On September 9, 2020, Governor Newsom signed Assembly Bill 1867 (“AB 1867”) which has three new laws combined into one bill. The bill covers supplemental sick leave requirements, a pilot mediation program for small employers, and mandated hand washing requirements for food workers.

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

As safe in-person voting became an issue in other states, California Governor Gavin Newsom issued an executive order requiring each county’s election officials to send vote-by-mail ballots to registered voters for the November election. The Governor also issued an executive order requiring counties to provide early polling locations for at least three days prior to election day. In light of these initiatives to ensure wide availability of voting options in California, employers may question if they still are required to provide time during the workday for their employees to vote?

Under California Election Code § 14000, employers must provide two hours of paid time for employees to vote, if the employee does not have sufficient time outside of working hours to vote in a statewide election. This requirement applies to private and public employers in the state. While this year there are expanded opportunities for voting, employers must still provide leave as needed by employees pursuant to the California Election Code. There is no exception under the Code due to the availability of mail-in ballot or early voting options.

In order to take leave to vote, employees must request the time at least two working days’ notice prior to the time off for voting desired.

According to the California Election Code, employers must also post a notice of voting time requirements at least 10 days before an election conspicuously at the place of work, if practicable, or elsewhere where it can be seen as employees come or go to their place of work. Employers can satisfy this requirement by posting a copy of the “Time Off to Vote” notice which is found on the Secretary of State’s website.  Employers that are largely telecommuting due to COVID-19 may consider alternate methods of communication, such as providing notice to remote employees via email or through their company intranet.

If you need assistance ensuring compliance with local or federal laws pertaining to elections and voting, including time off requirements contact a Jackson Lewis attorney to discuss.

For many, the start of school looks different this year: from all virtual, to hybrid, to parent’s choice.  Employers required to provide leave under the Federal Families First Coronavirus Act (“FFCRA”) may be wondering how to administer FFCRA leave under this new regime.

Not to be out-classed, the U.S. Department of Labor (“DOL”) issued new FAQs regarding use of FFCRA leave in these new school opening arrangements and clarified when FFCRA leave is not available.

The new FAQs – numbers 98, 99, and 100, respectively, provide guidance. Specifically:

  • An employee may take FFCRA leave on a child’s remote learning days in a hybrid learning method: Some schools are using a “hybrid” or “alternate day” attendance method.  Generally, this is when a school is open every day, but students are only on-site some days and remote learning on other days.  According to the DOL, an employee is eligible to take paid leave under the FFCRA on days when the employee’s child is not permitted to attend school in person and must instead engage in remote learning.  The DOL clarifies that this leave can be taken as long as the employee is actually caring for the child during that time and only if no other suitable person is available to do so.
  • FFCRA leave is not available to take care of a child whose school is open for in-person attendance, but the employee chose a remote learning option for the child:  Some schools provided parents with a choice between having their child attend school in-person or participate in a remote learning program.  If a remote learning program was chosen, FFCRA leave is not available because the school is not “closed” due to COVID-19 reasons.  Rather, the child is home because the employee chose to have the child remain home. However, the DOL provides the caveat that if, because of COVID-19, an employee’s child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, the employee may be eligible to take paid leave to care for the child.
  • If the school year is beginning solely under a remote learning program due to COVID-19 concerns, employees may take FFCRA leave:  An employee may take paid FFCRA leave while the child’s school remains closed and only remote learning is available, because the school is closed in this scenario.  However, if the school reopens, whether FFCRA leave is available will depend on the type of reopening, as discussed above.

The full DOL FFCRA FAQs can be found here.  The DOL periodically updates these FAQs, so this link should be checked often.

 

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® 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 database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

Under the Washington COVID-19 Food Production Workers Paid Leave Program, no food production employer in Washington may operate from August 18, 2020, to November 13, 2020, unless the employer provides its workers with paid leave for certain qualifying events.

The Program was created by Governor Jay Inslee under Proclamation 20-67.

Read the full article here. 

Read about a similar leave created in California on Jackson Lewis California Workplace Law Blog

On August 8, 2020, Wanda Vázquez Garced signed into law an amendment to the Puerto Rico Working Mothers Act. Under the amendment, adoption leave benefits were extended to female employees adopting minors 6 years old or older. Now, these adopting mothers will have a paid leave of 5 weeks. The leave will begin from the date the child is received in the family nucleus. This amendment does not alter the adoption leave that was already provided for in the Working Mothers Act providing 8 weeks of paid leave to mothers adopting a child 5 years old or younger, not enrolled in school. Employees must provide 30 days’ notice to their employer of their leave request and intention to adopt a minor, as well as their return to work plans.

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® 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 database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

The U.S. Equal Employment Opportunity Commission (EEOC) issued two technical assistance documents on August 5, 2020, addressing accommodation issues under the Americans with Disabilities Act (ADA) for employees who use opioid medications or may be addicted to opioids. They provide employers insight into how the EEOC envisions information exchange and accommodation efforts. Read more.

Shortly after the Department of Labor issued its FFCRA regulations, the state of New York filed a lawsuit challenging some of the provisions.  Today (four months after the regulations went into effect, and just five months before the FFCRA is set to expire), the federal district court in New York struck down four provisions in the regulations.  The four provisions struck down include:

  • the definition of who qualifies for the healthcare provider exemption;
  • the exclusion from benefits of employees whose employers do not have work for them;
  • the requirement that employees secure consent for intermittent leave for certain qualifying reasons; and
  • the requirement that documentation be provided before taking leave.

The court let stand the remaining provisions of the DOL’s regulations.

The court’s decision leaves open a lot of questions for employers who are trying to comply with the law (and also demonstrates the inherent issues when congress and federal agencies try to rush something through).  Employers who have been following the regulations, may now find themselves at risk.   And the decision leaves employers left to surmise important questions such as what definition of healthcare provider should be used under the FFCRA, and whether employees on furlough or who otherwise do not have work available (regardless of whether the employee is unable to work due to a COVID issue) are eligible for pay.

The court’s decision creates new risks for employers trying to comply.  For public employers and employers with less than 500 employees, the rules have changed.  Contact your Jackson Lewis attorney for assistance in developing an approach that helps minimize the risk for your organization.

The U.S. Department of Labor (“DOL”) recently issued additional clarification on its FAQs and guidance regarding the FMLA and the FFCRA in the context of the COVID-19 pandemic.  Some highlights include:

Telemedicine Visits Are “In-Person” Visits with a Healthcare Provider under the FMLA

Telemedicine visits (those medical appointments that are conducted by remote video conference via computers or mobile devices) will be considered as “in-person” visits with a health care provider under the FMLA.  However, to be considered an “in-person” visit, the telemedicine appointment must:

  • include an examination, evaluation, or treatment by a health care provider;
  • be performed by video conference;
  • and be permitted and accepted by state licensing authorities.

The DOL reasons that this approach serves the public’s interest because health care facilities and clinicians are under advisories to prioritize urgent and emergency visits and to preserve personal protective equipment and patient-care supplies.  However, the DOL notes that telemedicine visits will be considered “in-person” visits only until December 31, 2020.

COVID-19 Tests May be Required Before Returning to Work From FMLA Leave

The DOL also provides updated guidance on whether an employer can require employees returning from FMLA leave to get a COVID-19 test before returning to work.  The DOL explains that the FMLA does not prohibit an employer’s return-to-work COVID-19 testing requirement, as long as the testing requirement applies to all employees returning from any type of leave, whether FMLA or non-FMLA.  Note, however, that an employer should also consider any applicable state law or order that may impose restrictions on when COVID-19 testing is permitted and what types of COVID-19 tests are permitted.

DOL Provides Insights into Reopening and Return to Work Scenarios under the FFCRA

The DOL also added additional questions and answers to the FAQs on the Families First Coronavirus Response Act (“FFCRA”).  In these new FAQs, the DOL explains:

  • When an employee returns to work from FFCRA leave and there are lingering concerns regarding whether the employee is returning to work too soon and could potentially expose others to COVID-19, an employer may:
    • Consider temporarily reinstating the employee to an equivalent position with less co-worker interaction or require the employee to telework, and
    • Require an employee comply with job requirements that are unrelated to being out on FFCRA, such as a general requirement that any employee be tested for COVID-19, or telework, if the employee has interacted with a COVID-infected person.  Such a requirement must apply to all employees.
    • The DOL cautions that an employer may not require an employee to telework or be tested for COVID-19 simply because the employee took FFCRA leave.
  • The FFCRA emergency paid sick leave is limited to a total of 80 hours, even if an employee took FFCRA before being furloughed and is now returning to work from furlough.  Any balance under 80 hours of emergency paid sick leave can be taken through December 31, 2020 for qualifying reasons.
  • If an employee took expanded FMLA prior to a furlough, an employee is still entitled to any balance of FMLA leave under 12 weeks upon returning to work after a furlough.
  • An employer may not extend an employee’s furlough because the employee will need to take FFCRA leave to care for the employee’s child upon return to work.  The DOL reminds employers that they may not discriminate or retaliate against employees (including prospective employees) for exercising or attempting to exercise rights under the FFCRA.

Links

Links to the updates discussed in this blog are below:

COVID-19 and the Family and Medical Leave Act Questions and Answers (See Questions 12 and 13 for more information on the above discussion.)

COVID-19 and the American Workplace (FFCRA FAQ) (See Questions 94-97 for more information on the above discussion.)

Employers are encouraged to continue to check for updates to DOL FAQs and guidance, which is continually evolving during this COVID-19 pandemic.

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® 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 database that is developed and updated continually by our Disability, Leave & Health Management attorneys.