COVID-19 and Federal/State Updates

December 17, 2021

U.S. Federal Updates

Equal Employment Opportunity Commission (EEOC)

Earlier this week, the EEOC updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. To find the updates quickly, search 12/14/21. Here are some highlights:

  • The ADA’s three-part definition of disability applies to COVID-19 in the same way it applies to other medical conditions. An individual would have to have an actual disability, a record of a disability, or be regarded as an individual with a disability.
  • COVID-19 is considered an actual disability if it or any of its symptoms is a physical or mental impairment that substantially limits one or more major life activities.
  • COVID-19 is not always an actual disability under the ADA. For instance, someone who experiences minor or no symptoms from COVID-19 and quickly recovers without lasting effects would not be considered disabled under the ADA.
  • An individual who has or had COVID-19 may be considered an individual with a record of a disability or regarded as an individual with a disability. Determination of either situation depends on the facts and an individualized assessment.
  • Conditions caused or worsened by COVID-19 may be considered a disability under the ADA, and should be assessed on a case by case basis.
  • Individuals still must meet either the “actual” or “record of” definitions of disability to be eligible for a reasonable accommodation under the ADA.
  • Employers may voluntarily provide accommodations requested by an applicant or employee due to COVID-19 (even if not required under the ADA).

U.S. State Updates

California

Department of Industrial Relations (DIR)

The California Occupational Safety and Health Standards Board voted yesterday to adopt revisions to the COVID-19 Prevention Emergency Temporary Standards (ETS). The revisions take effect on January 14, 2022. Revisions have brought the ETS more in line with current California Department of Public Health (CDPH) recommendations. You can read the news release for more details as well as explore the DIR’s website which includes an updated fact sheet. More resources will become available once the ETS becomes effective.

Employment Development Department (EDD)

The EDD has addressed the recent uptick in Disability Insurance fraud in a press release that can be found here. Individuals who suspect fraud may file a fraud report by visiting Ask EDD and selecting the “Report Fraud” category to complete the fraud reporting form. It’s also recommended that victims of identity theft file a report with the Federal Trade Commission. The EDD has a Help Fight Fraud page on their website with a lot of good information and newly published FAQs.

For our clients who continue to receive the form DE 2503 from the EDD for individuals who have never worked for your company or for active employees who have not filed claims, we have received further guidance. If you know the DE 2503 is fraudulent, you only have to write “fraudulent” anywhere on the form and return to the EDD.

Colorado

The Department of Labor and Employment has released the Paid Leave, Whistleblowing, & Protective Equipment poster for 2022. The poster includes notice of employee paid leave rights under the Health Families & Workplaces Act (HFWA). As a reminder, all Colorado employers will be required to provide sick leave under the HFWA starting next year. In 2021, the law only required Colorado employers with 16 or more employees to provide sick leave.

New York

New York City

The New York City Department of Health (DOH) has posted helpful information on their website regarding the vaccination mandate for employees who perform in-person work or interact with the public. Of note, are FAQs, a flyer for business owners, and the commissioner’s order regarding the mandate. There is also a certificate that businesses must complete by December 27, 2021 and post in a public place affirming compliance with the mandate. You’ll need to collect, verify, and keep a record of each employee’s proof of vaccination by December 27, 2021 and be prepared to make the records available for inspection.

As far as accommodations are concerned, the DOH has provided guidance and two checklists – accommodation for medical reasons and accommodation for religious reasons). You may remember that Mayor de Blasio stated that testing would not be an option for those who wish not to be vaccinated. Well, that doesn’t appear to be the case any longer as one of the options for accommodation for medical reasons is weekly PCR testing (and masking at all times when not eating or drinking) when the person reports to the office. If the granted accommodation is to work from home, weekly PCR testing would not be required.

Canada Federal Update

Federally Regulated Employers

The federal government in Canada has repealed two COVID related leaves that were temporarily established for employees working in federally regulated workplaces. Previously an employee was able to take:

  • a leave of up to four weeks (with no limit on the number of leaves that can be taken) if the employee was unable to work for reasons related to COVID-19, including if they have contracted or might have contracted COVID-19; and
  • a leave of up to 42 weeks if they were unable to work because of caregiving responsibilities related to COVID-19.

These leave types were repealed and are no longer available, effective November 20, 2021.

However, a bill has been introduced, An Act to provide further support in response to COVID-19 Bill C-2 (introduced on November 24, 2021), which if passed, will provide similar leave protections to employees affected by COVID-19. To be specific, the bill would provide a COVID-19 leave of absence of:

  • up to six weeks (exact number of weeks to be confirmed) when an employee cannot work, because they:
    • have or may have contracted COVID-19;
    • have underlying conditions, other illnesses, or are undergoing treatments that, in the opinion of a valid medical professional, person in authority, government/public health authority, would make them more susceptible to COVID-19; or
    • they have isolated themselves on the advice of the same persons (listed above).
  • up to 44 weeks (exact number of weeks to be confirmed) if the employee is unable to work because, for family caregiving reasons related to COVID-19 e.g., they must care for a child who is under the age of 12 or a family member who requires supervised care because of COVID-19.

General Sick Leave

The federal government introduced Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code (Bill C-3) on November 26, 2021. If the law is passed, as currently proposed, it will amend the Canada Labour Code, to provide 10 days of paid sick leave per year to all workers in the federally regulated private sector.

Canada Provincial Updates

Ontario

In our May 17, 2021 newsletter, we discussed the Paid Infectious Disease Emergency Leave Law that requires employers to provide up to three days of pay to employees who miss work for certain COVID-19 related reasons. As a reminder, employees can take leave for reasons related to COVID-19, such as:

  • Receiving COVID-19 vaccinations
  • COVID-19 testing
  • Being sick with COVID or isolating
  • Caring for a family member who contracted COVID

This paid leave has been extended through July 31, 2022. Further, employers, whose eligible employees have taken COVID sick leave, can continue to apply to the COVID-19 Worker Income Protection Benefit program within 120 days to receive reimbursement – click here for the details. Employers may be reimbursed up to $200 paid to their employees for each day of leave paid.

Additionally, employees can still take time off under the Infectious Disease Emergency Leave (IDEL) through July 30, 2022. This law allows employers to place employees on a leave of absence, when their work hours are reduced related to COVID-19, for the following reasons:

  • the employee is under individual medical investigation, supervision or treatment related to the designated infectious disease;
  • the employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease;
  • the employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means;
  • the employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease;
  • the employee is providing care or support to a Specified Individual listed below because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or daycare closures;
  • the employee is directly affected by travel restrictions related to the designated infectious disease and, under the circumstances, cannot reasonably be expected to travel back to Ontario; or
  • such other reasons as the government might later prescribe.

The IDEL is essentially designed so that Ontario employers may place employees on leave, rather than to temporary layoff. If an employer did not have this leave available, and instead laid employees off for any of the above reasons, then the employer may be subject to constructive dismissal claims. You can find more information here.

Finally, please note that the Declared Emergency Leave in Ontario has now ended, click here for more information.

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