Workforce Bulletin

Part 2 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19. 

Who would have believed that months into this global pandemic, after the innumerable and unspeakable loss to human life, to global economies, and to our own sense of selves and normalcy – that the relatively straightforward issue of whether to wear a mask to curb the spread of this virus would remain such a hot button topic.  And yet, here we are.

The overwhelming science – yes, science – reported and confirmed by scientists, physicians, and leading health experts across the globe – is ...

Part 1 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19. 

As Labor Day approaches, with schools reopening (in some form or fashion), and as we approach the end of our collective bandwidth for Zoom meetings, much time and attention has been spent discussing how and when to finally “return to work.”

But in thinking about that seemingly innocuous phrase - “return to work” - employers would be remiss not to take a moment to pause and re-think what that phrase actually means in a post-COVID-world.  Is work somewhere that you go?  Or is work something ...

On August 6, 2020, in Rose’s 1 LLC, et al. v. Erie Insurance Exchange, a District of Columbia trial court granted an insurer’s cross motion for summary judgment on the issue of whether COVID-19 closure orders constitute a “direct physical loss” under a commercial property policy. Plaintiff insureds (“Insureds”) own several restaurants in Washington D.C. that were forced to close and suffered serious revenue losses stemming from the Mayor’s orders to close non-essential businesses and ordering people to stay home. As a result, the Insureds made claims to Defendant Erie Insurance Exchange (the “Insurer”) under their policies that included coverage for “loss of ‘income’ and/or ‘rental income’” sustained “due to partial or total ‘interruption of business’ resulting directly from ‘loss’ or damage” to the property insured. The policy also stated that it “insures against direct physical ‘loss.’”

Dictionary Definitions Open to Interpretation

As the Court framed the issue, “[a]t the most basic level, the parties dispute whether the closure of the restaurants due to Mayor Bowser’s orders constituted a ‘direct physical loss’ under the policy.” To support their argument, the Insureds relied on dictionary definitions of “direct” as “[w]ithout intervening persons, conditions, or agencies; immediate;” and “physical” as pertaining to things “[o]f or pertaining to matter, or the world as perceived by the senses; material as [opposed] to mental or spiritual.” The policy defined “loss,” as “direct and accidental loss of or damage to covered property.”

The Insureds relied on these definitions to make three arguments. First, they argued that the loss of use of their restaurant properties was “direct” because the closures were the direct result of the Mayor’s orders without intervening action. The Court rejected that argument because those orders commanded individuals and businesses to take certain actions and “[s[tanding alone and absent intervening actions by individuals and businesses, the orders did not affect any direct changes to the properties.”

Second, the Insureds argued that their losses were “physical” because the COVID-19 virus is “material” and “tangible,” and because the harm they experienced was caused by the Mayor’s orders rather than diners being afraid to eat out. The Court also rejected that argument because the Insureds offered no evidence that COVID-19 was actually present on their properties at the time they were forced to close and the mayor’s orders did not impact the tangible structure of the properties.

Third, the Insureds argued that the policy’s definition of “loss” as encompassing either “loss” or “damage,” required the insurer to “treat the term ‘loss’ as distinct from ‘damage,’ which connotes physical damage to the property,” and thus “loss” incorporates “loss of use.” The Court rejected that argument and held that the words “direct” and “physical” modify the word “loss” and therefore any “loss of use” must be “caused, without the intervention of other persons or conditions, by something pertaining to matter—in other words, a direct physical intrusion [onto] the insured property.” The Court held that the Mayor’s orders did not constitute such a direct physical intrusion.

On July 24, 2020, Connecticut Governor Lamont issued Executive Order JJJ (“E.O. JJJ”), which creates a presumption that employees who contracted COVID-19 in the early days of the pandemic contracted it at work and are eligible for workers’ compensation benefits.

Pursuant to E.O. JJJ, there shall be a “rebuttable presumption” that an employee, who makes a claim for benefits under the Workers’ Compensation Act, and who missed one or more days of work between March 10, 2020 and May 20, 2020, inclusive, due to a diagnosis of COVID-19 or symptoms that were diagnosed as ...

On August 8, 2020, in response to local meteorology reports of expected temperatures of above 95°F, Luxembourg’s Ministry of Health announced a “red alert warning,” and implemented a Heat Wave Plan. The Heat Wave Plan (i) advises that older individuals, infants, and those with chronic illnesses may be affected by such high temperatures and (ii) offers personal check-in and hydration services by the Luxembourg Red Cross and home care agencies. All such visits must adhere to COVID-19 safety procedures.

Additionally, the Luxembourg Labor and Mines Inspectorate (the ...

As featured in #WorkforceWednesday: As the uncertainty with the COVID-19 pandemic continues, many employers are considering extended or permanent work-from-home (WFH) models. Attorneys Brian G. Cesaratto and Shawndra G. Jones share some tips for employers on cybersecurity and other issues to consider when implementing extended WFH models.

Video: YouTube, Vimeo, MP4, Instagram.

On June 16, 2020, the Court of Appeal for Ontario handed down a decision that will have a profound impact on the enforceability of termination provisions in Ontario employment agreements. In Waksdale v. Swegon North America, Inc., the Court of Appeal held that if the termination provisions governing “cause” of an employment contract violate the Employment Standards Act, 2000 (“ESA”), those provisions are not severable and the entire termination provision of the employment agreement is void and unenforceable.

Factual Background & Procedural History

Benjamin Waksdale ...

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

Parental Leave Extension Due to COVID-19

Benefit Duration and Eligibility: The law allows ...

USCIS Will Increase Filing Fees as of October 2, 2020

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

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

While the country remains focused on the COVID-19 pandemic, U.S. employers cannot ignore the ongoing opioid epidemic or how it may affect their workforces.  On August 5, 2020, the Equal Employment Opportunity Commission (“EEOC”) released new guidance addressing the rights of opioid users in the workplace under the Americans with Disabilities Act (“ADA”).[1]  The two question-and-answer documents clarify that while current illegal drug use is not protected, employees who “are using opioids, are addicted to opioids, or were addicted to opioids in the past, but are not ...