U.S. Federal Updates
Centers for Disease Control (CDC)
To mask or not to mask, that is the question! You’re likely well-aware of the recent guidance from the CDC as far as mask-wearing for those who are fully vaccinated (in non-healthcare settings). While the CDC has updated their guidance, as with leave laws, you have to take into account the state and local laws and regulations. For example, in California, the mask mandate will remain until June 15, 2021, with the plan to comply with the CDC guidance at that time. When deciding what to do as an employer, many factors come into play. Does it make sense to remove a mask requirement for your employee population, your work sites, and your customers? Consistency and communication will be key in establishing your policy around these new guidelines.
Department of Labor – Office of Disability Employment Policy (ODEP)
The Job Accommodation Network (JAN) continues to update their website with a lot of great information for employers as it relates to COVID-19. Of interest:
COVID-19 Vaccination and the ADA
COVID-19 Long Haulers and the ADA
Accommodating Employees with COVID-19-Related Symptoms
Accommodation Strategies for Returning to Work During the COVID-19 Pandemic
U.S. State Updates
Department of Industrial Relations (Cal/OSHA)
Cal/OSHA has updated their COVID-19 Emergency Temporary Standards FAQs. If you scroll to the bottom of the page, you will see the specific updates made on May 5, 2021. The updates pertain to COVID-19 exposure in the workplace and clarification of quarantine requirements for fully vaccinated employees.
Employment Development Department (EDD)
If you have a California Voluntary Plan in place of State Disability Insurance (SDI), you likely received a reminder email from the EDD this morning regarding updating the Administrative Contact Forms that are due on June 15, 2021. If The Larkin Company is administering your Voluntary Plan, we will prepare the DE 2520BV-A and DE2520BV-C (we complete DE 2520BV-B with our contact information) and will be sending the documents to you for review. Look for these to be emailed over the coming weeks.
We are also keeping our eyes peeled for the EDD’s 2022 Disability Insurance Fund forecast which should be released in the next few weeks.
HB 590 has been amended to clarify that a military member who has been called to service, whether voluntary or involuntary, is entitled to a leave of absence under the Military Service Employment Rights Act. The act allows for certain remedies for violations of the act.
The Oklahoma Uniformed Services Employment and Reemployment Rights Act (HB 2545) became effective last month, which establishes employment protections for National Guard members (both army and air force) in line with the federal Uniformed Services Employment and Reemployment Rights Act (USERRA).
Those who report to active duty must be reemployed (barring undue hardship or significant change in an employer’s circumstances) when their service is complete as long as they provide advance notice to their employer, their absence is no longer than 5 years cumulatively, and they submit a reemployment application. In addition, returning service members:
- Are entitled to the seniority, rights and benefits they would have received but for their service,
- May elect to continue health plan coverage for themselves and their dependents,
- Are required to pay the cost of any continued benefits, if employees on furlough or leave of absence are required to do so, and
- May choose to use paid leave such as vacation or annual leave during their service.
- Must reinstate the service member to their previous position or an equivalent position,
- Should treat the service member as if they were on furlough or leave of absence under the employer’s policy as it pertains to the rights and benefits of seniority,
- May not deny initial employment, reemployment, retention in employment, promotion, or any other benefit of employment on the basis of one’s membership (including application to become a member) in the state’s military forces, and
- May not discharge a returning service member within one year after reemployment if the service member worked for the employer for over 180 days prior to their leave; or, within 180 days if they had worked for the employer between 31 and 179 days. The only exception is if termination is for cause.
There will be a required notice (only for employees who are members of the state military forces) which has not yet been released – we’ll let you know when it’s available.
Paid Family and Medical Leave Insurance (PFMLI)
We may have to wait a year for the Beaver State’s new PFMLI program to get up and running – a bill introduced last week would delay the requirement for the Employment Department (ED) to adopt rules necessary to establish the program. If the bill passes, the director of the ED would have until September 1, 2022 for rule-making (current deadline is September 1, 2021). Additionally, contributions would begin January 1, 2023 rather than January 1, 2022 with benefits available to workers starting September 1, 2023 rather than January 1, 2023. The main reason for the proposed delay is, of course, the COVID-19 pandemic. Essentially, the ED had to focus their attention on the administration of unemployment insurance benefits resulting in a loss of momentum with the development of the PFMLI program. We’ll keep you posted….
FMLA-eligible employees in the Keystone State will have an additional reason for which to take leave starting June 27, 2021. HB 203, also known asThe Living Donor Protection Act (LDPA), will provide leave to employees who donate all or part of an organ or tissue. As it stands, organ donation may qualify as a serious health condition under the FMLA when it involves either inpatient care or continuing treatment as defined in the regulations.
This law will mandate that employers who are subject to FMLA, provide leave to an employee who is entitled to FMLA when the employee is preparing for and recovering from surgery related to organ or tissue donation by or for the employee or the employee’s spouse, child, or parent.
Currently, members of the U.S. Armed Forces Reserve Components, the Ready Reserve, the Vermont National Guard or the National Guard of another state are limited to a 15-day leave of absence in any calendar year to engage in military drills, training, or other temporary duty. Effective July 1, 2021, the 15-day limitation will be removed from the statute per HB 149. Further, members of the Vermont National Guard or the National Guard of any state who are ordered to state active duty will be subject to the requirements of and entitled to the rights, privileges, benefits, and protections of USERRA.
Canada Provincial Update
British Columbia has now enacted the Paid COVID-19 Vaccination leave. An employee is entitled to up to 3 hours of paid leave to receive each dose of their COVID-19 vaccine. Here are some more details:
- The leave should be granted to all employees, regardless of tenure with the company.
- The amendment outlines the formula for calculating the minimum amount to pay employees on leave. Employers must pay an amount “equal to at least the amount calculated by multiplying the number of hours of the leave and the average hourly wage.” More details on how to calculate Vaccination Leave pay can be found in the Act.
- Employers may ask for sufficient proof that employees are entitled to this leave, but an employer cannot require that employees provide a doctor’s note as a condition of requesting this paid leave.
The Ontario government introduced legislation on April 29, 2021 that requires employers to provide employees up to three days off with pay for certain COVID-19 related reasons. This law is retroactive to April 19, 2021, and in effect until September 25, 2021. The reasons that qualify for the paid infectious disease emergency leave law, include:
- Going for a COVID-19 test
- Remaining at home while awaiting COVID-19 test results
- Being ill with COVID-19
- Receiving the vaccination for COVID-19
- Experiencing COVID-19 vaccination side effects.
- When advised to self-isolate due to COVID-19 by their employer, health care provider or other authority
- Caring for a dependent who is ill with COVID-19, has symptoms of COVID-19 or is self-isolating due to COVID-19
- Employers cannot require a doctor’s note from a health care provider for the paid leave.
- Employees should be paid at their regular rate of pay to a cap of $200 per day.
- Please note, employees may still qualify for unpaid, job protected leave, for certain reasons, under Ontario’s Declared Emergency Leave.
- Employees are entitled to take the three, paid days of leave before any of the unpaid days of leave provided by the ESA.
- There are additional requirements for employers when determining an employee’s rate of pay under the law, when an employee is also entitled to performance-related wages, including commissions and piece work rate, or when an employee is entitled to overtime or shift premium pay.
- Employees must be covered by the Ontario Employment Standards Act to be eligible for paid leave under the law. Federally regulated employees and independent contractors are not covered under the law.
- If the employer provides at least three paid leave days for certain reasons relating to COVID-19 under their employment contracts, they may not be required to pay additional paid leave under the ESA. If, on the other hand, employers already provide employees paid leave for reasons relating to COVID-19, but for fewer than three days, employees are entitled to the balance of three days minus the entitlement in their contract.
- The three days do not need to be taken consecutively. If employees take leave for a partial day, the employer may deem that as a full day of paid leave usage.
Eligible employers will be able to apply for a reimbursement from the Ontario Government for any employee paid leave day taken under the paid infectious disease emergency leave:
- The reimbursement program is called the Worker Income Protection Benefit (WIPB), administered by the Workplace Safety and Insurance Board (WSIB).
- The maximum reimbursement is $200 dollars per day. If an employee’s rate of pay is less than $200 a day, the employer may only request reimbursement at the employee’s regular rate of pay.
- Employers would need to make their application for reimbursement within 120 days of the paid leave.
- There are certain limitations to an employer’s ability to claim reimbursement. We suggest reviewing the guidelines and the reimbursement application process carefully. Here is a link to the Employment Standards Act guide, where more information can be found.