Can Employers Limit Off-Duty Activities and Travel During the COVID-19 Pandemic?

Written by:  Meredith L. Eason

Most employers have implemented new policies to comply with OSHA’s requirement to provide a safe workplace and to limit the spread of COVID-19.  These new policies typically include enhanced cleaning procedures, facemask and social distancing requirements, and limitations on business travel and in-person meetings.  Many employers wonder whether they can legally take these policies a step further and place restrictions on their employees’ behavior outside the workplace, particularly if they believe the employee is engaging in risky travel or other behavior that may increase their likelihood of contracting the virus.  Unfortunately, as with most questions surrounding this pandemic, the answer is that it depends.

Two New Orders Issued by the Supreme Court of Kentucky

Written by:  Marianna Michael

On July 27, 2020, the Supreme Court of Kentucky entered two new orders to provide continuing guidance on the functions of courts during COVID-19.

The first order, Administrative Order 2020-55, replaces Administrative Orders 2020-42 and 2020-47 in their entirety.  The Order makes the following provisions:

DOL Offers Guidance on Retail Exemptions

Written by:  Marianna Michael

In three recent letters, the Department of Labor (“DOL”) offered guidance on the outside sales exemption and the retail or service establishment exemption.

An employer qualifies for the outside sales exemption if its employee’s: (i) primary duty is to make sales (as defined in the Fair Labor Standards Act “FLSA”) or obtain orders or contracts for services or making the use of facilities for which a consideration will be paid by the client or customer and (ii) are customarily and regularly engaged away from the employer’s place or places of business.

The retail or service establishment exemption applies if: (i) the employee is employed by a retail or service establishment; (ii) the employee’s regular rate of pay exceeds one and one-half times the minimum hourly rate; and (iii) more than half of the employee’s compensation for a representative period (not less than one month) consists of commissions on goods or services.

United States Department of Labor Publishes Revised FMLA Certification Forms

Written by:  Mitzi D. Wyrick

The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) published streamlined forms for employers and employees to use in requesting leave under the Family and Medical Leave Act (FMLA).  The DOL has attempted to make the new forms easier for employers and employees to understand and use.  For example, more options are available that call for simply checking a box and the forms have been modified to permit electronic signatures. 

DOL Releases New Online Tool for Employees to Determine Paid Sick Leave Eligibility

by Courtney R. Samford

On June 23, 2020, the Department of Labor (“DOL”) released an interactive online tool that guides employees through a series of questions to determine their eligibility for paid sick leave or expanded family and medical leave under the Families First Coronavirus Response Act (“FFCRA”).  The online tool is available here.  According to the DOL website, a similar tool for employers will be available soon.

No Mandatory Antibody Testing

by Courtney Ross Samford

The U.S. Equal Employment Opportunity Commission (EEOC) has announced that COVID-19 antibody tests cannot be required before employees are permitted to return to the workplace.  Since an antibody test constitutes a medical examination under the Americans with Disabilities Act (ADA), it is only permitted when it is “job related and consistent with a business necessity.”   Relying on the Centers for Disease Control and Prevention’s (CDC) guidance that antibody tests “should not be used to make decisions about returning persons to the workplace[,]” the EEOC concluded that the testing is neither.  As a result, mandatory antibody testing is prohibited by the ADA.

SCOTUS Rules that Title VII Protects Employees from Discrimination on the Basis of Sexual Orientation and Gender Identity

by Marianna J. Michael

In a landmark decision, the Supreme Court of the United States held that the protections provided by Title VII of the Civil Rights Act of 1964 apply to gay, lesbian, and transgender employees. Title VII offers protection to workers from being discriminated against based on their race, color, religion, sex, or national origin.  Some lower courts interpreted “sex” to only apply to biological sex. Other courts held that the term “sex” included protections against discrimination for sexual orientation and gender identity. Today’s ruling makes it clear that under Federal law, employers may not discriminate against employees based on sexual orientation or gender identity.