COVID-19 and Federal/State Updates

January 14, 2022

U.S. Federal Updates

The Supreme Court ruled 6-3 against the Occupational Safety and Health Administration’s (OSHA’s) Emergency Temporary Standard (ETS) that mandates employers (with 100 or more employees) ensure their workforces are fully vaccinated or show a negative COVID-19 test result at least once a week. In its ruling, the Court said, “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.” You can find the court’s decision here.

You’ve probably already heard about the Centers for Disease Control and Prevention’s (CDC’s) updated quarantine and isolation guidance. If not, go here to read more. Many states and jurisdictions are following suit as well as many companies who have amended their COVID-19 policies accordingly.

Department of Labor – Office of Disability Employment Policy (ODEP)

The Job Accommodation Network, better known as JAN, has released a new article that outlines a sample process for determining whether an employer must grant a vaccination exception or delay as a reasonable accommodation under the Americans with Disability Act (ADA). Click here to read more.

U.S. State Updates

California

COVID-19 Paid Sick Leave (Again)?

It comes as no surprise that the Golden State is considering reviving its COVID-19 supplemental paid sick leave requirement given skyrocketing COVID cases and hospitalizations. The previous program expired at the end of last September which is the same time federal tax credits also expired. Governor Newsom announced on January 8, 2022 that, in his proposed budget, he would call for reinstatement of the supplemental paid sick leave. Stay tuned….

Department of Fair Employment and Housing (DFEH)

The DFEH has updated two of its required posters that pertain to leave of absence: Your Rights and Obligations as a Pregnant Employee poster and the Family Care and Medical Leave and Pregnancy Disability Leave poster. Both have been updated to now include “parent-in-law” as a family member for whom an employee may provide care. As a reminder any required DFEH poster must be conspicuously displayed where they can be easily seen and read by all employees and job applicants. They may be posted on computers as long as the posters are posted electronically in a conspicuous place where employees will tend to see them.

Department of Industrial Relations (DIR)

The Cal-OSHA Emergency Temporary Standard (ETS) remains in effect with revisions to the ETS starting today (the ETS will be in effect for 90 days). Changes include revised definitions, clarified exposure notification, testing, and exclusion from the workplace and return to work following exposure. The CDPH quarantine and isolation periods mentioned below will apply to the ETS as well. To learn more, the FAQs were just updated and can be found here.

Department of Public Health (CDPH)

The CDPH has released updated guidance regarding the COVID-19 quarantine and isolation period. The guidance generally aligns with the updated CDC guidance, however, there are some differences. Notably, isolation or quarantine can end if symptoms are not present/are resolving (for isolation) or not present (for quarantine) AND a diagnostic specimen collected on day 5 or later tests negative.

Employment Development Department (EDD)

To our clients for whom we administer Voluntary Plans, you may have seen the email reminder from the EDD this morning regarding the DE 2568V (Annual Report of Self-Insured Voluntary Plan Transactions) that is due February 15, 2022. Our Compliance Services team has started preparing the report. We will reach out to our clients in early February for the 2021 Q4 DE3D as well as the required bank statements for December 2021 and January 2022. Upon receipt of the 2021 Q4 DE3D, we will finalize the report and will send it to you for review prior to submitting to the EDD on your behalf.

San Francisco – Office of Labor Standards Enforcement (OLSE)

The OLSE has confirmed that the Paid Parental Leave Ordinance (PPLO) wage cap for 2022 is $2,567 per week.

District of Columbia

Last month, Mayor Bowser signed legislation that will extend the District’s paid time off for COVID-19 vaccination as well as recovery from any side effects from vaccination (see our previous newsletter for the specific requirements). Additionally, the bill provides for the District’s leave law (DCFMLA) to continue to include COVID-19-related leave reasons. The likely effective date of the bill is February 18, 2022 (currently in a 30-day congressional review period). If approved, the bill will be in effect for 225 days.

Massachusetts

You may recall that Massachusetts extended its COVID-19 Temporary Emergency Paid Sick Leave (PSL) Program back in October. Click here for a refresher. The Commonwealth recently revised its answer to question #4 under the Documentation and Reimbursement section of the FAQs. Essentially, if an employee (or their family member) uses a COVID-19 self-test, tests positive, and subsequently requests PSL, the “medical documentation” requirement can be satisfied by a statement from the employee accompanied by a photo of the positive test. However, requesting a photo is up to the employer and is not a requirement (mainly because it may not always be feasible to obtain a photo from the employee).

Canada Federal Update

Federally Regulated Employers

In the December 17, 2021 edition of this newsletter (see here), we discussed Bill C-2 (introduced on November 24, 2021), which, if passed, would provide protections to employees who are in a federally regulated workplace affected by COVID-19. This bill has since passed.

In summary, the measure provides:

  • up to six weeks of job-protected, unpaid leave 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 of job-protected, unpaid leave 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.

The measures are temporary and will be repealed on May 7, 2022To read more about the full details of the law, please see the Canadian government website – here.

Canada Provincial Update

Nova Scotia

In May of 2021, we provided information about the Nova Scotia COVID Paid Sick Leave program – see here. The paid sick leave program covered employees who could not work remotely and when they missed less than 50% of their scheduled work time in a one-week period due to COVID-19. It applied to any sick days taken between May 10, 2021, and July 31, 2021, due to a few specific COVID-19 related reasons. These reasons included needing to self-isolate due to exposure, close contact, or because they are experiencing symptoms or getting tested. They also included if employees were attending vaccination appointments.

This program has now been reinstated (from January 10, 2022) and will cover retroactive sick days that occurred from December 20, 2021 until March 31, 2022. The COVID-related reasons for taking sick leave, and general rules mentioned above, will remain the same. Please see this press release for more information – Nova Scotia Press Release.

 

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