As anticipated, President Joe Biden has rescinded the COVID-19 safety requirements for federal contractors in connection with the declared end of the COVID-19 public health emergency and the World Health Organization determination that COVID-19 is no longer a Public Health Emergency of International Concern.

Read more here.

The governor of Puerto Rico has issued Executive Order No. OE-2023-012, ending the state of emergency declared in 2020 due to the pandemic caused by the Coronavirus (COVID-19) and repealing multiple Executive Orders issued to adopt preventive measures because of COVID-19. OE-2023-012, signed on May 11, 2023, went into effect immediately.

Read more here.

On May 15, 2023, in response to the end of the COVID-19 Public Health Emergency Declaration, the EEOC updated its COVID-19 technical assistance: “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”. This guidance has now been updated roughly twenty times since the start of the pandemic. The EEOC’s recent update to its informal guidance appears to give employers permission to continue with many of their COVID-19 practices and protocols, despite the May 11, 2023 end of the Public Health Emergency.

While the EEOC reminds employers that medical exams and inquiries must be job related and consistent with business necessity, according to the EEOC: “the ‘business necessity’ standard allows for consideration of whether a person may have COVID-19, and thus might pose a ‘direct threat.’” As a result, the EEOC continues to allow employers to follow the CDC guidance but warns that “guidance from medical and public health authorities may be relevant to making certain legal determinations under one or more EEO laws (e.g., “direct threat” under the ADA). Because changes in such guidance may impact the legal assessments made under Title I of the ADA and other EEO laws … the EEOC recommends that employers … routinely check for guidance updates from CDC, FDA, and other medical and public health authorities.”  Below are some of the points raised by the EEOC in the updated guidance:

  1. “The ADA does not prevent employers from following CDC advice.” (A4)
  1. If an employee calls in sick or reports feeling sick at work, an employer may ask whether the employee has COVID-19 or common symptoms of COVID-19 as identified in CDC guidance. (A1, A12)
  1. Employers may still ask all employees entering the worksite or working in close proximity to others if they have COVID-19 or COVID-19 symptoms, if they have been COVID-19 tested and if so, the results. (A8)
  1. If an employee has COVID-19 or COVID-19 symptoms, employers may follow CDC recommended isolation guidance. (A4)
  1. Employers must maintain all information about employee illness as confidential medical records in compliance with the ADA. (A1)
  1. Measuring an employee’s body temperature or requiring an employee to undergo COVID-19 viral testing are medical examinations. Requiring medical examinations and making disability-related questions must meet the “business necessity” standard. It is important for the employer to consider why it wishes to require a medical examination. (A3, A9)
  1. The ADA doesn’t prevent employers from following CDC recommendations regarding whether, when and for whom testing or other medical screening is appropriate.  According to the EEOC, following CDC recommendations will meet the ADA “business necessity” standard. (A9)
  1. An employer may ask employees coming into the worksite whether they have had contact with “anyone” diagnosed with COVID-19 or who may have symptoms associated with the disease. But only asking about an employee’s contact with family members would create a GINA issue and would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19. (A10)
  1. Employers can ask employees about domestic or international travel as these are not disability-related inquiries, but if the employer wants to require testing of individuals who have traveled, it must meet the business necessity standard. (A14)
  1. According to the EEOC, the possible types of reasonable accommodations to address Long COVID vary, depending on a number of factors, including the nature of the symptoms, the job duties, and the design of the workplace. The EEOC provided the following examples of possible accommodations: a quiet workspace, use of noise cancelling or white noise devices, and uninterrupted worktime to address brain fog; alternative lighting and reducing glare to address headaches; rest breaks to address joint pain or shortness of breath; a flexible schedule or telework to address fatigue; and removal of “marginal functions” that involve physical exertion to address shortness of breath. The Job Accommodation Network has information on a variety of possible accommodations. (D17)
  1. The end of the Public Health Emergency declaration does not automatically provide grounds to terminate reasonable accommodations that may continue to be needed to address ongoing circumstances (e.g. continued high risk to individuals with certain disabilities if they contract COVID-19 as discussed in CDC guidance). However, employers may engage in the interactive process to determine if, on an individualized basis, they are still necessary and whether alternative accommodations might meet those needs. (D20)
  1. The EEOC reminds employers that harassing an employee with a disability-related need to wear a mask or take other COVID-19 precautions or harassing an employee who is receiving a religious accommodation to forgo mandatory vaccination may violate Equal Employment Opportunity laws. 

What should employers do? The EEOC’s updated guidance allows, but does not require, employers to continue some of the COVID-19 protocols that were in place during the pandemic. It remains to be seen how much deference courts will give to the EEOC’s informal guidance, and as the EEOC recognizes, it is subject to change based on changing circumstances and guidance from the CDC and other public health authorities. What is certain is that COVID-19 litigation is expected to continue due to the strong and divergent views on the issues and, as a result, employers should carefully think through their practices to determine whether they still make sense for their workforce due to current circumstances.  

Employers should reach out to the Jackson Lewis attorney with whom they regularly work to discuss their current COVID-19 practices and the changes in federal and state COVID-19 law and guidance.

Maryland Governor Wes Moore has signed an amendment (Senate Bill 828) modifying the 2022 law that established the state’s paid leave system, the Family and Medical Leave Insurance (FAMLI) Program.

The Time to Care Act establishes an insurance-like program for paid leave. Employees and employers will contribute to a shared fund, which will generally pay out up to 12 weeks of paid leave when a qualifying employee requests leave.

Following the amendment, collection of employees’ and employers’ contributions to the FAMLI fund has been pushed back a year and will begin October 1, 2024. Payout of benefits has also been delayed a year and will begin January 1, 2026.

Further, rather than let the Maryland Department of Labor (MDOL) set the contribution rates, as previously envisioned, the modifying law sets the contribution ratio for qualifying employers at 50/50, with employees and employers sharing equally in contributions. Importantly, the new law also caps the total rate of contribution at 1.2% of an employee’s covered wages. In other words, combined contributions cannot exceed 1.2% of an employee’s pre-tax wage base.

The modified FAMLI Program will not require employees to exhaust all of their employer-provided paid sick leave, paid vacation or other paid time off before receiving benefits. Still, employers will have a say in managing the relationship between their employer-provided plans and paid FAMLI leave. If an employee agrees, an employer can pay out portions of the individual’s accrued paid leave in combination with FAMLI leave to provide up to 100% of their average weekly wage.

Finally, the MDOL will promulgate additional regulations by October 1, 2023. These, too, should provide a better idea of the ins and outs of the FAMLI Program. We will provide an update when those regulations are available. Please contact a Jackson Lewis attorney with any questions.

The U.S. COVID-19 Public Health Emergency will end on May 11, 2023, one week after the World Health Organization determined that COVID-19 is no longer a Public Health Emergency of International Concern. On that same day, the Biden-Harris Administration has announced it will end COVID-19 vaccination requirements for federal employees, federal contractors, and international air travelers. The Administration also announced that the Department of Health and Human Services and the Department of Homeland Security will start the process to end their vaccination requirements for Head Start educators, healthcare facilities certified by the Centers for Medicare & Medicaid Services (CMS), and certain noncitizens at the land border. 

COVID-19 still exists but like all emergencies, the COVID-19 Public Health Emergency was never intended to last forever. Thankfully. We will undoubtedly continue to see occasional upticks of COVID-19 infections. But for now, the CDC’s COVID-19 Community Levels map shows low levels across almost the entire U.S. except for scattered small, pockets of medium and high levels. And with more people having some level of immunity either due to past exposure, vaccination, or a hybrid mix of both, and with the increased availability of therapeutics, COVID-19 presents a lower risk of severe illness across the United States. As explained recently by the CDC: 

The United States has mobilized and sustained a historic response to the COVID-19 pandemic. As a nation, we now find ourselves at a different point in the pandemic – with more tools and resources than ever before to better protect ourselves and our communities.

The end of the U.S. Public Health Emergency does not mean the end of all COVID-19 regulation.  Some state and local requirements remain in place. But it is a good time for employers who might still have COVID-19 protocols in place to assess whether those protocols still make sense for their workplace in light of our current COVID-19 circumstances. Policies like testing and vaccination, and some accommodations, should be reviewed for legal compliance given the changes. The end of the Public Health Emergency provides employers a good opportunity to communicate with employees regarding what to expect in the workplace on a going forward basis and hopefully start to put the COVID chapter behind us.

Please reach out to the Jackson Lewis attorney with whom you regularly work to discuss all these issues. 

 

The Biden-Harris Administration has announced that, at the end of the day on May 11, 2023, it will end COVID-19 vaccination requirements for federal employees, federal contractors, and international air travelers. The COVID-19 public health emergency also will end on the same day. 

Learn more here.

Last year the City of Bloomington, Minnesota became the fourth city in Minnesota to pass an ordinance requiring certain employers provide paid sick and safe leave to eligible employees. The City of Bloomington’s Earned Sick and Safe Leave (ESSL) Ordinance is set to go into effect on July 1, 2023. In light of the upcoming effective date, the City recently posted Initial Rules implementing the Ordinance and providing additional guidance to employers.

Covered Employees

The Rules clarify that ESSL applies to all workers (including part-time and temporary employees), irrespective of U.S. citizenship status, who perform work within the City of Bloomington for at least 80 hours in a calendar year. The Rules also emphasize that employers are required to provide  ESSL to an employee physically working in Bloomington city limits, regardless of an employer’s location.

The Rules permit employers with employees who work in multiple cities during a work shift to make a reasonable estimate of the employee’s time spent working in the City of Bloomington for the purposes of calculating coverage, accrual and use. The Rules identify documentation an employer may use in estimating the employee’s time spent in the City, including “dispatch logs, employee logs, delivery addresses and estimated travel times, or historical averages.”

Accrual of ESSL

Under the Ordinance, employees accrue one hour of ESSL per 30 hours worked, up to a maximum of 48 hours in a year. In accordance with January 2023 amendments to the Ordinance, the Rules clarify that employers may permit employees to accrue time in fractions of an hour.

The Rules further clarify that employees may begin using accrued ESSL on the 91st day following the start of their employment. Current employees are entitled to use accrued ESSL on the effective date of the Ordinance or the 91st day of employment, whichever comes later.

Employer Notice and Record Keeping Obligations

Similar to the Minneapolis, St. Paul and Duluth sick and safe time ordinances, employers who have an employee handbook must include notice of employees’ rights and remedies under the Bloomington ESSL Ordinance by providing a copy of the workplace notice poster in the handbook. The Rules also require an employer provide employees with a copy of the poster in any type of “orientation material” provided. The Rules do not, however, expand on what the City defines as “orientation material.” While the notice poster is currently available in English, the City Attorney’s Office is anticipated to make available workplace notice posters in Chinese, Khmer, Spanish, Somali, and Vietnamese.

Employers must also provide employees with earnings statements showing the number of ESSL hours accrued and unused at the end of each pay period.

Additional Information Forthcoming

The City of Bloomington is expected to publish an FAQ guide by the end of this month, April 2023. The FAQs will be available on Bloomington’s Earned Sick and Safe Leave website.

What’s Next?

In response to Bloomington’s new Initial Rules and in light of the upcoming effective date, covered employers should consider taking these steps: (1) review current policies to determine compliance with the Ordinance and Initial Rules, and (2) update employee handbooks and orientation materials if necessary.

For more information on the Bloomington ESSL Ordinance, see our articles,  Bloomington Becomes the Fourth City in Minnesota to Require Paid Sick and Safe Leave and Bloomington and St. Paul’s Sick and Safe Time Ordinances Get Checkups in the New Year.

The Bloomington ESSL Ordinance is included in our leave law map database that provides subscribers with a detailed explanation of state and local leave laws around the country. The Leave and Accommodation Suite is developed and updated continually by our Disability, Leave & Health Management attorneys. Register here if you would like to learn about our Leave & Accommodation Suite.

If you have any questions, please contact the Jackson Lewis attorney(s) with whom you regularly work. 

(Law clerk Kaylyn Stanek contributed significantly to this article.)

Under new legislation coined the “Coronavirus Stop Act,” employers doing business in the state of Idaho may no longer require a coronavirus vaccination as a term of employment unless required by federal law or where the terms of employment include travel to foreign jurisdictions requiring vaccination.

Read more here.

New laws in Seattle and Washington State allow certain gig workers greater access to traditional employee benefits.

Seattle Paid Sick and Safe Leave

Seattle Mayor Bruce Harrell signed into law the App-Based Worker Paid Sick and Safe Time Ordinance on March 29, 2023. Among other things, this law requires that app-based workers accrue at least one day of paid sick and paid safe time for every 30 days with at least one work-related stop in Seattle, and that network companies allow certain app-based workers to carry over at least nine days of accrued, unused paid sick and paid safe time to the following year.

The ordinance goes into effect on May 1, 2023, for food delivery network company workers in Seattle who work with a network company with more than 250 app-based workers worldwide (including workers at chains, integrated enterprises, and franchises). Starting January 13, 2024, this new ordinance will apply broadly to all Seattle app-based workers who work with a network company with more than 250 app-based workers worldwide. With limited exceptions, the law defines a “network company” as an entity that uses an online-enabled application or platform to connect customers with app-based workers, presents offers to those workers through a platform, and facilitates the provision of those services.

At present, the ordinance does not cover “marketplace network companies” where workers set their own rates, but the Seattle City Council is considering separate legislation to cover such entities.

In the next few months, Seattle’s Office of Labor Standards will release guidance on this ordinance and begin formal rulemaking.

Washington Paid Family and Medical Leave and Unemployment Insurance

Washington Governor Jay Inslee is poised to sign Substitute House Bill 1570, which would expand the rights of drivers for transportation network companies (TNC drivers) under the Washington Paid Family and Medical Leave Act. Currently, Washington’s Paid Family and Medical Leave Act allows all self-employed workers in Washington, including TNC drivers, to pay premiums for elective coverage under the law. Once signed, however, under a new pilot program, from July 1, 2024, to December 31, 2028, TNCs would need to pay drivers (who elect coverage and file a notice with the state) an amount equal to their self-employment premiums. Drivers would be eligible for this paid leave after working 820 hours in Washington during the qualifying period.

The bill would also provide unemployment insurance to TNC drivers in Washington.

If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our Disability, Leave and Health Management Practice Group.

Virginia Governor Glenn Youngkin signed a law on April 12, 2023 mandating employers provide unpaid organ donor leave. When the law goes into effect on July 1, 2023, Virginia will join nearly 20 other states that require employers to provide medical donor leave.

Under the new law, Virginia employers with at least 50 employees must provide unpaid leave to organ donors, including bone barrow donors. Employees are eligible for this leave if they were employed by their current employer for at least 12 months prior and worked at least 1,250 hours in the preceding 12 months.

To receive organ donor leave, the eligible employee must provide written physician verification to the employer that (i) the eligible employee is an organ donor or a bone marrow donor and (ii) there is a medical necessity for the donation of the organ or bone marrow. Employers must offer 60 business days of unpaid leave in any 12-month period for employees to serve as organ donors and 30 business days of unpaid leave in any 12-month period for employees to serve as bone marrow donors. Employees may not take organ donor leave concurrently with leave under the federal Family and Medical Leave Act.

Employers must continue to provide eligible employees health benefits during organ donor leave and must pay employees any commission that becomes due because of work performed prior to the leave. Eligible employees are entitled to be restored to the same or an equivalent position and retaliatory action for taking organ donor leave is prohibited. The state Commissioner of Labor and Industry will be responsible for enforcing the new law.

 If you have any questions about this or any other issues related to leave and health management, please contact the Jackson Lewis attorney(s) with whom you regularly work. Register here if you would like to learn about our Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law map that shows each leave law in every state and a database that provides a detailed explanation of each leave law. The Leave and Accommodation Suite is developed and updated continually by our Disability, Leave & Health Management attorneys.