Disability, Leave Health Management Blog | Jackson Lewis P.C.

Time 2020-12-20 12:03:53

Web Name: Disability, Leave Health Management Blog | Jackson Lewis P.C.

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On December 9, 2020, Pittsburgh Mayor Peduto signed a new ordinance granting COVID-19 Sick Time to certain employees working within the City.Interaction with Pittsburgh Paid Sick Days ActThis ordinance supplements the Pittsburgh Paid Sick Days Act (“PSDA”), which took effect earlier this year in March.  The ordinance also amends the PSDA by expressly permitting employees to take sick time under the PSDA before it is accrued, if the reason for use arises directly from COVID-19.Temporary COVID-19 Emergency Paid Sick TimePittsburgh employers with more than 50 employees must provide paid COVID-19 Sick Time to their employees for COVID-19-related reasons.  The law applies to employees who are (a) working for that employer within Pittsburgh after the effective date of this ordinance, (b) normally work for that employer within the City of Pittsburgh but are currently teleworking from any other location as a result of COVID-19, or (c) work for that employer from multiple locations or from mobile locations, provided that 51% or more of such employee’s time is spent within the City of Pittsburgh.An employee may take up to 80 hours of leave, and this time is in addition to time under the PSDA.  COVID-19 Sick Time is also in addition to any paid leave or sick time provided by the employer, with a few caveats. An employee is to provide notice to the employer of the need for COVID-19 Sick Time as soon as practicable.Eligible employees may take COVID-19 Sick Time leave for the following reasons, if they are unable to telework:Determination by a public official or public health authority, a health care provider, or an employee’s employer that the employee’s presence on the job or in the community would jeopardize the health of others because of the employee’s exposure to COVID-19 or because the individual is exhibiting symptoms that might jeopardize the health of others, regardless of whether the individual has been diagnosed with COVID-19;Care of a family member of the employee due to a determination by a public official or health authority, a health care provider, or the family member’s employer that the presence of the family member on the job or in the community would jeopardize the health of others because of the family member’s exposure to COVID-19 or a determination by the employer that the employee is a danger to the health of others because they are exhibiting symptoms that might jeopardize the health of others, regardless of whether the family member has been diagnosed with COVID-19;An employee’s need to: (a) self-isolate and care for oneself because the employee is diagnosed with COVID-19; (b) self-isolate and care for oneself because the employee is experiencing symptoms of COVID-19; or (c) seek or obtain medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19; orCare of a family member who: (a) is self-isolating due to being diagnosed with COVID-19; (b) is self-isolating due to experiencing symptoms of COVID-19; or (c) needs medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19.COVID-19 Sick Time Leave EntitlementEmployees who work 40+ hours a week.  For employees who work 40 hours or more per week, their leave entitlement is 80 hours, unless the employer designates a higher limit.Employees who work less than 40 hours a week.  Employees who work fewer than 40 hours in a week are entitled to leave in an amount equal to the amount of time the employee is otherwise scheduled to work or works on average in a 14-day period, whichever is greater and unless the employer designates a higher limit.  In the case of an employee whose schedule varies from week to week, the employer can use a number equal to the average number of hours that the employee was scheduled over the past 90 days of work, including hours for which the employee took leave of any type.COVID-19 Sick Time must be provided to employees immediately, without any waiting period or accrual requirements, once they have been employed by the employer for the previous 90 days.  If an employer provided paid leave prior to the effective date of this ordinance, the COVID-19 Sick Time is in addition to that paid leave.  An employer may not change such paid leave after the ordinance s effective date to avoid providing leave under the ordinance.Interaction With Other Laws Employer PolicyTo the extent that federal or state law requires employers to provide paid sick leave or paid sick time related to COVID-19, employers may substitute leave under the federal or state law to meet the obligations under this ordinance to the extent they coincide and such concurrent use is permitted.  However, employers are required to provide additional COVID-19 Sick Time under the ordinance to the extent the ordinance exceeds the requirements of the federal or state law.Similarly, to the extent that an employer has adopted a policy subsequent to the March 13, 2020 Pennsylvania COVID-19 Declaration of Emergency which provides its employees with additional paid sick time specifically for use during COVID-19, employers may substitute leave under its employer policy for the leave required under this ordinance to the extent they coincide. However, employers must provide additional COVID-19 Sick Time under the ordinance to the extent the ordinance exceeds the requirements of the employer’s COVID-19 specific paid sick policy.The ordinance is in effect immediately now that the Mayor has signed.  Further guidance is anticipated from the City.A link to the full text of the ordinance can be found here. The ordinance is in effect until the Pennsylvania COVID-19 Declaration of Emergency or the Pittsburgh COVID-19 Declaration of Emergency ends, whichever is sooner.  Employees may use COVID-19 Sick Time until 1 week following the official end of the public health emergency.By now, employers likely have heard the news that the Centers for Disease Control and Prevention (CDC) has reduced the length of time that individuals should quarantine after an exposure to COVID-19. The old adage “Don’t believe everything you read” turns out to be true in this case. Although the CDC has stated that shortened quarantine periods may be an option in certain circumstances, the agency continues to recommend quarantining the full 14 days, absent local health authorities determining that a shorter period is appropriate.  Read our full article here.On November 16, 2020, the Center for Disease Control (CDC) clarified its guidance permitting critical infrastructure workers to return to work before the end of the standard 14-day quarantine period following exposure to COVID-19.  In this updated guidance, the CDC reiterated its standard recommendation that all individuals known to be exposed to a person with suspected or confirmed COVID-19 should quarantine for 14 days, with the possible limited exception of asymptomatic critical infrastructure workers who have not tested positive for SARS-CoV-2 (“COVID-19”).While earlier CDC guidance allowed critical infrastructure employers to consider allowing workers who were exposed but tested negative to continue to work when necessary to preserve the function of critical infrastructure workplaces; in the most recent guidance, the CDC clarifies what circumstances might warrant use of the exception stating “that reintegrating exposed critical infrastructure workers who are not experiencing any symptoms and have not tested positive back into onsite operations should be used as a last resort and only in limited circumstances, such as when cessation of operation of a facility may cause serious harm or danger to public health or safety.”The CDC stated it issued the updated guidance to align with new scientific evidence, evolving epidemiology and the need to simplify the assessment of risk; specifically:Increased evidence that infected people pose a transmission risk without symptoms or before the onset of recognized symptoms;Ongoing community transmission in many parts of the country;A need to communicate effectively to the general public; andContinued focus on reducing transmission through social distancing and personal prevention strategies.The CDC explains that “[r]eintegrating exposed workers who are not experiencing any symptoms and who have not tested positive back into onsite operations carries considerable risk to other workers because many people with COVID-19 are asymptomatic but can still spread disease, and tests are imperfect. Bringing exposed workers back should not be the first or most appropriate option to pursue in managing critical work tasks. Quarantine for 14 days is still the safest approach to limit the spread of COVID-19 and reduce the chance of an outbreak among the workforce.”The new guidance also encourages all critical infrastructure employers to work with local health officials on any reintegration of exposed workers and reiterates the additional risk mitigation precautions required including pre-screening, on-site screening with temperature checks, ongoing health monitoring, cleaning and disinfecting, social distancing, and ensuring all employees wear cloth masks.This new guidance follows a trend we have seen in some states.  Since the initial CDC critical infrastructure worker guidance was issued in April, several states have adopted rules narrowing the circumstances under which critical infrastructure employers can allow asymptomatic exposed employees to continue to work.  For example:In New York, employees who are exposed to COVID-19 but remain asymptomatic can continue to work if “deemed essential and critical for the operation or safety of the workplace, upon a documented determination by their supervisor and a human resources representative in consultation with appropriate state and local health authorities.”In Wisconsin, the Department of Health has not endorsed exposed, asymptomatic workers returning to work before a 14-day quarantine period, however, local health departments in Wisconsin are allowed to grant case by case exceptions.In New Mexico, if an essential business would be forced to cease operations due to the quarantine of exposed, asymptomatic workers, then such workers may continue working if they test negative for COVID-19 and certain safety measures are met.In light of the new CDC guidance, critical infrastructure employers should consider reviewing their policies and procedures for returning asymptomatic exposed employees back to work, keeping in mind that state and local orders, and guidance from state and local health departments and safety agencies, may impose different and more restrictive requirements. Among other things, employers should consider:Articulating and documenting the impact on operations such as how and why business operations might cease and, if applicable, the potential impact on health and safety if exposed, asymptomatic employees are held out of work for a 14-day quarantine period.Consulting with the local health departments on the reintegration of exposed workers.Developing plans and protocols to implement additional safety precautions, including pre-screening, health monitoring, and preventive measures.As always, employers must also continue to comply with all applicable federal OSHA and state equivalent workplace safety requirements.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.With a difficult 2020 nearing its end, if Connecticut Paid FMLA has recently reappeared on your radar, don’t fret!  Simply review the below basics to prepare for this upcoming change.As a reminder, last summer (i.e., an eternity ago), Connecticut enacted two separate laws—one creating a paid leave benefit and the other amending, and expanding, the existing Connecticut Family and Medical Leave Act (CT FMLA). Employers must keep this statutory setup in mind, as certain provisions are unique to each of the two laws. For example, applying for and receiving the paid leave benefit, by itself, does not entitle the employee to job protection. Job protection will continue to be governed by the provisions of the CT FMLA, as amended, and other applicable laws.Key Dates:November 2020: employers may begin registration process for online accounts with the Connecticut Paid Leave AuthorityBy December 31, 2020: register with the Paid Leave AuthorityJanuary 1, 2021: employee payroll withholdings (0.5%) begin for the paid leave benefitMarch 31, 2021: deadline for employers to submit first quarterly payment of withholdings to the Paid Leave TrustJanuary 1, 2022 (or before): Connecticut Department of Labor will provide guidelines for the expanded CT FMLAJanuary 1, 2022: expansion of covered employers, employees, and reasons for CT FMLA leave is effectiveJanuary 1, 2022: paid leave benefits available Paid Leave Benefit:Applicable to nearly all employers and employees in Connecticut. No minimum tenure requirement, but employees generally must meet minimal earnings threshold for eligibility.Funded by a 0.5% employee payroll tax (up to the Social Security contribution limit of $142,800 for 2021). No notice requirement regarding the withholding, but employers should consider communicating with employees to avoid a surprise in January 2021.Generally provides up to 12 weeks of paid leave for reasons covered by the amended CT FMLA as of January 2022. An additional 2 weeks will be available for an incapacitating serious health condition related to pregnancy.Paid leave benefit available January 2022, with maximum weekly paid leave compensation at $780 (60 times the minimum wage as of that date).Employees may receive the paid leave benefit concurrent with “employer-provided employment benefits,” if the total does not exceed the employee’s regular pay. It is unclear at this time how the paid leave benefit will interweave with employer benefits.Creates a paid intermittent leave entitlement.Employers may apply for an exemption by offering a private plan, which must meet various criteria. Importantly, prior to application to the state, the plan must be approved by a majority of all the employer’s employees in Connecticut.Expansion of CT FMLA Coverage:Spouse, child, or parentSpouse, child, parent, grandparent, grandchild, sibling, and any other “individual related to the employee by blood or affinity whose close association the employee shows to be the equivalent of those family relationships”12 months and 1,000 hoursThree months (this tenure minimum does not apply to paid benefits, which are generally available upon employment)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.As previously reported, on October 2, 2020, the Michigan Supreme Court invalidated post-April 30, 2020 Executive Orders that Governor Whitmer issued related to the COVID-19 pandemic. The opinion can be found here. As a result, a patchwork of laws and agency orders have stepped in to cover the gaps left by the invalidated Michigan COVID-19 Executive Orders.For example, on October 21, 2020, Governor Whitmer signed a bipartisan law that prohibits employees from reporting to work until all prescribed legal conditions have been met. The Jackson Lewis article on that law can be found here.As another example, on October 14, 2020, the Michigan Occupational Safety and Health Administration (MIOSHA) issued COVID-19 Emergency Rules that are in effect for six months, which can be found here. These rules largely follow prior executive orders in requiring all employers to: (a) categorize job tasks into risk categories, (b) create a written preparedness and response plan with detailed measures to prevent employee exposure based on the risk categories, (c) follow certain basic infection prevention and screening measures, (d) follow notification requirements when a visitor/employee has a known case of COVID-19, (e) provide employee training, and (f) maintain records of training, screening, and notifications. MIOSHA’s Emergency Rules Fact Sheet can be found here.Included within the “basic infection prevention measures” (MIOSHA Emergency Rule 5) was the preexisting requirement that employers have a policy “prohibiting work for employees to the extent that their work activities can feasible be completed remotely.”  However, on November 12, MIOSHA issued guidance making it clear that the employer must show the infeasibility of remote work, the requisite policy needs to be in writing in the preparedness and response plan, and the policy should state:Which positions/classifications report for in-person work and why they must be physically present in the workplace;Reasons that this work cannot be performed remotely, this must include enough specificity to show this analysis has been performed.Separately, the Michigan Department of Health and Human Services (MDHHS) and local health departments have continued to issue orders. Most recently, on November 18, MDHHS issued an epidemic order that:Prohibits indoor gatherings at non-residences with certain exceptions, such as preschool through 8th grade in-person learning, manufacturing work that is impossible to do remotely, and restaurant takeout;Limits gatherings at residences to 10 people or less (with no more than 2 households gathered);Limits outdoor gatherings to 25 people or less (with no more than 3 households gathered);Reiterates the face mask requirement at gatherings, with certain exceptions;Reiterates the requirement that businesses keep accurate records of any visitors to aid with contact tracing.This recent order by MDHHS goes into effect today and is scheduled to remain in effect until December 8. The MDHHS infographic on what is open and not open is linked here and below.As we enter flu season (in the midst of a national spike in COVID-19 cases), and it now appears that a COVID-19 vaccine is on the horizon, employers are struggling with whether they should require employees to be vaccinated for seasonal influenza and/or COVID-19 infection.  After the year that many have had, there is a natural reaction to jump at the idea of mandating vaccinations.  But for employers, there are many considerations that should be taken into account.  Can Employers Mandate?The first question employers must consider is: Can they mandate vaccinations of their employees?  In many jurisdictions, possibly, subject to reasonable accommodation obligations under federal, state or local laws protecting employees who are disabled, pregnant or have conflicting and sincerely held religious beliefs.  However, some jurisdictions prohibit or limit employers from mandating employee vaccinations and we suspect that additional jurisdictions may follow.  Therefore, employers should assess and monitor closely local legislation and/or executive orders on this issue.  If the employer’s employees are unionized, it needs to also consider whether the collective bargaining agreement allows it to mandate vaccines or whether it must bargain about the issue with the union.  Public sector employers, and private sector employers in jurisdictions such as California, must also consider whether mandating vaccinations raises additional privacy-related concerns. Should Employers Mandate?Even if a company can mandate vaccinations, the more important question is should it?  Companies inevitably will answer this question in different ways and for different reasons.  Among other things, employers likely will want to consider their work environment, whether they are providing care for others who may not be able to vaccinate, the risk of harm to others if they don’t vaccinate, the culture in the environment and the disruption in the workplace if they mandate.  Mandating vaccinations is a hot topic right now.  Some individuals and companies likely will be concerned with mandating vaccinations when the vaccine is new.  Many companies may face resistance from employees, which could lead to employee morale issues, dissension, union organizing or even litigation.  Employers should also consider the potential workers’ compensation or other liability exposure for injuries or illnesses resulting from adverse reactions or side effects from vaccinations it mandates. Employers should first consider whether there is a need for the company to mandate the vaccination (as opposed to the state).  A starting point may be to consider how the company fared during the height of the pandemic when there was no vaccine.  If the company was able to reduce or eliminate the spread with other administrative controls, it may not need to incur the legal and operational risks that come with mandating vaccinations.  Many employees, particularly those who are concerned, or at risk, will seek out the vaccine, regardless of any mandate, which raises the question: Do employers need to mandate, if employees (and customers) can choose to get vaccinated to protect themselves? Can Employees Refuse?Even if an employer mandates that its employees receive a vaccine, it can expect to receive push back from some of its employees.  Some push back may be for political reasons, some may be out of fear, and some may be due to religious or medical concerns.  Employees who collectively object to a term or condition of employment may have protection, at least for their objection, under the National Labor Relations Act.   Employees who object for safety reasons may be protected under the Occupational Safety and Health Act and other state laws.  If employees object due to a disability/medical condition or a sincerely held religious belief, employers will need to consider reasonable accommodations.  There is plenty of guidance on the internet instructing employees how to raise these concerns, which can sometimes lead to the exceptions swallowing the rule.  What’s An Employer To Do?This is potentially a divisive issue for employers.  The distraction, dissension, and litigation risks posed by mandating may outweigh the potential benefits.  As an alternative, employers may consider offering the vaccine to employees at no cost, rather than mandating it.  Neither the EEOC or OSHA has published guidance (yet) on the issue of COVID-19 vaccines in the workplace, however, currently, both the EEOC and OSHA recommend encouraging, not necessarily requiring, flu vaccines.  For many companies, particularly those outside the healthcare industry, this may be the best option with respect to COVID-19 vaccines as well.  Employers who choose to offer or mandate vaccinations should consult with counsel.   Stay tuned, as we expect the states, the EEOC and OSHA to inject their own views as the COVID-19 vaccine becomes available.  The attorneys at Jackson Lewis and our COVID-19 Taskforce are available to assist you as you assess the right approach for your workforce.   Legislation was introduced in the House of Representatives to try to alleviate the lack of clarity concerning how companies are supposed to make websites accessible to vision impaired individuals. There is currently no law or regulations under the Americans with Disabilities Act (“ADA”) directly addressing technical or legal standards for website accessibility.The Online Accessibility Act, introduced on October 2, 2020, intends to remedy many of these issues and concerns by creating a new Title VI for the ADA devoted entirely to consumer facing websites and mobile applications. The Act requires “substantial” compliance with WCAG 2.0 A, AA, an exhaustion of administrative remedies with the Department of Justice, and that plaintiffs plead “with particularity each element of the plaintiff’s claim, including the specific barriers to access.”Each of these additional components is important as they narrow the claims that can be brought by plaintiffs, create a framework and standard by which website accessibility claims are evaluated, and most importantly, put the onus on the plaintiff to identify the specific links and precise areas of the web page that are inaccessible. This in turn makes it easier for a website to be remediated and makes it easier for the court to determine if there is a violation.While the legislation, as currently written, does not define how “substantial compliance” is interpreted, at a minimum it will not require complete compliance, and may also consider the crux of accessibility laws (whether the plaintiff has meaningful access to the website). This is important because meaningful access considers whether the non-compliant pieces of a consumer-facing website actually affect a consumer or plaintiff’s ability to use the website – further minimizing the number of frivolous and predatory lawsuits filed regarding website accessibility violations.While the Online Accessibility Act is not law yet, it is taking necessary steps towards refining website accessibility laws by attempting to tailor the requirements of such laws to the actual needs of vision impaired users of websites, while simultaneously tempering serial plaintiffs and their attorneys from filing a glut of lawsuits with vague allegations without the U.S. Department of Justice oversight.Colorado voters approved the Paid Medical and Family Leave (PMFL) Initiative, Proposition 118, on Election Day. PMFL creates a state-run paid family and medical leave insurance program in Colorado that allows employees to take up to 12 weeks of leave and keep their job. The program, which begins on January 1, 2024, is similar in many ways to unemployment insurance and what exists in California and New Jersey.  Read more here.In September, when Governor Newsom signed Assembly Bill 1867, employers hoped that the state-wide COVID-19 Supplemental Leave was a replacement for the patchwork of local ordinances. However, due to differences in coverage, many employers are faced with complying with the more stringent local ordinances. In particular, many local ordinances allow an employee to take paid leave to care for a family member if their school or place of care is closed due to COVID-19.  AB 1867 does not provide leave for this purpose.The local ordinances also have other differences that employers need to consider.  One of the biggest is when they expire.  AB 1867 provides that its leave provisions will sunset on the later of December 31, 2020, or expiration of any federal extension of the Emergency Paid Sick Leave Act established by the Families First Coronavirus Response Act (“FFCRA”).  However, several local ordinances differ, including the City of Los Angeles ordinance (2 weeks after the expiration of the COVID-19 local emergency period) and the San Francisco ordinance (currently December 12, 2020, unless extended by the Board of Supervisors).   Other ordinances, including the City of Oakland, City of San Diego, and County of Los Angeles contain language which allow for extensions beyond December 31, 2020, if approved by elected officials.Employers in a jurisdiction that has adopted a local COVID-supplemental sick leave ordinance should ensure that they comply with both state and local laws.   Jackson Lewis will continue to track the status of federal, state, and local ordinances pertaining to COVID-19 and paid sick leave.  If you have questions about compliance with California leave requirements pertaining to COVID-19 contact a Jackson Lewis attorney to discuss.A federal court in Indiana dismissed an employee’s claim that his employer did not have the right to request a medical examination after he tested positive for drugs and subsequently admitted that he was taking numerous prescription medications that could create a safety risk.  Beal v. Muncie Sanitary District, Case No. 1:19-cv-01506 (S.D. Ind. Oct. 22, 2020).  Read more on our Drug and Alcohol Testing Law Advisor.Jackson Lewis P.C. is a law firm with more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries. Having built its reputation on providing premier workplace law representation to management, the firm has grown to include leading practices in the areas of government relations, healthcare and sports law. Named the “Innovative Law Firm of the Year” by the International Legal Technology Association, the firm’s commitment to client service and depth of expertise draws clients to Jackson Lewis for excellent value-driven legal advice.Read More...

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