On January 1, 2021, the California Family Rights Act (CFRA) expanded in several ways, including that small employers (those with 5 or more employees) must now provide up to 12 workweeks of CFRA leave within a 12-month period to eligible employees. With the expanded applicability of CFRA, it’s important for California employers to be aware of the sometimes-confusing interplay of CFRA with other state and federal leave laws when it comes to an employee’s pregnancy. Read more about this interplay from our California colleagues here.

Arizona Governor Doug Ducey signed into law a bill that prohibits employers from discriminating against workers based on pregnancy or childbirth.

Amending the Arizona Civil Rights Act, the bill (House Bill 2045) defines discrimination “because of sex” and “on the basis of sex” to include discrimination on the basis of pregnancy, childbirth, or related medical conditions. The Arizona Civil Rights Act applies to employers who employ 15 or more employees, with the exception of sex harassment claims, which are viable against an employer with even one employee.

The Arizona Civil Rights Act amendment requires covered employers to treat women affected by pregnancy, childbirth, or related medical conditions the same for all employment-related purposes as non-pregnant employees with similar limitations in their ability to work.

The amendment will likely have minimal impact on Arizona employers because this requirement aligns with federal law under the Pregnancy Discrimination Act and Americans with Disabilities Act, which already apply to most Arizona employers covered by the Arizona Civil Rights Act.

The amendment to the Arizona Civil Rights Act is expected to take effect on or about July 19, 2021.

California currently has a patchwork of local COVID-19 supplemental paid sick leave ordinances which remain in effect in 2021. But what about employers that are not located in those localities with a supplemental paid sick leave ordinance? Or employees who have exhausted supplement paid sick leave allotments?

Before the pandemic, California had the Healthy Workplace Healthy Family Act of 2014 (the Act), which mandated most employers in the state provide paid sick leave to employees.  Under the Act, employers must provide for the accrual of one hour for every 30 hours worked by the employee and allow the use of at least 24 hours or provide a lump sum of 24 hours of paid sick leave at the beginning of a 12-month period.

Under the Act, an employee can take paid leave for the employee’s own or a family member’s diagnosis, care, treatment of an existing health condition or preventive care, or for specified purposes for an employee who is a victim of domestic violence, sexual assault or stalking.

When the pandemic began, unique circumstances such as the need for employees to quarantine arose, and it was not clear if employers could permit employees to use paid sick leave for those circumstances.

The California Labor Commissioner’s Office, which enforces the Act and other labor laws, released an FAQ regarding COVID-19 shortly after California’s first shelter in place orders in March 2020. As California nears the year anniversary of the shelter in place orders, the FAQ is still relevant and important to review.

Employees may use paid sick leave under the Act for the following COVID-19 related reasons:

  • Illness due to COVID-19
  • Seeking diagnosis of COVID-19
  • Self-quarantining due to potential exposure
  • Caring for a family member who has COVID-19

Jackson Lewis continues to monitor local, state, and federal legislation pertaining to COVID-19. If you have questions about paid sick leave or other employment concerns related to COVID-19, contact a Jackson Lewis attorney to discuss.

A key tech initiative as COVID-19 vaccinations begin rolling out are digital health passports. One example is being developed by a group of large tech companies along with the Mayo Clinic as part of the Vaccination Credential Initiative. The Initiative’s digital vaccination record will likely be a smartphone app. The Initiative is leveraging the CommonPass app, which is already being used by airlines to allow passengers to show a negative COVID-19 test result, which is a requirement to board certain flights.  Read more about digital health passports here.

On January 29, 2021, the Occupational Safety and Health Administration (OSHA) published “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” The Guidance incorporates much of the existing guidance from the Centers for Disease Control and Prevention (CDC), adds to guidance OSHA previously issued, and reflects strategies and practices familiar to many employers.

The Guidance, which is intended for non-healthcare employers, is not mandatory and does not have the same legal effect as an OSHA standard. Nevertheless, it provides insight into OSHA’s views and previews what the agency may include in an Emergency Temporary Standard (ETS), which the Biden administration has directed OSHA to consider and potentially implement by March 15, 2021. OSHA’s Guidance provides all employers an important opportunity to review their COVID-19 prevention strategies.

Lawyers from our Disability, Leave and Health Management Practice Group and our Workplace Safety and Health Practice Group discuss OSHA’s Guidance here.

Making good on President Biden’s position that everyone should wear a mask when using public transportation, the CDC issued an Order  effective February 2nd requiring all travelers using public transportation to wear masks while boarding, traveling and disembarking.  The Order requires all travelers, crew, and people who work at the transportation hub (airport, train station, port, bus depot, etc.) to wear a mask when travelling and when at the hub. The Order allows operators of public transportation and public transportation hubs to adopt additional practices that are more protective of public health and more restrictive than the CDC Order.

In the Federal Register Notice announcing the Order and the Order itself, the CDC describes in detail what types of properly worn masks satisfy this Order and what types of masks do not. For example, masks should not have exhalation valves and if a face shield is worn, it must be worn on top of a mask that is otherwise acceptable under the Order.

The Order does not apply to your personal vehicle if you are using it for personal, non-commercial use, but it does apply to rideshare arrangements for a fee or service. The Order also does not apply to commercial motor vehicles or trucks as defined by DOT regulation at 49 CFR 390.5 if the driver is the only person in the vehicle, and it does not apply to vehicles operated or chartered by the US military.

The Order provides an exemption for individuals under 2 years of age, individuals who cannot wear a mask due to workplace safety, and individuals with disabilities who cannot wear masks. The Order says CDC will be issuing further guidance regarding the exception for disabled individuals.

You do not have to wear a mask for brief periods when you are: eating; drinking; taking medication; using an oxygen mask due to loss of cabin pressure or ventilation issue; when unconscious, incapacitated or when you can’t remove the mask without assistance; when you need to remove to the mask to communicate with someone who is hearing impaired and they need to see your mouth to communicate (for example, masks with clear plastic panels may be used to facilitate communication with people who are hearing impaired or others who need to see a speaker’s mouth to understand speech); or when you need to pull your mask down to prove your identity. And yes, you have to wear your mask while you are sleeping on public transportation.

As employers continue to grapple with a safe return to the workplace, the U.S. Centers for Disease Control and Prevention (CDC) issued new guidance for businesses and employers on SARS-CoV-2 testing of employees, as part of a more comprehensive approach to reducing transmission of the virus in non-healthcare workplaces. SARS-CoV-2 is the virus that causes COVID-19.

While the CDC had already released some guidance on the matter of workplace testing (last updated in October 2020), the guidance issued on January 21, 2021, places a new emphasis on informed consent prior to testing and the measures an employer can take to ensure employees are fully supported in their decision-making.  Read more about the CDC guidance here.

In 2020, employers with employees in California were inundated with new compliance requirements brought on by the COVID-19 pandemic. It seemed that another local government or the state passed a COVID-19 supplemental paid sick leave requirement nearly every month.  These supplemental sick leave benefits applied to employees who were not covered by the federal Families First Coronavirus Response Act (FFCRA). Many of the ordinances were written to sunset with the FFCRA or on December 31, 2020.

Now that the leave requirements of the FFCRA (and by extension, California state required supplemental sick leave) have expired, many local agencies are reviewing the supplemental sick leave ordinances that were adopted in 2020.  Some agencies have extended the date by which employees may use benefits so that the ordinances have survived beyond the expiration of the FFCRA.  Others have expanded the scope of local ordinances to provide for leave for all employees who work in that jurisdiction, not just employees who were previously excluded from the FFCRA.  The following is a list of the current local supplemental paid sick leave ordinances, including its current expiration date and any revised scope:

Locality Current Expiration Date Eligible Employees
City of Los Angeles Until 2 calendar weeks after the expiration of the COVID-19 local emergency period.

Employees who perform work within the City of Los Angeles for an employer with 500 or more employees in the City or 2,000 nationally, except that following employees are excluded from coverage:

·       Emergency and health service personnel

·       Critical Parcel Delivery personnel

·       Employees of certain new businesses

·       Government employees

·       Employees of a closed business or organization

County of Los Angeles

(applies to unincorporated areas of the county only)

Until 2 calendar weeks after the expiration of the COVID-19 local emergency period.

Employees who perform work within the unincorporated areas of the County of Los Angeles.

 

 

City of Long Beach To be determined based on information reports provided by the City Manager to the City Council every 90 days. Employees who perform work within the geographic boundaries of the City of Long Beach for an employer with 500 or more employees, except that Health Care providers, Emergency responders, and Government employees are excluded from coverage.
City of Oakland Until after the expiration of the City’s Declaration of COVID-19 Emergency. Employees who are entitled to minimum wage under the Labor Code and who work at least 2 hours within the geographic boundaries of the City of Oakland, except that employees of an employer with less than 50 employees are excluded from coverage unless they work for an unregistered janitorial service or franchise. Also excluded from coverage are health care providers and emergency responders.
City of Sacramento March 31, 2021 Employees who work within the City of Sacramento for an employer with 500 or more employees nationally, except that health care providers and emergency responders are excluded from coverage.
County of Sacramento (applies to unincorporated areas of the county only) March 31, 2021 Employees who perform work within the unincorporated area of the county for an employer who has 500 or more employees nationally, except that health care providers and emergency responders are excluded from coverage.
City and County of San Francisco February 11, 2021, unless extended. Employees who perform work in the geographic boundaries of the City and County of San Francisco for an employer with more than 500 employees nationwide.  Health care providers and emergency responders may be limited in their use of the leave.
City of San Jose June 30, 2021 Employees perform at least 2 hours of work within the geographic boundaries of the City of San Jose.
County of San Mateo (applies to unincorporated areas of the county only) June 30, 2021 Employees who perform work within the geographic boundaries of unincorporated areas of the County of San Mateo for an employer with 500 or more employees nationally, except that health care providers, aviation security workers, and emergency responders are excluded from coverage.

 

All of the recent extensions of supplemental paid sick leave, such as Oakland and San Jose, specify that the changes and extensions made do not provide for a new or refreshing bank of time.  Employees who already exhausted their leave entitlements under one of the supplemental paid sick leave mandates, including the FFCRA, do not receive a new bank of hours for 2021.

The City of Santa Rosa is scheduled to vote to extend its supplemental paid sick leave on February 2, 2021. If approved the amended ordinance will extend the supplemental paid sick leave requirement until March 31, 2021, for employers in the city of Santa Rosa.

Jackson Lewis continues to monitor local, state, and federal legislation pertaining to COVID-19. If you have questions about supplemental paid sick leave or other employment concerns related to COVID-19, contact a Jackson Lewis attorney to discuss.

On December 30, 2020, the U.S. Court of Appeals for the Seventh Circuit issued its opinion in McAllister v. Innovation Ventures, LLC, No. 20-1779 (7th Cir., Dec. 30 2020), and held that an employer did not violate the ADA where it terminated its employee after it became clear that she would require several additional months of leave after she had already been granted a two-and-a-half-month leave of absence due to her disability. The Seventh Circuit’s opinion in McAllister expanded on its previous opinion in Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), in which it held that a request for a two-to-three-month leave of absence following the expiration of the plaintiff’s FMLA leave entitlement was not a reasonable accommodation under the ADA. Jackson Lewis’s analysis of the Severson opinion can be found here.

In McAllister, the plaintiff, who had been employed by the defendant as an assembly worker, began a medical leave of absence after suffering significant injuries in a car accident in June 2016. In connection with her application for short-term disability benefits and FMLA leave, her doctor certified that she could not perform “any & all” job functions and that she was “totally disabled (unable to work).” After her anticipated return to work date was extended multiple times, the defendant terminated her employment in December 2016 after learning that she would not be able to return to work in any capacity until February 2017. While the plaintiff claimed that the defendant had failed to offer her a reasonable accommodation in violation of the ADA, the Seventh Circuit held, in affirming summary judgment for the employer, that because her doctor had made clear she could not return to work in any capacity, she could not establish that she was a “qualified individual” with a disability under the ADA. The Seventh Circuit noted that an employer “is entitled to rely” on the assessment of an employee’s physician regarding an employee’s ability to safely perform the essential functions of his or her job, notwithstanding contrary testimony provided by the employee.

The Seventh Circuit also rejected the plaintiff’s claim that the defendant should have offered her additional leave as a reasonable accommodation, citing its previous holding in Severson that a “multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.” The Court stated that the four months of leave requested by the plaintiff, on top of the two-and-a-half months she had previously been granted, was “plainly not a reasonable accommodation,” as affording her such prolonged leave would have “effectively excuse[d] her inability to work, which the ADA does not require of employers.”

Although the McAllister decision reiterates the Seventh Circuit’s view that the ADA is not a leave statute, a notable win for employers, the Court reiterated that “[w]hether a requested accommodation is reasonable or not is a highly fact-specific inquiry.” Thus, employers should continue to evaluate leave requests on a case-by-case basis.

As all eyes are on Washington, DC today with the inauguration of our 46th President. President Biden has laid out an “aggressive plan” to “change the course of the pandemic, build a bridge towards economic recovery, and invest in racial justice.” The 19-page plan the incoming administration published last week calls for legislation to fund, among other things, a national vaccination program, expanded testing, direct payments to individuals and to take other steps including increasing the minimum wage to $15 per hour. President Biden also seeks to reinstate and expand the paid leave provided by the Families First Coronavirus Response Act (FFCRA). The FFCRA’s mandatory paid leave provisions expired on December 31, however, Congress extended the tax credit for covered employers who voluntarily provide leave. Biden calls for legislation that would:

  • Reinstate the requirement that employers provide paid leave and expand coverage to virtually all employers including those with more than 500 and less than 50 employees and provide benefits to healthcare workers and first responders. According to President Biden’s plan, these measures would “extend emergency paid leave to up to 106 million additional workers.”
  • Expand paid sick and family medical leave to 14 weeks for the same reasons included in the FFCRA and for time off to get the vaccine.
  • Provide a maximum paid leave benefit of $1,400 per-week for eligible workers. “This will provide full wage replacement to workers earning up to $73,000 annually, more than three-quarters of all workers.”
  • Reimburse employers with less than 500 employees for the full cost of the leave by extending the tax credits and reimburse state and local governments for the cost of the leave. President Biden’s plan does not address tax credits for employers with more than 500 employees.
  • Extend emergency paid leave measures until September 30, 2021.

Our eyes will be fixed on Congress over the next weeks as we watch for legislation which is bound to be hotly contested and unlikely to pass in exactly this form after negotiations. In the meantime, state legislators are also considering new paid leave bills around the country. We are monitoring all of these developments.