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Robert Horton

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As chair of the firm’s Labor & Employment Practice Group, Bob Horton represents management in all areas of labor and employment law. Bob’s practice consists primarily of counseling clients regarding employment issues and defending companies against all manner of employment claims throughout the U.S.

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In response to President Biden’s Executive Order issued on January 21, 2021, directing the Occupational Safety and Health Administration (OSHA) to take action to reduce the risk that workers may contract COVID-19 in the workplace, OSHA has issued an emergency temporary standard (ETS) to set forth guidelines to protect healthcare workers.

Effective June 21, 2021, the ETS applies only to settings where any employee provides healthcare services or healthcare support services.  The masking, distancing, and barrier requirements under the ETS do not apply to settings with well-defined areas where all employees are fully vaccinated and there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present. OSHA has provided a flowchart to determine which workplaces are affected.

Develop and implement a COVID-19 plan:  Employers are required to develop and implement a plan to combat COVID-19.  This plan must be in writing if there are more than 10 employees.  Employers must conduct hazard assessments for each specific workplace to identify potential COVID-19 hazards and designate a safety coordinator with the authority to ensure compliance with all aspects of the plan.

Limit and monitor points of entry:  In workplaces where direct patient care is provided, employers must limit and monitor points of entry.  Patients, clients, residents, and other visitors must also be screened and triaged.  Other patient management strategies must be implemented per CDC guidance.Continue Reading OSHA Issues Emergency Temporary Standard to Protect Healthcare Workers from COVID-19

The legislatures of Oregon, Nevada and Illinois recently placed additional limitations on restrictive covenants, particularly non-competition covenants.

Changes to Oregon Restrictive Covenants

Effective as to agreements entered into on or after May 21, 2021, Oregon has further restricted non-compete agreements.  Oregon previously limited non-compete agreements to a maximum of 18 months from the date of separation and to only those employees who do the following:

  • Engage in administrative, executive or professional work.
  • Perform predominately intellectual, managerial or creative tasks.
  • Exercise discretion and independent judgment.
  • Are paid a salary (or combination of salary and commissions) that exceeds the median income for a four-person family.

Continue Reading Oregon, Nevada and Illinois Further Limit Restrictive Covenants

As passed back in March 2020, the Families First Coronavirus Response Act (FFCRA)’s Emergency Paid Sick Leave (EPSL) Act and Emergency Family and Medical Leave Act (EFMLA) requirements by which employers with less than 500 employees must provide paid leave for certain COVID-19-related circumstances will expire as of December 31, 2020. The Coronavirus Response and Relief Supplemental Appropriations Act (Supplemental Bill) passed by Congress on December 21 does not extend those requirements beyond the December 31 date. However, the Supplemental Bill does continue to allow covered employers to take tax credits for such paid leave provided to employees between January 1 and March 31, 2021, if that paid leave would have otherwise been consistent with the FFCRA’s requirements if they had been extended beyond December 31.
Continue Reading New Relief Bill Does Not Extend FFCRA Requirements but Does Encourage Voluntary Extension

On August 3, the federal court for the Southern District of New York (SDNY) issued an order invalidating several significant portions of the Department of Labor’s (DOL’s) Final Rule regarding the Families First Coronavirus Response Act (FFCRA). The SDNY struck down the following provisions:

  1. That work has to be otherwise available to the employee for the employee to be eligible for Emergency Paid Sick Leave (EPSL).
  2. The DOL’s expansive definition of “healthcare providers” for the purposes of who can be excluded from the FFCRA mandated leave.
  3. That an employer must agree to the use of EPSL on an intermittent basis by employees for reasons not related to the possible spread of COVID-19 by the employee.
  4. That an employee must provide documentation requesting FFCRA before the beginning of the leave.

This ruling clearly applies in the Southern District of New York, however, its impact outside of the district is uncertain. As of now, employers who operate in that jurisdiction may have differing obligations under the FFCRA than employers operating outside.

A more detailed description of the ruling is provided below.Continue Reading Court Ruling Invalidates DOL’s Final Rule Related to FFCRA

I recently offered guidance on the Worker Adjustment and Retraining Notification (WARN) Act as it relates to changes in employment status for an article by the Society for Human Resource Management (SHRM) addressing potential litigation issues from the COVID-19 fallout.

The WARN Act requires most employers with more than 100 employees to provide a 60-day notice ahead of large-scale layoffs or the closing of operations. WARN Act claims require plaintiffs to show the following:

  • A facility closed and at least 50 full-time employees lost their jobs.
  • At least 500 full-time employees at a facility lost their jobs.
  • At least 50 full-time employees lost their jobs and the number of full-time employees at the facility losing their jobs exceeded one third of all employees at the facility.

Continue Reading Guidance on Potential Litigation Involving WARN Act Following COVID-19 Pandemic

Bass, Berry & Sims attorneys Davidson French, Bob Horton and Kimberly Veirs recently presented a Middle Tennessee Society for Human Resource Management’s (MTSHRM) webinar.

The webinar, entitled “Update on Federal Legislation in Response to COVID-19 Pandemic Impacting Employers,” reviewed the latest DOL guidance for employers implementing the provisions of the Families First Coronavirus Relief Act…

Please note that the content below was posted on March 30, 2020. We have since provided updated guidance on the topics discussed in this post here.

The U.S. Department of Labor (DOL) is issuing ongoing guidance regarding the application of the Families First Coronavirus Response Act (FFCRA).  The guidance has provided answers to many pressing questions faced by employers as they prepare to implement the FFCRA’s requirements starting April 1, 2020, including how a “healthcare provider” is defined, whether furloughed employees are entitled to paid leave benefits, whether leave under the FFCRA may be taken intermittently, and the application of the small business exception.  DOL’s guidance can be found here.  Below is a summary of some of the most common FAQs.Continue Reading DOL Issues Second Round of Guidance on FFCRA

Please note that the content below was posted on March 26, 2020. We have since provided updated guidance on the topics discussed in this post here.

The Department of Labor has issued a Notice Poster outlining employees’ rights under the Families First Coronavirus Response Act’s (FFCRA). This poster must be displayed in a conspicuous place in a location visible to employees and is available for download on the DOL website.  Additional facts regarding posting requirements can be found here.

Both the FFCRA’s leave provisions (Paid Sick Leave and Emergency FMLA) apply to private employers with fewer than 500 employees.  The Department of Labor has issued a Questions and Answers resource addressing one of the FFCRA’s most lingering questions – which employees are counted for purposes of the 500 or less employee threshold?Continue Reading DOL Issues Notice Poster and Answers to FFCRA Frequently Asked Questions Clarifying 500-Employee Threshold

COVID-19 is spreading and testing, in many states, is increasing.  As a result, increasing numbers of employers will be faced with the reality of an employee testing positive for COVID-19.  When that happens, what’s an employer to do?  Below are some FAQs about COVID-19 in the workplace.

An employee has tested positive.  What can an employer do?

Send the employee home immediately.  The employer may require a doctor’s note releasing the employee to return to work, although the CDC has asked employers to consider foregoing such documentation due to current healthcare constraints.  If the employer chooses to forego the medical release to work, the CDC has provided that employees should not return to work until they are free of fever (without the use of fever-reducing medications) and any other COVID-19-related symptoms for at least 24 hours.  The CDC has indicated that healthcare professionals diagnosed with COVID-19 may return to work after seven days have passed since symptoms first appeared AND after three days have passed since resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms.

The employer should consider a deep clean of the employee’s workplace, including common areas.  The employer has the option to notify the diagnosed employee’s co-workers of the diagnosis, without releasing the employee’s name.  A sample notice is below:Continue Reading COVID-19 in the Workplace: Employer FAQs

The economic repercussions of COVID-19 have been immediate and in many cases, debilitating, to American business across all industries, from food & beverage to manufacturing to healthcare.  Challenges faced include government-mandated closures of certain “non-essential” businesses and reduced demand of products and/or services.  As business revenue plummets, many companies are faced with the need to cut significant human capital costs in order to keep their business afloat.  Below are some options for companies to consider as they work to address reduced staffing needs.

Furlough

While the term furlough is used to describe various arrangements, typically a furlough is an unpaid leave of absence.  A furlough is often ideal for employers who anticipate a temporary need for reduced staffing.  Employees on furlough are still technically employed by the employer and, as a result, may be able to remain on the employer’s group health plan(s) if permitted by the terms of the plan(s).  Employers may require employees to pay the applicable employee portion of the premium during the furlough.  If the employer’s group health plan(s) is not available to employees on furlough, COBRA coverage would commence.  Also, many states allow for unemployment compensation to employees on an unpaid furlough.Continue Reading Workforce Reduction Options Amid COVID-19

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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