Summary

We understand that our clients and contacts will be addressing complex redundancy issues related to COVID-19 in multiple jurisdictions. BCLP, together with our local counsel friends, have produced a global Q&A document covering 40 jurisdictions. We cover questions around dismissals, compensation, collective consultation and alternatives to redundancy.

Please download our global Q&A document here.

The document covers the following questions:

• Is there any legislation, order or mandate prohibiting an employer from dismissing an employee in circumstances where the employer has obtained the benefit of Coronavirus government support?
• Does an employee with a qualifying period of employment have any statutory protection against redundancy dismissal?
• What redundancy compensation is payable to an employee who is dismissed by reason of redundancy?
• Should an employer take into consideration a Coronavirus government support scheme before dismissing an employee?
• Are employers subject to separate collective consultation obligations?
• If an employer is subject to collective consultation obligations, is there any defence for a failure to comply?
• If an employer is subject to collective consultation obligations, what is the sanction for a failure to comply?
• What alternatives to redundancy dismissal are open to an employer?

Today, the UK Chancellor of the Exchequer, Rishi Sunak, made a long awaited statement setting out further details of the changes to the UK Coronavirus Job Retention Scheme (the “CJRS”). He confirmed that progressively with effect from 30 June 2020 until the cessation of the CJRS on 31 October 2020 the following changes will be made:

• From 30 June 2020: employers will not be able to put additional employees on furlough under the CJRS – employers can only make furlough claims in respect of those who have already been registered under the scheme as at 10 June 2020.
• From 1 July 2020: employers may take employees off furlough to work part-time. Employers will be responsible for remuneration costs related to any period of part-time work, with CJRS grants continuing to fund the period when the employees are not working part-time.
• From 1 August 2020: employers will have to pay the related employer National Insurance contributions and employer pension auto enrolment contributions.
• From 1 September 2020: employers must contribute 10% towards the pay of furloughed employees, with the government grant reduced to 70%. The 80% furlough pay will continue to be capped at £2,500 per month.
• From 1 October 2020: employers must contribute 20% towards the pay of furloughed employees, with the government grant reduced to 60%. The 80% furlough pay will continue to be capped at £2,500 per month.

With the above changes in mind, employers need to make early assessments as to whether, and if so how,

Today, the UK government announced that a new online service will be launched on 26 May 2020 for small and medium-sized employers (with fewer than 250 employees) to recover Statutory Sick Pay (SSP) payments they have made to their employees.

The Coronavirus Statutory Sick Pay Rebate Scheme (part of a package of support measures for businesses affected by Coronavirus) covers all types of employment contracts, including full-time employees; part-time employees; employees on agency contracts and employees on flexible or zero-hour contracts.

Employers will be able to make their claims through a new online service in respect of payments made to current or former employees for eligible periods of sickness starting on or after 13 March 2020 on condition that they have a PAYE payroll scheme that was created and started before 28 February 2020 and they had fewer than 250 employees before that date.  Employees do not have to provide a doctor’s fit note for their employer to make a claim under the scheme.

The repayment will cover up to 2 weeks of SSP and is payable in respect of employees who are unable to work because they have Coronavirus; are self-isolating and unable to work from home or are shielding because they have been advised that they are at high risk of severe illness from Coronavirus.

BCLP has assembled a COVID-19 Employment & Labor taskforce to assist clients with employment law issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com. You can also view other thought

Now that wearing gloves has become the new normal because of the COVID-19 pandemic, biometric privacy litigation, which in recent years has centered on employers’ use of finger-scan timekeeping technology, may ultimately shift in focus to the measures that businesses implement as employees return to the workplace and customers begin to frequent their favorite establishments.  Body temperature checks, used to screen employees and visitors for a fever, are one such measure being considered as a first line of defense for public health.

To mount a defense against, or avoid altogether, biometric privacy class action litigation, businesses open to the public and employers must have a comprehensive understanding of the thermometer or thermal imaging technology selected—and the data it captures—before rolling out temperature screenings on a widespread basis.  Among the technologies available are:

• Non-contact infrared thermometers that use lasers to measure temperature from a distance;
• Thermal imaging cameras that detect elevated skin temperatures compared against a sample of average temperature values;
• Monitoring systems that use thermal and color visual imaging to detect fevers in high-volume pedestrian areas; and
• “Wearables” that can use radiometric thermometry measuring electromagnetic wave emissions.

While temperature screening has been endorsed by the Centers for Disease Control and Prevention, the Equal Employment Opportunity Commission, and various state and local governments, biometric privacy laws have not been suspended or amended.  The Illinois Biometric Information Privacy Act (“BIPA”) regulates the possession, collection, capture, purchase, receipt, and sale of “biometric identifiers” and “biometric information”—defined to include retina or iris

The federal Department of Labor (“DOL”) is closing in on 100 informal “questions and answers” (the “Q&A”) relating to the Families First Coronavirus Response Act (“FFCRA”), having issued Q&A #s 89-93.  The new Q&A address steps employers may take when determining whether employees truly “need” FFCRA leave; issues relating to domestic workers; and a reminder for joint employers that prohibitions on adverse action, interference and retaliation may apply even to employers who are not covered by the FFCRA.

Determining Whether Employees Have A Qualifying Reason For Leave

Three of the five new Q&A provide critical guidance for employers on permissible questions and documentation requirements to ensure that leave is being taken in appropriate circumstances.

In the first Q&A (# 91), the DOL posits a factual scenario in which an employee with children has been teleworking productively for several weeks despite school closings, but then requests FFCRA leave.  The hypothetical employer wonders:  “Can I ask my employees why they are now unable to work or if they have pursued alternative child care arrangements?”  The DOL responds affirmatively, indicating that an employee may be asked “to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work.”

Employers should “exercise caution” in this area, however, because, according to the DOL, the more questions asked, the greater “the likelihood that any decision denying leave based on that information is a prohibited act.”  There are many reasons why an employee may not have initially

Employers preparing to reopen their places of business have many logistical considerations, including compliance with state and local health orders relating to face coverings, temperature and wellness screenings, and other measures designed to help keep employees healthy and safe during the COVID-19 pandemic. Last week, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its own “Return to Work” guidance by adding Q&A guidance on how employers should handle a “high risk” employee, i.e., an employee with an existing and known disability that may make the employee more susceptible to severe illness from COVID-19.  The guidance is a helpful reminder to employers that even actions taken with the best of intentions may not comply with legal obligations and restrictions.  Below are three important questions for employers to consider in light of the EEOC’s updated guidance.

How does the Interactive Process Apply to COVID-Related Requests for Accommodation?

Under the Americans with Disabilities Act (the “ADA”), employers are obligated to consider requests from a disabled employee for reasonable accommodations to the employee’s work environment that would permit him or her to perform the essential functions of the job. While the EEOC’s earlier guidance addressed the nuts and bolts of the “interactive process” during the pandemic generally (including the timeframe in which employers should respond to requests for accommodation and what qualifies as an “undue hardship” during the pandemic), many employers were left questioning how the outbreak of COVID-19 would impact their

Since its inception, almost one million employers have applied to the Coronavirus Job Retention Scheme (“CJRS”) to help pay the wages of 7.5m jobs (almost a quarter of all employees in the UK).  Although there is no doubt that the CJRS has been a great success in protecting jobs whilst businesses have been in hibernation, the cost to the UK taxpayer has been extraordinary – an estimated £49 billion up to 30 June 2020, according to the Office for Budget Responsibility.

The government will be hopeful that as lockdown is eased and employees who cannot work from home gradually return back to the workplace, reliance on the CJRS will decline.  However, there are some sectors which will not be able to reopen until 4 July 2020 (at the earliest) and there will be some employers who will not be able to put in place a COVID-19 secure workplace.  With that in mind, and with a collective redundancy consultation “cliff-edge” on 15 May 2020, the government has taken steps to extend the CJRS.

Today, the UK Chancellor of the Exchequer announced the following:

• the CJRS will be extended for a further four months, up to 31 October 2020;
• no changes will be made to the CJRS until the end of July 2020;
• with effect from 1 August 2020, part-time furloughing under the CJRS (which is currently prohibited) will be permitted;
• the existing government grant of 80% of wages (capped at £2,500 per month) will continue to remain in place; and

Yesterday, the UK government published eight different workplace-specific guidance documents on measures that employers need to take to “help get Brits safely back to work”. The guidance is tailored for different workplace environments, such as offices, factories, retail shops etc.

Whilst the basic position remains that employers should take all reasonable steps to help their staff work from home, where this is not feasible and the employer has not been told to close, staff should be encouraged to come back to work – as long as there is a ‘COVID-19 secure’ environment put in place by the employer.

In order to take steps to ensure that the workplace is COVID-19 secure, employers are required to take the following key steps:

• consult with the health and safety representative selected by a recognised trade union (or, if there is not one, a representative chosen by staff) about a risk assessment to be carried out in order to establish what specific guidelines need to be to put in place;
• share the results of the risk assessment with the workforce – the UK government has stated that it expects all employers with over 50 workers to publish this data on their website;
• display a standard form notice in the workplace to demonstrate that the employer is following the guidance;
• re-design workplaces to maintain (wherever possible) social distancing by, for example, ensuring a 2 metre distance between staff; staggering working hours and opening up more exit and entry points;
• if it is not
  

Last night, the UK Prime Minister made his long awaited announcement on the roadmap to easing lockdown in England.  As anticipated in the days leading up to the announcement, the changes to the lockdown arrangements (described by the TUC as a “recipe for confusion”) have been tentative.  From an employment perspective, the key points to note are:

•  the government guidance has now shifted so that those employees who work in the construction and manufacturing sector should be actively encouraged to return to work, if they cannot work from home;
• given the impact of social distancing on the public transport network, employees returning to the workplace, will need to find alternative ways to travel; and
•  employers will need to ensure that social distancing and other health and safety measures are in place at the workplace.

Limited public transport capacity is likely to pose a significant conundrum for employers.  Whilst they may be able to put in place innovative social distancing measures, it remains to be seen how staff will be to travel into work.  This is likely to be even more problematic as we move into the winter months when, for example, cycling to work will not be a practical solution.

Employers also need to balance the desire to reopen with ensuring that they provide a safe working environment and that their employees are comfortable returning to work.  Sector specific safety protocols, designed to make the workplace COVID secure, are expected to be published by the government shortly.  Employers

As state and local governments begin to ease restrictions on businesses and increasingly look to “reopen” economic activity, employers are evaluating how to safely return employees to the workplace. This preparation must include not only understanding the parameters of state and local orders (which often include basic social distancing measures, such as staying 6 feet apart, or requiring employees to wear face coverings), but also considering obligations under standards set by the federal Occupational Safety and Health Administration (“OSHA”).

Below is a guide for employers to consider as they evaluate safe return-to-work strategies during the ongoing COVID-19 pandemic. Please consult BCLP’s additional guidance for a broader discussion of other considerations when developing a “reopening plan.”

Step 1: Review state and local orders to determine whether a business or workplace is permitted to reopen.

As an initial step, an employer must determine whether, when and to what extent it can open and maintain in-person operations. State and local orders vary in their definitions of “essential businesses” permitted to operate. For example, Georgia’s recent “reopening” orders only grant a small subset of businesses permission to reopen. BCLP is tracking the current status of state and local shelter-in-place orders nationwide, which are changing regularly.

Step 2: Review OSHA’s COVID-19 Guidance to understand and implement broadly applicable recommendations for reducing employees’ risk of exposure to COVID-19.

An employer should next carefully consider what  steps it must take to comply with the federal Occupational Safety and Health Act (the