17 2003) (sexual harassment alleged to have occurred at funeral of employee’s family member); Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995) (sexual harassment alleged to have occurred at dinner party). It also can occur through text messaging and social media. https:// www.eeoc.gov/eeoc/newsroom/release/8-30-12.cfm. Accordingly, employers should require employees to maintain professional attire and behavior during remote work functions such as video conferences and virtual happy hours, and remind employees that sexual harassment can extend beyond the physical workplace. Return to Work Even after the employer’s workforce returns, employers should continue to adhere to federal, state, and local guidance regarding appropriate protective measures. An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols). However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves for employees with latex allergies, modified or “clear” face masks to aid deaf or hard of hearing employees who rely on lip reading, or modified gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII of the Civil Rights Act and the New Jersey Law Against Discrimination (e.g., modified equipment due to religious apparel), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business. https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm Takeaway In sum, employers should continue to be vigilant in observing applicable laws and policies, even while most or all of their workforce continues to work from home. Employers should also be proactive in developing, now, new workplace protocols and polices that will ensure general workforce safety and by identifying the new accommodations needs of individual employees.
DOL Releases New Back-to-School FFCRA Guidance Client Alert – September 2020 Authored By Kerri A. Wright & Thomas J. Reilly On August 27, 2020, the U.S. Department of Labor released new guidance regarding the Families First Coronavirus Response Act (FFCRA) in a question and answer format. The guidance was released to address various questions regarding teleworking, remote learning, and other issues that are sure to surface as schools open throughout the country. School Closures The guidance confirms that a child’s school or place of care is “closed” for purposes of the FFCRA if it has moved completely to distance or virtual learning and the “physical location” is closed. For schools that create “hybrid” programs whereby the school is open on certain days, and virtual learning takes place on other days, an employee is “eligible to take paid leave under the FFCRA [only] on days when [the employee’s] child is not permitted to attend school in person and must instead engage in remote learning.” Schools that give parents the option of having their children either physically attend school or engage in remote learning are
not considered “closed” for purposes of the FFCRA. So long as the child has the option of physically attending school, the school is “open” and an employee cannot take expanded family leave to care for that child. If the school currently is under a remote learning program but may later reopen for physical attendance, the school is considered “closed” for FFCRA purposes unless and until it permits in-person instruction. Additionally, employees cannot take family leave to care for a child whose school has closed if that child is over the age of 18, unless the child has a disability and cannot care for him or herself due to that disability. Leave Under Existing Policies An employer may not require employer-provided paid leave to run concurrently with — that is, cover the same hours as — paid sick leave under the Emergency Paid Sick Leave Act. However, the guidance states that employers may require employees to take paid leave under an existing paid leave policy concurrent with expanded family leave under the EFMLEA “[a]fter the first two workweeks (usually 10 workdays) of expanded family and medical leave under the EFMLEA.” In
