JUNE 2020 LEGAL UPDATE
FUTURE COMPLIANCE DATES
JULY 31, 2020 (if on a calendar plan year): Form 5500 Due
Group plans with 100 or more participants must file Form 5500 annually, by the last day of the 7th month following the end of the plan year. Outside of a few exceptions, all group health plans subject to ERISA are required to file a form 5500 when they have 100+ participants. Most 401(k) plans, regardless of size, are required to file form 5500. For a list of exceptions and additional information, click here to visit the IRS 5500 Center. If an extension is obtained, forms are due by October 15, 2020.
JULY 31, 2020: PCORI Fee Due
July 31, 2020 is the deadline for payment of the Patient Centered Outcomes Research Institute (“PCORI”) fee. The amount of the PCORI fee is equal to the average number of lives covered during the policy year or plan year multiplied by the applicable dollar amount for the year. The fee is $2.45 per covered person for plan years ending between January 1, 2019 and September 30, 2019. The fee is $2.54 per covered person for plan years ending on or after October 1, 2019 and before January 1, 2020. Click here to access the form: IRS FORM 720.
Note that PCORI fees for plans with effective dates starting on or after October 1, 2019 had been scheduled to expire. However, it has been announced that PCORI fees will now apply for the 2020-2029 fiscal years. See article below.
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
PAYCHECK PROTECTION FLEXIBILITY ACT SIGNED
The newly signed Paycheck Protection Program Flexibility Act of 2020 (“PPPFA”) makes significant changes to the Paycheck Protection Program (“PPP”). Applications for a PPP loan can be made through June 30, 2020. The Borrower Application can be accessed here: PPP application.
The chart illustrates major changes to the PPP by the PPPFA
It is expected the SBA and the Treasury Department will issue further guidance documents on the PPPFA. Updated information will be included in future Legal Updates.
For a copy of the PPPFA, click here: PPPFA text.
PPP GUIDANCE IF A REHIRE OFFER IS REJECTED
One of the key elements in obtaining forgiveness to a PPP Loan is to maintain employee headcount at pre-pandemic levels. If they have laid employees off, they would need to rehire or replace those workers. However, a new interim final rule from the Small Business Administration (“SBA”) issued on May 28 addresses the question of what happens if a laid-off employee rejects an offer to be rehired. The rule provides that employers will not get penalized if they offer to rehire their workforce and the employees refuse, as long as the employer has documentation of the offer and rejection.
To avoid having their loan forgiveness reduced in the event of a rehire offer rejection, employers must meet five conditions:
- Present an offer letter in writing or via email to the laid-off worker.
- Offer the same salary, wages and number of hours the employee had prior to the layoff.
- Receive a rejection of the offer.
- Document the rejection, even if received by phone or text.
- Notify the state unemployment office within 30 days of the date the offer is refused.
SUPREME COURT RULES SEXUAL ORIENTATION & GENDER IDENTITY PROTECTED CLASSES UNDER TITLE VII
In a landmark ruling in the case Bostock v. Clayton County, Georgia, the U.S. Supreme Court found that Title VII’s civil rights protections extend unequivocally to sexual orientation and gender identity as protected classes. In the case, the Supreme Court established “sex” and an employee’s sexuality or gender identity are linked and therefore protected from discrimination under Title VII.
IRS INCREASES PCORI FEE to $2.54 AND REINSTATES THROUGH 2029
The IRS has increased the patient-centered outcomes research institute (“PCORI”) fee for the health plan or policy years ending on or after October 1, 2019 but before October 1, 2020 from $2.45 to $2.54. That rate must be multiplied by the average number of covered lives under the plan or policy.
This fee previously applied to insured and self-insured group health plans for each plan or policy year ending after Sept. 30, 2012, and before Oct. 1, 2019, The Further Consolidated Appropriations Act of 2020 extends the PCORI fee through September 30, 2029.
Due to the extension, the IRS has stated that penalties related to late filing of Form 720 or late payment of the PCORI fee may be waived or abated if the plan sponsor has reasonable cause and the failure was not due to willful neglect.
For plan or policy years ending on or after October 1, 2019 but before October 1, 2020, insurers may use any reasonable method for calculating the average number of covered lives — as long as that method is applied consistently for all policies for that year.
Plan sponsors of applicable self-insured health plans for plan years ending on or after October 1, 2019 but before October 1, 2020 may continue to use one of the three methods specified in the regulations to calculate the average number of covered lives: the actual count method, the snapshot method, or the Form 5500 method.
For additional details, see IRS Notice 2020-44.
OSHA PUBLISHES NEW FAQ’S ON WORKPLACE FACE COVERINGS
On June 10, 2020, OSHA published answers to frequently asked questions about cloth face coverings. OSHA notes that the guidance contained in the publication is not a standard or a regulation and does not create new legal obligations for employers under the OSH Act. Some state and local public orders do mandate the use of face coverings when at work and further that employers must provide them.
The guidance can be found here: OSHA FAQs.
IRS PROVIDES RELIEF FOR RETIREMENT PLAN ELECTIONS
In recently released IRS Notice 2020-42, the IRS has provided temporary relief from the personal presence requirement for qualified retirement plan elections, distributions, and plan loans.
For the period from January 1, 2020, through December 31, 2020, the notice eliminates the physical presence requirement for any participant election if witnessed by a notary public of a state that permits remote electronic notarization, or by a plan representative. A participant election includes any consent, election, request, agreement, or communication made by or from a participant, beneficiary, alternate payee, or beneficiary.
For an election required to be witnessed by a retirement plan representative, the following requirements must be satisfied:
- The individual signing the election must present a valid photo ID to the plan representative during a live audio-video conference.
- The live audio-video conference must allow for direct interaction between the signing individual and the plan representative.
- The signing individual must transmit by fax or email a legible copy of the signed document directly to the plan representative on the same date it was signed.
- After receiving the signed document, the plan representative must acknowledge that he or she has witnessed the signature under the requirements of this notice and transmit the signed document, including the acknowledgment, back to the individual.
ELECTRONIC DELIVERY OF 401(k) DISCLOSURE’S NOW ALLOWED
Effective July 27, 2020, a new Final Rule issued by the DOL allows employers to deliver retirement plan information by e-mail or text message. The DOL has indicated it will not take enforcement action against a plan administrator that utilizes electronic delivery prior to that date, so it is effectively available immediately.
Plan administrators may utilize the electronic delivery for any covered individual including a participant, beneficiary or other applicable individual who has an employer-issued email address or who provides a personal email address or cell phone number for purposes of receiving covered documents.
Before a plan administrator may use an electronic delivery method, the administrator must provide covered individuals with a paper notice informing them that the way they currently receive retirement plan disclosures is changing and that electronic delivery will be used going forward. Those who prefer hard copy disclosures may opt out of electronic delivery and elect to receive paper disclosures instead.
Once notification is made, plan administrators may send required disclosures directly to the e‑mail addresses of plan participants with the documents in the body of the e-mail or as an attachment. The email must be easily understood by the average plan participant and must include a subject line that reads “Disclosure about Your Retirement Plan.” If the document is an attachment, the name should convey the nature of the covered document. Plan administrators must ensure that the electronic delivery system alerts them if a participant’s electronic address is invalid.
Alternately, plan sponsors may post required documents on a designated website and send a Notice of Internet Availability (“NOIA”) with the web address of or hyperlink to the document. The NOIA must include a title or subject that reads “Disclosure about Your Retirement Plan” and a statement that reads “Important information about your retirement plan is now available. Please review this information.” The referenced documents must remain on the website until replaced by a subsequent version but never for less than one year.
Emails regarding electronic delivery or NOIAs must include a statement of the right to receive a paper version free of charge; a statement of the right to opt out of electronic communications and how to do so; and the administrator’s or a designated representative’s phone number.
Generally, plan administrators must notify covered individuals each time a new covered document is available. However, the Final Rule allows plan administrators to furnish a consolidated notice for four categories of documents and information: (1) a summary plan description; (2) any document or information that must be furnished annually, rather than upon the occurrence of a particular event and does not require action by a participant by a particular deadline; (3) any other document or notice not in the first and second categories, if authorized by the DOL; and (4) any notice required by the Internal Revenue Code, if authorized by the Treasury Department. A consolidated notice must be furnished at least once each plan year and no later than 14 months after the most recent notice was furnished. A consolidated notice may not include information about more than one plan, even if sponsored by the same employer.
The E-Disclosure Final Rule applies to any document that plan administrators are required to furnish to covered individuals under Title I of ERISA, such as summary plan descriptions, summaries of material modifications, pension benefit statements, summary annual reports, fee disclosures, annual funding notices, safe harbor notices, ERISA 404(c) disclosures, QDIA notices and blackout notices. However, the Final Rule does not apply to documents that are required to be furnished only on request such as the retirement plan document, the trust agreement or the plan’s latest Form 5500 annual report or that are within the jurisdiction of the IRS such as 401(k) plan safe harbor notices, ERISA 204(h) notices, special tax notices relating to plan distributions and notices to interested parties required in connection with IRS determination letter filings. It also does not apply to welfare plan disclosures such as COBRA notices and notices of adverse benefit determinations for group health and disability plans.
DOL APPROVES PRIVATE EQUITY IN DIVERSIFIED 401(K) FUNDS
On June 3, the DOL issued Information Letter 2020-06-03, guidance regarding the addition of private equity as a component of diversified asset allocation funds available as an investment for 401(k) and similar defined contribution plans.
Diversified funds include target-date, target-risk and balanced funds that are often used as default investments when new employees are automatically enrolled into a 401(k) or similar plan. Private equity refers to investments in companies that are not publicly traded.
The DOL identified these important issues for fiduciaries to consider:
- The long-term impact of the private equity allocation on the plan investment option in terms of diversification and expected return net of fees, including management and performance fees.
- Whether the fiduciaries overseeing the asset allocation fund have the requisite skills to evaluate and monitor private equity investments, or if they should use an investment consultant or delegate investment selection authority to an investment manager.
- Whether the investment option will include features regarding liquidity and valuation that allow participants to take benefit distributions and exchange into other plan investment options.
- Whether the long terms of private equity investments and any potential liquidity restrictions align with the plan participant population, such as participants’ ages and rates of employee turnover.
- The adequacy of disclosures to be provided to participants regarding the character and risks of the plan investment option that includes private equity, to allow participants to make an informed assessment as to whether to invest in this option.
For additional information, read Information Letter 2020-06-03.
SUPREME COURT BLOCKS END OF DACA
The U.S. Supreme Court has ruled that the Deferred Action for Childhood Arrivals (“DACA”) program should not have been overturned and said the Trump administration’s actions to rescind the program violated the Administrative Procedure Act. This Supreme Court decision to uphold the DACA program leaves open the possibility that the administration could issue a new decision rescinding DACA.
IRS POSTPONES ADDITIONAL DEADLINES
The Internal Revenue Service recently released Notice 2020-35, which postpones additional deadlines for certain time-sensitive tax-related matters. The relief offered by Notice 2020-35 is in addition to the relief provided by Notice 2020-18, Notice 2020-20, and Notice 2020-23.
Notice 2020-35 postpones deadlines for certain employment taxes, employee benefit plans, exempt organizations, individual retirement arrangements, Coverdell education savings accounts, health savings accounts, and Archer and Medicare Advantage medical saving accounts from on or after March 30, 2020 to July 15, 2020 unless a different revised deadline is specified.
For additional details, see the text of the notice here: Notice 2020-35.
USCIS RESUMES PREMIUM PROCESSING IN PHASES
The U.S. Citizenship and Immigrations Services (“USCIS”) agency recently announced it has resumed a phased processing schedule of visa applications.
Effective June 1, 2020, USCIS began accepting requests for premium processing for all eligible Form I-140 Immigrant Visa Petitions. EB1-C Multi-National Manager or Executive and EB2 National Interest Waiver petitions are not eligible for premium processing.
Effective June 8, 2020, USCIS began accepting upgrades to premium processing for all I-129 petitions filed before June 8, 2020 except for H-1B petitions.
Effective June 15, 2020, USCIS began accepting concurrent premium processing filings and upgrades to premium processing for cap-exempt H-1B petitions filed on or after June 8, 2020.
Effective June 22, 2020. USCIS resumed premium processing for all other Form I-129 petitions (upgrades and concurrent filings) including all cap-subject petitions.
REMOTE FORM I-9 DOCUMENT REVIEW APPROVAL EXTENDED
On June 16, 2020, U.S. Immigration and Customs Enforcement (“ICE”) 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 July 19, 2020.
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 section’s “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.
Employers who make use of the exception must provide written documentation of their remote on-boarding and telework policy for each employee.
CMS NARROWS NON-DISCRIMINATION REQUIREMENTS
The Centers for Medicare and Medicaid Services (“CMS”) of the U.S. Department of Health and Human Services has finalized rules that narrow and eliminate various nondiscrimination requirements under Section 1557 of the Affordable Care Act.
Section 1557 prohibits certain health care providers, health benefit plans, and health insurers from discriminating against individuals on account of race, color, national origin, sex, age, and disability. Under the new CMS rules, the Section 1557 regulations will no longer:
- define sex discrimination to include gender identity and sex stereotyping;
- require certain health plans and insurers to cover gender reassignment surgery;
- maintain specific grievance procedures to address complaints of discrimination under section 1557; or
- require the distribution of nondiscrimination notices and foreign language taglines.
UPDATES REGARDING PPP, FFCRA AND CARES ACT
In previous Legal Updates, we provided an overview of the provisions of the Payroll Protection Program (“PPP”), Families First Coronavirus Response Act (“FFCRA”) and the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act. Since then, various federal agencies have released documents that provide additional information and clarifications. Check these documents frequently, as they continue to be updated regularly.
- U.S Dept of Treasury PPP Guidance
- FFCRA Q&A from DOL
- FFCRA FAQ from IRS
- CARES Act FAQ from IRS
- EEOC Guidance and EEOC Resources
STATE COMPLIANCE UPDATES
Enhanced COVID-19 Mitigation Measures Implemented for all Businesses
Effective June 18, 2020, Executive Order 2020-40 mandates new COVID-19 mitigation requirements for all Arizona businesses that were previously characterized as recommendations.
The new order lists specific health measures that must be taken by all Arizona businesses, including:
- ensuring physical distancing;
- providing employees with face coverings and requiring usage;
- conducting symptom checks for all employees before shifts;
- requiring sick employees to stay home; and
- increasing the frequency of employee hygiene, cleaning, and disinfecting.
For more detailed information click here: AZ Covid-19 Resources.
California Launches Sexual-Harassment-Prevention Training Program
California’s Department of Fair Employment and Housing (“DFEH”) has launched a free online sexual-harassment-prevention program that meets the training requirements for non-supervisory employees in the state. The DFEH also plans to release a similar online training program for supervisors.
California employers with five or more employees are required to provide one hour of training to non-supervisors and two hours of training to supervisors every two years. The training deadline for most employers is January 1, 2021, postponed from the original January 1, 2020 deadline. By 2021, new employees must be trained within six months of their hire date, and newly promoted supervisors must be trained within six months of their promotion. Employers who conducted compliant training in 2019 are not required to provide re-training until two years after the previous training.
The training can be conducted live or online, and must be conducted by an attorney or other qualified trainer who is knowledgeable about harassment, discrimination and retaliation prevention. Employers must keep training documentation for at least two years, and the documentation must include the names of the attendees who were trained, the training date, a sign-in sheet, a copy of all attendance or completion certificates issued, a description of the type of training provided, a copy of any written or recorded training materials, and the trainer’s name.
Information and links to non-supervisory training presentations can be found here: Harassment Prevention Training.
Long Beach Enacts COVID-19 Supplemental Paid Sick Leave
Effective May 19, 2020 a new law requires employers in Long Beach with 500 or more employees nationally to provide supplemental paid sick leave for COVID-19 purposes. Applicable employers must provide 80 leave hours to full-time employees. Part-time employees are entitled to leave equal to the number of hours an employee works, on average, over a two-week period.
Supplemental paid sick leave is in addition to pre-existing paid leave benefits. The law provides that employees cannot be required to exhaust sick leave or other leave they accrued before using supplemental paid sick leave hours. The new law also prohibits employers from changing any paid time off policies on or after May 19, except to provide additional paid leave.
The ordinance covers any individual the employer employs who performs any work in Long Beach. However, employers may exclude healthcare providers and emergency responders.
Employees are entitled to use the supplemental paid sick leave for any of the following purposes, unless they can work from home and are healthy enough to do so:
- Employee is 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;
- Employee is advised by a health-care provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a health-care provider;
- Employee experiences symptoms of COVID-19 and is seeking medical diagnosis;
- Employee is caring for a minor child because the child’s school, daycare, or childcare provider is closed or unavailable because of COVID-19 and the employee is unable to arrange for a reasonable alternative caregiver.
Employers who are required to provide paid sick leave benefits under the Families First Coronavirus Response Act are exempted from the new law. Employers with a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually are also exempt from the requirements.
An employer can reduce the amount of leave it must provide by the number of paid leave hours – excluding previously accrued hours – it provided an employee on or after March 4, 2020, that employees could use for reasons the law requires or in response to an employee’s inability to work due to COVID-19.
Employers can require employees to follow reasonable notice procedures to use leave, but only for foreseeable absences. While employers can require employees to identify the basis for requesting leave, they cannot require a doctor’s note or other documentation to substantiate an absence.
Employers must pay leave at an employee’s regular rate of pay, but may pay leave at two-thirds an employee’s regular rate if an employee uses leave to care for someone else. The maximum value of “personal use” leave is $511 per day ($5,100 overall), and $200 per day ($2,000 overall) for “caregiver” leave. If employment ends and an employee has unused leave, employers are not required to cash out such leave.
Employers cannot require employees to find a replacement as a condition of approving leave. Employers cannot retaliate or discriminate against any employee for requesting or using such leave or for otherwise asserting rights under the law.
California OSHA Recording and Reporting Requirements for COVID-19 Cases
Recent guidance from California’s Department of Industrial Relations’ Division of Occupational Safety and Health (“Cal OSHA”) confirms that the California requirements for recording and reporting of occupational injuries and illnesses related to COVID-19 are more stringent than federal Occupational Safety and Health Administration (“OSHA”).
California employers may need to record and potentially report a COVID-19 case if it causes a “significant injury or illness” as diagnosed by a licensed medical or healthcare professional. In addition, any work-related COVID-19 case that results in a fatality or hospitalization needs to be reported, regardless of how long has passed from the possible exposure event due to differences in Cal OSHA’s requirements for reporting. Other significant differences between Cal OSHA’s guidance and OSHA’s guidance around recording and reporting of COVID-19 cases include the following:
- Cal OSHA guidance states that that there may be circumstances where an employer must record or report a COVID-19 case without a test result confirming the diagnosis, such as a suspected COVID-19 case which has yet to be diagnosed as COVID-19.
- Employers must report a case when an employee becomes sick at work if it constitutes a “serious injury or illness” without regard for whether it is work-related.
- Work-related determination for recording and reporting obligations under Cal OSHA regulations remains separate from the determination for workers compensation eligibility.
Cal OSHA guidance and answers to frequently-asked questions can be found here: Guidance and FAQs.
Exempt Salary Threshold Increasing
Effective July 1, 2020, the Colorado Overtime and Minimum Pay Standards Order (“COMPS”) increases the minimum salary threshold for exempt employees to $35,568, which matches the federal exempt salary threshold. Non-profit employers with gross revenue under $50 million and for-profit employers with gross revenue under $1 million are exempt from the 2020 salary threshold increase.
The limit will increase again January 1, 2021 to $40,500, and it will continue to increase through 2024, up to $55,000. Thereafter, the threshold will adjust annually for inflation.
Home Health Care Workers Exempted from Overtime
In the recent court case Jordan v. Maxim Healthcare Servs., the 10th U.S. Circuit Court of Appeals ruled that home health care workers are exempt from Colorado’s state overtime laws. The decision reversed a judgment of $2.7 million granted to a class of Colorado home health care workers in a dispute over overtime pay.
Under the Fair Labor Standards Act (“FLSA”), certain categories of non-exempt employees are specifically exempt from the FLSA’s overtime rule, including domestic-service employees who “provide companionship services for individuals who … are unable to care for themselves.” Similarly, Colorado’s overtime laws exempt “companions, casual babysitters, and domestic employees employed by households or family members to perform duties in private residences.”
School Visitation Rights Act Amended
Effective August 1, 2020, Illinois school conference and activity leave requirements are amended to allow the required leave to be used for school conferences, behavioral meetings or academic meetings. Employers cannot terminate an employee’s employment based solely on an absence for one of these reasons.
The law applies to employers of 50 or more employees in Illinois, and mandates covered employers to provide up to eight hours of leave per year (if the employee has exhausted any vacation, personal, or other available leave) to attend school conferences or classroom activities related to the employee’s child if the conference or activity cannot be scheduled during non-work hours.
Chicago City Enacts COVID-19 Anti-Retaliation Ordinance
Chicago’s City Council has enacted an ordinance to protect employees who work within the city limits from retaliation for obeying public health orders or orders of a healthcare provider to stay at home because of the COVID-19 pandemic.
The ordinance prohibits employers from taking any adverse action against an employee who follows a healthcare provider’s order to remain at home while experiencing COVID-19 symptoms or under a quarantine or isolation order issued to the employee. It also provides retaliation protection for employees caring for an individual experiencing COVID-19 symptom or subject to a quarantine or isolation order.
Maine Repeals Sub minimum Wage for Workers with Disabilities
Effective June 16, 2020, Maine’s sub-minimum wage for workers with disabilities is repealed. An employer may not pay less than the minimum wage to a person because they have a mental or physical disability.
Call Center Jobs Act Takes Effect
Effective June 30, 2020, the New York Call Center Jobs Act requires covered call center employers to comply with advance-notice requirements in the event of a relocation out of New York State or of a significant reduction of call volume with the intent to relocate out of state.
In addition, the law requires the Labor Commissioner to keep a list of call center employers that have relocated out of state. Such relocation’s affect the call center employers’ access to state grants, tax benefits and procurement contracts.
Suffolk County Bans the Box
Effective August 25, 2020, the Fair Employment Screening Amendment prohibits the County or any other employer with at least 15 employees from asking job applicants about their prior criminal convictions until after the first interview.
Discrimination Protections Expanded to Interns
Effective July 1, 2020, an amendment to the South Dakota Human Rights Act extends discrimination protections to interns.
Use of Cell Phones While Driving Prohibited
Effective July 1, 2020, HB 1169 prohibits the use of a mobile electronic device while operating a motor vehicle.
Small Business Impact Grant Program Launched
Salt Lake County recently announced the Small Business Impact Grant (“SBIG”), a COVID-19 relief program for small businesses in Salt Lake County, has been funded with $40 million. Starting June 16, 2020, eligible businesses may submit an application for a grant of up to $35,000.
To be eligible, businesses must:
- Be based in Salt Lake County
- Employ fewer than 100 employees
- Not have already received federal, state or local COVID-19 financial aid
- Provide documents verifying your financial loss
- Have operated prior to Jan. 1, 2020
- Be primary industries impacted directly by public health order closures
Grant application, information and answers to frequently asked questions can be found here: SBIG.
Data Breach Notification Law Updated
Effective July 1, 2020, Bill S.110 amends the state’s data breach notification law by expanding its definition of personal information and creating new duties and restrictions with respect to student privacy directed towards educational technology services.
Prior to this amendment, the definition of personally identifiable information (“PII”) was limited to a consumer’s first name or first initial and last name in combination with a Social Security number; driver license or identification card number; financial account number or credit or debit card number; or account passwords, personal identification numbers, or other access codes for a financial account.
The amended law adds the following when combined with a consumer’s first name or first initial and last name:
- Individual taxpayer identification number, passport number, military identification card number, or other identification number that originates from a government identification document that is commonly used to verify identity for a commercial transaction;
- Unique biometric data generated from measurements or technical analysis of human body characteristics used by the owner or licensee of the data to identify or authenticate the consumer, such as a fingerprint, retina or iris image, or other unique physical representation or digital representation of biometric data;
- Genetic information; and
- Health records or records of a wellness program or similar program of health promotion or disease prevention; a health care professional’s medical diagnosis or treatment of the consumer; or a health insurance policy number.
Proclamation Extends High-Risk Employee Job Protection Period
Job protections for “high-risk” Washington employees have been extended through August 1, 2020. High-risk employees are defined as any individual 65 years or older, anyone living in a nursing home or long-term care facility, and those with certain chronic underlying health conditions as defined by the Centers for Disease Control and Protection.
The Proclamation provides the following protections for employees who meet the high-risk definition:
- When a high-risk employee requests an alternative work assignment to reduce the risk of exposure to COVID-19 on the job, employers must utilize all available options, including telework, alternative or remote work locations, reassignment, and social distancing measures. If an alternative work arrangement is not feasible, the employer must allow the employee to use all accrued leave options. It is the employee’s decision to use accrued leave or unemployment insurance in any sequence.
- If the employee’s paid time off is exhausted during the period of leave, the employer must fully maintain all employer-related health insurance benefits until the employee is deemed eligible to return to work.
- Employers may not retaliate against or take adverse employment action in a way that would result in the permanent replacement of employees who exercise their rights under the Proclamation.
- Employers and unions cannot enforce any provisions in an employment contract that contradict or interfere with the Proclamation.
- The Proclamation does not prohibit hiring a temporary employee, as long as it does not negatively affect the “permanent” employee’s right to return to their existing position without any negative ramifications.
- Employers may require employees who do not report to work to give the employer up to five days’ notice of the intention to report or return to work.
- Employers may take employment action when “no work reasonably exists,” such as a reduction in force. However, where no work exists, employers may not take action that may adversely affect the employee’s eligibility for unemployment benefits.
Discrimination Based on Citizenship and Immigration Status Prohibited
Effective June 11, 2020, Washington Law against Discrimination now prohibits discrimination based on citizenship and immigration status.
Pregnancy Accommodation Certification Requirement Amended
Washington employers with 15 or more employees must provide reasonable accommodations for pregnancy and related conditions, including lactation. Effective June 11, 2020, an employer may not require certification for a lactation accommodation.
Time to File Pregnancy Discrimination Administrative Complaints Extended
Effective June 11, 2020, the time to file an administrative complaint with the Washington Human Rights Commission regarding pregnancy discrimination is extended from six months to one year.