U.S. Federal Updates
Equal Employment Opportunity Commission (EEOC)
We’ve all been waiting with bated breath for another update to the EEOC’s “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws” guidance. They didn’t hold back this time around as there are quite a few updated FAQs as well as new FAQs pertaining to ADA, GINA, vaccination mandates and incentives, accommodations (for religious beliefs or disability), and so on and so forth (a quick control-F search of 5/28/21 will take you to where you need to go).
It appears that incentivizing your employees as far as the COVID-19 vaccination is okay (under ADA and GINA) especially if you (or your agent) are not administering the vaccinations. If you (or your agent) are administering vaccinations to your employees, be careful as far as the amount of the incentive. You don’t want to coerce employees to be vaccinated or pressure them to disclose protected medical information. Otherwise, there is no limitation on the incentive you may provide to employees obtaining vaccinations through their own health care provider, pharmacy, health agency, etc.
The EEOC has confirmed an employer may lawfully inquire about or request documentation or other confirmation that an employee obtained the vaccine from a third party in the community (health care provider, pharmacy, etc.). Doing so is not considered a disability-related inquiry under ADA. Furthermore, employers who require documentation or other confirmation of vaccination from a third party are not implicating GINA as genetic information is not being used, acquired, or disclosed. Any COVID-19 vaccination information must be kept confidential and separate from an employee’s personnel file, per the ADA.
U.S. State Updates
If you have yet to start withholding employee contributions for the Connecticut Paid Leave program that will be available as of January 1, 2022, you have until the end of June to take extra “catch-up” deductions of up to one percent (1%) – for a total deduction of 1.5% – to make up for contributions that were not deducted beginning in January. This is a special, one-time only authorization from the Connecticut Department of Labor. After June 30th, any gap in withholdings will be the employer’s responsibility and not the employee’s. If you have not registered for the program, you can go here to find out more information.
District of Columbia
Things change quickly! In our previous newsletter, we reported that Mayor Bowser let the public health emergency declaration expire. The Mayor has since extended the public health emergency by signing a new Order “for so long as District of Columbia law extends the emergency.” The order is effective as of May 21, 2021 and the public health emergency has been extended through July 25, 2021 by the D.C. Council. Enforcement guidance and the workplace poster were last updated in February – we will share updated documents once they become available.
The Short Term Disability Insurance Benefit Protection Emergency Amendment Act (B24-185) was passed last week amending the Universal Paid Leave Amendment Act of 2016 on an emergency basis. The Act prohibits insurers from reducing short term disability (STD) benefits based on actual or estimated paid leave benefits. In other words, employees in D.C. are now entitled to receive their maximum weekly benefit under both the employer’s insured STD plan and DC Paid Family Leave – no offsetting (reducing the STD benefit by what the employee receives from DC PFL) allowed.
This law does not impact employers with a self-insured STD benefit program.
The law is effective as of May 26, 2021 and will expire August 24, 2021, though there is another bill on Mayor Bowser’s desk that would extend the provisions of the bill further.
We have another COVID-19 Emergency Paid Sick Leave (EPSL) law, courtesy of Governor Baker who signed Bill H.3702 into law late last week. One interesting aspect of this law is that it creates a $75 million COVID-19 Emergency Paid Sick Leave Fund with the sole purpose of reimbursing eligible employers for providing employees with COVID-19 emergency paid sick leave.
The law provides up to 40 hours of paid leave to full-time employees; for those working fewer than 40 hours per week, the number of paid leave hours is pro-rated. Employees with varying work schedules must receive leave equal to the average number of weekly hours that the employee was scheduled to work over the previous six months. Newer employees (have worked less than six months) must be provided a leave amount equal to the number of weekly hours that they expected to work when hired. Leave pay is capped at $850 per week.
If you already have a COVID-19 sick leave policy that meets or exceeds the requirements under this law, you are not required to provide anything further. The law is in effect until September 30, 2021 or the date that the $75 million fund is exhausted, whichever comes first.
Reasons for Leave:
- An employee’s need to: (i) self-isolate and care for oneself because of the employee’s COVID-19 diagnosis; (ii) seek or obtain medical diagnosis, care or treatment for COVID-19 symptoms; or (iii) obtain immunization related to COVID-19 or the employee is recovering from an injury, disability, illness or condition related to such immunization;
- An employee’s need to care for a family member who: (i) is self-isolating due to a COVID-19 diagnosis; or (ii) needs medical diagnosis, care or treatment for COVID-19 symptoms;
- A quarantine order, or other determination by a local, state or federal public official, a health authority having jurisdiction, the employee’s employer or a health care provider 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 exhibiting of symptoms, regardless of whether the employee has been diagnosed with COVID-19;
- An employee’s need to care for a family member due to a quarantine order, or other determination by a local, state or federal public official, a health authority having jurisdiction, the family member’s employer or a health care provider that the family member’s presence on the job or in the community would jeopardize the health of others because of the family member’s exposure to COVID-19, regardless of whether the family member has been diagnosed with COVID-19; or
- An employee’s inability to telework because the employee has been diagnosed with COVID-19 and the symptoms inhibit the ability of the employee to telework.
- The law requires that all benefits are maintained for employees who use COVID-19 EPSL.
- Employers may not require employees to use other paid leave before EPSL.
- Employees are required to notify their employers of their need for EPSL as soon as practicable or foreseeable.
- Employers can submit claims to the established trust fund for each employee’s EPSL request and must require written requests from employees that include the following information:
- The employee’s name;
- Date or dates for which leave is requested and taken;
- A statement of the COVID-19-related reason for which the employee is requesting leave and written support for such reason; and
- A statement that the employee is unable to work, including by means of
- Additionally, if an employee is requesting leave based on a quarantine order or self-quarantine advice, the employee’s statement must all include:
- The name of the governmental entity ordering quarantine or the name of the health care provider advising self-quarantine; and
- If the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.
Employers will be required to provide notice to their employees of EPSL in a conspicuous place at the worksite and/or via electronic communication/posting in a web-based platform. A model notice is due to be released in the next few days – we will monitor and will share once its available.
The New York Department of Labor recently issued guidance that confirms that employees impacted by COVID-19 vaccination side effects may use their accrued sick leave to recover.
Signed into law last year and effective as of July 1, 2021, Senate Bill 576 requires insurers issuing short term disability benefit policies to provide coverage for short-term disability arising out of childbirth for a payable benefit of at least 12 weeks immediately following childbirth. This provision applies to any policy delivered or issued in Virginia on and after July 1, 2021. It may be worthwhile to review any updated policies as of July 1st or later to ensure that your insurance carrier is compliant. If you are interested in self-insuring your short term disability benefit program, please contact your Larkin Account Manager to see if self-insuring is right for you.
The definition of “family member” under the Paid Family and Medical Leave (PFML) program currently means a child, grandchild, grandparent, parent, sibling, or spouse of an employee. Per Senate Bill 5097, and starting July 25, 2021, the definition will include any individual who regularly resides in the employee’s home or where the relationship creates an expectation that the employee care for the person, and that individual depends on the employee for care. “Family member” will not include an individual who simply resides in the same home with no expectation that the employee care for the individual.
Canada Provincial Updates
Effective May 20, 2021 until December 31, 2021, all employees in BC are entitled to take up to 3 paid sick days if they need to stay home due to certain COVID-19 related reasons. For example, if:
- The employee is diagnosed with COVID-19 and is acting in accordance with:
- instructions from a medical health officer, or the advice of a medical practitioner, nurse practitioner or registered nurse.
- The employee is in quarantine or self-isolation in accordance with:
- an order of the Provincial Health Officer;
- an order under the Quarantine Act (Canada); or
- guidelines of the BC Centre for Disease Control, or the Public Health Agency of Canada.
- Their employer has directed the employee not to work due to risk of exposing others to COVID-19.
COVID-19-Related Paid Leave is available to full and part-time employees who do not already have a paid sick leave benefits plan. The Province’s website states that to take a COVID-19 sick day, a doctor’s note is not required.
Employees must be paid their regular wages, calculated by taking the “amount paid” divided by days worked. “Amount paid” is defined as the amount paid/payable to the employee for work performed and wages earned within the 30-calendar-day period preceding the leave, including vacation pay paid/payable for any vacation days taken within that period, less any amounts paid/payable for overtime. “Days worked” is the number of days the employee worked or earned wages within that 30-calendar-day period.
According to the Province, if an employer does not have an existing sick leave program, the province will reimburse the employer up to $200 per day. Details about the reimbursement program will be available later this month.
Note: BC employees may still take COVID unpaid leave for certain COVID-related reasons and may also still take up to 3 hours of paid leave to be vaccinated against COVID-19. A list of the BC COVID-19 leave types can be found here.