It’s been a few weeks since our last newsletter and we have quite a bit to cover as the updates keep coming. Have a nice weekend!
U.S. Federal Updates
Department of Labor – Office of Disability Employment Policy (ODEP)
Due to the COVID-19 pandemic, the number of employees teleworking skyrocketed as employers adapted to shuttered storefronts and office buildings. Employers have had to re-evaluate their policies and practices as they relate to telework. Prior to the pandemic, working from home was considered as an accommodation request under the ADA for disabled employees. ODEP has published a policy brief, “Adopting an Integrated Telework Policy for Employees With and Without Disabilities” to help employers reevaluate their policies and distinguish between a general telework policy and a disability-related telework policy.
The Employer Assistance and Resource Network (EARN) on Disability Inclusion is hosting a webinar on April 30th from 2:00-3:00pm EST that may be of interest. “Getting Ahead of the Curve: Federal Guidance for Ensuring Safe, Healthy and Inclusive Workplaces during the COVID-19 Recovery” will explore ways employers can ensure safe and healthy workplaces for all workers during the COVID-19 recovery. To register, go here.
Job Accommodation Network (JAN)
JAN has published a blog entitled “COVID-19 Vaccination and the Americans with Disabilities Act” with lots of great FAQs and helpful guidance.
U.S. State Updates
Department of Industrial Relations (DIR)
The DIR has updated their COVID-19 Supplemental Paid Sick Leave (SPSL) FAQs. Of note:
- What does “on the premises” mean in terms of school or place of care closures (on or after January 1, 2021)? This means closure out of concern that a person who had been present on the school or daycare premises was exposed to, or had contracted, COVID-19.
- Employers must provide SPSL immediately upon the oral or written request of the covered employee to the employer.
- Confirmation that the 2021 SPSL provides an additional 80 hours of COVID-19 related sick leave.
City of Philadelphia
The City of Brotherly Love now requires employers to provide paid COVID-19-related sick leave to employees. The Public Health Emergency Leave (PHEL) went into effect as of March 29, 2021 and requires employers with 50 or more employees to provide up to 80 hours of paid sick leave for the following COVID-19 reasons:
- Caring for themselves or a family member diagnosed with, exposed to, or showing symptoms of COVID-19, regardless of diagnosis;
- Caring for themselves or a family member isolating due to a public quarantine order or advised to self-quarantine by a healthcare provider due to COVID-19-related concerns;
- Caring for a child whose school or place of care has closed, or whose child care provider is unavailable, due to COVID-19; or
- To obtain a COVID-19 vaccine or recover from any injury, disability, illness or condition related to such vaccine.
To be eligible for PHEL, an employee must have worked for a given employer for 90 days or more and (i) work within Philadelphia, (ii) normally work for a given employer within the City of Philadelphia but is currently teleworking from another location as a result of COVID-19, or (iii) work for a given employer from multiple locations or mobile locations, provided that 51% of work time is spent within the City of Philadelphia.
Full-time employees are entitled to up to 80 hours of leave while those working fewer than 40 hours per week are entitled to an amount equal to the average amount of time the employee works in a 14-day period.
Generally speaking, PHEL must be provided outside of and prior to using existing accrued paid time off. There are a few instances where an employer is not required to provide additional paid leave:
- Employers are not required to change existing policies or provide additional leave to employees who complete the majority of their work responsibilities through telework as long as the existing policy provides teleworking employees at least 80 hours of paid leave in 2021 (and said leave can be used for the same purposes as PHEL).
- If an employer’s existing policy provides 160 hours or more of paid time off in 2021 that is not specifically designed as sick leave and can be used for the same purposes and conditions as PHEL, there is no requirement for an employer to change their existing policy or provide additional paid leave.
- If an employer adopted a policy on or after March 6, 2020 providing employees with additional paid time for COVID-19-related reasons in 2021, employers may substitute leave under said policy for the leave required under the PHEL ordinance.
Employers must post notice at the physical workplace or provide the information to each employee via electronic communication or a conspicuous posting in a web-based platform.
PHEL will expire upon the expiration of the statewide COVID-19 public health emergency.
Paid Family and Medical Leave (PFML)
The PFML program has been temporarily amended to provide assistance to certain employees and employers in Washington. Beginning August 1, 2021, pandemic leave assistance grants through the PFML program will be available until the amendment expires on June 30, 2023.
Employees who lost jobs or whose hours were reduced in 2020 due to the COVID-19 pandemic, and therefore would not qualify for PFML benefits (i.e., have not met the 820 hours worked requirement), would be eligible for pandemic leave assistance grants if:
- They worked 820 hours in 2019; or,
- They worked 820 hours during the second through fourth calendar quarters of 2019 and the first calendar quarter of 2020.
All other rules and requirements of the PFML program remain in effect including, and most importantly, the employee must have a qualifying event.
PFML currently has grants available to smaller employers (those with 150 or fewer employees or those with 50 or fewer employees who choose to pay the employer portion of PFML premiums). These grants provide up to $3,000 to employers who hire a temporary worker to replace an employee on PFML (for seven days or more). When an employer is significantly impacted by additional wage-related costs due to an employee’s PFML, they may receive up to $1,000 in reimbursement.
With the PFML temporary amendment, the grants mentioned above are also available to employers with employees who are receiving pandemic leave assistance grants. Employers with approved Voluntary Plans are not eligible.
Canada Provincial Updates
Effective April 21, 2021, Alberta enacted the Employment Standards (COVID-19 Vaccination Leave) Amendment Act, 2021. This law requires that employers provide employees leave to receive a COVID-19 vaccination. The details of the amendment are as follows:
- When leave is requested, an employer must provide employees:
- Up to a maximum of 3 consecutive hours of leave, or
- Any period longer than 3 consecutive hours if, in the opinion of the employer, the circumstances warrant a longer period.
- Employees must provide employers with as much notice of leave as is reasonable and practicable, under the circumstances of each request.
- Employers must ensure employees don’t lose any earnings or other benefits when taking leave.
- Employers may request reasonably sufficient proof that the employee is entitled to a vaccination leave. However, an employee is not required to:
- Provide the employer with a medical certificate or record of immunization as verification of the employee’s entitlement to a leave, or
- Disclose to the employer any of the employee’s underlying medical conditions.
As a reminder, employees in British Columbia may take job-protected time off when they’re unable to work due to certain COVID-related reasons:
- They are diagnosed with COVID-19 and are advised to take time off by a medical health officer, doctor or nurse.
- They are acting in accordance with an official public order to quarantine.
- They are outside of BC and unable to return to work due to travel or border restrictions.
- They are directed not to work by their employer due to risk of exposing others.
- Employees were allowed to take time off to care for their minor child or a dependent adult child for a reason related to COVID-19, including a school, daycare or similar facility closure, and the law has recently expanded to allow employees to care for any family member due to COVID related reasons.
On April 1, 2021, the Government of British Columbia announced amendments to the law that are effective immediately. The law now permits employees time off to receive the COVID-19 vaccine or when they are assisting a dependent being vaccinated against COVID-19. Additionally, in March, the law was updated to permit employees leave if they are more susceptible to COVID-19 in the opinion of a medical professional because of an underlying health condition, are undergoing treatment or have another illness and are receiving Canada recovery sickness benefits for their leave. This is to fully align with the federal Canada Recovery Sickness Benefit (CRSB) and Canada Recovery Caregiving Benefit (CRCB).
There is no defined maximum leave duration. Employees can take the job-protected leave as long as necessary for the leave types noted above. Workers may need to give reasonable evidence of eligibility if their employer requests it, but a doctor’s note must not be requested. There is no end date to this temporary COVID-19 legislation. The law is retroactive to January 27, 2020.