OSHA Releases Additional FAQs Regarding Returning to the Workplace: What Employers Need to Know

By Harris Mufson, Lexie Reynolds and Heylee Bernstein on July 7, 2020 Posted in Coronavirus, Workplace Safety

The Occupational Safety and Health Administration (OSHA) published additional frequently asked questions regarding returning to the workplace during the COVID-19 pandemic on Thursday. We reported on OSHA’s earlier posted FAQs here. Though the FAQs do not impose any new legal requirements, employers should be aware of OSHA’s recommendations as workplaces around the country continue to reopen to workers, customers, and other visitors.

Cloth Face Coverings

Notably, OSHA recommends that employers encourage workers to wear face coverings while at work. OSHA maintains that employers must ensure social distancing in the workplace, even when workers wear cloth face coverings. This recommendation is consistent with the CDC’s recommendation that all people wear cloth face coverings in public and around others.

OSHA clarifies that employers have discretion to allow employees to wear cloth face coverings “based on the specific circumstances present at the work site.” For example, if chemicals are highly present in a workplace, cloth face coverings can become contaminated with the chemicals and pose a danger to employees. In such a case, employers might determine that cloth face coverings are actually a hazard to workers. Employers can then provide PPE instead of encouraging cloth face coverings.

OSHA also notes that employers should evaluate their “accessible communication policies and procedures” such as considering providing masks with clear windows to facilitate communication between workers and members of the public who rely on lip-reading.

Testing Positive

OSHA recommends workers inform employers if they have tested positive for COVID-19. When employers are notified that one of their workers tested positive, they should follow applicable CDC recommendations regarding community-related exposure, eventual return to work, and cleaning and disinfecting.

OSHA does not require employers to notify other employees if one of their workers tests positive. Still, employers must take appropriate steps to protect other workers from exposure, which may include notifying other workers to monitor themselves for symptoms, screening workers, and cleaning and disinfecting. The FAQs note that the CDC, on the other hand, recommends employers determine which employees may have been exposed and inform employees of such possible exposure.

Employers should keep in mind that they may not disclose confidential medical information under the Americans with Disabilities Act, and applicable federal, state, and local laws.

Construction and Healthcare Industries

The FAQs contain sections devoted to employers in the construction and healthcare industries. OSHA directs construction industry employers to its industry-specific guidance, and reminds these employers that OSHA’s requirements for respiratory protection in construction that were in place prior to COVID-19 remain in effect and have not changed.

OSHA directs healthcare industry employers to its previously issued guidance (here and here), as well as CDC guidance. OSHA’s healthcare industry guidance applies to healthcare provided outside of hospitals as well, such as through home healthcare, physical therapy, occupational therapy, and chiropractic care.

Worker Protection Concerns

Workers who are concerned their employers are not appropriately protecting them from exposure in the workplace are encouraged to speak with their employer. The FAQs remind workers that they have the right to file OSHA complaints in certain circumstances as well, including if they have been retaliated against for voicing concerns about a good faith belief regarding a health or safety hazard.

OSHA’s FAQs also remind employers of their responsibility to conduct a hazard assessment regarding exposure to hazardous chemicals used for cleaning and disinfecting. Based on the results, employers may need to provide PPE and implement a hazard communication program, in compliance with OSHA’s Hazard Communication Standard.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

U.S. Regions: Nationwide

Tags: coronavirus, COVID-19, guidelines, OSHA, workplace safety

OSHA Releases Guidance on Reopening Workplaces

By Harris Mufson, Lexie Reynolds and Heylee Bernstein on July 1, 2020 Posted in Coronavirus, Workplace Safety

On June 18, OSHA issued non-binding guidance to help employers safely reopen non-essential businesses and facilitate their employees’ return to work during the COVID-19 pandemic. The guidance focuses on employers implementing strategies for five main aspects of the workplace: basic hygiene, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training. As OSHA’s National News Release states, the guidance is meant to supplement the U.S. Department of Labor’s (DOL) and Health and Human Services’ previously issued guidelines regarding reopening workplaces.

Foremost, the guidelines note that employers’ reopening plans should align with all applicable requirements, including state and local stay-at-home orders, and federal requirements. Employers are encouraged to continually monitor all applicable government guidelines for ongoing information that could impact reopening plans. Further, employers should continue to consider flexible work arrangements, such as telework, and “alternative business operations to provide goods and services to customers.”

OSHA’s guidelines contain recommendations specific to each phase of reopening, as identified by the White House’s and the CDC’s “Opening Up America Again” guidelines:

During Phase 1 — states or regions can move into Phase 1 when the state or region has met certain specified milestones, including a downward trajectory of documented cases within a 14-day period, or a downward trajectory of positive tests as a percent of total tests within a 14-day period. During this phase, employers should consider allowing employees to telework when feasible and limiting the number of people physically present in the workplace in order to maintain social distancing. Workers with heightened risk of severe illness, such as older adults and those with certain medical conditions, as well as workers with household members at heightened risk, should be considered for workplace accommodations where feasible. In addition, employers are encouraged to limit all non-essential business travel.
During Phase 2 — no rebound in cases after 14 days in Phase 1, and continue to meet the gating criteria to begin Phase 1. During this phase, employers should continue to offer teleworking options. However, non-essential business travel may resume. Employers may ease restrictions on the number of people in the workplace, but workers should be able to maintain moderate to strict social distance, depending on the workplace. Employers are encouraged to continue the Phase 1 accommodations for workers at heightened risk and those with household members at heightened risk.
During Phase 3 — no rebound in cases during Phase 2, and continue to meet the gating criteria throughout all phases. During this phase, businesses may resume staffing workplaces without restrictions.
Throughout all phases, employers should implement policies to prevent, monitor, and respond to COVID-19 cases in the workplace and local area. Employers should implement policies and procedures that outline phase-appropriate strategies for the guidelines’ five focal aspects of the workplace: basic hygiene, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training.

Guiding Principles

OSHA’s guidelines also contain the following “guiding principles” which each employer’s reopening plan should address, as well as examples of how to implement each principle:

Hazard Assessment: Hazard assessments include practices to determine when, where, and how workers may be exposed to COVID-19. Examples include assessing all job tasks to determine which involve occupational exposure, such as to the public or by close contact with coworkers, and considering the risk of current local outbreaks.
Hygiene: To promote hand hygiene, respiratory etiquette, and cleaning and disinfection practices, employers should provide hand sanitizer, or soap, water, and paper towels for anybody that enters the workplace. Additional examples include identifying high-traffic areas and targeting them for enhanced cleaning and disinfection pursuant to CDC guidance.
Social Distancing: Practices should include maximizing distance to the extent feasible and maintaining distance between all people, including workers, customers, and visitors. Employers may limit business occupancy to a certain number of workers and customers in order to enable social distancing. Employers might also post reminders and directional signs throughout the workplace.
Identification and Isolation of Sick Employees: To achieve this goal, the guidelines suggest encouraging employees to evaluate themselves for COVID-19 symptoms and stay home if they feel ill. Employers might also establish their own protocol to respond to those who become ill while in the workplace, such as isolating the sick person, cleaning, and disinfecting.
Return to Work After Illness or Exposure: Here, OSHA suggests employers follow CDC guidance regarding discontinuing self-isolation and returning to work, or monitoring after exposure, depending on the workplace.
Controls: Controls include utilizing engineering and administrative controls and personal protective equipment (PPE) as a result of the employer’s hazard assessment. To achieve this goal, employers should provide PPE and ensure workers use such equipment depending on the situation and identified hazards. Additionally, employers may consider increasing workplace ventilation, installing physical barriers or shields to separate workers, or implementing staggered work shifts.
Workplace Flexibilities: To ensure a flexible workplace, employers may consider new policies that utilize telework when appropriate, and provide sick or other types of leave, and communicate these policies and how to make use of them to workers.
Training: To ensure employees receive training on the signs, symptoms, and risk factors associated with COVID-19 and how to prevent the spread at work, employers are encouraged to train workers in the appropriate language and literacy level about various aspects of maintaining a safe workplace amid the risk of COVID-19, including regarding wearing face coverings in the workplace. Where PPE, including respiratory protection, is utilized in the workplace, OSHA standards for PPE must be followed, which includes training workers on how to put on, use, and take off PPE, how to maintain and dispose of PPE, and what protections PPE offers and does not offer. The guidance clarifies that cloth face coverings are not considered PPE for purposes of the OSHA PPE training requirements.
Anti-retaliation: Employers should engage in practices to ensure that no adverse or retaliatory action is taken against employees who adhere to these guidelines or raise workplace safety and health concerns. Employers should ensure that workers understand their rights to a safe work environment and to raise safety concerns to their employer or OSHA.

The guidelines explain that while the guiding principles should inform employers’ reopening plans, the examples of how to implement the principles do not apply to every employer. Nevertheless, all employers are encouraged to communicate to workers the measures taken to maintain a safe workplace, including through training, as well as provide a designated person to receive workers’ concerns.

The guidelines additionally remind employers that all of OSHA’s standards regarding protecting workers from infection in the workplace remain in effect, even as workers return to work. These include OSHA’s applicable PPE standards, respiratory protection standards, and sanitation standards. Of course, under the General Duty Clause, Section 5(a)(1) of the OSH Act, employers are always obligated to “provide a safe and healthful workplace that is free from serious recognized hazards.”

FAQs

The guidelines also contain a series of FAQs. The answers confirm that employers may conduct worksite COVID-19 testing, temperature checks, and other health screenings. The FAQs explain that if employers choose to create records of the tests and screenings, then the records might qualify as medical records for purposes of certain record-keeping requirements. If they are medical records, employers must maintain the records for the duration of each worker’s employment plus 30 years. Employers must also follow confidentiality requirements. Employers need not make a record of temperatures when they screen workers; instead, they may acknowledge a temperature reading as it is made. Further, those personnel administering the tests and screenings must be protected from exposure to COVID-19. Note that the U.S. Equal Employment Opportunity Commission (EEOC) recently issued guidance that employers cannot require workers to take COVID-19 antibody tests without violating the Americans with Disabilities Act (ADA) because the CDC’s interim guidelines state that antibody tests should not be used to make decisions about individuals returning to the workplace and thus are not “job related and consistent with medical necessity” as required for medical examinations under the ADA.

The FAQs direct employers to other agencies’ guidance to inform their return to work policies, including the EEOC, DOL, CDC, and state and local health authorities.

The final FAQ encourages employers to modify worker interaction in order to reduce the need for PPE, “especially in light of potential equipment shortages.” The FAQs also remind employers that cloth face coverings are not PPE. We previously reported on this specific guidance here.

Takeaways

OSHA’s most recent guidelines serve as a resource for employers when creating return to work plans and policies. OSHA’s directives on implementing the identified guiding principles and FAQs may assist employers in safely reopening their businesses and workplaces. While the guidance is in the form of non-mandatory recommendations, OSHA has stated that an organization’s good faith efforts to comply with its recommended guidance will be taken into “strong consideration” when determining whether to cite violations and has indicated the General Duty Clause may be the basis for violations if employers do not engage in such good faith efforts. The guidelines also direct employers to numerous resources on applicable federal workplace requirements.

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U.S. Regions: Nationwide

Tags: coronavirus, COVID-19, guidelines, OSHA, workplace safety

Virginia Employers, Are You Ready? New Employment Laws Go Into Effect July 1, 2020

By Guy Brenner and Caroline Guensberg on June 30, 2020 Posted in Workplace Policies and Procedures

As we previously reported, this spring Virginia Governor Ralph Northam signed into law a number of new measures expanding protections for employees in the Commonwealth and providing enhanced mechanisms by which employees may bring claims against their employers for violations of those protections. Many of these new laws become effective on July 1, 2020. As set forth in more detail here, among other things, these new laws:

Amend Virginia’s anti-discrimination law to expand its protections (including new prohibitions on discrimination on the basis of sexual orientation, gender identity and veterans status), and the remedies available under the law. The amendments also greatly expand the law’s applicability to far more employers and employees.
Create a private right of action for workers who claim to have been misclassified as independent contractors.
Create a private right of action for failure to pay wages and for employees to otherwise enforce protections provided under the Virginia Wage Payment Act (“VWPA”).
Prohibit non-compete agreements with low-wage workers.

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In anticipation of these measures becoming effective on July 1, 2020, Virginia employers should review with counsel their employment, compensation, and non-compete practices, and re-examine their independent contractor relationships to ensure they will be in compliance with the new laws.

Department of Labor Issues Bulletin on FFCRA Leave in Light of Summer Camp and Program Closures

By Harris Mufson, Laura Fant and Rachel Therese Gulotta on June 29, 2020 Posted in Coronavirus, Leaves of Absences

On June 26, 2020, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) issued Field Assistance Bulletin (“FAB”) No. 2020-4, providing guidance on when an employee may take leave pursuant to the Families First Coronavirus Response Act (“FFCRA”) to care for their child whose summer camp, summer enrichment program, or other summer program is closed for COVID-19 related reasons.

We first wrote about the FFCRA, which includes the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), here, and we have followed the WHD’s question and answer guidance (“FAQ”) on the FFCRA here, here, and here. You can also find detailed posts about the FFCRA regulations implementing the EPSLA and the EFMLEA here and here. The FFCRA applies only to employers with fewer than 500 employees, and employees are only eligible for FFCRA leave if the reason for leave renders them unable to work (whether in-person or remotely) during the requested leave period.

Under the FFCRA, a covered employee may take up to two (2) weeks of EPSLA leave and up to twelve (12) weeks of EFMLEA leave (which may be inclusive of the EPSLA leave), to care for a child whose school or place of care is closed due to COVID-19 related reasons. The FAB first states that “summer school” or other academic work during the summer required and provided by the school attended by the child during the academic year is treated as the child’s “school” for purposes of the FFCRA.

The FAB further states that summer camps and summer enrichment programs are considered “places of care” under the FFCRA because they are physical locations in which care is provided for the employee’s child while the employee works. The FAB also notes that a summer camp or program may be “closed” for FFCRA purposes if it is operating at a reduced capacity due to COVID-19, such that some children that would have attended the camp or program this summer may no longer do so.

The FAB goes on to note that, unlike schools and day care centers, many summer camps and programs closed in response to COVID-19 before any children began to attend and, in some cases, before they began to enroll. However, the regulations specifically recognize that summer camps and programs may qualify as places of care of employees’ children for purposes of FFCRA leave, even though they would have not been operating at the time those regulations were issued in April 2020. As such, the FAB provides guidance on how to determine whether the camp or program would have been the place of care for an employee’s child.

A closed summer camp or program may be considered to be the place of care if the child was enrolled in the camp or program before the closure was announced. Affirmative steps toward enrollment may also be sufficient evidence—e.g., submission of an application and/or a deposit pre-closure or signing up for a waitlist pending reopening of the camp or program or its registration process. A parent’s mere interest in a camp or program is generally not enough. However, evidence of a plan for the child to attend or that it is more likely than not that the child would have attended had the camp or program not closed due to COVID-19 may be sufficient.

To that end, a child’s attendance of a summer camp or program in previous years may indicate that it would have been the child’s place of care during the summer of 2020. This is only true, however, if the child continues to satisfy any qualifications for camp or program attendance—i.e., a 13 year old cannot attend a camp that only accepts 10 to 12 year olds. Additionally, employers may consider the consistency of attendance in a camp or program in determining whether it would have been the place of care this summer. For example, if a child participated in a camp or program in 2017 but not 2018 or 2019, the 2017 attendance would not be sufficient on its own (that is, without further evidence of intent to attend this year) to meet the place of care standard.

The FAB also emphasizes that, in all cases, an employee requesting FFCRA leave must provide the employer with information, either orally or in writing, to support the need for leave and why the stated reason for leave will prevent the employee from working. If the reason for leave is related to the closure of a summer camp, summer enrichment program, or other summer program, the employee must also provide the name of his or her child, the name of the specific camp or program that would have been the place of care for the child had it not closed, and a statement that no other suitable person is available to care for the child.

As the WHD notes in the FAB, there is not a one-size-fits-all rule for employees to establish an inability to work and need for FFCRA leave due to the closure of their child’s summer camp or program. For this reason, employers should consider all applicable evidence that a particular camp or program would have been the child’s place of care this summer if not for COVID-19 related circumstances.

U.S. Regions: Nationwide

Tags: child care, coronavirus, COVID-19, EFMLEA, emergency FMLA, EPSLA, Families First Coronavirus Response Act, FFCRA, place of care, school, summer camp

DC’s Paid Family Leave Benefits Available July 1, 2020: What Employers Need to Know

By Guy Brenner and Caroline Guensberg on June 29, 2020 Posted in Coronavirus, Workplace Policies and Procedures

On July 1, 2020, employees in DC will be able to begin taking Paid Family Leave (“PFL”) pursuant to the DC Paid Family Leave Act (the “Act”). Here’s a quick primer on what employers need to know ahead of the program’s launch.

Eligible Leave

Employees who spend more than 50% of their work time in DC may take PFL for:

Up to eight weeks for paid parental leave to bond with a new child (“parental leave”) which can be taken within 52 weeks of the date of birth, adoption, or foster care placement of a child;
Up to six weeks of paid family leave to care for a covered family member (defined very broadly) with a “serious health condition” (“family leave”); and
Up to two weeks of paid medical leave to care for the employee’s own “serious health condition” (“medical leave”).

Employees may take a combination of parental, family, and/or medical leave up to the limits stated above in a single 52-week period. However, the combined total of leave taken during a 52-week period may not exceed 8 weeks. PFL leave may be taken intermittently.

Benefit Payments

The Act provides eligible employees with partial wage replacement. The PFL benefit is determined by the DC Department of Employment Services (“DOES”) on a sliding scale based on the employee’s reported wages during the highest 4 out of 5 calendar quarters immediately preceding a qualifying event. The combined amount from those 4 quarters is then divided by 52 to derive the employee’s average weekly wage. Employees will receive 90% of their average weekly wage up to a maximum of $1,000 (which will be adjusted annually for inflation beginning October 1, 2021), for each week they are on leave.

Benefit Funding

As we previously reported, PFL benefits are funded by a 0.62 percent quarterly payroll tax on employees’ total wages, which the DC government began collecting on July 1, 2019. Although the tax is calculated based on employees’ quarterly wages, the cost cannot be deducted from employee pay.

Benefit Application Process

PFL benefits are paid by the DC government. Employees may apply for PFL benefits using paper forms or online through a portal on the DOES website, which, according to DOES, will be live on July 1, 2020. When applying, employees will need to provide basic information to prove their identify and indicate the kind of claim they wish to make.

Once DOES receives the employee’s application for benefits, it will notify the employee’s employer. Within 10 days of the submission of an application, DOES will notify the employee of its decision. If DOES approves the employee’s claim for benefits, it will send the employee a determination letter containing the following information:

The date the employee’s leave will start;
Whether the leave will be continuous or intermittent;
If the leave is intermittent, the dates for which the employee was approved for PFL benefits;
The date the employee’s leave will end; and
The employee’s weekly benefit amount and, if the employee’s leave is intermittent, the employee’s daily benefit amount.

DOES will also send a determination letter to the employee’s employer. However, unless the employee specially gives DOES permission, DOES will not provide the employer with the employee’s benefit amount.

Once an employee is approved for PFL benefits, there is a 7-calendar day waiting period beginning on the date of the qualifying leave event. During this waiting period, the employee may not receive PFL benefits. An employee who has multiple qualifying events during a 52-week period will only have one waiting period during that time.

Employee Notice to Employers

The Act’s implementing regulations provide that employees “shall, to the extent practicable, provide written notice to his or her employer of the need to use [PFL] benefits before taking leave.” Specifically, when for PFL is “foreseeable”, employees must provide such written notice 10-business days in advance of the leave. However, if leave is “unforeseeable”, the employee “shall provide a notification in writing, or orally in exigent circumstances, before the start of the work shift for which the individual intends to take [PFL].” When an emergency prevents an employee from providing “notice before the start of the work shift for which the individual intends to take [PFL], the [employee], or another individual on behalf of the [employee], shall notify the eligible [employee’s] employer of the need for leave in writing, or orally in exigent circumstances, within forty-eight (48) hours after the emergency occurs.”

The employee’s written or oral notice to his or her employer must specify:

The type of qualifying leave requested;
The expected duration of the leave;
The expected start and end dates of the leave; and
Whether the PFL benefits will initially be used continuously or intermittently.

Coordination with Other Leave and Benefits

DOES will not reduce benefits based on other paid leave provided by the employee’s employer. The Act’s implementing regulations indicate that employers may amend any existing paid leave policies to account for PFL benefits. For example, given that employers have already paid the cost of the PFL benefit through payroll taxes, employers who already provide non-statutorily mandated paid leave for any of the reasons covered by the Act may wish to specify in their policies that existing benefit amounts will be offset by any PFL benefits the employee receives, and include requirements that employees apply for and provide PFL benefit award information to the employer.

The Act and its implementing regulations provide that PFL leave “shall run concurrently with, and not in addition to, leave taken under [FMLA or DCFMLA].” Otherwise eligible individuals who are receiving unemployment compensation or long-term disability benefits are not eligible for PFL benefits.

Notice to Employees

As we previously reported, the Act has a notice requirement which requires employers provide notice to employees on multiple occasions. The DC government has published a notice that provides employees with information about the Act, including covered employees and events, how to apply for PFL benefits, and benefit amounts.

Employers with employees in DC must post this notice in “a conspicuous place” at their worksites, which, for the purposes of the Act, are “location[s] where business is conducted or where services or industrial operations are performed.” Importantly, especially during the COVID-19 pandemic, employers must “send a poster to covered workers who work remotely or predominately telework so that they can hang the posters at their individual worksites.”

Employers must also provide this notice directly to employees: (1) at the time of hiring; (2) at least once between February 1, 2020 and February 1, 2021 and a least once a year every following year; and (3) whenever the employer “receives direct notice” of an employee’s need to take leave for an event that could qualify for PFL benefits.

Failure to comply with the Act’s notice requirements can result in civil penalties up to $100 for each covered employee to whom the notice was not delivered.

Reinstatement and Anti-Retaliation

The Act prohibits retaliation by an employer because an employee:

“Opposes any practice made unlawful by [the] [A]ct;”
“Files or attempts to file a charge [pursuant to the Act];”
“Institutes or attempts to institute a proceeding [pursuant to the Act];
“Facilitates the institution of a proceeding [pursuant to the Act];
“Requests, applies for, or uses [PFL] benefits; or”
“Gives any information or testimony in connection with an inquiry or proceeding related to [the] [A]ct.”

The Act provides “an eligible individual . . . may bring a civil action against any employer to enforce the provisions of [the] [A]ct in any court of competent jurisdiction.” The statute of limitations to bring such a claim is one year “after the occurrence or discovery of the alleged violation.” The remedies available to an individual aggrieved in violation of the Act are the same as those available under the DCFMLA. They include damages “in an amount equal to . . . [a]ny wages, salary, employment benefits, or other compensation denied or lost to the employee due to the violation plus interest” and costs and reasonable attorney’s fees.

The Act expressly states it does not “provide job protection to any eligible individual beyond that to which an individual is entitled under [DCFMLA].”

DCPFL and COVID-19

In light of the fact PFL benefits are becoming available while the District is still in the midst of the COVID-19 pandemic, DOES has published guidance regarding the impact of COVID-19 on PFL. The guidance clarifies, among other things, that:

PFL benefits are not available to individuals who are quarantined due to COVID-19 but are not experiencing symptoms and have not received an official diagnosis of COVID-19.
“An individual who receives benefits from another source can receive PFL benefits for the same qualifying event, except for unemployment compensation and long-term disability compensation.”
“[A]n individual may file a claim for PFL benefits to provide care or companionship to a family member diagnosed with COVID-19.”
An individual must be employed at of July 1, 2020 to be eligible to file a claim for PFL benefits.

Maryland Employers: Deadline Approaching to Submit Sexual Harassment Settlement Information

By Guy Brenner and Caroline Guensberg on June 29, 2020 Posted in Discrimination, Harassment and Retaliation

Quick Hit: Maryland employers with 50 or more employees must submit information regarding sexual harassment settlements on or before July 1, 2020. This information must be submitted using a portal on the Maryland Commission on Civil Rights’ (“the Commission”) website, which is available here.

More Detail: Maryland’s Disclosing Sexual Harassment in the Workplace Act of 2018 (“the Act”), which took effect on October 1, 2018, requires employers in Maryland with 50 or more employees to report information regarding sexual harassment settlements. Note that while the Act does not specify whether it applies to employers with 50 or more employees based in Maryland, it appears the Commission has taken a broader view, stating on the submission portal that the requirement applies to “employers with 50 or more employees (across all locations, not exclusively working in Maryland).”

Specifically, covered employers must submit answers to the following:

“[T]he number of settlements made by or on behalf of the employer after an allegation of sexual harassment by an employee;”
“[T]he number of times the employer has paid a settlement to resolve a sexual harassment allegation against the same employee over the past 10 years of employment; and”
“[T]he number of settlements made after an allegation of sexual harassment that included a provision requiring both parties to keep the terms of the settlement confidential.”

The submission due by July 1, 2020 must include data for the reporting period from October 1, 2018 through July 1, 2020. Employers will be required to submit this same information again in two years, on or before July 1, 2022.

Employers should note that the Act provides that the Commission will “retain[] for public inspection on request, the response from a specific employer regarding the number of settlements included in the survey.”