Employment Issues Surrounding COVID-19

Employment Issues Surrounding COVID-19

By: Kristy Peters, Shareholder, Littler Mendelson

Over the past year, employers have had to pivot frequently to comply with changing laws and guidance. This blog sets forth some key issues employers should consider with regard to employees in the COVID-19 environment.

Workplace Safety

Arizona employers are currently required to implement symptom screening for employees prior to the start of their shift to include wellness/symptom checks, including temperature checks, when possible, as employees arrive on premises or before opening. It is recommended that employees wear face masks in businesses where service cannot be provided without physical distancing. Note, different states and cities have different screening and mask requirements for on-site work so you will want to check the specific jurisdiction when developing policies. 

On January 29, 2021, the U.S. Department of Occupational Safety and Health Administration (OSHA) released guidance for employers that contains recommendations as well as descriptions of mandatory safety and health standards. The OSHA guidance encourages employers to implement COVID-19 prevention programs in the workplace to mitigate the spread of COVID-19 at work. Four key elements that should be included in a COVID-19 prevention program include: 

  1. Identification of where and how workers might be exposed to COVID-19 at work by conducting a hazard assessment. 
  2. Identification of a combination of measures that will limit the spread of COVID-19 in the workplace. 
  3. Instructing workers who are infected or potentially infected to stay home and isolate or quarantine to prevent or reduce the risk of transmission of COVID-19.  
  4. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards. 

The guidance also discusses return-to-work criteria, social distancing measures, engineering controls, face coverings and personal protective equipment, and sanitization, cleaning, and disinfecting practices.

COVID-19 Testing

There are a number of legal considerations involved with the decision to implement COVID-19 testing for employees. When deciding which employees to test and how frequently to test them, employers must tailor their testing program to make sure it aligns with the objective of reducing the direct threat of COVID-19 infection in the workplace. 

First, employers must choose a test that provides accurate and reliable results. The Equal Employment Opportunity Commission (EEOC) opined that antibody tests should not be used because they are not sufficiently accurate or reliable. 

Employers should also avoid using antigen tests. When selecting a virus test, employers need to confirm the test’s reliability before using it to test employees and make employment decisions. 

Second, employers should use a HIPAA-compliant authorization form from employees to provide to the testing laboratory when the testing laboratory is subject to HIPAA. If the laboratory is not HIPAA compliant, the authorization form does not need to be HIPAA compliant, but there are benefits in using a HIPAA-compliant laboratory. 

Third, once an employer receives COVID-19 test results, the employer should implement safeguards and procedures to maintain the confidentiality of the medical information.


Vaccination requirements implicate a number of federal civil rights laws, including the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the religious protections of Title VII of the Civil Rights Act of 1964 (Title VII). 

On December 16, 2020, the EEOC issued guidance to employers related to these federal obligations. While the EEOC guidance did not directly state that mandatory vaccination policies are lawful, the guidance focused on how an employer should respond to requests from employees who cannot or do not wish to obtain a vaccination, suggesting that requiring a vaccination as a condition of returning to the workplace is not per se unlawful provided that certain conditions are met. Specifically, employers that wish to adopt mandatory vaccination policies may be obligated to provide exemptions or accommodations to employees with religious objections, pregnant workers, and employees with disabilities that may prevent them from obtaining a vaccination. Additionally, employers should consider the availability of vaccinations to its workforce when developing vaccination policies. 

Some employers are considering providing awards to employees to incentivize vaccinations. If providing incentives, employers need to take into account various laws, including HIPAA, the ADA, Title VII, and wage and hour laws. Specifically, where the award is health-related or tied to the employer’s group health plan, a “wellness plan” may be established. 

There are many government regulations that govern wellness plans, with some key regulations within HIPAA and the ADA. Employers may need to have reasonable alternatives available to employees to receive the incentive, depending on the circumstances, so all employees have the opportunity to participate. 

With regard to wage and hour laws, employers need to determine whether the time spent receiving a vaccine is compensable time that must be paid. If employers choose to provide a bonus to employees who receive a vaccine, it is unlikely that the incentivizing bonus will be considered “discretionary” under the Fair Labor Standards Act, so it will likely need to be included in the regular rate of pay when calculating overtime for employees. 

Wage and hour obligations vary greatly by jurisdiction, so employers will need to evaluate these considerations in each jurisdiction.

Employee Leaves

On March 6, 2021, the U.S Senate passed its version of President Biden’s “American Rescue Plan.” Key provisions of this bill impacting small business are as follows:

  • FFCRA Leave: The bill continues to allow employers with fewer than 500 employees to provide leave for certain COVID-19-related reasons. The cost of this leave is fully set off by refundable federal tax credits through September 30, 2021. The bill also expands the leave for which reimbursed leave is permitted (such as obtaining a vaccination).
  • Paycheck Protection Program: The bill adds an additional $7.25 billion to last year’s Paycheck Protection Program, which provided for fully forgivable loans for certain employers, provided they maintained payroll and headcount.
  • Gig Company Reporting Requirements: The bill changes current reporting requirements for “third-party network” transactions. Under current law, companies are not required to report certain information about earners who use their platforms unless the amount exceeds $20,000 and is a result of 200 or more transactions. Under the new law, that threshold is reduced to a flat $600, irrespective of the number of transactions. 

Arizona employees are also entitled to earned paid sick time. For employers with 15 or more employees, employees are entitled to accrue a minimum of one hour of earned paid sick time for every 30 hours worked, up to 40 hours per year. For employers with less than 15 employees, employees are entitled to accrue a minimum of one hour of earned paid sick time for every 30 hours worked, up to 24 hours per year. 

Remote Work

Many employees are telecommuting which can raise different legal issues. Employers should keep the following issues in mind when employees are telecommuting – especially if they are relocating to a different jurisdiction:

  • Whether this affects state and local taxation obligations
  • Whether the employer is required to register to do business in the new jurisdiction
  • Whether there are new or additional paid sick leave obligations
  • Whether there are counting issues that create obligations under the Family and Medical Leave Act or similar state laws
  • Whether there are different minimum wage or salary exemption laws
  • Whether there are different meal and rest break requirements
  • Whether there are required job posters, pay data reporting, or hiring notifications
  • Whether there are wage-theft notice requirements where none previously existed
  • Whether there are unemployment insurance payment obligations
  • Whether there is a change in workers’ compensation obligations

For example, if you have an Arizona employee who is working remotely from California, you may be subject to daily overtime obligations and meal and rest break requirements, which are significantly different than obligations under Arizona law.

These are complex issues and jurisdiction specific. Employers need to keep these considerations in mind as their employees work remotely from other locations.


Legal obligations for employers have changed at rapid speed over the past year. Littler Mendelson is a global employment law firm with over 1,600 employment attorneys. The firm has stayed on top of these ever-changing issues. Littler publishes articles on key employment related developments which anyone can subscribe. Littler also provides COVID-19 resources on its website: www.littler.com/covid-19. Please feel free to reach out to Kristy Peters, [email protected] or (602) 474-3639, for assistance with any employment law issues.

UNMET Coming to Arizona as Venture Attraction Continues to Sizzle

UNMET Coming to Arizona as Venture Attraction Continues to Sizzle

The Arizona Commerce Authority is proud to once again sponsor PHX Startup Week, and we can say with confidence that this event is an exciting kickstart to the suite of signature innovation-focused events scheduled for 2020.

So, there is no better place than this to announce some exciting venture attraction opportunities coming to Arizona.

This spring, the ACA, in partnership with Stout Street Capital, will host the largest venture capital conference in state history. UNMET Arizona 2020 will feature 100 fast-growing tech companies that will have access to more than 120 institutional investors from across the country.

The UNMET Conference will serve another tool helping to facilitate increased deal flow, furthering Arizona’s reputation as the best place to test, launch and scale new ideas and new technologies.

This reputation of Arizona’s vibrant innovation ecosystem has been cemented under the leadership of Governor Ducey, who has consistently advanced policies that embrace emerging technologies and serve as a draw for new venture capital making its way to Arizona.

Our state posted a record-breaking year in 2019, with more than $1.1 billion invested by venture capital firms in Arizona-based companies. The investment represents 206 deals. Clearly, Arizona’s innovation ecosystem is humming with big ideas and bold entrepreneurs. And our growing venture attraction portfolio is helping those ideas commercialize.

UNMET Arizona 2020 will be held May 12-14 at the Scottsdale Center for the Performing Arts. As part of the event, we will be celebrating the graduates of the ACA’s Venture Ready Accelerator business mentorship program, which will feature a graduation showcase, reception and kickoff gala.

Arizona is home to visionary entrepreneurs and industry-leading companies at the forefront of cutting-edge technologies. We’re confident the momentum will continue, and together, we’ll continue to make Arizona a national model of startup success.

This blog post was written and submitted by Arizona Commerce Authority. Thank you to the ACA for their generous support of PHX Startup Week 2020.

What is your business’ Unique Selling Proposition?

What is your business’ Unique Selling Proposition?

You may have heard that question at some point when you were building your business or starting up. USP stands for Unique Selling Proposition. 

In very simple terms, why should I buy from you versus anyone else?  What makes you different? Unique?

After presenting the “ ABC’s of Starting a Business workshop” for years, presented by SCORE Greater Phoenix, it is evident how many people do not have a clear focus on what their business is and who problems they solve and to whom are they solving those problems for. We hear extra filler junk, such as. “I am like the UBER of XXX.” So, what I heard is that you have a billion-dollar valuation, are in the debt over a billion dollars and have not been profitable and probably will never be profitable. Not good.

So how can you create your own very compelling USP?

Simple. Follow this simple formula and create your own USP. Think of it as your elevator pitch.

First, write down your target marketing Now you may have more than one, but not more than three. Why? Because if your message is trying to be everything to everyone, no one cares, and no one wants to hear it. They want someone to solve their problems-not the world’s. Be specific on who your market is. If it’s dentists, then what kind of dentist? Orthodontist? Periodontist? General? Oral? Etc. 

Be specific. “My company works with orthodontists.”

Next, write down at least 25 problems your target customer has, then write down 10 more. This will really help in your business down the road. Identify the top 3 problems your target market has based on your list. How do you know what the top 3 problems are? Hopefully, you know why your customers are doing business with you. If not, ask them what problems/challenges your product/service solves for them.  If you don’t have customers yet, then meet with a mentor to have them help you find those top 3 challenges. You also may know what 3 challenges you want to solve for your customers-but it must be in alignment with THEIR needs.  I.E. Orthodontists problems are; patients not showing up for appointments, potential clients not having insurance to get braces (cost) and finding good staff. 

Now write down at least one solution to each one of the problems you outlined in the last step. Be specific. Using our dentist as an example; send out email, text and voice mail reminders for the appointment, providing another insurance solution if they don’t have insurance, use a systematic process to hire great staff.

Let’s put your USP all together. 

“My company works with elite orthodontists who have challenges obtaining new patients and attracting high level staff. We help them develop acquisition and retention strategies to build their practice and their team.”

You may be thinking, how did I get that USP from the exercise. It’s simple. THEIR problem is getting new patients in because they don’t have insurance, keeping patients and getting new staff. The USP says that in a language that is speaking to the orthodontist-not to anyone else. Now, if another type of dentist heard this, would they want to know more from you? Absolutely. You can alter your USP to your market. 

I.E. “My company works with elite dentists who have challenges obtaining new patients and attracting high level staff. We help them develop acquisition and retention strategies to build their practice and their team.”

See how that works. You must speak to your audience. It’s NOT about you. It’s about who you serve, what are their problems and how are you solving them. 

Stop being the Uber, Apple, Tesla, Google, or whatever other company you want to compare yourself to. They have their USP. Here are a few.

  • Uber: Ride when you want, where you want
  • Apple:  We provide a lifestyle with our products
  • FedEx: When your package absolutely, positively has to get there overnight
  • Coke: The real thing
  • Google: Access the world from your fingertips

You are NOT them. They have established themselves in the market, you are working on establishing yourself.

Speak to your audience, be unique, be you. They do not have to define their market; it has already been defined.

Create your USP today.  Be clear.

This Blog is provided by SCORE  Greater Phoenix, Steve Feld a SCORE Certified Mentor.  

 SCORE provides free one-on-one mentoring for entrepreneurs and small businesses, as well as free or low-cost workshops for small businesses in the Phoenix area throughout the year.  Visit GreaterPhoenix.Score.org for information or contact Joyce Keane, Chapter Vice-Chair at [email protected].

Networking Your Small Business

Networking Your Small Business

You may have the most lucrative product or service, but how do you move from no one knowing about it to achieving great success in business? Networking for your small business is an integral part of marketing and promoting what you offer. Networking is the next step of branching outside of the office, meeting new people and forming new relationships.

Networking can be a cost-effective way to find meaningful connections for you and your business. Not all networking for your small business is the same. There are varying types of networking events. Some events consist of open networking, which allows attendees to mingle and have conversations. It is important in open networking events that you don’t do all the talking. To learn more about other attendees’ businesses, ask more questions before you share about yourself. Active listening and asking questions tells the other person you’re engaged in what they have to say.

Forming a relationship is more valuable than exchanging business cards when networking. There are more organized networking groups, often called leads or referral groups. These groups tend to meet often, usually weekly, and are more structured. These groups include an agenda and introductions of each member’s business. Often these groups emphasize active participation by setting requirements for all members to continually pass along business leads. Some networking groups also have a business spotlight, which highlights a member’s business for that week.

Utilizing this spotlight, it is a perfect opportunity to share in-depth details about your business and share what type of connections you are looking for. The old adage “It’s not what you know, but who you know” is absolutely true when it comes to building a successful business through networking. To grow your small business quickly, you will need to have a strong source of relevant connections in your network whom you can call on when you need them. Networking can open the door to talk to highly influential people you wouldn’t otherwise be able to easily talk to or find.

Attending a new networking group can be daunting. When planning out your calendar for networking events, especially ones you are trying for the first time, think ahead of who you are trying to connect with. Meeting every single member in the room is not manageable, especially at an open networking event. Walking away with two or three new strong connections is far more valuable. To continue to grow relationships, plan to follow up with all new connections immediately. Send an email, call them and, potentially, set up another time to continue the conversation. To be successful with networking, connections must be mutually beneficial.

Be reciprocal by introducing your new connection to your network. Finding the right networking group requires commitment. Start your new year right by attending a new networking group each week for the next month. Allow yourself time to find the networking group that works best for you and your business. Once you find that right network, the growth of your business is sure to come.

This article was written by Jodi Towns, ASBA Director of Partnership Development & Marketing.

[email protected] (602) 306-4000

The Five Things to Know in Your Sixth Year

The Five Things to Know in Your Sixth Year

If you’ve ever been brave enough to share your amazing new business idea with a friend or family member, you’ve undoubtedly been met with a hesitant head tilt and the start-up skeptic’s favorite refrain: You know, 50% of new businesses fail by their fifth year.

They mean well. They’re only worried about your wellbeing. But their lack of faith isn’t totally unfounded. Making it out of the fifth year with your head still on straight is a feat worth celebrating. But making it out of the sixth year, now that’s a little more complicated. By year six, you’re a seasoned team that’s making its way out of scrappy start-up and into an established business. You’ve figured out your market, your product, and you’re rolling full speed ahead—that’s when the real trouble begins.

Here are the five things you’ll have to figure out in your sixth year of business.

1. You’ll have to navigate a Big Problem.

We went from a single mattress in 2012 to an entire bedroom’s worth of products by 2017—and a large portion of those products were launched in a 12-month period. Scaling at this speed can cause a lot of gaps in product quality, and other issues we hadn’t encountered previously. We saw this manifest in a few products, from adhesive issues in our core mattresses to a stressful product recall. We knew we had a huge problem to tackle or risk the satisfaction of our customers.

At the height of these issues, our box foundation return rate was skyrocketing, and we couldn’t figure out why. We had sourced the best of the best, we thought, but customers clearly didn’t agree. A missed step in the feedback process between our CX and Ops teams was preventing us from being about to get to the real issue—which cost time, money, and worst of all, our customers’ trust. It turned out, after a lot of investigating, that the plastic pins used to hold our foundation together were breaking easily, creating a poor customer experience.

We asked our Superior Quality Manager, Garrison Mills, to weigh in on the takeaways from such a difficult to solve the problem. “You can have all of the data in the world, but it doesn’t do you much good if you don’t catch a trend soon enough. After we experienced the wave of box foundation issues, we started creating internal, real-time dashboards to alert us the moment a defect began to trend upward. This has been a big step forward for us in being able to react quickly to these issues when they come up.”

Additionally, we began building external-facing dashboards that, in some cases, were even better than the systems our vendors were using for their own quality management and assurance. Many were hardcoding the weekly data we sent into their own QMS, which resulted in data-fidelity problems. Creating external dashboards eliminated manual data entry by their teams and ensured that they were seeing exactly what we were seeing when we were seeing it.”

2. You’ll have to completely reconsider your strategy.

What works in the first few years might start to shift once you’re a more established business. We’ve faced two major challenges that any brand can relate to, and we’re still navigating them as we learn.

Our competitive landscape rapidly changed. When we started, we were the first of just a few big names out there, but by our second and third years, there were dozens of copycat mattress-in-a-box companies on the internet. We knew our product offering was unique, but the customer couldn’t see it through a sea of similar information and images. We’ve had to constantly rethink how we present our products, and we’re still trying to get above the noise.

We also had to shift our retail strategy. We crafted a very hands-on experience with our product, including a personal guide in a private showroom. Customers would walk into our downtown Phoenix or San Francisco showrooms and wade through a thick crowd, just to be quoted a wait time. We wanted to do things differently when it came to mattress shopping, but we realized the wait times to see our product were creating a worse experience, not a better one. It took many iterations and customer feedback to hone in on our current experience, and we aren’t married to the way things have settled now, either.

Learning to be flexible, open to new ideas, and above all, open to customer feedback, is a lesson that takes you from a two-year burnout to a 10-year veteran business.

3. You’ll underestimate yourself.

When we launched our Mint Mattress, our second mattress design, on Black Friday of 2017, we weren’t prepared for the reception we got. After forecasting, getting all of our product assets together, and sending one simple email announcement, we planned to sell about 500 units.

We sold 6,500 that weekend alone.

That sounds like great news, right? What a success! But we were woefully unprepared for the backlog the demand for the Mint created with our manufacturers. Shipping was delayed, we

didn’t have the product itself back in stock until February of 2018, and our CX team was left to answer a lot of (rightfully) upset customers.

We can’t say it was the last time we underestimated our own products, but we learned a huge lesson—when you design a mattress specifically based on customer feedback about your already popular mattress, be prepared for it to sell.

4. You’ll have to make painful decisions.

At a certain point in your business, revisiting roles is important. No one ever wants to lay people off, and we had successfully avoided it in our first five years. However, it became clear as we reorganized and grew that some roles had become redundant. Some people weren’t fulfilled by their job any longer, and some teams didn’t make sense, no matter how much we loved the people on them.

Handling a layoff or restructure requires a lot of empathy, a lot of transparency, and a lot of patience. It’s important to honor the work your team members have put in, but when the time comes, having those tough conversations is a vital move to take your company to the next stage.

5. You’ll make an expensive move that might not pan out.

We’ll keep this one brief for a lot of reasons, but there’s still a lesson to be learned here. In 2016, we got involved in dueling ad campaigns with a competitor. Things got pretty heated, and soon we found ourselves in a lawsuit. More importantly than any legal significance, the end result didn’t have the impact we hoped for with our customers, the campaign seemed to be more interesting to industry insiders than to consumers. Sometimes, the move that feels right at the time isn’t one that your customers care about in the end—maintaining their happiness is a better long-term focus.

We’re cruising ahead toward that 10-year mark, and we’re excited to see what challenges we face in year eight, nine, and beyond. Tuft & Needle was founded to be one of the 100-year companies that customers can’t stop talking about. We’ve made our fair share of mistakes, but we always come away from them with a new lesson to apply to the next problem.

When your friend parrots that 50% statistic back to you, remember that there’s a reason half of businesses do make it beyond the five-year mark. Study their failures, let their successes inspire you, and if you’re executing on the right idea, you’ll stand the test of time.

Tuft & Needle is an American direct-to-consumer mattress and bedding brand owned by Serta Simmons Bedding. The company was founded on July 19, 2012 by Daehee Park and John-Thomas Marino in Phoenix, Arizona. 

Feeling the Burn?

Feeling the Burn?

By Kira Morgan, Big Yam Agency

No, not the political kind, (that’s the Bern, not the burn) but the sort of burn you feel from burning the candle at both ends. (Explaining the joke only makes it funnier- right?)

Most of us won’t admit it but there comes a time when the pressure is on at work. You can’t seem to meet deadlines, there’s too much to accomplish in the day and not enough time. Every day there seems to be a crisis. You don’t mean to, but you find yourself getting testy with co-workers, you can’t seem to get out of bed in the morning, and every day is a struggle. But what are we taught to do? Put on a brave face, throw on the cape and become the office superhero.

Well, I’m here to tell you, everything is going to be okay and you are not alone! You may be suffering from work “burnout,” a condition that is now officially recognized by the professional health community. And while most may consider burnout just a term, it is officially a medical condition that occurs when chronic workplace stress is not being successfully managed.


According to The World Health Organization, “Burn-out is a syndrome conceptualized as resulting from chronic workplace stress,” and is characterized by the following:

  • Feelings of energy depletion or exhaustion
  • Increased mental distance from one’s job, or feelings of negativism or cynicism related to one’s job; and
  • Reduced professional efficacy


According to Very Well Mind, if you are experiencing any of the following at work, you may be at or on the verge of burnout.

  • No interest in work-related activities
  • Feeling drained, lack of energy to get work done
  • Difficulty concentrating and lacking creativity

For more information, visit https://www.verywellmind.com/stress-and-burnout-symptoms-and-causes-3144516.


According to a 2018 report by Gallup, employee burnout has five main causes:

  • Unreasonable time pressure: Employees who feel they do not have enough time to do their work are at a higher risk for burnout.
  • Lack of communication and support from a manager: Employees who feel strongly supported by their manager are 70 percent less likely to experience burnout on a regular basis.
  • Lack of role clarity: Only 60 percent of workers know what is expected of them. Those that do not know may become exhausted simply trying to figure out what they should be doing.
  • Unmanageable workload: When the workload feels unmanageable, feeling overwhelmed can quickly lead to burnout.
  • Unfair treatment: Employees who feel they are treated unfairly at work are 2.3 times more likely to experience a high level of burnout. Situations such as favoritism, unfair compensation and mistreatment from a co-worker all fall under this.


Most of us have experienced work burnout at one time or another, but the good news is that it is hopefully temporary and reversible! By making some changes, you can help regain control of your life and mental well-being. Here are some of my personal suggestions:

  • Plan and take a vacation
  • Take a mental health day off
  • Exercise before work
  • Eat healthier
  • Find a hobby to enjoy outside of work
  • Take regularly scheduled breaks from your desk (go for a walk, etc.)
  • Tune out and listen to some music
  • Do some breathing exercises
  • Get a massage
  • Talk to your boss and/or HR
  • Change your attitude

If you are still unsure if you may be experiencing work burnout, visit https://www.stress.org/workplace-stress and take the survey. Hopefully, the above methods, and recognizing that you are not alone, will help create a happier and healthier workplace environment.

Still in need of other ideas? Check out our blog on 5 Healthy Habits That Will Boost Your Productivity at Work.