As we previously reported, Allegheny County, Pennsylvania enacted a paid sick leave law (the “County Ordinance”) on September 15, 2021 requiring employers with 26 or more employees to provide paid sick leave. Under the County Ordinance, covered employers have an obligation to notify employees in writing that they are entitled to paid sick time, the amount of paid sick time, and the terms of its use. The County Ordinance further provides that retaliation against employees who request or use paid sick time pursuant to the leave law is prohibited and that each employee has the right to file a complaint if paid sick time is denied by the employer or the employee is retaliated against for requesting or taking paid sick time.

Allegheny County recently updated its website to include the notice poster, guidelines, and FAQs for the County Ordinance, as well as a complaint form which can be completed and submitted by employees online.

According to the County, the effective date of the County Ordinance is December 15, 2021.  The County also notes that although the County Ordinance is active and enforceable, fines will not be imposed for one year after the effective date.

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 DLHM team.

On December 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) added a new section, COVID-19 and the Definition of “Disability” Under the ADA/Rehabilitation Act, to its COVID-19 guidance. The updated guidance describes how the ADA’s three-part definition of disability (actual disability, record of disability or being regarded as an individual with a disability) applies to COVID-19 and the resulting impact on employers’ obligations under the law.

Much of the updated guidance focuses on situations when COVID-19 is, or is not, an actual disability. For example, the guidance confirms that an individual with COVID-19 who is asymptomatic or who experiences “mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks – with no other consequences – will not have an actual disability within the meaning of the ADA.” However, the updated guidance clarifies that situations involving more serious symptoms, particularly those expected to last several months, may constitute an actual disability under the ADA. In addition, the updated guidance confirms that conditions that are caused or worsened by COVID-19 can be an actual disability. The guidance reiterates that only individuals with an actual disability or record of a disability are eligible for reasonable accommodations (assuming the disability requires an accommodation and there is no undue hardship on the employer).

The EEOC’s updated guidance also raises key considerations for employers on the risks of potential “regarded as” disability claims.

Specifically, question N.8 of the EEOC’s updated guidance confirms that an employer does not automatically violate the ADA by taking an adverse action against an individual because they have COVID-19. “The ADA’s “direct threat” defense could permit an employer to require an employee with COVID-19 or its symptoms to refrain from physically entering the workplace during the CDC-recommended period of isolation, due to the significant risk of substantial harm to the health of others.” The guidance goes on to caution, however, that employers risk violating the ADA if they exclude an employee from the workplace based upon “myths, fears, or stereotypes” after the threat has passed (i.e., when an individual is no longer infectious and medically cleared to return to work).  The EEOC’s updated guidance highlights the need for employers to ensure their policies are consistent with current guidance issued by the CDC.

In addition, employers should take note of the EEOC’s reminder at question N.14 that the ADA’s requirements with respect to disability-related inquiries, medical exams, confidentiality of medical information, retaliation and interference apply to all applicants and employees regardless of whether they have a “disability” as defined by the ADA.

As employers work to implement policies and collect information regarding employees’ vaccination status, employers should be mindful of the guidance issued by the EEOC.

At the start of 2021, California’s family and medical leave law, the California Family Rights Act (CFRA), expanded its coverage to apply to smaller employers—from employers with 50 or more employees to those with just 5 or more employees.  More recently, during the 2021 legislative session, California’s governor signed legislation to add “parent-in-laws” under the coverage of care for a family member.

Due to the continued expansion of CFRA, employers with California employees should refresh themselves with the basics as there are significant differences from the federal Family Medical Leave Act (FMLA).

Covered Employers

Employers with 5 or more employees must provide CFRA leave to eligible employees. Unlike FMLA there is no qualification as to where the employees work, e.g., within a 75-miles radius.

Covered Employees

Employees are eligible for leave for covered reasons under CFRA if they have been employed by the employer for at least 12 months and worked 1,250 hours of service within the last 12 months.

Covered Reasons for Leave

Under CFRA, eligible employees may take up to 12 weeks of unpaid, job-protected leave for the following reasons:

  • to bond with a newborn child or placement of a child in an employee’s home for foster care or adoption;
  • to care for a seriously ill family member;
  • to recover from a worker’s own serious illness (except pregnancy-related disability); or
  • to address qualifying exigencies arising out of a family member’s deployment.

The definition of a family member under CFRA includes:

  • Child, including adult children
  • Parent
  • Parent-in-law
  • Spouse or registered domestic partner
  • Grandparents
  • Grandchildren

Reinstatement Rights

After an employee completes a CFRA leave they must be reinstated to the same or comparable position. The position must be the same or close to the employee’s position before leave, meaning a position that is virtually identical to the employee’s original position in terms of pay, benefits, and working conditions, including privileges, prerequisites, and status.

If your business needs assistance with ensuring compliance with the California Family Rights Act and related leave issues, contact a Jackson Lewis attorney to discuss.

Most employees in San Francisco (and throughout California)  receive one hour of paid sick leave for every 30 hours worked.  The San Francisco Board of Supervisors is now considering an ordinance that would broaden the availability of paid sick leave to domestic workers by establishing a “portable” paid sick leave system.

The “Domestic Workers’ Equal Access to Paid Sick Leave Through a Portable System” ordinance would require any employer of domestic workers, including individual households, to provide their workers with paid time off through a portable benefits system.

Read the full coverage at Jackson Lewis’ California Workplace Law Blog.

The U.S. District Court for the Western District of Louisiana has granted a preliminary injunction enjoining the Centers for Medicare and Medicaid (CMS) from enforcing its COVID-19 vaccine mandate nationwide. Louisiana et al. v. Becerra et al., No. 3:12-CV-03970 (W.D. La. Nov. 30, 2021). This injunction takes immediate effect. Read more here.

On November 19, 2021, the City of Philadelphia announced all City workers must “complete a full schedule of COVID-19 vaccination(s)” by January 14, 2022, or risk losing their jobs. This mandate comes following the City’s announcements requiring all Philadelphia healthcare workers, college students, faculty and staff to be vaccinated by October 15, 2021 and all non-union workers to be fully vaccinated by December 1, 2021.

Read our full coverage here.

On November 18, 2021, D.C. Mayor Muriel Bowser signed the “COVID Vaccination Leave Emergency Amendment Act of 2021” and it has now been enacted. Accordingly, the Emergency Act will remain in effect for not more than 90 days, or until February 16, 2022.

Read our full coverage here.

In a clear response to the recent Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) issued by the Biden Administration, Iowa, Tennessee, Utah, and Florida recently have joined the expanding list of states passing laws curtailing the use of COVID-19 vaccine mandates by private employers.

More than 10 states have now passed such laws, even as the OSHA ETS has been stayed temporarily by the U.S. Court of Appeals for the Fifth Circuit and a related, consolidated lawsuit by several state attorneys general and some private employers challenging the ETS is now scheduled to be heard by the Sixth Circuit.

Read our full coverage here.

The EEOC has recently updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws to include a section on Retaliation and Interference.

The update to EEOC’s guidance reviews anti-retaliation protections under the federal equal employment opportunity (EEO) laws including Title VII of the Civil Rights Act (Title VII) and Title I of the Americans with Disabilities Act (ADA). The updated guidance provides some reminders for employers in the COVID-19 context:

  1. Current employees (including full-time, part-time, probationary, seasonal, and temporary), job applicants, and former employees are protected by the anti-retaliation provisions of the EEO laws. In addition, anti-retaliation protections apply regardless of an applicant’s or employee’s citizenship or work authorization status.
  2. Retaliation includes an employer’s action in response to an activity protected under the EEO laws that could deter a reasonable person from engaging in protected activity. However, usually, retaliation “would not include a petty slight, minor annoyance, or a trivial punishment.”
  3. An employee who has engaged in protected EEO activity may still be subject to discipline for legitimate reasons if the employer is acting based on non-retaliatory and non-discriminatory reasons that would otherwise result in discipline.
  4. The ADA prohibits not only retaliation for protected EEO activity but also “interference” with an individual’s exercise of ADA rights, such as asking for a reasonable accommodation.

These considerations under EEO laws which are always good to remember, are especially important as employers cope with unique situations with accommodation requests and high tensions in the workplace due to COVID-19.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations impacting the workplace.  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 COVID-19 team.