The Chicago City Council amended its Paid Sick Leave Ordinance (PSLO) to clarify and expand the bases to take paid leave and to create a new action for wage theft. The wage theft provisions in the amended  PSLO became effective on July 5, 2021, and the paid sick leave amendments will take effect on August 1, 2021. Read more about these changes from our Illinois colleagues.

Beginning July 25, 2021, employees can use Washington Paid Family and Medical Leave (WPFML) to care for more people.

The law originally permitted employees to get paid leave to help address the serious health condition of any “family member.” That term was defined to include:

  • “Child,” including biological, adopted, or foster child, a stepchild, or a child to whom the employee stands in loco parentis, is a legal guardian, or is a de facto parent, regardless of age or dependency status;
  • “Parent,” including biological, adoptive, de facto, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or state registered domestic partner, or an individual who stood in loco parentis to an employee when the employee was a child;
  • Grandchild;
  • Grandparent;
  • Spouse, child’s spouse, or state registered domestic partner of an employee; and
  • Sibling.

Under a new law signed by Governor Jay Inslee, SB 5097, the term “family member” in the WPFML has been expanded to include “any individual who regularly resides in the employee’s home or with whom the relationship creates an expectation that the employee care for the person, and that individual depends on the employee for care.” The term “family member” does not include a person who simply resides in the same home with no expectation that the employee care for the individual.

This change is part of a growing trend in Washington and elsewhere embracing paid family and medical leave.

If you have questions or need assistance updating policies and procedures to comply with the new law, please reach out to the Jackson Lewis attorney with whom you regularly work.

On July 26, 2021, the U.S. Department of Health and Human Services (DHHS) and the U.S. Department of Justice (DOJ) issued guidance explaining that “long COVID” can be a disability under Titles II and III of the Americans with Disabilities Act (ADA), which apply to state/local government and public accommodations respectively, Section 504 of the Rehabilitation Act of 1973 (Section 504), and Section 1557 of the Patient Protection and Affordable Care Act (Section 1557).

While most individuals recover from COVID-19 within a couple of weeks, some individuals have ongoing symptoms or experience new/returning symptoms post-COVID-19 infection. Citing to the Centers for Disease Control and Prevention (CDC), the guidance states that people with long COVID have a range of symptoms that can last weeks or months after they are infected with the virus. Common symptoms of long COVID include: tiredness or fatigue; difficulty thinking or concentrating (“brain fog”); shortness of breath or difficulty breathing; headache; headache; dizziness on standing; heart palpitations; chest pain; cough; joint or muscle pain; depression or anxiety; fever; and loss of taste or smell. In some cases, people experience damage to organs, including the heart, lungs, kidneys, skin and brain.

Although the guidance acknowledges that long COVID is not always a disability, it indicates that an individualized assessment is necessary to determine whether a person’s condition or symptoms substantially limit a major life activity. The guidance also provides examples of when long COVID could meet that definition under applicable law.

In addition, the guidance outlines examples of reasonable modification or accommodations that may be necessary for individuals whose long COVID qualifies a disability, such as providing additional time on a test for a student who has difficulty concentrating or modifying procedures so a customer who finds it too tiring to stand in line can sit down without losing their place in line, among other things.

Obligations under Title I of the ADA, which applies to private employers, are beyond the scope of the guidance. However, the definition of “disability” is the same under each title of the ADA. Also, the Office of Disability Employment Policy (ODEP) at the U.S. Department of Labor (DOL) recently launched a new webpage that includes resources on long COVID, such as information on requesting and providing workplace accommodations for individuals with long COVID. In addition, ODEP released a blog discussing the impact of long COVID on workers with disabilities. DHHS, DOJ, and DOL/ODEP do not have jurisdiction over employers for purposes of ADA compliance, and the guidance is informal. The U.S. Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing the employment provisions of the ADA, has not specifically addressed long COVID on its COVID resource page. Nevertheless, the recent guidance from other agencies may preview how EEOC will view claims related to long COVID.

Can employers mandate vaccines? The Department of Justice’s Office of Legal Counsel (OLC) says they can, but before employers do, they should consider the many legal and practical risks.

On July 26, 2021, the OLC issued an opinion (dated July 6, 2021) stating that the COVID-19 vaccinations’ Emergency Use Authorization (EUA) status under the Food, Drug, and Cosmetics Act (FDCA) does not prevent public and private entities from imposing vaccine requirements. However, the OLC expressly states that the opinion does not address whether any other federal, state, or local laws or regulations might restrict the ability of an entity to mandate the vaccine or adopt any particular vaccination policy.  Read our full article here.

The CDC is now recommending that everyone – including fully vaccinated individuals – wear masks in indoor public settings in all areas with substantial and high transmission of the COVID-19 virus and get tested following exposure to someone with suspected or confirmed COVID-19. The new CDC guidance also recommends universal indoor masking for all teachers, staff, students, and visitors to K-12 schools, regardless of vaccination status.

In its latest Interim Public Health Recommendations for Fully Vaccinated People, the CDC explains that while infections, even with the Delta variant, happen only in a small proportion of people who are fully vaccinated, “preliminary evidence suggest that fully vaccinated people who become infected with the Delta variant can spread the virus to others.”

In a media briefing today, CDC Director Rochelle Walensky explained that the CDC made this decision based on evidence from recent investigations of outbreaks involving the Delta variant which is now the predominant variant in the U.S.  These investigations have shown that on the rare occasion that a vaccinated individual is infected with the Delta variant, that vaccinated person can have as much viral load as a non-vaccinated individual infected with the Delta variant.

New CDC Recommendations For Fully Vaccinated Individuals in Non-Healthcare Settings

As a result, the CDC recommends new steps for fully vaccinated people in non-healthcare settings to protect themselves from being infected with the Delta variant and potentially spreading it to others:

  • Wear a mask in public indoor settings if they are in an “area of substantial or high transmission.” The CDC suggests that fully vaccinated people might choose to mask, regardless of transmission level, particularly if they or someone in their household is immunocompromised or at increased risk for severe disease or if someone in their household is unvaccinated.
  • Get tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19, regardless of whether they have symptoms, and wear a mask in public indoor settings for 14 days after exposure or until a negative test result.

The CDC continues to recommend that vaccinated individuals isolate and get tested if they experience symptoms of COVID-19 and isolate if they test positive.

Healthcare industry employers should continue to follow CDC’s Healthcare Infection and Prevention Control Recommendations and, where applicable, OSHA’s COVID-19 Healthcare Emergency Temporary Standard.

What Areas Have Substantial or High Transmission?

The CDC’s color-coded COVID Data Tracker shows the level of transmission by county.  Red counties have “High” transmission and orange counties have “Substantial” transmission.  The data tracker is updated daily and is based on total new cases per 100,000 persons in the past 7 days and percentage of NAATs (a type of viral diagnostic test) that are positive during the past 7 days.  Currently, 63.45% of US counties have either substantial or high rates of community transmission.

What Does This Mean For Employers?

The CDC information is just guidance; it does not mandate activity.  However, it does provide recommendations for individuals and businesses to follow and OSHA and many states look to CDC for their own recommendations.  In its  guidance for non-healthcare facilities updated on June 10, 2021, OSHA relied on CDC’s guidance for fully vaccinated individuals when it concluded that “most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure” and focused its guidance on protecting unvaccinated and otherwise at-risk workers.  At that time, the CDC was only recommending that non-vaccinated individuals wear face coverings and OSHA aligned its guidance with the CDC recommending that unvaccinated and otherwise at-risk workers use face coverings or surgical masks, unless their work tasks require a respirator or other PPE. Given OSHA’s reliance on CDC guidance for non-healthcare workplaces, OSHA may expect such workplaces to follow the CDC’s new mask recommendations and is likely to update its guidance to once again align with the CDC.

In the last few weeks, many jurisdictions had begun to reinstitute mask requirements or extend them back to cover vaccinated individuals because of the Delta variant.  We expect with the recent CDC shift, others will likely follow CDC guidance and recommend or require universal masking in indoor public settings in counties where there is substantial or high transmission rates as shown by CDC’s tracker.  Unlike CDC and OSHA “guidance” some of the state and local recommendations are mandatory.  State and local authorities may also adopt the CDC’s view that vaccinated individuals should test following exposure to someone with suspected or confirmed COVID-19.

Employers should continue to carefully monitor state and local guidance as well as the level of transmission in their geographic areas which is evolving rapidly. The updated CDC guidance is specifically tied to areas that have substantial and high transmission rates. Since those rates are tied to the prior 7-day period, the transmission rates will continue to change for the foreseeable future, especially after holidays when individuals naturally gather together. For some employers reinstating mask rules for all employees, regardless of community transmission rates, may be a preferred approach to minimize change, particularly if they have offices in multiple locations. While this type of administrative ease is tempting, employers should keep in mind that such a policy will be unpopular with employees in the areas of the country where vaccination rates are high and transmission rates are low—Currently 36.52% of the counties in the country have low to moderate transmission rates and according to CDC’s tracker, those rates are decreasing.  For employers choosing to tie their mask rules to the varying transmission rates, they should be careful in how they communicate any new masking rule so they do not instill fear or distraction every time masking requirements are adjusted due to changes in the local community transmission rate.

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.

Public schools and universities are barred from requiring vaccines that have not received full U.S. Food and Drug Administration (FDA) approval under Ohio House Bill 244 (HB 244), signed by Governor Mike DeWine on July 14, 2021. The new law goes into effect on October 13, 2021. Read more about this new Ohio law here.

On June 24, 2021, the New Hampshire Legislature passed a two-year state budget that includes a paid leave program. Governor Chris Sununu signed the budget on June 25, 2021, and coverage must be provided by January 1, 2023.

The voluntary program, called the Granite State Paid Family Leave Plan, provides New Hampshire workers with 60 percent wage replacement for up to six weeks of work per year if they take time off for personal health or family reasons. Read more about this program.

Beginning August 1, 2021, Louisiana employers will be required to provide reasonable accommodations to employees who need such accommodations due to pregnancy, childbirth, or related medical conditions, unless it would pose an undue hardship on the employer. Read more about these developments from our Louisiana colleagues.

The Oregon legislature has temporarily amended Oregon’s Equal Pay Act to allow employers latitude to both encourage COVID-19 vaccinations and to attract new employees as the state emerges from COVID-19 business restrictions. Under the revised statute, when evaluating whether employees who perform work of comparable character are paid equitably, a comparison of employee compensation may exclude vaccine incentives. Similarly, hiring and retention bonuses are excluded from the calculation. The exclusion is only temporary, however, and scheduled to expire on March 1, 2022.

Read more on these developments.

As part of the Omnibus Jobs and Economic Growth Finance and Policy Bill, Minnesota Governor Tim Walz has approved an amendment relating to pregnancy accommodations and barring reducing compensation for lactation breaks, among other changes. The amendment goes into effect on January 1, 2022.

Under Minnesota law, employers must provide employees who need to express breast milk for their infant child reasonable break times each day. The amendment prohibits an employer from reducing an employee’s compensation for time used for the purpose of expressing milk. The amendment also includes language that limits an employer’s obligation to the 12 months following the birth of the child. Employers may still ask that these lactation breaks be scheduled over regularly scheduled rest or meal breaks; but if not, they cannot dock pay.

Additionally, the amendment combined Minnesota’s laws related to nursing mothers, lactating employees, and pregnancy accommodations into one section, Minnesota Statute Section 181.939. The law on pregnancy accommodations remains largely the same; however, under the amendment, coverage applies to all employers with at least 15 employees (not at least 21) and there are no longer any length of time or average number of hours per week an employee must satisfy to qualify for the accommodation rights and protections under the statute.

If you have questions or need assistance, please reach out to a Jackson Lewis attorney.