COVID-19 and Federal/State Updates

U.S. Federal Updates

Department of Labor (DOL) – Wage and Hour Division

The DOL has released Field Assistance Bulletin (FAB) 2022-02 which provides guidance regarding prohibited retaliation under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Immigration and Nationality Act (INA) which pertains to the H1-B visa program. The guidance includes some specific examples.

Equal Employment Opportunity Commission (EEOC)

The EEOC has released guidance for employers as it relates to COVID-19 and caregiver discrimination. If you remember the EEOC COVID-19 FAQ document “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EO Laws,” well, it continues to grow. The EEOC has updated the document by adding Section I which addresses caregivers/family responsibilities. If you really want to go the extra mile, you can watch the EEOC’s “What is Caregiver Discrimination?” video on YouTube.

U.S. State Updates

California

Employment Development Department (EDD)

Recently, the EDD has sent several claims audit notifications for Voluntary Plans (VP). This is a standard process for the EDD and if you have a VP for your California employees (in place of State Disability Insurance), your VP will be audited someday! The California Unemployment Insurance Code (CUIC) authorizes the EDD to review the claims and financial records of all approved VPs to ensure that they are being properly administered, and to protect and preserve the solvency of the Disability Fund. Typically, there are claims audits and there are financial audits, and they don’t always occur in the same year. Rest assured, The Larkin Company is here to help and will manage the audit process with the EDD.

As we’ve mentioned previously, fraud has been rampant not only with the unemployment insurance program in California, but also with the State Disability Insurance (SDI) program. Fortunately, the volume of DE 2503(F)s (Employer Notice of Disability Insurance/Paid Family Leave Claim Filed) sent to employers for fraudulent claims has dwindled considerably. However, the EDD continues to take steps to mitigate fraud which may cause a delay for employees in receiving benefits.

The EDD is requiring all claimants to verify their identity through ID.me. In some cases, they may also be required to verify their address by completing form DE 4365DI-T (Notice and Request for Eligibility Information). We’ve been advised that the employee’s address needs to be verified if there are or have been more than three individuals residing at the address within the last three years.

Now, the process may cause some confusion and consternation for your employees. The ID.me link mentions “verify your identity with ID.me for State Disability Insurance.” As employees proceed through the process, a notice advises employees to stop the process if they are not filing for unemployment benefits. This guide on the EDD website only addresses unemployment benefits. We have been advised that those filing for disability and PFL benefits must also verify their identity even if they may have done so in the past while claiming unemployment benefits.

You probably saw the reminder email from the EDD VP Group a couple of days ago regarding Security Reviews that are due on April 15, 2022. We are in the process of sending these out to our clients and you should receive yours soon if you haven’t already!

District of Columbia

You may recall the Short Term Disability Insurance Benefit Protection Emergency Amendment Act (B24-185) that was passed last summer. This law prohibited insurers from reducing short term disability (STD) benefits by what an employee was eligible to receive from the DC Paid Family Leave benefit program. This particular law expired last week. However, budget bill B24-0285 passed, and has made the STD benefit offset prohibition permanent. As a reminder, this applies only to insured STD programs and not those that are self-insured.

Pennsylvania

City of Philadelphia

The City of Brotherly Love is back at it, recently passing Bill 220051-A that requires employers to provide COVID-19 Paid Sick Leave (PSL), effective as of March 10, 2022 and in place through December 31, 2023. The law applies to any employer with at least 25 employees. The law applies to an employee who:

• works within the city of Philadelphia
• normally works within the city of Philadelphia but is currently teleworking form any other location as a result of COVID-19, or
• works from multiple locations or from mobile locations, provided that 51% or more of the employee’s time is present within the city of Philadelphia.

Amount of leave:

• Those working 40 hours or more per week receive 40 hours (unless the employer designates a higher limit).
• Those working fewer than 40 hours per week receive an amount equal to the amount of time the employee is otherwise scheduled to work or actually works on average in a 7-day period (unless the employer designates a higher limit).

Impact on established employer paid leave policies:

• Generally speaking, PSL is in addition to other paid leave benefits an employer is providing and paid leave previously paid to an employee does not reduce the amount of PSL available to an employee.
• If your employees who are teleworking are already provided at least 80 hours of paid leave that can be used for the same purposes as PSL, you do not need to make any changes to your policy.
• If your policy already provides at least 120 hours of paid sick leave for the same purposes as PSL (regardless of whether the hours are designated as sick leave), you do not need to make any changes to your policy.
• If you have a COVID Paid Leave policy that provides your employees with paid time off for the same purposes as PSL, you may substitute leave under your policy for PSL. If your policy is not as generous as PSL, then you would need to provide additional leave under PSL.

Reasons for Leave:

• An employee has been exposed to or is exhibiting symptoms of COVID-19 and it has been determined that the employee’s presence on the job would jeopardize the health of others, regardless of whether the employee has been diagnosed with or has tested positive for COVID-19;
• To care for a family member of the employee that has been exposed to or is exhibiting symptoms of COVID-19 and it has been determined that the family member’s present on the job would jeopardize the health of others, regardless of whether the family member has been diagnosed or tested positive for COVID-19;
• An employee’s need to (i) self-isolate and care for oneself because the employee is diagnosed with or has tested positive for COVID-19, (ii) self-isolate and care for oneself because the employee is experiencing symptoms of COVID-19, (iii) seek or obtain medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19;
• To care for a family member who (i) is self-isolating due to being diagnosed with or having tested positive for COVID-19, (ii) is self-isolating due to experiencing symptoms of COVID-19, (iii) needs medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19;
• To care for a child if the school or place of care has been closed, or the childcare provider is unavailable due to precautions taken in response to COVID-19;
• An employee’s need to obtain a COVID-19 vaccination including a booster; or,
• An employee’s need to recover from any side effect related to a COVID-19 vaccination.

Employees must provide notice of their need for PSL if practicable and only if the leave is foreseeable. Employers may request an employee to submit a self-certified statement asserting that leave was taken for a PSL reason. Employers must provide notice to employees of their rights under the law. Based on previous PSL laws in the city, our assumption is that if you do not have a physical worksite, the notice may be provided through your company intranet or sent via email to your employees.