Making good on President Biden’s position that everyone should wear a mask when using public transportation, the CDC issued an Order  effective February 2nd requiring all travelers using public transportation to wear masks while boarding, traveling and disembarking.  The Order requires all travelers, crew, and people who work at the transportation hub (airport, train station, port, bus depot, etc.) to wear a mask when travelling and when at the hub. The Order allows operators of public transportation and public transportation hubs to adopt additional practices that are more protective of public health and more restrictive than the CDC Order.

In the Federal Register Notice announcing the Order and the Order itself, the CDC describes in detail what types of properly worn masks satisfy this Order and what types of masks do not. For example, masks should not have exhalation valves and if a face shield is worn, it must be worn on top of a mask that is otherwise acceptable under the Order.

The Order does not apply to your personal vehicle if you are using it for personal, non-commercial use, but it does apply to rideshare arrangements for a fee or service. The Order also does not apply to commercial motor vehicles or trucks as defined by DOT regulation at 49 CFR 390.5 if the driver is the only person in the vehicle, and it does not apply to vehicles operated or chartered by the US military.

The Order provides an exemption for individuals under 2 years of age, individuals who cannot wear a mask due to workplace safety, and individuals with disabilities who cannot wear masks. The Order says CDC will be issuing further guidance regarding the exception for disabled individuals.

You do not have to wear a mask for brief periods when you are: eating; drinking; taking medication; using an oxygen mask due to loss of cabin pressure or ventilation issue; when unconscious, incapacitated or when you can’t remove the mask without assistance; when you need to remove to the mask to communicate with someone who is hearing impaired and they need to see your mouth to communicate (for example, masks with clear plastic panels may be used to facilitate communication with people who are hearing impaired or others who need to see a speaker’s mouth to understand speech); or when you need to pull your mask down to prove your identity. And yes, you have to wear your mask while you are sleeping on public transportation.

As employers continue to grapple with a safe return to the workplace, the U.S. Centers for Disease Control and Prevention (CDC) issued new guidance for businesses and employers on SARS-CoV-2 testing of employees, as part of a more comprehensive approach to reducing transmission of the virus in non-healthcare workplaces. SARS-CoV-2 is the virus that causes COVID-19.

While the CDC had already released some guidance on the matter of workplace testing (last updated in October 2020), the guidance issued on January 21, 2021, places a new emphasis on informed consent prior to testing and the measures an employer can take to ensure employees are fully supported in their decision-making.  Read more about the CDC guidance here.

In 2020, employers with employees in California were inundated with new compliance requirements brought on by the COVID-19 pandemic. It seemed that another local government or the state passed a COVID-19 supplemental paid sick leave requirement nearly every month.  These supplemental sick leave benefits applied to employees who were not covered by the federal Families First Coronavirus Response Act (FFCRA). Many of the ordinances were written to sunset with the FFCRA or on December 31, 2020.

Now that the leave requirements of the FFCRA (and by extension, California state required supplemental sick leave) have expired, many local agencies are reviewing the supplemental sick leave ordinances that were adopted in 2020.  Some agencies have extended the date by which employees may use benefits so that the ordinances have survived beyond the expiration of the FFCRA.  Others have expanded the scope of local ordinances to provide for leave for all employees who work in that jurisdiction, not just employees who were previously excluded from the FFCRA.  The following is a list of the current local supplemental paid sick leave ordinances, including its current expiration date and any revised scope:

Locality Current Expiration Date Eligible Employees
City of Los Angeles Until 2 calendar weeks after the expiration of the COVID-19 local emergency period.

Employees who perform work within the City of Los Angeles for an employer with 500 or more employees in the City or 2,000 nationally, except that following employees are excluded from coverage:

·       Emergency and health service personnel

·       Critical Parcel Delivery personnel

·       Employees of certain new businesses

·       Government employees

·       Employees of a closed business or organization

County of Los Angeles

(applies to unincorporated areas of the county only)

 Until 2 calendar weeks after the expiration of the COVID-19 local emergency period.

Employees who perform work within the unincorporated areas of the County of Los Angeles.

 

 
City of Long Beach To be determined based on information reports provided by the City Manager to the City Council every 90 days. Employees who perform work within the geographic boundaries of the City of Long Beach for an employer with 500 or more employees, except that Health Care providers, Emergency responders, and Government employees are excluded from coverage.
City of Oakland Until after the expiration of the City’s Declaration of COVID-19 Emergency. Employees who are entitled to minimum wage under the Labor Code and who work at least 2 hours within the geographic boundaries of the City of Oakland, except that employees of an employer with less than 50 employees are excluded from coverage unless they work for an unregistered janitorial service or franchise. Also excluded from coverage are health care providers and emergency responders.
City of Sacramento March 31, 2021 Employees who work within the City of Sacramento for an employer with 500 or more employees nationally, except that health care providers and emergency responders are excluded from coverage.
County of Sacramento (applies to unincorporated areas of the county only) March 31, 2021 Employees who perform work within the unincorporated area of the county for an employer who has 500 or more employees nationally, except that health care providers and emergency responders are excluded from coverage.
City and County of San Francisco February 11, 2021, unless extended. Employees who perform work in the geographic boundaries of the City and County of San Francisco for an employer with more than 500 employees nationwide.  Health care providers and emergency responders may be limited in their use of the leave.
City of San Jose June 30, 2021 Employees perform at least 2 hours of work within the geographic boundaries of the City of San Jose.
County of San Mateo (applies to unincorporated areas of the county only) June 30, 2021 Employees who perform work within the geographic boundaries of unincorporated areas of the County of San Mateo for an employer with 500 or more employees nationally, except that health care providers, aviation security workers, and emergency responders are excluded from coverage.

 

All of the recent extensions of supplemental paid sick leave, such as Oakland and San Jose, specify that the changes and extensions made do not provide for a new or refreshing bank of time.  Employees who already exhausted their leave entitlements under one of the supplemental paid sick leave mandates, including the FFCRA, do not receive a new bank of hours for 2021.

The City of Santa Rosa is scheduled to vote to extend its supplemental paid sick leave on February 2, 2021. If approved the amended ordinance will extend the supplemental paid sick leave requirement until March 31, 2021, for employers in the city of Santa Rosa.

Jackson Lewis continues to monitor local, state, and federal legislation pertaining to COVID-19. If you have questions about supplemental paid sick leave or other employment concerns related to COVID-19, contact a Jackson Lewis attorney to discuss.

On December 30, 2020, the U.S. Court of Appeals for the Seventh Circuit issued its opinion in McAllister v. Innovation Ventures, LLC, No. 20-1779 (7th Cir., Dec. 30 2020), and held that an employer did not violate the ADA where it terminated its employee after it became clear that she would require several additional months of leave after she had already been granted a two-and-a-half-month leave of absence due to her disability. The Seventh Circuit’s opinion in McAllister expanded on its previous opinion in Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), in which it held that a request for a two-to-three-month leave of absence following the expiration of the plaintiff’s FMLA leave entitlement was not a reasonable accommodation under the ADA. Jackson Lewis’s analysis of the Severson opinion can be found here.

In McAllister, the plaintiff, who had been employed by the defendant as an assembly worker, began a medical leave of absence after suffering significant injuries in a car accident in June 2016. In connection with her application for short-term disability benefits and FMLA leave, her doctor certified that she could not perform “any & all” job functions and that she was “totally disabled (unable to work).” After her anticipated return to work date was extended multiple times, the defendant terminated her employment in December 2016 after learning that she would not be able to return to work in any capacity until February 2017. While the plaintiff claimed that the defendant had failed to offer her a reasonable accommodation in violation of the ADA, the Seventh Circuit held, in affirming summary judgment for the employer, that because her doctor had made clear she could not return to work in any capacity, she could not establish that she was a “qualified individual” with a disability under the ADA. The Seventh Circuit noted that an employer “is entitled to rely” on the assessment of an employee’s physician regarding an employee’s ability to safely perform the essential functions of his or her job, notwithstanding contrary testimony provided by the employee.

The Seventh Circuit also rejected the plaintiff’s claim that the defendant should have offered her additional leave as a reasonable accommodation, citing its previous holding in Severson that a “multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.” The Court stated that the four months of leave requested by the plaintiff, on top of the two-and-a-half months she had previously been granted, was “plainly not a reasonable accommodation,” as affording her such prolonged leave would have “effectively excuse[d] her inability to work, which the ADA does not require of employers.”

Although the McAllister decision reiterates the Seventh Circuit’s view that the ADA is not a leave statute, a notable win for employers, the Court reiterated that “[w]hether a requested accommodation is reasonable or not is a highly fact-specific inquiry.” Thus, employers should continue to evaluate leave requests on a case-by-case basis.

As all eyes are on Washington, DC today with the inauguration of our 46th President. President Biden has laid out an “aggressive plan” to “change the course of the pandemic, build a bridge towards economic recovery, and invest in racial justice.” The 19-page plan the incoming administration published last week calls for legislation to fund, among other things, a national vaccination program, expanded testing, direct payments to individuals and to take other steps including increasing the minimum wage to $15 per hour. President Biden also seeks to reinstate and expand the paid leave provided by the Families First Coronavirus Response Act (FFCRA). The FFCRA’s mandatory paid leave provisions expired on December 31, however, Congress extended the tax credit for covered employers who voluntarily provide leave. Biden calls for legislation that would:

  • Reinstate the requirement that employers provide paid leave and expand coverage to virtually all employers including those with more than 500 and less than 50 employees and provide benefits to healthcare workers and first responders. According to President Biden’s plan, these measures would “extend emergency paid leave to up to 106 million additional workers.”
  • Expand paid sick and family medical leave to 14 weeks for the same reasons included in the FFCRA and for time off to get the vaccine.
  • Provide a maximum paid leave benefit of $1,400 per-week for eligible workers. “This will provide full wage replacement to workers earning up to $73,000 annually, more than three-quarters of all workers.”
  • Reimburse employers with less than 500 employees for the full cost of the leave by extending the tax credits and reimburse state and local governments for the cost of the leave. President Biden’s plan does not address tax credits for employers with more than 500 employees.
  • Extend emergency paid leave measures until September 30, 2021.

Our eyes will be fixed on Congress over the next weeks as we watch for legislation which is bound to be hotly contested and unlikely to pass in exactly this form after negotiations. In the meantime, state legislators are also considering new paid leave bills around the country. We are monitoring all of these developments.

While its rollout has been slow, the vaccine is being administered across the U.S. and in other countries. As of January 15, 2021, nearly 36 million doses of a COVID-19 vaccine have been administered, just over 11 million in the U.S. For a variety of reasons, organizations want to know whether their workforce members (employees, contractors, etc.) have been vaccinated. Some are trying to assess prospects for return to work, while others want to provide incentives to get the vaccine, and still others are managing customer demands to know if their vendor’s workforce has been vaccinated. Read more about considerations and best practices for organizations here. 

A federal court in Pennsylvania held that a medical marijuana user’s claims for disability discrimination and retaliation were sufficiently alleged to survive the employer’s motion to dismiss.   Hudnell v. Jefferson University Hospitals, Inc., Civil Action No. 20-01621 (E.D. Pa. Jan. 7, 2021). Read more about this decision and considerations for employers here.

On December 29, 2020, the U.S. Department of Labor (“DOL”) issued two field assistance bulletins (“FABs”) aimed at clarifying obligations under the Family and Medical Leave Act (“FMLA”) in light of the prevalence of telework and telehealth.

The first FAB (No. 2020-07), Electronic posting for purposes of the FLSA, FMLA, Section 14(c) of the FLSA, EPPA, SCA, and DBA, explains the circumstances under which an employer can meet its FMLA posting obligations via electronic notice. Under 29 C.F.R. § 825.300(a), covered employers must “post and keep posted” a notice explaining the FMLA and providing information about the procedures for filing complaints of violations of the FMLA with the DOL. The notice must be posted “prominently” where it can be “readily seen” by employees and applicants. The existing FMLA regulations already allow employers to meet the posting obligation through electronic posting, as long as all other requirements are satisfied.

The FAB further clarifies that electronic posting is acceptable where all hiring and work is done remotely, and an employer posts the appropriate FMLA notice on an internal or external website that is accessible by all employees and applicants at all times. The FAB generally advises employers that they should take steps to inform employees of where and how to access the notice electronically. In addition, electronic posting may not be sufficient if the employer does not customarily post notices electronically, or if the user must request permission to view the file. For employers with workers split between on-site and remote work, the FAB suggests both hard-copy and electronic posting.

The second FAB (No. 2020-08), Telemedicine and Serious Health Conditions under the Family and Medical Leave Act (FMLA) outlines the circumstances under which telemedicine counts as an “in-person” visit under the FMLA. This definition is important, because an employee may be unable to establish that he or she has a “serious health condition” in the absence of an in-person visit with a medical provider. Specifically, the FMLA defines “serious health condition” as an “illness, injury, impairment, or physical or mental condition that involves inpatient care…or continuing treatment by a health care provider.” See 29 C.F.R. §§ 825.102, 113-115. The regulations further define “treatment by a health care provider” to mean “an in-person visit to a health care provider.” See 29 C.F.R. § 825.115(a)(3).

Due to the COVID-19 pandemic, many states have implemented measures to permit or expand telemedicine or telehealth. The federal government has also taken steps to ease restrictions and make it easier for providers to provide care via video conference or telephone.

In recognition of these changes, the DOL addressed telemedicine in July 2020 in its informal guidance, COVID-19 and the Family and Medical Leave Act Question and Answers. The guidance stated the DOL’s position that, until December 31, 2020, telemedicine visits could satisfy the in-person visit requirement if certain criteria were met.

As a continuation of this policy, the FAB states that a telemedicine visit may qualify as an “in-person visit” for purposes of the FMLA if the following criteria are met: (1) the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; (2) the telemedicine visit is permitted and accepted by state licensing authorities; and (3) generally, the telemedicine visit should be performed by video conference. Communications such as “a simple telephone call, letter, email, or text message” remain insufficient to satisfy the requirement of an “in-person visit.”

Unlike the informal guidance issued in July 2020, the FAB is indefinite and may remain in place beyond the pandemic.

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

In March 2020, when Congress passed the Families First Coronavirus Response Act (FFCRA) with a sunset date of December 31, 2020, few anticipated the COVID-19 pandemic would be ongoing into 2021. Several similar state and local laws also sunset at the end of 2020. But the pandemic has not slowed, and requests for COVID-19-related leave (along with the corresponding tax credits) continue.

Here’s What We Know

The new stimulus bill (Consolidated Appropriations Act, 2021) passed on December 27 did not extend the FFCRA obligations. Employers who were covered under the FFCRA are no longer obligated to provide their employees leave.

However, while the FFCRA does not mandate an employer continue to provide COVID-19-related paid sick and paid family leave beyond December 31, 2020, it allows employers who are covered under the FFCRA 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.

Please read our full article here.

Since 1996, when Congress passed the Health Insurance Portability and Accountability Act (HIPAA), employers have been struggling with whether and to what extent they could offer incentives to employees to participate in certain “wellness programs.” The Equal Employment Opportunity Commission’s (EEOC) position on these programs has been a significant driver of those struggles, primarily due to concerns about whether such programs are “voluntary.”

On January 7, the EEOC proposed a new approach that may provide employers some certainty, particularly as many employers are wondering about incentives to encourage employees to receive a COVID-19 vaccine. Please read our full article here.