As previously reported, on October 2, 2020, the Michigan Supreme Court invalidated post-April 30, 2020 Executive Orders that Governor Whitmer issued related to the COVID-19 pandemic. The opinion can be found here. As a result, a patchwork of laws and agency orders have stepped in to cover the gaps left by the invalidated Michigan COVID-19 Executive Orders.

For example, on October 21, 2020, Governor Whitmer signed a bipartisan law that prohibits employees from reporting to work until all prescribed legal conditions have been met. The Jackson Lewis article on that law can be found here.

As another example, on October 14, 2020, the Michigan Occupational Safety and Health Administration (MIOSHA) issued COVID-19 Emergency Rules that are in effect for six months, which can be found here. These rules largely follow prior executive orders in requiring all employers to: (a) categorize job tasks into risk categories, (b) create a written preparedness and response plan with detailed measures to prevent employee exposure based on the risk categories, (c) follow certain basic infection prevention and screening measures, (d) follow notification requirements when a visitor/employee has a known case of COVID-19, (e) provide employee training, and (f) maintain records of training, screening, and notifications. MIOSHA’s Emergency Rules Fact Sheet can be found here.

Included within the “basic infection prevention measures” (MIOSHA Emergency Rule 5) was the preexisting requirement that employers have a policy “prohibiting work for employees to the extent that their work activities can feasible be completed remotely.”  However, on November 12, MIOSHA issued guidance making it clear that the employer must show the infeasibility of remote work, the requisite policy needs to be in writing in the preparedness and response plan, and the policy should state:

  • Which positions/classifications report for in-person work and why they must be physically present in the workplace;
  • Reasons that this work cannot be performed remotely, this must include enough specificity to show this analysis has been performed.

Separately, the Michigan Department of Health and Human Services (MDHHS) and local health departments have continued to issue orders. Most recently, on November 18, MDHHS issued an epidemic order that:

  • Prohibits indoor gatherings at non-residences with certain exceptions, such as preschool through 8th grade in-person learning, manufacturing work that is impossible to do remotely, and restaurant takeout;
  • Limits gatherings at residences to 10 people or less (with no more than 2 households gathered);
  • Limits outdoor gatherings to 25 people or less (with no more than 3 households gathered);
  • Reiterates the face mask requirement at gatherings, with certain exceptions;
  • Reiterates the requirement that businesses keep accurate records of any visitors to aid with contact tracing.

This recent order by MDHHS goes into effect today and is scheduled to remain in effect until December 8. The MDHHS infographic on what is open and not open is linked here and below.

As we enter flu season (in the midst of a national spike in COVID-19 cases), and it now appears that a COVID-19 vaccine is on the horizon, employers are struggling with whether they should require employees to be vaccinated for seasonal influenza and/or COVID-19 infection.  After the year that many have had, there is a natural reaction to jump at the idea of mandating vaccinations.  But for employers, there are many considerations that should be taken into account. 

Can Employers Mandate?

The first question employers must consider is: Can they mandate vaccinations of their employees?  In many jurisdictions, possibly, subject to reasonable accommodation obligations under federal, state or local laws protecting employees who are disabled, pregnant or have conflicting and sincerely held religious beliefs.  However, some jurisdictions prohibit or limit employers from mandating employee vaccinations and we suspect that additional jurisdictions may follow.  Therefore, employers should assess and monitor closely local legislation and/or executive orders on this issue.  If the employer’s employees are unionized, it needs to also consider whether the collective bargaining agreement allows it to mandate vaccines or whether it must bargain about the issue with the union.  Public sector employers, and private sector employers in jurisdictions such as California, must also consider whether mandating vaccinations raises additional privacy-related concerns.

Should Employers Mandate?

Even if a company can mandate vaccinations, the more important question is should it?  Companies inevitably will answer this question in different ways and for different reasons.  Among other things, employers likely will want to consider their work environment, whether they are providing care for others who may not be able to vaccinate, the risk of harm to others if they don’t vaccinate, the culture in the environment and the disruption in the workplace if they mandate.  Mandating vaccinations is a hot topic right now.  Some individuals and companies likely will be concerned with mandating vaccinations when the vaccine is new.  Many companies may face resistance from employees, which could lead to employee morale issues, dissension, union organizing or even litigation.  Employers should also consider the potential workers’ compensation or other liability exposure for injuries or illnesses resulting from adverse reactions or side effects from vaccinations it mandates. Employers should first consider whether there is a need for the company to mandate the vaccination (as opposed to the state).  A starting point may be to consider how the company fared during the height of the pandemic when there was no vaccine.  If the company was able to reduce or eliminate the spread with other administrative controls, it may not need to incur the legal and operational risks that come with mandating vaccinations.  Many employees, particularly those who are concerned, or at risk, will seek out the vaccine, regardless of any mandate, which raises the question: Do employers need to mandate, if employees (and customers) can choose to get vaccinated to protect themselves? 

Can Employees Refuse?

Even if an employer mandates that its employees receive a vaccine, it can expect to receive push back from some of its employees.  Some push back may be for political reasons, some may be out of fear, and some may be due to religious or medical concerns.  Employees who collectively object to a term or condition of employment may have protection, at least for their objection, under the National Labor Relations Act.   Employees who object for safety reasons may be protected under the Occupational Safety and Health Act and other state laws.  If employees object due to a disability/medical condition or a sincerely held religious belief, employers will need to consider reasonable accommodations.  There is plenty of guidance on the internet instructing employees how to raise these concerns, which can sometimes lead to the exceptions swallowing the rule. 

What’s An Employer To Do?

This is potentially a divisive issue for employers.  The distraction, dissension, and litigation risks posed by mandating may outweigh the potential benefits.  As an alternative, employers may consider offering the vaccine to employees at no cost, rather than mandating it.  Neither the EEOC or OSHA has published guidance (yet) on the issue of COVID-19 vaccines in the workplace, however, currently, both the EEOC and OSHA recommend encouraging, not necessarily requiring, flu vaccines.  For many companies, particularly those outside the healthcare industry, this may be the best option with respect to COVID-19 vaccines as well. 

Employers who choose to offer or mandate vaccinations should consult with counsel.   Stay tuned, as we expect the states, the EEOC and OSHA to inject their own views as the COVID-19 vaccine becomes available.  The attorneys at Jackson Lewis and our COVID-19 Taskforce are available to assist you as you assess the right approach for your workforce. 

 

Legislation was introduced in the House of Representatives to try to alleviate the lack of clarity concerning how companies are supposed to make websites accessible to vision impaired individuals. There is currently no law or regulations under the Americans with Disabilities Act (“ADA”) directly addressing technical or legal standards for website accessibility.

The Online Accessibility Act, introduced on October 2, 2020, intends to remedy many of these issues and concerns by creating a new Title VI for the ADA devoted entirely to consumer facing websites and mobile applications. The Act requires “substantial” compliance with WCAG 2.0 A, AA, an exhaustion of administrative remedies with the Department of Justice, and that plaintiffs plead “with particularity each element of the plaintiff’s claim, including the specific barriers to access.”

Each of these additional components is important as they narrow the claims that can be brought by plaintiffs, create a framework and standard by which website accessibility claims are evaluated, and most importantly, put the onus on the plaintiff to identify the specific links and precise areas of the web page that are inaccessible. This in turn makes it easier for a website to be remediated and makes it easier for the court to determine if there is a violation.

While the legislation, as currently written, does not define how “substantial compliance” is interpreted, at a minimum it will not require complete compliance, and may also consider the crux of accessibility laws (whether the plaintiff has meaningful access to the website). This is important because meaningful access considers whether the non-compliant pieces of a consumer-facing website actually affect a consumer or plaintiff’s ability to use the website – further minimizing the number of frivolous and predatory lawsuits filed regarding website accessibility violations.

While the Online Accessibility Act is not law yet, it is taking necessary steps towards refining website accessibility laws by attempting to tailor the requirements of such laws to the actual needs of vision impaired users of websites, while simultaneously tempering serial plaintiffs and their attorneys from filing a glut of lawsuits with vague allegations without the U.S. Department of Justice oversight.

Colorado voters approved the Paid Medical and Family Leave (PMFL) Initiative, Proposition 118, on Election Day. PMFL creates a state-run paid family and medical leave insurance program in Colorado that allows employees to take up to 12 weeks of leave and keep their job. The program, which begins on January 1, 2024, is similar in many ways to unemployment insurance and what exists in California and New Jersey.  Read more here.

In September, when Governor Newsom signed Assembly Bill 1867, employers hoped that the state-wide COVID-19 Supplemental Leave was a replacement for the patchwork of local ordinances. However, due to differences in coverage, many employers are faced with complying with the more stringent local ordinances. In particular, many local ordinances allow an employee to take paid leave to care for a family member if their school or place of care is closed due to COVID-19.  AB 1867 does not provide leave for this purpose.

The local ordinances also have other differences that employers need to consider.  One of the biggest is when they expire.  AB 1867 provides that its leave provisions will sunset on the later of December 31, 2020, or expiration of any federal extension of the Emergency Paid Sick Leave Act established by the Families First Coronavirus Response Act (“FFCRA”).  However, several local ordinances differ, including the City of Los Angeles ordinance (2 weeks after the expiration of the COVID-19 local emergency period) and the San Francisco ordinance (currently December 12, 2020, unless extended by the Board of Supervisors).   Other ordinances, including the City of Oakland, City of San Diego, and County of Los Angeles contain language which allow for extensions beyond December 31, 2020, if approved by elected officials.

Employers in a jurisdiction that has adopted a local COVID-supplemental sick leave ordinance should ensure that they comply with both state and local laws.   Jackson Lewis will continue to track the status of federal, state, and local ordinances pertaining to COVID-19 and paid sick leave.  If you have questions about compliance with California leave requirements pertaining to COVID-19 contact a Jackson Lewis attorney to discuss.

A federal court in Indiana dismissed an employee’s claim that his employer did not have the right to request a medical examination after he tested positive for drugs and subsequently admitted that he was taking numerous prescription medications that could create a safety risk.  Beal v. Muncie Sanitary District, Case No. 1:19-cv-01506 (S.D. Ind. Oct. 22, 2020).  Read more on our Drug and Alcohol Testing Law Advisor.

Just when you thought you had your contact tracing protocol down for dealing with COVID-19 exposures, CDC guidance has changed again.

The CDC has now expanded the definition of close contact to be  “Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.”  Under the new definition, three five-minute encounters, five three-minute encounters, or fifteen one-minute encounters over a 24 hour period (which could overlap on two workdays) could all be considered “close contacts.”  The CDC states that  “Data are limited, making it difficult to precisely define ‘close contact;’ however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation.”   But then the CDC appears to add some flexibility into the definition, stating that factors to consider when defining close contact include:

  • proximity (closer distance likely increases exposure risk),
  • the duration of exposure (longer exposure time likely increases exposure risk),
  • whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding),
  • if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and
  • other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors).

According to the CDC, “the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE.  At this time, differential determination of close contact for those using fabric face coverings is not recommended.”

This change will make contact tracing more difficult to be sure.  But it is a good time to remind employees of the importance of maintaining social distance at all times.

As we continue to follow the ever changing COVID saga, the attorneys at Jackson Lewis and our COVID-19 Taskforce are available to assist you with your questions and employee issues, including how to implement this new guidance into your protocols.  You can also gather additional information and resources from our COVID-19 web page, our multi-state COVID-19 Advisor and our new COVID-19 Employment LitWatch.

 

When it comes to disability and leave management, the past year has been one HR hurricane after another. Everything is different, including our Annual Disability & Leave Management Symposium. We know you are as frustrated as we are. We wanted to have an old fashioned, in-person conference, but in the interest of social distancing we’ve decided to shake (not stir) things up. That’s why we have converted our annual symposium into a two-part “Happy Hour” series. End your day on a high note as we cover the following topics over two days:

The COVID Impact on Disability and Leave Management Law:  Hindsight Is Always 20/20, Isn’t It?  

In Case You Missed It: Beyond COVID-19

You’ve Got Questions, We’ve Got Answers 

Details and directions to register are available here.

Philadelphia workers who are not covered by federal sick leave laws, such as the Families First Coronavirus Response Act (FFCRA), are entitled to paid sick leave benefits under the new public health emergency leave bill (amending Chapter 9-4100 of the Philadelphia Code) signed by Mayor Jim Kenney. The new leave requirements remain in effect until December 31, 2020, unless renewed. Read our full article here.

California wrapped up its 2020 Legislative Session with the Governor passing several bills that bring dramatic changes to employee leave requirements.

One of the first bills signed was Assembly Bill 1867, the statewide COVID-19 supplemental paid sick leave.  AB 1867 fills in some of the exceptions contained in the Families First Coronavirus Response Act and provides up to 80 hours of paid leave to full-time employees.  Part-time employees and those who work on a variable schedule receive pro-rated benefits.  Prior to the passage of AB 1867, several cities and counties had passed local ordinances providing supplemental sick leave for COVID-19 purposes.  AB 1867 accounts for these local ordinances and provides for credits for leave provided under these ordinances.  AB 1867 also codified an earlier Executive Order which provided food sector workers with COVID-related leave.

The Governor signed Senate Bill 1383  which expanded the California Family Rights Act (“CFRA”) to apply to employers employing 5 or more employees. The CFRA, similar to the Family Medical Leave Act, previously authorized eligible employees of employers with 50 or more employees to take up to 12 weeks of job-protected leave. SB 1383 also lists additional reasons for which CFRA leave is available.  Beginning January 1, 2021, employees may use CFRA leave to take time off to care for a grandparent, grandchild, or sibling with a serious health condition or because of a qualifying exigency related to the employee’s call to active duty or the call to active duty for certain family members in the Armed Forces.  Currently leave is only available for the employee’s own serious health condition, to care for a parent, spouse, domestic partner, or child with a serious health condition and to bond with a new child.  To complement this expansion of the CFRA, Assembly Bill 2399, adds qualifying exigency leave as a reason for receiving wage replacement benefits from the California Paid Family Leave Program (employees are currently eligible to receive wage replacements benefits if they were on an approved leave to care for a grandparent, grandchild or sibling).

The Governor also signed Assembly Bill 2992, which imposes further limitations on employers from discharging, discriminating, or retaliating against an employee who is a victim of crime or abuse. Before the passage of this legislation, under Labor Code section 230, employers were eligible to take time off if they or an immediate family member were a victim of certain violent crimes or felonies. AB 2992 expands the types of crimes that may qualify an employee for leave to include those which caused a physical or mental injury, or a threat of physical injury, regardless of whether any person is arrested for, prosecuted for, or convicted of, committing the crime.

Employers with workforces in California should review their current policies that may be affected by these changes, especially with respect to the new supplemental paid sick leave, as that was an urgency ordinance that went into effect for non-food sector workers on September 19, 2020. All other bills go into effect on January 1, 2021.

If you have questions about these or other new California bills, contact a Jackson Lewis attorney to discuss.