By Jay P. Krupin, Kara M. Maciel, and Eric J. Conn

As we reported in our blog post in November of 2010, hotel housekeepers across the nation launched a concerted program of filing complaints with the Occupational Safety and Health Administration (OSHA) alleging a range of ergonomic and chemical exposure injuries sustained on the job. Government regulators and legislators are now taking action in response to these complaints. We have attached a series of articles discussing the nature of the complaints and the government’s response to them.

Read more on the Hospitality Labor and Employment Law Blog.

By: Jay P. Krupin, Kara M. Maciel, Eric J. Conn

As we reported in our blog post in November of 2010, hotel housekeepers across the nation launched a concerted program of filing complaints with the Occupational Safety and Health Administration (OSHA) alleging a range of ergonomic and chemical exposure injuries sustained on the job. Government regulators and legislators are now taking action in response to these complaints. We have attached a series of articles discussing the nature of the complaints and the government’s response to them.

Specifically, the OSHA complaints were filed in eight cities across the country, including Chicago, Los Angeles, San Francisco, Long Beach, San Antonio, Honolulu and Indianapolis. We understand that similar OSHA actions may occur, or have already begun, in Boston, NYC, DC, Atlanta, Las Vegas, Miami, and Orlando with higher concentrations of hotel properties. This is the largest example of employees of a single private employer filing multi-city OSHA complaints, and it appears to be a coordinated effort with organized labor, UNITE HERE. The housekeepers allege injuries arising from their daily room quotas and argue that cleaning rooms and lifting heavy mattresses lead to accidents and workplace injuries. The complaints also allege that hotel employers are not providing adequate safety training, particularly relating to these ergonomic issues as well as exposure to cleaning chemicals and bloodborne pathogens. The housekeepers recommend several solutions, including changes to fitted sheets, mops and other equipment used to clean a room, as well as a cap on their daily room quota.

The housekeepers’ complaints have met a receptive audience with OSHA and other government entities, and these entities are now beginning to respond. For example, after months of investigation as a direct result of these complaints, OSHA in Indiana has issued a set of Serious Citations to one hotel with fines totaling nearly $55,000. The Citations allege that the hotel and/or one of its contractors responsible for housekeeping, violated several OSHA standards related to training and recordkeeping. At the same time, a bill that which would require hotels to use fitted sheets, mops and long-handled tools, and other potentially burdensome requirements, is quickly making its way through the California legislature (SB 432). Reports indicate that this legislation could cost the industry tens of millions of dollars.

Hospitality employers must be on alert for similar OSHA complaints at their properties, particularly in light of the aggressive new enforcement campaign against employers by the Obama Administration’s OSHA. Since Obama’s Secretary of Labor, Hilda Solis, and Assistant Secretary of Labor for OSHA, David Michaels, have taken the reins at OSHA, enforcement has risen sharply, both in terms of the number of enforcement actions and the size of penalties. The Department of Labor’s budget last year funded 100 new compliance officers, and, tellingly, required OSHA to shift many of its staff who had been working on compliance assistance programs into enforcement. As a result, last year, OSHA nearly tripled the number of significant cases (citations including fines of $100,000 or more), and projects that it will see another 7% increase in the number of inspections in conducts in 2011. OSHA also recently unveiled a new “Severe Violator Enforcement Program,” under which OSHA will target employers that it believes disregard their obligations through willful, repeated, or multiple violations. This will lead to significant increases in OSHA inspections at workplaces with a history of health and safety violations, and also will drive a nationwide inspection program of related workplaces. Thus, if OSHA believes that the violation at a particular hotel is indicative of a pattern of non-compliance, it will launch investigations into other hotels owned or operated by the same company. This company “profiling” should put all hotel operators on high alert.

In light of the significant increase in OSHA enforcement and the concerted efforts of organized labor to force OSHA’s hand, it is important for hotels to take worker safety issues seriously and to have a plan in place should OSHA launch an investigation into their respective properties. Additionally, because OSHA investigators are more likely to approach local managers at each property, it is important that these managers receive proper training on OSHA regulations and how to comply with an OSHA investigation. Hotels should take the necessary steps now to ensure compliance with applicable federal and state requirements through attorney-client self-audits.  

By Jay P. Krupin and Kara M. Maciel

Last week, on November 9, 2010, housekeepers employed by Hyatt Hotels filed complaints with OSHA alleging injuries sustained on the job. The complaints were filed in eight cities across the country, including Chicago, Los Angeles, San Francisco, Long Beach, San Antonio, Honolulu and Indianapolis.  Similar OSHA actions may occur in Boston, NYC, DC, Atlanta, Las Vegas, Miami, and Orlando with higher concentrations of hotel properties. This is the first time that employees of a single private employer have filed multi-city OSHA complaints, and it appears to be a coordinated effort with organized labor, UNITE HERE.

Read more on the Hospitality Labor and Employment Law Blog.

By: Jay P. Krupin and Kara M. Maciel

Last week, on November 9, 2010, housekeepers employed by Hyatt Hotels filed complaints with OSHA alleging injuries sustained on the job. The complaints were filed in eight cities across the country, including Chicago, Los Angeles, San Francisco, Long Beach, San Antonio, Honolulu and Indianapolis.  Similar OSHA actions may occur in Boston, NYC, DC, Atlanta, Las Vegas, Miami, and Orlando with higher concentrations of hotel properties. This is the first time that employees of a single private employer have filed multi-city OSHA complaints, and it appears to be a coordinated effort with organized labor, UNITE HERE.

The housekeepers allege injuries arising from their daily room quotas and argue that cleaning rooms and lifting heavy mattresses lead to accidents and workplace injuries. The complaints allege that workers are discouraged from reporting injuries due to fear of retaliation and that monetary rewards for having a safe workplace discourages complaints. The housekeepers recommend several solutions, including changes to fitted sheets, mops and other equipment used to clean a room, as well as a cap on their daily room quota.

Hospitality employers must be on alert of similar OSHA complaints at its properties. OSHA has begun an aggressive enforcement campaign against employers when it unveiled its “Severe Violator Enforcement Program” (“SVEP”) earlier this year. Under SVEP, OSHA will target those employers who disregard their obligations through willful, repeated, or multiple violations. This will lead to a significant increase in OSHA inspections at workplaces that not only have a history of health and safety violations, but also allows for nationwide inspections of related workplaces. Thus, if OSHA believes that the violation at a particular hotel is indicative of a pattern of non-compliance, then it will launch investigations into other hotels owned or operated by the same company. This company “profiling” should put all hotels on high alert.

In light of the significant penalties and the new focus on enforcement from the government and labor unions, it is important for hotels to take worker safety issues seriously and to have a plan in place should OSHA launch an investigation into their respective properties. Additionally, because OSHA investigators are more likely to approach local managers at each property, it is important that these managers receive proper training on OSHA regulations and how to comply with an OSHA investigation.

Accordingly, hotels should take the necessary steps now to ensure compliance with applicable federal and state requirements through attorney-client self-audits.

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.

 

On June 7, 2020, Governor Lamont issued Sector Rules that Connecticut businesses must follow in order to open during Phase 2 of the state’s reopening plan.

Phase 2 (which began on June 17, 2020) includes the following sectors:

  • Amusement parks
  • Hotels/lodging
  • Restaurants (indoor)
  • Museums, zoos and aquariums
  • Indoor recreation (e.g. bowling, movie theaters etc.)
  • Libraries
  • Outdoor events
  • Personal services (e.g. nail salons, tattoo parlors, etc.)
  • Sports and fitness facilities (e.g. gyms, fitness centers, pools, etc.)
  • Film, television and digital media production

Self-Certification Required

Each Phase 2 Business is required to self-certify that it can meet the Sector Rules applicable to its industry prior to opening on June 17.  The certification process is online and can be accessed here.

Once the certification process is complete, businesses can opt to post a “Reopen CT” badge on-site and on social media to advertise adherence to rules and build customer confidence.

Sector Rules Common to Phase 2 Businesses

The following Sector Rules apply to Phase 2 Businesses:

  • Capacity limit of 50% for most businesses to reopen
  • Strict cleaning and disinfection protocols in all settings
  • Employers should encourage those who can work from home to continue to do so
  • Those in high-risk groups or over the age of 65 who can stay home should continue to be permitted to do so;
  • Employees are required to wear face masks or other cloth face-covering that covers the nose and mouth, unless doing so would be contrary to his or her health and safety due to medical conditions (see our prior guidance regarding use of face masks for Essential Employers, which remains in effect)
  • Social and recreational gatherings are limited to those permitted by the Governor’s orders, which most recently provide that effective July 3, 2020, indoor private gatherings are limited to 25 people, and outdoor private gatherings are limited to 100 people (there is a one-time exception for graduations for up to 150 people). At outdoor organized gatherings (e.g. fireworks, concert in a municipal park) there must be 15 feet of space between blankets and a limit of 500 people. Outdoor event venues (e.g. amphitheaters, race tracks) are limited to 25% of the fire capacity and distancing must be followed.

Rules Applicable to Reopening Readiness, Logs, Scheduling and Training

All Phase 2 Businesses that plan to reopen must provide adequate administration and training protocols, as detailed in each set of rules for the various sectors, many of which contain similar requirements, such as:

  • Sharing the applicable Sector Rules with employees
  • Appointing a program administrator who will be accountable for implementing the rules
  • Estimating the required PPE needed for its employees and procuring such materials
  • Instituting a training program and ensure that employees participate in the program prior to reopening. The training must include:
    • Protocols on how to clean and use cleaning products and disinfectants safely
    • If businesses contract on-site cleaning duties, it is the business’ responsibility to ensure that the subcontractor is also appropriately trained
    • Training must be provided during working hours and at no cost to the employee
    • Weekly refreshers on the training are required
  • Maintaining a log of employees on the premises over time to support contact tracing (hotels must also keep a guest log to support contract tracing)
  • Developing cleaning plans and checklists that incorporate the rules and ensure that it is clear which employees are responsible for implementing the plans
  • Completing a thorough cleaning of the facility prior to reopening
  • Staggering shift start/stop times, break times, and lunchtime to minimize contact across employees
  • Employers are responsible for enforcing capacity limits

Personal Protection Equipment (PPE)

Phase 2 businesses must also follow the rules regarding PPE:

For Employees

Employers must provide PPE for employees

  • All employees are required to wear a face mask or other cloth face-covering that completely covers the nose and mouth, unless doing so would be contrary to his or her health or safety due to medical conditions
  • Employees may utilize their own cloth face-covering instead of the one provided by their employer
  • Gloves and eye protection are required when using cleaning chemicals. Latex free gloves are also required for restaurant table servers, and all restaurant employees shall follow FDA guidelines on usage of gloves where appropriate
  •  If businesses do not have adequate PPE, they cannot open

PPE for Customers

  • Customers are required to bring and wear masks or cloth face-coverings that completely cover the nose and mouth unless doing so would be contrary to his or her health or safety due to a medical condition

Rules Regarding Hygiene, Cleaning and Disinfecting

Phase 2 businesses must adhere to strict cleaning and disinfecting rules, as follows:

  • Where possible, hand sanitizer shall be made available at entrance points and common areas
  • Employers must require that employees wash their hands routinely using soap and water for at least 20 seconds
  • Where possible, employers should make cleaning, disinfectant products and/or disposable disinfectant wipes available near commonly used surfaces
  • Bathrooms must be cleaned and disinfected frequently. Businesses should implement and use a cleaning log for tracking. Clean multiple times per day and hourly during busy times
  • Clean and disinfect common areas, high transit areas and frequently touched surfaces on an ongoing basis (at least daily) and more frequently if used more often. Clean and disinfect shared objects between use
  • Businesses shall follow federal guidelines (CDC, EPA) on what specific products shall be used and how. CDC and EPA guidance is available here and here.

Rules Regarding Health of Employees

Daily Health Check

Phase 2 Businesses must ask employees who return to work on-premises to confirm that they have not experienced COVID-19 symptoms, as defined by the CDC, including cough, shortness of breath or any two of the following symptoms:

  • Fever
  • Chills
  • Repeated shaking with chills
  • Muscle pain
  • Headache
  • Sore throat
  • New loss of taste or smell

In the event of a positive COVID-19 Test:

  • Employees should inform their employers, and follow state testing and contract tracing protocols. Connecticut generally follows the CDC recommended protocols for testing and contract tracing (which are consolidated here), and has developed a statewide voluntary and confidential contact tracing platform, explained here.

Leave

  • Employers shall adhere to federal guidance pertaining to paid leave for employees and provide this guidance to employees, available here. Employers shall post the Families First Coronavirus Response Act (FFCRA) DOL poster, available here.

Whistleblower Protection

  • Employers may not retaliate against workers for raising concerns about COVID-19 related safety and health concerns

Additional Rules by Sector

The sector-specific rules contain additional detailed information and requirements regarding physical distancing, facility capacity, signage, PPE, and more, and are set forth below, along with explanations regarding the capacity limits for each sector.

Amusement Parks

Amusement Parks can reopen at up to 25% capacity, and shall calculate maximum safe occupancy for each ride area to allow for social distancing between groups and to comply with state social-gathering size guidance (set forth above), such as leaving empty seats or rows. Amusement Parks are required to leverage signage, floor markings, and enhanced presence of attendants and other personnel to enforce such occupancy rate. All self-service stations and refillable cup programs must be disabled. Parking staff must direct customers to park in every other spot.  Lines for rides must be rearranged to prevent patrons from having to pass face-to-face at a distance of less than 6 feet.  If applicable, every second or third locker must be disabled.  If independent showers are available, they must be attended and sanitized after each use. Parks should encourage on-line ticket purchase to the greatest extent possible and place markers in ticket lines 10 feet apart to account for families waiting in line together. Seats and restraints on rides must be cleaned frequently.

Additional Sector Rules specific to Amusement Parks are available here.

Hotels and Lodging

Hotels can reopen at 50% capacity to guests with reservations.  Hotels must limit visitors and service providers on site. Concierge service should be provided by phone only.  Room deliveries are to be bagged and left at the front door with a knock to notify guests. Employees are prohibited from entering guest rooms while guests are present (e.g. no in-room bellhop). Non-essential amenities such as water, coffee, mini-bars and ice machines should be removed, and non-essential services, such as valet and coat check, should be closed.  Common areas should be rearranged for social distancing. “Passive Decontamination” of 24 hours after guest check out is recommended. Discrete work zones for cleaning crews should be created to minimize overlap. Ventilation systems should increase percentage of outdoor air where possible.  Management and housekeeping staff shall meet to discuss enhanced cleaning procedures, such as allowing extra time to conduct thorough cleaning and disinfection of rooms between guests. Employers must be sure to compensate housekeepers for time spent on the required cleaning and related precautions.   Keycards should be disinfected at check-in and check-out.

Additional Sector Rules specific to hotels are available here.

Restaurants

Restaurants may open with indoor seating at 50% of an establishment’s regular indoor seating capacity. Outdoor seating is still encouraged as long as the restaurant does not exceed its regular operating capacity and physical distancing can be maintained.  Discreet work zones should be set up for servers to avoid overlap.  Buffett and self-service stands must be closed. Indoor waiting areas must be closed.  Tables should be rearranged to maintain at least 6 feet of space between customer groups, unless barriers that extend 30 inches above table height are installed between table/booths. Non-essential amenities, such as dance floors and pool tables, should be closed. Silverware should be rolled or packaged. The use of no-touch or disposable menus is encouraged, or menus must be sanitized between uses. Bar seating is permitted provided there is no active work are behind the bar or where a barrier has been set up to separate customers from bar space.

Addition Sector Rules specific to restaurants are available here.

Museums, Zoos and Aquariums

Museums, zoos and aquariums may open outdoor and indoor exhibits at 50% capacity, which is calculated as the maximum capacity that is consistent with social distancing guidelines or 50% of the fire code capacity, whichever is lower. The rules require calculation of the maximum capacity for each separate exhibition/room.  There must be an isolation plan in case any attendee self-identifies or becomes ill with symptoms of COVID-19.  Performances are permitted outdoors only. Interactive exhibits may only open if they are cleaned thoroughly and routinely. Staff members who are trained in safety protocols should be stationed in discrete exhibit areas to discourage loitering and enforce timed entry and exit.

Additional Sector Rules specific to museums, zoos and aquariums are available here.

Indoor Recreation

Indoor recreation businesses may open at up to 50% capacity, however, businesses should limit customers to the number of customers that can be appropriately supervised by staff to ensure continuous compliance with rules for mask wearing, social distancing and cleaning/disinfecting of equipment and common areas.  If a business does not have a maximum capacity on record, it may determine maximum Phase 2 capacity as 1 person (including employees) per 150 square feet. Indoor waiting areas should be closed and space should be rearranged to maintain a least 6 feet of distance between customers for group activities. These businesses must close or remove non-essential amenities and are encouraged to use no-touch or disposable pamphlets and pricing materials (but if that is not commercially possible, materials must be sanitized between uses).

 Additional Sector Rules specific to Indoor Recreation are available here.

Libraries

Libraries must calculate a maximum occupancy that is consistent with social distancing guidelines or 50% of the library’s fire code capacity, whichever is lower.  For periods of time when high traffic is expected, libraries should post guards at the entrance to count and monitor the number of patrons inside the library.  Libraries must block off every other or every third computer to ensure social distancing, and consider ways of maintaining social distancing in aisles between stacks, including signs to direct traffic patterns, limiting the number of patrons allowed in stack areas or providing access to materials by staff retrieval. They should also encourage patrons to use book drops rather than in-person returns.  Patrons shall be required to bring their own water bottles and water fountain use should be restricted to filling water bottles only.

Additional Sector Rules specific to Libraries are available here.

Outdoor Arts and Entertainment Events

The Sector rules that apply to Outdoor Events differ from those applicable to other Phase 2 businesses. Outdoor Events refer to “individual gatherings for a defined purpose by invitation, taking place on a specific date, and within a specific range of times (e.g. starting at 10 am and ending at 1 pm).”  According to the rules, outdoor events, referred to as outdoor gatherings in the Sector Rules, must comply with the rules governing conduct in public spaces as well.  The Sector Rules for Outdoor Events should be reviewed in their entirety, and are available here.

Personal Services

Personal services (which includes day spas, electrology, estheticians, floating, piercing, spa, tanning, tattoo, waxing, massage therapy, nail and eyelash technicians) may open at 50% capacity and by appointment only. Waiting rooms must remain closed.  Personal services that require a customer to remove a mask cannot reopen in Phase 2. Treatment rooms must be alternated so that no two patients are in the same space consecutively or, if this cannot be done, there must be sufficient time between clients to properly clean and disinfect the rooms. Each towel, robe or linen can only be used once and then be laundered. Individuals handling laundry must wear a mask, gloves, face shield, and protective cover over clothes.

The Sector Rules applicable to personal services businesses are available here.

Sports, Sports Clubs & Complexes, Gyms, Fitness Centers & Pools

Each outdoor sporting event field will be limited to two teams, officials, and limited family members. Indoor sporting events will be limited to 50% of building capacity or 25 people (whichever is smaller) per field, court, pool, rink, etc. For indoor sporting events, capacity limits can be exceeded, but only to include one parent/guardian per athlete. Sports that are allowed to be played include all age ranges.

Gyms, sports clubs, and fitness centers that do not provide organized sports shall operate at 50% capacity. Establishments that require customers to wear a mask while exercising must maintain 6 feet of space between equipment/people. Establishments that do not require customers to wear a mask while exercising must maintain 12 feet of space between equipment/people. Athletes, coaches and customers shall be required to bring their own water bottles. Establishments must disable every other or every third locker, and close steam rooms and saunas. Employees shall clean all equipment frequently and customers must wipe down equipment after each use, including free weights. If independent showers are available, they must be attended and sanitized between each use. Water fountains are restricted to filling water bottles. For organized games, game balls must be disinfected after each game, and there must be 30 minute intervals in between to prevent overlap, and no high-fives or huddles are permitted.

The Sector Rules applicable to sports, sports clubs, gyms, fitness centers and pools are available here.

Film, Television and Digital Media Production

The Connecticut Office of Film, Television and Digital Media recommends that all film, television and digital media productions follow the June 1, 2020 “White Paper” guidance created by the Alliance of Motion Picture and Television Producers Industry-Wide Labor-Management Safety Committee Tasks Force, which is available here.  It is further recommended that office staff and management should observe the ReOpen Sector Rules for Offices, available here.

Please see our prior advisory regarding the Sector Rules for Offices, available here.

Enforcement of Sector Rules

Executive Order No. 7PP states that a violation of the Sector Rules constitutes a public nuisance under Connecticut regulations.  Thus, all state statutes, regulations, local rules, codes or ordinances pertaining to public nuisances are modified to permit and govern the investigation and enforcement of violations of the Sector Rules.  The Executive Order specifically grants authority to the Local Health Director and District Health Director and Municipal designees to enforce Sector Rules.  Remedies include closure of the business until it is in compliance with the Sector Rules.

What Connecticut Employers Should Do Now

Connecticut employers should become familiar with the above Sector Rules, and all applicable federal and state rules and guidelines, and take steps to comply, including by doing the following:

  • Appoint an administrator or team to manage the reopen process and meet all state-mandated and federal requirements, as well as procure the required PPE and cleaning supplies to meet the cleaning guidelines;
  • Establish and implement necessary policies and procedures (e.g. training, required social distancing, mask wearing), and create or obtain needed signage or other material (e.g. no-touch menus or pricing material, signage to show customers where to stand/walk to maintain social distancing) to comply with all applicable rules and guidance;
  • Plan appropriate scheduling to reduce or stagger the number of staff present in the workplace, and consider which employees can work from home or continue doing so;
  • Maintain records of all steps taken in compliance with the Sector Rules governing reopening;
  • Be cognizant that while the reopening Sector Rules state that employees in high-risk groups and over the age of 65 should continue to stay home, this is permissive and not mandatory. Employers must also follow federal and state age and disability discrimination laws, which do not allow employers to mandate employees who are or perceived to be in high-risk groups to stay home, but require a case-by-case analysis of whether an employee who raises the issue can be reasonably accommodated. If you are faced with such return-to-work issues, seek expert legal advice.

The New York City Commission on Human Rights (“the Commission”) published a legal enforcement guidance (“Guidance”) clarifying its standards with respect to discrimination based on actual or perceived immigration status and national origin. The Guidance applies to employers, housing providers, and providers of public accommodations.

As the Guidance explains, “[d]iscrimination based on immigration status often overlaps with discrimination based on national origin and/or religion.” Under the New York City Human Rights Law (“NYCHRL”), employers with four or more employees are prohibited from discriminating on any of these bases against job applicants, employees, interns and independent contractors.

Much of the focus of the new Guidance is on discriminatory conduct based on citizenship status and “work authorization” status. In this regard, the Guidance reiterates the following mandates:

  • Employers may not discriminate among work-authorized individuals, including citizens, permanent residents, refugees, asylees, and those granted lawful temporary status, unless required or explicitly permitted by law.
  • Job application and interview questions related to work authorization must be applied uniformly to all applicants, and not selectively, based on the actual or perceived immigration status or national origin of the applicant.
  • If an employer employs workers who are unauthorized to work, those workers may not be treated less favorably on the basis of their immigration status.
  • Employers may not engage in “document abuse” by demanding documents from a job applicant or worker beyond those required to establish work authorization under federal law, including green cards and birth certificates. Employers must accept any document from the “List of Acceptable Documents” established by federal law on a Form I-9.
  • Except in limited, specified circumstances, employers may not re-verify an employee’s work authorization.
  • An employer may not take any adverse action against an applicant or worker based on a No-Match Letter from the Social Security Administration.
  • Employers may refuse Immigration and Customs Enforcement (“ICE”) access to non-public facing areas of their workplace if the agents do not produce a warrant signed by a judge.
  • An employer may not threaten workers with ICE involvement to harass, intimidate, or retaliate against employees.
  • The guidance instructs against the use of such terms as “illegal alien” and “illegals,” and reiterates that the NYCHRL prohibits the use of such terms to demean or offend people in the workplace.

The Guidance provides examples of specific kinds of actions that violate the NYCHRL including the following:

  • Granting workers different break arrangements based on their immigration or work authorization status.
  • Threatening to contact ICE if a worker attends a necessary medical appointment.
  • Refusing to accept a Social Security card and demanding a birth certificate from a job applicant because the applicant has an accent.
  • Prohibiting hotel housekeepers from speaking Spanish while cleaning because it might make guests uncomfortable.
  • Using a No-Match letter as an excuse to terminate an otherwise qualified worker.
  • Providing Polish workers (or workers of any specific nationality) first priority in scheduling to the disadvantage of its U.S. citizen workers (or workers of another nationality).

The Guidance further instructs that once an employer hires a worker who is unauthorized to work or undocumented, that worker is covered by the NYCHRL and may file a claim of discrimination with the New York City Commission on Human Rights or a lawsuit.

Finally, employers should be aware that a new state law, effective August 15, 2019 and applicable to all New York employers as of February 8, 2020, prohibits employers from threatening, penalizing, or otherwise discriminating or retaliating against an immigrant employee, including threatening to report that person or a member of his or her family to U.S. immigration authorities.

The recent focus by both the state and the city on discrimination based on immigration status suggests that employers should anticipate increased scrutiny and enforcement concerning this issue.

In an attempt to protect hotel employees such as housekeepers and room service attendants from violent acts by hotel guests, including sexual assault and harassment, New Jersey recently passed a novel law requiring New Jersey hotels with more than 100 guest rooms to arm hotel employees assigned to work in a guest room alone with a free panic button device. Under the law, hotel employees who activate the button on the reasonable belief there is an ongoing crime, immediate threat of assault or harassment, or other emergency, can immediately leave the guest’s room and await assistance without facing an adverse employment action.

This law also requires covered hotel employers to adhere to the following protocol when a hotel employee utilizes his/her panic button:

  1. Record all accusations by hotel employees regarding an act of violence or other inappropriate conduct by a guest.
  2. Reassign hotel employees who utilize a panic button to a work area away from the guest in question.
  3. Maintain a list of all guests accused of violence/inappropriate conduct for a period of five years from the date of the incident.
  4. Alert all other hotel employees who are assigned to duties of the room in which an alleged incident occurred of the guest in question and provide them the right to service that room with a partner or opt out of servicing that room for the duration of the guest’s stay.
  5. Conduct an internal investigation to determine as much identifying information about an accused guest as reasonably possible and at the conclusion of the investigation, if the victim provides a certified statement of an incident of assault or sexual harassment or if the hotel independently confirms the victim’s description of the incident, ban the guest from the hotel for at least three years. The three-year ban also applies to guests who are convicted of a crime in connection with the incident in question.
  6. Report all incidents of alleged criminal or inappropriate conduct by a guest to law enforcement.

In addition, the law requires covered hotel employers to develop a program that educates its employees about the use of panic button devices and to advise its guests of the presence of such devices (either by including a disclosure in the hotel terms and conditions or placing signs on the interior side of guest room doors).

The law takes effect January 2020. Failure to comply with the law will result in a fine (up to $5,000 for a first violation and $10,000 for each subsequent violation).

Fifth Circuit Pays Special Deference to NLRB’s Determination that Hotel Management Company Acted With Anti-Union Animus In Outsourcing Housekeeping DepartmentA recent decision of the U.S. Court of Appeals for the Fifth Circuit illustrates the potential pitfalls of outsourcing in the face of a union campaign, as well as the steep hurdle employers face in overturning a decision of the National Labor Relations Board (“NLRB”). In Remington Lodging & Hospitality, LLC v. NLRB, the Fifth Circuit enforced an NLRB order holding that a hotel management company’s decision to outsource the hotel’s housekeeping department was motivated at least in part by anti-union animus and therefore violated Section 8(a)(3) of the National Labor Relations Act (“the Act”).

In late 2011, Remington Lodging & Hospitality, LLC (“the Management Company”) was hired to manage the Hyatt Regency Long Island hotel (“the Hotel”). At the time the Management Company took over management, the Hotel’s housekeeping functions had been outsourced to a staffing company. Consistent with its general preference to directly employ its workers, the Management Company brought the housekeeping function back in-house, and terminated the Hotel’s contract with the staffing company.

Unfortunately, the Hotel’s guest-room component score – its primary indicator of housekeeping effectiveness – continued to decline, and by June of 2012 had hit its lowest level. That month, the Management Company contacted the staffing company about re-outsourcing the Hotel’s housekeeping department, and in August entered into a new agreement with the staffing company to do so.

The NLRB held that this second outsourcing was at least partially motivated by a desire to discourage membership in a union that had begun making efforts to unionize the housekeepers around the time the Management Company elected to re-outsource the department.

On appeal, the Fifth Circuit rejected the Management Company’s argument that to prove a violation of Section 8(a)(3) of the Act, the NLRB must produce evidence that the discrimination “in fact caused or resulted in a discouragement of union membership.” As the NLRB had failed to introduce such evidence, the Management Company argued the NLRB’s order was not supported by substantial evidence.

In rejecting this argument, the Fifth Circuit noted that requiring actual evidence of discouragement was “completely inconsistent” with Fifth Circuit precedent. The court stated flatly the NLRB “need not prove discouragement as a matter of fact.”

While the Management Company asserted that the decline in guest-room component scores explained its decision, the court upheld the NLRB’s resolution of this contested issue of fact. The court noted that the NLRB had relied on evidence of two union-related conversations between housekeepers and Hotel supervisors prior to the outsourcing decision, as well as the statement of another supervisor that the outsourcing decision was “because of the union.” Together these constituted substantial evidence of an unlawful motive. Stating that it must pay “special deference” to the NLRB’s resolution of conflicting evidence, the court upheld the NLRB’s order.

The lesson for employers is a familiar one – be mindful of the potential repercussions of outsourcing decisions, and careful when considering and articulating the underlying motivation. Conflicting evidence is enough to find illegal motivation.

By Paul H. Burmeister

The OSHA/Hyatt Hotels saga continued with a recent exchange of letters between OSHA and the hotel chain’s attorney.  In April, OSHA issued a “5(a)(1) letter” to the CEO of Hyatt Hotels, indicated that OSHA believed there were ergonomic risks associated with the daily work activities of the company’s housekeeping staff. The letter put the hotel chain “on notice” that while OSHA did not believe that a “recognized hazard” existed at the time of the inspection, such that a General Duty Clause citation should issue, if the same hazard was later identified in a subsequent inspection, OSHA would assert that this letter made the hazard a recognized one, for purposes of enforcement. Therefore, if the hotel chain does not follow OSHA’s recommendations, subsequent inspections would likely result in a citation. As well publicized as this battle has been, OSHA would likely take the same position with other hotel operators. In other words, the entire industry may now be “on notice.”

The OSHA letter culminated what was nearly a year-long OSHA investigation of Hyatt hotels across the country. The inspection activity was prompted in 2010 by multiple employee complaints filed in concert by housekeepers (through their Union, Unite HERE) across the country complaining of ergonomic injuries related to bending, stooping, twisting, and lifting while cleaning and making beds.

Hyatt responded to the OSHA letter through counsel and pointed out that despite the numerous employee complaints, OSHA did not have the evidence to issue one citation to the hotel chain. In its response letter, Hyatt also reiterated its serious concern that the housekeepers’ union was using the Agency to drive its organizing efforts in the hospitality industry.

Hotel employers should be on alert for OSHA inspections at their properties. As OSHA inspections involve interaction with local management, training at the property level is key to successfully managing an OSHA inspection. Hotel operators with more than one location should also be aware of OSHA’s efforts to amplify the impacts of a single enforcement action throughout an entire corporate enterprise and to pursue follow-up inspections at related facilities in search of high dollar Repeat violations. Accordingly, OSHA activity at one of your facilities should be clearly communicated to other similarly-situated facilities, and any of OSHA’s findings should be corrected throughout the enterprise.