As many employers continue to deal with the prospect of a more remote workforce moving forward, what are the best practices related to restrictive covenants, information privacy, employee onboarding, and protecting trade secrets? Greensfelder attorneys Jim Ferrick, Jill Luft and Chris Pickett recently presented “Restrictive Covenants and Trade Secret Considerations for a Remote Workforce” for the St. Louis chapter of the Association for Corporate Counsel, covering steps to protect confidential business information. Here are nine key takeaways from their discussion.

  1. What constitutes a trade secret varies from state to state. In addition to the definition of trade secret contained in the Federal Defend Trade Secrets Act, most states have their own statutory definition.  Further, there are potential important differences in how different states interpret and enforce trade secret protections.  For example, Illinois courts recognize memorization of a trade secret as a misappropriation – such as memorizing customer lists.
  2. One way to protect confidential information and trade secrets is to implement written policies. These should describe the confidential information, explain the steps the company will take to secure the confidentiality of the information or trade secret, and set expectations for employees and possible consequences for misconduct.
  3. Restrictive covenants and confidentiality agreements are another tool to protect your confidential information. A restrictive covenant (such as a non-compete or non-solicit agreement) is a contract provision that does exactly what it says — limits former employees’ activities at new employers. A confidentiality agreement restricts an employee from disclosing trade secrets and/or confidential information of a former employer. Non-compete restrictions may be related to either geography or customer base. Accordingly, agreements may need to be updated to cover new locations/territories/job responsibilities for employees now working from home.
  4. Be aware of tricky situations employees may face at home. Family members may be within earshot of private work-related conversations. Also, printing confidential documents may be a consideration. And think about “smart” devices: Best practice is to avoid having calls or video meetings where you discuss confidential information in the presence of Alexa, Siri, etc.
  5. When onboarding employees, educate employees about trade secrets and limit which employees have access to that information. A guiding principle: only give as much access as necessary for the employee to properly perform the job. Other steps are requiring written agreements with restrictive covenants and addressing restrictive covenants with prior employers and with your company at the outset. Addressing these matters head on can help avoid claims by a third party that your new employee has misappropriated their trade secrets on the front end, and you can preserve your company’s trade secrets on the back end.
  6. Consider implementing policies or written agreements to protect confidential information that finds its way onto employees’ personal devices used for work purposes. Another consideration for protecting information is issuing remote work agreements that set forth expectations for remote employees. It also may be possible to use technology solutions to protect information, such as working in a closed environment that restricts the ability to download, print or email information or phone clients from a personal device.
  7. When employment ends, remind the employee of confidentiality obligations and restrictive covenants in writing and provide a copy of any agreements. In addition to the reminder, collect all company property and promptly discontinue the employee’s access to all electronic systems (internal and external), and require the employee to delete all company confidential information from personal devices.
  8. In court, the trend during the pandemic seems to be in favor of the individuals whose former employers are seeking to enjoin them from going to work for a competitor. The ongoing crisis has made preliminary injunctive relief more elusive, as courts are typically less willing to restrain employees from competitive employment during economic downturns, particularly if the employee has been let go without cause.
  9. Courts, though, are ruling in favor of employers if the former employees have taken employer’s trade secrets. Courts still seem willing to issue injunctive relief remedying violations of confidentiality and trade secret disclosure restrictions, recognizing that the urgency of preventing the misappropriation of trade secrets remains.

In a year marked by federal responses to the COVID-19 pandemic, federal agencies managed to finalize some non-pandemic legal developments in 2020: the Department of Labor’s (DOL) new overtime rule and joint employer test both went into effect, and the National Labor Relations Board (NLRB) overturned a handful of Obama-era precedents. With Joe Biden’s election as president in November 2020, the coming four years will likely bring some reversal of the impact of the Trump administration, particularly on the DOL and NLRB. The 2019-2020 Supreme Court term was relatively busy for employment, including a major development for Title VII. Of course, much of the energy and resources of the federal agencies overseeing employment laws were spent on providing guidance to employers related to COVID-19 issues. Below is a summary of major federal employment law headlines from last year and a look at what employers can expect in 2021.

For Missouri and Illinois employers, a review of 2020 state updates and a look forward at 2021 can be found here.

Federal contract worker minimum wage

Effective January 1, 2021, the minimum wage for federal contract workers increases to $10.95 per hour.

EEO-1 data reporting resumes in 2021

Due to COVID-19, the Equal Employment Opportunity Commission (EEOC) waived its requirement that private sector employers submit EEO-1 data last year. In 2021, however, private-sector employers with 100 or more employees, along with employers with 50 or more employees and at least one federal contract or subcontract worth at least $50,000 must submit their 2019 and 2020 EEO-1 surveys. The EEOC has not scheduled the submission date, but it expects to begin collecting the 2019 and 2020 EEO-1 Component 1 data in March 2021 and will notify filers of the precise date the collections will open as soon as it is available.

DOL issues Final Rule on tip pools and eliminates 80/20 Rule

Last month, the DOL issued its Final Rule amending tipped employee regulations under the Fair Labor Standards Act (FLSA). The rule, found here, takes effect March 1, 2021, and provides:

  • Employers, managers, and supervisors may not keep any tips received by employees, even if the employer is paying tipped employees minimum wage and choosing not to utilize the tip credit exception under the FLSA.
  • Where an employer does take the tip credit, the employer can require that tipped employees pool their tips. However, the pool of employees sharing tips can only include tip-earning workers. Thus, employees who traditionally do not receive tips (dishwashers and cooks) cannot be included in the tip pool and must be provided the minimum wage. 
  • Where an employer is not taking advantage of the tip credit, the employer may pool tips of tipped employees and also include back-of-the-house employees. Thus, back-of-the-house employees can now be included in a tip pool if an employer does not elect to take advantage of the tip credit for its tipped employees.

The Final Rule also eliminates the 80/20 Rule. During the Obama administration, the DOL took the position that employers could only apply a tip credit for employees spending less than 20 percent of their shift performing non-tipped work. Then, in November 2018, the DOL reissued and adopted an opinion letter stating there is no limit on the amount of duties related to a tip-producing occupation that may be performed, so long as the tasks are performed contemporaneously with direct customer service duties, or for a reasonable period of time immediately before or after performance of direct customer service duties. The Final Rule follows the language in the opinion letter and amends the regulation to make clear it has done away with the 80/20 Rule. Now, an employer may take a tip credit for any hours that an employee performs related, non-tipped duties contemporaneously with their tipped duties, or for a reasonable time immediately before or after performing the tipped duties.

DOL clarifies independent contractor status

In the first week of 2021, the DOL finalized a multifactor test for determining whether workers are independent contractors instead of employees covered by the minimum wage and overtime requirements of the FLSA. Specifically, the test evaluates the “economic realities” of the working relationship to determine if the worker is economically dependent on another business such that the worker is actually an employee.

In the Final Rule, the DOL:

  • Identifies and explains two “core factors” that are most probative to the question of whether a worker is economically dependent on someone else’s business or is in business for him or herself:
  • The nature and degree of control over the work.
  • The worker’s opportunity for profit or loss based on initiative and/or investment.
  • Identifies three other factors that may serve as additional guideposts in the analysis, particularly when the two core factors do not point to the same classification. The factors are:
  • The amount of skill required for the work.
  • The degree of permanence of the working relationship between the worker and the potential employer.
  • Whether the work is part of an integrated unit of production.

The Final Rule, found here, will take effect March 8, 2021.

SCOTUS

The Supreme Court’s October 2019 term was relatively busy for employment law developments. So what did we learn from the court last year?

Title VII prohibits discrimination on the basis of sexual orientation, gender identity, and transgender status

The Court’s June 2020 decision Bostock v. Clayton County, Georgia, which consolidated a trio of related cases, held that an employer who fires an employee merely for being gay or transgender violates Title VII of the Civil Rights Act. The decision resolved a major lingering question (and circuit split) about how far Title VII’s prohibition on discrimination “because of sex” extends. Apart from the decision’s impact on the interpretation of Title VII, employers must be aware of local and state jurisdictions, including Missouri and Illinois, that have also provided protection against sexual orientation or gender identity discrimination.

The “but for” standard of causation applies to race discrimination claims under Section 1981

In Comcast v. National Association of African American-Owned Media, the court found that a claim of race discrimination under 42 U.S.C. § 1981 fails in the absence of but-for causation, a higher burden than the “motivating factor” standard that the Ninth Circuit Court of Appeals had permitted. This case stems from Comcast declining to carry channels that the plaintiffs produced, allegedly violating Section 1981, a federal law barring racial discrimination in contracts.

The “but for” standard of causation applies to federal sector ADEA claims

Like the court’s decision in Comcast, Babb v. Wilkie found that federal-sector employees bringing ADEA age-discrimination claims must prove age was not just the motivator, but the cause for an adverse employment action.

Private employers may be exempt from the ACA’s birth control mandate

Representing another case in a string of challenges to the Affordable Care Act’s (ACA) requirement that employers provide health insurance that covers access to certain contraceptives, Little Sisters of the Poor v. Pennsylvania explained that private employers with religious or moral objections to providing birth control access may be exempt from this mandate. In reaching this decision, the court agreed with the Trump administration that the exemption to the birth control mandate created by the Department of Health and Human Services was proper under the ACA and federal rules regarding administrative agencies.

The “ministerial exemption” applies to Catholic school teachers, barring employment discrimination claims

The court explained in Our Lady of Guadalupe School v. Morrissey-Berru, which consolidated claims of employment discrimination brought by two Catholic school teachers, that the teachers’ responsibilities included “vital religious duties.” As a result, the ministerial exception under the First Amendment prevented the government from interfering with the right of the religious institutions to decide issues related to faith and doctrine — including employment decisions about who should hold certain roles. The court clarified that whether an employee is considered a “minister” for purposes of the exemption is not based upon the employee’s label but on the work the employee does. Because the ministerial exemption necessarily depends on the facts of each situation, the case does not mean that every Catholic school teacher or employee of a religious institution will fall within the ministerial exception.

What will the October 2020 term bring?

It looks to be a quiet term for employment law apart from an expected opinion on commercial arbitration agreements that will likely be relevant in the employment context. In Henry Schein Inc. v. Archer and White Sales Inc., the court is considering whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise clear and mistakable delegation of questions of arbitrability to an arbitrator. The case was argued in December 2020.

COVID-19’s continued impact on the workplace

The COVID-19 virus impacted virtually every aspect of the employment relationship, necessitating new laws and guidance on unemployment benefits, protected leave and associated tax credits, workers’ compensation, and discrimination, among other topics. The most notable federal development was the passage of the Families First Coronavirus Response Act (FFCRA), which provided some paid leave benefits to employees for absences related to the coronavirus. Although the mandatory paid leave requirement expired on December 31, 2020, employers who choose to provide FFCRA sick time and family leave time benefits will remain eligible for the tax credit through March 31, 2021. Employees who have exhausted available FFCRA paid leave time entitlements will not be eligible for additional paid time off.

In addition to the resources available from Greensfelder attorneys, we have summarized the most critical employment law developments and guidance related to the COVID-19 pandemic from federal agencies:

Wage and hour developments from the DOL

Disability and accommodation developments from the EEOC and Job Accommodation Network (JAN)

Health and safety in the workplace developments from the Occupational Safety and Health Administration (OSHA)

Labor law developments from the NLRB

  • General Counsel Memo 20-10 provides suggested guidelines and protocols for conducting in-person union elections during the pandemic.

If you have questions about any of these updates or would like to discuss how your business may be affected, please contact any of the attorneys in our Employment & Labor group.

In a year dominated by the pandemic, 2021 updates to Missouri and Illinois law are overshadowed by COVID-19’s impact and related federal employment law developments. Illinois’ treatment of July as the new January adds to the relatively quiet start to 2021 while the state adapts to its new employment laws that went into effect July 1, 2020.

For 2020 federal employment law updates and a look at recent Supreme Court developments, a summary can be found here.

Missouri

Missouri state minimum wage increases

Missouri begins the year with a new minimum wage of $10.30 per hour, representing an 85-cent increase from 2020’s minimum hourly wage. The Missouri Department of Labor and Industry’s new minimum wage poster is available here.

St. Louis Ban the Box ordinance goes into effect

Effective January 1, 2021, St. Louis city employers with 10 or more employees are subject to the city’s “Ban the Box” ordinance. Covered employers are prohibited from:

  • Basing a hiring or promotion decision on an applicant’s criminal history unless the decision is based upon an assessment of a variety of factors related to the criminal history and the criminal history is related to the duties and responsibilities of the job position;
  • Inquiring about an applicant’s criminal history until the applicant has been interviewed and determined to be qualified for the position, but only if all applicants in the final selection pool receive the same criminal history inquiry;
  • Publishing job advertisements excluding job applicants on the basis of criminal history;
  • Including statements excluding applicants on the basis of criminal history on job application and hiring forms;
  • Inquiring into or requiring an applicant to disclose his or her criminal history on an initial job application form; and
  • Seeking to obtain publicly available information concerning job applicants’ criminal history.

These requirements do not apply in circumstances when applicable law prohibits employers from employing individuals with certain criminal histories. The St. Louis City Civil Rights Enforcement Agency is responsible for investigating complaints regarding violations of the statute. Penalties for violations include warnings, civil penalties, and revocation of business licenses.

Medical marijuana meets the workplace

Missouri’s first medical marijuana dispensaries opened their doors at the end of 2020. With over 66,000 Missourians holding cards to purchase medical marijuana, employers may now see issues arising with employees possessing or being under the influence of marijuana while at work. Despite Missouri’s law, cannabis remains illegal under federal law. Missouri’s medical marijuana law specifically provides that employees may not bring a claim for wrongful discharge or discrimination because the employer prohibited the employee from being under the influence of marijuana while at work or disciplined the employee for working or attempting to work while under the influence of marijuana.

Illinois

Illinois, Chicago and Cook County minimum wage increases

Illinois’ minimum wage increased to $11 per hour on January 1, 2021, and will increase $1 each year until it reaches $15 per hour on January 1, 2025. The Chicago minimum wage increased to $14 per hour on July 1, 2020, for employers with more than 21 employees, and the Cook County minimum wage increased to $13 per hour on July 1, 2020, unless the employees work in a municipality that has opted out of the Cook County minimum wage ordinance. The Illinois Department of Labor’s 2021 “Your Rights Under Illinois Employment Laws” poster can be found here. Chicago’s required Labor Standards notice can be found here.

Changes to the Illinois Human Rights Act

Effective July 1, 2020, the Illinois Human Rights Act applies to any employer with at least one employee working within Illinois during 20 or more calendar weeks during the current year, or during the year preceding the alleged discrimination violation. The act previously only applied to employers with 15 or more employees.

The Workplace Transparency Act takes effect

Most of the requirements of the Workplace Transparency Act became effective January 1, 2020, including:

  • Expanding the scope of the Illinois Human Rights Act to prohibit discrimination and harassment based on both an employee’s actual and perceived protected characteristics.
  • Expanding the Illinois Human Rights Act to apply to nonemployees, including contractors, vendors and consultants.
  • Requiring that employers using arbitration agreements make clear that claims of harassment and discrimination are excluded from arbitration requirements.
  • Beginning July 1, 2020, Illinois employers are required to submit an annual disclosure report to the Department of Human Rights that includes certain information about any adverse judgments entered against the company, as well as all settlement agreements entered into with employees involving claims of unlawful discrimination and/or harassment based on any protected characteristic.

Predictive scheduling requirements for Chicago employers

Chicago’s Fair Workweek Ordinance went into effect on July 1, 2020, and requires covered employers to provide covered employees with notice of their work schedule at least 10 days in advance. Schedule changes occurring after this 10-day period will require an employer to provide “predictability pay” to the impacted employee, or an extra hour at their regular pay rate. Covered employees are also entitled to premium pay at 1.25 times their regular pay rate if they agree to work within 10 hours of a prior day’s shift, and employers may not require employees to do so. Employees are covered by the ordinance if they work in one of seven covered industries (Building Services, Healthcare, Hotels, Manufacturing, Restaurants, Retail, and Warehouse Services), they make less than $26/hour or $50,000/year, and the employer has at least 100 employees globally (250 employees and 30 locations for a restaurant). The required Fair Workweek notice can be found here.

Annual mandatory sexual harassment training

As a reminder, Public Act 101-0221 amended the Illinois Human Rights Act requiring Illinois employers to provide annual sexual harassment prevention training by December 31, 2020, and annually thereafter.

Expansion of VESSA

Effective January 1, 2020, the Illinois Victims’ Economic Security and Safety Act (VESSA) now provides leave for victims of gender violence, which includes one or more acts of violence or aggression that is based on a person’s actual or perceived sex or gender, or a physical intrusion or invasion of a sexual nature under coercive conditions, either of which satisfies the requirements for any crime under state law.

Recreational marijuana is legalized

On January 1, 2020, Illinois legalized recreational marijuana under the Cannabis Regulation and Tax Act. Although marijuana can now be used recreationally by all adults age 21 and older, the act does permit employers to maintain reasonable workplace drug policies that prohibit employees from appearing for work while under the influence of marijuana, and that provide for reasonable and nondiscriminatory applicant and employee drug testing. Employers may continue to prohibit the use or possession of cannabis on all company property and may discipline employees or withdraw job offers for violations of company drug policies, which can include failing to pass a drug test. To establish that an employee is impaired or under the influence of marijuana, an employer must have a good-faith belief based on observation of specific, articulable symptoms of the employee’s impairment. Additionally, upon finding an employee is impaired, the employer must allow the employee a reasonable opportunity to contest the employer’s determination.

If you have questions about any of these Missouri and Illinois updates or would like to discuss how your business may be affected, please contact any of the attorneys in our Employment & Labor group.

The Consolidated Appropriations Act (CAA), which was signed into law on December 27, 2020, represents a second-round stimulus related to the COVID-19 pandemic. While the CAA includes certain virus-related provisions, including stimulus checks issued to some individuals, the act allowed the mandatory leave provisions of the Families First Coronavirus Response Act (FFCRA) to expire on December 31, 2020. As a result, employees are no longer guaranteed paid sick leave or expanded family and medical leave under the FFCRA unless their employers voluntarily agree to provide it. As an incentive for employers to voluntarily offer FFCRA leave, the act extends the availability of tax credits to employers related to employees who take qualifying leave under the FFCRA through March 31, 2021.   

The act does not enlarge the original leave entitlement that employees were guaranteed under the FFCRA. Thus, employees may only use FFCRA leave in 2021 if they did not already exhaust it in 2020. The CAA does not affect the substantive aspects of the FFCRA’s leave provisions such as qualifying reasons for leave or employer documentation requirements. The Department of Labor issued new FAQs related to the CAA’s impact on the FFCRA.

Employers should be aware that they may voluntarily extend other leave options to employees affected by the pandemic who do not otherwise qualify for FFCRA. Additionally, some states and municipalities have passed their own paid leave sick requirements related to the pandemic that may entitle employees to additional leave.  

Link to COVID-19 Resources page

On December 16, 2020, the EEOC issued an update that addresses the availability of COVID-19 vaccinations and questions they may raise under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act (Title VII), and the Genetic Information Nondiscrimination Act (GINA). If an employer elects to administer a COVID-19 vaccine or contract with a third party to do so, the employer must meet certain requirements under federal anti-discrimination laws.

For example, under the ADA, employers have the right to maintain a safe working environment to ensure the safety of all employees. In the event an employee cannot be vaccinated because of a medical condition, the employer must establish that an unvaccinated employee poses a “direct threat” to other employees that could not be eliminated by reasonable accommodation. If an employee has a sincerely held religious belief that prevents the employee from receiving the vaccine, the employer must provide a reasonable accommodation for the religious belief under Title VII, unless the accommodation poses more than a “de minimus” cost or burden, according to EEOC guidance. A copy of the EEOC publication may be obtained by contacting the EEOC at eeoc@updates.eeoc.gov.

A major issue for some employers will be whether to mandate the vaccination of employees. For non-union employees, private companies generally have the right to impose a vaccine mandate, and employers generally have the right to terminate an employee for the failure to take the vaccine. Employers can fire “at will” employees for any legal reason. A Gallup poll reported in early December disclosed that approximately 63 percent of Americans would be willing to take a COVID-19 vaccine that is approved by the federal Food and Drug Administration.  It may be difficult to require a COVID-19 vaccine if there is large-scale employee resistance. For example, such a mandate would be difficult to enforce if 30 percent of a workforce elected not to take the COVID-19 vaccine. Because health care employees and residents and staff of long-term care facilities are being provided with the first opportunities to take the vaccine, there may be more acceptance by employees after nurses, doctors and other personnel take the vaccine without experiencing side effects.

For those employers that would like to make this a voluntary vaccination program, the following strategies may be considered:

  1. Lead by example. When drug and alcohol policies were introduced many years ago by employers, key executives led the way by first being tested.
  2. Reach out to your insurance carrier to determine whether employees will be asked to cover any administrative expenses of administering the vaccine. Based upon the responses from your insurance carrier, an employer could elect to cover any related costs of the vaccine. In addition, some experts have suggested such incentives as gift cards, paid time off to receive the vaccine, flexible work schedules, etc.

    On the other hand, an article appeared in the December 15, 2020, New York Times titled “Why Paying People to Be Vaccinated Could Backfire.” The article by George Loewenstein and Cynthia Cryder provided as follows:

    “The approval of the first Covid-19 vaccine in the United States was hailed over the weekend as the beginning of the end of the pandemic. But the road between delivering the first doses and widespread vaccination at rates that will arrest the spread of coronavirus is far from straightforward. Besides the logistical challenges of distributing the vaccine, people must also be willing to take it. A new survey has found that more than a quarter of Americans are hesitant. …

    “People are also likely to infer from payment that the vaccine would be risky. In our research with Kevin Volpp and Alex London, we found that people naturally assume that payments signal risk.”

  3. Introduce the vaccine program in a similar manner to how many employers encourage employees to receive a flu shot each year.

  4. Establish a management team for the administration of the vaccine and to provide legal updates to employees.

For a unionized employer, it is essential to review the terms of its collective bargaining agreement as to whether a management rights clause provides the company the right to require employees to submit to a COVID-19 vaccine. If there are no provisions within the collective bargaining agreement permitting vaccines, then employers must negotiate with the union representative before imposing any vaccine mandates. (Since an employer must comply with the technical requirements of the National Labor Relations Board before enacting mandatory vaccine use, we suggest that you check with labor counsel so as to comply with federal law.) Generally, outside the health care industry, collective bargaining agreement will not cover vaccines. The Service Employees International Union has commenced bargaining over COVID-19 mandates with health care employers. SEIU President Mary Kay Henry stated, “We are very concerned about, obviously, getting health care workers the highest level of protection.”

We suggest each employer evaluate its business needs in making a determination as to possible vaccine mandates. Many employers may decide it is better to encourage vaccination rather than make it a condition of employment. On the other hand, some employers where employees have close contact with customers (i.e. restaurants and department stores) may reach a different conclusion.

With Election Day fast approaching, Missouri employers should be aware of their obligations to provide eligible employees with time off to vote. We have complied a list of frequently asked questions to help employers ensure they comply with Missouri’s voting leave law on November 3, 2020.

When is an employee eligible for time off work to vote?

There are three requirements of employee eligibility for voting leave in Missouri:

  • First, only individuals entitled to vote in any election in the state of Missouri may be eligible for time off work to vote.
  • Second, the employee must request time off to vote before Election Day.
  • Third, an employee is not eligible unless his or her shift begins less than three hours after the polls open at 6 a.m. CST and ends less than three hours before the polls close at 7 p.m. CST. In other words, an employee required to report for work before 9 a.m. CST until after 4 p.m. CST would be eligible for time off to vote under this third requirement.

Do I have to pay employees for the time they take off work to vote?

Yes. Missouri law says employers cannot deduct an employee’s pay for taking time off to vote. As such, employees are entitled to receive their usual and customary compensation for all time off work spent voting.

How much paid time off can employees receive for voting?

Employees may receive up to (but not more than) three hours for time off work to vote.

Can I ask the employees for proof that they voted?

Yes. Missouri employers may require that employees provide proof of having actually voted. This requirement should be communicated to employees before they take time off to vote.

Can I decide when on Election Day my employees can take time off to vote?

Yes. Missouri employers have the right to specify when an employee can be absent to exercise his or her right to vote. Additionally, the three-hour period of voting leave provided by the employer may include time before or time after reporting for work, as long as the polls are open.

Even though I have to pay employees for time off to vote, can I count the time as an unexcused absence?

No. Missouri law is clear that any absence for voting cannot be the reason for an employee to be fired (or be threatened with firing), penalized or disciplined.

Should Missouri employers do anything in advance of Election Day?

Yes. Missouri employers should review their workplace policies to confirm they comply with Missouri’s voting leave law. Employers should also inform employees of their right to time off work to vote under state law and notify them that requests for time off to vote must be made before Election Day.

Read about Illinois employee voting laws here.

On Election Day, November 3, 2020, voters will cast their ballots on who will be the next president of the United States, as well as other federal, state and local positions and referendums. Because of the increase in early and mail-in voting this year due to COVID-19, many voters likely will have voted prior to the polls officially opening in Illinois at 6 a.m. on Election Day. However, not everyone will have taken advantage of early voting opportunities, and some will still wish to vote on Election Day. Under Illinois’ voting law, (10 ILCS 5/17-15(a)), employers must provide certain employees whose work schedules may preclude them from voting, and who request leave to vote in advance of Election Day, with up to two hours of paid leave to go vote. Thus, with Election Day rapidly approaching, Illinois employers are strongly encouraged to review their workplace policies to confirm that they comply with Illinois’ paid leave voting law.

First, Illinois’ voting law instructs that only individuals who are “entitled to vote” in a general or special election, or at any election at which propositions are submitted to popular vote, are eligible to be absent from work for a period of up to two hours between the time the polls open and the time the polls close on Election Day. An employer may request that the employee provide proof of eligibility, such as a voter registration card.

Second, under Illinois’ voting law, even if the employee is legally “entitled to vote,” only those employees whose work hours begin less than two hours after the polls open in Illinois at 6 a.m. CST on Election Day, and end less than two hours before polls close in Illinois at 7 p.m. CST on Election Day, are eligible for the two-hour paid leave during working hours. So, an employee who is scheduled to work from 7:30 a.m. until 5:30 p.m. would be eligible for the two-hour paid leave because his/her shift begins less than two hours after polls open and ends less than two hours before the polls close. Conversely, an employee scheduled to work from 9 a.m. to 6 p.m. is ineligible because his/her shift does not begin less than two hours after the polls open, despite it ending less than two hours before the polls close. 

Third, under Illinois’ voting law, for an employee to be eligible for the two-hour paid leave on Election Day, the employee must request the two-hour paid leave before Election Day. Thus, if the employee makes the request to his/her employer on Election Day, the employer may lawfully deny the request.

Fourth, under Illinois’ voting law, the two-hour paid leave is only during times when the polls are open (i.e. 6 a.m. to 7 p.m.), and employees are only entitled to up to two successive hours off to vote. Importantly, to minimize or reduce work conflicts, employers may specify the two hours during the employee’s workday that the employee may be absent to vote.

Lastly, under Illinois’ voting law, employers may not discipline and/or penalize their employees for time spent exercising their right to vote.

How should employers handle employees who do not meet the criteria above but missed some work because they voted?  Generally, and to the extent possible, employers should refrain from disciplining employees who are late to work because they faced long lines at the polls (as is expected this year) or other unexpected delays due to COVID-19 safety protocols at their voting places. However, employers should remind employees that if they anticipate being late to work, they must follow the company’s normal call-in procedures (e.g. notify their supervisors using approved methods), and that they will be required to use company provided paid time off for any time missed. Employers also could require proof of voting, particularly if the employee is running late as a result of long lines.

Read about Missouri employee voting laws here.

On September 11, 2020, the U.S. Department of Labor (DOL) issued revised FFCRA regulations that clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions, specifically the Emergency Paid Sick Leave Act (EPSL) and Emergency Family and Medical Leave Expansion Act (EFMLEA). 

The primary impetus for the revisions to the FFCRA regulations was to provide clarity following the August 3, 2020, decision of the U.S. District Court for the Southern District of New York, which invalidated four different portions of the FFCRA regulations.

The revised FFCRA regulations, which take effect September 16, 2020, do the following:

1.  Reaffirm the requirement that an employee is not eligible for paid leave under the EPSL and/or the EFMLEA if his/her employer has no work available for the employee to perform, even if the employee is otherwise qualified for paid leave under FFCRA.

  • The DOL affirmed that for an employee to be eligible for paid leave under the EPSL and/or EFMLEA, his/her employer must actually have work available for the employee to perform at the time paid leave is requested.
  • Thus, if there is no work available for the employee to perform due to circumstances other than a qualifying reason for leave (DOL uses as an example, “perhaps the employer closed the worksite temporarily or permanently”), the FFCRA qualifying reason could not be, and is not, the reason for the employee’s inability to work.
  • The DOL clarified that the “work availability” requirement applies to all six qualifying reasons under the EPSL and EFMLEA.

2.  Reaffirm the requirement that an employee must have employer approval to take intermittent FFCRA leave.

  • As it relates to the school leave issues employers have been facing, the DOL explained, “The employer approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid attendance) basis because such leave would not be intermittent leave.”
  • The DOL used the example of a parent who needs to take leave due to his/her child’s school being closed on Monday, Wednesday and Friday of one week, and Tuesday and Thursday of the following week. According to the DOL, “For purposes of FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day,” thus it is not intermittent leave.  Therefore, under the above alternate day/hybrid attendance scenario, if the employee is eligible for paid leave under the EPSL and/or EFMLEA, leave should be granted.
  • The DOL distinguished the above scenario from an alternative scenario when a child’s school is closed for a continuous and extended period of time (e.g. two months), and the employee wishes to take leave only on certain days. The DOL explained that this would constitute intermittent leave and require employer consent for the employee to be granted paid leave, even if the employee is otherwise eligible.
  • a parent learns that his or her child’s school will be closed Tuesday, after already reporting to work on Tuesday.

3.  Revise the definition of a “health care provider” who may be excluded by their employer from EPSL and EFMLEA to include employees who meet the definition of a health care provider under the FMLA regulations, and those individuals who are employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.

  • The DOL adopted the FMLA’s definition of a “health care provider” (e.g. physicians and others who make medical diagnoses);
  • The DOL also expanded the definition of a “health care provider” to include an individual who is “capable of providing healthcare services.” According to the DOL, a “health care provider” must be “employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care, and that if not provided would adversely impact patient care.” The DOL explained that for purposes of this health care provider definition, the focus should be on the individual’s duties and responsibilities, “even if not performed by individuals with a license, registration, or certification.”
  • The DOL determined that an individual is “capable” of providing health care services “if he or she is employed to provide those services … the fact that the employee is paid to perform the services in question is, in this context, conclusive of the employee’s capability.”
  • The DOL identified three categories of individuals who may qualify as health care providers (and who may therefore be denied leave under the EPSL and EFMLEA):
    1. Nurses, nurse technicians, medical technicians, and others who provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care;
    2. Employees who provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care under the supervision of a doctor, nurse, nurse technicians, or medical technicians.
    3. Employees who may not directly interact with patients, and/or who may not report to another health care provider or directly assist another health care provider, but “nonetheless provide services that are integrated with and necessary components to the provision of health care.” One example provided is a lab technician who processes test results.
  • The DOL explained that individuals who provide services that affect, but are not integrated into the provision of patient care, are not covered under the definition of “health care provider,” e.g., IT professionals, building maintenance staff, human resources personnel, food service workers, managers, consultants, and billers.

4.  Clarify that employees must provide their employers with the required documentation (e.g. name, date(s) for leave, qualifying reason for leave, oral statement that employee is unable to work or telework, and any other supporting documentation such as quarantine or isolation order, doctor’s note advising employee to self-quarantine, school or place of care closure letter, etc.) supporting their need for EPSL and/or EFMLEA leave “as soon as practicable.”

  • The DOL stated that the previous requirement that an employee must provide their employers with the required documentation “prior to” taking paid leave will be removed.
  • Under the revised FFCRA regulations, employees requesting paid leave under the EPSL and/or EFMLEA must provide their employers with the required documentation, “as soon as practicable.” According to the DOL, in most cases this will be when the employee provides notice to his/her employer of the need for leave.

 5.  Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

  • FFCRA regulations will now state that when the need for leave under the EFMLEA is “foreseeable,” advance notice is to be provided to the employer “as soon as practicable.”
  • The DOL uses the example of a parent learning on Monday that his or her child’s school will be closed on Tuesday for a COVID-19 related reason. Under this scenario, the DOL instructs that the “employee must notify his or her employer as soon as practicable [likely Monday at work].”
  • Alternatively, when need for leave under the EFMLEA is not foreseeable, “the employee may begin to take leave without giving prior notice, but must still give notice as soon as practicable” (i.e. that same day). For example, this would apply when a parent learns that his or her child’s school will be closed Tuesday, after already reporting to work on Tuesday.

Our Employment & Labor Practice Group attorneys are continuously monitoring developments related to paid leave under the EPSL and the EMFLEA and are available to answer questions related to COVID-19’s many effects on employers.

Link to COVID-19 Resources page

As the COVID-19 pandemic continues, employers find themselves facing new challenges. Recognizing that the “new norm” has led to workplace circumstances not previously considered, the U.S. Department of Labor issued new guidance to address several wage and hour and leave-related scenarios employers may face. Highlights from the new guidance include:

Fair Labor Standards Act (FLSA) Guidance

  • Employees must be compensated for all hours worked via teleworking. Work performed away from the primary worksite is compensable in the same manner as work performed at the worksite. This is true even though the employer has less oversight of work performed from other locations (such as the employee’s home), and applies even if the work is not authorized. Employers are required to compensate employees for all hours reported to the employer and all hours the employer knows or has reason to believe were worked by an employee. This rule applies both to regular hours and overtime. An employer may implement rules prohibiting employees from working unauthorized hours and may discipline an employee for violating such rules, but the hours worked are still compensable. The DOL recommends employers impose reasonable time-reporting procedures to minimize problems in this area.
  • Employees need not be compensated for time spent tending to personal matters during the workday. The COVID-19 pandemic has created a number of issues, in particular for non-exempt employees/parents of school-aged children. While the Wage and Hour Division generally considers the time between an employee’s “first and last principal task” to be compensable, this rule is relaxed to allow non-exempt employees and employers to agree to more flexible schedules that allow employees time to care for, teach and otherwise tend to children who need such attention during the workday. Employees must only be compensated for time actually spent working. This rule similarly applies if an employee takes time out during the workday to tend to other personal matters unrelated to children.
  • Pandemic-specific rules for salaried, exempt employees. During a period of national emergency, such as COVID-19, certain rules applicable to salaried employees who are exempt from the overtime rules are relaxed. During the pandemic, exempt employees may temporarily perform non-exempt duties due to COVID-19 without losing their exempt status. Separately, employers may reduce an exempt employee’s salary so long as it is done (1) prospectively (i.e. not current, but subsequent pay period, (2) is in writing; (3) the employee’s weekly salary remains above $684; and (4) the reduction is the result of the pandemic or economic slowdown. The DOL also made clear that exempt employees will not lose their exempt status as a result of the exempt employee taking paid sick leave and expanded family and medical leave pursuant to the Families First Coronavirus Recovery Act.

Family and Medical Leave Act (FMLA) Guidance

  • Telehealth visits with a health care provider may satisfy the FMLA’s requirement of an in-person visit for purposes of determining a “serious health condition.” For now, this guidance applies only through Dec. 31, 2020. The telehealth visit must include an examination, evaluation or treatment.

Families First Coronavirus Response Act (FFCRA) Guidance

  • The FFCRA paid sick leave and expanded FMLA requirements are cumulative for 2020. If an employee uses their 80 hours of paid sick leave, is subsequently furloughed, returns to work and a need arises for additional sick leave, the employee is not entitled to additional paid leave under the FFCRA. Similarly, if an employee used six weeks of expanded FMLA during the spring of 2020 and needs additional leave in the fall because a child’s school or daycare is closed, the employee is entitled only to the amount of leave remaining (i.e. six weeks), not a renewed amount.
  • Employers cannot extend an employee’s furlough because the employee may qualify for leave under the FFCRA. An employer that is recalling employees from furlough may not extend an employee’s furlough because that employee may need leave under the FFCRA. For example, if an employee being recalled from furlough has a child whose school or daycare is closed, the employer cannot extend the furlough to avoid providing the employee with paid FFCRA leave.
  • Employers may require an employee to telework or provide a negative COVID-19 test before returning from an FFCRA leave, provided that the requirement is uniformly applied, and not only applied to employees who take FFCRA leave. For example, an employee requests two weeks of paid leave under the FFCRA to care for a family member who tested positive for COVID-19. Upon conclusion of the employee’s two weeks of paid leave, the employer may require the employee to provide a negative COVID-19 test or telework for a period of time only if the employer requires all employees to provide a negative COVID-19 test or telework for a period of time following exposure to someone who tested positive for COVID-19. If the rule is uniformly applied, it complies with the law. If it is applied only to employees who take FFCRA leave, then the rule violates the law.

Our Employment & Labor Practice Group attorneys are continuously monitoring developments and are available to answer questions related to COVID-19’s many effects on employers.

Link to COVID-19 Resources page

Under the Families First Coronavirus Response Act (FFCRA), employees may be entitled to up to two weeks of paid sick leave and up to 12 weeks of expanded family and medical leave, of which 10 weeks are paid to care for a child based on the closure of the child’s school or place of care. When the spread of COVID-19 accelerated in March, most schools and daycares closed, creating problems for many parents who relied on these facilities to care for their children while the parents worked. As the summer months approached, a new question arose: whether parents would be entitled to paid leave under the FFCRA in the event a child’s summer camp, summer enrichment program or other summer activity closed — or never opened — for COVID-19 related reasons. Recent guidance issued by the U.S. Department of Labor (DOL) provides insight in answering this question.

Effective April 1, 2020, the FFCRA provides that FFCRA leave may be taken when an employee is unable to work or telework due to a need to care for the employee’s child because the child’s school or place of care closed due to COVID-19 related reasons. The DOL’s Field Assistance Bulletin issued June 26, 2020, clarifies that summer camps and summer programs qualify as a “place of care.” Thus, if a summer camp closes for COVID-19 related reasons after it opens, parents of children attending such a camp may find themselves entitled to FFCRA leave.

A more complicated question arises, however, when the summer camp or program cancels or never opens or limits the number of children it accepts due to COVID-19 related reasons. Might an employee be eligible for FFCRA leave for a program because of the cancellation of a summer program that never started? The Field Assistance Bulletin makes it clear that, under the right circumstances, the answer is yes. An employee is eligible for FFCRA leave if the employee is unable to work or telework due to a need to care for his or her child due to the cancellation of a summer camp or program where there is evidence of a plan for the child to attend the camp or program or, in the absence of such a plan, where it is more likely than not that the child would have attended the camp or program.

Evidence of a plan for the child to attend a camp or program may take many forms. Enrollment prior to the announced closure of the camp or program or submission of an application or deposit prior to the closure may be sufficient to establish a plan to enroll. Being wait-listed for a camp or program that limits participants may be sufficient. Prior attendance in the camp or program coupled with current eligibility to attend again may be sufficient to show that it is more likely than not the child would have again attended the camp or program.

Because of the numerous circumstances that could establish either a plan to send a child to a summer camp or program, or that it was more likely than not the child would have attended a summer camp or program, the DOL discourages a one-size-fits-all approach and encourages employers to look at all of the facts and circumstances before making a decision regarding an employee’s entitlement to FFCRA leave. Employers may want to engage in an “interactive process” with the employee, similar to that required when considering reasonable accommodation under the Americans with Disabilities Act, to ensure that all circumstances are known and considered before making a determination.

Our Employment & Labor Practice Group attorneys are continuously monitoring developments and are available to answer questions related to COVID-19’s many effects on employers.

Link to COVID-19 Resources page