On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (the “Plan”). The Plan is the most recent stimulus bill enacted to address the COVID-19 pandemic and it comes almost one year to the date the first COVID relief bill containing the Families First Coronavirus Response Act (FFCRA) was passed.

The employer leave obligations contained in the FFCRA ended on December 31, 2020.  The Consolidated Appropriations Act of 2021, which was passed on December 27, 2020, did not extend the FFCRA obligations; rather, it gave employers who were covered under the FFCRA the option to voluntarily decide to provide “qualified” paid sick leave or paid family leave wages to their employees and continue to receive a tax credit for such wages until March 31, 2021.

Although there was discussion about extending the FFCRA mandate and extending it to employers of all sizes, the Plan does not mandate employers provide COVID-19 related leave and continues to limit the tax credit to employers covered by the FFCRA (which for private employers, means employers with less than 500 employees).

For those covered employers that choose to voluntarily provide leave, the Plan extends the date employers can receive tax credits for qualified wages paid to employees from March 31, 2021 until September 30, 2021.  Unlike the Consolidated Appropriations Act that did not expand the qualifying reasons for leave and limited qualifying wages to any unused entitlement under FFCRA, among other new provisions, the Plan expands the qualified leave reasons and provides new allotments of paid time that can qualify for tax credits.

Below are some FAQs on the changes made by the Plan:

Are Employers Required to Provide Emergency Paid Sick Leave or Emergency Family Medical Leave?

No.  The mandate ended on December 31, 2020.

If Covered Employers Choose to Provide Emergency Paid Sick Leave or Emergency Family Medical Leave, Can They Still Receive the Tax Credit?

Yes.  The Consolidated Appropriations Act of 2021 allowed covered employers who voluntarily provided paid sick leave or paid family leave under the same terms as provided under the FFCRA to continue to take a tax credit through March 31, 2021.  The Plan provides the opportunity for tax credits to continue for qualifying wages paid from April 1, 2021 to September 30, 2021.

For What Purposes Can Paid Leave Be Provided in order for a Covered Employer to receive a Tax Credit?

In order to receive the tax credit, leave must be provided for a qualifying reason under the FFCRA for either the Emergency Paid Sick Leave or the Emergency Family and Medical Leave.  The American Rescue Plan expanded the reasons for both the paid sick leave (“PSL”) and paid family leave (“PFL”) to include leave provided to an employee who is:

  • Obtaining a COVID-19 immunization,
  • Recovering from an injury, disability, illness or condition related to COVID-19 immunization, or
  • Seeking or awaiting the results of a COVID-19 test or diagnosis because either the employee has been exposed to COVID or the employer requested the test or diagnosis

In addition, the Plan expanded the reasons that leave can be provided as PFL (which is a longer period than the PSL) and still receive the credit, to include all of the reasons that PSL can be used, which includes instances where an employee is subject to a quarantine or isolation order, where an employee was told to self-quarantine by a healthcare provider due to COVID-19, where an employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis, where an employee is caring for an individual who is subject to a quarantine or isolation order or has been advised to self-quarantine, and where an employee’s son or daughter’s school or place of child care is closed due to COVID-19.

How Much Leave May a Covered Employer Provide and Still Receive the Tax Credit?

The Plan permits covered employers to receive a tax credit for up to ten days of PSL for employees starting April 1, 2021, even if an employer previously has taken a tax credit for PSL leave paid to those employees prior to April 1, 2021. The tax credit an employer can receive for PSL is based on an employee’s regular rate of pay if the leave is needed for one of the new reasons related to immunization or testing (described above) or because of the employee’s own symptoms, quarantine or isolation up to a cap at $511 a day.  For any other PSL reason, the amount of tax credit an employer can receive is limited to 2/3 the employee’s regular rate of pay and capped at $200 a day.

Employers can also receive a tax credit for up to 12 weeks of PFL.  The total cap for PFL has been increased from $10,000 to $12,000.  An employer can now take a total tax credit of up to $12,000 per employee.  The available credit per employee is still limited to 2/3 the employee’s regular rate of pay up to  a maximum of $200 per day for all PFL reasons for leave, including the new leave reasons related to immunization or testing (described above) and reasons that qualify for a $511 per day cap when the wages are paid under the PSL provisions.  The first two weeks of PFL no longer need to be unpaid.

Is a Covered Employer Eligible For the Tax Credits if it Provides PSL and/or PFL Only to Certain Employees?

The Plan includes a non-discrimination requirement.  Employers may not claim a tax credit on any PSL or PFL wages paid in any calendar quarter if the employer discriminates in favor of highly compensated employees (within the meaning of Section 414(q) of the Internal Revenue Code), full-time employees or employees on the basis of employment tenure in providing the PSL or PFL, as applicable.  However, this non-discrimination provision applies separately to PSL wages and PFL wages and so employers should be able to choose only PSL or PFL and still receive the tax credit for its payment of the PSL or PFL wages, as applicable.

Applicability of tax credits under the Plan are subject to IRS guidance.  As it did in response to the Consolidated Appropriations Act of 2021, we expect the IRS will issue additional FAQs in the near future.

Jackson Lewis attorneys are closely monitoring updates and guidance in this area and are available to assist employers in preparing policies and procedures related to COVID-19 paid time off.

This week, the Centers for Disease Control and Prevention (CDC) issued its first set of recommendations for fully vaccinated people. Significantly, the recommendations are interim only, and will continue to be updated and expanded by the CDC based on the level of community spread, proportion of the U.S. population fully vaccinated, and emerging scientific understanding of the vaccines.

In this welcome guidance, the CDC acknowledged evidence suggesting fully vaccinated individuals are “less likely to have asymptomatic infection and potentially less likely to transmit” the virus to others, and that the benefits of reducing social isolation and relaxing some quarantine measures for fully vaccinated individuals may outweigh the residual risk of passing on COVID-19 or becoming ill.

An individual is considered “fully vaccinated” two weeks after they have either received the second dose of the 2-dose series of the Pfizer or Moderna vaccine or two weeks after they have received the single-dose Johnson and Johnson vaccine.

Per the CDC, fully vaccinated individuals in a non-healthcare setting:

  1. Can visit with other fully vaccinated individuals indoors and in private settings without wearing masks or physical distancing; and,
  2. Can visit with unvaccinated individuals from a single household at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing; and,
  3. Need not quarantine and test after a known exposure so long as he or she remains asymptomatic.

However, the CDC states that fully vaccinated people should not visit with others or attend a gathering if they have tested positive for COVID-19 in the prior 10 days or are experiencing COVID-19 symptoms, regardless of the vaccination status of other people at the gathering.

As for fully vaccinated employees that work in non-healthcare congregate settings (such as correctional and detention facilities and group homes) and other high-density workplaces (such as meat and poultry processing and manufacturing plants), the CDC said they need not quarantine after an exposure so long as no symptoms present. However, for this group the CDC still recommends testing following an exposure and continued compliance with any routine workplace screening programs in place. Significantly, the CDC explained that the agency is still learning how long the COVID-19 vaccine may protect someone and how well vaccines protect against emerging variants.

Fully vaccinated individuals should continue preventive measures like masking and physical distancing when visiting with unvaccinated individuals who are at increased risk for severe COVID-19 or who have an unvaccinated household member at increased risk for severe COVID-19. In addition, the CDC recommends a fully vaccinated individual get a COVID-19 test if he or she experiences COVID-19 symptoms.

Further, the CDC advised fully vaccinated individuals should continue to wear well-fitted masks, maintain physical distance from others while in public or visiting with unvaccinated people from multiple households and avoid poorly ventilated spaces and medium- and large-sized in-person gatherings.  The CDC also said that vaccinated people should follow CDC and health department travel requirements and recommendation and follow guidance issued by individual employers.

What does this mean for employers?  The CDC’s pronouncement that so long as they experience no symptoms, fully vaccinated employees do not need to quarantine after COVID-19 exposure is good news indeed and may significantly alleviate concerns over staffing.  But employers may also begin to face increasing pressure from vaccinated employees to relax workplace protocols such as mask mandates.  For the time being, it may be best to tread cautiously when responding to such requests.

Keep in mind that the CDC’s guidance does not override any existing state and local requirements.  Many states have already issued modified orders and standards that relax post-exposure quarantine requirements for those who are vaccinated or that even rescind mask mandates.  But other states have yet to take action.  In addition, the federal Occupational Safety and Health Administration (OSHA) guidance directs employers to require masks in the workplace, and employers around the country are waiting to see whether OSHA will issue a COVID-19 emergency temporary standard in the next few days.  If issued, this standard may or may not address masks in the workplace or incorporate the CDC’s recommendations. Some OSHA state plans already have COVID-19 Emergency Temporary Standards that require masks in the workplace irrespective of vaccines and may have specific rules regarding quarantine also irrespective of vaccines and which may also differ from CDC guidance. Employers should make sure to check any OSHA rules specific to their states and consult with counsel before changing any workplace requirements.

Given the rapidly changing health and regulatory environment, we expect this guidance to continue to evolve.   Employers may want to hold off for now on modifying their existing COVID-19 workplace safety policies.

An employer’s past leniency in applying and enforcing its attendance policy did not contradict the employer’s later position that regular worksite attendance was required for employment, the U.S. Court of Appeals for the Fifth Circuit has held. Weber v. BNSF Railway Co., No. 20-10295 (5th Cir. Feb. 24, 2021).

This provides guidance for employers unsure whether accommodating an employee’s absences creates a “precedent” making it harder in the future to establish that regular attendance is an essential job function. The Fifth Circuit has jurisdiction over Louisiana, Mississippi, and Texas.

Background

Jay Weber was employed as a train dispatcher by BNSF Railway until his termination in 2016. The employer maintained an attendance policy that prohibited “excessive absenteeism,” which it defined as excessive absences that “disrupts the regular working schedule of other dispatchers in their assigned office.” It maintained a progressive discipline policy under which the gravity of disciplinary action increased with the number of attendance violations.

Throughout his tenure, Weber violated BNSF’s attendance policy many times, leading to disciplinary action. Prior to 2014, BNSF did not consistently apply its attendance policy, but, in 2014, it implemented a new enforcement strategy that required more accountability for violating the attendance policy.

In 2015, Weber had a seizure and was diagnosed with epilepsy. BNSF placed him on a three-month leave of absence because he could not safely perform his job as a dispatcher. When Weber’s doctor cleared him to return to work, Weber sought two accommodations: (i) time off to attend doctor visits to monitor his epilepsy; and (ii) time off when he experienced “triggering events” that may increase the risk of seizure, such as sleeping fewer than four hours.

While BNSF was lenient toward absences in the past, it put Weber on notice that violations of BNSF’s attendance guideline “could result in further disciplinary action.” Under the employer’s progressive discipline policy, the company disciplined Weber for excessive absenteeism and later terminated him on May 18, 2016.

Weber sued BNSF under federal and state law, arguing that the employer failed to accommodate his absences because regular worksite attendance was not an essential function of his job since BNSF was previously lenient with his attendance.

The district court granted summary judgment for BNSF, determining that the evidence raised no dispute of fact and that Weber failed to show he was a “qualified individual with a disability.” Weber appealed.

Attendance is Essential

The Fifth Circuit Court affirmed summary judgment in BNSF’s favor. It concluded that regular worksite attendance, in fact, was an essential function of most jobs.

In determining whether a function is essential, the court looked at the employer’s judgment as to which functions were essential and the consequences of not requiring an employee to perform those functions. Against this standard, the court highlighted several factors based on BNSF’s policies and practices demonstrating that regular attendance was an essential function of Weber’s position. Similarly, the court found that the “consequences” factor also supported a determination that regular worksite attendance was essential to Weber’s position, because the position was essential to operations and his failure to regularly show up to work forced BNSF to find coverage.

As to Weber’s argument related to BNSF’s prior leniency with attendance, the court explained that, while BNSF was lenient in the past, it had now opted for more strict enforcement and provided employees with notice of this change. The court, therefore, did not have to ignore the evidence that regular worksite attendance was essential where there was evidence the employer changed its enforcement practices regarding attendance.

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Generally, regular attendance at work is considered an essential function of employment. Employers that have a past practice of accommodating employee absences may not necessarily be precluded from arguing that regular worksite attendance is an essential function in the future, where they can show that, in their judgment, words, policies, and practices, the employer has considered regular attendance to be essential to the job in question.

Job-protected time off remains an accommodation that employers must consider. As employers continue receiving requests to excuse absences as an accommodation, it is important to ensure that there is strict adherence to attendance policies, that employees are on notice of attendance policies, and that employers implement and consistently enforce such policies.

Jackson Lewis attorneys are available to answer inquiries regarding this case and other workplace developments.

With the recent expansion of the California Family Rights Act (CFRA), employers who previously were not covered under CFRA now find themselves having to navigate the murky waters of the law.  From the basics such as who exactly is eligible for CFRA leave to the more complicated issues dealing with how CFRA works for pregnant employees, employers without experience in these matters could find themselves stepping on a proverbial land mine.

Read the full article at Jackson Lewis California Workplace Law Blog.

California’s Department of Fair Employment and Housing (DFEH), the agency charged with administering California’s employment discrimination statute and regulations, has updated its COVID-19 guidance for employers. The updates cover many issues that employers had been struggling with during the pandemic, including:

  • COVID-19 Inquiries and Protective Equipment
  • Employees with COVID-19 Symptoms or Infection
  • Job-Protected Leave
  • Reasonable Accommodations for Employees with Disability/Vulnerable Populations
  • Vaccination

Some of the information that employers may want to take special note of include:

COVID-19 Inquiries

The DFEH states that employers may ask employees if they are experiencing COVID-19 symptoms, which is also required under many of California’s local health orders. Employers can also ask an employee why they did not report to work if they suspect the absence was for a medical reason.  However, employers must keep confidential any illness or medically related information disclosed by the employee.  The guidance provides that employers may also take an employee’s temperature or require an employee to submit to a COVID-19 viral test (but not an antibody test).  Employers should note that these allowances are based on the current state of the pandemic and may change as the circumstances continue to develop.

Employees with COVID-19 Symptoms or Infection

Employers are permitted under the current guidance to ask if employees have COVID-19 symptoms, so long as the information is kept confidential. Moreover, employers may send employees home if they have COVID-19 symptoms or test positive for COVID-19. Employers should review the guidance from California’s Labor Commissioner, the agency that enforces wage and hour matters, regarding sending employees home due to COVID-19 symptoms or similar.

Job-Protected Leave

The DEFH reminds employers that employees may qualify for leave under the California Family Rights Act (CFRA) either to care for a family member with COVID-19 or for their own illness if it results in inpatient care or requires continuing treatment or supervision by a health care provider. As with other requests for CFRA leave, employers may require medical certification. However, the DFEH states that “[i]n a pandemic, employers must use their judgment and recommendations from public health officials to waive certification requirements when considering and granting leave requests.”

Vulnerable Populations

The FAQs discuss when reasonable accommodations must be considered for members of vulnerable populations. The DFEH guidance distinguishes between reasons for which someone may be a member of a vulnerable population. If an employee is a member of a vulnerable population because of a disability, then absent an undue hardship, the employer must provide a reasonable accommodation.  However, if the employee is a member of a vulnerable population because of age alone, there is no obligation to accommodate the employee.  The DFEH noted that age is not a disability.

Vaccination

The FAQs provide that an employer may require employees to receive an FDA-approved COVID-19 vaccine if certain criteria are met, including:

  1. The employer may not discriminate against or harass employees or job applicants on the basis of protected characteristics.
  2. The employer must provide reasonable accommodations as required by applicable law.
  3. The employer may not retaliate against anyone for engaging in protected activity such as requesting a reasonable accommodation.

The FAQs also provide that employers who have a mandatory vaccine program may ask for “proof” of vaccination.  If employers make such requests, the FAQs provide that employers “may wish to instruct their employees or applicants to omit any medical information from such documentation.”  Employers are reminded that an individual’s vaccination status must be kept confidential.

Jackson Lewis continues to track federal, state, and local guidance pertaining to COVID-19 and the workplace. If you have questions about the DFEH guidance or related issues, contact a Jackson Lewis attorney to discuss.

Though employers may feel like California just wrapped up its legislative session for 2020, the 2021 legislative session is already in full swing. February 19 was the last day for the proposal of new bills. However, Assembly members and Senators have until September to revise and amend proposed bills before submitting them to the Governor.

It is hard to predict which bills will make their way to Governor Gavin Newsom’s desk in the Fall, however here are bills relating to leave that employers should be watching.

Read the full article on Jackson Lewis California Workplace Law Blog.

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.