JUNE 2021 LEGAL UPDATE
FUTURE COMPLIANCE DATES
JULY 19, 2021: EEO-1 Reporting Due
Covered employers must submit 2019 and 2020 EEO-1 data no later than July 19, 2021 through the EEO-1 portal.
AUGUST 2, 2021 (if on a calendar year plan) – Form 5500 Due
Group plans with 100 or more participants at the beginning of the plan year 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. In addition, 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, 2021.
AUGUST 2, 2021 – Form 941 Due
August 2, 2021 is the deadline to file Form 941, employer’s quarterly tax return, for the second quarter of 2021. Please note that Form 941 is being revised to account for the COBRA Subsidies granted under the American Rescue Plan Act; the new Form is expected to be released by the IRS in late June.
AUGUST 2, 2021 – PCORI Fee Due
August 2, 2021 is the deadline to pay the Patient-Centered Outcomes Research Institute (“PCORI”) fee for the preceding calendar year. Sponsors of self-insured health plans are responsible to report on and pay PCORI fees, while insurers report on and pay PCORI fees for fully insured group medical plans.
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 $2.66 per covered person for plan years ending between October 1, 2020 and before October 1, 2021. For plan years that ended before October 1, 2020, the fee is $2.54 per person.
NOTE: In our May 2021 Legal Update, it was incorrectly stated that plans with effective dates starting on or after October 2, 2019, will not be subject to paying the PCORI fees. That was outdated information. The PCORI fee is expected to be in effect for policy and plan years with end dates through October 1, 2029.
FEDERAL COMPLIANCE UPDATES
EEOC POSTS UPDATED GUIDANCE REGARDING COVID-19 VACCINES
On May 28, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) added to its technical assistance resources related to the COVID-19 pandemic to address issues including vaccine incentives, documentation of employee vaccination status, and accommodations for employees who have medical or religious reasons to refuse vaccinations.
The updated guidance includes the following clarifications:
- Employers may offer incentives to employees to voluntarily provide documentation or confirmation of vaccination.
- Information about vaccination status is confidential medical information, so it must be stored separately from employee personnel files.
- Employers may require all employees physically entering the workplace to be vaccinated for COVID-19, as long as they comply with the reasonable accommodation provisions of the ADA, Title VII, and other equal employment opportunity laws.
- Title VII and the ADA require employers to provide reasonable accommodations for employees who, because of a disability or a sincerely-held religious belief, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. The guidance also includes examples of accommodations that employers could offer.
For additional details, see Section K of the updated technical assistance.
OSHA RELEASES UPDATED GENERAL INDUSTRY GUIDANCE AS WELL AS EMERGENCY TEMPORARY STANDARD FOR HEALTHCARE WORKPLACES
On June 10, 2021, the Occupational Health and Safety Administration (“OSHA”) issued an updated version of its COVID-19 guidance for employers in non-healthcare workplaces. The updated guidance is specifically focused on encouraging COVID-19 vaccination, protecting unvaccinated and otherwise at-risk workers, and aligning OSHA’s existing guidance to the most up-to-date CDC recommendations regarding fully vaccinated people.
The general guidance is advisory only and not mandatory. With that said, OSHA retains the power to cite employers under its “general duty clause” for failure to take steps necessary to protect employees from workplace spread of COVID-19.
The key recommendations include:
- Grant paid time off for employees to receive COVID-19 vaccinations.
- Instruct workers who are infected, unvaccinated workers who have been exposed, and all workers with COVID-19 symptoms to stay home from work.
- Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas.
- Provide unvaccinated and otherwise at-risk workers with face coverings, unless their work task requires a respirator or other PPE.
- Train workers on COVID-19 policies and procedures.
- Suggest that unvaccinated customers, visitors, or guests wear face coverings.
- Maintain ventilation systems and perform routine cleaning and disinfection.
- Record and report COVID-19 infections and deaths in accordance with OSHA standards.
- Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19 related hazards.
- Follow other applicable mandatory OSHA standards.
For additional details, see the Guidance The guidance also includes an appendix regarding appropriate measures for high-risk workplaces such as manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing with mixed-vaccination status workers.
In addition to the general guidance, OSHA also released a mandatory Emergency Temporary Standard (“ETS”) that applies to healthcare and healthcare support service employers. Under the ETS, employers of health care and health care support service workers in settings where people with COVID-19 are reasonably expected to be present are required to:
- Develop a COVID-19 plan (in a written format if covering more than 10 employees) which incorporates policies and protocols to minimize the risk of transmission of COVID-19 to employees;
- Establish patient screening and management, which requires employers to limit the points of entry to settings where direct care is provided and to screen patients and other non-employees for COVID-19 symptoms;
- Develop procedures to adhere to OSHA standards and CDC guidelines to protect against disease transmission;
- Require employees to wear facemasks when indoors and sharing a vehicle for work purposes, as well to use respirators when exposed to people with suspected and confirmed COVID-19;
- Establish protocols for aerosol-generating procedures which limit the employees present for such procedure;
- Enforce six-foot physical distancing when indoors, or erect physical barriers in areas where employees are not separated by six feet;
- Establish cleaning and disinfection protocols in accordance with CDC guidelines;
- Ensure proper use and maintenance of ventilation systems and isolation rooms;
- Establish health screening and medical management protocols, which include screening employees, providing employer-required testing at no cost to employees, requiring employees to report COVID-19 symptoms, notifying certain employees of workplace exposures, and following quarantining and return-to-work procedures in accordance with the CDC;
- Provide reasonable time and paid leave for vaccinations and recovery from vaccine side effects;
- Train employees on disease transmission and infection-spread protocols; and
- Establish anti-retaliation protections that include informing employees of their rights to the protections required by this standard, and not discharging or in any manner discriminating against employees for exercising these rights or for engaging in actions required by the standard.
For additional details, covered employers should refer to the Emergency Temporary Standard.
EEOC RELEASES NEW RESOURCES ABOUT SEXUAL ORIENTATION AND GENDER IDENTITY RIGHTS
The U.S. Equal Employment Opportunity Commission (“EEOC”) has released new resources to educate employees, applicants, and employers about the rights of all employees to be free from sexual orientation and gender identity discrimination in employment.
The materials include a new landing page on the EEOC website that consolidates information concerning sexual orientation and gender identity discrimination. The new resource also includes a technical assistance document titled “Protections Against Employment Discrimination Based on Sexual Orientation and Gender Identity” as well as links to EEOC statistics and updated fact sheets regarding sexual orientation and gender identity discrimination.
IRS ISSUES NEW DEPENDENT CARE FSA GUIDANCE
The IRS has issued Notice 2021-26 that addresses and clarifies new temporary employee benefits rules that allow employees to carry over unused amounts contributed to a dependent care flexible spending account from one year to another.
JUNETEENTH IS NOW RECOGNIZED AS A FEDERAL HOLIDAY
Signed into law on June 17, 2021, the Juneteenth National Independence Day Act makes June 19 a federally recognized holiday to commemorate the end of slavery in the United States. When June 19 falls on a weekend as in 2021, the federal holiday will be observed on the closest weekday.
Many companies and nearly all states have already been commemorating Juneteenth as a holiday. With its establishment as a federal holiday, non-essential federal government offices will be closed, and every federal government employee will be paid for the holiday.
401(k) DISCLOSURE CAN NOW BE DELIVERED ELECTRONICALLY
Effective July 27, 2021, the Default Electronic Disclosures by Employee Pension Benefit Plans Under ERISA Final Rule issued by the U.S. Department of Labor (“DOL”) expands employers’ ability to voluntarily deliver retirement plan information electronically.
Before plan administrators may use electronic delivery, they must first provide covered individuals with an initial hard copy notice informing them that the way they currently receive retirement plan disclosures is changing and that electronic delivery will be used going forward. The notice must inform covered individuals of the electronic address that will be used, describe how to access documents, and caution that documents may only be available for a limited period of time. The notice must also inform covered individuals of their right to opt-out of electronic delivery entirely, and to instead request a paper copy of any document free of charge.
The email must be written in a manner calculated to be 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, an identification of the covered document by name or a brief description of the covered document if identification by name would not reasonably convey the nature of the covered document.
- A statement of the right to request and receive a paper version of the covered document free of charge, and an explanation of how to exercise this right.
- A statement of the right to opt-out of electronic delivery and receive only paper versions of covered documents, and an explanation of how to exercise this right.
- A telephone number to contact the plan administrator or other designated plan representative.
The electronic delivery option 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, it does not apply to documents that are required to be furnished only on requests 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.
The rule allows two methods for delivering retirement plan disclosures electronically, via website posting or email. If administrators post participant disclosures on a website, they must send an appropriate notification of Internet availability (“NOIA”) to the electronic addresses of plan participants, either by email or text message. These documents must remain on a website until superseded by a subsequent version, but never for less than one year.
The NOIA must include the web address of or a hyperlink to the document; a statement of the right to receive a paper version free of charge; and a statement of the right to opt out of electronic communications and how to do so, along with the administrator’s or a designated representative’s phone number.
Administrators may instead send required disclosures directly to the email addresses of plan participants, with the documents in the body of the email or as an attachment. Plan administrators must ensure that the electronic delivery system alerts them if a participant’s electronic address is invalid or inoperable. In that case, the administrator must promptly fix the problem or regard the participant as having opted out of electronic delivery.
Documents delivered electronically must be in:
- a format that can be understood by the average plan participant;
- a format that can be searched electronically by numbers, letters or words; and
- a widely available format suitable to be both read online and printed.
In addition to the final rule, the DOL also posted a fact sheet outlining how the final rule applies to participant disclosures required by ERISA for 401(k) and similar defined contribution retirement plans, and for defined benefit pension plans.
REMOTE FORM I-9 DOCUMENT REVIEW EXTENDED THROUGH AUGUST 31
U.S. Immigration and Customs Enforcement (“ICE”) has once again extended the approval for remote review of an employee’s identity and employment authorization documents for Form I-9 when that employee will be working remotely. These provisions have been extended until at least August 31, 2021.
Once normal operations resume, employers must inspect documents in person and note “COVID-19” as the reason for the delay in the “additional information” field, as well as “documents physically examined” with the date of inspection to that field or Section 3 as appropriate. Alternatively, the form also allows an employer to appoint a representative to review new hires’ documents. Examples of such a representative include a law firm, a vendor, a notary, or a local employee. Please note that some states or local jurisdictions may have specific restrictions for who is authorized to review the employee documentation.
STATE COMPLIANCE UPDATES
Medical Marijuana Legalized
Effective May 17, 2021, the law known as the Darren Wesley “Ato” Hall Compassion Act legalizes medical cannabis in Alabama. However, medical cannabis will not become available for at least a year.
While the use of medical cannabis has been legalized, the new law does not require employers to modify any policies or any job or working conditions to accommodate the use of medical cannabis. Employers in Alabama are not prohibited from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual due to the use of medical cannabis, regardless of whether or not the individual is impaired while at work.
Employers may require employees to provide notification of their status as medical cannabis cardholders. They may also implement and enforce a drug testing policy as well as a drug-free workforce program established in connection with the state workers’ compensation premium discount law. The law does not impact the workers’ compensation premium discount available to employers who establish a drug-free workplace policy.
An employee who is discharged for using medical cannabis or for refusing to submit to a drug test shall be legally presumed to have been discharged for misconduct if the condition of the workers’ compensation premium discount law is met.
Restrictions for Workers with Criminal Histories Eased
Effective August 27, 2021, HB 2067 allows persons convicted of certain criminal offenses who have successfully fulfilled their probation or sentence conditions to apply for a Certificate of Second Chance to have the court set aside prior convictions. While the law does not provide true expungement, it will provide a notation on a background screen result that the conviction was set aside.
Employers are not legally precluded from rejecting a candidate with a Certificate of Second Chance but are encouraged to take the certificate under consideration when considering that candidate for employment.
Additionally, the law provides liability protections to employers who hire a person with a certificate. Employers generally will not be held liable for hiring an employee or independent contractor who has been issued a certificate for alleged negligent hiring for injuries or damages caused by the worker.
COVID-19 Paid Sick Leave Rules Clarified
The California Labor Commission has updated its previously issued FAQs regarding the COVID-19 Supplemental Paid Sick Leave law to provide further clarifications to employers. See the Revised FAQ Document.
California Adopts CDC Mask Guidelines
Effective June 15, 2021, under an announcement by California’s Secretary of Health and Human Services, California began following the U.S. Centers for Disease Control and Prevention (the “CDC”)’s new guidelines regarding the lifting of mask restrictions for fully vaccinated individuals on. These new guidelines provide that those who are fully vaccinated against the COVID-19 virus no longer need to wear masks outdoors or in most indoor settings.
Marin County Requires Supplemental Paid Sick Leave
Effective June 8, 2021 through September 30, 2021, a new urgency ordinance requires employers in Marin County’s unincorporated areas with 25 or fewer employees to provide supplemental paid sick leave (“SPSL”) for covered COVID-19-related reasons. The ordinance is intended to apply to employees not already covered by California’s statewide COVID-19 leave law.
Covered employees who have worked more than two hours in the County’s unincorporated boundaries can use SPSL if unable to work or telework due to their own personal COVID-19 illness, isolation, or vaccination as well as to care for an immediate family member, someone who regularly resides in the employee’s home, and someone with whom the employee has a relationship that creates an expectation that the employee would care for the person if quarantined or self-quarantined. SPSL can also be used when an employee’s senior care provider, school, or childcare provider closes or is unavailable in response to public health or other public official’s recommendation.
Covered full-time employees are entitled to receive up to 80 hours of SPSL. Part-time or variable hour employees are entitled to receive an amount of SPSL equal to their average number of hours worked in a two-week period, calculated over the prior six months. SPSL may be capped at $511 per day.
These SPSL hours are in addition to any paid sick leave that may be available to the employee under California’s Healthy Workplace Healthy Family Act and any other paid time off benefits provided to employees before March 16, 2020. However, if an employee has at least 80 hours of accrued paid sick leave benefits or at least 160 hours of a combination of paid sick leave, vacation, and paid time off benefits as of June 8, 2021, an employer’s obligation to provide SPSL is satisfied. If a covered employee has fewer than 80 or 160 hours of other accrued leave, the employer must provide SPSL to account for the difference. Additionally, employers can offset their SPSL obligation by the amount of COVID-19 paid sick leave hours already furnished to an employee. Employers cannot require employees to use other types of leave before using SPSL.
Employers of a healthcare provider or emergency responder can deny a leave request if they make a good-faith determination that granting leave would create a staffing shortfall such that operational needs dictate denial of some or all of the leave request.
Employers can require employees to follow notice procedures for foreseeable absences but cannot require employees to furnish a doctor’s note or other supporting documentation.
Employers must provide notice, in English and Spanish, to employees of their rights under the ordinance. The notice can be posted in the workplace or on an accessible intranet or sent via email. The ordinance also requires that employers must keep a record for at least three years of each employee’s name, hours worked, and pay rate.
Santa Clara County Employers Required to Track Employee Vaccinations
Effective June 1, 2021, the Order of The Health Officer Of the County of Santa Clara May 18, 2021 requires all businesses in Santa Clara County to obtain the vaccination status of all personnel who are currently or will be working at a facility or worksite in the County. The law allows either a review of an individual’s vaccine card or self-certification. For personnel who decline to provide their vaccination status or indicate they are not fully vaccinated, businesses must request their updated vaccination status every 14 days.
The law defines “personnel” as all employees, independent contractors, and volunteers who are currently or will be working at a facility or worksite in the county. Businesses are also encouraged but not required to obtain the vaccination status of personnel who work remotely.
Employers must maintain a record of the requests for vaccine status as well as the vaccination statuses provided, and all vaccine-related information and documentation must be maintained confidentially.
Any business that fails to request and record the vaccination status of its personnel is subject to enforcement and may be required to pay fines of up to $5,000 per violation per day.
The Order removed previous requirements to maximize telework and complete and submit a Revised Social Distancing protocol, while it maintains the requirement for employers to report COVID-19 cases.
To help businesses track the required information, the County has published a template Certification of Vaccination Status form.
Sonoma County Extends and Expands Emergency Paid Sick Leave
Sonoma County’s Emergency Paid Sick Leave (“EPSL”) Ordinance, which was set to expire July 1, 2021, will remain in effect through September 30, 2021 unless the county further extends the ordinance’s duration.
Under the EPSL Ordinance, employers are required to provide 80 hours of 2021 EPSL to full-time employees that can be applied between January 1 and September 30, 2021. Part-time or variable hour employees are entitled to a prorated amount of EPSL based on the average number of hours they work. The EPSL can be used if unable to work or telework because of COVID-related illness, to receive the COVID-19 vaccine, or to recover from illness after receiving the vaccine.
“Ban the Box” Enacted for All Employers
Effective September 1, 2021, the Colorado Chance to Compete Act (HB 1025) prohibits all employers from advertising or stating on an employment application that a person with a criminal history may not apply for a position. It also prohibits employers from inquiring into or requiring disclosure of, an applicant’s criminal history on an initial written or electronic application form.
This “ban the box” law was already in place for employers with 11 or more employees, but now applies to all employers.
State Supreme Court Rules “Use-it-or-Lose-it” Vacation Pay Policies Not Enforceable
In the court case Nieto v. Clark’s Market, the Colorado Supreme Court ruled that an employer must pay an employee’s earned but unused vacation pay upon separation from employment. The ruling invalidates any existing agreement or policy forfeiting this pay.
Federal Unemployment Benefit Subsidies Ending
Effective June 26, 2021, Florida will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
COVID-19 Vaccine Passports Prohibited for Public Employers
A new executive order prohibits public employers in Georgia from requiring their employees to get the COVID-19 vaccine as a condition of employment or treating unvaccinated employees differently as compared to vaccinated employees. Accordingly, public employers cannot implement workplace rules such as requiring masks only for unvaccinated employees unless those rules are enforced by employees self-reporting.
The new order also limits private employers from using data from the state’s immunization database, called the Georgia Registry of Immunization Transactions and Services, to verify vaccinations. However, private employers are allowed to ask for proof of immunization status directly from the employees.
Wage Theft Penalties to be Increased 150%
The Illinois General Assembly recently approved an amendment to the state’s Wage Payment and Collection Act that will require employers to pay damages of 5% of the amount of any underpayment of wages for each month during which there are unpaid wages due. This is a 150% increase from the previous 2% penalty. The law will take effect immediately upon signature by the governor.
The new law applies to all private employers in Illinois as well as local government entities but exempts state and federal employees.
Changes to the Victims’ Economic Security and Safety Act
The Victims’ Economic Security and Safety Act (“VESSA”), which provides unpaid, job-protected leave to victims of sexual or gender violence and domestic violence, has been amended to expand the definitions of relevant “crimes of violence” and persons qualifying as a “family or household member.” Under the amendment, an employee also now has the right to choose which form of documentation to submit as proof for a leave request and may be not required to provide more than one document during a 12-month period if the requested leave is related to the same incident(s) or perpetrator(s).
The amended law also requires confidentiality of any information obtained by an employer related to VESSA leave. Victims also may not be prohibited from collecting voluntary leave benefits.
Vaccine Passports Prohibited for Customers but not Employees
House File 889 prohibits businesses and governmental entities to require customers, patrons, clients, patients, or other persons invited onto the premises to show proof of a COVID-19 vaccine. However, the law does allow businesses and governmental entitles to screen those entering the premises for COVID-19, as long as that screening does not inquire into a person’s vaccination status.
The law does not apply to employees of a business, so Iowa employers can legally require employees to show proof of a COVID-19 vaccine as a condition of employment.
The law also explicitly excludes health care facilities including hospitals and other licensed inpatient centers, ambulatory surgical or treatment centers, skilled nursing centers and nursing facilities, residential treatment centers, diagnostic, laboratory and imaging centers, rehabilitation and other therapeutic health settings, and intermediate care facilities for people with mental illness or intellectual disabilities from the vaccination passport prohibition.
The new law also prohibits the designation of COVID-19 vaccine status on state or political subdivision-issued identification cards.
Paid Public Health Emergency Leave Mandate
The Maryland Essential Workers’ Protection Act (H.B. 581) creates a new paid public health emergency leave (“PHEL”) mandate for essential workers during a designated emergency. Although technically in effect as of June 1, 2021, employers are not required to provide this mandated PHEL until state or federal funding is made available to them for this purpose. Currently, no funding stream for this leave has been specified, and the current state of emergency in Maryland is expected to lapse before any funding is established.
The law defines “essential workers” as any individual who performs a duty or work responsibility during an emergency that cannot be performed remotely or is required to be at the worksite, or an individual who provides services that an essential employer determines to be essential or critical to its operations.
Once funding is made available, full-time essential workers would be eligible for up to 112 hours of PHEL during an emergency. Part-time and variable hour essential workers would be eligible for a prorated amount of leave based on their average hours worked.
Eligible workers will be allowed to use PHEL for their own COVID-19-related needs as well as the needs of covered family members.
Federal Unemployment Benefit Subsidies Ending
Effective July 3, 2021, Maryland will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
COVID-19 Emergency Paid Sick Leave and Corresponding Notice Required
Newly-enacted law H.3702 requires all Massachusetts employers to provide emergency paid sick leave to employees who are unable to work for applicable COVID-related reasons. The law also creates a $75 million COVID-19 Emergency Paid Sick Leave Fund to reimburse eligible employers for providing this emergency paid sick leave.
This new paid leave requirement is in effect June 7, 2021 through September 30, 2021, or until the fund is exhausted.
All full-time employees in Massachusetts are eligible to receive up to 40 hours of job-protected, emergency paid sick leave for certain COVID-19 reasons. The leave amount must be prorated for part-time employees. For employees whose schedule and weekly hours vary from week to week, employers must provide leave that is equal to the average number of hours that the employee was scheduled to work per week over the previous six months. Employees may use COVID-19 emergency paid sick leave on an intermittent basis and in hourly increments.
Any employer with its own COVID-19 sick leave policy that meets the leave requirements under the law are not required to provide an additional 40 hours of COVID-19 emergency paid sick leave. However, employers cannot receive reimbursement from the COVID-19 Emergency Paid Sick Leave Fund for COVID-19 sick leave voluntarily provided to employees prior to June 7, 2021.
Eligible reasons for the leave include:
- To obtain the COVID-19 vaccination or to recover from symptoms arising from the vaccination;
- An employee’s need to get a medical diagnosis, care or treatment for COVID-19 symptoms or to self-isolate because of a COVID-19 diagnosis;
- An employee’s need to care for a family member who is self-isolating due to a COVID-19 diagnosis or needs medical diagnosis, care or treatment for COVID-19 symptoms;
- A quarantine order or other determination by a local, state or federal public official; a health authority having jurisdiction; the employee’s employer; or a health care provider;
- An employee’s need to care for a family member due to a quarantine order or other determination by a local, state or federal public official; a health authority having jurisdiction; the family member’s employer; or a health care provider; or
- An employee’s inability to telework because the employee has been diagnosed with COVID-19 and the employee’s symptoms inhibit the ability to telework.
The maximum benefit available per employee is $850 per week. Employers may provide additional leave under their own policies but cannot seek reimbursement from the COVID-19 Emergency Paid Sick Leave Fund for more than $850 for an employee’s leave.
Employers must maintain all employee benefits — including applicable health insurance, vacation leave, sick leave, disability insurance, and pension — for employees who use COVID-19 emergency paid sick leave. In addition, an employer may not require an employee to use other paid leave before using COVID-19 emergency paid sick leave.
An employee requesting leave must provide notice as soon as practicable or foreseeable. After the first workday, an employee receives COVID-19 emergency paid sick leave, an employer may require the employee to follow reasonable notice procedures in order to continue receiving COVID-19 emergency paid sick leave.
Written leave requests must include the employee’s name; the date(s) for which leave is requested and taken; a statement of the COVID-19-related reason for leave with support; and a statement that, because of the COVID-19-related reason, the employee is unable to work or telework. For leave requests based on a quarantine order or self-quarantine advice, the statement from the employee must also include the name of the governmental entity ordering quarantine or the name of the health care provider advising self-quarantine and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.
Employers with fewer than 500 employees that voluntarily provide sick leave under the Families First Coronavirus Response Act (“FFCRA”) through September 30, 2021 are still entitled to a federal tax credit. Larger employers that are not covered by the FFCRA, and those that have not elected to voluntarily provide FFCRA leave can submit claims for reimbursement to the Commonwealth’s trust fund for each employee’s use of COVID-19 Massachusetts emergency paid sick leave.
The new law also includes anti-retaliation provisions that prohibit employers from taking any adverse action against employees who request leave.
Employers must post or send a notice advising employees of the right to take COVID-19 emergency paid sick leave, available here: Notice.
For additional details and a link to the reimbursement request form, see the COVID-19 Temporary Emergency Paid Sick Leave Program web page.
Vaccine Passports Prohibited for Publically-Funded Entities
Signed on June 15, 2021, House Bill 271 prohibits any Missouri county, city, town, or village government receiving public funds from requiring proof of COVID-19 vaccination. In addition, Missouri residents must be allowed access to any building, transportation system, or service without showing proof they have received the vaccine.
Federal Unemployment Benefit Subsidies Ending
Effective June 19, 2021, Nebraska stopped participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
Right to Return Law Enacted for Laid Off Hospitality and Travel Workers
Effective July 1, 2021, the Nevada Hospitality and Travel Workers Right to Return Act(Senate Bill 386), requires covered employers in the casino, hospitality, stadium, and travel industries to offer former employees who were laid off or furloughed due to the COVID-19 pandemic the opportunity to return to work.
The law applies to employers who currently have or had 30 or more employees as of March 12, 2020 and who own an airport hospitality operation, an airport service provider, a casino, an event center or a hotel that is located in a county whose population is 100,000 or more.
The law applies to separated employees who were employed for at least six months between March 12, 2019 and March 12, 2020 and who were laid off after March 12, 2020 due to a governmental order, lack of business, reduction in force, or another economic, non-disciplinary reason. Exceptions include managerial and executive employees who are who are exempt from the Fair Labor Standards Act; theatrical or stage performers; or employees under a valid severance agreement.
Applicable employers must offer a laid-off employee each position which becomes available after July 1, 2021 for which the employee is qualified. An employee is considered qualified if they held the same or a similar position within the same job classification at the time of separation from the employer. Each offer must be in writing and sent via mail, email, phone, or text.
Available positions must be offered first to laid-off employees who held the same position when they were separated and then to laid-off employees who held a similar position within the same job classification. If more than one laid-off employee is entitled to preference, the employer must first offer the position to the employee with the greatest length of service. Employers may extend simultaneous employment offers conditioned on applying the order of preference.
A laid-off employee must be given at least 24 hours after receipt of an offer to accept or decline the offer. If a laid-off employee does not accept or decline an offer within 24 hours or is not available to return to work within five calendar days after accepting an offer, the employer may recall the next available employee with the greatest length of service.
If an employer declines to recall a laid-off employee because the employee lacks qualifications, the employer must notify the laid-off employee in writing within 30 days of that decision and identify all the reasons for the decision.
After an employer makes an offer to a laid-off employee, the employer is not required to make additional offers to that employee if:
- The employee states in writing that they do not wish to be considered for future open positions, or future open positions with regularly scheduled work hours that are different from those the employee worked immediately before their separation.
- The employer extends and the employee declines three “bona fide offers” of employment, with not less than three weeks between each offer.
- The employer attempts to make three offers of employment and each offer made by mail or email is returned as undeliverable or if the employee’s telephone number is no longer in service.
The employer must provide written notice of an impending or past layoff in Spanish, English and any other language that is spoken by not less than 10 percent of the employer’s workforce. The notice must include the layoff effective date; a summary of the right to reemployment provided by the Act or clear instructions on how to access such information; and contact information for the person designated by the employer to receive notice of a violation of the Act. The notice must be provided at the time a future layoff occurs. If the layoff took place before July 1, 2021, then the notice must be provided within 20 days of July 1, 2021. The notice may be provided via mail, email, phone, text or in person.
Employers must also retain documentation related to lay-offs and rehire offers for at least two years after the date the layoff notice is provided to an employee. The documentation must include the employee’s full legal name, last job classification, and date of hire; the employee’s last known address, email address, and telephone number; a copy of the written layoff notice; and records of each offer of reemployment made to the employee including the date and time of each offer.
The Act expires on the date the Nevada governor terminates the current Declaration of Emergency or on August 31, 2022, whichever comes later.
Changes to Nevada Restrictive Covenants
Effective May 25, 2021, changes to the Nevada Unfair Trade Practice Act (“NUTPA”) prohibit non-competition covenants for employees who are paid solely on an hourly wage basis, exclusive of any tips or gratuities.
Under the amended law, employers must pay reasonable attorney’s fees and costs if the employer seeks to enforce or if an employee challenges a non-compete agreement that applies to an hourly employee.
Federal Unemployment Benefit Subsidies Ending
Effective June 19, 2021, New Hampshire stopped participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
Paid Sick Leave Must Be Provided for Recovery from COVID-19 Vaccine Side Effects
The New York State Department of Labor has issued guidance that clarifies that employers in New York are required to provide paid sick leave to any employee who experiences side effects from a COVID-19 vaccination. The guidance also clarifies that the four-hour vaccination leave provided under New York’s vaccination leave law is still in effect. For additional details, see the Guidance.
Effective Date of NY HERO Act Pushed to July 5
The effective date for the New York Health and Essential Rights Act, also known as the NY HERO Act has been pushed from June 4, 2021 to July 5, 2021. The Act requires all employers in New York to implement certain safety standards and adopt a prevention plan to protect against the further spread of COVID-19 and other airborne infectious diseases in the workplace. In addition, effective November 1, 2021, the new law will require employers with at least 10 employees to allow the creation of a joint employer-employee workplace health and safety committee.
The Commissioner of the New York Department of Labor is required to create industry-specific standards to prevent exposure to all airborne infectious diseases in the workplace. Once these model notices are released, employers must either adopt the model standard applicable to their industry or create an alternative airborne infectious disease exposure prevention plan that equals or exceeds the minimum standards in the model standard.
Employers must provide the prevention plan to all existing employees on the effective date of the act or upon reopening and to new hires on the date of hire. The Prevention Plan must be posted in a visible and prominent location within the worksite, be included in the employee handbook (if applicable) and be available for review upon request.
The law protects employees from discrimination, retaliation, or any adverse action for exercising rights granted by the act or the prevention plan including reporting violations; expressing airborne infectious disease exposure concern; and refusing to work where the employee “reasonably believes in good faith,” that such work exposes the employee, other workers, or the public to an unreasonable risk of exposure to an airborne infectious disease due to working conditions that are inconsistent with the law.
Employers with 10 or more employees must also permit their employees to establish a joint labor-management workplace safety committee, with at least two-thirds of the employees holding non-supervisory positions. Employers are prohibited from interfering with the selection of employees onto the committee.
Designated members of the committee will be authorized to:
- Raise health and safety concerns, hazards, complaints, and violations to which the employer and employer must respond;
- Review any policy put in place because of the requirements of the act or the worker’s compensation law and provide feedback on the policy;
- Review the adoption of any policy put in place in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directive;
- Participate in any site visit by any governmental entity responsible for enforcing safety and health standards in a manner consistent with the act;
- Review any report filed by the employer related to health and safety of workplace in a manner consistent with any provision of the act; and
- Regularly schedule a meeting during work hours at least once a quarter.
New York City Employers Required to Participate in Retirement Savings Plan
On May 11, 2021, the City Council of New York enacted a new law that creates a retirement savings program for employees of private-sector employers in New York City with five or more employees that do not offer a retirement plan. The new law takes effect 90 days after enactment, but the board has up to two years to implement the program.
The new law creates a mandatory auto-enrollment payroll deduction individual retirement account (“IRA”) program with a default employee contribution rate of 5%. However, employees may adjust this rate up or down or opt-out of at any time.
Employees will be able to retain the accounts when they move jobs, and they will be able to roll the accounts over into employer plans if eligible.
Unemployment Benefits Allowed for Military Spouses
Effective August 1, 2021, H.B. 1278 allows military spouses to be eligible for unemployment insurance benefits if they voluntarily leave work to relocate because of their spouse’s permanent change of station orders.
Changes to Oregon Non-Competes
Effective for agreements entered into on or after May 21, 2021, a non-compete agreement may not exceed 12 months beyond the date of separation and may only apply to employees paid an annual salary of at least $100,533. The salary amount will be adjusted annually for inflation.
Philadelphia Requires Changes to Federal Taxable Income to be Reported
Effective May 6, 2021, a new ordinance requires all Philadelphia individuals and entities subject to City taxes to report changes to their federal taxable income to the Philadelphia Revenue Department.
After a final determination that results in a change to a taxpayer’s federal taxable income because of a resolution of an audit, agreement with the IRS, or court proceeding, the taxpayer has 180 days to file a form with the Philadelphia Revenue Department reporting the change. The City may then assess additional taxes or refunds based on the changes reported.
Workplace Bullying Protocols and Notice Required
No later than August 2, 2021, employers in Puerto Rico must adopt, implement, and notify their workforce of the required protocol established under Act 90-2020 to manage workplace bullying situations.
The Puerto Rico Department of Labor (PRDOL) has issued protocol guidelines and a sample protocol for employers to follow, which can be accessed here: Guidelines and Sample Protocol (in Spanish).
Unlawful bullying is defined in the guidelines as conduct that is:
- Repetitive and abusive;
- Arbitrary, unreasonable, or capricious;
- Verbal, written, or physical;
- Oblivious to the legitimate interests of the company;
- In violation of the employee’s protected constitutional rights, such as the inviolability of the dignity of the person, protection against abusive attacks on their honor, reputation, and private or family life, and protection of the worker against risks to their health or personal integrity in their work or employment; and
- Intimidating, humiliating, hostile, or offensive such that it creates a work environment not suitable for a reasonable person to perform their duties or tasks in a normal way.
The Guidelines state that an isolated event will not meet the definition that constitutes unlawful bullying. However, employers are required under the guidelines to investigate any allegations of bullying, even when the allegation identifies one incident.
If employers choose to create their own policy instead of using the sample policy provided by the PRDOL, it must include:
- A statement against bullying, as well as the employer’s responsibilities.
- Examples of conduct that could amount to prohibited bullying, including the definition and examples provided by the statute.
- A statement that disciplinary action will be taken against employees who engage in prohibited conduct and personal liability may be incurred.
- The responsibilities of supervisors and managers in preventing and identifying bullying, including the duty to report such conduct or any verbal or written allegation.
- A confidentiality statement and anti-retaliation protection for employees denouncing bullying.
- The process to file a complaint.
- The process to investigate, with the applicable time frame to conduct an investigation. The Guidelines indicate that the fact the alleged conduct stopped should not be sufficient to not investigate the allegations. In addition, they describe what the investigation file must include.
- An explanation of remedies employees must exhaust, including the applicable statute of limitations and remedies available under Act 90-2020.
- A statement as to how the protocol will be distributed, the effective date, and how it can be revised.
Employers also must post a notice of the rights under the law in a visible place. For employees working remotely, the Guidelines provide that posting can be done by email or on a webpage that employees frequently access.
Businesses Prohibited from Requiring Vaccine Passports for Customers but Not Employees
Effective June 7, 2021, S.B. 968 prohibits Texas businesses from requiring customers to provide documentation of COVID-19 vaccination in order to gain access to or receive service from the business.
The bill does not apply to employees of a business, as it specifically states that it may not be construed as “restrict[ing] a business from implementing COVID-19 screening and infection control protocols in accordance with state and federal law to protect public health.”
New Texas Data Breach Notification Requirement
Effective September 1, 2021, House Bill 3746 will amend Texas’ data breach notification law to require the Texas Attorney General to post on its website a listing of data breach notifications received when a breach involves 250 or more Texas residents.
Entities reporting a breach to the Texas Attorney General must now provide the number of Texas residents receiving notification of the breach, in addition to the current requirements.
Two New Laws Passed to Prepare for Future Pandemics
Effective May 11, 2021, two new laws address presumptions and protections in the event of a future public health emergency regarding infectious or contagious disease.
SB 5115, known as the Health Emergency Labor Standards Act (“HELSA”), establishes that frontline employees who are exposed to an infectious or contagious disease while working during a public health emergency will be presumed to be covered under an “occupational disease ” required for workers’ compensation coverage.
The definition of “frontline employees” includes the following workers who interact with the public:
- First responders
- Food processing/manufacturing/distribution, farm and meat-packing workers
- Maintenance, janitorial and food service workers at healthcare facilities
- Transit drivers/operators
- Child care workers
- Retail employees
- Hotel/motel/transient accommodation staff
- Restaurant employees
- Home care and home health aides
- Correctional officers and support staff
- Various educational employee
- Public library workers
Similarly, SB 5190 establishes that health care workers who are exposed to an infectious or contagious disease while working during a public health emergency will be presumed to be covered under an “occupational disease ” required for workers’ compensation coverage.
In addition, an employer is prohibited from discharging, permanently replacing, or discriminating against a high-risk employee for seeking accommodation regarding exposure or for utilizing all available leave options during a public health emergency. The law defines a “high-risk” employee as one whose age or an underlying health condition puts them at high risk of severe illness from the disease creating the public health emergency and whose medical provider has recommended removal from the workforce.
Employers must notify, within 24 hours, all workers at a location where someone tests positive, is diagnosed, is ordered to isolate by a public health official, or dies of the disease. The notice must be in writing and may not identify the ill worker. Union representatives of frontline employees must also be notified.
In addition, healthcare facilities must notify employees of “known or suspected high-risk exposure.” Lastly, employers with more than 50 employees must notify the state within 24 hours if 10 or more employees at a worksite test positive for the disease creating a public health emergency.