The CDC announced today that it is updating its quarantine and isolation guidance. For people with COVID-19, the isolation period was reduced from ten days to five days as long as the individual has no symptoms or their symptoms are resolving after five days. Importantly, the revised isolation guidance does not recommend an individual have a negative COVID-19 test before ending their isolation period after day 5.

For people who have been exposed through close contact with someone infected with COVID-19, whether an individual is recommended to quarantine is no longer dependent on vaccination status alone.  Rather, whether quarantine is recommended now also depends on whether an individual has received a booster and how long it has been since an individual completed their vaccination series.  For people who are unvaccinated or received their second mRNA dose (Pfizer or Moderna) more than 6 months ago or the J&J vaccine more than 2 months ago, and have not received a booster shot, the CDC now recommends quarantine for 5 days, followed by 5 days of masking. For people who have received their booster shot or who have recently completed their primary vaccine series, the CDC does not recommend such individuals quarantine following an exposure, but the CDC does recommend they wear a mask around others for 10 days.

The CDC also recommends that everyone who has been exposed to COVID-19, regardless of vaccination status, be tested on day 5 following the exposure if possible. Finally, everyone who either has COVID-19 or was exposed to someone with COVID-19 should wear a well-fitted mask for a full 10 days.

Employers should review their COVID-19 policies and protocols, communicate any changes to their employees and be prepared to answer employees’ questions. Employers are reminded to consider states and local health authorities which may have different guidelines.

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

As we speed closer to January 1, the date when payments will begin under Connecticut’s Paid Family and Medical Leave Act and the effective date of changes to Connecticut’s Family and Medical Leave Act (CT FMLA), below are some updates and considerations for employers.

Paid Leave Applications

On December 1, the applications process opened for Connecticut Paid Leave (CPL) benefits related to leave dates on or after January 1, 2022.  If an employee submits a CPL benefits claim, the employee is responsible for providing an Employment Verification form to the employer.  The employer then must complete and return the form within 10 days by email or fax to the Paid Leave Authority’s claims administrator, Aflac.  Once employees have submitted all required documentation, they will be notified within 5 days of the disposition of their claim. It is anticipated that employers will be notified at the same time by the method selected on the Employment Verification form (email or U.S. mail).

Connecticut FMLA Changes

Effective January 1, the existing CT FMLA will change dramatically.  Many employers who previously were not covered by the law will now be diving into leave administration.  The Connecticut Department of Labor regulations regarding these changes are pending.  Once released, they will be subject to a 30-day comment period before becoming final. Per the amended CT FMLA statute, the regulations are due to be adopted by January 1, 2022.

Things to Consider Now 

  • As soon as possible, finalize any remaining decisions about how employer-paid benefits will interact with Connecticut Paid Leave benefits. Communicate these decisions to employees, including any requirement that an employee apply for Paid Leave in order to access company-provided paid benefits for a covered reason.
  • Consider waiting to roll out new or updated CT FMLA policies and forms until the CT DOL regulations are finalized.  In the interim, employers should communicate changes to the law, explain leave entitlements to employees seeking leave after January 1, and make modifications as needed to current forms and communications.
  • Consider any steps needed to appropriately track CT FMLA and Federal FMLA (if applicable).  For now, we recommend tracking the two “extra” weeks available under CT FMLA for an incapacity during a pregnancy separately from the general 12-week CT FMLA entitlement. Employers are not required to track Paid Leave usage, but may wish to do so.
  • Identify the individual to whom employees must direct Employment Verification forms and advise when they have applied for leave and been approved for benefits.
  • Employers will need to carefully consider how to handle current continuous CT FMLA leaves that run from 2021 into 2022.

Jackson Lewis attorneys will continue to track developments and provide updates. If you have any questions, contact the Jackson Lewis attorney with whom you regularly work.

The U.S. Court of Appeals for the Sixth Circuit has lifted the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing for employers with at least 100 employees. In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, Nos. 21-7000, et al. (6th Cir. Dec. 17, 2021).

Multiple parties, including 27 states, have filed emergency motions with the U.S. Supreme Court to block the ETS.

Read more on this important development.

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.