In the past few weeks, the EEOC has updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws on multiple occasions. The EEOC’s most recent update to this informal guidance provides an answer to the following question: “May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace?”

In answering this question, the EEOC applies the ADA standard which requires medical testing of employees be “job related and consistent with business necessity.” Applying this standard to the current COVID-19 pandemic, the EEOC states employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. But, the EEOC notes that employers should ensure that the tests are “accurate and reliable.” The EEOC’s ADA regulations also require direct threat determinations be based “on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.” To satisfy these standards, employers should consider FDA and CDC guidance concerning standards for safe and accurate testing, including evaluating the incidence of false positives or negatives with the test.

What does this mean for employers? Like its earlier statements allowing employers to conduct temperature checks on employees, this latest addition provides employers with additional support for conducting or requiring employees to be tested for COVID-19 before returning to the workplace.

Of course, as the EEOC points out, COVID-19 testing only determines if the employee is currently ill, and, unless the employer intends to test every day, its effectiveness in preventing employees from reporting to work with the virus is limited. Nevertheless, requiring a negative COVID-19 test before employees return to work following COVID-19 infections or quarantines may provide employers additional comfort and protection.

Daily COVID-19 testing likely is not practical because of cost and limited availability, at least currently. Temperature checking, while not necessarily determinative of whether an employee has the virus, is an option in many jurisdictions, especially if paired with questionnaires concerning potential COVID-19 symptoms or activities (e.g., attendance at mass gatherings) that increase the risk of COVID-19 exposures. Pulse oximeter testing and antibody or serology testing are rising in popularity (at least in the media). Currently, neither has been approved expressly by the EEOC. If the CDC or FDA approves these to combat COVID-19, this may change. According to the FDA’s FAQs on Diagnostic Testing For SARS-CoV-2, the “FDA is not aware of an antibody test that has been validated for diagnosis of COVID-19 infection.”

Of course, the EEOC’s opinion only addresses concerns under the ADA. Employers also need to consider state and local laws, including privacy concerns.

Jackson Lewis attorneys and the dedicated COVID-19 Task Force are tracking the rapidly evolving federal, state, and local mandates. Please contact a Jackson Lewis attorney with any questions.

 

As the Centers for Disease Control and Prevention (CDC) continues to study COVID-19, the agency is regularly updating guidance on precautionary measures to further prevent the spread of COVID-19 across the United States. The agency has expanded its recommended precautions to include “wearing cloth face coverings in public settings where social distancing measures are difficult to maintain” in response to new information showing that COVID-19 can spread from asymptomatic people in close proximity interactions (e.g., individuals standing directly next to each other and talking). To read full article please click here.

Soon after San Jose passed its supplemental paid sick leave ordinance to respond to the COVID-19 crisis, it issued further guidance regarding the leave. The Director of the Office of Equality Assurance, the office charged with enforcement of the emergency ordinance, has also issued an opinion letter to provide additional information. The opinion letter addresses the question of whether an employer that already provides the amount of sick leave hours required by the ordinance, must also provide additional leave for an employee who has exhausted some or all of that leave on the ordinance effective date. Read more.

Puerto Rico’s Law 37-2020 provides certain employees up to five days of paid leave once they exhaust other paid leave. Law 37-2020 amends Puerto Rico Law 180-1998, which establishes paid sick and vacation leave benefits for some private sector employees, excluding employees classified as executives, administrators, and professionals, among others. The new law is effective immediately. Read more.

The current circumstances surrounding the COVID-19 crisis have brought paid family and medical leave to the forefront of the national consciousness. While the federal government and other states have created new, immediately effective, paid family and medical leave laws, Massachusetts has remained committed to the existing timeframe for the Paid Family and Medical Leave Act (PFMLA), which will be effective January 1, 2021.

Despite the focus on the COVID-19 crisis, the Commonwealth of Massachusetts continues to prepare for the implementation of PMFLA in 2021. On April 7, 2020, the Massachusetts Department of Family and Medical Leave (DFML) announced new guidance for employers who have applied for or plan to apply for a “private plan” exemption and use a third-party insurer for the privately funded paid leave plan. Read more.

Employers have been struggling with exactly what information they are permitted to disclose to a public health agency when an employee is diagnosed with COVID-19. The EEOC yesterday for the first time advised that, at least under the Americans with Disabilities Act, employers may disclose the employee’s name to the public health agency. However, employers will still need to be mindful of other more stringent state restrictions and privacy concerns. The EEOC also said that a temporary staffing agency or contractor that places an employee in an employer’s workplace may notify the employer if it learns the employee has COVID-19.

Employers should, however, continue to take steps to limit the number of people who know the name of the employee. While it is important to conduct a close contacts analysis and notify co-workers and other individuals who may have come into contact with the employee, employers should not disclose the employee’s identity.

The EEOC also addressed several other important questions from employers in its updated “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

Please visit our COVID-19 resource webpage or subscribe to our COVID-19 publications and webinar invitations to stay abreast of the developments or contact a JL attorney directly with any questions.

Under Seattle’s Paid Sick and Safe Time (PSST) law, an employer normally may require verification (including a doctor’s note) for the use of PSST after three consecutive workdays in which the employee uses paid sick/safe leave. But effective immediately and through June 7, 2020, employers may not require a doctor’s note or healthcare provider verification for an employee’s use of paid sick/safe time, regardless of whether the employee seeks to use the time for COVID-19 related reasons.

Employers may seek other forms of documentation, including (1) the employee’s own statement, or (2) documentation from other individuals like service providers, social workers, case managers, or legal advocates, stating that, to their knowledge, the employee’s use of paid sick leave is for a covered purpose.

The Seattle Office of Labor Standards (OLS) adopted this emergency rule on April 8, 2020, and strongly encourages employers “to be flexible as possible given the COVID-19 Civil Emergency.”

Unless OLS takes further action (like early revocation or extension of this temporary rule), the old rule about sick leave verification will automatically become effective again on June 8, 2020.

Please note: this rule only affects employers within the Seattle city limits. At the time of this blog’s publication, Washington’s statewide paid sick leave law still allows employers to require a doctor’s note after an employee has been absent for more than three consecutive workdays.

On March 26, 2020, Governor Jay Inslee signed into law amendments to the Washington Paid Family and Medical Leave Act. The significant changes are as follows:

  • Lawsuits
    • The WPFMLA now includes a private right of action in court for an employee claiming interference, retaliation, or discrimination under this law. The limitations period is three years. Class actions are permitted. Damages available include lost wages/salary, benefits, and “other compensation denied or lost” by reason of the violation, reasonable attorney fees and litigation costs.
    • Previously, alleged violations were restricted to administrative adjudication through the Employment Security Department (ESD).
    • An employee may still pursue an administrative complaint with the ESD, but an employee may not pursue both an administrative complaint and a complaint in court simultaneously.
    • An employee is not required to file an administrative complaint with ESD before filing suit in court.
  • Supplemental Benefits
    • Previously, the law did not clearly define “supplemental benefits.” Now, the law defines “supplemental benefits” as all payments made by an employer to an employee as salary continuation or as “paid time off.” This includes vacation leave, personal leave, medical leave, sick leave, compensatory leave, or any other paid leave offered by an employer under the employer’s established policy.
    • ESD will not prorate or reduce an employee’s weekly benefit amount due to the receipt of “supplemental benefit payments.”
  • Waiting Period
    • The law previously provided that the “waiting period” was unpaid, leaving unclear whether an employee could receive employer-provided supplemental benefits during that period. The amendments clarify that, yes, an eligible employee may satisfy the waiting period requirement while simultaneously receiving “paid time off” for any part of the waiting period.
    • The amendments eliminated the waiting period for qualifying military exigencies.
  • Coverage
    • The new law expands the definition of “family member” to include a child’s spouse.
    • It also exempts “casual labor” from the coverage of the law. “Casual labor” is defined as work performed infrequently and irregularly, and if performed for an employer, does not promote or advance the employer’s customary trade or business.
  • Workers’ Compensation Disqualification
    • The law previously disqualified from eligibility an employee receiving workers’ compensation, but the amendment limits this disqualification to those employees with permanent total disability or temporary total disability.
  • Conditional Waiver From Eligibility
    • This amendment changes the test for receiving a conditional waiver from WPFML premiums. Previously, the employee would have to be “physically based” outside of Washington in order to qualify for a conditional waiver of premiums for that employee. Now, the question is whether the employee “primarily performs work” outside of Washington.
  • Removes Limitation on Successive Related Periods of WPFML
    • The law formerly provided that successive periods of WPFML caused by the same or related injury or sickness were deemed a single period of family and medical leave only if separated by less than four months. This requirement has been removed.
  • Child Support Obligations
    • The amendments specify the child support obligations that would lead to a WPFML benefit deduction.
    • The new law adds WPFML benefits to the types of payments from ESD that trigger certain obligations for child support-related payroll deductions.
  • Voluntary Plan
    • When a voluntary plan ends or is withdrawn, the employer must pay the ESD all required premiums including any premiums owed that were not covered by the voluntary plan, if any.

Some of these amendments went into effect immediately, while others will go into effect on June 11, 2020. Please contact Jackson Lewis attorneys for additional information on this and other workplace issues.

Texas employers no longer must provide paid sick leave to their employees in Dallas following the decision of U.S. District Court Judge Sean D. Jordan. ESI/Employee Solutions LP et al. v. City of Dallas et al., No. 4:19-cv-00570 (E.D. Tex. Mar. 30, 2020). The decision was released two days before enforcement of the Dallas Paid Sick Leave Ordinance would have commenced. In the federal lawsuit challenging the legality of the Ordinance, the court granted the plaintiffs’ motion for preliminary injunction, prohibiting the enforcement of the Ordinance against businesses pending resolution of the litigation. Concurrently, the court’s order also denied, in substantial part, the City of Dallas’ separate motion to dismiss the case. Read more.

On March 27, 2020, the City Council passed an ordinance mandating employers with 500 or more employees nationally offer Supplemental Paid Sick Leave for various COVID-19 related reasons described below. The ordinance is awaiting Mayor Eric Garcetti’s review and anticipated approval. Under the ordinance, covered employers must offer 80 hours of Supplemental Paid Sick Leave to employees who perform work within the geographic boundaries of the City of Los Angeles. However, the ordinance caps the total amount to be paid to no more than $511 per day and no more than $5,110 in the aggregate. An employer may not condition the Supplemental Paid Sick Leave on receipt of a doctor’s note from the employee. Read more.