutex®) and methadone, which can be prescribed to treat opioid addiction in a Medication Assisted Treatment (‘MAT’) program.”

 

While much attention is currently focused on whether Congress will extend, in whole or in part, the emergency $600 increase in unemployment insurance benefits (“UI”) that, until July 31, 2020, had been provided by the CARES Act (“Act”), the U.S. Department of Labor (“DOL”) is continuing to address questions about the other expansions of UI benefits under the Act, most recently, in an advisory letter issued on July 21, 2020 by the DOL’s Employment and Training Administration office (“ETA”). Of particular note, the latest ETA advisory letter instructs that an employee who refuses to work because of COVID-19 health or safety concerns nevertheless may be eligible under state law for UI benefits authorized under another provision of the Act—the Pandemic Unemployment Assistance program (“PUA”).

The PUA, which is set to expire on December 31, 2020, provides up to 39 weeks of UI benefits to people not otherwise eligible for regular unemployment compensation (including independent contractors and self-employed individuals). Generally, to qualify for PUA benefits, an individual must be “otherwise able to work and available for work within the meaning of applicable state law, except the individual is unemployed, partially unemployed, or unable or unavailable to work” because of one of the COVID-19-related reasons set forth in the CARES Act. These include when the person is: (i) ill from the virus; (ii) unable to reach their place of employment because they are quarantined; (iii) caring for a household member with the virus; or (iv) the primary caregiver of a child who is at home due to a forced school closure.

The ETA further instructs, however, that a person is considered “available for work under state law if the individual does not limit his or her availability for suitable work.” The key word in this sentence is “suitable,” because, as the ETA explains, numerous states have “suitable work” provisions “that consider work that unreasonably exposes an individual to safety risks to be unsuitable.” Accordingly, if an individual refuses work “that unreasonably exposes him or her to COVID-19” under state rules, the individual is still deemed to be available for “suitable” work and is not disqualified from receiving unemployment compensation, including PUA benefits.

The ETA also advises that an otherwise eligible individual may be entitled to PUA “if he or she were to refuse work that would be considered suitable under state law, but turned the work down for ‘good cause’ under state law.” The ETA, however, does not define “good cause.” Thus, as with the definition of “reasonable” safety concerns, the determination of whether a person has “good cause” to refuse work will turn on applicable state laws and regulations.

On another PUA matter, the ETA clarifies that an individual who becomes unemployed for reasons unrelated to COVID-19, but is currently unable to find another job because businesses are either closed or not hiring as a result of the COVID-19 pandemic, is not eligible for PUA benefits for that reason. To receive PUA benefits, the person would have to be covered by one of the circumstances set forth in the CARES Act (as discussed above), and COVID-19’s general effect on the labor market is not one of them.

As we previously reported, in 2019, the New York City Commission on Human Rights (“Commission”) provided legal enforcement guidance (“Enforcement Guidance”) advising that workplace grooming and appearance policies “that ban, limit, or otherwise restrict natural hair or hairstyles” are a form of race discrimination under the New York City Human Rights Law (“NYCHRL”). Now, the Commission is proposing to amend its rules (“Proposed Rule”) to formalize the Enforcement Guidance. The Proposed Rule states that discrimination based on hair “can function as a proxy for discrimination” based on race, creed, or religion and “constitute a form of unlawful stereotyping.” Of note, in its “Statement of Basis and Purpose of Proposed Rule,” the Commission further suggests that “claims for hair-based discrimination on the basis of disability, gender, age or other protected status” under the NYCHRL may be viable as well.

Employers and other interested parties may submit comments on the Proposed Rule until October 15, 2020, on which date the Commission will hold an online public hearing via Webex on the Proposed Rule.

The Proposed Rule would ban a grooming policy that “restricts or prohibits hair texture, hairstyles, including the use of head coverings, or hair length” associated with a racial group or ethnic group or “associated with an individual’s religious beliefs, observance, or practice.” In additionally, the Proposed Rule forbids disparate (i.e., unequal) treatment, including harassment, based on hair style, length, or texture, and requires employers to seek an accommodation when the policy or practice infringes on an employee’s sincerely-held religious beliefs or practices.

The Proposed Rule provides a limited exception for an employer’s hair-related grooming or appearance policy or practice that is justified by “a legitimate health or safety concern.” The Commission, however, warns that a claim of “customer preference” or “a perception that a person’s hair is ‘unprofessional,’ a ‘distraction,’ or inconsistent with a covered entity’s image” is not a health or safety concern. Further, “[s]peculative health or safety concerns may not be used as a pretext for racial discrimination.” In determining whether a restriction or prohibition constitutes pretext for discrimination or is based on legitimate health or safety concerns, the Commission will consider the following factors, among others:

  • “the nature of” the asserted health or safety concern;
  • whether the employer’s policy or practice is “narrowly tailored” to address the concern;
  • assuming the restriction or prohibition addresses a legitimate health or safety concern, whether less restrictive alternatives are available to address that concern, such as the use of hair nets or ties, other head coverings and “alternative safety equipment;”
    • where the policy or practice implicates a sincerely-held religious belief or practice, the employer must engage in a cooperative dialogue to determine if a reasonable accommodation that would not cause undue hardship is available; and
  • whether the policy or practice “has been applied in a discriminatory manner.”

The proposal includes examples of what would constitute violations, including:

  • An employer’s appearance and grooming policy prohibiting twists, locs, braids, cornrows, Afros, Bantu knots, or fades, which are commonly associated with Black people, or requiring employees to change their hair to conform to the company’s appearance standards, including having to straighten or relax hair;
  • A supervisor telling a Black employee that she cannot be promoted unless she straightens her natural hair;
  • Co-workers taunting an Afro-Caribbean woman as being “unkempt” and “dirty” because she wears her hair in cornrows, and the employer failing to intervene to stop the harassment;
  • Requiring a Native American employee to cut his long, braided hair, which he wears as part of his Navajo identity, or risk losing his job;
  • Denying a Black employee with locs the opportunity to work in a customer-facing role unless he changes his hairstyle or hides his locs;
  • Ordering an employee to restrict, change, or conceal their hairstyle or facial hair, in violation of their religious beliefs, to remain in a public-facing position;
  • Refusing to hire a Black applicant with box braids because her hairstyle does not fit the image the employer is trying to project; and
  • Refusing to retain an employee who converts to or adopts a different faith and begins to wear religious headwear, such as a turban, hijab, or yarmulke, to partly cover or completely cover their hair.

The Proposed Rule would require reasonable accommodations in employment for religious hair textures, hairstyles and hair length. The proposal provides that, after engaging in the cooperative dialogue, an employer may refuse to provide an accommodation if doing so would cause the employer to suffer undue hardship. To meet this standard, however, the employer must show that the accommodation would constitute “a significant difficulty or expense to the employer, which includes an assessment of the identifiable cost of the accommodation, including costs of loss of productivity.” The Proposed Rule expressly states that an employer “may not deny a religious accommodation for a particular hairstyle because of: customer preference; concerns that these styles are a distraction or unprofessional; concerns about company image or reputation; trivial or minor losses of efficiency; or speculative health or safety concerns.” The employer must pay the cost for any accommodation granted, unless doing so would “impose significant difficulty or expense;” and even in that case, the employer still “may not deny an employee the accommodation before offering the employee the option to share the cost, and if still an undue hardship to the employer, to cover the cost of the accommodation themselves.”

Anyone who wishes to comment on the Proposed Rule may do so using one of the following methods:

  • Submit comments to the Commission through the New York City rules website at http://rules.cityofnewyork.us.
  • Email comments to policy@cchr.nyc.gov. (Include a reference in the subject line to “Proposed Rules on Discrimination Based on Hair.”)
  • Mail comments to Office of the Chair, New York City Commission on Human Rights, 22 Reade Street, New York, New York 10007.
  • Fax comments to Zoey Chenitz, Senior Policy Counsel, (646) 500-7330.
  • Speak at the public hearing (for three minutes) by signing up via email to policy@cchr.nyc.gov or sign up during the online hearing on October 15, 2020.

A few days after the hearing, the Commission will post on its website copies of all comments submitted online and all written comments, as well as a summary of the hearing.

As featured in #WorkforceWednesday: California provides a detailed COVID-19 employer playbook, and a federal judge vacated parts of the Department of Labor’s Families First Coronavirus Response Act rule.

 Video: YouTube, Vimeo, MP4, Instagram.

Seeking to prevent San Francisco’s return-to-work program from reigniting a surge of COVID-19 cases, the city’s Board of Supervisors (“Board”) has passed the “Healthy Buildings Ordinance” (“Ordinance”). This temporary emergency measure, which Mayor London Breed signed on July 17, 2020, and which is effective immediately, (i) establishes cleaning and disease prevention standards in tourist hotels and large commercial office buildings; (ii) mandates employee training on these standards and various protections employers must provide for workers as they perform their duties, and (iii) prohibits retaliation against employees “for refusing to perform work under conditions they believe may be unsafe or for reporting such conditions or exercising rights protected by the ordinance.” The Ordinance will expire 61 days from its enactment unless reenacted.

The Board asserts that the Ordinance is necessary to ensure that “hotels and commercial office buildings reopen in the safest manner possible, and as quickly as possible.” However, the Hotel Council of San Francisco and two other industry groups, the California Hotel and Lodging Association and the American Hotel & Lodging Association, have filed a lawsuit to overturn the Ordinance, which they characterize as an “unsafely misguided attempt to create work for hotel employees, namely housekeepers.” The groups allege that the measure “endangers hotel employees and guests and causes significant economic hardships by forcing many hotels to remain closed and to permanently lay off thousands of workers.” They further assert that the Ordinance ignores various San Francisco environmental mandates that “reduce the waste of resources such as water, chemicals, and electricity” tied to greenhouse gas emissions.

Covered Entities

The Ordinance’s mandates apply to: (i) “tourist hotels,” defined as any buildings or sets of buildings containing six or more guest rooms or suites “intended or designated to be used for commercial tourist use by providing accommodation to transient guests on a nightly basis or longer;” and (ii) “large commercial office buildings,” defined as private buildings or sets of buildings consisting of more than 50,000 square feet of office space. The Ordinance excludes from its mandate any buildings or sets of buildings owned by City, state, local, or federal governments. The Ordinance covers an “operator” of such an establishment, which means “any person or business entity that employs or hires Employees directly or indirectly at a Covered Establishment.”

Employee protections under the Ordinance apply to full-time, part-time, casual and on-call employees, and independent contractors and their employees “who perform work” at a covered establishment, “whether employed or hired directly” by the operator of the establishment or by another entity.

Mandated Cleaning Standards

The Ordinance requires the operator of every covered establishment to:

  • Develop and implement written standards “designed to reduce the transmission of COVID-19 and other Contagious Public Health Threats.”
  • Provide hand washing stations on every floor of the establishment.
  • Disinfect porous and, to the extent possible, non-porous surfaces with disinfectants that are “effective against viral pathogens.” Bleach and alcohol solutions must meet San Francisco Department of Health (“DOH”) standards for effective use.
    • Identify “high-contact” “areas, items, and fixtures” with which employees or guests may be expected to have regular physical contact, such as elevators, stairways and restrooms, as well as surfaces (including walls, windows, drapes, floors and rugs) in lobbies, lounges, waiting areas, hallways and employee breakrooms and locker rooms, and clean them at least “multiple times” a day.
    • Designate “dedicated personnel responsible for regularly disinfecting exterior doors,” and assign “a gloved employee” to open any exterior doors that “cannot open automatically or be propped open.”
  • Maintain a compliance log of all cleaning and sanitation performed in compliance with the Ordinance and make it available to the DOH upon its request.
  • Supply personal protective equipment to all employees as needed and personal hand sanitizer to all employees who deal with the public, free of charge.
  • Comply with any DOH recommendation that employees undergo COVID-19 testing, free of charge to the employees, and pay employees for time spent getting tested, “including time required to travel to and from testing sites.”
  • Train employees “in the proper use of cleaning and disinfection products per the product manufacturer’s guidelines and Cal/OSHA safety requirements.” (See discussion below on training.)
  • Post copies of the cleaning standards in areas where employees “regularly receive daily instruction regarding work duties and on bulletin boards where the operator regularly posts official communications with employees.”
    • Translate the standards into any language spoken by at least 20 percent of employees.
    • Upon request, make copies of the cleaning standards available to guests, employees, and employees’ bargaining representative(s).
  • “Expeditiously” provide employees and their bargaining representative(s) with any government guidance, notices, or advisories, if directed to do so by the issuing authority.

Additional Standards for Covered Hotels

  • On a daily basis, clean and disinfect every surface of a guest room, including the restroom, which has been occupied in the preceding 24 hours unless the guest affirmatively requests otherwise, including walls, windows, floors and rugs. Guests may not be offered incentives to decline daily room cleaning.
  • Change bed linens and towels daily.
    • Clean all dirty linens and laundry “at high temperatures and according to the CDC Guidelines for Environmental Infection Control in Health-Care Facilities.”
  • If there is “a reasonable basis to believe” that a COVID-19-infected person may have occupied a guest room, that room may not be occupied until it is deemed safe by the DOH.
  • Install hand sanitizer dispensers at exits and entrances and at numerous other specified high-contact locations throughout the establishment.

Employee Training

Covered employers must provide “comprehensive and ongoing training” to all employees, including independent contractors and their employees, who are “assigned cleaning duties pursuant to this ordinance” on the following matters:

  • “Contagious Public Health Threat” symptoms;
  • How Contagious Public Health Threats are spread;
  • How the spread of such threats can be prevented;
  • The mandates contained in the Ordinance; and
  • Employee “rights and responsibilities” under the Ordinance.

Employees must be paid for time spent in training and the employer must conduct the training in a language in which the employee is “fluent.”

Prohibition on Retaliation

Employees may not interfere with an employee’s exercise of his or her rights under the Ordinance or take any adverse employment action against an employee, including imposing “fees or charges,” because the employee:

  • opposes any practice prohibited by the Ordinance or participates in proceedings related to the Ordinance;
  • seeks to enforce his, her, or their rights or the rights of another employee under the Ordinance; or
  • reports or discloses work conditions or refuses to perform work that the employee “believes poses a personal health risk or a health risk to others because of a failure to adhere to the requirements” of the Ordinance.

Violations and Penalties

A violation of the Ordinance constitutes a “nuisance” under Health Code Section 581. Additionally, the Ordinance grants employees the right to bring a civil action and recover damages and reasonable attorneys’ fees and costs.

 

Featured in #WorkforceWednesday:  As enterprises continue to weigh the decisions and risks related to workplace transition, CLOs play a crucial role in addressing everything from leading the legal team and functions remotely, to the heightened organizational data privacy and security risk or the tax and immigration concerns that have arisen from these employee transitions.

Special guests Lori Lorenzo, Research and Insights Director of Deloitte’s Chief Legal Officer Program at Deloitte Transactions and Business Analytics LLP, and David Garland, Chair of the Employment, Labor & Workforce Management Steering Committee at Epstein Becker Green, discuss the range of issues CLOs are tackling.

You can also read more in a recent article, or learn about how Epstein Becker Green’s alliance with Deloitte Legal provides holistic solutions for CLOs and employers with global workforces.

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On July 27, 2020, Virginia became the first state in the nation to implement workplace safety and health standards for COVID-19.  The Safety and Health Codes Board adopted § 16VAC25-220, an Emergency Temporary Standard for Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19 (the “Temporary Standard”), which is designed to supplement and enhance existing Virginia Occupational Safety and Health (“VOSH”) laws, rules, and regulations that may apply to the prevention and control of COVID-19 in the workplace.  Virginia imposed these standards because the Occupational Safety and Health Administration (“OSHA”), the federal agency responsible for workplace safety, has thus far refused to make its own extensive recommendations mandatory.  Not surprisingly, the Virginia standards borrow heavily from existing OSHA guidance in most areas.

Under the Temporary Standard, Virginia employers are required to assess their workplaces for hazards that could expose employees to COVID-19; categorize their job functions into those that constitute very high, high, medium, or lower risk of exposure; and create policies and procedures that address employees who have symptoms of or test positive for COVID-19, provide for physical distancing in the workplace, and cleaning and sanitizing of the workplace.  Many employers also will be required to create an infectious disease preparedness and response plan, and train their employees on safety procedures.

Our extensive Act Now Advisory on the Temporary Standard can be found here.