APRIL 2021 LEGAL UPDATE

UPCOMING COMPLIANCE DATES

APRIL 26, 2021: EEO-1 Reporting Period Begins
The EEO-1 reporting portal opens April 26, 2021 for 12 weeks. Covered employers will need to submit 2019 and 2020 EEO-1 data no later than July 19, 2021. See article below for additional details.

April 30, 2021: Form 941 Due

The employer’s quarterly tax return, Form 941, is due April 30 for first quarter 2021. Credit for qualified paid sick leave wages and qualified paid family and medical leave wages previously granted under the optional extension of FFCRA can be requested on this form.

APRIL 30, 2021 for new health plans on a calendar plan year: Summary Plan Description

Employers who offer a health insurance plan must provide a Summary Plan Description (“SPD”) to all participants within 120 days after a new plan is adopted. SPDs must also be provided to new participants no later than 90 days after the person first becomes covered under the plan.

For assistance or information about our SPD Wrap service, contact HR Service at: (855) 447-3375.

MAY 13, 2021: Download Historic E-Verify Records

E-Verify employers have until May 13, 2021 to download case information dated on or before Dec. 31, 2010 from the “Historic Records Report” if they want to retain E-Verify information that will be purged on May 14, 2021.

MAY 31, 2021: Extended PPP Loan Application Deadline

The deadline to apply for and receive a second Payroll Protection Program (“PPP”) Loan has been extended to May 31, 2021, from the previous deadline of March 31.

FEDERAL COMPLIANCE UPDATES

PPE DEEMED MEDICAL EXPENSE

The IRS has issued Announcement 2021-7 that clarifies that purchases of eligible personal protective equipment (“PPE”) are considered medical expenses and thus may be eligible for reimbursement under medical flexible spending accounts (“FSAs”), health savings accounts (“HSAs”), health reimbursement arrangements (“HRAs”), and Archer medical savings accounts (“MSAs”) or a tax deduction. Eligible PPE includes face masks, hand sanitizer, sanitizing wipes, or other supplies for the primary purpose of preventing the spread of COVID-19 that are not otherwise reimbursed.

Employer sponsors of FSA or HRA plans have the option to allow the newly-eligible items to be reimbursable under their plans. If they choose to do so, they should notify their employees as soon as possible and amend their plan by the last day of next calendar year. They can make the change retroactive to January 1, 2020 or to the beginning of the current year.

Alternatively, individuals not eligible or who choose not to submit their eligible PPE expenses for reimbursement though a benefits account can claim the medical expenses as a tax deduction as long as their total medical expenses exceed 7.5% of their adjusted gross income (“AGI”).

2019 and 2020 EEO-1 REPORTS DUE JULY 19, 2021

Organizations with 100+ employees and organizations with federal government contracts of $50,000 or more and 50+ employees will be required to submit 2019 and 2020 EEO-1 reports no later than July 19, 2021.

For additional information, see the EEOC’s home page as well as on the new dedicated website for the agency’s EEO data collections.

REMOTE FORM I-9 DOCUMENT REVIEW  APPROVAL ONCE AGAIN EXTENDED

U.S. Immigration and Customs Enforcement (“ICE”) has once again extended the approval to remotely review an employee’s identity and employment authorization documents for Form I-9 but only when that employee will be working remotely. These provisions are now set to expire May 31, 2021.

Employers may first inspect Section 2 documents via video, fax, email, or other appropriate means. Once normal operations resume, employers must inspect documents in person and note “COVID-19” as the reason for the delay in the “additional information” field, as well as “documents physically examined” with the date of inspection to that field or Section 3 as appropriate. Alternatively, the form also allows an employer to appoint a representative to review new hires’ documents. Examples of such a representative include a law firm, a vendor, a notary, or a local employee. Please note that some states or local jurisdictions may have specific restrictions for who is authorized to review the employee documentation.

Employers who make use of the exception must provide written documentation of their remote onboarding and telework policy for each employee. They must also conduct in-person verification within three business days of when the employer’s normal operations resume. This date may be different (earlier or later) from the date the government policy ends.

H-1B VISA PROGRAM SUSPENSION EXPIRED Presidential Proclamation 10052, a directive issued by former President Donald Trump to temporarily suspend entry of certain visa holders, has expired as of March 31, 2021.

STATE COMPLIANCE UPDATES

ARIZONA

Pregnant Workers Provided More Protections

Expected to take effect on or about July 19, 2021, HB 2045 expands protections for pregnant workers under Arizona law. The new law specifies that prohibited discrimination “because of sex” and “on the basis of sex” includes discrimination on the basis of pregnancy or childbirth or related medical conditions.

The new law specifically states that “women who are affected by pregnancy or childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work ….”

CALIFORNIA

COVID-19 Sick and Vaccination Leave Requirement Retroactive to January 1

Enacted March 29, 2021 and retroactive back to January 1, 2021, SB 95 requires employers in California with 25 or more employees in total to provide up to 80 hours of supplemental paid sick leave to employees who are unable to work or telework due to COVID-19. The new law will remain in effect until September 30, 2021 unless amended.

There are no tax credits provided under the CA COVID-19 Sick and Vaccination Leave, but employers who opt to provide leave under the Americans Rescue Plan Act (“ARPA”) would meet the requirements of the state leave and be eligible for tax credits under ARPA. For more information on ARPA, please see our ARPA Toolkit.

Qualifying reasons for the supplemental paid sick leave under the new law include:

• The employee is subject to a quarantine or isolation period related to COVID-19.
• The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
• The employee is attending an appointment to receive a vaccine for protection against COVID-19.
• The employee is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework.
• The employee is experiencing symptoms related to COVID-19 and seeking medical diagnosis.
• The employee is caring for a family member who is subject to a quarantine or isolation order or has been advised to self-quarantine. Applicable family members include:
  • The employee’s child, including a biological, adopted, or foster child; stepchild; legal ward; or a child to whom the employee stands in loco parentis.
  • The employee’s (or the employee’s spouse’s or registered domestic partner’s) parent, including a biological, adoptive or foster parent; stepparent; or legal guardian. The law also covers a person who stood in loco parentis when the employee was a minor child.
  • The employee’s spouse or registered domestic partner.
  • The employee’s grandparent, grandchild or sibling.
• The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Full-time employees are eligible for up to 80 hours of leave. For part-time employees, the number of hours of leave must be based on the average number of hours that employees work over a two-week period. Employees with a variable schedule are eligible for 14 times the average number of hours the employee worked each day in the six months preceding the leave. An employee with a variable schedule who has worked for the employer for 14 days or less is entitled to the total number of hours the employee has worked for the employer. There is no length of service requirement to be eligible for the leave.

For exempt employees, the leave must be paid at the rate that the employer calculates wages for other forms of paid leave time – up to $511 per day and $5,110 in total. For non-exempt employees, the rate of pay for the leave must be calculated by the highest of the following:

• The employee’s regular rate of pay for the workweek in which the employee uses the leave;
• A calculation of the employee’s total wages (not including overtime) divided by the total hours worked in the full pay period for the prior 90 days of employment;
• The state minimum wage; or
• The local minimum wage to which the employee is entitled.

Employers who have already provided supplemental paid sick leave under a local COVID-19 sick leave ordinance or employer policy on or after January 1 may be able to count those hours toward the 80 hours required under this law. Any employees who took unpaid leave since January 1, 2021 that now qualifies for this supplemental paid sick leave must be retroactively paid on or before the payday for the next full pay.

Employers will need to provide employees with notice of this new law. The poster can be accessed here: Posting Notice. In addition, employers must also provide employees (with the exception of home health care providers) with written notice of available leave balances. For employees who work a variable schedule, the leave balance can be based on the initial calculation of hours with “(variable)” written next to that calculation.

For additional information, see answers to frequently-asked questions posted by the Department of Industrial Relations: FAQs.

At least 11 local jurisdictions in California have additional COVID-19 paid-sick-leave laws: Long Beach, the city and county of Los Angeles, Oakland, the city and county of Sacramento, San Francisco, San Jose, San Mateo County, Santa Rosa, and Sonoma County. Employers in these jurisdictions are required to provide additional paid sick leave if that local ordinance’s requirements exceed the requirements of the state law.

Next Phase of CalSavers State Retirement Saving Program Effective June 2021

Officially launched on July 1, 2019, the CalSavers retirement program provides California employers an alternative to offering an employer-sponsored retirement savings plan.

The deadline for employers in California with between 51 and 100 employees to offer a qualified retirement plan or register to participate is June 2021. Applicable employers with 5 to 49 employees must join by June 30, 2022.

Rounding Time for Meal Breaks Found Unlawful

In the recent case Donohue v. AMN Services, LLC, the California Supreme Court ruled that California employers are prohibited from rounding time-clock punches for employee meal periods and must record the actual length of the meal breaks.

Employees in California must receive a 30-minute unpaid meal break for every five hours they work. They can waive their right to take a meal break only if they work no more than six hours. A second break must be provided after 10 hours but can be waived if the employee works no more than 12 hours and the first break was taken. In limited circumstances, an employee may be permitted to have an “on-duty” meal period, but the time must be paid at the worker’s regular rate of pay.

If an employee does not receive a full meal break, the employer must pay the employee a one-hour premium.

CONNECTICUT

CROWN Act Prohibits Hairstyle Discrimination

Effective March 10, 2021, the CROWN Act (House Bill No. 6515) prohibits discrimination in the workplace on the basis of traits historically associated with race, including hair. The Act’s name is an acronym for “Creating a Respectful and Open World for Natural Hair.”  

The Act amends Connecticut’s anti-discrimination law to define race as “inclusive of ethnic traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” The new law further defines “protective hairstyles” as including, but not limited to, “wigs, head wraps and hairstyles such as individual braids, cornrows, locs, twists, Bantu knots, afros and afro puffs.”

ILLINOIS

Guidance Issued on Providing Leave for Employees to Get Vaccinated

The Illinois Department of Labor (“IDOL”) recently issued guidance for employers on “Compensation, Paid Leave and the COVID-19 Vaccine,” advising employers on providing employees with time off and flexibility in order to get the first (and as necessary, the second dose) of the COVID-19 vaccine.

The IDOL guidance states that employers which require employees to get vaccinated are likely required to compensate for the time spent getting the vaccine, even if the vaccination occurs during non-working time.

If employees choose to obtain the vaccine voluntarily, IDOL advises that they should be allowed to use sick leave, vacation time or other paid time off to receive the vaccine.

Under the Illinois Employee Sick Leave Act, employers are required to allow their employees to use employer-provided sick leave benefits for absences due to medical appointments of family members. The IDOL guidance clarifies that an appointment to receive a COVID-19 vaccine dose would qualify as a permissible medical appointment for purposes of the law if the employer allows the use of an employee’s sick leave benefits for vaccination purposes. For details, see the IDOL Guidance.

Use of Criminal Records in Employment Decisions Further Limited

Effective March 23, 2021, an amendment to the Illinois Human Rights Act mandates new limitations and procedural obligations on the use of criminal conviction records in employment decisions.

The amended law requires that there must be a “substantial relationship” between the criminal conviction being considered and the employment being sought or held or that employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. “Substantial relationship” is defined as a consideration of whether the employment position offers the opportunity for the same or a similar offense to recur in the employment position.

Under the new law, employers must engage in an interactive assessment and consider significant factors such as how long ago they occurred and the nature and gravity of the convictions. They may take an adverse action only if they conclude that a substantial relationship or unreasonable risk as defined above exists.

Employers must also comply with the following notice procedure if taking an adverse job action:

• After making a preliminary decision, provide a written notice with the substantive basis for any disqualification decision.
• Wait at least five business days to allow the individual to respond.
• If an adverse action is taken, provide an additional written notice of the final decision containing the disqualifying conviction(s), any procedure for the challenge or reconsideration of the decision, and the individual’s right to file a charge with the Illinois Department of Human Rights.

For additional details, see the Illinois Department of Human Rights responses to related FAQs.

Equal Pay Certification Required

Employers with more than 100 employees in Illinois will have to obtain an equal pay registration certificate from the Illinois Department of Human Rights (“IDHR”) no later than March 24, 2024. Pay data reporting begins January 1, 2023.

To obtain a certificate, applicable employers must submit their EEO-1 report, a list of employees with their total wages, and a $150 application fee to the Illinois Department of Labor. They must also include a statement signed by a corporate officer, legal counsel or authorized agent of the business for each county where the business has a facility or employees, with the following information:

• That the business is in compliance with Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Illinois Human Rights Act, the Equal Wage Act, and the Equal Pay Act of 2003;
• That the average compensation for female and minority employees is not consistently below the average compensation for its male and non-minority employees within each of the major job categories in the EEO-1 report;
• That the business does not restrict employees of one sex to certain job classifications and makes employment decisions without regard to sex;
• What method the business uses to establish compensation and benefits, such as a market pricing approach, state prevailing wage requirements or union contract requirements, a performance pay system, internal audit analysis, or an alternative approach;
• How often wage and benefits are evaluated to ensure compliance; and
• That wage and benefit disparities are corrected when discovered.

The submitted information will become publicly accessible, as the Secretary of State will publish the data on the gender, race, and ethnicity of each corporation’s employees on its official website.

Employers who receive the certification must recertify every two years, and new businesses must obtain a certificate within three years of commencing operations. A penalty of 1% of gross profits may be assessed for failing to obtain an equal pay registration certificate.

MASSACHUSETTS

Leave for Memorial Day Activities

Under the “HOME Act,” an Act Relative to Housing, Operations, Military Service, and Enrichment, employers in Massachusetts with 50 or more employees are required to grant leave to qualifying veterans to participate in a Memorial Day exercise, parade, or service as long as reasonable notice is provided. Unlike for Veterans’ Day, employers may provide paid or unpaid leave to qualified veterans to participate in Memorial Day activities.

NEW MEXICO

Recreational Marijuana Law Passed

Effective June 29, 2021, New Mexico’s new recreational marijuana bill will make it legal for adults 21 and older to use and grow marijuana for recreational purposes.

This law specifically allows employers to enforce zero-tolerance policies that impose discipline or termination for a positive marijuana test result indicating any amount of THC. The law also allows employers to take adverse employment actions for the possession or use of marijuana at work or during work hours. Separate rights are provided to medical marijuana users under state law.

NEW YORK

FAQs Issued about Mandated Paid Leave for Coronavirus Vaccinations

Through December 31, 2021, private and public employees in New York are entitled to up to eight hours of paid leave to receive COVID-19 vaccinations. The language of the law states that all New York employees must receive paid leave for “a sufficient period of time” not to exceed four hours per vaccine injection. Employers cannot require employees to use other available leave before providing this leave.

The New York State Department of Labor recently published answers to FAQs about the mandated leave.

Recreational Marijuana Legalized

Effective March 31, 2021, S854A legalizes recreational marijuana use by adults in New York and promotes licensing for marijuana producers, retailers and other industry stakeholders.

The law specifies that it is illegal for employers to discharge, refuse to hire, or otherwise discriminate against employees on the basis of cannabis use outside of work hours, off the employer’s premises, and without use of the employer’s equipment or property. However, employers are permitted to take action when an employee is impaired by cannabis use while working, such as when the employee “manifests specific articulable symptoms” that decrease or lessen performance of duties or tasks or that interfere with the employer’s obligation to provide a safe and healthy workplace.

OHIO

Employment Discrimination Laws Significantly Amended

Effective April 15, 2021, H.B. 352 amends Ohio’s employment discrimination laws and places certain restrictions on discrimination claims.

Under the new law, an employee must first file a charge with the Ohio Civil Rights Commission and obtain a “notice of right to sue” before filing a discrimination lawsuit. The employee must file the charge within two years of the claimed discrimination. All age discrimination claims now have the same statute of limitations and administrative exhaustion requirement as other discrimination claims.

An employee may not sue managers and supervisors for damages unless that person is the employer or has acted outside the scope of employment. However, supervisors, managers, and coworkers may still be charged with retaliating against someone who opposes a discriminatory act or who participates in a charge of discrimination or for aiding and abetting a discriminatory practice of the employer.

 The new law also shields employers from liability from hostile environment harassment claims when the employer exercised reasonable care to prevent and/or promptly correct harassment but the employee failed to take advantage of those corrective opportunities. 

PENNSYLVANIA

Pittsburgh COVID-19 Paid Sick Leave Requirements

Eligible Pittsburgh-based employees may take up to 80 hours of paid time off for certain COVID-19-related reasons. Additionally, Pittsburgh’s permanent Paid Sick Days Act provides workers with up to 40 hours of paid sick leave for various circumstances that could arise in the context of the COVID-19 pandemic, including individual illness, the need to care for an ill family member and workplace closures due to a public health emergency. Therefore, Pittsburgh’s laws may require employers to provide up to three weeks of paid sick leave for COVID-19-related reasons under the separate schemes established by each ordinance.

While the Pittsburgh laws do not provide tax credits to employers, employers providing leave in compliance with the American Rescue Plan Act can claim federal tax credits for such leave.

Philadelphia Enacts COVID-19 Paid Sick Leave with Posting Notice Required

Effective March 29, 2021, a new law amends Philadelphia’s Public Health Emergency Leave (“PHEL”) to require employers with at least 50 employees to provide paid COVID-19-related sick leave to employees working in Philadelphia. This paid sick leave must be provided outside of and prior to using any existing accrued paid time off.

Applicable Philadelphia businesses must provide up to 80 hours of paid sick leave to qualified employees who request it for certain COVID-19 reasons. Employees who have worked for the business at least 90 days and who work within Philadelphia, who normally work for an employer in Philadelphia but are currently teleworking due to the pandemic, and who work for an employer with multiple locations with 51 percent or more of their time spent working within Philadelphia would qualify.

Employees who work at least 40 hours a week are entitled to up to 80 hours of leave. Employees who work fewer than 40 hours per week are eligible for paid leave equal to the average amount of time worked in a 14-day period. For employees with variable schedules, leave time is calculated as the average number of hours the employee was scheduled to work over the past 90 days multiplied by 14.

Employers whose existing leave policies provide 160 hours or more of paid time off in 2021, even if not specifically designated as sick leave but can be used for the same purposes under the same conditions as required by this law, are not required to provide additional paid sick leave.

Eligible reasons that qualify for paid leave include:

• Care for self or family member showing symptoms of COVID-19;
• Care for self or family member exposed to COVID-19 in order to self-isolate;
• Childcare or school closure; or
• To receive a vaccine or recover from injury, disability or illness related to vaccination.

The ordinance contains a sunset provision providing that the ordinance will expire upon the expiration of the Proclamation of Disaster Emergency of the Governor of Pennsylvania related to the COVID-19 pandemic.

While the Philadelphia law does not provide tax credits to employers, employers providing leave in compliance with the American Rescue Plan Act can claim federal tax credits for such leave.

Applicable employers must provide notice to employees of their eligibility for leave under the ordinance, which can be downloaded here: PHEL Poster.

Philadelphia Amends Credit Screening Practices

Effective March 21, 2021, Bill No. 200614 amends Philadelphia’s Unlawful Credit Screening Practices in Employment Ordinance to clarify that Philadelphia employers following the FCRA’s adverse action regulations are also in compliance Philadelphia requirements. The credit ban ordinance requires employers to disclose their reliance on credit information to the applicant or employee in writing, identify the particular information upon which the adverse decision was based, and give the employee or applicant an opportunity to explain the circumstances surrounding the information at issue before taking any such adverse action.

In addition, Bill No. 200413 removes the blanket exception for credit screens for employment with any law enforcement agency or financial institutions. The amended law instead provides that law enforcement agencies or financial institutions may conduct credit screening only under specific circumstances, such as where the credit information “must be obtained pursuant to state or federal law” or the “job requires an employee to be bonded under City, state, or federal law.”

Philadelphia Amends Criminal Record Screening Standards

Effective April 1, 2021, Bill No. 200479 amends Philadelphia’s Fair Criminal Record Screening Standards to make it applicable to current employees as well as applicants in Philadelphia, including independent contractors and gig workers.

The amendment also provides that, even where criminal background clearance is a legal requirement for a particular position, a conditional offer must be extended before a criminal background check or criminal inquiry can be conducted.

If the background screen reveals a conviction within the past seven years, the employer must consider the nature of the offense and the time that has passed since it occurred; the particular duties of the job being sought; and the applicant’s job history, character references, and any evidence of rehabilitation. Employers may reject applicants based on criminal records only if the potential employee’s history suggests an unacceptable risk to the business or to others.

UTAH

Public Employers Prohibited from Requiring Vaccinations, but Not Private Employers

Signed on March 16, 2021, the Utah COVID-19 Vaccine Restrictions Act prohibits governmental employers from requiring that an individual receive an emergency COVID-19 vaccine as a condition of employment. The law also prohibits governmental entities from requiring so-called “vaccine passports” from individuals as a condition of participation in a governmental activity including outside or extracurricular activities.

The Act is specifically limited to governmental entities. Therefore, private sector employers in Utah are not prohibited from requiring that their employees receive a vaccination. 

Safe Harbor for Companies Facing Data Breach Litigation

Effective May 5, 2021, the Cybersecurity Affirmative Defense Act amends Utah’s data security breach compliance requirements to provide protections for companies facing data breach claims.

Under the Act, a person that creates, maintains, and reasonably complies with a written cybersecurity program that meets certain requirements has an affirmative defense to a claim breach claim.

To be eligible for protection under the Act, written cybersecurity programs must include administrative, technical, and physical safeguards to protect personal information such as being designed to protect the security, confidentiality, and integrity of personal information; protect against any anticipated threat or hazard to the security, confidentiality, or integrity of personal information; and protect against a breach of system security. They must also reasonably conform to a recognized cybersecurity framework and be of an appropriate scale and scope.

An affirmative defense would not be applicable if a person had actual notice of a threat or hazard to the security, confidentiality, or integrity of personal information and did not act in a reasonable amount of time to protect the personal information against the threat or hazard, which resulted in the breach of system security.

VIRGINIA

New Overtime Wage Law Effective July 1

Effective July 1, 2021, the Virginia Overtime Wage Act enacts new state overtime pay requirements. While the new law matches the Fair Labor Standards Act (“FLSA”) in requiring employers to pay 1 ½ times an employee’s regular rate of pay for hours worked in excess of 40 in a workweek, it differs in how the regular rate of pay is calculated, the length of the statute of limitations to bring potential claims, and the amount of potential damages.

An hourly employee’s regular rate of pay is calculated by taking the hourly rate plus any other non-overtime wages paid in a workweek and dividing that amount by the total number of hours worked in the workweek. For salaried employees or those who are paid on some other regular basis, the regular rate of pay is one-fortieth (0.025) of all wages paid for the workweek.

The new law provides a three-year statute of limitations on overtime claims, as opposed to the FLSA’s standard two-year limitations period.

While the FLSA allows an employer to defend against a damage claim on the basis that it acted in good faith, Virginia’s act does not. All overtime wage violations in the state are subject to double damages, plus pre-judgment interest at eight percent a year. In addition, the law provides for tripled damages for “knowing” violations.

Marijuana Possession Legalized and Discrimination against Medical Marijuana Use Prohibited

Effective July 1, 2021, individuals over the age of 21 can legally possess up to an ounce of marijuana in Virginia.

Also, effective July 1, 2021, employers are prohibited from discriminating against lawful users of medical cannabis oil. However, the law does not restrict employers from taking action based on workplace impairment due to use of cannabis oil. It also contains exceptions for employers if compliance with the law would result in a loss of a federal contract or federal funding, and for defense industrial base sector employers.

Paid Sick Leave Law Enacted for Home Health Workers

Effective July 1, 2021, Virginia’s new Paid Sick Leave Law requires employers of home health workers to provide paid sick leave at the same hourly rate and with the same benefits as for hours worked.

The law applies to workers who provide personal care, respite, or companion services to an individual who receives consumer-directed services under the state plan for medical assistance services (Medicaid) who work an average of at least 20 hours per week or 90 hours per month.

Eligible employees must accrue at least one hour of paid sick leave for every 30 hours worked, up to a cap of 40 hours unless employers choose to provide more. Employers can provide paid leave accruals in each pay period or the entire accrual at the beginning of the year. Employers with existing time off policies that meet or exceed the requirements of this new law do not have to provide additional paid sick leave to employees.

Employees must be allowed to use paid sick leave for the following reasons:

• An employee’s mental or physical illness, injury, or health condition.
• An employee’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition.
• An employee’s need for preventive medical care.
• Care of a family member with a mental or physical illness, injury, or health condition.
• Care of a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition.
• Care of a family member who needs preventive medical care.

Disability Discrimination Protections Expanded

Effective July 1, 2021, the Virginia Human Rights Act (“VHRA”) prohibits discrimination on the basis of disability. Under the new law, employers must make reasonable accommodation to the known physical and mental impairments of an otherwise qualified person with a disability, if necessary, to assist in performing a particular job. An accommodation must be provided, unless an employer can demonstrate the accommodation would impose an undue hardship.

Virginia employers are prohibited from:

• Taking any adverse action against an employee who requests or uses a reasonable accommodation;
• Denying employment or promotion opportunities to an otherwise qualified applicant or employee because the employer will be required to make reasonable accommodation to the applicant or employee;
• Requiring an employee to take leave if another reasonable accommodation can be provided to the known limitations related to the disability; and
• Failing to engage in a timely, good faith interactive process with an employee who has requested an accommodation to determine if the requested accommodation is reasonable, and if such accommodation is determined not to be reasonable, discuss alternative accommodations that may be provided.

Domestic Worker Protections Added

House Bill 2032 extends employee protection laws to domestic service workers, allowing them to file complaints regarding workplace safety for investigation by Virginia’s Commission of Labor and Industry.

Domestic service is defined as “services related to the care of an individual in a private home or the maintenance of a private home or its premises, on a permanent or temporary basis, including services performed by individuals such as companions, cooks, waiters, butlers, maids, valets, and chauffeurs.”

WASHINGTON

High-Risk Employee Proclamation Amended to Expand Medical Verifications

Effective April 23, 2021, the state’s High-Risk Employee Proclamation has been amended to make it easier for employers to seek medical verification from employees of whether they are high-risk for COVID-19 and what accommodations might allow them to return to work.

Under the amendment, employers may require verification from an employee’s medical provider for any of the following conditions:

• cancer
• chronic kidney disease
• chronic lung diseases
• dementia or other neurological conditions
• diabetes (type 1 or type 2)
• Down syndrome
• heart conditions (such as heart failure, coronary artery disease, cardiomyopathies, or hypertension)
• HIV infection
• immunocompromised state (weakened immune system)
• liver disease
• overweight or obese (collectively defined as a body mass index of 25 or higher)
• pregnancy
• sickle cell disease or thalassemia
• current or previous smoking
• solid organ or blood stem cell transplant
• stroke or cerebrovascular disease
• substance use disorders

Medical verification must include a determination of or medical opinion as to whether the employee is high-risk and whether the employee may be able to return to the workplace with additional accommodations in place.

When high-risk employees request alternative work arrangements to protect themselves from the risk of exposure to COVID-19 on the job, employers must still utilize all available options, including telework, alternative or remote work locations, reassignment, and social distancing measures. Employers may not change a high-risk employee’s accommodations under the proclamation without providing the employee at least 14 calendar days’ advance written notice itemizing the changes.

Under the amended proclamation, employers are no longer required to indefinitely maintain health insurance benefits for high-risk employees. Employers can terminate employer-provided health coverage if they provide written notice at least 14 days in advance and continue coverage through the end of the month in which the 14-day period lapses.

For additional details, see responses to Frequently Asked Questions.