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UK Covid-19: The importance of being adaptable when implementing hybrid or blended working policies

Now that the government is no longer instructing people to work from home if they can, many employers are pressing ahead with the implementation of hybrid or blended working arrangements. This article highlights the importance of being adaptable when implementing such arrangements, especially in respect of discrimination risks.

Many employers are now adopting policies which mandate that employees need to attend the office for a specific duration i.e. 3 days a week at home and 2 in the office. When implementing such policies, it may be tempting (and administratively easier) to apply them across the entire workforce without making exceptions based on individual circumstances. However, employers should be careful about adopting such an approach without considering the risk of discrimination claims. For example, employees with underlying health conditions may allege disability discrimination if they are subject to a detriment due to a failure to obey an instruction to return to the workplace. Employers should also be aware that the Employment Rights Act 1996 provides protection for employees who raise health and safety concerns or refuse to attend work where they have a reasonable belief that there is a serious and imminent danger to health.

Whilst not as common, some employers

In Colorado, Employers May Giveth – But They May Not Taketh Away

July 6, 2021

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Last month, the Colorado Supreme Court finally resolved a longstanding issue in Colorado employment law: whether employers may have a policy or agreement that provides for forfeiture of accrued but unused vacation.  The Court’s answer was “no.”

In deciding Nieto v. Clark’s Market, No 19SC553 (Colo. June 14, 2021), the Court clarified the meaning of a troublesome provision of the Colorado Wage Act.  C.R.S. 8-4-101(14)(a)(III) defines “wages” to include:

(III) Vacation pay earned in accordance with the terms of any agreement. If an employer provides paid vacation for an employee, the employer shall pay upon separation from employment all vacation pay earned and determinable in accordance with the terms of any agreement between the employer and the employee.

The employer in Nieto case argued (among other things) that the phrase “in accordance with the terms of any agreement between the employer and the employee” modified the phrase “the employer shall pay,” thus allowing employers to avoid the obligation to pay for unused vacation by adopting a policy to the contrary.  The Colorado Supreme Court disagreed, holding that the phrase in question modifies the phrase “earned and determinable.”  Therefore, under the Act, whether vacation is “earned and determinable” is

UK Covid-19: Workplace testing: Is it good for employers’ health?

The government is encouraging employers to regularly test their employees for Covid-19. This article looks at some of the implications of introducing a workplace testing regime and suggests an alternative approach to carrying out such testing in the workplace.

New health secretary Sajid Javid has stated it is the government’s intention that step 4 of the lockdown roadmap will take place on Monday 19 July 2021, or “terminus day” as it has been called by the prime minister.

It has been speculated that the work from home guidance may remain in place beyond stage 4 of the roadmap, but the government’s intention at this stage appears to be for all restrictions to fall away on the 19 July. However, despite the easing of restrictions the government has confirmed that testing will remain central to controlling the spread of Covid-19, especially as we move into the winter months when cold/flu symptoms will become more prevalent. In view of this, the government have stated that they would like as many employers as possible to sign up to regularly test their employees for the virus.

Despite this encouragement, employers should be aware that the government’s working safely during coronavirus guidance makes it clear the

Update: EEO-1 Report Filing Deadline Extended for 2019 and 2020; New Deadline: August 23, 2021

Private employers with more than 100 employees and federal contractors and subcontractors with 50 or more employees are required to annually submit certain workforce demographic data to the Equal Employment Opportunity Commission (“EEOC”). Employers meeting the reporting thresholds submit this data through an EEO-1 report, which collects data about employees’ by gender, race/ethnicity and job groupings. The previously announced deadline for submitting EEO-1 reports for 2019 and 2020 was July 19, 2021. Recognizing the impact of the pandemic on workplaces and the requirement to submit two years of EEO-1 data through a new process, however, the EEOC has further extended the submission deadline to August 23, 2021.

Submission of these EEO-1 reports is mandatory.  Filers who have questions regarding the data reporting and/or submission processes or requirements should visit the Filer Support Center on the EEOC’s website at https://eeocdata.org/EEO1/support.

Illinois Enacts Sweeping Reforms to Non-Compete and Non-Solicit Agreements—What All Employers Need To Know

The Illinois General Assembly has enacted sweeping changes to the Illinois Freedom to Work Act, 820 ILCS § 90, et seq. (the “Act”), which will limit the use of covenants not to compete (“non-competes”) and covenants not to solicit (“non-solicits”) in employment agreements to employees earning more than certain compensation thresholds established by the amendments to the Act. The amendments to the Act also impose certain additional procedural requirements on employers utilizing non-competes and non-solicits.  Senate Bill 672 (“SB 672”) passed unanimously in the Illinois House and Senate, and Governor J.B. Pritzker is expected to sign the bill.

Here’s what employers need to know.

  1. Do the changes in SB 672 impact existing employment agreements containing restrictive covenants?

No.  SB 672 applies to non-competes and non-solicits entered into after January 1, 2022.  Employers should review any form and/or template agreements to ensure compliance going forward, but need not make changes to agreements entered into before January 1, 2022, in order to comply with the Act. That said, if employers are considering revising their restrictive covenant forms, they should begin that process now, especially if they intend to ask existing employees to sign new forms prior to January 1,

Coronavirus (UK): the next stage of the furlough scheme – key points for employers in the Hotels & Hospitality sector

June 17, 2021

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In our recent blog, we highlighted the UK government’s announcement on 14 June 2021 in relation to the likely four week delay in triggering stage 4 of the lockdown roadmap.  This announcement was not, however, accompanied by a further extension of the Coronavirus Job Retention Scheme (“CJRS”), despite many hotel & hospitality businesses calling on the government to extend it given many are still unable to trade or make profit.  On the assumption that there will not be an extension, the CJRS will cease on 30 September 2021.

Until 30 June 2021, the government furlough grant will continue to pay 80% of wages for hours not worked, capped at £2,500 per month. Employers will be liable for employer National Insurance contributions and employer pension contributions only.  However, things are about to change.

What do employers in the hotels and hospitality sector need to consider?

With effect from 1 July 2021 until the cessation of the CJRS on 30 September 2021, the following changes will be made:

  • From 1 July 2021: 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

Coronavirus (UK): the next stage of the furlough scheme – key points for employers

In our recent blog, we highlighted the UK government’s announcement on 14 June 2021 in relation to the likely four week delay in triggering stage 4 of the lockdown roadmap.  This announcement was not, however, accompanied by a further extension of the Coronavirus Job Retention Scheme (“CJRS”).  On the assumption that there will not be an extension, the CJRS will cease on 30 September 2021.

Until 30 June 2021, the government furlough grant will continue to pay 80% of wages for hours not worked, capped at £2,500 per month. Employers will be liable for employer National Insurance contributions and employer pension contributions only.  However, things are about to change.

What do employers need to consider?

With effect from 1 July 2021 until the cessation of the CJRS on 30 September 2021, the following changes will be made:

  • From 1 July 2021: 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 August 2021: employers must contribute 20% towards the pay of furloughed employees, with the government grant reduced to 60%. The 80% furlough pay will continue to

Employee COVID Vaccination Status: You Asked. They Answered. Now What?

As employers make plans to modify pandemic-related work-from-home arrangements and require employees to come into the workplace, many have wrestled with “the vaccination status question.” Should employers ask employees whether they are fully vaccinated against COVID-19, or even require employees to provide proof of vaccination before returning to work (subject to certain accommodation obligations)?

The U.S. Equal Employment Opportunity Commission’s (“EEOC”) COVID-19 Guidance has made clear that, under the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”), employers are generally permitted to inquire about vaccination status, because the question is not a disability-related inquiry or a medical examination.  In light of this guidance, many employers have opted to ask the vaccination status question, and are doing so in various voluntary or mandatory ways, e.g., through surveys, through required completion of forms or attestations, or even by requesting proof of vaccination (i.e., a copy or photograph of the employee’s CDC-issued vaccination card received at the time of vaccination).

But once the vaccination status question is asked and answered, what can and should an employer do with the vaccination status information? Can it be the basis for employment-related decisions? Are there any restrictions on

UK Covid 19: Government announces delay to final step on roadmap, emphasising the need for employers to be ready for change

The government has announced that stage 4 of the lockdown roadmap will be delayed. This article looks at how employers need to be able to anticipate future change in their return to work policies.

On Monday 14 June 2021, the government announced that stage 4 of the lockdown roadmap will be delayed for a period of up to 4 weeks. As part of this, the government guidance that workers should work from home if possible will continue beyond 21 June.

This comes at a time when employers, particularly those with an office-based workforce, have been considering the approach they will take in return to work policies. That will continue, but with the inevitable pushing back of implementation. Employers, quite understandably, want to be ready for an influx of people coming back to the office and, more often than not, have been steering towards a policy that allows the workforce to continue working from home to some degree.

Since the outbreak of the pandemic in the UK in March 2020, one thing we have known for certain is unpredictability. It was only in September last year that the government launched a short-lived advertising campaign to encourage workers to return to their

(E)ESG – Why It Matters to Employment Experts

In our hyper-transparent and increasingly joined up world, the concepts of corporate social responsibility and socially responsible investing are gaining greater currency. Over the last decade, and catalysed by COVID-19 over the last year, Boards and General Counsel have focused on the role of ESG in driving responsible and sustainable business conduct approaches which acknowledge that the purpose of a company should be amplified beyond just shareholders to also explicitly include their employees, clients and the communities in which they operate.  In fact, the Chief Justice of the Delaware Supreme Court, the Honourable Judge Leo Strine in a piece he wrote for the Financial Times, has already suggested the next generation acronym – EESG: Employees, Environment, Social and Governance.

So, what does this mean and why is it important for employment professionals? Hopefully the first E is a clear hint (it’s not a typo)!

What is ESG?

ESG is the umbrella term for broad range of Environmental, Social and Governance factors against which a company’s stakeholders can holistically assess the performance, value (risk/opportunity), investment in respect of the company.  Many ESG factors contribute to a company’s “social licence to operate” and responsibility to its stakeholders and the creation of long-term holistic value for a

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