APRIL 2020 LEGAL UPDATE
UPCOMING COMPLIANCE DATES
APRIL 30, 2020 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 1, 2020: New Form I-9 Required
Employers must begin using the latest version of Form I-9 no later than May 1, 2020.
Prior to state primary election days: Voting Leave May Be Required
While there are no federal laws requiring time off to vote, many states require employers to provide voting leave. State primary election days vary, and some state primary election dates (see calendar) have been postponed from the original date scheduled. Confirm your state’s primary election date to prepare for voting leave and notifications, if needed. Refer to our March Legal Update for state-specific requirements.
FEDERAL COMPLIANCE UPDATES
CARES ACT ENACTED
On March 27, 2020, the U.S. House of Representatives passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). The $2.2 trillion stimulus measure provides direct financial help to Americans; immediate assistance for hospitals, healthcare first responders, and patients; support for small businesses; and assistance for distressed industries.
For eligible small businesses under 500 employees, sole proprietors, independent contractors, and other self-employed individuals, the Act provides $349 billion through federally backed loans under a modified and expanded Small Business Administration (SBA) 7(a) loan guaranty program. These loans can be used to pay for utilities, rent, mortgage, and payroll. Borrowers are eligible for loan forgiveness for the first eight weeks of the loan.
The CARES Act also reinstates coverage of over-the-counter (“OTC”) medications as eligible for reimbursement under Flexible Spending Accounts, Health Savings Accounts, Health Reimbursement Arrangements, and Archer MSAs without requiring a prescription. Vitamins and other supplements may be covered as an eligible expense, but medical documentation would be required to prove they are being used to treat a medical condition. Qualified OTC items also now include menstrual care products. All of these changes are retroactive to January 1, 2020, but it may take some time before systems are updated to approve the newly eligible items.
The Act ensures that all testing for COVID-19 is covered by private insurance plans, with free coverage of a vaccine within 15 days for COVID-19 when such a vaccine is available. Employers who provide group health coverage will be required to distribute a Summary of Material Modification (“SMM”) to reflect these changes. Contact HR Service for an SMM template.
The sweeping measure is not likely to be the last action that the Executive and Legislative branches will undertake. More information will be provided as it becomes available.
CLARIFICATION FROM THE DOL AND IRS REGARDING FFCRA
In the March 2020 Legal Update, we provided an overview of the provisions of the Families First Coronavirus Response Act (“FFCRA”). Since then, the Department of Labor (“DOL”) and the IRS have released documents that provide explanations and clarifications about the FFCRA.
OSHA ISSUES NEW GUIDANCE ON RECORDING COVID-19
The Occupational Safety and Health Administration (“OSHA”) requires that certain work-related injuries and illnesses be recorded. COVID-19 can be a recordable illness under the Occupational Safety and Health Act if a worker is infected as a result of performing work-related duties if all of the following are true:
- There is a confirmed case of COVID-19 as defined by the Centers for Disease Control;
- The case is work-related as defined by OSHA regulationswhich state that an injury or illness is work-related “if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness”; and
- The case involves one or more of OSHA’s general recording criteria, which are:
- Days away from work;
- Restricted work or transfer to another job;
- Medical treatment beyond first aid;
- Loss of consciousness;
- A significant injury or illness diagnosed by a physician or other licensed health care professional.
In guidance released on April 10, 2020, OSHA stated that employers in the healthcare industry, emergency response organizations, and correctional institutions must continue to make individualized determinations of work-relatedness of COVID-19. However, until further notice, OSHA will not require other employers to make that same determination unless there is objective evidence that a COVID-19 case may be work-related, and the evidence was reasonably available to the employer.
On April 13, 2020, OSHA issued an Interim Enforcement Response Plan for complaints, referrals, and severe illness reports related to COVID-19. The Plan states that OSHA should fully investigate complaints, referrals, and employer-reported fatalities and hospitalizations in high-risk environments but indicates that complaints about lower-risk non-healthcare and non-emergency response environments will be investigated on a more informal basis.
CONSIDER POSSIBLE EFFECTS OF FURLOUGHS ON ACA
Under the Affordable Care Act (“ACA”), applicable large employers with 50 or more full-time equivalent employees are required to offer full-time employees affordable health coverage that provides minimum essential coverage and meets the minimum value threshold. Employers who fail to meet these requirements could face penalties under the ACA.
Employers who have furloughed employees, have reduced employee hours, or provided substantial unpaid leave but continue to maintain benefits coverage could trigger these penalties.
Employers should, therefore, verify that all full-time employees are continually offered health coverage, even if the premiums are 100% employer-paid during the furlough or leave period. Employers should bear in mind that offering COBRA or 100% employee-paid coverage to employees who are still considered ACA full-time while on leave could pose a penalty risk if a full-time employee waives the COBRA or employee-paid offer and elects a subsidized policy in the ACA marketplace.
Employees on extended leaves with no hours of credited service will be subject to “break in service” rules under the ACA. If an employee returns to service after a period of 13 or more weeks without any credited service hours, the employer may consider the employee as a “new hire” for the purpose of the employer mandate upon their return. Additionally, employers can treat an employee as new if they return from a break of four or more weeks without any credited service hours if the break-in service was longer than the employee’s actual service tenure prior to the break.
NEW NLRB UNION REPRESENTATION ELECTION RULES TAKE EFFECT
Effective May 31, 2020, the National Labor Relations Board’s (NLRB’s) new union representation election rules provide more time for employers to comply with pre-election requirements and to engage in efforts to maintain a union-free workplace.
Under the new rules, an election normally will not be scheduled less than 20 business days after the day of the direction of election. Deadlines for employers to post notices and file statements and briefs have been extended, and pre-election hearings are to be scheduled 14 business days from the date of the hearing notice. Disputes of issues involving unit scope, voter eligibility, and supervisor status are to be litigated at the pre-election hearing and resolved before an election is directed. Parties are permitted to introduce evidence and to call, examine and cross-examine witnesses at the hearing. The time employers have to provide the initial voting list to the union, and the NLRB is extended from two to five business days.
DELAYS IN H-1B PROCESSING
US Citizenship and Immigration Services recently announced that there would be a delay in data entry and receipt notice generation for the fiscal year 2021 H-1B cap-subject petitions. Data entry on petitions will not begin until at least May 1, 2020, based on the order in which they were received.
In addition, suspension of premium processing service on USCIS petitions remains in place until at least the end of May. USCIS has stated it will be “mindful” of time-sensitive petitions and will be transferring petitions among different service centers to create a balanced workload.
NEW POSTING REQUIREMENT FOR H-1B EMPLOYEES WORKING AT HOME
The U.S. Department of Labor (“DOL”) recently announced that an employer must provide an updated notice regarding the Labor Condition Application (“LCA”) used for the original H-1B approval if an H-1B employee has switched work locations, including working from home. The employer must provide either an electronic or hard-copy notice of the LCA to the H-1B employee at the new work location for ten calendar days. The notice must be given no later than 30 calendar days after the H-1B employee begins work at home or at an alternate location.
The DOL also confirmed that a new LCA is not required unless the H-1B employee’s home is outside the area of the company worksite. If that is the case or if there are other changes in the terms and conditions of the H-1B employment such as a wage or hours reduction, a new LCA and amended H-1B will generally need to be filed.
STATE COMPLIANCE UPDATES
FAQ Document Published Regarding Paid Sick Leave and COVID-19
California’s Department of Industrial Relations has published Coronavirus Disease (COVID-19) FAQs, which provide guidance on laws enforced by the California Labor Commissioner’s Office, including the use of paid sick leave.
Paid Family Leave Benefits Extended to 8 Weeks
Effective July 1, 2020, SB 83 extends the maximum duration of paid family leave (“PFL”) benefits from six to eight weeks. Employees are eligible for PFL through California’s state disability insurance (SDI) program to care for a seriously ill child, spouse, parent, grandparent, grandchild, sibling or domestic partner or to bond with a minor child within one year of the birth or placement of the child through foster care or adoption.
Next Phase of CalSavers State Retirement Saving Program Effective June 2020
Officially launched on July 1, 2019, the CalSavers retirement program provides California employers an alternative to offering an employer-sponsored retirement savings plan.
Effective June 2020, employers in California with more than 100 employees will be required to either offer an employer-sponsored retirement savings plan or enroll in the CalSavers program. Applicable employers with 50 – 99 employees must join by June 30, 2021, and applicable employers with 5 to 49 employees must join by June 30, 2022.
Emeryville Issues COVID-19-Related Paid Sick Leave Guidance
The City of Emeryville has issued guidance regarding permissible coronavirus-related uses for the City’s paid sick leave ordinance.
Los Angeles Emergency Order
Effective April 7, 2020, the Los Angeles Emergency Order requires covered employers to provide eligible employees with up to 80 hours of supplemental paid sick leave for COVID-19-related reasons. The Order supersedes the COVID-19 Supplemental Paid Sick Leave Ordinance.
The Order applies to covered employers with either 500 or more employees within the City of Los Angeles or 2,000 or more employees within the United States, with some exceptions described below. A “covered employer” is defined as any person, including a corporate officer or executive, who directly or indirectly — including through the services of a temporary service or staffing agency or similar entity — employs or exercises control over the wages, hours, or working conditions of any employee. The size of an employer’s business is determined by the average number of employees employed during the previous calendar year and includes full-time, part-time, temporary, and seasonal employees.
An employer who has a paid leave or paid time off policy that provides at least 160 hours of paid leave annually is exempt from any obligation to provide supplemental leave. Paid holidays and access to paid bereavement leave do not count toward the 160-hour minimum. Further, an employer’s obligation to provide 80 hours of supplemental paid sick leave is reduced for every hour that employer allowed an employee to take paid leave in an amount equal to or greater than the compensation requirements, not including previously accrued hours, on or after March 4, 2020, for any of the qualifying reasons for leave.
Businesses that were closed or not operating for a period of 14 or more days any time on or after March 4, 2020, due to a City official’s emergency order because of the COVID-19 pandemic are exempted from the Order. New businesses that started in the City or businesses that relocated from outside the City on or after September 4, 2019, through March 4, 2020, are also exempted from the Order. This exemption does not apply to construction businesses as defined in Section 21.30 b.1 of the Los Angeles Municipal Code; or film producers, as defined in Section 21.109 of the Los Angeles Municipal Code.
The Order applies to an employee who has been employed with a covered employer from February 3, 2020, through March 4, 2020, who performs any work within the geographic boundaries of the City of Los Angeles and is unable to work or telework due to COVID-19-related reason. An employee who performs work or teleworks inside the geographic boundaries of the City of Los Angeles is covered, even if their employer is based outside of the City or the employee’s regular workplace is outside the City.
The Order exempts emergency personnel, health care providers, and individuals, including contract workers working at a licensed health facility. “Emergency personnel” is defined in the Order as all first responders; gang and crisis intervention workers; public health workers; emergency management personnel; emergency dispatchers; law enforcement personnel; and related contractors and others working for emergency services providers. “Health care provider” is defined as an individual holding either a physician’s and surgeon’s certificate or an osteopathic physician’s and surgeon’s certificate, or an individual duly licensed as a physician, surgeon, or osteopathic physician or surgeon in another state or jurisdiction, who directly treats or supervises the treatment of the serious health condition. The term also applies to any other person determined by the United States Secretary of Labor to be capable of providing health care services under the FMLA. “Health facility” is defined as a facility, place, or building that is organized, maintained, and operated for the diagnosis, care, prevention, and treatment of human illness, physical or mental, including convalescence and rehabilitation and including care during and after pregnancy, or for anyone or more of these purposes, for one or more persons, to which the persons are admitted for a 24-hour stay or longer.
The order also exempts employees who provide global parcel delivery services, which the Order defines as an essential emergency service vital to health and safety during this pandemic. This Order does not apply to employees of government agencies working within the course and scope of their public service employment, but it does apply to contractors of the government.
An eligible employee who works at least 40 hours per week or is classified as a full-time employee by the employer is eligible for 80 hours of supplemental paid sick leave. Supplemental paid sick leave must be calculated based on an employee’s average two-week pay over the period of February 3, 2020, through March 4, 2020. An employee who works fewer than 40 hours per week and is not classified as a full-time employee is eligible for supplemental paid sick leave in an amount no greater than the employee’s average two-week pay over the period of February 3, 2020, through March 4, 2020. Overtime premiums are not to be considered when calculating an employee’s average two-week pay. However, the base rate before the premium for any overtime hours should be included in the calculation. The supplemental paid sick leave amount is capped at $511 per day and $5,110 in total. Employees of joint employers are only entitled to the total aggregate amount of leave specified for employees of one employer.
An eligible employee may take supplemental paid sick leave for the following reasons:
- A public health official or health care provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
- The employee is at least 65 years old or has a health condition, such as heart disease, asthma, lung disease, diabetes, kidney disease or weakened immune system;
- The employee needs to care for a family member who is not sick, but who public health officials or health care providers have required or recommended isolation or self-quarantine; or
- The employee needs to care for a family member whose senior care provider or whose school or child care provider caring for a child under the age of 18 temporarily ceases operations in response to public health or other public official’s recommendation, and the employee is unable to secure a reasonable alternative caregiver.
An employee’s request for supplemental paid sick leave may be made verbally or in writing. An employer may not require a doctor’s note or other documentation for the use of supplemental paid sick leave. An employer is prohibited from inquiring about the illness or condition that prompted the employee’s leave. However, an employer may require an employee to provide the reason for taking leave, such as child care, quarantine, vulnerable medical condition, or caring for a family member. Employers should retain documentation of requests for supplemental paid sick leave, including the name of the employee requesting the leave, the date for which it is requested, the category or reason for the leave, whether or not it was approved, and — if not, the reason for denial. An employer should also retain documentation substantiating any applicable exemption.
A collective bargaining agreement (“CBA”) in place on April 7, 2020, may supersede the provisions of this Order if it contains COVID-19-related sick leave provisions. If a CBA is in place April 7, 2020, but does not address COVID-19-related sick leave provisions, then the employer must comply with this Order unless and until the agreement is amended to expressly waive in clear and unambiguous terms set forth in the agreement.
An employer is prohibited from terminating, reducing compensation, retaliating, or otherwise discriminating against an employee for:
- Opposing any practice prohibited by this Order;
- Requesting or actually using the supplemental paid sick leave;
- Seeking to enforce their rights, by any lawful means, or otherwise asserting rights under this Order.
This Order will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.
Oakland Issues COVID-19-Related Paid Sick Leave Guidance
The City of Oakland issued COVID-19-specific guidance regarding permissible coronavirus-related uses for the City’s paid sick leave ordinance. City officials have also indicated that an emergency sick leave ordinance is pending.
San Diego Issues COVID-19-Related Paid Sick Leave Guidance
The City of San Diego published Earned Sick Leave COVID-19 Guidelines regarding permissible coronavirus-related uses for the City’s earned sick leave ordinance.
San Francisco Issues Emergency Ordinance and Guidance
The San Francisco Board of Supervisors has adopted a Public Health Emergency Leave Ordinance (“PHELO”), which is pending the signature of the mayor at the time of this Legal Update distribution. The PHELO is very similar to the emergency ordinance that was signed on April 17, 2020, to temporarily require private employers with 500 or more employees to provide public health emergency leave during the public health emergency related to COVID-19 but includes changes to the eligibility and exemptions.
The San Francisco Office of Labor Standards Enforcement has issued guidance regarding the use of San Francisco paid sick leave during the current local health emergency. The guidance address issues such as employee use of paid sick leave, eligibility for paid sick leave, employer verification of paid sick leave, and employee separations.
San Jose Issues Paid Sick Leave Ordinance
Effective April 7, 2020, San Jose’s COVID-19 Paid Sick Leave Ordinance requires certain private employers to provide temporary sick leave for the duration of the COVID-19 health emergency. This Ordinance will remain in effect until December 31, 2020.
The Ordinance applies to employers with 500 or more employees, which are not covered under the federal Emergency Paid Sick Leave Act of the Families First Coronavirus Response Act.
An employee is eligible for paid sick leave under the Ordinance if they are employed by a covered employer, worked at least two hours within the geographic boundaries of San Jose for the covered employer, and perform essential work. “Essential work” refers to work activities and services as defined in the order issued by the Santa Clara County Public Health Officer on March 16, 2020, for which an employee may leave their residence to perform.
The Ordinance does not apply to:
- Employees who can work from home;
- An employer that provides its employees with some combination of paid personal leave that is at least equivalent to the paid sick time required by this Ordinance. However, an employer that provides some combination of paid personal leave that is less than the paid sick time required by this Ordinance is required to comply with this Ordinance to the extent of the deficiency; and
- An employer that operates a hospital if the employer provides its employees, within two weeks of April 7, 2020, with some combination of paid personal leave that is at least equivalent to the paid sick time required by this Ordinance. However, if the employer provides some combination of paid personal leave that is less than the paid sick time required by this Ordinance, then it must comply with this Ordinance to the extent of the deficiency.
An employee can use paid sick leave if subject to quarantine or isolation by federal, state or local order due to COVID-19 or is caring for someone who is quarantined or isolated due to COVID-19; is advised by a health care provider to self-quarantine due to COVID-19 or is caring for someone who is advised to self-quarantine by a health care provider; is experiencing symptoms of COVID-19 and is seeking medical diagnosis, or caring for a minor child because a school or daycare is closed due to COVID-19.
Eligible full-time employees are entitled to 80 hours of paid sick leave, and eligible part-time employees are entitled to sick leave hours equal to the number of hours they work on average over a two-week period. The sick leave amount is capped at the employee’s regular rate of pay up to $511 a day and $5,110 in total if the employee is quarantined, isolated, or is experiencing symptoms and is seeking a medical diagnosis. If an employee is caring for another person, the sick leave amount is capped at two-thirds of the employee’s regular rate of pay up to $200 a day and $2,000 in total.
For a part-time employee, paid sick leave is calculated based on the average number of hours the employee worked per day during the six months immediately preceding the effective date of this Ordinance. If an employee has worked for the employer fewer than six months, then the employer calculates the amount of sick leave used based on the average hours the employer expected at the time of hire to have the employee work.
Temporary Paid Sick Emergency Rule Enacted
Effective March 11, 2020, Colorado’s Health Emergency Leave with Pay Rules temporarily requires employers in certain industries to provide up to four paid sick days to employees experiencing flu-like symptoms and being tested for the COVID-19 coronavirus. The industries include:
- Leisure and hospitality;
- Food services;
- Child care;
- Education at all levels including related services such as cafeterias and transportation to, from, and on campuses);
- Home health care working with elderly, disabled, ill, or otherwise high-risk individuals;
- Nursing homes;
- Community living facilities;
- Retail establishments that sell groceries (added March 26);
- Those under instructions from a health care provider to quarantine or isolate due to a risk of having COVID-19 even if not being tested (added March 26); and
- Food and beverage manufacturing (added April 3).
The paid sick leave ends if an employee receives a negative COVID-19 test result. If an employer already provides at least four days of sick pay, the employer does not have to provide more. However, if an employee has exhausted their sick leave, they are entitled to the paid sick leave under the Emergency Rule.
The Rules will remain in effect through the duration of the State of Disaster Emergency declared by the Governor, up to a maximum of 120 days after adoption of these temporary/emergency rules.
For additional details, see the Health Emergency Leave with Pay Rules with FAQ.
DISTRICT OF COLUMBIA
Emergency Amendment Act & Supplemental Emergency Amendment Act of 2020 Passed
Effective March 11, 2020, the COVID-19 Response Emergency Amendment Act of 2020 expands unemployment eligibility and provides extended coverage under the District of Columbia Family and Medical Leave Act (“DCFMLA”).
Also effective March 11, 2020, the COVID-19 Response Supplemental Emergency Amendment Act of 2020 requires an employer with 50 to 499 employees that is not a health care provider to provide paid leave to an employee for absence from work due to any of the reasons for which paid leave may be used under the Families First Coronavirus Response Act (“FFCRA”). The eligible reasons include:
- The employee has been recommended to self-isolate or has been required to quarantine following exposure to, or while experiencing symptoms of, COVID-19;
- The employee must care for an at-risk family member for exposure or symptoms related to COVID-19; or
- The employee must care for a child whose school or place of care has closed.
As with the FFCRA, a covered employer must provide up to 80 hours of leave compensated at the employee’s regular rate of pay. If an employee does not have a regular rate of pay, the employee’s rate of pay is determined by dividing the employee’s total earnings — including all tips, commission, piecework or other earnings earned on an irregular basis for the most recent two-week period that the employee worked — by the number of hours the employee worked during that two-week period.
Unlike under the FFCRA, an employee must work for the employer at least 15 days before eligible for the declared emergency paid leave.
The law allows employers to require that an employee exhaust any available leave under federal or District law or an employer’s own policies prior to using emergency paid leave under the Supplemental Emergency Amendment Act.
If an employee uses all of the declared emergency paid leave available and subsequently informed the employer of the continued need to be absent from work, the employer must inform the employee of any paid or unpaid leave to which the employee may be entitled under federal law, other District law or the employer’s own policies.
An employer may not require an employee who requests paid leave to provide more than 48 hours’ notice or more than reasonable notice in the event of an emergency. An employee may not be required to find a replacement to cover for the requested leave time.
An employer who contributes payments toward a health insurance plan can require an employee who uses three or more consecutive working days of paid leave to provide a certification one week after returning to work.
The Supplemental Emergency Amendment Act of 2020 will remain in effect for up to 90 days.
Fair Labor Division Issues FAQ Document
The Massachusetts Attorney General’s Fair Labor Division has published FAQs on employee rights and employer obligations related to COVID-19. The FAQs cover the use of paid sick leave under the state’s Earned Sick Time Law (“ESTL”) due to COVID-19 and how the ESTL interacts with the Families First Coronavirus Response Act.
Paid 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 a paid leave to qualifying veterans to participate in a Memorial Day exercise, parade, or service as long as reasonable notice is provided. Previous legislation requires all employers to provide paid or unpaid leave to qualified veterans to participate in a Veterans Day and Memorial Day exercises, parades, or services.
Executive Order Extends Employee Protections Related to COVID-19
Effective April 3, 2020, Executive Order No. 2020-36 prohibits Michigan employers from discharging, disciplining, or otherwise retaliating against employees who stay home during certain specified quarantine periods because they are at particular risk of infecting others with the COVID-19 coronavirus.
The Order protects employees if they stay home from work because they test positive for COVID-19 or display one or more of the principal symptoms of COVID-19 until three days have passed since their symptoms have resolved, and seven days have passed since their symptoms first appeared or since they were swabbed for the test that yielded the positive result.
The Order also protects employees who have had close contact — defined as being within approximately six feet of an individual for a prolonged period of time — with an individual who tests positive or who displays one or more of the principal symptoms of COVID-19 until either 14 days have passed since the last close contact with the sick or symptomatic individual; or the symptomatic individual receives a negative COVID-19 test.
The following workers are exempt from the close contact coverage:
- health care professionals;
- workers at a health care facility;
- first responders including police officers, firefighters, paramedics;
- child protective service employees;
- workers at child care institutions; and
- workers at correctional facilities.
Employers must treat protected employees as though they were taking medical leave under the Paid Medical Leave Act (“PMLA”). Note, however, that the Order applies to all employers, including those with fewer than 50 employees who are not covered under PMLA.
An employee who returns to work prior to the time periods addressed above will not be entitled to the protections against discharge, discipline, or retaliation. The Order does not prevent an employer from discharging or disciplining an employee who is allowed to return to work under the Order but declines to do so, with the employee’s consent, or for any other reason that is not unlawful.
Duluth Issues FAQ Document Regarding the Use of Earned Sick and Safe Time
The City of Duluth has published responses to frequently asked questions at Earned Sick and Safe Time and COVID-19 FAQs that include protected activities under the Earned Sick and Safe Time (ESST) Ordinance.
Minneapolis Issues Guidance Regarding the Use of Earned Sick and Safe Time
The City of Minneapolis Labor Standards Enforcement Division has posted guidance and FAQs that explain how its Sick and Safe Time Ordinance is interpreted by the Division during the current pandemic.
Guidance Published Regarding the Use of Sick Leave Related to COVID-19
The Office of the Nevada Labor Commissioner has issued guidance addressing the use of accrued paid leave for COVID-19-related reasons.
New Jersey DOL Issues Guidance on COVID-19
The New Jersey Department of Labor (DOL) has released guidance about state benefits and protections afforded to New Jersey employees in relation to the COVID-19 outbreak.
Multiple Amendments to New Jersey Leave Laws and Employee Protections
Effective March 25, 2020, NJ S.B. 2304 expands New Jersey’s paid sick leave and family leave laws during epidemic-related emergencies.
The paid sick leave law now includes the following reasons that qualify for leave:
- The employee’s workplace or the employee’s child’s school or place of care closes because of a state of emergency declared by the Governor due to an epidemic or other public health emergency;
- The declaration of a state of emergency by the Governor, or the issuance by a health care provider or the commissioner of health, that the employee’s presence in the community, or an employee’s family member in need of care by the employee would jeopardize the health of others; or
- During a state of emergency declared by the Governor, or upon the recommendation, direction or order of a health care provider, the commissioner of health or other authorized public official, the employee undergoes isolation or quarantine, or cares for a family member in quarantine, as a result of suspected exposure to a communicable disease and finding that the employee’s or family member’s presence in the community would jeopardize the health of others.
Signed on April 14, 2020, and retroactive back to March 25, 2020, NJ S.B. 2374 expands protections of the New Jersey Family Leave Act (“NJFLA”) to allow employees forced to take time off to care for a family member during the COVID-19 outbreak to take up to 12 weeks of unpaid family leave in a 24-month period without losing their jobs. This amendment removed the previous amendment that was included in NJ S.B. 2304 that had expanded the definition of serious health condition and instead incorporated those definitions into the permitted uses of family leave under the NJFLA.
Under this amendment, employees are eligible for leave in the event of a state of emergency declared by the Governor or by the Commissioner of Health or other public health authority, an epidemic of a communicable disease, a known or expected exposure to a communicable disease or efforts to prevent the spread of a communicable disease, which:
- Requires in-home care or treatment of the employee’s child due to the closure of the child’s school or place of care, by order of a public official due to the epidemic or other public health emergency;
- Prompts the issuance by a public health authority of a determination, including by mandatory quarantine, requiring or imposing responsive or prophylactic measures as a result of illness caused by an epidemic of a communicable disease or known or suspected exposure to the communicable disease because the presence in the community of a family member in need of care by the employee, would jeopardize the health of others; or
- Results in a health care provider’s or public health authority’s recommendation that a family member in need of care by the employee voluntarily undergo self-quarantine as a result of suspected exposure to a communicable disease because the family member’s presence in the community would jeopardize the health of others.
Effective March 20, 2020, N.J. AB 3848 prohibits an employer from retaliating against an employee who requests or takes time off from work based on a medical recommendation that the employee takes that time off. The law limits retaliation protections to actions taken during the Public Health Emergency, and State of Emergency declared by the Governor regarding the COVID-19 pandemic.
Specifically, the law prohibits an employer from terminating or otherwise penalizing an employee if the employee requests or takes time off from work based on the written or electronically transmitted recommendation of a medical professional licensed in New Jersey that the employee take that time off for a specified period of time because the employee has, or is likely to have, an infectious disease, which may infect others at the employee’s workplace.
Under New Jersey law, “infectious disease” means a disease caused by a living organism or other pathogens, including a fungus, bacteria, parasite, protozoan, virus, or prion. An infectious disease may, or may not, be transmissible from person to person, animal to person or insect to person.
NOTE: More paid leave, and related laws by the New Jersey legislature are forthcoming but have not yet been passed at the time of this distribution.
New Jersey to Allow Payment of Partial Temporary Disability Benefits
Effective June 17, 2020, NJ S.B. 844 allows the payment of temporary disability benefits (“TDB”) on a part-time basis. Specifically, employees that are permitted by their employers to return to work on a reduced basis while recovering from disability will be paid a reduced amount of TDB.
To be eligible for partial benefits, an employee must have been:
- Totally unable to perform the duties of his or her employment due to disability; and
- Receiving benefits for at least seven consecutive days prior to claiming partial benefits.
New Jersey Requires Bone Marrow and Organ Donation Leave
Effective May 20, 2020, NJ A.B. 1449 provides job-protected leave to individuals who are unable to work because they are donating an organ or bone marrow. In addition, the law eliminates the one-week waiting period for the payment of temporary disability benefits when donating an organ or bone marrow.
New York Enacts COVID-19 Paid Sick Leave
Effective March 18. 2020, employees in New York who are subject to mandatory or precautionary quarantine or isolation due to the COVID-19 outbreak are eligible for additional coronavirus-specific paid sick leave. Also, the state’s disability and paid-family-leave benefits have been expanded to cover certain coronavirus-related leave.
The bill requires employers to provide certain paid and unpaid leave to employees, based on the size (and in some cases, revenue) of employers.
The new law also expands protections to certain employees under the New York Paid Family Leave and the New York disability benefits law to provide some measure of salary continuation during a quarantine or isolation order period.
Upon return to work, previously quarantined employees must be restored to the position they held prior to any leave taken under this law.
For additional details, see Guidance for Employers, the COVID-19 Paid Leave Home Page, and New York Paid Family Leave COVID-19: Frequently Asked Questions.
Tip Credit Being Phased Out for All But Hospitality Industry Workers
The tip credit for employers in New York who employ tipped employees in certain industries will be reduced by 50 percent on June 30, 2020, and then eliminated entirely on December 31, 2020. The tip credit has allowed employers to pay a rate below the minimum wage and take a “credit” for tips received to satisfy the state minimum wage requirements.
The phased-out tip credit will apply to employers covered by the state’s Miscellaneous Industries and Occupations Wage Order, including car washes, nail salons, and parking garages. The Order does not apply to the tip credit applicable to employees covered by the Hospitality Industry Wage Order.
Toledo Bans Pay History Questions
Effective June 25, 2020, the Pay Equity Act to Prohibit the Inquiry and Use of Salary History in Hiring Practices in the City of Toledo prohibits employers in Toledo from inquiring about or using an applicant’s salary history to screen job applicants, in deciding whether to offer employment, or in determining salary, benefits, or other compensation during the hiring process. In addition, upon the reasonable request of an applicant who has received a conditional offer of employment, an employer will be required to provide the pay scale for the position.
An employer may engage in discussions with an applicant about his or her compensation expectations, including those expectations relating to unvested equity or deferred compensation that an applicant would be forced to forfeit by virtue of the applicant’s resignation from their current employer. Further, the ordinance’s prohibitions do not extend to current employees who apply for an internal transfer or promotion with their current employer.
Oregon Family Leave Act Temporarily Expanded
Effective from March 18 until September 13, 2020, a temporary administrative order expands the Oregon Family Leave Act (“OFLA”) by allowing employees to take up to 12 weeks of sick child leave to care for their child whose school or place of care has been closed due to a statewide public health emergency, including the coronavirus (COVID-19) outbreak. All of the OFLA’s requirements/obligations apply to this type of leave.
The Bureau of Labor and Industries Offices also released FAQs specific to the coronavirus.
Health Secretary’s Order Lays Out Extensive Requirements for Essential Employers
Effective April 15, 2020, a new Order related to the ongoing COVID-19 outbreak details additional protections for employees of essential businesses who are working during the pandemic. The Order contains a long list of new requirements for essential employers who are not healthcare providers and is designed to help employees maintain social distancing at work.
Under the Order, employers must:
- Provide masks for employees to wear during their time at the business and make it mandatory requirement employees wear masks while at the worksite, except to the extent an employee is using break time to eat or drink, in accordance with guidance from the Department of Health and the Centers for Disease Control and Prevention (CDC). Employers also may approve masks obtained or made by their employees, consistent with CDC guidance;
- Stagger work start and stop times for employees, when practical, to avoid gatherings of large groups entering or leaving the premises at the same time;
- Provide sufficient space for employees to have breaks and meals while maintaining a social distance of six feet, including limiting the number of employees in common areas and setting up seating to have employees facing forward and not across from each other;
- When possible, conduct meetings and training virtually. If a meeting must be held in person, employers must limit the meeting to the fewest number of employees possible, not to exceed ten employees at one time. Attendees must maintain a social distance of six feet for the duration;
- Provide employees access to regular handwashing with soap, hand sanitizer, and disinfectant wipes and ensure that common areas are cleaned on a regular basis, including between any shifts;
- Ensure that the facility has a sufficient number of employees to perform all measures listed above, and to control access, maintain order, and enforce social distancing of at least six feet;
- Prohibit non-essential visitors from entering the employer’s premises; and
- Ensure that all employees who do not speak English as their first language are aware of procedures by communicating the procedures, either orally or in writing, in their native or preferred language.
Additionally, the Order lays out special protocols for employers to follow in the event of exposure to COVID-19. If an employer discovers exposure to a person who is a probable or confirmed case of COVID-19, the employer must implement temperature screenings before employees enter the facility before the start of work each day. The employer also must send any employee home who registers a temperature of 100.4 degrees Fahrenheit or higher.
In addition to the temperature screening, employers are ordered to:
- Close off and ventilate areas visited by the individual with a probable or confirmed case of COVID-19;
- Wait a minimum of 24 hours, or as long as practical, before beginning cleaning and disinfection;
- Clean and disinfect all spaces, especially commonly-used rooms and shared electronic equipment;
- Identify and notify all employees who were in close contact with that individual (within about six feet for about 10 minutes) within 48 hours prior to the onset of symptoms;
- Ensure the business has a sufficient number of employees to perform these protocols effectively and immediately;
- Require employees with symptoms of fever, cough, or shortness of breath to notify the employer and stay home; and
- Require sick employees to following CDC-recommended steps and not return to work until the CDC criteria to discontinue home isolation are met in consultation with health care providers and state or local health departments. (Employers are encouraged to implement liberal paid time off for employees needing time off for these reasons.)
The Order contains additional requirements for employers that serve the public. Employers that serve the public within a building or any defined area are ordered to:
- Require all customers to wear masks while on-premises and deny entry to anyone not wearing masks. Businesses that provide medication, medical supplies, or food are excepted from this requirement. Such businesses must provide alternative methods of pick-up or delivery of goods. However, individuals who cannot wear a mask due to a medical condition (including children under the age of two) may enter the premises without having to provide medical documentation;
- Conduct business with the public by appointment only. To the extent this is not feasible, businesses must limit occupancy to no more than 50 percent of the number stated on their certificate of occupancy. The business also must place signage throughout each site to mandate social distancing for both customers and employees;
- Alter hours of business, so the business has sufficient time to clean, restock, or both;
- Install shields or other barriers at registers and check-out areas to physically separate cashiers and customers, or take other measures to ensure social distancing of customers from check-out personnel or close lines to maintain a distance of six feet between lines;
- Encourage the use of online ordering by providing delivery or outside pick-up;
- If the business continues with in-person, customer-facing operations, designate a specific time for high-risk and elderly persons to use the business at least once every week;
- In businesses with multiple check-out lines, only use every other register or fewer. After every hour, businesses must rotate customers and employees to the previously closed registers. Businesses also must clean the previously open registers and the surrounding area, including credit card machines, following each rotation;
- Schedule handwashing breaks for employees at least once every hour; and
- Where carts and hand baskets are available, assign an employee to wipe down carts and hand baskets before they become available to each new customer entering the premises.
The Pennsylvania State Police, the Department of Health, the Liquor Control Board, and several other state agencies and officials will enforce the Order. Violators risk citations, fines, or license suspensions.
The Order issued April 15 follows another Order issued April 6, which provides guidance to businesses on maintaining and cleaning their facilities.
Unemployment Regulations Require Employer Notices
Act 9 of 2020 amends the state’s unemployment compensation law to require employers to provide employees at the time of separation with notice of the availability of unemployment compensation — regardless of whether the employer is liable for payment of contributions to the state’s unemployment compensation fund.
The required notice to employees must include the following information:
- Availability of unemployment compensation benefits to qualifying workers;
- Workers’ ability to file an unemployment claim in the first week that their employment ends or their hours are reduced;
- Availability of assistance or information about unemployment claims on the website for the Pennsylvania Department of Labor and Industry’s Office of Unemployment Compensation or by calling the Department’s toll-free number: (888) 313-7284; and
- That the worker will need to provide certain information when they file a claim, including the worker’s full legal name, Social Security number, and, if the worker is not a U.S. citizen or resident, their authorization to work in the country. While the law does not require it, employers may want to provide employees with the Department’s official checklist for claimants.
Philadelphia Expands its Paid Sick Leave Law
The City of Philadelphia has passed Supplemental Emergency Regulations which expand the city’s paid sick leave law so that covered workers can use their paid sick leave for COVID-19-related business closures, quarantines and to stay home with their children during school closures without fear of retaliation. The regulation is in effect for the duration of the local disaster emergency declared by the Mayor of Philadelphia in response to COVID-19.
The regulations expand preventative medical care to include the following:
- Evaluating a person under investigation for the coronavirus (COVID-19);
- Self-quarantine for two weeks if the individual:
- has COVID-19 symptoms (e.g., fever, dry cough or shortness of breath);
- returned to the U.S. after travelling to a Tier 2 or Tier 3 country, as defined by the U.S. Center for Disease Control (CDC), for COVID-19; or
- has come into contact with a person diagnosed with COVID-19.
- Caring for a covered family member, when the family member is home because the place that normally provides care for the family member (i.e., school, daycare, adult care facility or other care facilities where care would otherwise be provided) is closed;
- With respect to an employee, the employee remains at home because the Governor, the Secretary of Health of Pennsylvania, the Mayor or the Health Commissioner ordered their place of business to close;
- With respect to an employee or an employee’s covered family member, the employee or family member self-quarantines because the Governor, the Secretary of Health of Pennsylvania, the Mayor or the Health Commissioner ordered residents of certain areas not to travel and travel is needed to go to work; or
- With respect to an employee or an employee’s covered family member who has a greater risk of harm than the general population if the person contracts COVID-19, such as those with compromised immune systems, the employee or family member self-quarantines because of a recommendation by the CDC, the Governor, the Secretary of Health of Pennsylvania, the Mayor, the Health Commissioner of the Department of Public Health or a health care professional.
The regulation also includes provisions clarifying what can and cannot be required as reasonable documentation, with particular emphasis on employers not requiring a note from a health care provider under most circumstances. Reasonable documentation includes, but is not limited to, a public statement from a government official, the City Department of Public Health or the CDC; or a signed statement from an employee affirming that the conditions described in the public statement do in fact apply to the employee or the employee’s family member when the use of sick and safe leave relates to:
- An employee returning to the U.S. after travelling to a Tier 2 or Tier 3 country, as defined by the CDC, for COVID-19 and/or having had contact with a person diagnosed with COVID-19;
- An employee’s family member remaining at home because their school, day care, adult care facility or other care facility is closed;
- An employee remaining at home because the Governor, the Secretary of Health of Pennsylvania, the Mayor or the Health Commissioner ordered their place of business to close; or
- An employee or their family member engaging in self-quarantine because the Governor, the Secretary of Health of Pennsylvania, the Mayor or the Health Commissioner ordered residents of certain areas not to travel and travel is needed to go to work.
If an employee is out of the office because the employee or their covered family member has a physical illness or health condition including a fever, dry cough or shortness of breath or other respiratory illness, then the employer must accept a signed statement from the employee affirming that the relevant conditions apply. Consistent with CDC guidance, a note from a health care professional may not be required.
When the use of sick and safe leave is for an employee or a covered family member who has a greater risk of harm than the general population if the person contracts COVID-19, reasonable documentation includes, but is not limited to, a public statement from a government official, the City Department of Health or the CDC. A note from a health care professional may not be required if a public statement from one of these authorities identifies the employee’s or family member’s circumstances as high risk. However, the employer can require a signed statement from an employee, affirming the conditions in the public statement apply to the employee or family member.
Philadelphia’s Fair Workweek Ordinance Enforcement Postponed
The Fair Workweek law requires covered employers to provide “good faith estimates” of average work schedules to existing employees. While the effective date of the Fair Workweek law was April 1, 2020, the Office of Benefits and Wage Compliance will not be enforcing predictability pay until further notice. However, employers are still expected to comply with other portions of the law.
Employers Required to Develop Contingency Plan against COVID-19 Exposure
The Puerto Rico Secretary of Labor and Human Resources has issued a memorandum that provides recommendations to ensure a safe and healthy work environment for employees and requires employers to develop and implement a contingency plan against COVID-19 exposure in the workplace.
The written contingency plan must include the following:
- General information about COVID-19 (definition, transmission modes, symptoms, etc.) and recommendations issued by local, national, and international health agencies on how to avoid the spread of COVID-19;
- Detail the monitoring and screening process of personnel prior to entering the workplace, and the procedures to be followed in the event of detection of an employee with symptoms or who tested positive to COVID-19;
- Indicate the number of employees to work per day and whether they will be working on rotating shifts (the Secretary recommends working with limited staff), and the control measures that will be taken to achieve the recommended distance between employees;
- Methods being implemented for the cleaning and disinfection of the establishment, including an inventory of the cleaning and disinfection products to be used by maintenance personnel and the frequency of cleaning and disinfection of work areas;
- Details of hygiene methods for employees, such as the areas designated for handwashing, use and distribution of hand sanitizer (provided by the employer), alcohol, antibacterial soap, etc.;
- Evidence of personal protective equipment determined necessary for employees’ use, and that will be provided by the employer free of cost;
- Evidence of employee training on the proper use, limitations, and disposal of personal protective equipment;
- Identification of the person designated to constantly evaluate the work areas to monitor the development of new risk areas and needs regarding the COVID-19 pandemic; and
- Evidence of the contingency plan discussion with employees.
In addition, the Secretary encourages employers to consider the indoor air quality of buildings that have been closed or in partial operation for long periods of time. According to the Secretary, the ongoing efforts to prevent COVID-19 in the workplace can be overshadowed by the “sick building syndrome” that can arise due to poor maintenance of the building ventilation system during a total or partial closure.
Five-Day Paid Emergency Leave Enacted for COVID-19 Illness
Effective upon passage, Puerto Rico’s Law 37-2020 provides certain employees up to five days of paid leave once they exhaust other paid leave. The new law amends Puerto Rico Law 180-1998, which establishes paid sick and vacation leave benefits for some private-sector employees, excluding employees classified as executives, administrators, and professionals, among others. The new law is effective immediately.
Covered employees who are sick or suspected of being sick as a result of a pandemic illness during a state of emergency declared by the Governor of Puerto Rico or by the Secretary of the Department of Health must first use any accrued sick leave. Once accrued sick leave is exhausted, employees may use other leave to which they are entitled to receive pay during any absence. Should the employee need additional leave, Law 37-2020 provides up to five days of paid leave.
Fact Sheet Published Regarding Paid Sick Leave and COVID-19
The Rhode Island Department of Labor and Training has published a COVID-19 Workplace Fact Sheet with information about assistance available through the state’s programs. The Fact Sheet covers Temporary Disability Insurance and Temporary Caregiver Insurance for employees affected by COVID-19, as well as other resources.
Veterans Preference Policy Protections Expanded
Private employers in Utah may utilize a written veterans preference employment policy that provides preference to veterans and their spouses to decisions about hiring, promotion, or retention, including during a reduction in force. Effective May 12, 2020, a Utah veteran or veteran’s spouse may provide proof of current service in the armed forces in addition to or instead of a discharge document in order to establish eligibility under a veteran’s preference policy.
FAQ Document Published Regarding Paid Sick Leave and COVID-19
The Vermont Department of Labor has published COVID-19 FAQs, which provides guidance on the use of paid sick leave under the state’s Earned Sick Time Law for COVID-19-related reasons.
New Virginia Law Will Prohibit LGBT Discrimination
Effective July 1, 2020, the Virginia Values Act protects the rights of lesbian, gay, bisexual, and transgender (LGBT) Virginians in employment, housing, and accommodations as well as expands the ability of plaintiffs to sue in Virginia state court.
The law prohibits discrimination on the basis of sexual orientation and gender identity in private employment, defined as covering employers who employ 15 or more employees; public employers; public accommodations, covering all businesses offering or holding out to the general public goods, services, privileges, facilities, advantages or accommodations; creditors with respect to any credit transaction; and housing and real estate industries.
In addition, plaintiffs alleging any form of employment discrimination in state court claims will be able to sue for any violation of the anti-discrimination laws, not just when they have been discharged from employment. Plaintiffs will be able to recover compensatory and punitive damages, lost wage damages with no 12-month limitation, and reasonable attorney fees with no limitation. The court can also issue injunctive relief, such as ordering reinstatement of the plaintiff.
Q&A Published Regarding Paid Sick Leave and COVID-19
Washington’s Department of Labor and Industries has published Paid Sick Leave and Coronavirus (COVID-19) Common Questions to provide information and guidance on the use of the state’s paid sick leave laws in connection with the coronavirus (COVID-19) outbreak.
Seattle Extends Paid Sick and Safe Time Leave
Effective March 18, 2020, amendments to Seattle’s Paid Sick and Safe Time (“PSST”) law allow employees to use their PSST when their family member’s school or place of care has been closed. Also, the amendments require an employer with 250 or more full-time equivalent employees to allow their employees to take PSST when their place of business has been closed for any health or safety reason.
Effective between April 8 and June 7, 2020, Seattle’s Office of Labor Standards (“OLS”) has issued a temporary, emergency rule that clarifies that employers may not require a doctor’s note or healthcare provider verification because it is an unreasonable burden during the COVID-19 pandemic outbreak. Employers must identify and provide alternatives for the employee to meet the employer’s verification requirement in a manner that does not result in an unreasonable burden or expense on the employee. Alternative examples include a worker’s oral or written statement that their use of paid sick leave is for a covered purpose or documentation from other individuals, such as service providers, stating that, to their knowledge, the employee’s use of paid sick leave is for a covered purpose.
Seattle’s OLS has also updated its COVID-19 Question and Answer resource.