COVID-19 Compliance Alerts

Federal

Posted on: April 17, 2023

Many employers may have questions and concerns about the impact of the anticipated May 11, 2023 end of the federal COVID-19 National Emergency and Public Health Emergency Orders. In response, on March 29, 2023, the U.S. Department of Labor (DOL), U.S. Department of Health and Human Services (HHS), and the U.S. Department of the Treasury issued frequently asked questions (FAQ) guidance to assist employers preparing for the end of these Orders. The FAQ guidance addresses questions related to the extended deadlines for COBRA, special enrollments and group health plan claims and appeals. The FAQ guidance also addresses coverage of vaccines. Click here for more information.

Next Steps

Review the FAQs for more details including what coverage of COVID-19 vaccines and preventive services, tests and treatment is required (or encouraged) after the Public Health Emergency Order expires.

Plan sponsors should be aware of the effect that the expiration of the two emergency periods will have on their benefit plans and will need to decide whether to continue to extend benefit plan deadlines. Regardless of any decision on continuing to extend deadlines, plan sponsors should consider how to communicate with participants about these issues.

I-9 Inspection Flexibility Ends Soon. In-Person Examination Deadline Set.

Posted on: May 10, 2023

The Department of Homeland Security (DHS) is reminding employers that the temporary policy that allowed employers to inspect Form I-9 documents remotely in certain situations related to COVID-19 will end on July 31, 2023. The DHS also announced that employers will have until August 30, 2023 to perform all required in-person/physical examinations of I-9 documents for those individuals who have only received a virtual examination.

The Details

By way of background, the Form I-9 is broken out into multiple sections:

Section Name	Section Overview	Completion Deadline
Section 1	Employee must attest that they are authorized to work in the U.S.	The employee's first day of work for pay
Section 2	Employee must present certain identity and work authorization documents. The employer must examine the document(s) to determine whether they reasonably appear to be genuine and relate to the employee. Employers must record the document number(s) here.	Within 3 business days
Section 3	If an employee's employment authorization expires, they must present new or updated document(s) and the employer must examine and record the document number(s) here. Employers may also be required to complete this section when rehiring a former employee, depending on how much time has passed.	No later than the date employment authorization expires
List of Acceptable Documents	List A documents establish both identity and employment authorization. List B documents establish identity only. List C documents establish employment authorization only.	This section does not need to be completed. It's for informational purposes only.

Temporary policy ends July 31, 2023.

Employers must generally inspect Section 2 documents in the employee's physical presence. However, due to the pandemic, the DHS had offered employers some flexibility. Specifically, until July 31, 2023, the requirement that employers inspect the I-9 documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis, according to the DHS. If employees work exclusively in a remote setting due to COVID-19-related precautions, they are temporarily exempt from the physical inspection requirements until they go back into the workplace on a regular, consistent, or predictable basis, or July 31, 2023, whichever is earlier.

Deadline for in-person document review is set for August 30, 2023.

With the flexible option ending on July 31, 2023, employers will have until August 30, 2023 to perform all required in-person physical examinations of documents for those individuals who have only received a virtual or remote examination under the flexible option, according to the DHS.

Once acceptable documents have been physically inspected, the employer should add "documents physically examined" with the date of inspection to the Section 2 additional information field on the Form I-9, or to Section 3 as appropriate. Employers should enter "COVID-19" as the reason for the physical inspection delay, according to the DHS instructions.

The instructions state that if the person who performed the remote inspection also performs the physical inspection, they should indicate the date they physically examined the documents then add their initials in the additional information field. If the person who performed the remote inspection cannot also perform the physical inspection, the person who performs the physical inspection should indicate the date they physically examined the documents as well as their full name and title in the additional information field.

Employers may designate an authorized representative to fill out the I-9 on behalf of the employer. If an authorized representative fills out the I-9 on behalf on the employer, the employer is still liable for any violations in connection with the form or the verification process. As such, employers that use an authorized representative should ensure that they are properly trained on the I-9 process.

Next Steps

If you have employees who have only received a virtual or remote examination of I-9 documents under the flexible option, make sure you complete in-person physical examinations and annotate their I-9s by August 30, 2023. The DHS has also proposed a rule that would allow alternative procedures for the inspection of I-9 documents. Watch for developments closely.

Use Current I-9 for Now, Remote Inspection Allowed Through July

Posted on October 25, 2022

The Department of Homeland Security (DHS) has announced that employers should continue using the current Form I-9 (Employment Eligibility Verification) until further notice. Separately, the DHS announced that employers will be allowed to inspect Form I-9 documents remotely in certain situations related to COVID-19 until July 31, 2023. Prior to the announcement, this temporary policy was set to expire on October 31, 2022.

The Form I-9 is used to verify a new hire's identity and work authorization. All employers must ensure that each employee properly completes the I-9 at the time of hire.

The Details:

I-9 Expiration Date Approaches:

The current edition of the I-9 has an expiration date of October 31, 2022. The DHS says employers should continue using this version until further notice. The DHS will publish a notice to announce the new version of the I-9 once it becomes available.

Remote Inspection:

By way of background, the I-9 is broken out into multiple sections:

Section Name	Section Overview	Completion Deadline
Section 1	Employee must attest that they are authorized to work in the U.S.	The employee's first day of work for pay
Section 2	Employee must present certain identity and work authorization documents. The employer must examine the document(s) to determine whether they reasonably appear to be genuine and relate to the employee. Employers must record the document number(s) here.	Within 3 business days
Section 3	If an employee's employment authorization expires, they must present new or updated document(s) and the employer must examine and record the document number(s) here. Employers may also be required to complete this section when rehiring a former employee, depending on how much time has passed.	No later than the date employment authorization expires
List of Acceptable Documents	List A documents establish both identity and employment authorization. List B documents establish identity only. List C documents establish employment authorization only.	This section does not need to be completed. It's for informational purposes only.

Generally, employers must inspect Section 2 documents in the employee's physical presence.

Temporary Policy for Remote I-9 Document Inspection:

Under the temporary policy, if employees hired on or after April 1, 2021 work exclusively in a remote setting due to COVID-19-related precautions, they are temporarily exempt from the physical inspection requirements until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. In situations in which the policy applies, employers must inspect the Section 2 documents remotely (such as, over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.

Once normal operations resume, all employees who were onboarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9. Once acceptable documents have been physically inspected, the employer should add "documents physically examined" with the date of inspection to the Section 2 additional information field on the Form I-9, or to Section 3 as appropriate. Employers should enter "COVID-19" as the reason for the physical inspection delay.

Employers that use this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employer.

Next Steps:

Continue to use the current edition of the I-9 until further notice from the DHS.
If you qualify for the temporary exemption from the in-person inspection requirement:
- Make sure you comply with the rules outlined above.
- Monitor the DHS website for additional updates regarding the temporary policy.

Use Current I-9 for Now, Remote Inspection Allowed Through July

The Department of Homeland Security (DHS) has announced that employers should continue using the current Form I-9 (Employment Eligibility Verification) after its expiration date of October 31, 2022. Separately, the DHS announced that employers will be allowed to inspect Form I-9 documents remotely in certain situations related to COVID-19 until July 31, 2023. Prior to the announcement, this temporary policy was set to expire on October 31, 2022.

The Form I-9 is used to verify a new hire's identity and work authorization. All employers must ensure that each employee properly completes the I-9 at the time of hire.

The Details:

I-9 Expiration Date Approaches:

Remote Inspection:

By way of background, the I-9 is broken out into multiple sections:

Section Name	Section Overview	Completion Deadline
Section 1	Employee must attest that they are authorized to work in the U.S.	The employee's first day of work for pay
Section 2	Employee must present certain identity and work authorization documents. The employer must examine the document(s) to determine whether they reasonably appear to be genuine and relate to the employee. Employers must record the document number(s) here.	Within 3 business days
Section 3	If an employee's employment authorization expires, they must present new or updated document(s) and the employer must examine and record the document number(s) here. Employers may also be required to complete this section when rehiring a former employee, depending on how much time has passed.	No later than the date employment authorization expires
List of Acceptable Documents	List A documents establish both identity and employment authorization. List B documents establish identity only. List C documents establish employment authorization only.	This section does not need to be completed. It's for informational purposes only.

Generally, employers must inspect Section 2 documents in the employee's physical presence.

Temporary Policy for Remote I-9 Document Inspection:

Employers that use this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employer.

Next Steps:

Continue to use the current version of the I-9 until further notice from the DHS.
If you qualify for the temporary exemption from the in-person inspection requirement:
- Make sure you comply with the rules outlined above.
- Monitor the DHS website for additional updates regarding the temporary policy.

Updated on December 27, 2021

The Department of Homeland Security (DHS) has announced that employers will be allowed to inspect Form I-9 documents remotely in certain situations related to the coronavirus disease 2019 (COVID-19). These procedural changes have been extended until April 30, 2022.

Background:

The Form I-9 is used to verify a new hire's identity and work authorization. All employers must ensure that each employee properly completes the I-9 at the time of hire. The form is broken out into multiple sections:

Section Name	Section Overview	Completion Deadline
Section 1	Employee must attest that they are authorized to work in the U.S.	The employee's first day of work for pay
Section 2	Employee must present certain identity and work authorization documents. The employer must examine the document(s) to determine whether they reasonably appear to be genuine and relate to the employee. Employers must record the document number(s) here.	Within 3 business days
Section 3	If an employee's employment authorization expires, they must present new or updated document(s) and the employer must examine and record the document number(s) here. Employers may also be required to complete this section when rehiring a former employee, depending on how much time has passed.	No later than the date employment authorization expires
List of Acceptable Documents	70	This section does not need to be completed. It's for informational purposes only.

Generally, employers must inspect Section 2 documents in the employee's physical presence.

Temporary Guidance for Remote I-9 Document Inspection:

Covered Employers:

The temporary changes apply only to employers and workplaces that are operating remotely as a result of COVID-19. If there are employees physically present at a work location, no exceptions are being implemented at this time.

Update: The DHS has released subsequent guidance that states that as of April 1, 2021, the requirement that employers inspect employees' Form I-9 identity and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis. If employees hired on or after April 1, 2021 work exclusively in a remote setting due to COVID-19-related precautions, they are temporarily exempt from the physical inspection requirements until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.

Temporary Changes:

The DHS says covered employers with employees taking physical proximity precautions due to COVID-19 will be temporarily exempt from the requirement to review the Section 2 documents in the employee's physical presence. However, employers must inspect the Section 2 documents remotely (such as, over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.

Employers that use this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employer.

Expiration of Exemption:

The temporary changes were set to expire May 19, 2020, or within three business days after the termination of the National Emergency, whichever occurs first. However, the DHS has extended them until April 30, 2022.

Compliance Recommendations:

Employers that qualify for the temporary exemption should ensure they comply with the rules outlined above.

Updated on May 14, 2020

The Department of Homeland Security (DHS) has issued a temporary policy regarding expired documents used for Form I-9 purposes. The I-9 is used to verify a new hire's identity and work authorization.

Background:

To complete Section 2 of the I-9, employees must present unexpired documents that verify their identity and employment authorization. The I-9 Form includes a List of Acceptable Documents (List A, List B, and List C). An employee must present one document from List A or one document from List B and one document from List C.

List A documents: establish both identity and employment authorization
List B documents: establish identity only
List C documents: establish employment authorization only

Temporary Policy:

On May 1, 2020, the DHS issued a temporary policy to address the challenges individuals may experience when renewing a state driver's license, a state ID card, or other List B identity document due to the restrictions put in place for COVID-19.

Documents set to expire without extensions from issuing authority:

Beginning May 1, 2020, identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority (such as the state DMV), may be treated the same as if the employee presented a valid receipt for an acceptable document.

In such cases, the employer should:

Record the document information in Section 2 under List B, as applicable; and
Enter the word "COVID-19" in the Additional Information Field.

Note: If the List B document expired before March 1, 2020, the temporary policy won't apply, and the employer won't be able to accept it.

Within 90 days after the DHS's termination of this temporary policy, the employee must present a valid unexpired document to replace the expired document presented when they were initially hired. If necessary, the employee may choose to present a different List A or List B document(s) and you would then record the new document information in the additional Information field.

When the employee later presents an unexpired document, in the Section 2 Additional information field you should:

Record the number and other required document information from the actual document presented; and
Initial and date the change.

Documents set to expire with extensions from issuing authority:

If the employee's List B identity document expired on or after March 1, 2020, and the issuing authority has extended the document expiration date due to COVID-19, the document is acceptable as a List B document (and is not considered a receipt) during the extension timeframe specified by the issuing authority. Note: If the List B document expired before March 1, 2020, the temporary policy won't apply, and the employer won't be able to accept it.

In such cases, employers should:

Enter the document's expiration date in Section 2; and
Enter "COVID-19 EXT" in the Additional Information Field.

Employers may also attach a copy of a webpage or other notice indicating that the issuing authority has extended the document expiration, such as the state DMV website. For extended documents, the employee isn't required to later present a valid unexpired document to verify identity.

E-Verify:

E-Verify participating employers should use the employee's expired List B document number from Section 2 of the Form I-9 to create an E-Verify case as usual within three days of the date of hire.

Compliance Recommendations

When new hires present documents covered by the temporary policy, employers should follow the applicable procedures above. At this time, the DHS hasn't relaxed current I-9 standards related to expiring employment authorization documents.

Posted on September 7, 2022

On August24, 2022, President Biden announced an extension of the pause on student loan repayment through December 31, 2022, along with a plan to forgive a certain amount of student loan debt for certain individuals.

The Details:

The Coronavirus Aid, Relief, and Economic Security Act ("CARES Act") was signed into law on March 27, 2020. The CARES Act was the third stimulus bill aimed at providing relief to employers and individuals affected by COVID-19. One of the provisions of the CARES Act addressed federal student loans.

Under the CARES Act, re payment of certain federal student loans, including direct loans, Perkins loans and Federal Family Education Loans owned by the United States Department of Education, were automatically suspended from March 13 through September 30, 2020. In addition, interest did not accrue and collection actions and wage garnishments for student loans ceased. Private student loans did not qualify for the relief.

Subsequently, President Biden extended the pause on student loan repayment several times, with the last extension set to expire on August 31, 2022.Then, on

August 24, 2022, President Biden announced another extension.

Latest Extension:

On August 24, 2022, President Biden announced:

To ensure a smooth transition to repayment and prevent unnecessary defaults, the pause on federal student loan repayment will be extended one final time through December 31, 2022. Borrowers should expect to resume payment in January 2023.

Student Loan Debt Forgiveness:

In addition, the President announced a plan that allows for a certain amount of student loan debt forgiveness for individuals earning less than $125,000 ($250,000 if married filing jointly).

For more information on the extension of the student loan repayment pause and the details of the student loan debt forgiveness, click here.

Have Questions?

Please contact your dedicated service professional with any questions.

Posted on May 2, 2022

The Department of Homeland Security (DHS) has announced that employers will be allowed to inspect Form I-9 documents remotely in certain situations related to COVID-19 until October 31, 2022. Prior to the announcement, this temporary policy was set to expire on April 30, 2022.

The Details:

Section Name	Section Overview	Completion Deadline
Section 1	Employee must attest that they are authorized to work in the U.S.	The employee's first day of work for pay
Section 2	Employee must present certain identity and work authorization documents. The employer must examine the document(s) to determine whether they reasonably appear to be genuine and relate to the employee. Employers must record the document number(s) here.	Within 3 business days
Section 3	If an employee's employment authorization expires, they must present new or updated document(s) and the employer must examine and record the document number(s) here. Employers may also be required to complete this section when rehiring a former employee, depending on how much time has passed.	No later than the date employment authorization expires
List of Acceptable Documents	List A documents establish both identity and employment authorization. List B documents establish identity only. List C documents establish employment authorization only.	This section does not need to be completed. It's for informational purposes only.

Generally, employers must inspect Section 2 documents in the employee's physical presence.

Temporary Policy for Remote I-9 Document Inspection:

Employers that use this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employer.

Next Steps:

If you qualify for the temporary exemption:

Make sure you comply with the rules outlined above.
Monitor the DHS website for additional updates regarding the temporary policy.

Posted on January 28, 2022

The U.S. Occupational Safety and Health Administration (OSHA) has withdrawn its emergency temporary standard (ETS) that required employers with 100 or more employees to enforce a mandatory COVID-19 vaccination policy.

Click here for more details on OSHA’s withdrawal of the ETS.

Next Steps:

Continue to monitor and ensure compliance with any state and/or local laws and orders pertaining to vaccine and/or masking mandates when creating and enforcing policies.
Watch for developments from OSHA, which may still adopt a permanent rule in the future.

Posted on January 17, 2022

The United States Supreme Court has issued a decision that blocks a federal OSHA emergency temporary standard (ETS) that would require employers with 100 or more employees to ensure that employees either be vaccinated against COVID-19 or produce a weekly negative test. The court issued a separate decision that allows a Centers for Medicare & Medicaid Services Interim Final Rule (CMS Rule), requiring vaccination among certain healthcare workers, to stand.

Click here for more details on the decisions.

Next Steps:

If you are covered by the CMS Rule, immediately prepare for the upcoming vaccination deadlines.

The following compliance deadlines apply to Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia and Wyoming:

By  February 14, 2022, all covered staff must have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine or have a pending request for, or have been granted, a qualifying exemption;
By March 15, 2022, all covered staff must have received the second dose of two-dose COVID-19 vaccine (if applicable) or have been granted a qualifying exemption

The following compliance deadlines apply to all other states and the District of Columbia:

By  January 27, 2022, all covered staff must have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine or have a pending request for, or have been granted, a qualifying exemption;
By February 28, 2022, all covered staff must have received the second dose of two-dose COVID-19 vaccine (if applicable) or have been granted a qualifying exemption.

In addition, while the ETS is currently blocked, monitor further activities on the topic and check for any state or local requirements that may impact vaccinations, testing, and other COVID-19 measures that need to be implemented with their workforce.

For more information, join us for a webinar on these latest updates here and visit ADP's Employer Preparedness Toolkit for COVID-19 here.

Posted on January 3, 2022

The Centers for Medicare & Medicaid Services (CMS) has announced that it will enforce an emergency rule regarding vaccination of healthcare workers in 25 states and the District of Columbia.

The Details:

By way of background, CMS issued an emergency rule in early November that would require COVID-19 vaccination for workers at healthcare facilities that participate in Medicare and Medicaid programs. However, preliminary injunctions issued in late November are blocking the implementation and enforcement of the emergency rule in 25 states. CMS is appealing those decisions, and the U.S. Supreme Court is scheduled to hear oral arguments on the preliminary injunctions on January 7, 2022.

Previously, CMS said it wouldn’t attempt to enforce the emergency rule in any state pending future developments in the litigation. However, on December 28, 2021, CMS issued updated guidance indicating that it plans to enforce the emergency rule in the jurisdictions where it isn’t blocked by injunction. As a result, CMS will enforce the rule in the following states and the District of Columbia:

California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin.

New Compliance Deadlines:

The following compliance deadlines apply in the above jurisdictions:

By January 27, 2022, all covered staff must have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine or have a pending request for, or have been granted, a qualifying exemption;
By February 28, 2022, all covered staff must have received the second dose of two-dose COVID-19 vaccine (if applicable) or have been granted a qualifying exemption.

Covered Facilities:

The CMS emergency rule applies to the following Medicare and Medicaid certified providers and suppliers:

Home Health Agencies
Home Infusion Therapy Suppliers
Hospices
Long Term Care Facilities
Hospitals
Ambulatory Surgery Centers
Community Mental Health Centers
Comprehensive Outpatient Rehabilitation Facilities
Critical Access Hospitals
End-Stage Renal Disease Facilities
Intermediate Care Facilities for Individuals with Intellectual Disabilities
Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services
Psychiatric Residential Treatment Facilities
Programs for All-Inclusive Care for the Elderly Organizations
Rural Health Clinics/Federally Qualified Health Centers

Staff Coverage:

The vaccination requirement applies to eligible staff working at a facility that participates in Medicare and Medicaid programs, regardless of clinical responsibility or patient contact. The requirement includes all current staff as well as any new staff who provide any care, treatment, or other services for the facility and/or its patients. This includes facility employees, licensed practitioners, students, trainees, volunteers, and individuals under contract or other arrangements.

Next Steps:

If you are covered by the emergency rule and have workers in any of the jurisdictions where it will be enforced, develop and implement policies and procedures for ensuring staff are vaccinated for COVID-19 by the applicable deadline. For employers in states and localities that prohibit or restrict vaccination or face covering requirements, discuss planning and preparation options with your internal or external employment counsel. Continue to watch for developments closely.

Posted on December 21, 2021

The U.S. Court of Appeals for the Sixth Circuit has issued a ruling that allows OSHA to resume efforts to implement the emergency temporary standard (ETS), which requires certain businesses to ensure that employees either be vaccinated against COVID-19 or produce a weekly negative test

The Details:

On November 4, 2021, the U.S. Occupational Safety and Health Administration (OSHA) issued an ETS applicable to businesses with 100 or more employees requiring, among other things, that employees either be vaccinated against COVID-19 or produce a weekly negative test. The ETS was stayed nationwide on November 12, 2021, by order of the U.S. Court of Appeals for the Fifth Circuit. The various legal challenges to the ETS were subsequently consolidated in the U.S. Court of Appeals for the Sixth Circuit for further proceedings.

On December 17, 2021, the Sixth Circuit dissolved the stay, allowing OSHA to resume efforts to implement the ETS.

What Does This Mean for Covered Employers?

Shortly after the Sixth Circuit dissolved the stay, OSHA announced that it wouldn’t take action against businesses for noncompliance with any portion of the ETS before January 10, 2022, and specifically with respect to the ETS's testing requirements, before February 9, 2022, "so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard."

None of the 22 approved State Plans, including Puerto Rico, covering private employers have taken steps to enact an ETS, but they are required to notify OSHA of their intentions to do so within 15 days of promulgation of the standard, and to act within 30 days. In addition, California's Cal/OSHA has approved revisions to the state's existing COVID-19 emergency temporary standard. It is unclear whether it will take further action now with respect to the OSHA ETS. It is also unclear whether the Fifth Circuit stay that was in effect until December 17 tolls the deadlines for OSHA State plan adoption deadlines. The ETS has immediate effect in the other 29 states and territories, albeit with the new enforcement deadlines.

Emergency Petition for Review and Stay:

Shortly after the Sixth Circuit Court's Order, 26 trade groups filed an Emergency Application for review before the United States Supreme Court. The Application requests an immediate stay of the ETS pending review by the Supreme Court. The opposition to the Application is due to be filed with the Supreme Court by December 30, 2021 at 4 p.m. It is unclear, at this time, whether the Supreme Court will agree to review the ETS or grant a stay pending review of the Emergency Application.

Does the Lifted Stay Mean That Conflicting State and Local Laws Are Preempted By the ETS?

Employers in states and localities that prohibit or restrict vaccination or face covering requirements must be mindful of state and local laws, ordinances, and executive orders that might limit the employer's ability to require vaccination or otherwise conflict with ETS requirements, particularly if an employer opts for the ETS's mandatory vaccination policy. While the Sixth Circuit lifted the stay, it has yet to decide the case on the merits, including arguments over whether the ETS overrides state or local laws due to federal preemption.

Next Steps:

Companies with a 100 or more employees that fall within the requirements of the ETS will want to prepare to come into compliance with the ETS by no later than the extended deadlines provided by OSHA. For those employers in state and localities that prohibit or restrict vaccination or face covering requirements, those employers should discuss planning and preparation options with their internal or external employment counsel. For a more detailed review of the various requirements of the ETS, please see OSHA Releases COVID-19 Vaccination and Testing Emergency Rule, available below.

Updated on December 21, 2021

The U.S. Occupational Safety and Health Administration (OSHA) has released an emergency temporary standard (ETS) that implements several new requirements for employers with 100 or more employees to reduce the spread of COVID-19, including vaccination and testing mandates.

Update: On December 17, 2021, The U.S. Court of Appeals for the Sixth Circuit issued a ruling that allows OSHA to resume efforts to implement the emergency temporary standard (ETS). Shortly after the Sixth Circuit dissolved the stay, OSHA announced that it wouldn't take action against businesses for noncompliance with any portion of the ETS before January 10, 2022, and specifically with respect to the ETS's testing requirements, before February 9, 2022, "so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard." Trade groups have filed an Emergency Application for review before the United States Supreme Court. The Application requests an immediate stay of the ETS pending review by the Supreme Court. Employers should watch for developments closely.

Background:

On September 9, President Biden signed an Executive Order implementing several new policies to reduce the spread of COVID-19. The Order noted that the Occupational Safety and Health Administration (OSHA) would issue guidance requiring employers with 100 or more employees to require their employees to either be vaccinated against COVID-19 or produce a weekly negative test. On November 4, 2021, OSHA released an ETS to implement the requirements announced in the Executive Order.

Covered Employers:

This ETS applies to all employers with a total of 100 or more employees at any time the ETS is in effect, unless the employer falls under one of the exemptions outlined below. Based on this scope, employers in nearly every sector are expected to be covered by this ETS.

The applicability of this ETS is based on the size of an employer, in terms of number of employees, rather than on the type or number of workplaces. In determining the number of employees, employers must include all employees across all of their U.S. locations, regardless of employees' vaccination status or where they perform their work. Part-time employees do count towards the company total, but independent contractors don't.

Examples provided by the ETS in determining the 100-employee threshold:

If an employer has 75 part-time employees and 25 full-time employees, the employer would be within the scope of this ETS because it has 100 employees.
If an employer has 102 employees and only 3 ever report to an office location, that employer would be covered.
If an employer has 200 employees, all of whom are vaccinated, that employer would be covered.
If an employer has 125 employees, and 115 of them work exclusively outdoors, that employer would be covered.
If a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.
If a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer wouldn't count the staffing agency employees for coverage purposes and therefore wouldn't be covered. (So long as the staffing agency has at least 100 employees, however, the staffing agency would be responsible for ensuring compliance with the ETS for the jointly employed workers.)

OSHA says it is confident that employers with 100 or more employees have the administrative capacity to implement the standard's requirements promptly, but is less confident that smaller employers can do so without undue disruption. OSHA announced that it will assess the capacity of smaller employers to follow similar requirements and is seeking comment to help the agency make that determination. In addition, OSHA's new finding of grave danger applies to healthcare and healthcare support workers who aren't covered by the Healthcare ETS, to the extent they remain unvaccinated.

Compliance Deadlines:

The compliance date for all provisions in the ETS is December 5, 2021, except for COVID-19 testing for employees who aren't fully vaccinated, which requires compliance by January 4, 2022. Note that the vaccination deadline of January 4, 2022, is only to receive the full dose shots (2nd shot of Pfizer/ Moderna or 1st shot of Johnson & Johnson). The employee doesn't have to receive the full dose shots two weeks prior to that deadline and isn't required to receive any booster shots.

Employees Exempted from the ETS:

OSHA's ETS provides for several categories of workers who are exempted from the ETS's requirements:

Workers who don't report to a workplace where other individuals are present or who telework from home;
Workers who perform their work exclusively outdoors – if they work outdoors on all days, except for de minimis use of indoor spaces, such as restrooms, and don't occupy vehicles with other workers for work purposes;
Workplaces covered under the Guidance for Federal Contractors and Subcontractors, as these workers are already covered by a vaccination mandate; and,
Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS, since these workers are also covered by a vaccination mandate.

Employer Policy on Vaccination:

The ETS requires each covered employer to establish and implement a written mandatory vaccination policy unless the employer adopts an alternative policy requiring COVID-19 testing once every seven days and face coverings for unvaccinated employees.

To meet the definition of "mandatory vaccination policy," the policy must require vaccination of all employees, including all new employees as soon as practicable, other than those employees:

For whom a vaccine is medically contraindicated,
For whom medical necessity requires a delay in vaccination, or
Those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious belief, practice, or observance that conflict with the vaccination requirement.

COVID-19 Testing for Unvaccinated Employees:

The ETS requires employers to ensure that employees who aren't fully vaccinated and who report at least once every seven days to a workplace where other individuals such as coworkers or customers are present are:

Tested for COVID-19 at least once every seven days; and
Provide documentation of the most recent COVID-19 test result to the employer no later than the seventh day following the date the employee last provided a test result.

Employers must also ensure that employees who aren't fully vaccinated and don't report during a period of seven or more days to a workplace where other individuals are present are:

Tested for COVID-19 within seven days prior to returning to the workplace; and
Provide documentation of that test result upon return to the workplace.

If an employee doesn't provide documentation of a COVID-19 test result as required by the ETS, the employer must keep that employee removed from the workplace until they provide a test result.

In addition, when an employee has received a positive COVID-19 test, or has been diagnosed with COVID-19 by a licensed healthcare provider, the employer must remove the employee from the workplace immediately and until they meet criteria for return and may not require that employee to undergo COVID-19 testing for 90 days following the date of their positive test or diagnosis.

Face Coverings:

The ETS requires the employer to ensure that all employees who aren't fully vaccinated wear a face covering when indoors and when occupying a vehicle with another person for work purposes, except:

When an employee is alone in a room with floor to ceiling walls and a closed door;
For a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements;
When employees are wearing respirators or face masks; or
Where the employer can show that the use of face coverings is infeasible or creates a greater hazard.

Face covering means a covering that completely covers the nose and mouth of the wearer, excluding face shields, which is made with two or more layers of a breathable fabric that is tightly woven, is secured to the wearer's head with ties, ear loops, or elastic bands that go behind the head, and is a solid piece of material without slits, exhalation valves, visible holes, or other openings in the material. Also acceptable are face coverings that include clear plastic windows, such as those utilized by persons communicating with those who are deaf or hard-of-hearing or when seeing a person's mouth is otherwise important.

The employer must permit the employee to wear a respirator instead of a face covering, whether required or not. In addition, the employer may provide respirators or face coverings to the employee, even if not required. In such circumstances, where the employer provides respirators, the employer must also comply with § 1910.504, Mini respiratory protection program.

Employers cannot prohibit any employee – even those who are vaccinated – from wearing a mask.

Employer Required Information to Employee:

The ETS requires the employer to inform each employee, in a language and at a literacy level the employee understands about:

The requirements of the ETS, as well as any employer policies and procedures established to implement the ETS;
COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated, by providing employees the CDC document, "Key Things to Know About COVID-19 Vaccines," available at: https://www.cdc.gov/coronavirus/2019- ncov/vaccines/keythingstoknow.html (CDC, October 7, 2021), to each employee. The employer may choose to provide this information to employees in either an electronic or print format. The CDC currently provides this document in multiple languages; however, employers may need to provide additional translations if necessary;
The time and pay/leave they are entitled to for vaccinations and any side effects experienced following vaccinations;
The requirements of the OSH Act that work together to protect employees from retaliation for engaging in activities protected by OSHA statute or regulation. The first of these provisions prohibits employers from discharging or in any manner discriminating against any employee for reporting a work-related injury or illness. The second provision prohibits employers from discriminating or retaliating against employees for exercising rights under, or as a result of actions required by, the ETS, including filing complaints or reporting work-related injuries;
The procedures they need to follow to provide notice of a positive COVID-19 test or diagnosis of COVID-19 by a licensed healthcare provider, as well as the procedures to be used for requesting records (more details below);
Information regarding the prohibitions of the OSH Act, which provide for criminal penalties associated with knowingly supplying false statements or documentation. False statements or documents made or submitted for purposes of complying with policies required by this ETS could fall under either or both of these statutory provisions; and,
Additional information to unvaccinated employees, including information about the employer's policies and procedures for COVID-19 testing and face coverings.

When an employer's policies or procedures change, the employer must provide any updated or supplemental information to employees.

Employee Notification to Employer of a Positive COVID-19 Test:

The employer must require each employee to promptly notify the employer if they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider and must immediately remove any employee from the workplace who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider.

The employee must be removed until the employee: (i) receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing; (ii) meets the return to work criteria in CDC's "Isolation Guidance"; or (iii) receives a recommendation to return to work from a licensed healthcare provider.

Determining Employee's Vaccination Status:

The ETS requires employers to determine the vaccination status of each employee. Employers must require employees to provide an acceptable proof of vaccination status, including whether they are fully or partially vaccinated.

Acceptable proof of vaccination status is:

The record of immunization from a health care provider or pharmacy;
A copy of the COVID-19 Vaccination Record Card;
A copy of medical records documenting the vaccination;
A copy of immunization records from a public health, state, or tribal immunization information system; or a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).

A signed and dated employee attestation is acceptable in instances when an employee is unable to produce proof of vaccination. Specifically, in instances where an employee is unable to produce acceptable proof of vaccination, per above, it is acceptable for the employee to provide a signed and dated statement by the employee, subject to criminal penalties for knowingly providing false information: (1) attesting to their vaccination status (fully vaccinated or partially vaccinated); and (2) testing that they have lost and are otherwise unable to produce proof required by the ETS.

Finally, when an employer has ascertained employee vaccination status prior to the effective date of the ETS through another form of attestation or proof, and retained records of that ascertainment, the employer is exempt from the requirements of collecting proof of vaccination status. The exemption applies only for each employee whose fully vaccinated status has been documented prior to the effective date of the standard. For example, an employer may have asked each employee to self-report their vaccination status without requiring the employee to provide any form of proof. If that self-reporting was through oral conversation only, and not documented in some way, the employer isn't considered to have retained records of that ascertainment for the purposes of this ETS. However, if, for example, the employer had the employees provide their vaccine information on a dated form, or through individual emails retained by the employer, or on an employer portal specifically created for employees to provide documentation status, or the employer created and retained some other means of documentation, the employer is considered to have retained records of ascertainment for the purposes of this ETS. Even if this exemption applies, the employer must still develop a roster of each employee's vaccination status and include on that roster the employees for whom it had previously determined and retained records of vaccination status.

Recordkeeping Requirements:

The employer must maintain a record and a roster of each employee's vaccination status. Employers must also maintain a record of each test result provided by each employee. This information is subject to applicable legal requirements for confidentiality of medical information. These records must be preserved while the ETS is in effect.

Employee Access to Records:

The employer must make available, for examination and copying, the individual COVID-19 vaccine documentation and any COVID-19 test results required by the ETS for a particular employee to that employee and to anyone having written authorized consent of that employee by the end of the next business day after a request.

The ETS also requires the employer to make the following information available to an employee or an employee representative on request: (1) the aggregate number of fully vaccinated employees at a workplace and (2) the total number of employees at that workplace. This information must be made available to these individuals by the end of the next business day after a request. Employers will be able to utilize the roster of each employee's vaccination status they are required to maintain to provide this information promptly to a requester.

Employee, for purposes of this requirement, includes former employees.

Requesters are entitled to one free copy of each requested record. After receiving an initial, free copy of a requested record or document, an employee, former employee, or representative may be charged a reasonable fee for copying duplicative records. However, no fee may be charged for an update to a previously requested record. It should be noted that each COVID-19 test is a separate record, and, as such, the employee or the representative is entitled to one free copy of each COVID-19 test record.

OSHA notes that since the aggregate totals of fully vaccinated employees and total employees made available by request don't contain any personal identifiable information or personal medical information, OSHA says it doesn't believe that access to these records raises any serious confidentiality or privacy concern if disclosed to employees or their representatives.

OSHA Access to Records:

Employers must provide the written vaccine policy required by the ETS and both the aggregate number of fully vaccinated employees at a workplace and the total number of employees at that workplace, to the Assistant Secretary of OSHA for examination and copying within four business hours of a request.

Employer Support for Employee Vaccination:

The ETS requires all covered employers to support vaccination by providing employees with reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid leave to recover from vaccination side effects.

OSHA understands that employees may need much less than four hours to receive a primary vaccination dose, for example, if vaccinations are offered on-site. However, OSHA also understands that, in some circumstances, an employee may need more than four hours to receive a primary vaccination dose, in which case the additional time, as long as it is reasonable, would be considered unpaid but protected leave. The employer cannot terminate the employee if they use a reasonable amount of time to receive their primary vaccination doses. The employee may use other available leave time (e.g., sick leave or vacation time) to cover the additional time needed to receive a vaccination dose that would otherwise be unpaid.

If an employee already has accrued paid sick leave, an employer may require the employee to use that paid sick leave when recovering from side effects experienced following a primary vaccination dose. Additionally, if an employer doesn't specify between different types of leave (i.e., employees are granted only one type of leave), the employer may require employees to use that leave when recovering from vaccination side effects. If an employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use the sick leave when recovering from vaccination side effects. Employers cannot require employees to use advanced sick leave to cover reasonable time needed to recover from vaccination side effects. An employer may not require an employee to accrue negative paid sick leave or borrow against future paid sick leave to recover from vaccination side effects.

Employers aren't, however, obligated by this ETS to reimburse employees for transportation costs (e.g., gas money, train/bus fare, etc.) incurred to receive the vaccination. This could include the costs of travel to an off-site vaccination location (e.g., a pharmacy) or travel from an alternate work location (e.g., telework) to the workplace to receive a vaccination dose. Because employers are required to provide reasonable time for vaccination during work hours, if an employee chooses to receive a primary vaccination dose outside of work hours, employers aren't required to grant paid time to the employee for the time spent receiving the vaccine during non-work hours. However, even if employees receive a primary vaccination dose outside of work hours, employers must still afford them reasonable time and paid sick leave to recover from side effects that they experience during scheduled work time.

Costs Associated with Testing and Face Coverings:

Where an employee chooses to remain unvaccinated, the ETS doesn't require employers to pay for the costs associated with regular COVID-19 testing or the use of face coverings. That is, employees will be required to bear the costs if they choose to be regularly tested and wear a face covering in lieu of vaccination, though other laws, regulations or orders or agreements, such as collective bargaining agreements, could require otherwise. For example, OSHA notes, that in certain circumstances, the employer may be required, under the Fair Labor Standards Act, to pay for the time it takes an employee to be tested (e.g., if employee testing is conducted in the middle of a work shift). In addition, some states have expense reimbursement statutes and some state laws ban employers from passing on to employees the costs of mandatory medical examinations.

The ETS doesn't require the employer to provide paid time off to any employee for removal from work as a result of the employee's refusal/failure to provide documentation of a COVID-19 test result as required by the ETS.

The ETS Preempts State and Local Laws:

OSHA intends the ETS to address comprehensively the occupational and safety and health issues of vaccination, wearing face coverings, and testing for COVID-19. Thus, the standard is intended to preempt states, and political subdivisions of states, from adopting and enforcing workplace requirements relating to these issues, except under the authority of a Federally-approved State Plan. In particular, OSHA intends to preempt any state or local requirements that ban or limit an employer from requiring vaccination, face coverings, or testing.

State Plans:

When federal OSHA promulgates an emergency temporary standard, States and U.S. Territories with their own OSHA-approved occupational safety and health plans ("State Plans") must either amend their standards to be identical or "at least as effective as" the new standard, or show that an existing State Plan standard covering this area is "at least as effective" as the new Federal standard.

The ETS imposes new requirements to protect workers across the nation from COVID-19. Adoption of this ETS, or an ETS that is at least as effective as this ETS, by State Plans must be completed within 30 days of the promulgation date of the final Federal rule, and State Plans must notify Federal OSHA of the action they will take within 15 days.

The State Plan standard must remain in effect for the duration of the Federal ETS. As with all non-identical State Plan standards, OSHA will review any comparable State standards to determine whether they are at least as effective as this ETS.

FAQs:

OSHA has published FAQs to assist in understanding of the ETS.

Compliance Recommendations:

Covered employers should review the ETS in full and ensure compliance by the applicable deadline.

Posted on December 13, 2021

The Internal Revenue Service (IRS) has issued guidance (Notice 2021-65) regarding the retroactive termination of the Employee Retention Tax Credit (ERTC). The recently enacted Infrastructure Investment and Jobs Act terminated the ERTC with retroactive effect to September 30, 2021 (i.e., wages paid after that date do not qualify for the ERTC, unless the employer is a recovery startup business).

Notice 2021-65 applies to employers who paid wages after September 30, 2021, and either received advance payments of the ERTC for such wages or reduced employment tax deposits in anticipation of the credit for the fourth quarter of 2021 but are now ineligible due to the Infrastructure Investment and Jobs Act.

Background:

Originally introduced as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020, the American Rescue Plan Act of 2021 extended the availability of the ERTC through wages paid through December 31, 2021.

Generally, for 2021 the employers were eligible for the ERTC based on whether they experienced at least a partial suspension of operations due to government restrictions related to COVID-19, or incurred declines in gross receipts of more than 20 percent compared to the same calendar quarter in 2019 (or 2020, in some cases). Up to $10,000 in wages per employee was eligible for the credit each quarter, and the credit was 70 percent of qualified wages (i.e., the total possible ERTC was $7,000 per employee per quarter in 2021). Employers were able to take the credit by filing IRS Form 7200 to request a payment, or by reducing federal employment tax deposits by any ERTC amount for which the employer was eligible.

IRS Notice 2021-65:

Employers That Received Advance Payments

Employers were able to request advance payments of the ERTC by filing a Form 7200. Employers that received advance payments of the ERTC for wages paid during the fourth quarter of 2021 must repay those amounts to the IRS by the due date of their applicable employment tax returns; i.e., generally by January 31, 2022.

Employers That Reduced Employment Tax Deposits

Employers that reduced deposits for wages paid during the fourth calendar quarter of 2021 in anticipation of the ERTC will be required to repay (deposit) the amounts retained on or before the due date for wages paid on December 31, 2021 (regardless of whether the employer actually pays wages on that date). For semiweekly depositors, this would generally be January 3 or January 5, 2022, depending on whether the accelerated next-day deposit requirement for liabilities of $100,000 or more is met.

The IRS guidance concerning how to report the tax liability associated with ERTC reversals referred employers to the instructions to the applicable employment tax return or schedule (i.e., Form 941 Schedule B, Report of Tax Liability for Semiweekly Schedule Depositors). The schedule and instructions have not been released as of December 8, 2021. Consequently, employers should monitor IRS guidance for details. Depending on the IRS instructions for how to report the tax liability associated with ERTC reversals, the IRS may or may not issue proposed penalties for apparent late deposits of employment taxes. In accordance with Notice 2021-65, proposed penalties related to deposits due prior to December 21 would be waived upon request, but IRS penalty notices may be issued, and if so, employers would need to diligently respond to explain the circumstances and ask that the penalty be waived.

Generally, employers should have ceased applying ERTC amounts to deposits once the Infrastructure Investment and Jobs Act was signed (November 15, 2021). However, to provide appropriate time for employers to learn about the change and adjust their systems, Notice 2021-65 specifies that no penalties will apply for employers that reduced deposits of Employment Taxes by the amount of an anticipated ERTC for deposits due on or before December 20, 2021. Employers that reduce deposits after December 20, 2021, in anticipation of the Employee Retention Credit, will be subject to failure to deposit penalties, which will not be waived.

Recovery Startup Businesses Continue to Be Eligible for ERTC Through December 31, 2021

Section 3134(c)(5) defines a "recovery startup business" as an employer that began carrying on a trade or business after February 15, 2020, for which the average annual gross receipts do not exceed $1,000,000, and that is not otherwise an eligible employer due to a full or partial suspension of operations or a decline in gross receipts. A recovery startup business is permitted a credit of no more than $50,000 per quarter in the third and fourth quarters of 2021.

Action Required:

Other than recovery startup businesses, employers should cease applying any ERTC amounts to pay dates after September 2021.
Any ERTC credits applied after September must be reversed and paid to the IRS at this time.

ADP^® Tax Filing Service clients will receive a separate communication explaining the funding and repayment process for ERTC amounts applied after September 2021. ADP Tax Filing Service clients who requested and received advance payments via Form 7200 will need to coordinate this information with ADP.

Next Steps:

ADP will monitor for IRS instructions for reporting ERTC reversal liabilities. Depending on such guidance from the IRS, late deposit penalties may apply to any ERTC amounts applied after September. If such notices are issued, employers would need to diligently respond to explain the circumstances and ask that the penalty be waived. ADP will publish additional details as soon as possible.

Updated on December 23, 2021

The Centers for Medicare & Medicaid Services (CMS) has announced that it won’t enforce an emergency rule regarding vaccination of healthcare workers pending future developments in litigation seeking to block the implementation of it.

The Details:

In early November, CMS issued an emergency rule that would require COVID-19 vaccination for workers at healthcare facilities that participate in Medicare and Medicaid programs, including:

Home Health Agencies
Home Infusion Therapy Suppliers
Hospices
Long Term Care Facilities
Hospitals
Ambulatory Surgery Centers
Community Mental Health Centers
Comprehensive Outpatient Rehabilitation Facilities
Critical Access Hospitals
End-Stage Renal Disease Facilities
Intermediate Care Facilities for Individuals with Intellectual Disabilities
Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services
Psychiatric Residential Treatment Facilities
Programs for All-Inclusive Care for the Elderly Organizations
Rural Health Clinics/Federally Qualified Health Centers

Preliminary injunctions issued in late November are blocking the implementation and enforcement of the emergency rule in 25 states. CMS is appealing those decisions and says it won’t attempt to enforce the emergency rule in any state pending future developments in the litigation. The U.S. Supreme Court is scheduled to hear oral arguments on the preliminary injunctions on January 7, 2022.

Next Steps:

If you would be covered by the CMS emergency rule, watch for developments closely to determine whether CMS ultimately prevails and can implement the emergency rule.

Posted on December 8, 2021

A federal judge in Georgia has temporarily blocked a Biden Administration rule that would require federal contractors and subcontractors to ensure that all covered employees are fully vaccinated against COVID-19.

The Details:

Vaccine Mandate:

In early September, President Biden announced an executive order that required COVID-19 vaccination for contractors that do business with the federal government. The executive order also required contractors to comply with guidance published by the Safer Federal Workforce Task Force. In updated guidance, the Task Force said federal contractors and subcontractors would have until January 18, 2022 to ensure that all covered employees are fully vaccinated.

Court Decision:

The decision by the federal judge in Georgia temporarily blocks the Biden Administration from implementing and enforcing the vaccine requirement. The decision applies nationwide and will remain in effect pending future court proceedings.

Next Steps:

If you are a federal contractor or subcontractor, watch for developments closely to determine whether the rule becomes blocked permanently, or the Biden Administration ultimately prevails and can implement the vaccine mandate.

Updated on December 8, 2021

Note: A federal judge in Georgia has temporarily blocked the requirements discussed below. If you are a federal contractor or subcontractor, watch for developments closely to determine whether the rule becomes blocked permanently, or the Biden Administration ultimately prevails and can implement the vaccine mandate.

President Biden has announced that federal contractors and subcontractors will have until January 18, 2022 to ensure that all covered employees are fully vaccinated for COVID-19.

Background:

In early September, President Biden announced an executive order that requires COVID-19 vaccination for contractors that do business with the federal government. The executive order also requires contractors to comply with guidance published by the Safer Federal Workforce Task Force. On September 24, 2021, the task force released guidance that indicated contractors must ensure that all covered employees are fully vaccinated for COVID-19 no later than December 8, 2021.

New Deadline:

In updated guidance, the Task Force says federal contractors and subcontractors will have until January 18, 2022 to ensure that all covered employees are fully vaccinated. Under the guidance, individuals are considered fully vaccinated for COVID-19 two weeks after they have received the second dose in a two-dose series, or two weeks after they have received a single-dose vaccine.

After January 18, 2022, all covered employees must be fully vaccinated by the first day of performance on a newly awarded covered contract, and by the first day of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.

Documentation of Vaccination:

The covered contractor must review its covered employees’ documentation to prove vaccination status. Covered contractors must require that covered employees show or provide one of the following documents:

A copy of the record of immunization from a healthcare provider or pharmacy,
A copy of the COVID-19 Vaccination Record Card,
A copy of immunization records from a public health or state immunization information system,
A copy of medical records documenting the vaccination, or
A copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of the healthcare professional or clinic site administering vaccine.

Covered contractors may allow employees to show or provide to their employer a digital copy of such records.

Accommodations:

A covered contractor may be required to provide an accommodation to covered employees who communicate that they are not vaccinated against COVID-19 because of a disability or because of a sincerely held religious belief, practice, or observance. A covered contractor should review and consider what, if any, accommodation it must offer. Requests for “medical accommodation” or “medical exceptions” should be treated as requests for a disability accommodation.

FAQs:

The Task Force has published FAQs to assist in understanding the guidelines.

Compliance Recommendations:

Covered federal contractors should review the updated guidance in full and ensure compliance by the deadline.

Updated on December 23, 2021

Note: The Centers for Medicare & Medicaid Services (CMS) has announced that it won't enforce the emergency rule discussed below pending future developments in litigation seeking to block the implementation of it.

The Centers for Medicare & Medicaid Services (CMS) has issued an emergency rule that requires COVID-19 vaccination for workers at healthcare facilities that participate in Medicare and Medicaid programs.

Covered Facilities and Staff:

Facilities:

The CMS emergency rule applies to the following Medicare and Medicaid certified providers and suppliers:

Home Health Agencies
Home Infusion Therapy Suppliers
Hospices
Long Term Care Facilities
Hospitals
Ambulatory Surgery Centers
Community Mental Health Centers
Comprehensive Outpatient Rehabilitation Facilities
Critical Access Hospitals
End-Stage Renal Disease Facilities
Intermediate Care Facilities for Individuals with Intellectual Disabilities
Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services
Psychiatric Residential Treatment Facilities
Programs for All-Inclusive Care for the Elderly Organizations
Rural Health Clinics/Federally Qualified Health Centers

Staff coverage:

Compliance Deadlines:

By December 6, 2021, all covered staff must have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine.

By January 4, 2022, all covered staff must have received the second dose of two-dose COVID-19 vaccine (if applicable).

Exemptions:

Covered facilities must allow exemptions for staff with recognized medical conditions for which vaccines are contraindicated or for sincerely-held religious beliefs or practices. Facilities must establish a process by which staff may request an exemption from COVID-19 vaccination requirements.

CMS says that no exemption should be provided where it's not legally required under federal law or when a staff member requests an exemption solely to evade vaccination. For religious accommodation requests, CMS recommends that facilities follow U.S. Equal Employment Opportunity guidance.

For staff members who request a medical exemption, all documentation confirming recognized clinical contraindications to COVID-19 vaccines, and supporting the staff member's request, must be signed and dated by a licensed practitioner who isn't the individual requesting the exemption, and who is acting within their respective scope of practice.

Note: Staff members who have previously had COVID-19 aren't exempt from the vaccination requirement.

Documentation:

Covered facilities must track and securely document the vaccination status of each staff member. Facilities must also document vaccine exemption requests and outcomes.

Preemption of State Laws:

CMS says the emergency rule preempts any state or local law that would prohibit a vaccine mandate. Additionally, the emergency rule preempts any state or local law that provides broader exemptions than provided for by federal law and that are inconsistent with the emergency rule, according to CMS.

Note: CMS also says that for covered facilities, the emergency rule generally takes precedence over OSHA's emergency temporary standard for employers with 100 or more employees and vaccine requirements for federal contractors.

FAQs:

CMS has published FAQs to assist in understanding the emergency rule.

Compliance Recommendations:

Covered healthcare providers should review the emergency rule in full and ensure compliance by the applicable deadlines.

Posted on September 14, 2021

President Biden has announced a plan that would require many employers to mandate COVID-19 vaccination or weekly testing as well as provide paid leave in certain circumstances. The plan also makes changes to federal loan programs for businesses impacted by the pandemic.

Vaccine/Testing Mandate:

President Biden announced that the Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that would require all employers with 100 or more employees to ensure their workers are fully vaccinated or produce a negative test result once a week prior to coming to work. OSHA intends to issue an Emergency Temporary Standard (ETS) to implement the requirements, which would allow the rule to take effect quickly.

Note: Separately, vaccination requirements will also apply to employees in healthcare settings at Medicare and Medicaid participating hospitals and other healthcare settings that receive Medicare or Medicaid reimbursement.

Federal Employees and Contractors:

President Biden's executive order requires COVID-19 vaccination for all federal employees and all contractors that do business with the federal government.

Leave Requirement:

OSHA plans to include in the ETS a rule that would require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover from side effects of the vaccination.

Paycheck Protection Program (PPP) Forgiveness:

Under Biden’s plan, the Small Business Administration (the SBA) will make it easier for more employers to apply for forgiveness of PPP loans of $150,000 or less. In a streamlined process, called direct forgiveness, the SBA sends a pre-completed application form to the borrower who can review, sign, and send back to the SBA. The SBA then works with the lender to complete the forgiveness process. Under existing rules, the PPP loan must have been obtained through a lender that has opted into the direct forgiveness program for employers to take advantage of direct forgiveness. Details about how more employers would be given access to the program have yet to be released.

Economic Injury Disaster Loan (EIDL) Program:

The SBA plans to increase the maximum amount a small business can borrow through the COVID-19 EIDL program from $500,000 to $2 million. These funds can be used to hire and retain employees, purchase inventory and equipment, and pay off higher-interest debt. The SBA also plans to make it easier for small businesses with multiple locations in hard-hit sectors like restaurants, hotels, and gyms to access these loans. The loans under the EIDL program must be repaid, but small businesses would have two years before they must begin repaying the loan. The SBA plans to offer a 30-day exclusive window for small businesses seeking loans of $500,000 or less to receive awards after the revamped program launches.

Compliance Recommendations:

An overview of President Biden’s full plan is available here. Employers should watch for developments closely. The proposed changes, if finalized, may be implemented quickly, and some could face legal challenges. Keep in mind the federal plan may prompt more states and local jurisdictions to implement similar vaccine/testing and leave requirements, some of which may cover smaller employers, if they haven’t done so already.

Posted on June 17, 2021

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has announced an emergency temporary standard (ETS) aimed at protecting healthcare workers from COVID-19. Among other things, the ETS requires covered employers to develop a COVID-19 plan and provide workers with paid time off to get vaccinated and to recover from any side effects. OSHA announced the ETS alongside new general industry guidance.

ETS:

The ETS is aimed at protecting workers facing the highest COVID-19 hazards—those working in healthcare settings where suspected or confirmed COVID-19 patients are treated. This includes employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated. OSHA has created this chart to help employers determine whether they are covered by the ETS.

The ETS is effective immediately upon publication in the Federal Register. Employers must comply with most of the ETS provisions within 14 days and with the provisions involving physical barriers, ventilation, and training (see below) within 30 days of that publication. OSHA says it may use its discretion to refrain from citing employers who miss a compliance deadline if they are making a good-faith effort to comply.

Key Requirements:

The key requirements of the ETS are:

COVID-19 plan: Develop and implement a COVID-19 plan (in writing if more than 10 employees) that includes a designated safety coordinator with authority to ensure compliance, a workplace-specific hazard assessment, involvement of non-managerial employees in hazard assessment and plan development/implementation, and policies and procedures to minimize the risk of transmission of COVID-19 to employees.
Patient screening and management: Limit and monitor points of entry to settings where direct patient care is provided; screen and triage patients, clients, and other visitors and non-employees; implement patient management strategies.
Standard and Transmission-Based Precautions: Develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.
Personal protective equipment (PPE): Provide and ensure each employee wears a facemask when indoors and when occupying a vehicle with other people for work purposes; provide and ensure employees use respirators and other PPE for exposure to people with suspected or confirmed COVID-19, and for aerosol-generating procedures on a person with suspected or confirmed COVID-19.
Aerosol-generating procedures on a person with suspected or confirmed COVID-19: Limit employees present to only those essential; perform procedures in an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after the procedure is completed.
Physical distancing: Keep people at least six feet apart when indoors.
Physical barriers: Install cleanable or disposable solid barriers at each fixed work location in non-patient care areas where employees are not separated from other people by at least six feet.
Cleaning and disinfection: Follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC guidelines in patient care areas, resident rooms, and for medical devices and equipment; in all other areas, clean high-touch surfaces and equipment at least once a day and provide alcohol-based hand rub that is at least 60% alcohol or provide readily accessible handwashing facilities.
Ventilation: Ensure that employer-owned or controlled existing HVAC systems are used in accordance with manufacturer's instructions and design specifications for the systems and that air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows it.
Health screening and medical management: (1) Screen employees before each shift (a sample form is available here); (2) require each employee to promptly notify the company when they're COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms; (3) notify certain employees within 24 hours when a person who has been in the workplace is COVID-19 positive (a sample form is available here); (4) follow requirements for removing employees from the workplace; and (5) employers with more than 10 employees must provide paid time off to workers who must isolate or quarantine.
Vaccination: Provide reasonable time and paid leave for vaccinations and vaccine side effects.
Training: Ensure all employees receive training so they comprehend COVID-19 transmission, tasks and situations in the workplace that could result in infection, and relevant policies and procedures.
Anti-retaliation: Inform employees of their rights to the protections required by the standard and do not discharge or in any manner discriminate against employees for exercising their rights under the ETS or for engaging in actions required by the standard.
Penalty-free: Requirements must be implemented at no cost to employees.
Recordkeeping: Establish a COVID-19 log (if more than 10 employees) of all employee instances of COVID-19 without regard to occupational exposure and follow requirements for making records available to employees/representatives.
Reporting to OSHA: Report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.

Note: OSHA has stated that fully vaccinated employees are exempt from wearing a mask, social distancing, and barrier requirements when the employer determines there is no reasonable expectation another person with suspected or confirmed COVID-19 would be present.

Updated Guidance for General Industry:

OSHA has also published updated guidance for general industry that:

Focuses protections on unvaccinated and otherwise at-risk workers;
Encourages COVID-19 vaccination; and
Add links to guidance with the most up-to-date content.

Compliance Recommendations:

Employers covered by the ETS should review the rule in full as well as OSHA's answers to frequently asked questions about the ETS. Additional information and resources can be found here. Other employers should review OSHA's updated guidance for general industry, which can be found here. Employers should also keep in mind that several states have enacted their own COVID-19 standards under their state OSHA plans and other states and local jurisdictions may have requirements with which employers will need to coordinate compliance.

Posted on March 10, 2021

The U.S. Occupational Safety and Health Administration (OSHA) has issued new guidance to help employers and employees identify risks of being exposed to and/or contracting COVID-19 at work.

COVID-19 Prevention Programs:

In the guidance, OSHA makes clear that implementing a workplace COVID-19 prevention program is the most effective way to mitigate the spread of COVID-19 at work.

The program should engage workers and their representatives in the program's development and implementation at every step, and include the following elements:

Assignment of a workplace coordinator who will be responsible for COVID-19 issues on the employer's behalf.
Identification of where and how workers might be exposed to COVID-19 at work. This includes a thorough assessment to identify potential workplace hazards related to COVID-19 and identifying measures that will limit the spread of COVID-19. Some examples include:
Consideration of protections for workers at higher risk for severe illness through supportive policies and practices.
Establishment of a system for communicating effectively with workers and in a language they understand as well as education and training on COVID-19 policies and procedures.
Instruct workers who are infected or potentially infected to stay home and isolate or quarantine to prevent or reduce the risk of transmission.
Minimize the negative impact of quarantine and isolation on workers (such as, allowing employees to telework and providing paid sick leave).
Isolating workers who show symptoms at work.
Performing enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility.
Closing areas used by the potentially infected person for enhanced cleaning.
Providing guidance on screening and testing.
Recording and reporting COVID-19 infections and deaths.
Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.
Making a COVID-19 vaccine available at no cost to all eligible employees and providing information and training on the benefits and safety of vaccinations.
Other applicable OSHA Standards (all of OSHA's standards that apply to protecting workers from infection remain in place).

Details on each of these elements as well as other measures to prevent the spread of COVID-19 can be found in the guidance.

Compliance Recommendations:

While the guidance creates no new legal obligations and doesn't carry the same weight as a law or regulation, employers may find it helpful in identifying the risks of exposure to COVID-19 in the workplace and in determining appropriate control measures to implement. OSHA says it expects to continue to update the guidance over time to reflect developments in science, best practices, and standards.

Keep in mind that some states and local jurisdictions have established their own requirements for employers to prevent the spread of COVID-19 in the workplace, many of which are covered in our COVID-19 Resource Center.

Posted on October 15, 2020

The Treasury Department and Small Business Administration (SBA) have released a simplified Payroll Protection Program (PPP) forgiveness application (Form 3508S) and instructions for PPP loans of $50,000 or less.

The SBA adopted a de minimis exemption from reductions in loan forgiveness (i.e., penalties) for failure to maintain the number of full-time-equivalent employees (FTEs), as well as wage level maintenance requirements, for PPP loans of $50,000 or less.

Borrowers with affiliates that collectively received PPP loans of $2 million or more cannot use the new form or new exemptions.

Background:

The PPP was enacted as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act to provide employers with funds to continue operations and payment of wages during the COVID-19 pandemic. These loans can be fully forgiven if certain conditions are met, including at least 60 percent of the loan being used to cover payroll expenses. Borrowers must also maintain specific staffing and pay levels.

Forgiveness Reduction Waived for Smaller Loans:

The interim final rule issued by the SBA says that qualifying PPP borrowers won't need to document compliance with the targeted staffing and wage-level maintenance requirements. Loan forgiveness amounts won't be reduced, even if employee counts or wage levels decreased during or after the covered period, as long as the loan was $50,000 or less, and the borrower, when combined with any affiliates, collectively received less than $2 million.

Future Legislation Possible:

There are several legislative proposals in Congress to further expand, simplify and extend the PPP program, including proposals that could authorize a second PPP loan for qualifying businesses. ADP will continue to closely monitor federal legislation and guidance affecting PPP loans.

Compliance Recommendations:

Many borrowers may be ready to submit their forgiveness applications (SBA Form 3508, 3508EZ or 3508S). The SBA began approving PPP forgiveness applications and remitting forgiveness payments to PPP lenders for PPP borrowers on October 2, 2020. Borrowers should check with their lenders directly to determine if they are prepared to accept forgiveness applications. For FAQs from the SBA, click here.

Posted on September 15, 2020

The Department of Labor has amended regulations for the Families First Coronavirus Response Act (FFCRA) after a federal court struck down parts of previous regulations. The amended regulations take effect September 16, 2020.

Background:

The FFCRA requires employers with fewer than 500 employees to provide paid leave to employees who are unable to work or telework because of certain COVID-related reasons. The law requires two types of paid leave: Emergency Paid Sick Leave and Public Health Emergency Leave. Under the law, an employer of a healthcare provider or an emergency responder may elect to exclude the employee from the leave requirements. The law went into effect on April 1, 2020 and expires on December 31, 2020.

On April 1, 2020, the Department of Labor (DOL) issued regulations that defined key terms and made important clarifications to the law, including the following:

Work-Availability Requirement: Entitled employees to FFCRA leave only if there was work available to them. For instance, if the employer sends employees home and stops paying them because of a lack of work, the employee wouldn't be eligible for FFCRA leave under the regulations.
Definition of Healthcare Provider: Defined healthcare provider as anyone employed at any doctor's office, hospital, health care center, clinic, postsecondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.
Intermittent Leave: Allowed employees to take leave intermittently for certain qualifying reasons but only if the employer agrees to it.
Documentation: Required that prior to taking FFCRA leave, employees must submit certain documentation to the employer.

Shortly after the regulations were issued, the attorney general for the state of New York filed a lawsuit challenging each of the four provisions above, arguing that they unduly restrict FFCRA leave.

District Court Ruling:

On August 3, 2020, a federal district court judge in New York struck down a number of the regulations' components. First, it found that the explanation provided for the work-availability requirement is insufficient. The judge also struck down the regulations' definition of healthcare provider as overly broad because it hinges entirely on the identity of the employer and includes employees whose roles have no connection with providing healthcare services. For instance, an English professor, librarian, or cafeteria manager at a university with a medical school could all be considered "healthcare providers" under the definition.

The judge ruled that the DOL was within its authority to limit intermittent leave to certain qualifying reasons. However, the judge struck down the part of the provision that required employer consent for employees to take the leave intermittently.

The judge also struck down the requirement that documentation be provided prior to the employee taking the leave.

Amended Regulations:

In response to the judge's ruling, the DOL has issued amended regulations.

Work-Availability Requirement:

The amended regulations reaffirm that FFCRA leave may be taken only if the employee has work available to them. The DOL also clarifies that this requirement applies to all qualifying reasons to take FFCRA leave.

Definition of Healthcare Provider:

The amended regulations revise the definition of "healthcare provider" to mean employees who are healthcare providers under the Family and Medical Leave Act and other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care. This group includes employees who provide direct diagnostic, preventive, treatment, or other patient care services, such as nurses, nurse assistants, and medical technicians, according to the DOL. It also includes employees who directly assist or are supervised by a direct provider of diagnostic, preventive, treatment, or other patient care services. Finally, employees who don't provide direct healthcare services to a patient but are otherwise integrated into and necessary to the provision of those services—for example, a laboratory technician who processes medical test results to aid in the diagnosis and treatment of a health condition—are healthcare providers, according to the DOL.

An individual isn't a healthcare provider merely because their employer provides healthcare services or because the individual provides a service that affects the provision of healthcare services. For example, IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers aren't healthcare providers, even if they work at a hospital of a similar healthcare facility.

To minimize the spread of the virus associated with COVID-19, the DOL encourages employers to be judicious when using this definition to exempt healthcare providers from the provisions of the FFCRA. For example, an employer may decide to exempt these employees from leave for caring for a family member but choose to provide them paid sick leave in the case of their own COVID-19 illness.

Intermittent Leave:

The amended regulations reaffirm that, where intermittent FFCRA leave is permitted by the regulations, an employee must obtain their employer's approval to take FFCRA leave.

However, in the preamble to the amended regulations, the DOL clarifies that the employer-approval condition wouldn't apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave wouldn't be intermittent. For instance, the employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next. For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.

Documentation:

The amended regulations clarify that the information the employee must give to support the need for leave should be provided to the employer as soon as practical and need not be provided prior to taking FFCRA leave.

Updated FAQs:

The DOL also updated its FAQs to address the district court ruling (see questions 101-103, here) and the amended regulations (see questions 16, 21, 22, 56, 98, and 99, here). In the updated FAQs, the DOL says it interpreted the ruling to mean that the four FFCRA provisions in question were vacated nationwide on August 3, 2020. This may cause some confusion among employers, including raising questions about what rules apply prior to September 16.

Compliance Recommendations:

Employers should review the amended regulations in full and consider the impact on their policies and practices. Employers may also want to consult legal counsel about decisions that were made based on previous DOL regulations/interpretations. Since the amended regulations could also be challenged, monitor the situation closely for developments.

Posted on September 8, 2020

The Department of Homeland Security (DHS) has adopted a temporary policy in response to delays in the government's production of certain Employment Authorization Documents (Form I-766, EAD) for the purposes of completing Form I-9.

Background:

The Form I-9 is used to verify a new hire's identity and work authorization. All employers must ensure that each employee properly completes the I-9 at the time of hire. To complete Section 2 of the I-9, employees must generally present documents that verify their identity and employment authorization. The I-9 Form includes a List of Acceptable Documents (List A, List B, and List C). An employee must present one document from List A or one document from List B and one document from List C.

List A documents: establish both identity and employment authorization
List B documents: establish identity only
List C documents: establish employment authorization only

DHS Temporary Policy:

In response to delays in producing certain EADs, the DHS is allowing employees to temporarily use Form I-797 (Notice of Action) as a List C document. To be accepted under the temporary policy, Form I-797 must be dated on or after December 1, 2019 through August 20, 2020 and inform the applicant that their Application for Employment Authorization (AEA) is approved, even though the notice states it isn't evidence of employment authorization. Employees may present Form I-797 as a List C document until December 1, 2020. For Form I-9 completion, employees who present a Form I-797 for new employment must also present their employer with an acceptable List B document that establishes identity.

By December 1, 2020, employers must reverify employees who presented Form I-797. These employees will need to present new evidence of employment authorization from either List A or List C. Note that it's the employees' choice whether to present their new EADs, or a different document from either List A or List C.

Compliance Recommendations:

Employers should review their I-9 procedures and training to ensure compliance with the temporary policy.

Posted on May 27, 2020

The Occupational Safety and Health Administration (OSHA) has issued updated guidance on recording occupational illnesses related to COVID-19. The guidance took effect May 26, 2020 and remains in effect until further notice.

Background:

Under federal regulations, employers with more than 10 employees must keep records of work-related injuries and illnesses, unless the business is classified under one of the partially exempt low-hazard industries. However, all employers must report to OSHA work-related injuries and illnesses that result in a fatality or an employee's in-patient hospitalization, amputation, or loss of an eye.

Updated Guidance:

Under OSHA's recordkeeping requirements, COVID-19 is a recordable illness, and thus employers are responsible for recording cases of COVID-19 if:

The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
The case is work-related as defined by 29 CFR § 1904.5; and
The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

OSHA says employers should be taking action to determine whether employee COVID-19 illnesses are work-related and thus recordable. In determining whether an employer has complied with this obligation, OSHA will consider:

The reasonableness of the investigation. In most circumstances when an employer learns of an employee's COVID-19 illness, the employer may:
- Ask the employee how they believe they contracted COVID-19;
- While respecting employee privacy, discuss with the employee their work and out-of-work activities that may have led to the COVID-19 illness; and
- Review the employee's work environment for potential exposure to determine if there are any other instances of workers in that environment contracting COVID-19 illness.
The evidence available. The evidence that a COVID-19 illness was work-related will be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information related to an employee's COVID-19 illness, then that information would be taken into account as well in determining whether an employer made a reasonable determination.
The evidence that a COVID-19 illness was contracted at work. Evidence that may weigh in favor of or against work-relatedness includes:
- Whether several cases develop among workers who work closely together and there is no alternative explanation.
- Whether it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
- Whether their job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
- Whether the employee is the only worker to contract COVID-19 in their vicinity and their job duties don't include having frequent contact with the general public, regardless of the rate of community spread.
- Whether the employee, outside the workplace, closely and frequently associates with someone (such as, a family member, significant other, or close friend) who: (1) has COVID-19; (2) isn't a coworker; and (3) exposes the employee during the period in which the individual is likely infectious.

Compliance Recommendations:

Employers should make a good-faith inquiry about whether COVID-19 cases are work-related, as described above. If the criteria are met, COVID-19 should be coded as a respiratory illness on the OSHA Form 300. Because COVID-19 is an illness, if an employee requests that their name not be entered on the log, the employer must comply.

Updated on September 15, 2020

Update: On September 11, 2020, the Department of Labor issued amended regulations. Among other things, the amendments change the definition of healthcare provider and the timing for the documentation requirements. For more information on the revised regulations, go here.

The Department of Labor (DOL) has released a temporary rule implementing the leave provisions of the Families First Coronavirus Response Act (FFCRA). The temporary rule was released on April 1, 2020 and is effective immediately. It defines key terms and makes important clarifications regarding the leave requirements.

Background:

Effective April 1, 2020, the FFCRA requires employers with fewer than 500 employees to provide:

Emergency paid sick leave (EPSL): Up to 80 hours of emergency paid sick leave (EPSL) to employees when they are unable to work (or telework) because of a number of COVID-19 related reasons.
Public health emergency leave (PHEL)/Expanded FMLA: Up to 12 weeks of leave to care for their son or daughter under 18 years of age if their school or place of care has been closed, or their childcare provider is unavailable, due to a public health emergency. As first written, the FFCRA indicated the first 10 days of PHEL may be unpaid, but the remainder must be paid.

Employers that provide paid leave under the FFCRA are entitled to certain tax credits.

Exemptions:

The law also gave the DOL the authority to issue regulations exempting employers with fewer than 50 employees if it would jeopardize the viability of the business.

Under the law, an employer of a healthcare provider or an emergency responder may elect to exclude the employee from the application of the EPSL and/or the PHEL requirement.

Temporary Rule:

The following is a high-level summary of some of the definitions and clarifications included in the temporary rule.

Definitions:

Son or Daughter. A biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age, or 18 years of age or older who is incapable of self-care because of a mental or physical disability.
Subject to a Quarantine or Isolation Order. Quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any federal, state, or local government authority that cause the employee to be unable to work even though their employer has work that the employee could perform but for the order. This also includes when a federal, state, or local government authority has advised categories of citizens (such as those of certain age ranges or with certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of employees to be unable to work even though their employers have work for them.
Caring for an Individual in Quarantine/Isolation/Self-Quarantine. An employee's immediate family member, a person who regularly resides in the employee's home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if they were quarantined or self-quarantined. An employee may take EPSL under this provision if the employee is unable to perform work for their employer and if the individual depends on the employee to care for them and is either:
- Subject to a quarantine or isolation order as defined above; or
- Has been advised to self-quarantine by a health care provider because of a belief that the individual has, or may have, COVID-19, or is particularly vulnerable to COVID-19.
Caring for a Son or Daughter. Such leave is permitted only if no other suitable person is available to care for the son or daughter during the period of such leave.
Full-Time Employees. Those normally scheduled to work at least 40 hours each workweek. Under the law, a full-time employee is entitled to up to 80 hours of EPSL and a part-time employee is generally entitled to ESPL in the number of hours the employee is normally scheduled to work over two workweeks.
Healthcare Provider (as amended by regulations effective September 16, 2020). Employees who are healthcare providers under the Family and Medical Leave Act and other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care. This group includes employees who provide direct diagnostic, preventive, treatment, or other patient care services, such as nurses, nurse assistants, and medical technicians, according to the DOL. It also includes employees who directly assist or are supervised by a direct provider of diagnostic, preventive, treatment, or other patient care services. Finally, employees who don't provide direct healthcare services to a patient but are otherwise integrated into and necessary to the provision of those services—for example, a laboratory technician who processes medical test results to aid in the diagnosis and treatment of a health condition—are healthcare providers, according to the DOL.

An individual isn't a healthcare provider merely because their employer provides healthcare services or because the individual provides a service that affects the provision of healthcare services. For example, IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers aren't healthcare providers, even if they work at a hospital of a similar healthcare facility.

To minimize the spread of the virus associated with COVID-19, the DOL encourages employers to be judicious when using this definition to exempt healthcare providers from the provisions of the FFCRA. For example, an employer may decide to exempt these employees from leave for caring for a family member but choose to provide them paid sick leave in the case of their own COVID-19 illness.
Emergency Responders. Anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and individuals with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.

Clarifications:

Regular Rate of Pay

For the purposes of EPSL, the employer must generally pay employees their regular rate of pay (as defined by the Fair Labor Standards Act) or the applicable minimum wage, whichever is higher, up to a maximum of $511 per day (and a total of $5,110). However, leave to care for an individual on quarantine/isolation/self-quarantine or to care for a child whose school or daycare is closed or childcare provider is unavailable may be compensated at 2/3 of the employee's regular rate of pay (or the applicable minimum wage if higher), up to a maximum of $200 per day (and a total of $2,000).

For the purposes PHEL/Expanded FMLA, the paid portion of leave must be at a rate of no less than two-thirds the employee's regular rate of pay, as defined by the FLSA, up to a maximum of $200 per day.

The temporary rule requires employers to use a weighted average of the employee's regular rate of pay for the purposes of the leave, following this two-step method:

Use the rules contained in the FLSA (see a summary here) to compute the regular rate for each full workweek in which the employee has been employed over the lesser of:
The six-month period ending on the date on which the employee takes leave; or
The entire period of employment;
Compute the average of the weekly regular rates, weighted by the number of hours worked for each workweek.

Note: For employees who are paid with commissions, tips, or piece rates, these amounts will be incorporated into the above calculation to the same extent they are included in the calculation of the regular rate under the FLSA.

Business Closures and Furloughs

The temporary rule further clarifies that if no work is available for the employee, the employee isn't entitled to leave. For instance, if the employer temporarily ceases operations because of a lack of work or the state has ordered the business to close because of COVID-19, employees wouldn't be entitled to leave under the FFCRA.

Note: Some state/local laws require employers to provide paid leave when the business closes because of a public health emergency.

Small Employer Exemption:

The exemption for employers with fewer than 50 employees is limited to the requirements to provide EPSL and PHEL/Expanded FMLA to an employee who is caring for their child due to their school or place of care being closed, or their childcare provider is unavailable, for COVID-19 related reasons if it would jeopardize the viability of the business.

The temporary rule clarifies that to claim the exemption, an authorized officer of the business must determine that:

The leave requested would result in the small business's expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
The absence of the employee requesting such leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee requesting leave, and this labor or services are needed for the small business to operate at a minimal capacity.

To elect this exemption, the employer must document that a determination has been made pursuant to the above criteria. The employer should retain these records in its files for at least four years. The employer is still required to post the required FFCRA notice (see below).

Employee Documentation:

As soon as practicable, an employee must provide documentation containing the following information:

Employee's name;
Date(s) for which leave is requested;
Qualifying reason for the leave; and
Oral or written statement that the employee is unable to work because of a qualified reason.

Additional documentation is required depending on the reason for the need for leave:

A quarantine or isolation order. The employee must also provide the name of the government entity that issued the order.
A healthcare provider advised self-isolation. The employee must also provide the name of the healthcare provider.
To care for a son or daughter. An employee must also provide:
- The name of the son or daughter;
- The name of the school, place of care, or child care provider that has closed or become unavailable; and
- A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes leave under the FFCRA.

The employer may also request an employee to provide additional material needed for the employer to support a request for tax credits pursuant to the FFCRA. The temporary rule indicates that an employer isn't required to provide leave if materials sufficient to support the applicable tax credit haven't been provided.

Employer Notice and Recordkeeping:

The FFCRA requires employers to post a notice about the law's leave requirements. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or by posting this notice on an employee information internal or external website.

An employer is required to retain all documentation provided by employees for four years, regardless whether leave was granted or denied. If an employee provided oral statements to support their request for the leave, the employer is required to document and maintain this information.

In order to claim tax credits from the Internal Revenue Service (IRS), the temporary rule also advises an employer to maintain the following records for four years:

How the employer determined the amount of paid leave eligible for the credit, including records of work, telework, and leave;
How the employer determined the amount of qualified health plan expenses that the employer allocated to wages;
Copies of any completed IRS Forms 7200 that the employer submitted to the IRS;
Copies of the completed IRS Forms 941 that the employer submitted to the IRS or, for employers that use third-party payers to meet their employment tax obligations, records of information provided to the third-party payer regarding the employer's entitlement to the credit claimed on IRS Form 941; and
Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit.

Paid and Unpaid PHEL/Expanded FMLA:

The temporary rule clarifies that the unpaid portion of PHEL/Expanded FMLA is two weeks, rather than the "10 days" used in the text of the FFCRA. The change to two weeks is meant to address situations in which employees don't work a five-day workweek. The employee may elect to substitute EPSL or other paid leave provided by the employer during this unpaid period, at two-thirds their regular rate of pay.

EPSL and Other Sources of Leave:

The temporary rule further clarifies that EPSL leave is in addition to, and not a substitute for, other sources of leave that the employee had already accrued, was already entitled to, or had already used, before the FFCRA became effective on April 1, 2020. Therefore, neither eligibility for, nor use of, EPSL may count against an employee's balance or accrual of any other source or type of leave.

Compliance Recommendations:

Employers should consider reading the temporary rule in full and should take the necessary steps to ensure compliance with the leave, documentation, notice, recordkeeping, and other requirements of the FFCRA and the rule. Employers should continue to monitor the guidance for additional changes and check back regularly for updated clarifications.

Alabama

Posted on December 13, 2021

Alabama has published emergency regulations addressing a state law that prohibits employers from requiring employees to receive COVID-19 vaccination without providing the employee an opportunity to seek an exemption for religious or medical reasons. The state has also published a sample exemption request form, which is available here.

The emergency regulations address Senate Bill 9, which was enacted in November 2021 and states that employers must provide an exemption from COVID-19 vaccination requirements to any employee who has properly completed and submitted an exemption form.

Evaluating a Request:

When evaluating an employee's exemption request, the employer must liberally construe the employee's eligibility for an exemption in favor of the employee, consistent with applicable law.

Denying a Request:

The regulations state that in the event an employer denies a request for exemption, the employer must provide the employee with instructions on how to file a request for review by an administrative law judge.

Under the regulations, employees must submit the requests for review via https://vaxexemption.alabama.gov/ and include a copy of the denied exemption request form, a valid email address for the employee and the employer, and any other documentation the employee wishes to be considered. The employer will have three business days to provide any pertinent information to the administrative law judge for consideration regarding the employee's exemption claim. A poster with instructions for requesting an exemption and review is available here.

Note: An employer who has denied an employee's exemption request is prohibited from terminating the employee on the basis of failing to receive a vaccination for a period of 7 calendar days after the denial was issued by the employer, or if the employee is a review of the decision, until the judge or court issues a final ruling in the employer's favor. During this period, the employer must compensate the employee at the same rate of pay the employee received prior to submitting an exemption form.

Next Steps:

Alabama employers should consult legal counsel to discuss the impact of the emergency regulations and Senate Bill 9 on their vaccination policies and practices.

Posted on November 10, 2021

Alabama has enacted legislation (Senate Bill 9) that prohibits employers from requiring employees to receive COVID-19 vaccination without providing the employee an opportunity to seek an exemption for religious or medical reasons. Senate Bill 9 is effective immediately and expires on May 1, 2023.

Exemption Form Required:

Under Senate Bill 9, employers must provide an exemption from COVID-19 vaccination requirements to any employee who has completed and submitted the exemption form shown below. The form must be completed and signed by the employee and if applicable, signed by a healthcare provider. The form must read as follows:

Any individual in the State of Alabama who is subject to a requirement that he or she receive one or more COVID-19 vaccinations as a condition of employment may claim an exemption for medical reasons, because the vaccination conflicts with sincerely held religious beliefs, or both.

You may request either a medical or a religious exemption from the COVID-19 vaccination by completing this form and submitting the form to your employer.

In the event your employer denies this request, you have a right to file an appeal with the Department of Labor within 7 days. Your employer will provide you with information on how to file an appeal.

I am requesting exemption from the COVID-19 vaccine requirements for one of the following reasons: (check all that apply)

________ My health care provider has recommended to me that I refuse the COVID-19 vaccination based on my current health conditions and medications. (NOTE: You must include a licensed health care provider's signature on this form to claim this exemption.)
________ I have previously suffered a severe allergic reaction (e.g., anaphylaxis) related to vaccinations in the past.
________ I have previously suffered a severe allergic reaction related to receiving polyethylene glycol or products containing polyethylene glycol.
________ I have previously suffered a severe allergic reaction related to receiving polysorbate or products containing polysorbate.
________ I have received monoclonal antibodies or convalescent plasma as part of a COVID-19 treatment in the past 90 days.
________ I have a bleeding disorder or am taking a blood thinner.
________ I am severely immunocompromised such that receiving the COVID-19 vaccination creates a risk to my health.
________ I have been diagnosed with COVID-19 in the past 12 months.
________ Receiving the COVID-19 vaccination conflicts with my sincerely held religious beliefs, practices, or observances.

I hereby swear or affirm that the information in this request is true and accurate. I understand that providing false or misleading information is grounds for discipline, up to and including termination from employment.

_________________________________________________________________
Employee's Printed Name

_________________________________________________________________
Employee's Signature
______________________________________________________
Date

(Note: The following must be completed ONLY if claiming the first medical exemption listed above.)
Certification by a licensed health care provider as to the accuracy of information provided above:
_________________________________________________________________
Name of Health Care Provider
_________________________________________________________________
Signature of Health Care Provider
________________________________________________
Date

Providing the Form:

Employers must make the form readily available to all employees to whom the law applies, along with directions for submitting the form.

Evaluating the Request:

When evaluating an employee's exemption request, the employer must liberally construe the employee's eligibility for an exemption in favor of the employee, consistent with applicable law.

Under the law, the submission of the completed form creates a presumption that the employee is entitled to the exemption.

Employee Protections:

An employer who has denied an employee's request is prohibited from terminating the employee on the basis of failing to receive a vaccination for a period of 7 calendar days after the denial was issued by the employer, or if an appeal was made, until the administrative law judge or the court issues a final ruling in the employer's favor. During this period, the employer must compensate the employee at the same rate of pay the employee received prior to submitting an exemption form.

Note: The Alabama Department of Labor is responsible for establishing an emergency rule for the appeal process within 21 days. The employee must file the appeal no later than the latter of 7 calendar days following the denial of a request for an exemption or 3 business days following the adoption of the rule.

Compliance Recommendations:

Alabama employers should consult legal counsel to discuss the impact of Senate Bill 9 on their vaccination policies and practices.

Posted on August 14, 2020

The Alabama Department of Labor has adopted an emergency rule that expands the state's unemployment insurance notice requirements. The rule takes effect immediately.

Background:

Under existing law, employers must post a notice about the availability of unemployment insurance benefits.

Emergency Rule:

Under the emergency rule, employers must also provide a notice at the time of separation about the potential availability of unemployment benefits. Employers may provide the notice by letter, email, text message, or flyer. The notice must include the following information:

Notice of Availability of Unemployment Compensation

Unemployment Insurance (UI) benefits are available to workers who are unemployed and who meet the requirements of Alabama UI eligibility laws. You may file a UI claim in the first week that employment stops or work hours are reduced.

For assistance or more information about filing a claim, visit www.labor.alabama.gov

You will need to provide the Alabama Department of Labor's UI divisions with the following information in order for the state to process your claim:

Your full legal name;
Your Social Security Number; and
Your authorization to work (if you are not a US Citizen or resident).

To file a UI claim by phone, call: 1-866-234-5387.

To file a UI claim online, visit:

https://continuedclaims.labor.alabama.gov

If you have questions about the status of your UI claim, you can call the Alabama Department of Labor at 1-800-361-4524 or check your claim status online at:

https://uiclaimstracker.labor.alabama.gov

Compliance Recommendations:

Employers with employees in Alabama must ensure compliance with the emergency rule.

Alaska

Posted on April 20, 2020

The Alaska Department of Labor has adopted an emergency rule that expands the state's unemployment insurance notice requirements. The rule takes effect immediately and expires on August 3, 2020, unless extended.

Background:

Under existing law, employers must post a notice about the availability of unemployment insurance benefits.

Emergency Rule:

The emergency rule requires that, at the time of separation, employers must provide employees with a written notice with instructions on how to file a claim for unemployment benefits and the Division of Employment and Training Services' contact information for filing a claim.

Employers must provide the notice as soon as practical, but no later than seven days from the employee's last day of work.

Employers must deliver the notice either in person, by mail to the employee's last known address, or by email, if correspondence in this form was previously authorized.

Compliance Recommendations:

Employers with employees in Alaska must ensure compliance with the emergency rule.

Arkansas

Posted on October 22, 2021

Arkansas has enacted legislation (House Bill 1977) that requires employers to provide an exemption process as an alternative to COVID-19 vaccination mandates. House Bill 1977 takes effect on or about January 13, 2022 and expires on July 31, 2023, unless extended.

Under the law, when an employer requires or is mandated to require COVID-19 vaccination, the employer must provide an exemption process that allows the employee to produce either of the following instead:

A negative antigen detection test result or molecular diagnostic test result no more than one time per week showing that the employee isn't positive for COVID-19; or
Proof of immunity for the COVID-19 virus, including the presence of antibodies, T cell response, or proof of a positive COVID-19 test, on a basis of two times per year, not exceed one time every six months, from a licensed healthcare provider.

The law states that if an employee complies with the requirements of the exemption process, employers are prohibited from terminating them for violating a COVID-19 vaccination requirement.

The law requires that employers offer this exemption process in addition to any other exemption the employer provides.

Note: Employers aren't required to pay for the testing.

Compliance Recommendations:

Arkansas employers should consult legal counsel to discuss the impact of House Bill 1977 on their vaccination policies and practices.

Posted on April 27, 2020

The Arkansas Division of Workforce Services has adopted an emergency rule that requires employers to provide an unemployment insurance notice to employees upon separation from employment. The emergency rule takes effect April 27, 2020 and expires on December 31, 2020.

From April 27, 2020 to December 31, 2020, employers must provide the following notice to employees upon separation from the company:

NOTICE TO EMPLOYEE

Unemployment Insurance (UI) benefits are available to workers who are unemployed and who meet the requirements of Arkansas UI eligibility laws. You may file a UI claim in the first week that employment stops, or work hours are reduced.

You will need to provide the Arkansas Division of Workforce Services with the following information for the Division to process your claim:

Your Full legal name
Your Social Security Number
Your authorization to work (if you are not a US Citizen or resident)

To file a UI claim online, visit our Arkansas' online claims filing site at https://www.ezarc.adws.arkansas.gov/ from 6 am through 6 pm Sunday through Saturday.

To file a UI claim by telephone, call 1-844-908-2178 or 501-534-6304 from 8 a.m to 3:30 p.m Monday through Friday.

To file a UI claim by paper, please visit your nearest Arkansas Workforce Center. To find the nearest Arkansas Workforce Center please visit www.dws.arkansas.gov/contact.

For general assistance or more information about filing a UI claim, call 1-855-225-4440 or 501-682-2121. HOURS: Monday – Friday, 8am - 3:30pm

If you have questions about the status of your UI claim, you may call your local office or 1-855-225-4440.

Compliance Recommendations:

Employers with employees in Arkansas must ensure compliance with the emergency rule.

California

Posted on: July 11, 2023

The California Division of Occupational Safety and Health (Cal/OSHA) has clarified that the State Public Health Officer Order dated January 9, 2024 remains in place and continues to impact Cal/OSHA’s COVID-19 Prevention Non-Emergency Standards in particular with respect to isolation of COVID-19 cases.

The clarification was made at the time the California Department of Public Health (CDPH) retired its COVID-19 Isolation and COVID-19 Testing Guidance effective May 22, 2024. Cal/OSHA says that the retirement of those guidelines by the CDPH doesn’t impact Cal/OSHA’s COVID-19 Prevention Non-Emergency Standards.

The Details

As a result of the January 9, 2024 order remaining in place:

“Infectious period” for the purpose of cases in the Cal/OSHA COVID-19 Prevention Non-Emergency Standards, is still defined as:
- For COVID-19 cases with symptoms, it is a minimum of 24 hours from the day of symptom onset:
  - Employees with COVID-19 cases may return if 24 hours have passed with no fever, without the use of fever-reducing medications; and
  - Their symptoms are mild and improving.
- For employees with COVID-19 cases with no symptoms, there is no infectious period for the purpose of isolation or exclusion. If symptoms develop, the criteria above will apply.

Here are some other important provisions in the COVID-19 Prevention regulations that remain the same.

Employers must address COVID-19 as a workplace hazard under the requirements for an Injury and Illness Prevention Program (IIPP), and include their COVID-19 procedures to prevent this health hazard in their written IIPP or in a separate document.
Employers must take measures to prevent COVID-19 transmission and to identify and correct COVID-19 hazards in the workplace, including, but not limited to, remote work, physical distancing, reducing the density of people indoors, moving indoor tasks outdoors, implementing separate shifts and/or break times, and restricting access to the work area.
Employers must continue to make COVID-19 testing available at no cost and during paid time to all employees with a close contact, except for asymptomatic employees who recently recovered from COVID-19.
In workplace outbreaks or major outbreaks the COVID-19 Prevention regulations still require testing of all close contacts in outbreaks, and everyone in the exposed group in major outbreaks. Employees who refuse to test and have symptoms must be excluded for at least 24 hours from symptom onset, and can return to work only when they have been fever-free for at least 24 hours without the use of fever-reducing medications, and symptoms are mild and improving.
Employers must exclude employees with COVID-19 cases from the workplace during the infectious period.
Employees with COVID cases who return to work must wear a face covering indoors for 10 days from the start of symptoms or if the person did not have COVID-19 symptoms, 10 days from the date of their first positive COVID-19 test. Employees have the right to wear face coverings at work and to request and receive respirators from the employer when working indoors and during outbreaks. Employers must provide face coverings and ensure they are worn by employees when required by the Cal/OSHA COVID-19 Prevention Standard or CDPH.
Employers must report information about employee deaths, serious injuries, and serious occupational illnesses to Cal/OSHA, consistent with existing regulations.
Employers must notify all employees, independent contractors, and employers with an employee who had close contact with a COVID-19 case.
Employers must review CDPH and Cal/OSHA guidance regarding ventilation, including CDPH and Cal/OSHA Interim Guidance for Ventilation, Filtration, and Air Quality in Indoor Environments. Employers must also develop, implement and maintain effective methods to prevent COVID-19 transmission by improving ventilation.

Next Steps

California employers should continue to ensure compliance with Cal/OSHA’s COVID-19 Prevention Non-Emergency Standards. The standards will remain in effect through early February 2025, unless extended.

Updated on February 3, 2023

The California Division of Occupational Safety and Health (Cal/OSHA) has approved COVID-19 Prevention Non-Emergency Regulations (NER) to replace Emergency Temporary Standards (ETS). The Non-Emergency Regulations went into effect on February 3, 2023 and will generally remain in effect for two years.

The Details:

The Non-Emergency Regulations includes some of the same requirements found in the ETS as well as new provisions.

Key Changes:

Here are some of the key changes contained in the NER:

Employers are no longer required to maintain a stand-alone COVID-19 Prevention Plan. Instead, employers must now address COVID-19 as a workplace hazard under the requirements found in Section 3203 (Injury and Illness Prevention Program, IIPP), and include their COVID-19 procedures to prevent this health hazard in their written IIPP or in a separate document.
The regulations don’t require employers to pay employees while they are excluded from work because of COVID-19. Instead, the regulations just require employers to provide employees with information regarding COVID-19-related benefits that they may be entitled to under federal, state or local laws; their employer’s leave policies; or leave guaranteed by contract.
Employers are no longer required to make testing available at no cost/during paid time to employees who have COVID-19 symptoms but didn’t have close contact in the workplace.
Instead of having specific training requirements, the NER merely states that employers must provide effective COVID-19 hazard prevention training to employees during their IIPP training.
“Close contact” is now defined by looking at the size of the workplace in which the exposure takes place. For indoor airspaces of 400,000 or fewer cubic feet, “close contact” is now defined as sharing the same indoor airspace with a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period. For indoor airspaces of greater than 400,000 cubic feet, “close contact” is defined as being within six feet of a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period. Offices, suites, rooms, waiting areas, break or eating areas, bathrooms, or other spaces that are separated by floor-to-ceiling walls shall be considered distinct indoor spaces.
The regulations use the definition of “infectious period” found in the most recent California Department of Public Health (CDPH) State Public Health Officer Order.
The regulations give more options for employers to provide notice to close contacts.
Instead of zero new cases, employers may exit from outbreak protocol when there is one or no new COVID-19 cases within a 14-day period.

Cal/OSHA is updating its resources to assist employers with understanding their obligations required by the NER.

Key Carryover Provisions:

Here are some of the key requirements found in both the ETS and NER:

Employers must provide face coverings and ensure they are worn by employees when CDPH requires their use.
Employers must review CDPH Guidance for the Use of Face Masks to learn when employees must wear face coverings.
Note: Employees still have the right to wear face coverings at work and to request respirators from the employer when working indoors and during outbreaks.
Employers must report information about employee deaths, serious injuries, and serious occupational illnesses to Cal/OSHA, consistent with existing regulations.
Employers must make COVID-19 testing available at no cost and during paid time to employees following a close contact.
Employers must exclude COVID-19 cases from the workplace until they are no longer an infection risk and implement policies to prevent transmission after close contact.
Employers must review CDPH and Cal/OSHA guidance regarding ventilation, including CDPH and Cal/OSHA Interim Guidance for Ventilation, Filtration, and Air Quality in Indoor Environments. Employers must also develop, implement and maintain effective methods to prevent COVID-19 transmission by improving ventilation.

Next Steps:

Read the NER in full (a preview is available here).
Review and amend policies and procedures to ensure they reflect the new rules and implement them on the effective date.
Train supervisors on the upcoming changes.

California’s Governor has signed AB 152 which extends COVID-19 Supplemental Paid Sick Leave (SPSL) through December 31, 2022 for employers with 26 or more employees. AB 152 amends the existing SPSL law and provides for state grants to certain employers that provide such leave.

The Details:

SPSL Continues to be Available but a New Bank of Time is not Required:

The SPSL law was set to expire on September 30, 2022, but AB 152 extends it through December 31, 2022. As a result, through December 31, 2022, employers with 26 or more employees must continue to provide up to 80 hours total of COVID-19 supplemental paid sick leave. Importantly, AB 152 does not provide an additional bank of time to those employees who may have already exhausted their allotted SPSL for the year. 

Changes to Employee Testing:

Existing law allows an employer to require submission to a diagnostic test on or after the fifth day an employee reports testing positive for COVID-19.  

Under AB 152, if the diagnostic test is positive, the employer may also require the employee to submit to a second diagnostic test within no less than 24 hours. The employer must make all of these tests available at no cost to the employee.

AB 152 also provides that an employer has no obligation to provide additional paid leave if an employee refuses to comply with the employer’s required return to work diagnostic tests. 

Wage Statement Requirements Continued:

Existing law requires employers to provide employees with written notice that sets forth the amount of SPSL the employee has used through the pay period in which it was due to be paid, either on an itemized wage statement or in separate writing provided on the designated pay date. SPSL must be set forth separately from paid sick leave.  Employers must list zero hours used if the employee has not used any COVID-19 supplemental paid sick leave. AB 152 continues this requirement.   

New Grant Program:

AB 152 establishes a new grant program through which certain small employers and non-profits employers can seek reimbursement if they provide covered leave during 2022. The maximum reimbursement amount is $50,000. The grant program will be implemented by the California Office of the Small Business Advocate (CalOSBA). Applicants must provide proof of employee payroll records that verify all COVID-19 supplemental paid sick leave provided by the applicant under the law that match the amount of the grant request.

To be eligible for reimbursement under the program, California employers must meet all of the following requirements:

Are one of the following:
1. A “C” corporation, “S” corporation, cooperative, limited liability company, partnership or limited partnership; or
2. A registered 501(c)(3), 501(c)(6) or 501(c)(19).
Began operating before June 1, 2021.
Are currently active and operating.
Have 26 to 49 employees and provide payroll data and an affidavit, signed under penalty of perjury, attesting to that fact.
Provided COVID-19 supplemental paid sick leave in accordance with the law in 2022.
Submit organizing documents, including a 2020 or 2021 tax return or Form 990, and a copy of official filing with the Secretary of State or with the local municipality.

Certain employers are specifically excluded from the program. See the text of the law for details.

Next Steps:

Covered employers should:

Read the  text of the law  in full and ensure compliance.
Post an updated workplace notice once published by the state.
Continue complying with the wage statement / notice requirements for pay periods through December 31, 2022.
Review and revise policies, forms, and practices to reflect the extension and other changes.
Consult legal and tax advisors for assistance in determining whether your business is eligible for reimbursement from the state for COVID-19 supplemental paid sick leave provided in 2022.

Updated on September 23, 2020

California has enacted legislation (Assembly Bill 1867) that extends COVID-19 supplemental paid sick leave to more employees in the state. Assembly Bill 1867 takes effect no later than 10 days after September 9, 2020. The law expires on December 31, 2020, or upon the expiration of any extension of the federal Families First Coronavirus Response Act (Public Law 116-127), whichever is later.

Background:

The federal Families First Coronavirus Response Act (FFCRA) requires employers with fewer than 500 employees to provide emergency paid sick leave to employees who are unable to work (or telework) because of certain reasons related to COVID-19. Under the federal law, employers of healthcare providers and emergency responders may exclude these employees from emergency paid sick leave. The FFCRA is in effect from April 1, 2020 to December 31, 2020, unless extended.

In April, Governor Gavin Newsom signed Executive Order N-51-20 entitling food-sector workers to COVID-19 supplemental paid sick leave (SPSL), provided they work for an entity with 500 or more employees nationwide.

Assembly Bill 1867:

Among other things, Assembly Bill 1867 codifies the COVID-19 SPSL requirements for food-sector workers and extends the requirements to additional workers.

Expanded Coverage:

Assembly Bill 1867 extends the COVID-19 SPSL entitlement to all individuals who are:

Employed by a hiring entity with 500 or more employees in the United States; or
Employed as a health care provider or emergency responder by a hiring entity that has elected to exclude such employees from the FFCRA's emergency paid sick leave requirements.

Amount of COVID-19 SPSL:

Under Assembly Bill 1867, covered workers are entitled to up to 80 hours of COVID-19 SPSL if they're either considered full time or worked or were scheduled to work on average at least 40 hours per week in the two weeks preceding the date of leave.

Part-time employees are generally entitled to the total number of hours they're normally scheduled to work over two weeks. There are special rules for part-time employees who work variable schedules and for firefighters. See the text of the law for details.

Use of COVID-19 SPSL:

Covered workers may use COVID-19 SPSL for when they're:

Subject to a federal, state, or local quarantine or isolation order related to COVID-19.
Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
Prohibited from working by the covered worker's hiring entity due to health concerns related to the potential transmission of COVID-19.

Employers must make leave available to covered workers for immediate use upon an oral or written request.

Pay During Leave:

Each hour of COVID-19 SPSL must be compensated at a rate equal to or greater than the highest of the:

Worker's regular rate of pay for the last pay period;
State minimum wage; or
Local minimum wage to which the covered worker is entitled.

However, each worker's COVID-19 SPSL is subject to a cap of $511 per day and $5,110 total.

Notice:

Employers are required to post a notice regarding COVID-19 SPSL. A model notice for covered food sector employers is available here and other covered employers here. For workers who don't frequent a workplace, an employer may satisfy this requirement by disseminating the notice electronically, such as by e-mail.

Employers must also provide employees with information on the amount of COVID-19 SPSL they have available on either itemized wage statements or a separate notice provided each payday. This requirement won't be enforced until the next full pay period following enactment.

Interplay with Other Leave:

COVID-19 SPSL is in addition to any paid sick leave that the covered employee receives under Labor Code Section 246. Employers are prohibited from requiring an employee to use any other paid or unpaid leave in place of COVID-19 SPSL.

If an employer already provides a covered worker with paid leave that is payable for the reasons listed above and that would compensate the covered worker in an amount equal to or greater than the amount required for COVID-19 SPSL, the employer may count those hours toward the total number of hours of COVID-19 SPSL. Under this provision, the other paid leave may not include paid sick leave to which the employee is entitled under Labor Code Section 246.

Compliance Recommendations:

Employers with employees covered by the COVID-19 SPSL requirements should ensure compliance.

Posted on February 11, 2022

California has enacted legislation (Senate Bill 114) that requires employers with more than 25 employees to provide up to 80 hours of COVID-19 supplemental paid sick leave to employees. The COVID-19 supplemental paid sick leave requirement is effective on February 19, 2022, is retroactive to January 1, 2022 and will remain in effect through September 30, 2022.

The Details:

For employees who work 40 or more hours (or the employer considers the employee full time), the employer must provide up to 40 hours of COVID-19 supplemental paid sick leave if the employee is unable to work or telework because they:

Are subject to a quarantine or isolation period related to COVID-19.
Have been advised by a healthcare provider to isolate or quarantine.
Are attending a vaccine or vaccine booster appointment for employee or family member.
Are experiencing symptoms from a vaccine or caring for a family member who is experiencing symptoms (this can be limited to three days or 24 hours, unless the employee provides verification from a healthcare provider that the employee or family member is continuing to experience symptoms).
Are experiencing symptoms of COVID-19 and seeking medical diagnosis.
Are caring for a family member who is subject to a quarantine or isolation period or who has been advised to isolate or quarantine.
Are caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.

Additional Leave Allotment:

In addition to the leave described above, employees are entitled to take up to 40 hours of paid sick leave if the employee, or a family member for whom the employee is providing care, tests positive for COVID-19. Employees are not required to exhaust the other bank of COVID-19 supplemental paid sick leave before accessing the 40 hours additionally provided as a result of a positive COVID-19 test.

Note: If the employee tests positive for COVID-19, an employer may require the employee to submit to a diagnostic test on or after the fifth day after the test was taken and provide documentation of those results. The employer must make such a test available at no cost to the employee.

Part-Time Employees:

For each of the two banks of leave, employees who work less than 40 hours and work a normal schedule are entitled to the total number of hours they are normally scheduled to work over one week. A different calculation is used for part-time employees who work a variable schedule. See the text of the law for details.

Pay During Leave:

During COVID-19 supplemental paid sick leave, a nonexempt employee must be compensated at a rate at least equal to one of the following:

Calculated in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, regardless of whether the employee actually works overtime in that workweek.
Calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total non-overtime hours worked in the full pay periods occurring within the prior 90 days of employment.

An exempt employee must be compensated at a rate calculated in the same manner as the employer calculates wages for other forms of paid leave.

Note For such leave, employers are not required to compensate employees more than $511 per day or $5,110 in total.

Wage Statement Requirements:

Employers must provide employees with written notice that sets forth the amount of COVID-19 supplemental paid sick leave the employee has used through the pay period in which it was due to be paid, either on an itemized wage statement or in separate writing provided on the designated pay date. Employers will have until the next full pay period after February 19, 2022 to comply with this requirement. COVID-19 supplemental paid sick leave must be set forth separately from paid sick leave.

Note: The employer must list zero hours used if the employee has not used any COVID-19 supplemental paid sick leave.

Poster Requirements:

Employers must post a notice about employees' rights under the law. An employer may satisfy this requirement for workers who do not frequent a workplace by disseminating the notice through electronic means, such as e-mail.

Retroactive Payments:

Employers have until February 19, 2022 to start providing such leave. Since the law applies retroactively to January 1, 2022, if an employee took qualifying leave from January 1, 2022 to February 19, 2022, and makes a request for retroactive payment, the employer must provide it. The retroactive payment must be paid on or before the payday for the next full pay period after the request and should be reflected on the written notice for the pay period. If an employee makes such a request and was already compensated in an amount equal to or greater than the amount required under COVID-19 supplemental paid sick leave, the employee should be credited for the leave hours that were used.

Interaction with Other Leave Laws and Policies:

The COVID-19 supplemental paid sick leave is in addition to any paid sick leave that may be available under existing law. Employers are prohibited from requiring an employee to use any other paid or unpaid leave, paid time off, or vacation time provided by the employer to the covered employee before the covered employee uses COVID-19 supplemental paid sick leave or in lieu of COVID-19 supplemental paid sick leave.

Employers are also prohibited from requiring an employee to first exhaust their COVID-19 supplemental paid sick leave before satisfying any requirement to provide paid leave for reasons related to COVID-19 under Cal-OSHA COVID-19 Emergency Temporary Standards or the Cal-OSHA Aerosol Transmissible Diseases Standard.

However, if an employer paid another supplemental benefit for leave taken on or after January 1, 2022, that is payable for the reasons listed in Senate Bill 114 and that compensates the employee in an amount equal to or greater than required above, the employer may generally count it toward meeting the requirements of Senate Bill 114. This cannot include paid sick leave required under Labor Code Section 246. It also cannot include leave provided under Labor Code Section 248(e) (a now expired COVID-19 leave for food sector employees) or Labor Code Section 248.1(f) (a now expired COVID-19 leave for employees of employers with 500 or more employees), but it may include leave under federal law and local ordinances if the criteria are met. See the text of the law for details.

Special Rules:

There are special rules for in-home supportive services and firefighters under the law. See the text of the law for details.

Next Steps:

Covered employers should:

Read the text of the law in full and ensure compliance.
Train supervisors on how to handle requests for the leave.
Post the required notice.
Review and revise policies and practices if necessary.

Note: HR411^®'s Employee Handbook Wizard now includes a COVID-19 Supplemental Paid Sick Leave 2022 policy for California employers with more than 25 employees. See the Alerts section, found on the Employee Handbook Wizard home page, for more information.

Posted on January 15, 2022

The California Department of Public Health (CDPH) has extended a requirement to use face masks indoors through at least February 15, 2022, regardless of the individual's COVID-19 vaccination status. Before the extension, the mask requirement was set to end on January 15, 2022.

The Details:

The CDPH says individuals must wear masks in indoor public settings from through February 15, 2022, regardless of whether they are vaccinated. The requirement applies to all workplaces, regardless of whether they serve the public, or are open to the public, according to the CDPH. The CDPH recommends surgical masks or higher-level respirators.

Note: Under rules set by the California Division of Occupational Safety and Health (Cal/OSHA), employers must provide face coverings and ensure they are worn by employees when required by orders. The Cal/OSHA rules define what is considered an acceptable mask, but county and city rules may have additional requirements.

Exemptions:

The following individuals are exempt from the state's mask requirement:

Those younger than two years old (because of the risk of suffocation).
Those with a medical condition, mental health condition, or disability that prevents wearing a mask.
Those who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication.
Those for whom wearing a mask would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.

Additionally, exceptions apply in the following circumstances:

While actively eating or drinking.
When working alone in a closed office or room.
When performing at indoor live or recorded settings or events such as music, acting, or singing.
When obtaining a medical or cosmetic service involving the nose or face for which temporary removal of the face covering is necessary to perform the services.
When wearing respiratory protection, per Cal/OSHA requirements.

Next Steps:

Refer to CDPH's guidancefor more information.
Notify employees of the extension.
Continue to display notices at all entrances.
Make sure supervisors are trained on how to enforce the requirement.
Check county and city rules to determine if they have additional mask requirements.
Watch for developments to determine if the state's mask requirement is extended beyond February 15, 2022.

Posted on January 6, 2022

The California Division of Occupational Safety and Health (Cal/OSHA) has revised emergency rules related to protecting workers from COVID-19. The changes take effect January 14, 2022.

The Details:

By way of background, Cal/OSHA adopted COVID-19 prevention emergency temporary standards (ETS) in late 2020. Under the Cal/OSHA ETS, most employers must establish, implement, and maintain an effective, written COVID-19 Prevention Program that contains specified elements. Cal/OSHA last amended its ETS in June 2021.

Key Changes Effective January 14:

Here are some of the key changes to the Cal/OSHA ETS that will take effect January 14, 2022:

The notice requirements for situations in which there is workplace exposure to a COVID-19 case are clarified.
Employees who are exempted from wearing a face covering due to a medical or mental health condition, or disability and cannot wear a non-restrictive alternative must physically distance at least six feet from others and either be fully vaccinated or tested at least weekly for COVID-19.
In addition to the scenarios already covered by existing rules, employers must make COVID-19 testing available at no cost and during paid time to employees who were fully vaccinated before the “close contact” with a COVID-19 case occurred, even if they are asymptomatic.
During outbreaks and major outbreaks, employers must make weekly testing (outbreaks) or twice-weekly testing (major outbreaks) available even to asymptomatic fully vaccinated employees in the exposed group.
Asymptomatic employees who have recently recovered from COVID-19 and those who are fully vaccinated aren’t required to be excluded from the workplace after “close contact” but must wear a face covering and maintain six feet of physical distancing for 14 calendar days following the last date of contact. Employers must provide these employees with information about any applicable precautions that the California Department of Public Health (CDPH) recommends employees take after having close contact with a COVID-19 case.
The period of time before an employee can return to work after “close contact” or COVID-19 illness has been revised to be consistent with current CDPH guidelines. These timeframes will automatically update if CDPH updates its guidelines.
The definition of “worksite” is amended to specifically exclude the employee’s personal residence, locations where an employee works alone, and remote work locations chosen by the employee.
The definition of “COVID-19 test” is amended to provide more detailed information on acceptable tests and specifically exclude tests that are self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
The definition of “face coverings” is amended to include more specific detail on the different types of acceptable face coverings.
The definition of “fully vaccinated” is amended to note the minimal amount of time workers need to wait between the first and second shot of a two-dose vaccine.

Next Steps:

Read the revised Cal/OSHA ETS in full (a preview is available here).
Ensure your written COVID-19 Prevention Program complies by January 14, 2022. Note: Cal/OSHA is expected to publish an updated model COVID-19 Prevention Program soon, which will be available here.

Posted on December 16, 2021

The California Department of Public Health (CDPH) is requiring the use of face masks indoors for the next four weeks, regardless of the individual's COVID-19 vaccination status.

The Details:

The CDPH says individuals must wear masks in indoor public settings from December 15, 2021 through January 15, 2022, regardless of whether they are vaccinated. The requirement applies to all workplaces, regardless of whether they serve the public, or are open to the public, according to the CDPH. The CDPH recommends surgical masks or higher-level respirators.

Note: For local health jurisdictions that had preexisting mask requirements irrespective of vaccine status for indoor public settings, prior to December 13, 2021, those local health orders continue to apply.

Exemptions:

The following individuals are exempt from the state requirement:

Those younger than two years old (because of the risk of suffocation).
Those with a medical condition, mental health condition, or disability that prevents wearing a mask.
Those who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication.
Those for whom wearing a mask would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.

Additionally, exceptions apply in the following circumstances:

While actively eating or drinking.
When working alone in a closed office or room.
When performing at indoor live or recorded settings or events such as music, acting, or singing.
When obtaining a medical or cosmetic service involving the nose or face for which temporary removal of the face covering is necessary to perform the services.
When wearing respiratory protection, per Cal/OSHA requirements.

Next Steps:

Refer to CDPH's Get the Most out of Masking and see CDPH Masking Guidance Frequently Asked Questions for more information.
Notify employees.
Display notices at all entrances.
Train supervisors on how to enforce the requirement.
Amend written policies if necessary.
Watch for developments to determine if the mask requirement is extended beyond January 15, 2022.

Posted on October 26, 2021

California has enacted legislation (Assembly Bill 654) that clarifies the requirements for notifying employees when they have had potential exposure to COVID-19 in the workplace. The law also clarifies the requirements for notifying local health officials when there is a COVID-19 outbreak. Assembly Bill 654 takes effect immediately.

Background:

Under existing law, employers that receive a notice of potential exposure to COVID-19 in the workplace must take certain actions within one business day, including, but not limited to providing:

A written notice to all employees who were on the premises at the same worksite as the qualifying individual within the infectious period that they may have been exposed to COVID-19.
A written notice to the exclusive representative, if any, of the employee.
All employees who may have been exposed and the exclusive representative, if any, with information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws.
Notice to all employees (and to any exclusive representative) of the employer’s disinfection and safety plan.

If an employer is notified of enough COVID-19 cases to meet the State Department of Public Health’s definition of an outbreak, the employer must notify the local public health agency of the names, numbers, occupations, and worksites of "qualifying individuals," which are defined as any individuals who have:

A laboratory-confirmed case of COVID-19.
A positive COVID-19 diagnosis from a licensed health care provider.
A COVID-19-related order to isolate provided by a public health official.
Died due to COVID-19, in the determination of a county public health department or per inclusion in the COVID-19 statistics of a county.

Assembly Bill 654:

Assembly Bill 654 clarifies that:

The written notice on COVID-19-related benefits must be provided to all employees who were on the premises at the same worksite as the qualifying individual within the infection period.
The written notice of potential exposure must be provided to the exclusive representative of qualifying individuals and employees who had close contact with the qualifying individuals.
A written notice must be provided to all employees who were on the premises at the same worksite as the qualifying individual within the infectious period (and any exclusive representative) of the cleaning and disinfection plan that the employer is implementing per the guidelines of the federal Centers for Disease Control and Prevention and the COVID-19 prevention program per the Cal-OSHA COVID-19 Emergency Temporary Standards.
The definition of "close contact" is being within six feet of a COVID-19 case for a cumulative total of 15 minutes or more in any 24-hour period within or overlapping with the high-risk exposure period. This definition applies regardless of the use of face coverings.
The definition of "high-risk exposure period" is either of the following time periods:
- For individuals who develop COVID-19 symptoms, from two days before they first develop symptoms until ten days after the symptoms first appeared, and until 24 hours have passed with no fever, without the use of fever-reducing medications and symptoms have improved.
- For individuals who test positive who never develop COVID-19 symptoms, from two days before until ten days after the specimen for their first positive test for COVID-19 was collected.
The notice of an outbreak to the local public health agency must be provided within 48 hours or one business day, whichever is later.

Compliance Recommendations:

California employers should ensure compliance with Assembly Bill 654.

Posted on June 30, 2021

The California Department of Industrial Relations (DIR) has revised emergency rules related to protecting workers from COVID-19. The revisions are effective immediately.

Background:

In late 2020, the DIR adopted emergency rules for protecting workers from COVID-19, including a requirement for employers to adopt a written prevention program. Under the emergency rules, employers must establish, implement, and maintain an effective, written COVID-19 Prevention Program, which may be integrated into the employer's Injury and Illness Program, or be maintained in a separate document.

Key Changes:

The revised rules reflect the state's latest COVID-19 public health guidance and include changes to face coverings and physical distancing requirements. Here's a summary of some of the changes that impact employers:

Face coverings. Employers may generally allow fully vaccinated employees not to wear face coverings indoors, but they must document the employees' vaccination status. However, there are some settings where the California Department of Public Health requires face coverings regardless of vaccination status. In outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status. Employers may not retaliate against employees for wearing face coverings.
Physical distancing and barriers. There are no longer physical distancing or barrier requirements regardless of employee vaccination status with certain exceptions, such as:
- Employers must evaluate whether it's necessary to implement physical distancing and barriers during an outbreak (three or more cases in an exposed group of employees); and
- Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees).
Respirators. Employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors or in a vehicle with others, upon request. A respirator is defined as a respiratory protection device approved by the National Institute for Occupational Safety and Health (NIOSH) to protect the wearer from particulate matter, such as an N95.
Close contacts. Fully vaccinated employees don't need to be tested or quarantined after close contacts with COVID-19 cases unless they have symptoms. Employers must exclude, from the workplace, employees who have COVID-19 symptoms and/or are not fully vaccinated and, if that close contact is work-related, continue to pay the employee.
Ventilation. Employers must review the Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments, evaluate ventilation systems to maximize outdoor air and increase filtrations efficiency, and evaluate the use of additional air cleaning systems.

Compliance Recommendations:

California employers should read the revised rules in full (a preview is available here) and ensure their written COVID-19 Prevention Program complies. The DIR is expected to publish an updated model COVID-19 Prevention Program soon, which will be available here.

Posted on May 19, 2021

Fully vaccinated employees in California are generally no longer required to be excluded from the workplace if they have had COVID-19 exposure as long as they are asymptomatic, according to updated guidance from the Department of Industrial Relations (DIR).

Background:

In 2020, the DIR adopted emergency rules related to protecting workers from COVID-19, including a requirement for employers to exclude employees with COVID-19 exposure for a certain length of time.

On May 3, 2021, the California Department of Public Health (CDPH) issued its COVID-19 Public Health Recommendations for Fully Vaccinated People, which provide that fully vaccinated individuals who have had a COVID-19 exposure don't need to quarantine if they are asymptomatic.

New DIR Guidance:

Applying the CDPH's recommendations, the DIR has updated its guidance on the emergency rules to state that employers must exclude fully vaccinated employees only if they:

Are COVID-19 cases; or
Have had a COVID-19 exposure and exhibit COVID-19 symptoms.

This means that employers don't need to exclude fully vaccinated employees who had a COVID-19 exposure who are asymptomatic (and aren't considered a COVID-19 case), according to the guidance.

Under the CDPH's recommendations, individuals are considered fully vaccinated for COVID-19:

Two weeks or more after they have received the second dose in a two-dose series (Pfizer-BioNTech or Moderna); or
Two weeks or more after they have received a single-dose vaccine (Johnson and Johnson [J&J]/Janssen).

Note: The other requirements of the emergency rules still apply to fully vaccinated individuals, including mask wearing and social distancing.

Compliance Recommendations:

California employers should review the DIR's guidance in full, ensure compliance with the emergency rules, and continue to watch for developments as the DIR has proposed revisions to the emergency rules.

Posted on March 24, 2021

California has enacted legislation (Senate Bill 95) that requires employers with more than 25 employees to provide COVID-19 supplemental paid sick leave to employees. The leave requirement applies retroactively to January 1, 2021 and will remain in effect through September 30, 2021.

Use of Leave:

Covered employers must provide paid leave if an employee is unable to work or telework due to any of the following reasons:

The employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace.
The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
The employee is attending an appointment to receive a COVID-19 vaccine.
The employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
The employee is caring for a family member who is subject to a quarantine, isolation, or self-quarantine order.
The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Under the law, a family member includes a spouse, registered domestic partner, parent (including parent of a spouse or domestic partner), grandparent, child (regardless of age or dependency), grandchild, and sibling.

Amount of Leave:

Employees are entitled to 80 hours of COVID-19 supplemental paid sick leave if they satisfy either of the following criteria:

The employer considers the covered employee to work full time.
The covered employee worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date they took COVID-19 supplemental paid sick leave.

An employee who doesn't meet either of the above criteria is entitled to the leave as follows:

If they work a normal weekly schedule, they're entitled to the total number of hours they are normally scheduled to work for the employer over two weeks.
If they work a variable number of hours, they are entitled to 14 times the average number of hours the covered employee worked each day for the employer in the six months preceding the date the covered employee took COVID-19 supplemental paid sick leave.

The COVID-19 supplemental paid sick leave is in addition to any leave to which they are entitled under the state's paid sick leave law (Labor Code Section 246)

The employer must make COVID-19 supplemental paid sick leave available for employees to use immediately. Employees are entitled to use their full amount of leave as long as they start the leave on or before September 30, 2021.

Pay During Leave:

Each hour of COVID-19 supplemental paid sick leave must be compensated at:

For nonexempt employees, by the highest of the following:
- Calculated in the same manner as the regular rate of pay for the workweek in which the covered employee uses COVID-19 supplemental paid sick leave, regardless of whether the employee actually works overtime in that workweek;
- Calculated by dividing the covered employee's total wages, not including overtime premium pay, by the employee's total hours worked in the full pay periods of the prior 90 days of employment;
- The state minimum wage; or
- The local minimum wage to which the covered employee is entitled.
The leave for exempt employees must be calculated in the same manner as the employer calculates wages for other forms of paid leave.

Cap:

For COVID-19 supplemental paid sick leave, employers aren't required to pay more than $511 per day and $5,110 in the aggregate to an employee.

Retroactive Payments:

Employers have until March 29, 2021 to start providing such leave. However, since the law applies retroactively to January 1, 2021, if an employee took qualifying leave from January 1, 2021 through March 28, 2021 and makes a request for retroactive payment, the employer must provide it. The request must be made on or after March 29, 2021. The retroactive payment must be paid on or before the payday for the next full pay period after the request.

Wage Statements:

The state's existing paid sick leave law requires employers to provide an employee with written notice of the amount of paid sick leave available for use on either the employee's itemized wage statement or in a separate statement provided on the designated pay date with the employee's payment of wages. Under Senate Bill 95, COVID-19 supplemental paid sick leave must be itemized separately from the paid sick leave. Employers will have until the next full pay period after March 29, 2021 to comply with this requirement.

Poster:

Employers must post a notice about employees' rights under the law. The Labor Commissioner has published a model notice for employers. An employer may satisfy this requirement for workers who don't frequent a workplace by disseminating the notice through electronic means, such as e-mail.

Interaction with Other Leave Laws and Policies:

If an employer pays another supplemental benefit for leave taken on or after January 1, 2021, that is payable for the reasons listed above and that compensates the employee in an amount equal to or greater than required above, the employer may generally count it toward meeting the requirements of Senate Bill 95. This cannot include paid sick leave required under Labor Code Section 246. It also cannot include leave provided under Labor Code Section 248(e) (a now expired COVID-19 leave for food sector employees) or Labor Code Section 248.1(f) (a now expired COVID-19 leave for employees of employers with 500 or more employees), but it may include leave under federal law and local ordinances if the criteria are met. See the text of the law for details.

Generally, an employer cannot require an employee to use other paid or unpaid leave prior to or in lieu of using COVID-19 supplemental paid sick leave. However, an employer may require an employee to exhaust their COVID-19 supplemental paid sick leave prior to taking COVID-19 leave associated with being excluded from the workplace due to COVID-19 exposure under emergency state rules. For more information on the emergency state rules, see California Adopts New COVID-19 Prevention Requirements.

Special Rules:

There are special rules for in-home supportive services and firefighters under the law. See the text of the law for details.

Compliance Recommendations:

Covered employers should read the law in full and ensure compliance. Supervisors should also be trained on how to handle requests for the leave. The Labor Commissioner has published answers to frequently asked questions about the new law, which can be found here.

Note: HR411^®'s Employee Handbook Wizard now includes a COVID-19 Supplemental Paid Sick Leave policy for California employers with more than 25 employees. See the Alerts section, found on the Employee Handbook Wizard home page, for more information.

Posted on March 18, 2021

The California Department of Fair Employment and Housing (DFEH) has published new guidance answering questions about upholding state nondiscrimination requirements during the COVID-19 pandemic. The guidance addresses vaccination policies and practices and other topics.

Background:

The California Fair Employment and Housing Act (FEHA) prohibits employers with five or more employees from engaging in employment discrimination on the basis of race, national origin, disability, age (over 40), and certain other characteristics. The FEHA also requires employers to provide reasonable accommodations to employees with disabilities, unless doing so would impose an undue hardship on the employer.

Guidance:

Published on March 4, 2021, the DFEH's guidance is provided in the form of frequently asked questions and divided into sections, including:

COVID-19 Inquiries and Protective Equipment (five questions and answers)
Employees with COVID-19 Symptoms or Infection (four questions and answers)
Job-Protected Leave (two questions and answers)
Reasonable Accommodations (five questions and answers)
Vaccination (seven questions and answers)

For example, in the Vaccination section, the DFEH addresses these questions:

May an employer require its employees to be vaccinated against COVID-19?

Short Answer: Under the FEHA, an employer may require employees to receive an FDA-approved vaccination against COVID-19 infection as long as the employer:

Does not discriminate against or harass employees or job applicants on the basis of a protected characteristic;
Provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices; and
Does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).

Explanation: As safe and effective vaccines against COVID-19 infection become more widely available, employers may wish to encourage their employees to get vaccinated. The DFEH does not provide guidance on whether or to what extent an employer should mandate vaccination within its workforce. Rather, the guidance addresses how an employer complies with the FEHA if it decides to require employees to be vaccinated.

The FEHA prohibits discrimination and harassment on the basis of a protected characteristic; therefore, if an employer mandates or encourages vaccination in its workforce, the employer's vaccination policy or practice must not discriminate against or harass employees or job applicants based on a protected characteristic, such as a disability, perceived disability, or religion. In addition, the FEHA requires employers to reasonably accommodate employees with a known disability or sincerely-held religious belief or practice that prevents them from being vaccinated against COVID-19. It also prohibits employers from retaliating against anyone for engaging in protected activity.

If an employer requires its employees to receive a vaccination against COVID-19 administered by a third-party, may the employer require an employee or applicant to submit "proof" of vaccination?

Yes. While the reasons that any given employee or applicant is not vaccinated may or may not be related to disability or religious creed, simply asking employees or applicants for proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination. However, because such documentation could potentially include disability-related medical information, employers may wish to instruct employees or applicants to omit any medical information from such documentation. Any record of vaccination must be maintained as a confidential medical record.

Compliance Recommendations:

California employers should review the guidance in full and ensure that their policies and practices comply with all applicable laws, regulations, and guidance.

Updated on December 28, 2020

The Department of Industrial Relations (DIR) has adopted emergency rules related to protecting workers from COVID-19, including a requirement for employers to adopt a written prevention program. The emergency rules take effect immediately.

Coverage:

The emergency rules apply to all employees and places of employment, with the following exceptions:

Places of employment with one employee who doesn't have contact with other persons.
Employees working from home.
Employees covered by Cal/OSHA's Aerosol Transmissible Diseases standard.

Requirements for COVID-19 Prevention Program:

Under the emergency rules, employers must establish, implement, and maintain an effective, written COVID-19 Prevention Program, which may be integrated into the employer's Injury and Illness Program, or be maintained in a separate document. The DIR has published a model COVID-19 Prevention Program, which can be found here.

The written elements of a COVID-19 Prevention Program must include the following:

1. System for Communicating Information:

Employers must do all of the following in a form readily understandable by employees:

Ask employees to report to the employer, without fear of reprisal, COVID-19 symptoms, possible COVID-19 exposures (see text of rules for definition), and possible COVID-19 hazards (see text of rules for definition), at the workplace.
Describe procedures or policies for accommodating employees with medical or other conditions that put them at increased risk of severe COVID-19 illness.
Provide information about access to COVID-19 testing. If testing is required under these rules or another rule, the employer must inform affected employees of the reason for the COVID-19 testing and the possible consequences of a positive test.
Communicate information about COVID-19 hazards and the employer's COVID-19 policies and procedures to employees and to other employers, persons, and entities within or in contact with the employer's workplace

2. Identification and Evaluation of COVID-19 Hazards:

Employers must:

Allow for employee and authorized employee representative participation in the identification and evaluation of COVID-19 hazards.
Develop and implement a process for screening employees for and responding to employees with COVID-19 symptoms (see text of rules for definition). The employer may ask employees to evaluate their own symptoms before reporting to work. If the employer conducts screening at the workplace, the employer must ensure that face coverings are used during screening by both screeners and employees and, if temperatures are measured, that non-contact thermometers are used.
Develop policies and procedures to respond effectively and immediately to individuals at the workplace with a confirmed COVID-19 case (see text of rules for definition) to prevent or reduce the risk of transmission in the workplace.
Conduct a workplace-specific identification of all interactions, areas, activities, processes, equipment, and materials that could potentially expose employees to COVID-19 hazards. Employers must treat all persons, regardless of symptoms or negative COVID-19 test results, as potentially infectious, including:
- Identification of places and times when people may congregate or come in contact with one another, regardless of whether employees are performing an assigned work task, for instance during meetings or trainings and including in and around entrances, bathrooms, hallways, aisles, walkways, elevators, break or eating areas, and waiting areas.
- An evaluation of employees' potential exposure to all persons at the workplace or who may enter the workplace, including coworkers, employees of other entities, members of the public, customers or clients, and independent contractors. Employers must consider how employees and other persons enter, leave, and travel through the workplace, in addition to addressing fixed work locations.
For indoor locations, evaluate how to maximize the quantity of outdoor air and whether it is possible to increase filtration efficiency to the highest level compatible with the existing ventilation system.
Review applicable orders and guidance from the state and the local health department related to COVID-19 hazards and prevention, including information specific to the employer's industry, location, and operations.
Evaluate existing COVID-19 prevention controls at the workplace and the need for different or additional controls.
Conduct periodic inspections as needed to identify unhealthy conditions, work practices, and work procedures related to COVID-19 and to ensure compliance with employers' COVID-19 policies and procedures.

3. Investigating and Responding to Cases in the Workplace:

Employers must:

Have an effective procedure to investigate COVID-19 cases in the workplace. This includes procedures for verifying COVID-19 case status, receiving information regarding COVID-19 test results and onset of COVID-19 symptoms, and identifying and recording COVID-19 cases.
Take the following actions when there has been a COVID-19 case in the workplace:
- Determine the day and time the COVID-19 case was last present and, to the extent possible, the date of the positive COVID-19 test(s) and/or diagnosis, and the date the COVID-19 case first had one or more COVID-19 symptoms, if any.
- Determine who may have had a COVID-19 exposure. This requires an evaluation of the activities of the COVID-19 case and all locations at the workplace which may have been visited by the COVID-19 case during the high-risk exposure period (see text of rules for definition).
- Give notice of the potential COVID-19 exposure, within one business day, in a way that does not reveal any personal identifying information of the COVID-19 case, to:
  - All employees who may have had COVID-19 exposure and their authorized representatives.
  - Independent contractors and other employers present at the workplace during the high-risk exposure period.
- Offer COVID-19 testing at no cost, during their working hours, to all employees who had potential COVID-19 exposure in the workplace and provide them with the information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws. This includes any benefits available under workers' compensation law, the federal Families First Coronavirus Response Act (FFCRA), Labor Code sections 248.1 and 248.5, Labor Code sections 3212.86 through 3212.88, local governmental requirements, the employer's own leave policies, and leave guaranteed by contract. Employers must also inform employees of the rights and benefits extended to employees excluded from work under the rules and otherwise able and available to work (see below).
- Investigate whether any workplace conditions could have contributed to the risk of COVID-19 exposure and what could be done to reduce exposure to COVID-19 hazards.
Ensure that personal identifying information of COVID-19 cases or persons with COVID-19 symptoms is kept confidential. All COVID-19 testing or related medical services provided by the employer must be provided in a manner that ensures employee confidentiality. Employers must also ensure that all employee medical records required are kept confidential and aren't disclosed or reported without the employee's express written consent to any person within or outside the workplace. However, unredacted information on COVID-19 cases and medical records must be provided to the local and state health department, DIR, and the National Institute for Occupational Safety and Health (NIOSH), or as otherwise required by law immediately upon request.

4. Correction of COVID-19 Hazards:

Employers must implement effective policies and/or procedures for correcting unsafe or unhealthy conditions, work practices, policies and procedures in a timely manner based on the severity of the hazard.

5. Training and Instruction:

Employers must provide effective training and instruction to employees that includes:

The employer's policies and procedures to protect employees from COVID-19 hazards.
Information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws.
The fact that COVID-19 is an infectious disease that can be spread through the air when an infectious person talks or vocalizes, sneezes, coughs, or exhales; that COVID-19 may be transmitted when a person touches a contaminated object and then touches their eyes, nose, or mouth; and that an infectious person may have no symptoms.
Methods of physical distancing of at least six feet and the importance of combining physical distancing with the wearing of face coverings.
The fact that particles containing the virus can travel more than six feet, especially indoors, so physical distancing must be combined with other controls, including face coverings and hand hygiene, to be effective.
The importance of frequent hand washing with soap and water for at least 20 seconds and using hand sanitizer when employees do not have immediate access to a sink or hand washing facility, and that hand sanitizer doesn't work if the hands are soiled.
Proper use of face coverings and the fact that face coverings are not respiratory protective equipment.
COVID-19 symptoms, and the importance of not coming to work and obtaining a COVID-19 test if the employee has any COVID-19 symptoms.

6. Physical Distancing:

Employees must be separated from other persons by at least six feet, except where an employer can demonstrate that six feet of separation isn't possible, and except for momentary exposure while persons are in movement. Methods of physical distancing include:

Telework or other remote work arrangements;
Reducing the number of persons in an area at one time, including visitors;
Visual cues such as signs and floor markings to indicate where employees and others should be located or their direction and path of travel;
Staggered arrival, departure, work, and break times; and
Adjusted work processes or procedures, such as reducing production speed, to allow greater distance between employees.

When it isn't possible to maintain a distance of at least six feet, individuals must be as far apart as possible.

7. Face Coverings:

Employers must provide face coverings and ensure they are worn by employees over the nose and mouth when indoors, when outdoors and less than six feet away from another person, and where required by orders from the state or local health department. Employers must ensure face coverings are clean and undamaged. Face shields aren't a replacement for face coverings, although they may be worn together for additional protection.

The following are exceptions to the face coverings requirement:

When an employee is alone in a room.
While eating and drinking at the workplace, provided employees are at least six feet apart and outside air supply to the area, if indoors, has been maximized to the extent possible.
Employees wearing respiratory protection in accordance with state rules.
Employees who cannot wear face coverings due to a medical or mental health condition or disability, or who are hearing-impaired or communicating with a hearing-impaired person. Such employees must wear an effective non-restrictive alternative, such as a face shield with a drape on the bottom, if their condition or disability permits it. Any employee not wearing a face covering, face shield with a drape or other effective alternative, or respiratory protection, for any reason, must be at least six feet apart from all other persons unless the unmasked employee is tested at least twice weekly for COVID-19.
Specific tasks which cannot feasibly be performed with a face covering. This exception is limited to the time period in which such tasks are actually being performed, and the unmasked employee must be at least six feet away from all other persons unless unmasked employees are tested at least twice weekly for COVID-19.

Note: The California Department of Public Health has issued guidance for employers that identifies examples when wearing a face covering is likely not feasible.

Employers are prohibited from preventing any employee from wearing a face covering when not required by the rules, unless it would create a safety hazard, such as interfering with the safe operation of equipment.

Employers must implement measures to communicate to non-employees the face coverings requirements on their premises. Additionally, employers must implement policies and procedures to minimize employee exposure to COVID-19 hazards originating from any person not wearing a face covering, including a member of the public.

8. Other Controls and Personal Protective Equipment:

At fixed work locations where it isn't possible to maintain the physical distancing requirement at all times, the employer must install cleanable solid partitions that effectively reduce aerosol transmission between the employee and other persons.

For buildings with mechanical and/or natural ventilation, employers must maximize the quantity of outside air provided to the extent feasible, except when the United States Environmental Protection Agency (EPA) Air Quality Index is greater than 100 for any pollutant or if opening windows or letting in outdoor air by other means would cause a hazard to employees, for instance from excessive heat or cold.

Employers must implement cleaning and disinfecting procedures, which require:

Identifying and regularly cleaning and disinfecting frequently touched surfaces and objects, such as doorknobs, elevator buttons, equipment, tools, handrails, handles, controls, bathroom surfaces, and steering wheels. The employer must inform employees and authorized employee representatives of cleaning and disinfection protocols, including the planned frequency and scope of regular cleaning and disinfection.
Prohibiting the sharing of personal protective equipment and to the extent feasible, items that employees come in regular physical contact with such as phones, headsets, desks, keyboards, writing materials, instruments, and tools. When it isn't feasible to prevent sharing, it must be minimized, and such items and equipment must be disinfected between uses by different people. Sharing of vehicles must be minimized to the extent feasible, and high touch points (steering wheel, door handles, seatbelt buckles, armrests, shifter, etc.) must be disinfected between users.
Cleaning and disinfection of areas, material, and equipment used by a COVID-19 case during the high-risk exposure period.

To protect employees from COVID-19 hazards, the employer must evaluate its handwashing facilities, determine the need for additional facilities, encourage and allow time for employee handwashing, and provide employees with an effective hand sanitizer. Employers must encourage employees to wash their hands for at least 20 seconds each time. The use of hand sanitizers with methyl alcohol is prohibited.

Employers must evaluate the need for personal protective equipment to prevent exposure to COVID-19 hazards, such as gloves, goggles, and face shields, and provide such personal protective equipment as needed.

Employers must evaluate the need for respiratory protection in accordance with state rules when the physical distancing requirements aren't feasible or aren't maintained. Employers must provide and ensure use of respirators in accordance with state rules when deemed necessary by the DIR through the Issuance of Order to Take Special Action.

Employers must provide and ensure use of eye protection and respiratory protection in accordance with state rules when employees are exposed to procedures that may aerosolize potentially infectious material such as saliva or respiratory tract fluids.

9. Reporting, Recordkeeping, and Access:

Employers must:

Report information about COVID-19 cases at the workplace to the local health department whenever required by law and must provide any related information requested by the local health department.
Report immediately to the DIR any COVID-19-related serious illnesses or death, as defined, of an employee occurring in a place of employment or in connection with any employment.
Maintain records of the steps taken to implement the written COVID-19 Prevention Program.
Make the written COVID-19 Prevention Program available at the workplace to employees, authorized employee representatives, and to representatives of the DIR immediately upon request.
Keep a record of and track all COVID-19 cases with the employee's name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of a positive COVID-19 test. The information must be made available to employees, authorized employee representatives, or as otherwise required by law, with personal identifying information removed.

10. Exclusion of COVID-19 Cases:

Employers must:

Ensure that COVID-19 cases are excluded from the workplace until the return to work requirements are met (see next section).
Exclude employees with COVID-19 exposure from the workplace for 14 days after the last known COVID-19 exposure to a COVID-19 case. Update: On December 14, 2020, California's governor issued an executive order that suspended the exclusion period to the extent that it exceeds the longer of:
- Any applicable quarantine or isolation period recommended by the California Department of Public Health, including in the December 14, 2020 Updated COVID-19 Quarantine Guidelines; or
- Any applicable quarantine or isolation period recommended or ordered by a local health officer who has jurisdiction over the workplace.

For employees excluded from work under these rules and otherwise able and available to work, employers must continue and maintain an employee's earnings, seniority, and all other employee rights and benefits as if the employee had not been removed from their job. Employers may use employer-provided employee sick leave benefits for this purpose and consider benefit payments from public sources in determining how to maintain earnings, rights and benefits, where permitted by law and when not covered by workers' compensation. However, these requirements don't apply:

To any period of time during which the employee is unable to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission.
Where the employer demonstrates that the COVID-19 exposure isn't work related.

At the time of exclusion, the employer must provide the employee information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws. Employers must also inform employees of the rights and benefits extended to employees excluded from work under the rules and otherwise able and available to work.

Employees who haven't been excluded or isolated by the local health department need not be excluded by the employer, if they are temporarily reassigned to work where they don't have contact with other persons until the return to work requirements are met.

11. Return to Work Criteria:

COVID-19 cases with COVID-19 symptoms are prohibited from returning to work until:

At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications;
COVID-19 symptoms have improved; and
At least 10 days have passed since COVID-19 symptoms first appeared.

COVID-19 cases who tested positive but never developed COVID-19 symptoms are prohibited from returning to work until a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test. The rules prohibit requiring a negative COVID-19 test for an employee to return to work.

If an order to isolate or quarantine an employee is issued by a local or state health official, the employee is prohibited from returning to work until the period of isolation or quarantine is completed or the order is lifted. If no period was specified, then the period is 10 days from the time the order to isolate was effective, or 14 days from the time the order to quarantine was effective (see Update above).

If there are no violations of local or state health officer orders for isolation or quarantine, the DIR may, upon request, allow employees to return to work on the basis that the removal of an employee would create undue risk to a community's health and safety. In such cases, the employer must develop, implement, and maintain effective control measures to prevent transmission in the workplace including providing isolation for the employee at the workplace and, if isolation isn't possible, the use of respiratory protection in the workplace.

Other Rules:

The emergency rules also address:

Requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period).
Specific requirements for infection prevention in employer-provided housing and transportation to and from work.

See the text of the rules for details.

Compliance Recommendations:

California employers should read the rules in full and develop and implement a written COVID-19 Prevention Program that complies.

Posted on September 23, 2020

California has enacted legislation (Assembly Bill 685) that requires employers to provide written notice to employees who may have been exposed to COVID-19 at their worksite. Assembly Bill 685 takes effect January 1, 2021. The state also enacted Senate Bill 1159, which takes effect immediately and adds workers' compensation protections related to COVID-19.

Assembly Bill 685:

If an employer is put on notice of potential exposure to COVID-19, the employer must take all the following actions within one business day:

Notify employees of possible exposure. Provide a written notice to all employees and their exclusive representative (if any), and the employers of subcontracted employees who were on the premises at the same worksite as the individual within the infectious period. The notice must be provided in a manner the employer normally uses to communicate employment-related information and may include, but is not limited to, personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and must be in both English and the language understood by the majority of the employees.
Provide benefits-related information. Provide information about COVID-19-related benefits to all employees who may have been exposed and to the exclusive representative, if any. This includes, but isn't limited to, workers' compensation, COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as anti-retaliation and anti-discrimination protections.
Communicate safety plan. Notify all employees, and the employers of subcontracted employees and the exclusive representative, if any, on the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.
Notify public health agency. If an employer or representative of the employer is notified of the number of cases that meet the definition of a COVID-19 outbreak, as defined by the State Department of Public Health, within 48 hours, the employer must notify the local public health agency in the jurisdiction of the worksite of the: names, number, occupation, and worksite of the employees and the business address and NAICS code of the worksite where the individuals work.

Employers must maintain records of the required notifications for a period of at least three years.

Other Protections:

Employers are prohibited from requiring employees to disclose medical information unless otherwise required by law. Employers are also barred from retaliating against a worker for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate.

The law also gives Cal/OSHA additional enforcement powers if it determines that the worksite exposes workers to the risk of infection and constitutes an imminent hazard to employees.

Senate Bill 1159:

Effective immediately, Senate Bill 1159:

Codifies a recent executive order (N-62-20) to create a rebuttable presumption that illness or death related to COVID-19 is an occupational injury and therefore eligible for workers' compensation benefits (this presumption applies to employees who performed services at their place of employment at the employer's direction on or after March 19, 2020, and on or before July 5, 2020).
Creates a rebuttable presumption that a peace officer, firefighter, specified frontline employees, and certain healthcare employees, who contract COVID-19 were infected with the virus via a workplace exposure. This presumption applies from July 6, 2020 and expires on January 1, 2023.
Establishes a presumption of compensability for employees who contract COVID-19 on or after July 6, 2020 from any employer with five or more employees that experiences an "outbreak" of COVID-19 cases at a particular work location (this presumption expires on January 1, 2023). Notably, the definition of outbreak is different under Senate Bill 1159 than the one under Assembly Bill 685. See the text of the law for details.

Notification to Claims Administrator:

When the employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer must report to their claims administrator in writing within three business days all of the following:

An employee has tested positive. For purposes of this reporting, the employer is prohibited from providing any personally identifiable information regarding the employee who tested positive for COVID-19 unless the employee asserts the infection is work related or has filed a claim form.
Date of positive result. The date that the employee tests positive, which is the date the specimen was collected for testing.
Work address. The specific address (or addresses) of the employee's specific place of employment during the 14-day period preceding the date of the employee's positive test.
Workforce count. The highest number of employees who reported to work at the employee's specific place of employment in the 45-day period preceding the last day the employee worked at each specific place of employment.

Any employer who is aware of an employee testing positive from July 6, 2020 to September 17, 2020 must also notify their claims administrator within 30 business days of September 17, 2020. See the text of the law for details on this reporting requirement.

Compliance Recommendations:

California employers should review their procedures to ensure compliance with the notice requirements of these two laws.

Cities in California

The Los Angeles County Department of Public Health (LACDPH) has issued an order lifting indoor mask requirements in many places.

The Details:

Under the LACDPH's order, effective March 4, 2022, individuals are required to wear a mask in the following settings only:

On public transport, including planes, trains, buses, ferries, taxis and ride-shares.
In transportation hubs like airports, bus terminals, train stations, marinas, seaports or other ports, subway stations, or any other area that provides transportation.
In healthcare settings (including long-term care facilities).
In long-term care settings and adult/ senior care facilities.
In state and local correctional facilities and detention centers.
Shelters and cooling centers.
Indoors in K-12 schools and childcare (through March 11, then strongly recommended).
In any other outdoor location where it is the policy of the business or venue.

Masks are strongly recommended in all other indoor settings in the county. Even where masks are optional, employers must still offer well-fitting medical grade masks or respirators (such as an N95, KN95, or KF94 respirators) at no cost to employees who work indoors and in contact with others.

Note: Under Cal/OSHA’s Emergency Temporary Standards, upon request, employers must provide respirators for voluntary use to all employees who aren’t fully vaccinated and who are working indoors or in vehicles with more than one person.

Next Steps:

Read the LACDPH's order.
Refer to the county's guidance on masks.
Notify employees of any changes.
Watch for developments.

Posted on January 15, 2022

The Los Angeles County Department of Public Health (LACDPH) has issued an order requiring all employers to provide masks to employees who work indoors and in close contact with other works or the public. Employers must provide masks as soon as possible but no later than January 17, 2022.

The Details:

Under the LACDPH's order, employers must provide employees with and require them to wear a well-fitting medical grade mask, surgical mask, or higher-level respirator, such as an N95 filtering facepiece respirator. or KN95, at all times while indoors at the worksite or facility. The mask requirement applies regardless of vaccination status.

Note: Employers are also subject to mask requirements set by the state. Employers should consult legal counsel to discuss the impact of these rules on their policies and practices.

Exceptions:

A list of exemptions from the county's mask requirement is available here. Under the order, workers who cannot feasibly wear a mask while performing their work and aren't fully vaccinated and boosted (if eligible) must be tested for COVID-19 twice per week. Workers who cannot feasibly wear a mask while performing their work and are fully vaccinated and boosted (if eligible) should be tested for COVID-19 once per week.

Next Steps:

Read the LACDPH's order.
Refer to the county's guidance on masks.
Notify employees.
·Make sure supervisors are trained on how to enforce the requirement.
Coordinate compliance with state requirements for masks and consult legal counsel if necessary.
Watch for developments.

Updated on September 2, 2021

In response to a surge in COVID-19 cases, several cities and counties in California have recently issued orders requiring individuals to wear masks indoors, regardless of their vaccination status. The following chart provides a brief synopsis of many of these orders.

Keep in mind that this list may not be exhaustive as jurisdictions continue to adopt such orders. Employers in California should check their city and county websites regularly for the status of any mask requirements. This chart is current as of September 2, 2021.

Note: These orders may have limited exceptions and/or apply to some outdoor settings. Many also require covered businesses to take certain steps to implement a mask mandate, such as posting signage at all entry points to indoor settings. See the text of the order for details on exceptions and requirements.

Jurisdiction	Where Are Masks Generally Required by the City or County Regardless of Vaccination Status?	Issuing Authority and Link to Order
Berkeley	All indoor public settings, workplaces, venues, and gatherings	Health Officer for City of Berkeley
Alameda County	All indoor public settings, workplaces, venues, and gatherings	Health Officer of Alameda County
Contra Costa County	All indoor public settings, including business offices, retail stores, restaurants, theaters, family entertainment centers, and meeting rooms	Health Officer of Contra Costa County
Humboldt County	All indoor public settings, workplaces, venues, and gatherings	Humboldt County Public Health Officer
Imperial County	All public indoor settings	Imperial County Health Officer
Los Angeles County	All indoor public settings, public and private businesses, venues, and gatherings	LA County Department of Public Health
Marin County	All indoor public settings, workplaces, venues, and gatherings	Marin County Public Health Officer
Mendocino County	All indoor public settings, workplaces, venues, and gatherings	Mendocino County Health Officer
Mono County	All indoor public settings, businesses, venues, and gatherings	Mono County Health Department
Napa County	All indoor settings	Napa County Health Officer
Nevada County	All indoor public settings, workplaces, venues, and gatherings	Nevada County Health Department
Sacramento County	All indoor public settings, workplaces, venues, and gatherings	Health Officer of Sacramento County
San Francisco City and County	All indoor public settings	Department of Public Health
San Mateo County	All indoor public settings, workplaces, venues, and gatherings	San Mateo Health
Santa Barbara County	All indoor public settings and businesses	Santa Barbara County Department of Health
Santa Clara County	All indoor settings	Santa Clara County Health Officer
Santa Cruz County	All indoor settings	Santa Cruz County Health Officer
Sonoma County	All indoor public settings, workplaces, venues, and gatherings	Sonoma County Public Health Officer
Stanislaus County	All indoor workplaces and public settings	Stanislaus County Health Services Agency
Trinity County	All indoor public settings, workplaces, venues, and gatherings	Trinity County Public Health Officer
Ventura County	All indoor public settings and businesses	Ventura County Health Officer
Yolo County	All indoor public settings, workplaces, venues, and gatherings	Yolo County Public Health Officer

Posted on May 21, 2021

Santa Clara County (CA) has issued an order that requires employers to determine the vaccination status of all employees and contractors and to take certain other safety measures. The order took effect May 19, 2021 and supersedes the October 5, 2020 Risk Reduction Order of the Health Officer.

Ascertainment of Vaccination Status:

All businesses must determine the vaccination status of all "personnel." The county has created a sample form for employers to use for this purpose. Until a person's vaccination status is ascertained, they must be treated as not fully vaccinated (see below). Personnel who decline to provide vaccination status must also be treated as unvaccinated.

Businesses must complete their initial determination of vaccination status for all personnel by June 1, 2021. Thereafter, they must obtain updated vaccination status for all personnel who were not fully vaccinated every 14 days. Employers must maintain appropriate records to demonstrate compliance with the provision.

Covered Personnel:

Under the order, "personnel" means the following individuals who provide goods or services or perform operations associated with a business in the county:

Employees;
Contractors and sub-contractors (such as those who sell goods or perform services onsite or who deliver goods for the business);
Independent contractors (such as "gig workers" who perform work via the business's application or other online interface);
Vendors who are permitted to sell goods on site;
Volunteers; and
Other individuals who regularly provide services onsite at the request of the business.

"Fully Vaccinated:"

For the purposes of the order, an individual is "fully vaccinated" two weeks after completion of the entire recommended series of vaccination . For example, an individual would be fully vaccinated at least two weeks after receiving a second dose of the Pfizer or Moderna COVID-19 vaccine or two weeks after receiving the single dose Johnson & Johnson COVID-19 vaccine.

Treatment of Not Fully Vaccinated Individuals:

Businesses must:

Ensure that all personnel not fully vaccinated who are working onsite wear face coverings in accordance with the Health Officer's Mandatory Directive on Use of Face Coverings.
Make sure that all personnel not fully vaccinated who are a "close contact" to a confirmed case, or who have been confirmed to have COVID-19, are excluded from the workplace for the duration of all applicable quarantine and/or isolation periods in accordance with the guidance of the Health Officer at www.sccsafeworkplace.org.
Provide all personnel not fully vaccinated, whether working onsite or remotely, with information on how to get vaccinated. A sample information sheet is available at www.sccsafeworkplace.org.

Mandatory Reporting:

Businesses must require that all personnel immediately alert them if they test positive for COVID-19 and were present in the workplace either within:

The 48 hours prior to onset of symptoms or within 10 days after onset of symptoms if they were symptomatic; or
48 hours prior to the date on which they were tested or within 10 days after the date on which they were tested if they were asymptomatic.

In the event that a business learns that any of its personnel is a confirmed positive case of COVID-19 and was at the workplace in this timeframe, the business must report the positive case within 24 hours to the County Public Health Department at sccsafeworkplace.org. Businesses must also comply with all case-investigation and contact-tracing measures directed by the county, including providing any information requested within the timeframe provided by the county, instructing personnel to follow isolation and quarantine protocols specified by the county, and excluding positive cases and unvaccinated close contacts from the workplace during these isolation and quarantine periods.

Obligation to Follow Directives and Mandatory State Guidance:

In addition to complying with all provisions of the order, all businesses must follow any applicable directives issued by the County Health Officer and any applicable mandatory guidance issued by the California Department of Public Health. To the extent that provisions in the directives of the County Health Officer and the guidance of the State Health Officer conflict, the more restrictive provisions apply.

Compliance Recommendations:

All employers Santa Clara County should read the order in full and ensure compliance with it. Additional guidance on the order is available here.

Updated on April 5, 2021

Several cities and counties in California have approved ordinances that require employers to provide hazard pay (premium pay in addition to the employee's regular rate of pay) to certain employees. The following chart provides a brief overview of these requirements. Many of these laws also have notice, recordkeeping, and other requirements. Employers in these jurisdictions should read the ordinances in full to determine their full compliance requirements.

Jurisdiction	Covered Businesses	Hazard Pay	In effect
American Canyon	Any entity with more than 300 grocery workers nationwide	$5 per hour	120 days
Berkeley	Grocery stores with 300 or more employees in the state of California	$5 per hour	120 days; or as long as Alameda County is outside the Yellow tier under the current statewide health order framework
Coachella	Agricultural operations, grocery stores, restaurants, and retail pharmacies with 300 or more employees nationally and 5 employees per location in the city	$4 per hour	120 days
Concord	Grocery stores with 300 or more employees nationwide	$5 per hour	120 days or until Contra Costa County enters the "Minimal" (yellow) level under state rules, whichever is later
Costa Mesa	Grocery stores, retail pharmacies, and "big box retailers" with at least 15 employees in the city, and whose owner, parent company, franchisor, or network of franchises employs 300 or more employees nationally	$4 per hour	120 days
Daly City	Grocery stores and drugstores: With at least 500 employees nationwide regardless of where those employees are employed, or A franchisee associated with a franchisor or a network of franchises with more than 500 employees in the aggregate	$5 per hour	120 days
El Monte	Certain retailers with at least 300 employees nationwide and at least 10 employees in the city	$4 per hour	120 days or until 15 days after LA County enters the Yellow tier under the current statewide health order framework
Glendale	Grocery stores and drug stores that are a publicly traded company or employ 300 or more employees nationwide	$5 per hour	120 days
Irvine	Employ 20 grocery store workers in the city, and Have an owner, parent company, franchisor, or network of franchises that employs 500 or more employees nationally	$4 per hour	March 25, 2021 through July 23, 2021
Los Angeles	Grocery stores and drug retail stores with more than 300 employees nationwide and more than 10 employees on-site in the city	$5 per hour	120 days
Los Angeles County (unincorporated areas)	Grocery stores with 300 or more employees nationally and more than 10 employees per location	$5 per hour	120 days
Long Beach	More than 300 grocery workers nationally; and More than 15 employees per grocery store in the city	$4 per hour	Through May 22, 2021
Millbrae	Grocery stores and drugstores with 750 or more employees nationwide	$5 per hour	120 days
Montebello	Employ more than 300 grocery or drug store workers nationally and more than 15 employees per grocery or drug store in the city	$4 per hour	Through July 26, 2021
Oakland	Grocery stores with 500 or more employees nationwide and a store that is over 15,000 square feet and located within the geographic limits of the city	$5 per hour	Any pay period in which Risk Levels in the city are above the "Minimal" (yellow) level under state rules
Palm Springs	Grocery stores with more than 300 employees nationwide and more than 15 employees in the city	$4 per hour	120 days
Pomona	Grocery stores, retail pharmacies or "big box retailers" that employ 300 or more employees nationally and more than 10 employees per location in the city	$4 per hour	March 1, 2021 through June 29, 2021
Santa Ana	Grocery stores and retail pharmacies with over 300 workers nationally and more than 15 employees per grocery store location or retail pharmacy location in the city	$4 per hour	March 3, 2021, through June 30, 2021
Santa Clara County (unincorporated areas)	Grocery stores and drugstores with more than 300 employees nationwide and at least 15 workers in Santa Clara County's unincorporated areas Franchises with more than 300 employees nationally and the franchisee operates at least 10 grocery or drug stores in the state	$5 per hour	180 days or until the current County COVID-19 public health emergency is terminated, whichever occurs sooner
San Francisco	Grocery stores and drug stores with 500 or more employees worldwide, including at least 20 employees in the city, and janitorial and security contractors at these stores	$5 per hour	March 22, 2021 to May 22, 2021, or upon the termination of the local health emergency, whichever occurs first
San Jose	Grocers with 300 or more employees nationwide	$3 per hour	March 26, 2021 through May 22, 2021
San Leandro	Retail food establishments with 300 or more employees nationwide, including but not limited to chains, integrated enterprises, or franchises	$5 per hour	120 days; or as long as Alameda County is outside the Yellow tier under the current statewide health order framework; or until most employees are vaccinated
San Mateo	Grocery stores and drugstores that employ 750 or more employees nationwide regardless of where those employees are employed	$5 per hour	Through May 31, 2021
South San Francisco	Grocery stores and drugstores that employ 500 or more employees nationwide, regardless of where those employees are employed	$5 per hour	February 11, 2021 through May 26, 2021
West Hollywood	Grocery stores with more than 300 grocery workers nationally and more than 15 employees per grocery store in the city	$5 per hour	120 days

Posted on February 18, 2021

The city of Oakland (CA) has adopted an emergency ordinance that extends a requirement for employers to provide paid sick leave to employees for reasons related to COVID-19. The extension took effect retroactively to December 31, 2020 and will remain in effect through the end of the city's COVID-19 Emergency Declaration.

Background:

On May 12, 2020, Oakland joined the list of California cities that expanded the requirements for providing emergency paid sick leave (EPSL). The ordinance was scheduled to expire on December 31, 2020.

Covered Employers:

The emergency ordinance applies to all employers with 50 or more employees between February 3, 2020 and March 4, 2020. It also applies to unregistered janitorial employers of any size, and franchises with fewer than 50 employees associated with a franchisor or network of franchises employing more than 500 employees in total.

Amount of Leave:

Full-time employees:

Employers must immediately provide 80 hours of emergency paid sick leave (EPSL) to all employees who worked for at least 40 hours per week within the city over the period of January 1, 2021 through January 21, 2021, or at any point thereafter or are classified as full-time by the employer.

Part-time employees:

If employees worked fewer than 40 hours, they are entitled to EPSL in an amount equal to the average number of hours they worked within the city over 14 days during the period of January 1, 2021 through January 21, 2021.The 14 days must be those with the highest number of hours worked within the city.

Employees who start work after January 21, 2021 are entitled to EPSL in the amounts described above.

If any employee has worked for fewer than 14 days over the period of January 1, 2021 through January 21, 2021, the employer must provide EPSL once the employee works for 14 days, in an amount equal to the number of hours the employee worked within the city over that period.

Previously provided COVID-19 leave:

Employers may credit EPSL provided under the city's May 12 ordinance prior to January 1, 2021 against their obligation under the new emergency ordinance. Additionally, employers may count EPSL provided under Federal Families First Coronavirus Response Act against their obligation under the city's EPSL ordinances.

Use:

Employees may use leave under the ordinance for the following reasons:

The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or is caring for an individual who is subject to such an order.
The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19 or is caring for an individual who has been advised to self-quarantine.
The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
The employee is caring for their son or daughter due to their school or place of care being closed, or their childcare provider is unavailable, due to COVID-19 precautions.
The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
When the employee needs to care for a family member who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19; or
When the employee:
- Is at least 65 years old;
- Has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system; or
- Has any condition identified by an Alameda County, California or federal public health official, or certified by a health care professional, as putting the public at heightened risk of serious illness or death if exposed to COVID-19.

Pay During Leave:

Employers must pay 100 percent of the employee's normal hourly rate, up to a limit of $511 per day or $5,110 in total.

Documentation:

An employer may take reasonable measures to verify or document that an employee's use of the leave is lawful. Employers may not require an employee to incur expenses in excess of $5 to demonstrate their eligibility for the leave.

Employers are expressly prohibited from requiring a doctor's note or other documentation for the use of the leave, except when an employee needs leave for "any condition certified by a healthcare professional as putting the employee at a heightened risk of serious illness or death if exposed to COVID-19. "An employee obtaining such certification does not need to disclose their condition, only that they are at a heightened risk. The certification may be obtained by virtual or telephone appointment.

Employer Notice:

The ordinance requires employers to post and/or provide a notice to their employees within three days after the city publishes it. The notice is translated into Spanish, Mandarin, Cantonese, and Vietnamese. Employers must provide the notice in all languages spoken by more than ten percent of employees.

Compliance Recommendations:

Oakland employers should read the ordinance in full and ensure compliance.

Posted on February 18, 2021

The city of Santa Rosa (CA) has approved an emergency ordinance that temporarily reinstates a requirement for employers to provide paid sick leave to employees for reasons related to COVID-19. This leave requirement is in effect from February 2, 2021 through March 31, 2021.

Covered Employers:

The emergency ordinance generally applies to all businesses within Santa Rosa city limits, regardless of size or sector.

Covered Employees:

To be covered by the emergency ordinance, an employee must work at least two hours within the geographic boundaries of the city. An employee who works only part of their hours within city limits is entitled to paid sick leave hours equal to the number of hours they work on average over a two-week period in Santa Rosa.

Amount of Leave:

Full-time employees are entitled to use up to 80 hours of paid sick leave. Part-time employees are entitled to paid sick leave equal to the number of hours they work on average over a two-week period.

Note: The leave requirement doesn't apply to cases in which the employer has already provided the employee with paid leave for COVID-19 at least equivalent to the paid sick time required by the emergency ordinance. For instance, if a full-time employee used 80 hours of COVID-19 paid sick leave in 2020, the employee wouldn't be entitled to any additional leave under the emergency ordinance. However, if a full-time employee used only 40 hours of such leave in 2020, the employee would be entitled to use 40 hours of such leave from February 2, 2021 through March 31, 2021.

Use:

Under the emergency ordinance, an employee can use paid sick leave if unable to work due to any of the following reasons:

The employee is subject to quarantine or isolation by federal, state or local order due to COVID-19;
The employee is advised by a healthcare provider to self-quarantine due to COVID-19;
The employee experiences symptoms of COVID-19 and is seeking medical diagnosis;
The employee is caring for an individual who is quarantined or isolated, or otherwise unable to receive care due to COVID-19; or
The employee is caring for a minor child because their school or daycare is closed, or the childcare provider isn't available due to COVID-19.

Exceptions:

Employers with fewer than 50 employees that would have qualified for the small-employer exemption under the Families First Coronavirus Response Act (FFCRA) aren't required to provide leave for employees to care for a minor child whose school or daycare is closed, or the childcare provider isn't available due to COVID-19 (reason #5 above). These employers must still provide leave for reasons 1 through 4.

Under the emergency ordinance, if an employer can show that the need for leave is due to the employee's intentional violation of a health order, the employer may deny the benefit. Employers should consult legal counsel before doing so.

Pay During Leave:

If an employee qualifies for leave under reasons 1-3 above, the employee must be paid at least their regular rate of pay (up to $511 per day and not to exceed $5,110 in total).

If an employee qualifies for leave under reasons 4 or 5 above, they must be paid at least two-thirds of the their regular rate of pay (up to $200 per day and not to exceed $2,000 in total).

Employer Notice:

Employers must give written notice to each employee about their rights under the emergency ordinance. For new hires, the notice must be given within one week of their start date. A sample notice provided by the city is available here.

Compliance Recommendations:

Santa Rose employers should review the ordinance in full and ensure compliance. The city has provided additional guidance here. Keep in mind that employers may be entitled to federal tax credits for providing such leave.

Posted on February 2, 2021

The city of Sacramento (CA) has enacted an ordinance that extends through March 31, 2021 requirements for employers to implement certain COVID-19 safety protocols.

Safety Protocols:

Under the ordinance, employers that operate a business within the city must follow the following physical distancing, mitigation, and cleaning protocols and practices:

Daily cleaning and disinfection of high-touch areas in accordance with guidelines issued by the Centers for Disease Control (CDC).
Cleaning of common areas – including break rooms, locker rooms, dining facilities, rest rooms, conference rooms, and training rooms – daily and between shifts.
Maintenance of cleaning protocols established by the employer for all other areas of the workplace.
Establish protocols for situations in which the workplace has been exposed to a person who is a probable or confirmed COVID-19 case.
Providing employees access to regular handwashing with soap, hand sanitizer, and disinfectant wipes.
Providing face coverings for employees to wear, and mandating that employees wear them while on the site, except to the extent an employee can maintain physical distance of six feet from other persons or is using break time to eat or drink, in accordance with CDC guidance. Employers must establish protocols specifically regarding how it will ensure proper physical distancing.
Informing all employees of the required protocols and practices, in writing, in English and any language spoken by at least 10 percent of the employees who are at the work site.

Right to Refuse Work:

Under the extended ordinance, an employee may refuse to work for an employer, without pay, if they reasonably believe the employer is in violation of the safety requirements above and provides notice to the employer of the alleged violation.

The city may investigate whether the employer was in violation. If the city finds that a violation has occurred, employers have 15 days following written notice from the city to rectify it.

If the city finds there was no violation of the safety requirements, or if the employer provides proof to the city that it has cured any violation that has been substantiated, the employee no longer has the right of refusal.

Paid Leave (Employers with 500 or More Employees):

The ordinance also requires employers with 500 or more employees nationally to provide additional paid sick leave for employees that can be used for COVID-19-related reasons. See the text of the original ordinance for details.

Compliance Recommendations:

Employers that operate a business within Sacramento must ensure compliance with the ordinance through March 31, 2021.

Posted on January 18, 2021

The city of San Jose (CA) has adopted an emergency ordinance that extends and expands a requirement for employers to provide paid sick leave to employees for reasons related to COVID-19. The ordinance is in effect through June 30, 2021.

Background:

On April 7, 2020, San Jose adopted an ordinance that required employers to provide paid sick leave to employees if they were exempt from the leave requirements under the federal Families First Coronavirus Response Act (FFCRA). The FFCRA only applied to employers with fewer than 500 employees and included certain other exemptions. The city's ordinance was meant to address the gaps in the FFCRA and was set to expire on December 31, 2020.

New San Jose Emergency Ordinance:

Because the FFCRA's leave requirements expired on December 31, 2020, the city adopted a new emergency ordinance that: (1) extends the paid sick leave requirements through June 30, 2021; and (2) expands the ordinance to cover all employers that meet both of the following criteria:

The employer is subject to the Business License Tax required by the city or maintains a facility within the boundaries of the city.
The employer is lawfully allowed to conduct business activities under the County of Santa Clara, state or federal health orders.

The new ordinance took effect retroactively on January 1, 2021.

Covered Employees:

To be eligible for the leave under the ordinance, the employee must:

Work at least two hours within the geographic boundaries of the city for a covered employer; and
Leave their own residence to perform work for the employer and is unable to telecommute.

Amount of Leave:

Under the ordinance, a full-time employee is entitled to 80 hours of paid sick leave. A part-time employee is entitled to sick leave hours equal to the number of hours they work on average over a two-week period.

Note: The new ordinance didn't increase the total amount of paid sick leave that employers must provide, Therefore, under the ordinance, eligible employees are entitled to up to a total of 80 hours of paid sick leave for the entire period from April 2, 2020 through June 30, 2021.

Use:

An employee may use paid sick leave for any of the following purposes:

The employee is subject to quarantine or isolation by federal, state or local order due to COVID-19, or is caring for someone who is quarantined or isolated due to COVID-19;
The employee is advised by a healthcare provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a healthcare provider;
The employee experiences symptoms of COVID-19 and is seeking medical diagnosis; or
The employee is caring for a minor child because a school or daycare is closed due to COVID-19.

The employee can take paid sick leave for one or more of the above qualifying reasons until the employee either: (1) uses the full amount of paid sick leave; or (2) no longer has a qualifying reason for taking paid sick leave.

Pay During Leave:

During the leave, the employee is entitled to be paid their regular rate of pay, up to $511 per day (and a total of $5,110). However, leave to care for an individual on quarantine/isolation/self-quarantine or to care for a child whose school or daycare is closed may be compensated at 2/3 of the employee's regular rate of pay, up to a maximum of $200 per day (and a total of $2,000).

Exception:

The ordinance doesn't apply to any employer that provides its employees, on the effective date of the ordinance, with some combination of paid personal leave at least equivalent to the paid sick leave required by the ordinance.

Compliance Recommendations:

San Jose employers must ensure compliance with the city's ordinance.

Posted on July 28, 2020

San Francisco has approved an emergency ordinance that temporarily creates reemployment and other rights for certain employees laid off due to the COVID-19 pandemic. The ordinance went into effect on July 3, 2020 and expires September 1, 2020. Note: The ordinance was extended through March 2, 2021.

Coverage:

The emergency ordinance covers employers with 100 or more employees (as of the earliest date that the employer separated one or more employees that resulted in a layoff). However, employers that provide services that qualify as healthcare operations are exempt from the ordinance.

To be covered by the ordinance, the worker must: (1) be employed by their employer for at least 90 days of the calendar year preceding the date on which their employer provided written notice of layoff; and (2) be separated due to a layoff.

For the purposes of the ordinance, a layoff is defined as separation of 10 or more employees during any 30-day period, commencing on or after February 25, 2020, and which is caused by the employer's lack of funds or lack of work for its employees, resulting from the Public Health Emergency and any shelter-in-place orders. This definition includes any layoff conducted in conjunction with the closure or cessation of an employer's business operations in the city.

Layoff Notice and Recordkeeping:

When an employer implements a layoff after the beginning of the Public Health Emergency, the employer must provide all covered workers with written notice on or before the date of the layoff. The employer must provide the notice in a language understood by the employee. Employers must also notify the Office of Economic and Workforce Development (OEWD). See the ordinance for details.

The written notice to affected employees must include:

A notice of the layoff and the effective date;
A summary of the right to reemployment created by the emergency ordinance (see below); and
A telephone number for the OEWD for the worker to receive information regarding the right to reemployment, as well as other City resources related to unemployment.

Note: The notice must also be provided to employees who were laid off prior to July 3, 2020. The notice must be provided to these individuals within 30 days of July 3, 2020.

Employers that initiate a layoff after the beginning of the Public Health Emergency must keep the following records for each covered worker for at least two years:

Full legal name;
Job classification at the time of separation;
Hire date;
Last known address, email address, and telephone numbers; and
A copy of the written notice of layoff.

Offer of Reemployment Following Layoff:

Where an employer has initiated a layoff after the beginning of the Public Health Emergency and subsequently seeks to hire a person to a position formerly held by a covered worker, the employer must first offer the position to the covered worker.

Where an employer has initiated a layoff after the beginning of the Public Health Emergency and subsequently seeks to hire a person to any position that is substantially similar to the covered worker's former position and the position is also located in the city, the employer must first offer the position to the covered worker. For the purpose of this provision, a "substantially similar position" includes:

A position with comparable job duties, pay, benefits, and working conditions to the worker's position at the time of layoff;
Any position in which the covered individual worked for the employer in the 12 months preceding the layoff; or
Any position for which the covered worker would be qualified, including a position that would necessitate training that an employer would otherwise make available to a new employee for the particular position upon hire.

In the event an employer separated more than one covered worker from the same job classification, the employer must make offers of reemployment based on the workers' seniority.

The emergency ordinance has specific rules for how the offer of reemployment must be delivered and steps for workers to follow to accept the offer. See the ordinance for details.

Exceptions:

An employer may withhold an offer of reemployment under the following circumstances:

Misconduct. If, based on information obtained subsequent to the layoff of a covered worker, the employer learns that they engaged in any act of dishonesty, violation of law, violation of policy or rule of the employer or other misconduct during their employment with the employer.
Severance Agreement. If: (1) the employer separated a covered worker between the beginning of the Public Health Emergency and July 3 as part of a layoff; and (2) the employer and the worker executed a severance agreement prior to July 3.
Rehiring. If: (1) the employer separated the worker between the beginning of the Public Health Emergency and July 3 as part of a layoff; and (2) prior to July 3, the employer hired another person to the position or the substantially similar position.

Reasonable Accommodations for Family Care Hardship:

Employers are prohibited from discriminating against or taking adverse action against a covered worker because they are experiencing a family care hardship. Covered workers are also entitled to reasonable accommodation if a family care hardship impacts their ability to perform a job duty or to satisfy a job requirement. In response to a request for accommodation, the employer must make good-faith efforts to reasonably accommodate the individual. For the purpose of this provision, reasonably accommodate includes, but isn't limited to, modifying the worker's schedule, modifying the number of hours worked, or permitting telework, to the extent operationally feasible.

Under the ordinance, a family care hardship is when a covered worker is unable to work due to either:

A need to care for their child whose school or place of care has been closed, or whose childcare provider is unavailable, as a result of the Public Health Emergency, and no other suitable person is available to care for the child during the period of such leave; or
Any grounds stated in the San Francisco Paid Sick Leave Ordinance for which a person may use paid sick leave to provide care for someone other than themselves.

Compliance Recommendations:

Covered employers should read the ordinance in full and ensure compliance.

Posted on July 27, 2020

Oakland is one of several California cities that have expanded the requirements for providing emergency paid sick leave. Oakland's ordinance went into effect on May 12, 2020 and expires on December 31, 2020.

Coverage:

The city's ordinance applies to all employers with 50 or more employees between February 3, 2020 and March 4, 2020. It also applies to unregistered janitorial employers of any size, and franchises with fewer than 50 employees associated with a franchisor or network of franchises employing more than 500 employees in total.

Employers that allow employees to accrue at least 160 hours of paid leave hours (such as personal, sick, vacation) and allow employees immediate access to at least 80 hours of paid leave after May 12, 2020 for the uses allowed under the ordinance are exempt from the requirement to provide emergency paid sick leave, but are subject to the remainder of the ordinance.

Amount of Leave:

Each current employee who worked at least 40 hours per week within the city between February 3, 2020 and March 4, 2020, or at any point thereafter, or is classified as full-time, must be provided with 80 hours of emergency paid sick leave. Other employees must be provided with leave equal to the average number of hours the employee worked in the city over the 14 days with the highest number of hours worked from February 3, 2020 and March 4, 2020.

An employer may credit the total sick leave hours provided under the federal Families First Coronavirus Response Act (FFCRA) against their obligations under the ordinance.

Use:

Employees may use leave under the ordinance for the same reasons allowed under the FFCRA plus the following reasons:

When the employee needs to care for a family member who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19; or
When the employee:
1. Is at least 65 years old;
2. Has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
3. Has any condition identified by an Alameda County, California or federal public health official as putting the public at heightened risk of serious illness or death if exposed to COVID-19; or
4. Has any condition certified by a healthcare professional as putting the employee at a heightened risk of serious illness or death if exposed to COVID-19.

Pay During Leave:

Employers must pay 100 percent of the employee's normal hourly rate, up to a limit of $511 per day or $5,110 in total.

Documentation:

An employer may take reasonable measures to verify or document that an employee's use of the leave is lawful and may not require an employee to incur expenses in excess of $5 to demonstrate their eligibility for the leave.

Employers are expressly prohibited from requiring a doctor's note or other documentation for the use of the leave, except when an employee needs leave for "any condition certified by a healthcare professional as putting the employee at a heightened risk of serious illness or death if exposed to COVID-19." An employee obtaining such certification does not need to disclose their condition, only that they are at a heightened risk. The certification may be obtained by virtual or telephonic appointment.

Employer Notice:

The ordinance requires employers to post and/or provide a notice to their employees within three days after the city publishes it. The notice is translated into Spanish, Mandarin, Cantonese, and Vietnamese, and employers must provide the notice in all languages spoken by more than ten percent of employees.

Compliance Recommendations:

Oakland employers should read the ordinance in full and ensure compliance.

Posted on July 27, 2020

The city of Sacramento California has adopted an ordinance that provides certain protections to workers regarding COVID-19. The ordinance went into effect on July 15, 2020 and expires on December 31, 2020.

Coverage:

The ordinance generally covers:

All employees who work within the boundaries of the city.
All employers that operate a business in the city and that directly or indirectly employ or exercise control over the wages, hours, or working conditions of any employee.

Safety Protocols:

Employers must implement the following protocols and practices:

Daily cleaning and disinfection of high-touch areas in accordance with CDC guidelines.
Maintenance of cleaning protocols established by the employer for all other areas of the work site.
Establish protocols for when the work site has been exposed to a person who is a probable or confirmed case of COVID-19.
Providing employees access to regular handwashing with soap, hand sanitizer, and disinfectant wipes.
Cleaning of common areas – including break rooms, locker rooms, dining facilities, rest rooms, conference rooms, and training rooms – daily and between shifts.
Providing face coverings for employees to wear during their time at the work site, and mandating employees wear the face coverings while on the site, except to the extent an employee can maintain physical distance of six feet from other persons or is using break time to eat or drink. Employers must establish protocols specifically regarding how it will ensure proper physical distancing.
Informing all employees of the required protocols and practices in this section, in writing, in English and any language spoken by at least 10% of the employees who are at the work site.

Right to Refuse Work:

Under the ordinance, an employee may refuse to work for an employer if the employee reasonably believes the employer is in violation of the above requirements and provides notice to the employer of the alleged violation.

The city may investigate whether the employer was in violation of the requirements, as alleged by the employee. Within 15 days of written notice from the city, the employer must remedy any alleged violation that has been substantiated by the city.

If the city finds the employer wasn't in violation of the requirements, or if the employer provides proof to the city that it has cured any substantiated violation, the employee no longer has the right to refuse work.

Retaliation Prohibited:

Employers are prohibited from taking adverse action against an employee for:

Seeking to exercise their rights under the ordinance;
Participating in proceedings related to the ordinance; or
Refusing to come to work if based on an alleged violation substantiated by the city.

Emergency Paid Sick Leave (Employers with 500 or More Employees):

The ordinance also extends emergency paid sick leave requirements to employers with 500 or more employees nationally, which aren't covered by the federal Families First Coronavirus Response Act. See the ordinance for details.

Compliance Recommendations:

Sacramento employers should read the ordinance in full and ensure compliance.

Posted on July 27, 2020

The city of Santa Rosa California has approved an ordinance that temporarily expands emergency paid sick leave for employees within city limits. The ordinance is effective immediately and expires on December 31, 2020.

Background:

The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or is caring for an individual who is subject to such an order.
The employee has been advised by a healthcare provider to self-quarantine or is caring for an individual who has been advised to self-quarantine.
The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
The employee is caring for their son or daughter due to their school or place of care being closed, or their childcare provider is unavailable, due to COVID-19 precautions.
The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Employers must provide full-time employees (those normally schedule to work at least 40 hours) with 80 hours of emergency paid sick leave. Part-time employees are entitled to paid sick leave amounting to the average number of hours they work over a two-week period.

During the emergency paid sick leave, the employer must generally pay employees their regular rate of pay (as defined by the Fair Labor Standards Act) or the applicable minimum wage, whichever is higher, up to a maximum of $511 per day (and a total of $5,110). However, leave to care for an individual on quarantine/isolation/self-quarantine or to care for a child whose school or daycare is closed or whose childcare provider is unavailable may be compensated at 2/3 of the employee's regular rate of pay (or the applicable minimum wage if higher), up to a maximum of $200 per day (and a total of $2,000).

Under the federal law, employers of healthcare providers and emergency responders may exclude these employees from emergency paid sick leave.

Santa Rosa Ordinance:

Covered Employees:

The city's ordinance covers employees who:

Have worked at least two hours in Santa Rosa.
Perform "allowed or essential work," which means work activities and services permitted in Sonoma County Public Health Officer orders.

Expanded Requirements:

The Santa Rosa ordinance augments the FFCRA in the following ways:

Includes employees of businesses with 500 or more employees.
Requires employers of healthcare providers and emergency responders to provide emergency paid sick leave to these employees.
Mandates that all types of covered leave be compensated at the employee's regular rate of pay (as defined by the Fair Labor Standards Act) or the applicable minimum wage ($15 per hour), whichever is higher, up to a maximum of $511 per day (and a total of $5,110).

Exemption:

Under the federal law, employers with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if it would jeopardize the viability of the business as a going concern. Santa Rosa's ordinance doesn't apply to any employer that qualifies for this exemption.

Compliance Recommendations:

Santa Rose employers should review the ordinance in full and ensure compliance. The city has provided additional guidance here.

Posted on April 10, 2020

The city of San Jose (CA) has adopted an emergency ordinance that will require employers to provide paid sick leave to employees if they are exempt from the leave requirements under the federal Families First Coronavirus Response Act (FFCRA). The ordinance is in effect from April 7, 2020 through December 31, 2020.

Background:

Effective April 1, 2020, the FFCRA requires certain employers to provide paid leave to employees who are impacted by COVID-19. The law requires two types of paid leave: Emergency Paid Sick Leave and Public Health Emergency Leave (PHEL)/Expanded FMLA. The FFCRA only applies to employers with fewer than 500 employees.

Exemptions:

Under the law, an employer of a healthcare provider or an emergency responder may elect to exclude the employee from the application of paid leave. Employers with fewer than 50 employees may also be exempt from the law's requirements to provide paid leave to an employee who is caring for their child due to their school or place of care being closed, or their childcare provider is unavailable, due to COVID-19. The exemption would be available only if that requirement would jeopardize the viability of the business.

For details on how to claim the small employer exemption, see DOL Issues Rule Implementing Paid Leave Law in the federal section above.

San Jose Emergency Ordinance:

The city's emergency ordinance is meant to address the gaps in the FFCRA's leave requirements.

Covered Employers:

The ordinance covers employers who are exempt, either in whole or in part, from the FFCRA's leave provisions.

Covered Employees:

To be eligible for the leave, the employee must work at least two hours within the geographic boundaries of the city for a covered employer.

Employers covered by the ordinance must provide paid sick leave to each employee who leaves their residence to perform "essential work." The ordinance defines essential work as work activities and services for which an employee may leave their residence to perform under the order issued by the Santa Clara County Public Health Officer on March 16, 2020.

Note: The ordinance doesn't require employers to provide paid sick leave to employees who can work from home.

Amount of Leave:

Use:

An employee may use paid sick leave for any of the following purposes:

The employee is subject to quarantine or isolation by federal, state or local order due to COVID-19, or is caring for someone who is quarantined or isolated due to COVID-19;
The employee is advised by a healthcare provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a healthcare provider;
The employee experiences symptoms of COVID-19 and is seeking medical diagnosis; or
The employee is caring for a minor child because a school or daycare is closed due to COVID-19.

Pay During Leave:

Exceptions:

The ordinance doesn't apply to any employer who:

Provides its employees, on the effective date of the ordinance, with some combination of paid personal leave at least equivalent to the paid sick leave required by the ordinance; or
Operates a hospital if such employer provides its employees, within two weeks of the effective date of the ordinance, with some combination of paid personal leave at least equivalent to the paid sick leave required by the ordinance.

Compliance Recommendations:

San Jose employers who are fully or partially exempt from the FFCRA's leave requirements must ensure compliance with the city's ordinance.

Colorado

Posted on June 1, 2023

Colorado’s Department of Labor and Employment has announced that a requirement for employers to provide public health emergency leave (PHEL) for COVID-19 will end June 8, 2023.

The Details

Colorado has a PHEL requirement that remains in effect until four weeks after any federal, state, or local declaration of a public health emergency has ended. The PHEL requirement has been in effect for COVID-19 since January 1, 2021. Since the state’s declaration for COVID-19 ended on April 27, 2023, and the federal declaration for COVID-19 expired on May 11, 2023, the state’s PHEL requirement for COVID-19 will end on June 8, 2023.

Employees with any PHEL remaining for COVID-19 may still take it through June 8, 2023. Employees are only eligible for up to 80 hours of PHEL once during the entirety of the public health emergency. If another public health emergency is declared in the future, a new PHEL requirement will be triggered for that declaration.

Keep in mind that a state requirement for employers to provide paid sick leave remains in effect. Under the law, paid sick leave must accrue at a rate of at least one hour for every 30 hours worked, up to a maximum of 48 hours. However, employers have the option of providing all the paid sick leave at the beginning of the year. Employees are entitled to carry over up to 48 hours of unused paid sick leave to the following year.

Next Steps

Review policies and procedures to plan for end of the PHEL requirement.
Let employees know the PHEL entitlement for COVID-19 is ending soon but they may use any remaining PHEL for COVID-19 through June 8, 2023.

Posted May 17, 2021

The Colorado Department of Labor and Employment has issued guidance that makes clear that all employers must provide paid leave to employees who need time off to receive the COVID-19 vaccination during the public health emergency.

Background:

In 2020, Colorado enacted the Healthy Families and Workplaces Act of 2020 (HFWA). The HFWA included various leave requirements, including:

Paid sick leave:

Effective January 1, 2021, employers with 16 or more employees must provide paid sick leave to their employees. Employers with 15 or fewer employees have until January 1, 2022 to comply. Paid sick leave must accrue at a rate of at least one hour for every 30 hours worked, up to a maximum of 48 hours.

Public health emergency leave:

In addition to the paid sick leave outlined above, all employers must provide public health emergency leave (PHEL) effective January 1, 2021. Employees who normally work 40 hours or more per week are entitled to at least 80 hours of PHEL. Employees who normally work fewer than 40 hours in a week are entitled to at least the greater of either the amount of time the employee is scheduled to work in a 14-day period or the amount of time the employee actually works during an average 14-day period.

Employees may use PHEL for the following purposes:

To self-isolate because they're diagnosed with, or experience symptoms of, the communicable illness that is the cause for the public health emergency;
To seek or obtain medical diagnosis, care, or treatment if experiencing symptoms associated with the communicable illness;
To seek preventive care concerning the communicable illness;
If local officials or the employee's employer determines that the individual's presence on the job or in the community would jeopardize the health of others because of the individual's exposure or because they're exhibiting symptoms of the communicable illness (regardless of diagnosis);
To care for a family member to whom any of the above applies;
To care for a child or other family member when the child's care provider is unavailable due to a public health emergency, or if the child's or family member's school or place of care has been closed due to a public health emergency, including if a school or place of care is physically closed but providing instruction remotely; or
If an employee is unable to work because the employee has a health condition that may increase susceptibility to or risk of the communicable illness.

Employees are only eligible for PHEL once during the entirety of the public health emergency, even if it is amended, extended, restated, or prolonged. Employees may use PHEL until four weeks after the official public health emergency.

Updated Guidance:

In updated guidance, the CDLE has clarified that seeking a diagnosis, treatment, or care of a communicable illness also includes preventive care, such as a vaccination. Therefore, all employees are entitled to use their PHEL for the purposes of COVID-19 vaccination.

Compliance Recommendations:

Colorado employers should review the guidance in full and ensure compliance.

Posted on January 8, 2021

Colorado has issued emergency rules and guidance on the state's new paid leave requirements.

Background:

In 2020, Colorado enacted the Healthy Families and Workplaces Act of 2020 (HFWA). The HFWA included the following three leave requirements:

Paid sick leave. Effective January 1, 2021, employers with 16 or more employees must provide paid sick leave to their employees. Employers with 15 or fewer employees have until January 1, 2022 to comply. Paid sick leave must accrue at a rate of at least one hour for every 30 hours worked, up to a maximum of 48 hours. Accrual begins when employment starts or the applicable effective date, whichever is later. However, employers have the option of providing all the paid sick leave at the beginning of the year. Employees are entitled to carry over up to 48 hours of unused paid sick leave to the following year.
Public health emergency leave. In addition to the paid sick leave discussed above, employers must provide public health emergency leave (PHEL) in an amount based on the number of hours the employee works. Employees who normally work 40 hours or more per week are entitled to at least 80 hours of PHEL. Employees who normally work fewer than 40 hours in a week are entitled to at least the greater of either the amount of time the employee is scheduled to work in a 14-day period or the amount of time the employee actually works during an average 14-day period.
COVID-19 emergency paid sick leave. Through December 31, 2020, all employers were required to provide each employee with emergency paid sick leave for reasons related to the COVID-19 pandemic in the amounts and for the purposes specified in the emergency paid sick leave provisions of the federal Families First Coronavirus Response Act (FFCRA).

Emergency Rules and Guidance:

In the emergency rules and guidance, the Colorado Department of Labor and Employment (CDLE) makes clear that all Colorado employers must provide employees access to up to 80 hours of PHEL as of January 1, 2021 due to the COVID-19 public health emergency. The CDLE also clarifies that employers cannot count COVID-19 emergency paid sick leave (see #3 above) provided in 2020 toward the PHEL that state law requires.

Note: Employers may count unused paid sick leave (see #1 above) toward the PHEL that state law requires. Therefore, when a public health emergency is declared, employers must provide employees who normally work 40 hours in a week with a one-time supplemental number of hours which, when added to the paid sick leave the employee has already accrued for the year, will provide them with access to 80 hours of total paid leave.

Employees may use PHEL for the following purposes:

To self-isolate because they are diagnosed with, or experience symptoms of, the communicable illness that is the cause for the public health emergency;
To seek or obtain medical diagnosis, care, or treatment if experiencing symptoms associated with a communicable illness that is the cause of the public health emergency;
To seek preventive care concerning a communicable illness that is the cause of the public health emergency;
If local officials or the employee's employer determines that the individual's presence on the job or in the community would jeopardize the health of others because of the individual's exposure to the communicable illness or because the employee is exhibiting symptoms of the communicable illness (regardless of diagnosis);
To care for a family member to whom any of the above applies;
To care for a child or other family member when the child's care provider is unavailable due to a public health emergency, or if the child's or family member's school or place of care has been closed due to a public health emergency, including if a school or place of care is physically closed but providing instruction remotely; or
If an employee is unable to work because the employee has a health condition that may increase susceptibility to or risk of communicable illness that is the cause of the public health emergency.

Compliance Recommendations:

Colorado employers should review the emergency rules and guidance in full and ensure compliance.

Note: HR411^®'s Employee Handbook Wizard now includes a Paid Sick Leave and Public Health Emergency Leave policy for Colorado employers with 16 or more employees and a Public Health Emergency Leave policy for Colorado employers with 15 or fewer employers. See the Alerts section, found on the Employee Handbook Wizard home page, for more information.

Posted on November 19, 2020

Colorado has adopted final rules that clarify the notice requirements under two new laws related to COVID-19.

Background:

In July, Colorado enacted the Public Health Emergency Whistleblowing Act (PHEW), which prohibits employers from taking adverse action against a worker who in good faith raises a reasonable concern to the employer, a government agency, or the public about workplace violations of health and safety rules or a significant workplace threat related to a public health emergency.

In July, the state also enacted the Healthy Families and Workplaces Act (HFWA), which requires employers to provide paid sick leave and public health emergency leave to employees. The leave must be paid at least at the same rate the employee normally earns during working hours.

Employers must post a notice of workers' rights under the PHEW and HFWA. Recently, the state issued emergency regulations implementing the notice requirements. The final rules (summarized here) largely track the emergency rules.

Final Rules:

The final rules reiterate that employers may satisfy the HFWA and PHEW's notice requirements with the Colorado Workplace Public Health Rights Poster. The rules also reiterate that the notice requirements have applied since each statute took effect in July. Employers will be deemed compliant if they executed the required posting and/or notice within 30 days of the applicable statutory effective date.

Display requirements:

The poster must be displayed in:

"Each establishment where employees or workers work."
"A conspicuous location frequented by employees or workers where it may be easily read during the workday — such as in break rooms, on employee bulletin boards, and/or adjacent to time clocks, department entrances, and facility entrances."

Where physical posting is impractical, a poster may be provided directly to employees, including by appropriate electronic means if that's what's customarily used to communicate with employees.

Written notice:

The final rules also reiterate a requirement to provide each employee direct "written notice"of HFWA rights. Employers may satisfy this requirement by simply providing each employee with the Colorado Workplace Public Health Rights Poster. Employers may also include the written HFWA notice with other employment-related documents (such as a handbook, manual, or other written or posted policies), as long as the documents are provided either:

In hard copies given to each employee; or
In electronic form, if the employee can easily access the documents electronically and is provided actual notice that the documents contain information regarding their terms of employment, not just a link that fails to so notify the employee about the information contained in the notice.

Required languages:

Posters and notices required by these rules must be in English and any language that is the first language spoken by at least five percent of the employer's or principal's workforce.

Compliance Recommendations:

Colorado employers should ensure that they comply with the poster and notice requirements of the new laws. The poster/notice is available in several languages here.

Posted on July 28, 2020

Colorado has enacted legislation (House Bill 20-1415) that prohibits employers from taking adverse action against a worker who raises safety or health concerns related to a public health emergency or who voluntarily wears their own personal protective equipment (PPE). House Bill 20-1415 is effective immediately.

Coverage:

The law covers all Colorado employers and employees. The law also covers any business in Colorado with five or more independent contractors.

Anti-Retaliation:

Employers are prohibited from taking adverse action against a worker who in good faith raises a reasonable concern to the employer, a government agency, or the public about workplace violations of health and safety rules or a significant workplace threat related to a public health emergency.

Exceptions:

Workers aren't protected if they disclose information they know to be false or with reckless disregard of whether the information is true or false. The law also doesn't authorize a worker to share individual health information that is otherwise prohibited from disclosure under federal or state law.

PPE:

The law also prohibits employers from taking adverse action against a worker who voluntarily wears their own PPE, such as a mask, faceguard, or gloves, if it:

Provides a higher level of protection than the equipment provided by the employer;
Is recommended by a federal, state, or local public health agency with jurisdiction over the workplace; and
Doesn't render the worker incapable of performing their job or prevent them from fulfilling their duties.

Other Protections:

Employers are also prohibited from taking adverse action against a worker who:

Opposes any practice they reasonably believe to be unlawful under the law.
Files a complaint, testifies, assists, or participates in an investigation, proceeding, or hearing regarding a matter the worker reasonably believes to be unlawful under the law.

Employer Notice:

Employers must post a notice of workers' rights under the law. The notice is available in English and Spanish.

Compliance Recommendations:

Colorado employers should review policies, practices, and supervisor training to ensure compliance with House Bill 20-1415.

Updated on July 17, 2020

The Colorado Department of Labor and Employment (CDLE) has terminated the emergency rule that required employers in certain industries to provide paid sick leave to employees for certain COVID-19 related purposes. The rule was terminated as a result of the enactment of similar requirements in Senate Bill 20-205, which is covered in the Compliance Alert below.

Updated on January 7, 2021

Colorado has enacted legislation (Senate Bill 20-205) that will require employers to provide paid sick leave and public health emergency leave to employees. The leave must be paid at least at the same rate the employee normally earns during worked hours.

Paid Sick Leave (All Employers):

Effective January 1, 2021, employers with 16 or more employees must provide paid sick leave to their employees. For employers with 15 or fewer employees, this paid sick leave requirement takes effect January 1, 2022.

Accrual and Carryover:

Paid sick leave must accrue at a rate of at least one hour for every 30 hours worked, up to a maximum of 48 hours. Accrual begins when employment starts or the applicable effective date, whichever is later. However, employers have the option of providing all the paid sick leave at the beginning of the year, a practice commonly known a frontloading.

Employees are entitled to carry over up to 48 hours of unused paid sick leave to the following year.

Use:

Employees may use paid sick leave as it is accrued. The leave may be used for the following purposes:

The employee's or a family member's mental or physical illness, injury, or health condition;
The employee's or a family member's need for a medical diagnosis, care, or treatment related to an illness, injury, or condition;
The employee or a family member needs to obtain preventive medical care;
The employee or family member has been the victim of domestic abuse, sexual assault, or harassment and needs to:
- Seek medical attention;
- Get assistance from a victims' services organization;
- Obtain mental health or other counseling;
- Seek relocation services;
- Obtain legal services, including preparation and participation in legal proceedings; or
A public official has ordered the closure of the school or place of care of the employee's child or the employee's place of business due to a public health emergency.

Notice and Documentation:

When the need for leave is foreseeable, the employee must make a good-faith effort to provide advance notice and schedule the leave so that it doesn't unduly disrupt the employer's operations. While employers may have a policy with reasonable procedures for providing notice when the need for leave is foreseeable, employers are prohibited from denying leave based on noncompliance with the policy.

For absences of four or more consecutive work days, employers may require reasonable documentation that the leave is for a covered purpose.

Public Health Emergency Leave (All Employers)

In addition to the paid sick leave discussed above, employers must provide public health emergency leave (PHEL) in an amount based on the number of hours the employee works.

Full time employees: Employees who normally work 40 hours or more per week are entitled to at least 80 hours of PHEL.
Part-time employees: Employees who normally work fewer than 40 hours in a week are entitled to at least the greater of either the amount of time the employee is scheduled to work in a 14-day period or the amount of time the employee actually works during an average 14-day period.

Employees are only eligible for PHEL in the amounts described above once during the entirety of the public health emergency, even if it is amended, extended, restated, or prolonged. Employees may use PHEL until four weeks after the official public health emergency. Employers may count an employee's unused paid sick leave toward the PHEL the law requires.

Note: The law doesn't indicate when the PHEL requirements take effect. However, the Colorado Department of Labor and Employment (CDLE) has made clear that all Colorado employers must provide employees access to up to 80 hours of PHEL as of January 1, 2021 due to the COVID-19 public health emergency.

A public health emergency is defined as:

An act of bioterrorism, a pandemic flu, or an epidemic caused by a novel and highly fatal infectious agent for which an emergency has been declared by a federal, state, or local public health agency or a disaster emergency declared by the governor; or
A highly infectious illness or agent with epidemic or pandemic potential for which a disaster emergency is declared by the governor.

Use:

Employees may use PHEL for the following purposes:

To self-isolate because they are diagnosed with, or experience symptoms of, the communicable illness that is the cause for the public health emergency;
To seek or obtain medical diagnosis, care, or treatment if experiencing symptoms associated with a communicable illness that is the cause of the public health emergency;
To seek preventive care concerning a communicable illness that is the cause of the public health emergency;
If local officials or the employee's employer determines that the individual's presence on the job or in the community would jeopardize the health of others because of the individual's exposure to the communicable illness or because the employee is exhibiting symptoms of the communicable illness (regardless of diagnosis);
To care for a family member to whom any of the above applies;
To care for a child or other family member when the child's care provider is unavailable due to a public health emergency, or if the child's or family member's school or place of care has been closed due to a public health emergency, including if a school or place of care is physically closed but providing instruction remotely; or
If an employee is unable to work because the employee has a health condition that may increase susceptibility to or risk of communicable illness that is the cause of the public health emergency.

Notice and Documentation:

If the need for leave is foreseeable and the workplace is open, employees must notify their employer as soon as practical. Documentation isn't required for employees to use PHEL.

COVID-19 Emergency Paid Sick Leave (All Employers):

Effective immediately and through December 31, 2020, all employers must provide each employee with emergency paid sick leave for reasons related to the COVID-19 pandemic in the amounts and for the purposes specified in the emergency paid sick leave provisions of the federal Families First Coronavirus Response Act (FFCRA). Since the FFCRA already covers employers with fewer than 500 employees, Senate Bill 20-205 effectively extends the emergency paid sick leave requirements to larger employers so that all employers in the state must now comply with the FFCRA leave requirements. However, the FFCRA also included an exception under which an employer of a healthcare provider or an emergency responder may elect to exclude the employee from the federal emergency paid sick leave requirement. As a result of the new state law, these employees are now entitled to emergency paid sick leave in Colorado. Additionally, under the FFCRA, employers with fewer than 50 employees may be eligible to claim an exemption from the FFRCA’s requirement to provide paid leave to an employee who is caring for their child due to their school or place of care being closed, or their childcare provider is unavailable, for COVID-19 related reasons if it would jeopardize the viability of the business. Under the new state law, small employers in Colorado will no longer be able to claim that exemption.

Anti-Retaliation (All Employers):

Senate Bill 20-205 prohibits an employer from retaliating against an employee who uses leave to which they are entitled or otherwise exercises their rights under the law.

Employer Notice and Recordkeeping (All Employers):

Employers must provide employees with a written notice of their rights and display a poster developed by the Division of Labor Standards and Statistics. The poster must be displayed in English and in any language that is the first language spoken by at least 5% of the employer's workforce. If an employer's business is closed due to a public health emergency or a disaster emergency due to a public health concern, the posting requirement is waived for the period during which the business is closed.

Update: The COVID-19 Emergency Paid Sick Leave notice is now available in English and Spanish.

If an employer does not maintain a physical workplace, or an employee teleworks or performs work through a web-based platform, the employer should provide the notice through electronic communication or a conspicuous posting in the web-based platform.

For each employee, employers must retain for two years records documenting the hours worked, leave accrued, and leave used.

Compliance Recommendations:

Colorado employers should ensure compliance with Senate Bill 20-205 and train supervisors on handling requests for leave.

District of Columbia

Posted on February 2, 2022

The District of Columbia has enacted legislation that will extend a requirement that employers provide paid leave to employees for the time they, or their minor child, spend obtaining and recovering from COVID-19 vaccination. The legislation also extends an expansion of the D.C. Family and Medical Leave Act (DCFMLA). These changes were set to expire on February 3, 2022.

The Details:

To extend the changes beyond February 3, 2022, the District of Columbia enacted two pieces of legislation. One (PR24-0547) covers the period from February 3, 2022 to whenever the other piece of legislation takes effect, which is projected to be on or about February 18, 2022. The other (B24-0405) will extend the changes another 225 days, to on or about October 1, 2022.

Here’s a summary of the vaccination and recovery leave requirements and expansion of DCFMLA:

Vaccination and Recovery Leave:

Covered Employees:

All employers must provide paid vaccination and recovery leave to any employee who commenced work for the employer at least 15 days before the request for leave.

Amount of Leave:

Employees are entitled to up to two hours of paid leave per injection to obtain, or for a child under the age of 18 to obtain, the COVID-19 vaccine, including any boosters. Employees are also entitled to up to eight hours of paid leave per injection during the 24-hour period following the two-hour vaccination leave period. The eight hours of paid leave is to be provided to the employee for purposes of recovering, or caring for a child who is recovering, from the side effects of COVID-19 vaccination.

Note: An employee is entitled to no more than 48 hours of paid leave, in the aggregate, in a year under the Accrued Sick and Safe Leave Act.

Relationship to Other Leave Policies:

Generally, the paid vaccination and recovery leave required must be in addition to any other paid leave an employer provides an employee under an existing leave policy.

Extension of Changes to DCFMLA:

Prior legislation amended the DCFMLA to add a new category of leave called COVID-19 leave. The leave may be unpaid. Unlike the other types of DCFMLA leave, employees are eligible for COVID-19 leave if they have worked at least 30 days for an employer.

Eligible employees may use up to 16 weeks of unpaid leave if they are unable to work because the employee:

Has tested positive for COVID-19 or is caring for a family member or individual with whom the employee shares a household who has tested positive for COVID-19 and must quarantine under Department of Health guidelines;
Has a recommendation from a healthcare provider or a directive from an employer that the employee isolate or quarantine due to COVID-19, including because the employee or an individual with whom the employee shares a household is at high risk for serious illness from COVID-19;
Must care for a family member or an individual with whom the employee shares a household, who is isolating or quarantining under Department of Health guidance, the recommendation of a healthcare provider, or the order or policy of the family member’s or individual’s school or childcare provider; or
Must care for a child whose school or place of care is closed or whose childcare provider is unavailable to the employee due to COVID-19.

Note: Prior legislation also extended the DCFMLA’s COVID-19 leave requirement to all employers, but the District of Columbia has clarified that this provision was removed as of November 5, 2021. Therefore, the COVID-19 leave requirement applies only to employers with 20 or more employees in the District of Columbia.

Next Steps:

Ensure compliance with the leave requirements.
Display up-to-date notices in the workplace.
Amend policies if necessary.
Notify supervisors and employees of the extension.
For details COVID-19 leave under the DCFMLA, go here.

Posted on December 8, 2021

The District of Columbia has enacted emergency legislation (B24-404) requiring employers to provide paid leave to employees for the time they, or their minor child, spend obtaining and recovering from COVID-19 vaccination. These changes took effect immediately on November 18, 2021 and expire on February 3, 2022, unless extended.

The emergency legislation also extends an expansion of the D.C. Family and Medical Leave Act (DCFMLA).

Vaccination and Recovery Leave:

Covered Employees:

An employer must provide the paid vaccination and recovery leave to any employee who commenced work for the employer at least 15 days before the request for leave.

Amount of Leave:

The emergency legislation amends the District of Columbia's Accrued Sick and Safe Leave Act to entitle employees to up to two hours of paid leave per injection to obtain, or for a child under the age of 18 to obtain, the COVID_19 vaccine, including any boosters. Employees are also entitled to up to eight hours of paid leave per injection so they can recover, or care for a child who is recovering, from the side effects of COVID-19 vaccination.

Note: An employee is entitled to no more than 48 hours of paid leave, in the aggregate, in a year under the Accrued Sick and Safe Leave Act.

Relationship to Other Leave Policies:

Generally, the paid vaccination and recovery leave required by the emergency legislation must be in addition to any other paid leave an employer provides an employee under an existing leave policy.

Extension of Changes to DCFMLA:

By way of background, prior legislation amended the DCFMLA to add a new category of leave called COVID-19 leave. Unlike with the other types of DCFMLA leave, employees who have worked for their current employer for at least 30 days are eligible for COVID-19 leave. These changes were set to expire on November 5, 2021. The emergency legislation extends the changes to cover the period from November 5, 2021 to February 3, 2022, unless extended further.

The emergency legislation also amends the covered reasons for COVID-19 leave slightly. As of November 5, 2021, employees may use this leave if the employee is unable to work because the employee:

Has tested positive for COVID-19 or is caring for a family member or individual with whom the employee shares a household who has tested positive for COVID-19 and must quarantine under Department of Health guidelines;
Has a recommendation from a healthcare provider or a directive from an employer that the employee isolate or quarantine due to COVID-19, including because the employee or an individual with whom the employee shares a household is at high risk for serious illness from COVID-19;
Must care for a family member or an individual with whom the employee shares a household, who is isolating or quarantining under Department of Health guidance, the recommendation of a healthcare provider, or the order or policy of the family member's or individual's school or childcare provider; or
Must care for a child whose school or place of care is closed or whose childcare provider is unavailable to the employee due to COVID-19.
The leave may be unpaid.

Amount of Leave:

An employee may use no more than 16 weeks of leave in the 2-year period beginning on the effective date of the emergency legislation (November 18, 2021).

Notice and Certification:

An employer may require reasonable certification and advance notice of the need for COVID-19 leave. See the text of the law for details.

Compliance Recommendations:

Employers with employees in DC should ensure compliance with the leave requirements and display up-to-date notices in the workplace. For details on the emergency legislation, go here. For details on COVID-19 leave under the DCFMLA, go here.

Posted on February 3, 2021

The District of Columbia has approved an emergency ordinance that provides certain workers displaced by COVID-19 the opportunity to be reinstated to their position as work becomes available.

Covered Employers:

The law applies only to:

Hotels that employed at least 50 individuals on December 1, 2019;
Restaurants, taverns, brew pubs, clubs, event or entertainment establishments, or business engaged in the sale of consumer goods that employed at least 50 individuals on March 1, 2020; and
Contractors that employ at least 25 individuals to work as:
- Food service workers in a hotel, restaurant, cafeteria, apartment building, hospital, or nursing care facility;
- Persons performing janitorial or building maintenance services in office buildings or institutions;
- Nonprofessional employees who perform health care or related services in a hospital or nursing care facility; or
- Persons who perform security services in an office building or institution.

Covered Employees:

To be covered by the law, employees must:

Work for a covered employer;
Cease working at the employer for reasons other than voluntary resignation or termination for cause; and
If the individual was a hotel worker, the individual's last date of employment for the employer must be between December 1, 2019 and the last day of the COVID-19 public health emergency. If the individual wasn't a hotel worker, the individual's last date of employment must be between March 1, 2020 and the last day of the COVID-19 public health emergency.

The law doesn't cover individuals:

Employed in an executive, administrative, or professional capacity under federal law;
Who received severance when their employment ceased and whose employer has written, verifiable proof of the severance; or
Whose employer or contractor could have terminated the individual for demonstrable just cause when the individual previously worked for them.

Reinstatement Rights:

Beginning February 1, 2021, as positions become available with the covered employer's operations, the employer must offer each eligible employee reinstatement to their previous position or to a position performing the same or substantially similar duties, and that requires essentially the same skills, as those they performed previously.

Written Offer:

The reinstatement offer must be made in writing and either sent to the employee's last known address by registered mail, or by email, text, or other method that is documented and retained.

Timing:

The employer must give a deadline that is no less than three calendar days from the date the offer is received for an eligible employee to accept or decline the offer.

If the eligible employee accepts the offer, they must report to work no later than seven days, or later if requested by the employer, from the date the offer is received.

Employers are prohibited from hiring a new employee for a position until all eligible employees have either failed to respond by the deadline indicated in the offer or have declined the offer.

Notice of Changes in Controlling Interest:

The law also contains notice requirements for changes in controlling interest or employer identity. See the text of the law for details.

Compliance Recommendations:

Covered employers must ensure compliance with the ordinance during the COVID-19 pandemic.

Posted on November 25, 2020

The District of Columbia has enacted emergency legislation (B23-980) that requires employers to adopt certain worker protection policies and prohibits employers from retaliating against employees for certain COVID-19 related reasons.

Social Distancing Policies:

Beginning November 23, 2020 and during the public health emergency, employers in the District of Columbia must adopt and implement social distancing and worker protection policies that adhere to the requirements of Mayor's Order 2020-080 (which governs the use of masks), or subsequent Mayor's Order to prevent transmission of COVID-19 in the workplace.

Employers are prohibited from taking adverse employment action against an employee for their refusal to serve a customer or client, or to work within six feet of an individual who isn't complying with the workplace protections.

Privacy:

Employers may establish a workplace policy to require an employee to report a positive test for an active COVID-19 infection. Employers are prohibited from disclosing the identity of an employee who tests positive except to the Department of Health or another District or federal agency responsible for and engaged in contact tracing and the containment of community spread of COVID-19.

Retaliation Prohibited:

Effective immediately, employers are prohibited from taking adverse employment action against an employee because they:

Tested positive for COVID-19, provided that the employee didn't physically report to the workplace after receiving a positive test result;
Were exposed to someone with COVID-19 and need to quarantine;
Are sick and are waiting for a COVID-19 test result;
Are caring for or seek to provide care for someone who is sick with COVID-19 symptoms or who is quarantined; or
Take actions to secure any right or protection contained in the law or to prevent or stop a violation of the law.

Under the law, an adverse employment action means an action that an employer takes against an employee, including a threat, verbal warning, written warning, reduction of work hours, suspension, termination, discharge, demotion, harassment, material change in the terms or conditions of the employee's employment, or any action that is reasonably likely to deter the employee from attempting to secure any right or protection contained in the law or to prevent or stop a violation of the law.

Note: The law doesn't prohibit an employer from requiring an employee who has tested positive for COVID-19 to refrain from entering the workplace until a medical professional has cleared the employee to return to the workplace or until a period of quarantine recommended by the Department of Health or the U.S. Centers for Disease Control has elapsed.

Compliance Recommendations:

Employers in the District of Columbia should ensure their policies and practices comply with the law and ensure that supervisors receive training on its requirements.

Updated on August 31, 2020

The District of Columbia has enacted an emergency ordinance (B23-870) that requires employers to implement certain COVID-19 related policies and prohibits retaliation against employees for certain COVID-19 related scenarios. The ordinance takes effect immediately and expires on November 10, 2020.

COVID-19 Policies:

Employers in the District of Columbia must adopt and implement social distancing and worker protection policies to prevent transmission of COVID-19 in the workplace that adhere to the requirements of Mayor's Order 2020-080, or a subsequent Mayor's Order.

Mayor's Order 2020-080 relates to masks and generally requires employers to:

Post signage on their exterior doors stating that a person may not enter unless they are wearing a mask.
Exclude or attempt to eject individuals who aren't wearing masks or who remove their masks.
Provide masks to their employees.

The new law allows an employer to establish a policy requiring an employee to report to the employer a positive test for an active COVID-19 infection. However, employers are expressly prohibited from disclosing the identity of an employee who tests positive except to the Department of Health or another District or federal agency responsible for and engaged in contact tracing and the containment of community spread of COVID-19.

Anti-Retaliation Protections:

Under the new law, employers are prohibited from taking adverse action against an employee for:

Refusing to serve a customer or client, or to work within six feet of an individual, who isn't complying with the required workplace protections;
Testing positive for COVID-19, provided that the employee didn't physically report to the workplace after receiving a positive test result;
Being exposed to someone with COVID-19 and needing to quarantine;
Being sick and waiting for a COVID-19 test result;
Caring for someone who is sick with COVID-19 symptoms or who is quarantined; or
Taking actions to assert their rights under the law or to prevent a violation of the law.

Compliance Recommendations:

Employers in the District of Columbia should review policies, practices, and supervisor training to ensure compliance with the new law.

Updated on April 15, 2021

The District of Columbia has enacted an emergency ordinance that requires employers with 50-499 employees to provide paid leave to employees impacted by COVID-19. The emergency ordinance also temporarily expands the D.C. Family and Medical Leave Act (DCFMLA). The emergency ordinance took effect immediately and has been extended until November 5, 2021.

Background:

DC's Accrued Sick and Safe Leave Act ("the Act") requires employers to provide paid leave for an absence resulting from:

An employee's, or their family member's, physical or mental illness, injury, or medical condition;
An employee's, or their family member's, need to obtain a professional medical diagnosis or care; or
Stalking, domestic violence, or sexual abuse and the absence is directly related to medical, social, or legal services for the employee or their family member.

The DCFMLA requires employers with 20 or more employees to provide eligible employees with 16 weeks of unpaid family and medical leave during a 24-month period. To be eligible, an employee must:

Have been employed by the employer for at least one year without a break in service; and
Worked at least 1,000 hours during the 12-month period immediately preceding the requested leave.

Paid Sick Leave Expanded:

DC has enacted an emergency ordinance that amends the Act to require that employers with between 50 and 499 employees provide paid leave for any of the reasons required under the federal Families First Coronavirus Response Act (FFCRA). The District calls this paid public health emergency leave (PHEL). Healthcare providers are exempt.

Use of Paid PHEL:

Under the FFCRA (and therefore the emergency ordinance), employees are entitled to use paid leave when they are unable to work (or telework) because of the following reasons:

The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or is caring for an individual who is subject to such an order.
The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19 or is caring for an individual who has been advised to self-quarantine.
The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
The employee is caring for their child due to their school or place of care being closed, or their childcare provider is unavailable, due to COVID-19.
The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Employee Eligibility:

Under the emergency ordinance, employers must provide paid leave to any employee who started work for the employer at least 15 days before the request for leave.

Duration of Leave:

The emergency ordinance requires employers to provide paid leave to an employee in an amount sufficient to ensure that the employee be able to remain away from work for two full weeks (up to 80 hours), or, for part-time employees, the usual number of hours the employee works in a two-week period.

Note: The District has clarified that an employee may only use paid PHEL concurrently with or after exhausting any other paid leave to which the employee may be entitled for covered reasons under federal or District law or an employer's policies. If an employee elects to use the paid PHEL concurrently with other paid leave, the employer may reduce the monetary benefit of the paid PHEL by the amount of the monetary benefit the employee will receive for paid leave taken under federal or District law or the employer's policies. If an employee elects to use paid PHEL after exhausting other paid leave, the employer may reduce the number of hours of paid PHEL by the number of hours of paid leave taken under federal or District law or the employer's policies.

Pay During Leave:

During the leave, employees must be compensated at their regular rate of pay, which must equal or exceed the minimum wage. If an employee doesn't have a regular rate of pay, their regular rate must be determined by dividing their total gross earnings, including all tips, commission, piecework, or other earnings earned on an irregular basis for the most recent two-week period that the employee worked, by the number of hours the employee worked during that two-week period.

Employee Notice:

Employees must not be required to provide:

More than 48 hours' notice of the need to use the leave in non-emergency situations; or
More than reasonable notice of the employee's need to use such leave in the event of an emergency.

Certification:

Employers are prohibited from requiring an employee to provide certification of the need to use paid leave under the ordinance, unless both of the following conditions are met:

The employee uses three or more consecutive working days of the paid leave; and
The employer contributes payments toward a health insurance plan on behalf of the employee.

Where the employer is permitted to require certification, the employer must give the employee at least one week after their return to work to provide it.

DCFMLA Expanded:

The emergency ordinance amends the DCFMLA to add a new category of leave called COVID-19 leave. Unlike with the other types of DCFMLA leave, all employers with employees in the District of Columbia must provide COVID-19 leave. Additionally, all employees who have worked for their current employer for at least 30 days are eligible for COVID-19 leave.

COVID-19 Leave:

Employees may take leave during COVID-19 if the employee cannot work due to:

A recommendation from a healthcare provider that the employee isolate or quarantine, including because the employee or an individual with whom the employee shares a household is at high risk for serious illness from COVID-19;
The need to care for a family member or an individual with whom the employee shares a household under a government or health care provider's order to quarantine or isolate; or
The need to care for a child whose school or place of care is closed or whose childcare provider is unavailable to the employee.

The leave may be unpaid.

Eligibility for Unemployment Benefits Expanded:

The emergency ordinance expands coverage for unemployment benefits to employees who have become partially or fully unemployed because of a public health emergency, including when:

They have been quarantined or isolated by the Department of Health or any other applicable district or federal agency;
They have self-quarantined or self-isolated in a manner consistent with agency or medical professionals' recommendations or guidance; or
Their employer ceased or reduced operations due to an order or guidance from the mayor or the Department of Health or a reduction in business revenue resulting from the circumstances giving rise to the public health emergency.

In such cases, any otherwise eligible employee may receive unemployment benefits regardless of whether the:

Employer has provided a definitive date for the employee's return to work; or
Employee has a reasonable expectation of continued employment with the current employer.

The emergency ordinance indicates that benefits paid pursuant to this expansion won't be charged to the experience-rating accounts of employers, and there won't be a work-search requirement for affected employees.

Compliance Recommendations:

Employers with employees in DC should ensure compliance with the leave requirements and provide impacted employees information about expanded unemployment benefits. For details on the emergency ordinance, go here. Keep in mind that the DCFMLA has existing notice and other requirements that may apply, barring further guidance or rules from the district. For details on the DCFMLA, go here.

Florida

Posted on December 13, 2021

Florida has published emergency regulations addressing a state law that prohibits employers from imposing a COVID-19 vaccination mandate without providing exemptions for medical reasons (including pregnancy and anticipated pregnancy), religious reasons, COVID-19 immunity, periodic testing, and the use of employer-provided personal protective equipment (PPE). The state has also published the following exemption forms:

The Details:

In November 2021, Florida enacted House Bill 1, which states that if an employer receives a completed exemption statement, the employer must allow the employee to opt out of the employer's COVID-19 vaccination mandate. Under the law, employers must use forms adopted by the Florida Department of Health, or substantially similar forms, for employees to submit exemption statements. For more information on House Bill 1, go here.

The emergency rules clarify certain aspects of the law, including:

Employees must complete and present the applicable form to claim an exemption.
Employees seeking exemptions for anticipated pregnancy must be of child-bearing age and intend to become pregnant, and employers must accept the employee’s statement that they intend to become pregnant.
Employers are prohibited from inquiring into the veracity of the employee’s religious beliefs when employees seek exemption for religious reasons.
Employees seeking an exemption based on COVID-19 immunity must also provide proof of a positive laboratory result from a diagnostic test or antibody test.
For the periodic-testing exemption, employers can require testing no more frequently than once a week, and the testing must be performed at no cost to the employee.

Next Steps:

Florida employers should consult legal counsel to discuss the impact of the emergency regulations and House Bill 1 on their vaccination policies and practices.

Posted on November 23, 2021

Florida has enacted legislation (House Bill 1) that prohibits private employers from imposing a COVID-19 vaccination mandate without providing exemptions for medical reasons (including pregnancy and anticipated pregnancy), religious reasons, COVID-19 immunity, periodic testing, and the use of employer-provided personal protective equipment (PPE). House Bill 1 is effective immediately and expires on June 1, 2023.

Exemption Requests:

The law states that if an employer receives a completed exemption statement as detailed below, the employer must allow the employee to opt out of the employer's COVID-19 vaccination mandate. Employers must use forms adopted by the Florida Department of Health, or substantially similar forms, for employees to submit exemption statements.

Medical Exemptions:

To claim an exemption based on medical reasons, the law requires that the employee present a statement that is dated and signed by a licensed physician, physician assistant, or advanced practice registered nurse who has examined the employee. The statement must provide that, in the professional opinion of the healthcare provider, COVID-19 vaccination isn’t in the best medical interest of the employee.

Religious Exemptions:

To claim a religious exemption, the law requires that the employee present a statement indicating that the employee declines COVID-19 vaccination because of a sincerely held religious belief.

COVID-19 Immunity Exemptions:

To claim an exemption based on COVID-19 immunity, the law requires that the employee present an exemption statement demonstrating competent medical evidence that the employee has immunity to COVID-19, documented by the results of a valid laboratory test performed on the employee.

Period Testing Exemptions:

To claim an exemption based on periodic testing, the law requires that the employee present an exemption statement indicating that the employee agrees to comply with regular testing for the presence of COVID-19 at no cost to the employee.

PPE Exemptions:

To claim an exemption based on employer-provided PPE, the law requires that the employee present a statement indicating that the employee agrees to comply with the employer's reasonable written requirement to use employer-provided PPE when in the presence of other employees or other individuals.

Emergency Rules:

The Department of Health is directed to adopt emergency rules to implement the law, including sample forms.

Compliance Recommendations:

Florida employers should consult legal counsel to discuss the impact of House Bill 1 on their vaccination policies and practices.

Georgia

Posted on March 24, 2020

The Georgia Department of Labor (GDOL) has issued an emergency rule requiring employers to file partial unemployment claims online on behalf of their employees who are temporarily laid off or whose hours have been temporarily reduced because of a lack of work due to coronavirus 2019 (COVID-19).

Any employer found to be in violation of this rule will be required to reimburse the GDOL for the full amount of unemployment insurance benefits paid to the employee.

Compliance Recommendations:

Employers that temporarily lay off or temporarily reduce work hours due to COVID-19 should ensure that they file partial unemployment claims online on behalf of impacted employees. Instructions for doing so may be found here. Employers should also notify impacted employees that they don't have to file an unemployment insurance claim.

Idaho

Idaho recently enacted legislation (Senate Bill 1130) that, with limited exceptions, prohibits employers from requiring employees to obtain a coronavirus vaccination. Senate Bill 1130 became effective immediately on April 6, 2023.

The Details

Under Senate Bill 1130, employers doing business in the state are prohibited from requiring coronavirus vaccination as a term of employment, unless:

Required by federal law.
The terms of employment include travel to foreign jurisdictions that require coronavirus vaccinations for entry into the jurisdiction.
The terms of employment require entry into a place of business or facility in a foreign jurisdiction and it requires a coronavirus vaccination for entry into the jurisdiction.

If an employee is required to obtain a coronavirus vaccination related to business travel to a foreign jurisdiction (#2 and #3), the requirement must:

Be included in the written employment contract between the employer and the employee (if one exists); or
If an employment contract doesn’t exist, advance written notice must be provided to an impacted employee no less than 14 days prior to the employee being required to receive a vaccination.

The law also prohibits employers from providing or offering any different salary, hourly wage, or other ongoing compensation or benefits to an employee based on whether they have received a coronavirus vaccination. However, the law doesn’t prohibit an employer from offering one-time incentives related to coronavirus vaccinations as long as they don’t result in any different salary, hourly wage, or ongoing compensation or benefits being provided to an employee based on whether they have received a coronavirus vaccination.

Next Steps

Review all vaccination-related policies and procedures to ensure compliance with Senate Bill 1130. Consult legal counsel as needed.

Illinois

Posted on November 10, 2021

Illinois has enacted legislation (Senate Bill 1169) that clarifies that the state's Health Care Right of Conscience Act (HCRCA) doesn't prohibit employers from requiring COVID-19 vaccination and/or testing. Senate Bill 1169 takes effect June 1, 2022.

Background:

Enacted decades ago, the state's HCRCA generally prohibits discrimination against individuals because of their refusal to perform or receive healthcare services that are contrary to their conscience. Some employees were citing the law when objecting to employer COVID-19 requirements.

Senate Bill 1169:

Senate Bill 1169 amends the HCRCA to make clear that the law doesn't prohibit employers from taking any measures or imposing any requirements, including but not limited to, any measures or requirements that involve provision of services by a physician or health care personnel, that are intended to prevent contraction or transmission of COVID-19.

Compliance Recommendations:

Illinois employers should consult legal counsel to discuss the impact of Senate Bill 1169 on their vaccination policies and practices.

Posted on September 8, 2021

The Illinois Department of Public Health has issued an emergency rule that generally requires employees to wear masks indoors, regardless of their COVID-19 vaccination status. The emergency rule took effect August 30, 2021.

Under the emergency rule, employers must require employees to wear a face covering whenever they are indoors and unable to maintain at least 6 feet of social distancing, unless the individual is medically unable to tolerate wearing a mask. The requirement applies regardless of the individual’s vaccination status. The requirement generally also applies to customers and other individuals on the premises.

The emergency rule requires that employers take reasonable efforts to enforce the mask mandate. The emergency rule doesn’t define what are considered reasonable efforts for enforcement with employees but does give examples of reasonable efforts that retail businesses can take to enforce the mask mandate with customers, such as:

Posting signs.
Providing face coverings.
Giving verbal and/or written warnings to those who aren’t wearing masks.
Asking individuals to leave the premises if they refuse to wear a mask.
Providing reasonable accommodations to individuals who are unable to tolerate wearing a mask because of a medical condition.

Compliance Recommendations:

Illinois employers should read the emergency rulein full and ensure compliance with it.

Posted on March 23, 2021

The Illinois Department of Labor (IDOL) has provided guidance on providing employees pay, leave, and flexibility so they can get the COVID-19 vaccination.

Employer-Mandated Vaccination Programs:

In the guidance, the IDOL says that when employers require employees to get vaccinated, the time employees spend meeting the requirement generally must be paid, even if it occurs during non-work hours. The IDOL says mandatory vaccination requirements should be combined with paid leave for employees to receive the COVID-19 vaccine, or the employer should otherwise provide compensation for the time taken by the employee to comply with an employer-mandated vaccine requirement.

Optional Vaccination Programs:

Employees that choose to obtain the vaccine voluntarily should be allowed to utilize sick leave, vacation time, or other paid time off so they can receive the COVID-19 vaccine, according to the guidance. Otherwise, employers should consider offering flex time to allow the employee to become vaccinated without losing pay. If the employer decides against both of those options, the employer should provide unpaid time off, the IDOL says.

Family Members:

The Illinois Employee Sick Leave Act (ESLA) requires employers to allow their employees to use employer-provided sick leave benefits for absences due to, among other things, medical appointments of the employee's child, stepchild, spouse, domestic partners, sibling, parent, mother-in-law, father-in-law, grandchild, grandparents, or stepparent. The leave must be provided on the same terms upon which the employee is able to use personal sick leave benefits for their own illness or injury.

An appointment to receive the COVID-19 vaccine would qualify as a permissible medical appointment for purposes of the ESLA if the employer allows the use of an employee's sick leave benefits for purposes of vaccinations, according to the IDOL. Therefore, employers should allow the employee to use sick leave benefits when taking a covered family member to receive the COVID-19 vaccine.

Compliance Recommendations:

The IDOL recommends that employers review and amend their leave and vaccination policies to help encourage employees to obtain the COVID-19 vaccine. Keep in mind that employers that provide paid leave so employees may receive the COVID-19 vaccine may be entitled to a tax credit under the Families First Coronavirus Response Act, as amended by the American Rescue Plan Act.

Chicago

Posted on December 29, 2021

Chicago has issued a public health order that requires certain employers to verify employees are fully vaccinated against COVID-19. If employees aren't fully vaccinated, they must wear a mask when interacting with patrons and provide proof of a weekly negative COVID-19 test. The requirements take effect January 3, 2022.

Note: The order also requires covered employers to verify the vaccination status of patrons.

The Details:

Covered Employers:

The public health order applies to the following entities:

Indoor Dining: Establishments where food or beverages are served, including, but not limited to, restaurants, bars, fast food establishments, coffee shops, tasting rooms, cafeterias, food courts, dining areas of grocery stores, breweries, wineries, distilleries, banquet halls, and hotel ballrooms; and
Indoor Fitness: Gyms and fitness venues, including, but not limited to, gyms, recreation facilities, fitness centers, yoga, Pilates, cycling, barre, and dance studios, hotel gyms, boxing and kickboxing gyms, fitness boot camps, and other facilities used for conducting indoor group fitness classes; and
Indoor entertainment and recreation venues where food or beverages are served: Including, but not limited to, movie theaters, music and concert venues, live performance venues, adult entertainment venues, commercial event and party venues, sports arenas, performing arts theaters, bowling alleys, arcades, card rooms, family entertainment centers, play areas, pool and billiard halls, and other recreational game centers.

Requirements for Covered Employers:

All covered employers must:

Determine the vaccination status of each employee.
Require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated.
Treat any employee who doesn't provide one of the acceptable forms of proof of vaccination as not fully vaccinated.

Covered employers must ensure that employees who aren't fully vaccinated and who report at least once every seven days to a workplace where other individuals such as coworkers or customers are present are:

Tested for COVID-19 at least once every seven days; and
Provide documentation of the most recent COVID-19 test result to the employer no later than the seventh day following the date the employee last provided a test result.

Covered employers must also ensure that employees who aren't fully vaccinated and don't report during a period of seven or more days to a workplace where other individuals are present are:

Tested for COVID-19 within seven days prior to returning to the workplace; and
Provide documentation of that test result upon return to the workplace.

If an employee doesn't provide documentation of a COVID-19 test result as required, the employer must keep that employee removed from the workplace until they provide a test result.

Note: Employees who aren't fully vaccinated must also wear a face mask when interacting with patrons.

Written Plan Required:

Covered employers must develop and keep a written plan describing the protocol for implementing and enforcing the requirements of the order. The city has created a sample compliance plan that employers may use.

Recordkeeping:

Covered employers must maintain a record and a roster of each employee's vaccination status. Employers must also maintain a record of each test result provided by each employee. This information is subject to applicable legal requirements for confidentiality of medical information. These records must be preserved while the order is in effect.

Next Steps:

If you are a covered employer:

Refer to the city's resources.
Develop, implement, and enforce a written compliance plan.
Notify employees.
Display signs at all entrances.
Train supervisors on how to enforce the requirements.
Amend written policies if necessary.

Posted on July 30, 2021

The Chicago City Council has approved an ordinance (Ordinance No. O2021-2182) that will amend and expand the city's paid sick leave law. The changes take effect August 1, 2021.

Background:

Chicago requires all employers with at least one covered employee to provide paid sick leave. To be considered a covered employee, the employee must:

Work within the city for at least two hours in any two-week period; and
Work at least 80 hours for an employer within any 120-day period.

Covered employees generally are entitled to accrue at least one hour of leave for every 40 hours of work. Employers may cap accrual at 40 hours per 12-month period.

Under existing law, covered employees may use paid sick leave in the following circumstances.

The employee, or a family member, is ill or injured, or for the purpose of receiving medical care, treatment, diagnosis, or preventive medical care.
The employee, or a family member, is the victim of domestic violence or a sex offense; or
The employee's place of business is closed by order of a public official due to a public health emergency.
The employee needs to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency.

Existing Notice and Poster Requirements:

Existing law also requires employers to post a notice advising employees of their rights under the ordinance The notice must also be provided to covered employees with their first paycheck and then each year with a paycheck issued within 30 days of July 1.

Employers must post the notice through their usual communication methods for such notices, whether by paper or electronically. When posting a paper notice, the notice must be printed on and scaled to fill a sheet of paper that measures eleven inches by seventeen inches.

Similarly, the notice employers provide with the first paycheck must also be printed on and scaled to fit a sheet of paper that measures eight and a half inches by eleven inches. However, where covered employees are enrolled in direct deposit and do not receive a “paycheck” but have the option to review their pay stubs electronically, employers may provide the notice to covered employees through the employers' usual methods of electronic communication.

All notices must be posted in English and any language(s) spoken by employees at the facility who are not proficient in English and in which the Department has provided non-English language notices.

Ordinance No. O2021-2182:

The new ordinance amends and expands the reasons employees may use paid sick leave. Effective August 1, 2021, covered employees may use the leave for the following purposes:

The employee is ill or injured, or for the purpose of receiving professional care, including preventive care, diagnosis, or treatment, for medical, mental, or behavioral issues, including substance abuse disorders.
A family member is ill or injured, or ordered to quarantine, or to care for a family member receiving professional care, including preventive care, diagnosis, or treatment, for medical, mental, or behavioral issues, including substance abuse disorders.
The employee, or a family member, is the victim of domestic violence, sex offense, or human trafficking.
The employee's place of business is closed by order of a public official due to a public health emergency.
The employee needs to care for a family member whose school, class, or place of care has been closed.
An employee obeys an order issued by the mayor, the governor of Illinois, the Chicago Department of Public Health, or a treating healthcare provider, requiring the employee:

To stay at home to minimize the transmission of a communicable disease,
To remain at home while experiencing symptoms or sick with a communicable disease,
To obey a quarantine order issued to the employee, or
To obey an isolation order issued to the employee.

Wage Theft:

The ordinance also establishes that wage theft is prohibited under city law. Wage theft includes the non-payment of any wages required for work performed, paid time off (whether required by law or contract), and employee benefits (required by contract). Employees may seek redress for wage theft by filing a claim with the Office of Labor Standards or in a civil action. Employers that are found to have violated the law would be liable for unpaid wages as well as damages. In the required notice that employers are required to post and provide to employees, information on the ability to seek redress for wage theft must be included.

New Notice and Poster Requirements:

The amendments retain the current requirement to post and distribute a notice of rights under the ordinance. However, the notice / poster has been revised to inform covered employees of their ability to seek redress for wage theft.

Compliance Recommendations:

Employers with employees working in Chicago should update leave policies and forms to comply with the amendments. Employers must also post and provide a revised notice effective August 1, 2021 to covered new hires and then redistribute the notice each following year with a paycheck issued within 30 days of July 1. A copy of the poster/notice can be found here.

Posted on April 30, 2021

The Chicago City Council has approved an ordinance that establishes protections for workers that take time off from work to receive the COVID-19 vaccine. The ordinance applies to both employees and independent contractors and takes effect immediately.

The ordinance prohibits employers from:

Taking any adverse action against a worker for taking time off to receive the vaccine.
Requiring workers to get vaccinated only during non-shift hours.

Under the ordinance, if an employer requires their workers to receive the vaccine, they must pay them at their regular rate of pay for up to four hours per dose, provided the vaccination appointment is during their shift. Employers that require that a worker be vaccinated are prohibited from requiring them to use paid time off or paid sick leave to fund the hours missed to get vaccinated.

If an employer doesn't require their workers to get the vaccine, they must allow workers that have accrued paid sick leave to use that time to receive the vaccine.

Compliance Recommendations:

Chicago employers should ensure compliance with the ordinance and train supervisors on the new protections for employees.

Posted on June 15, 2020

Chicago has published final rules, frequently asked questions, and a notice for employers covered by the city's Fair Workweek Ordinance, which takes effect July 1, 2020.

Background:

In 2019, Chicago enacted an ordinance requiring certain employers to notify employees of their schedules in advance and pay employees when they provide insufficient notice of schedule changes.

To be covered by the ordinance:

The employer must employ 100 or more employees globally (250 or more employees for not-for-profit corporations);
At least 50 of those employees must be considered covered employees (see below); and
The employer must be primarily engaged in one of the following covered industries:
- Building Services;
- Healthcare;
- Hotels;
- Manufacturing;
- Restaurants;
- Retail; or
- Warehouse Services.

Under the ordinance, a covered employee is one who:

Performs work in the capacity of an employee, as distinguished from a contractor, or is a worker for temporary agency who has been on assignment to the employer for 420 hours within an 18-month period;
Spends most of their work time within the City of Chicago;
Performs most of their work in a covered industry for that employer; and
Earns $50,000 or less per year as a salaried employee, or $26.00 or less per hour as an hourly employee (these amounts will be adjusted for inflation).

The ordinance contains various provisions, including:

Posting Work Schedule: Employers must post covered employees' work schedules no later than 10 days before the first day of any new schedule. This deadline increases to 14 days beginning July 1, 2022. The schedule must include the shifts and on-call status of all current covered employees at that worksite. Additionally, it must be posted conspicuously within the workplace and readily accessible and visible to all covered employees or via the usual methods of communication. Additionally, upon written request, the employer must transmit the schedule electronically.
Right to decline unscheduled hours: Covered employees can decline to work unscheduled hours offered to them within 10 days of the beginning of the work schedule in which those additional hours are proposed.
Predictability pay: Covered employees receive one hour of additional pay when hours are added to a shift, or a shift's time or date is changed with no change to the number of hours, within 10 days of the beginning of the work schedule during which that shift takes place. Predictability pay also applies when hours are subtracted from a shift within 10 days of the start of the work schedule in which that shift takes place, but with more than 24 hours' notice from the beginning of that shift.
Pay for cancelled hours and shifts: Covered employees receive no less than 50% of their pay for any hours that are cancelled with less than 24 hours' notice from the beginning of the shift during which those cancelled hours were to take place.
Right to rest: Covered employees can decline shifts that begin less than 10 hours following the end of the previous day's shift. When covered employees agree to work such a shift, they are then paid at 1.25 time their base rate of pay.
Initial estimate of work schedule: Covered employees must receive an initial good faith estimate of their work schedule, including the days of the week they can be expected to work, and the start and end times of their shifts for those days.
Employer notice: Employers must post a notice advising covered employees of their rights under the ordinance. Employers must also provide a notice with each covered employee's first paycheck on or after July 1, 2020.

More information on the ordinance can be found here.

Final Rules, FAQs, and Notice:

The city recently published final rules, frequently asked questions, and the required notices under the ordinance.

Among other things, the final rules clarify that:

An employer may change a previously scheduled regular shift as posted by 15 minutes or less without being obligated to provide predictability pay.
Employers may add a covered employee to a work schedule with less than the required notice when they are returning from a leave of absence.
Employers must post the required notice through the employers' usual methods of communication for such notices, whether by paper posting or by electronic dissemination through the employers' internal communication channels. When posting a paper notice, the notice must be printed on and scaled to fill a sheet of paper that measures 11 inches by 17 inches.
The notice that employers must provide with the first paycheck advising the covered employee of their rights must be printed on and scaled to fit a sheet of paper that measures 8.5 inches by 11 inches. However, where covered employees are enrolled in direct deposit, employers may provide the notice through the employers' usual methods of electronic communication. This notice must also be provided with employee paychecks annually on or following July 1.
All notices must be posted in English and any language(s) spoken by employees at the facility who are not proficient in English and in which city has provided non-English language notices. As of June 9, 2020, the city has published the notices in English and Spanish.

The frequently asked questions address various issues, including COVID-19. In the answer to one question, the city states that if COVID-19 causes a material change to an employer's operations that creates the need for a schedule change, the employer is exempt from certain provisions of the ordinance (right to decline, predictability pay, and pay for cancelled hours and shifts) for the work schedule during which the change takes place, as well as the following work schedule.

Compliance Recommendations:

Covered employers should read the ordinance, final rules, and frequently asked questions in full and ensure compliance by July 1, 2020. Anyone involved in scheduling employees should be trained as well.

Posted on June 3, 2020

Chicago has published rules and enacted two ordinances that will expand coverage under the city's paid sick leave law, create new notice and recordkeeping requirements, and prohibit adverse action against employees because of COVID-19. The changes take effect on July 1, 2020.

Expanded Paid Sick Leave Coverage:

All employers with at least one covered employee are required to provide paid sick leave, regardless of whether the employer has a worksite in the city or is subject to the city's business license requirements.

To be considered a covered employee, the employee must work:

Within the city for at least two hours in any two-week period; and
At least 80 hours for an employer within any 120-day period.

The definition of a covered employee has also been expanded to expressly include:

An outside salesperson.
A member of a religious corporation or organization.
A student at, and employed by, an accredited Illinois college or university.
Motor carriers regulated by the U.S. Secretary of Transportation or the state.

Notice Requirements:

New rules make clear that employers must post a required notice about minimum wage and paid sick leave through the employer's usual methods of communication for such notices (paper posting or electronic dissemination through their internal communication channels). When posting a paper notice, the notice must be printed on and scaled to fill a sheet of paper that measures 11 inches by 17 inches.

The new rules also require that the minimum wage and paid sick leave notice employers must provide with the first paycheck be printed on and scaled to fit a sheet of paper that measures 8.5 inches by 11 inches. However, where employees are enrolled in direct deposit but have the option to review their pay stubs electronically, employers may provide the notice through the employers' usual methods of electronic communication.

The new rules add a requirement that the notice employers must provide with the first paycheck must also be provided annually with the first paycheck on or following July 1, whether by paper or electronic means.

All notices must be in English and any language(s) spoken by employees at the facility who aren't proficient in English and in which the city has provided non-English language notices.

Recordkeeping:

Currently, employers must maintain the following records for each covered employee for a period of no less than five years:

Name, mailing address, telephone number, and email address;
Occupation and job title;
Hire date;
Date the employee was eligible to use paid sick leave;
Number of hours of paid sick leave accrued or awarded;
Dates and number of hours of paid sick leave used;
Rates of pay;
Hours worked each day and each workweek;
Type of payment (hourly, salary, commission, etc.), straight-time and overtime pay, and total wages paid in each pay period;
Additions to and deductions from wages for each pay period and an explanation; and
Dates of payment of each pay period covered by each payment.

Effective July 1, 2020, employers must also keep a record of whether the covered employee is tipped, non-tipped, or performs duties of both tipped and non-tipped positions.

COVID-19 Protections:

Effective July 1, 2020, employers are prohibited from taking adverse action against a covered employee for obeying an order issued by the mayor, governor, the Chicago Department of Public Health, or a treating healthcare provider, requiring the individual to:

Stay at home to minimize the transmission of COVID-19;
Remain at home while experiencing COVID-19 symptoms or sick with COVID-19;
Obey a quarantine order issued to the employee;
Obey an isolation order issued to the employee;
Obey an order issued by the Commissioner of Health regarding the duties of hospitals and other congregate facilities.

In addition, employers are prohibited from taking adverse action against an employee for caring for an individual subject to 1 through 3 above.

Compliance Recommendations:

Employers with covered employees should ensure compliance with the changes that take effect July 1, 2020.

Indiana

Indiana has enacted legislation (House Bill 1001) that prohibits employers from requiring employees to receive the COVID-19 vaccine, unless the employer provides certain exemptions. House Bill 1001 took effect immediately on March 3, 2022.

Covered Employers:

House Bill 1001’s restrictions on employer vaccine mandates apply to all employers except:

Federal contractors if vaccination is required for parties to the contract or if compliance with House Bill 1001 would result in a breach of contract or loss of funding.
A healthcare facility that is subject to a federal immunization requirement against COVID-19 for the healthcare facility's employees.
Professional sports organizations and entertainment venues if their employees work closely with live sports and entertainment at the venue.

The Details:

To require COVID-19 vaccination, covered employers must provide exemptions for:

Medical reasons. To claim this exemption, an employee must present an exemption statement in writing, dated and signed by a licensed physician, a licensed physician's assistant, or an advanced practice registered nurse, who has examined the employee. The statement must provide that, in their professional opinion. the immunization against COVID,19 is medically contraindicated for the employee.
Religious reasons. To claim this exemption, an employee must present to the employer an exemption statement in writing indicating that the employee declines the immunization against COVID-19 because of a sincerely held religious belief.
An employee who has immunity from prior infection. To claim this exemption, an employee must present to the employer the result of a laboratory test performed on the employee that has been approved by the federal Food and Drug Administration. An employer may request that an employee submit a new laboratory test result no more than once every three months.

If an employer receives a completed exemption statement in accordance with the requirements above for an exemption based on medical reasons or immunity, the employer must allow the employee to opt out of the employer's COVID-19 immunization requirement without further inquiry.

If an employer receives a completed exemption statement in accordance with the requirements above for an exemption based on religious reasons, the employer must make a religious accommodation in compliance with Title VII of the federal Civil Rights Act of 1964.

An employer may require COVID-19 testing up to two times per week for employees who receive an exemption.

Next Steps:

If you have employees in Indiana, consult legal counsel to discuss the impact of House Bill 1001 on your vaccination policies and practices.

Iowa

Posted on November 2, 2021

Iowa has enacted legislation (House File 902) that requires employers to grant waivers to their COVID-19 vaccination requirements under certain circumstances. House File 902 is effective immediately.

Waivers from COVID-19 Vaccination Mandates:

House File 902 states that if employers require employees to receive the COVID-19 vaccine, they must waive the requirement if the employee submits either of the following:

A statement that receiving the vaccine would be injurious to the health and well-being of the employee or an individual residing with the employee.
A statement that receiving the vaccine would conflict with the tenets and practices of the employee’s religion.

Unemployment Benefits:

The law also establishes that an employee isn’t disqualified from receiving unemployment benefits if they are terminated for refusing COVID-19 vaccination.

Compliance Recommendations:

Iowa employers should consult legal counsel to discuss the impact of House File 902 on their vaccination policies and practices.

Kansas

Posted on November 30, 2021

Kansas has enacted legislation (House Bill 2001) stating that employers that implement COVID-19 vaccination requirements must provide certain exemptions to employees. House Bill 2001 was effective immediately upon the Governor's signature on November 23, 2021.

Exemption Requests:

Under House Bill 2001, if employers adopt a COVID-19 vaccine requirement, they must provide an exemption to an applicant or employee who submits a written waiver request stating that complying with the requirement would:

Endanger the life or health of the individual, or someone who resides with them, as evidenced by an accompanying written statement signed by a physician or another person who performs acts pursuant to practice agreements, protocols, or at the order, direction, or delegation of a physician; or
Violate the sincerely held religious beliefs of the individual, as evidenced by an accompanying written statement signed by the applicant or employee.

The law states that an employer must grant an exemption based on sincerely held religious beliefs without inquiring into the sincerity of the request.

Employers must provide the above exemptions without taking punitive action, which is defined as any of the following:

Dismissal, demotion, transfer, reassignment, suspension, reprimand, or warning of possible dismissal;
Withholding of work; or
Assessing any monetary penalty or unreasonable charge.

Penalties:

Employers found by a court to have violated the law may face fines of up to $10,000 per violation if the employer has fewer than 100 employees and $50,000 per violation if the employer has 100 or more employees. See the text of the law for details on enforcement.

Compliance Recommendations:

Kansas employers should consult legal counsel to discuss the impact of House Bill 2001 on their vaccination policies and practices.

Kentucky

Updated on March 8, 2021

Kentucky has enacted legislation (House Bill 1) that would require employers to create and post a plan for COVID-19 if they wish to provide in-person services. House Bill 1 was set to take effect immediately after the legislature overrode a veto by the governor, but a court temporarily blocked the implementation of the law while a legal challenge from the governor is heard.

Under House Bill 1, all businesses may remain open and fully operational for in-person services as long as they adopt a plan that:

Meets or exceeds all applicable guidance issued by the Centers for Disease Control and Prevention or by the executive branch, whichever is least restrictive;
Details how the employer will foster the safety of employees, customers, and patrons, including social distancing requirements; and
Is posted in a conspicuous place on the main entrance door and website (if applicable) of the business.

Compliance Recommendations:

The temporary order blocking the law was set to expire on or about March 5, 2021 but has been extended. Employers may want to prepare a plan that complies with House Bill 1 in case the challenge to the law is ultimately unsuccessful. Employers may draft the plan themselves or use a plan prepared by a local or state government agency, local or state chamber of commerce, trade association, or any other recognized affiliated organization. We will continue to monitor the status of the law and provide updates once new information is made available.

Louisiana

Posted on April 16, 2020

The Louisiana Workforce Commission (LWC) has adopted an emergency rule that expands the unemployment insurance (UI) notice requirements.

Background:

Under existing law, employers must post a notice about the availability of unemployment insurance benefits.

Emergency Rule:

The emergency rule adopts an additional requirement that employers notify each individual employee within 24 hours of separation that:

Employees that meet the requirements for eligibility may file a UI claim in the first week that employment ends or work hours are reduced;
A UI claim may be filed by phone or online;
The LWC's toll-free phone number is 1-866-783- 5567 and web address is www.louisianaworks.net/hire for filing a UI claim or for assistance with claims.
Employees must provide the LWC with their full name, social security number, and work authorization (if not a U.S. citizen or resident).

The notice must be provided to employees in writing either via flyer, letter, email, or text message.

Note: The LWC will post a sample notice on its website for employers to use.

Compliance Recommendations:

Employers with employees in Louisiana must ensure compliance with the emergency rule.

Massachusetts

The Massachusetts Executive Office for Administration and Finance has announced that a requirement that employers provide COVID-19 emergency paid sick leave will end March 15, 2022. The leave requirement is expiring on that date because the COVID-19 Emergency Paid Sick Leave Fund, which reimburses employers for providing the leave, is nearing its limit for disbursements. Otherwise, the requirement would have remained in effect until April 1, 2022.

The Details:

Employers must continue to offer COVID-19 emergency paid sick leave to eligible employees through March 15, 2022. Employers may continue to seek reimbursement for qualifying leave costs taken between May 28, 2021 and March 15, 2022. Applications for reimbursement must be submitted by April 29, 2022.

Through March 15, 2022, employees may use COVID-19 emergency paid sick leave for the following reasons:

To self-isolate and care for themselves because of the employee's COVID-19 diagnosis; get a medical diagnosis, care, or treatment for COVID-19 symptoms; or obtain or recover from the COVID-19 vaccine.
To care for a family member who is self-isolating due to a COVID-19 diagnosis or needs medical diagnosis, care or treatment for COVID-19 symptoms.
If they or a family member are subject to a quarantine order, or other determination by a local, state, or federal public official, a health authority having jurisdiction, their employer, or a healthcare provider.
Their inability to telework because the employee has been diagnosed with COVID-19 and the employee's symptoms inhibit the ability to telework.
To care for a family member who is obtaining the COVID-19 vaccine or recovering from an injury, disability, illness, or condition related to such immunization.

Next Steps:

If you are a Massachusetts employer:

Continue to offer COVID-19 emergency paid sick leave to employees through March 15, 2022
Notify employees about the date that the leave entitlement will end.
Update policies if necessary.
Submit applications for reimbursement by April 29, 2022.

Updated on September 30, 2021

Massachusetts has enacted legislation that extends and expands a requirement that all employers provide COVID-19 emergency paid sick leave. Employers that provide the leave may request reimbursement from the state's COVID-19 Emergency Paid Sick Leave Fund. The leave requirement will expire when the $75 million fund is exhausted or April 1, 2022, whichever occurs first. The requirement was set to end on September 30, 2021 but has just been extended by House Bill 4127. Employees may also now use leave to care for a family member who obtains the COVID-19 vaccine.

Use of Leave:

Employees may use COVID-19 emergency paid sick leave for the following reasons:

To self-isolate and care for themselves because of the employee's COVID-19 diagnosis; get a medical diagnosis, care, or treatment for COVID-19 symptoms; or obtain or recover from the COVID-19 vaccine.
To care for a family member who is self-isolating due to a COVID-19 diagnosis or needs medical diagnosis, care or treatment for COVID-19 symptoms.
If they or a family member are subject to a quarantine order, or other determination by a local, state, or federal public official, a health authority having jurisdiction, their employer, or a healthcare provider.
Their inability to telework because the employee has been diagnosed with COVID-19 and the employee's symptoms inhibit the ability to telework.

Effective October 1, 2021, the leave may also be used to care for a family member who is obtaining the COVID-19 vaccine or recovering from an injury, disability, illness, or condition related to such immunization.

A family member is defined as the employee's spouse, domestic partner, child, or parent, including a spouse's or domestic partner's parent; a person who stood in place of a parent to the employee when the employee was a minor child; and a grandchild, grandparent or sibling of the employee.

An employee may use COVID-19 emergency paid sick leave on an intermittent basis and in hourly increments.

Amount of Leave:

Full-time employees:

An employee who works 40 hours or more per week must be provided 40 hours of COVID-19 emergency paid sick leave.

Part-time employees:

An employee who works less than 40 hours a week, but maintains a regular schedule with consistent hours per week, must be provided leave equal to the number of hours that the employee works per week, on average over a 14-day period of their regular schedule.

Variable schedule employees:

For an employee whose schedule and weekly hours vary from week to week, the employee must be provided leave that:

Is equal to the average number of hours that the employee was scheduled to work per week over the 6-month period immediately preceding COVID-19 emergency paid sick leave, including hours for which the employee took leave of any type; or
If the employee did not work over the previous 6-month period, is equal to the reasonable expectation of the employee at the time of hire of the average number of hours per week that the employee would normally be scheduled to work.

Pay and Benefits During Leave:

Under the law, the leave is paid, and employees maintain the same employment benefits to which they are entitled as a term of employment. However, no employee is entitled to receive more than $850 per week in COVID-19 emergency paid sick leave.

Employee Notice:

Employees must provide notice of the need for COVID-19 emergency paid sick leave as soon as practical or foreseeable. After the first workday of leave, the employer may require the employee to follow reasonable notice procedures to continue receiving COVID-19 emergency paid sick leave.

Employer Reimbursement:

An eligible employer who pays an employee for COVID-19 emergency paid sick leave may seek reimbursement from the Executive Office for Administration and Finance, which must provide reimbursements directly to eligible employers within 30 business days of the employer submitting the application. Reimbursement is limited to $850 per week per employee. Employers are ineligible for reimbursement if they are eligible for tax credits for providing the paid family and medical leave under federal law.

Documentation for Reimbursement:

Employers' applications for reimbursements must include, but not be limited to, a copy of a written request for COVID-19 emergency paid sick leave from the employee, in which the employee provides:

The employee's name;
The date(s) for which leave is requested and taken;
A statement of the COVID-19 related reason they're requesting leave and written support for such reason; and
A statement that they're unable to work, including telework, for such reason.

In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee must also 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.

Recordkeeping:

Health information related to COVID-19 emergency paid sick leave must:

Be maintained on a separate form and in a separate file from other personnel information;
Be treated as confidential medical records;
Not be disclosed except to the affected employee or with the express permission of the affected employee; and
Be kept confidential in accordance with any other state or federal law.

Employer Notice:

Employers must post a notice in a conspicuous location in every establishment and must provide a copy to their employees. In cases where the employer doesn't maintain a physical workplace, or an employee teleworks or performs work through a web-based platform, notification must be sent electronically or posted conspicuously on a web-based platform. The state has developed a notice, which is available here.

Interaction with Other Leave:

COVID-19 emergency paid sick leave generally must be provided in addition to all job protected time off, paid and unpaid, that the employer is required to provide to employees under federal or state law or otherwise provided under an existing policy. Employers are prohibited from requiring an employee to use other paid leave provided by the employer before the employee uses COVID-19 emergency paid sick leave, unless federal law requires otherwise.

Note: COVID-19 emergency paid sick leave provided by an employer may be reduced by the amount of wages or wage replacement that an employee receives for that period under any government program or law.

Compliance Recommendations:

Massachusetts employers should review policies and practices to ensure compliance with House Bill 3702. Supervisors should also be trained on the new leave law.

Note: HR411^®'s Employee Handbook Wizard now includes a Temporary COVID-19 Emergency Paid Sick Leave policy for Massachusetts employers. See the Alerts section, found on the Employee Handbook Wizard home page, for more information.

Posted on May 5, 2021

The Massachusetts Attorney General's Fair Labor Division (FLD) has provided updated guidance to address leave and other issues related to the COVID-19 vaccine. The FLD's guidance is provided in the form of frequently asked questions and addresses various issues, including:

Q: Can my employer require me to get the vaccine in order to keep my job?

A: Maybe - unless you are not able to be vaccinated because of a protected legal right such as a disability or sincerely held religious belief. According to the EEOC, "the Americans with Disabilities Act allows an employer to have a qualification standard that includes "a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.'" In most cases, employers have an obligation to engage in a flexible, interactive process with an employee who informs them that they are not vaccinated due to a disability, sincerely held religious belief, or other legally-protected reason. For more information, visit the EEOC's What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

Q: If my employer requires me to get the vaccine, is the time spent getting the vaccine compensable working time?

A: In Massachusetts, "working time" includes all time during which an employee is required to be on the employer's premises or at any other location. Therefore, if your employer mandates that you receive the vaccine at a specific location and/or on a specific date, this is likely to be considered "working time" and therefore is compensable. If your employer simply requires proof of a vaccine, but does not mandate when, where and how you obtain it, this is unlikely to be considered compensable time. For a formal opinion, please contact the Massachusetts Department of Labor Standards at dlsfeedback@state.ma.us.

Note: The guidance doesn't seem to address federal law. Even if the time spent getting the vaccine isn't ultimately considered working time under state law, it's possible pay is required by federal law when the employer requires vaccination. Consult legal counsel to discuss your rights and obligations under both state and federal law.

Q: Is my travel time to and from the vaccination site compensable time? Does my employer have to reimburse me for mileage?

A: If an employee who regularly works at a fixed location is required to report to a location other than his or her regular work site, the employee must be compensated for all travel time in excess of his or her ordinary travel time between home and work and must be reimbursed for associated transportation expenses. Therefore, if your employer mandates that you receive the vaccine at a specific location and/or on a specific date, travel time and travel expenses may be compensable. If your employer simply requires proof of a vaccine, but does not mandate when, where and how you obtain it, travel to and from the vaccination site is unlikely to be considered compensable time. For a formal opinion, please contact the Massachusetts Department of Labor Standards at dlsfeedback@state.ma.us.

Note: As with the previous FAQ, the guidance doesn't seem to address federal law. Consult legal counsel to discuss your rights and obligations regarding travel time under both state and federal law.

Compliance Recommendations:

Massachusetts employers should read the guidance in full and consult legal counsel as needed. The FLD continues to update the guidance as circumstances change, so employers should watch for developments and ensure they're considering the latest guidance.

Boston, MA

Posted on January 7, 2022

Boston has announced that certain employers will be required to verify employees are fully vaccinated against COVID-19. Covered employers must check proof of vaccination and post a notice about the COVID-19 vaccine requirement.

The Details:

Covered Employers:

The vaccination mandate applies to employees (and patrons) of the following types of businesses:

Indoor portions of food service establishments offering food and drink (e.g., bars and restaurants);
Indoor entertainment, recreational, and event venues (e.g., movie theaters, museums, and music halls); and
Indoor gym and fitness settings (e.g., commercial gyms and yoga studios).

A full list of covered establishments is available here.

Compliance Deadlines:

By January 15, 2022, employees must show proof of one at least dose of COVID-19 vaccination.
By February 15, 2022, employees must show proof of full vaccination.

Employees may show proof by providing:

Their CDC vaccination card;
A digital image of their CDC card;
An image of their official immunization record; or
Verification via a city of Boston app or any other COVID vaccine verification app.

Reasonable Accommodations:

The city has provided guidance for handling employee and patron requests for reasonable accommodations. The guidance indicates that reasonable accommodations must be provided to employees who require them because of a medical condition, disability, or other civil-rights-related reason, unless if it would cause a direct threat to other customers or employees, including through risk of COVID-19 infection, or impose an undue hardship on the business.

If an employee requests an exception to the vaccine requirement or additional time to provide their proof of vaccination for one of the reasons listed above, employers must engage with them in a cooperative dialogue, or a good faith discussion, to see if a reasonable accommodation is possible, according to the guidance.

Reasonable accommodations can take many forms, such as allowing an employee to work remotely, perform their job duties outside or isolated from other employees or customers, or taking a leave of absence. Notably, the guidance says weekly testing isn't an acceptable accommodation.

Note: Employers may have additional reasonable accommodation obligations under federal and/or state law, and certain employers may be subject to federal vaccination requirements. Employers should consult legal counsel to discuss the impact of these laws on their vaccination policies and practices.

Next Steps:

If you are a covered employer:

Consult legal counsel to discuss the impact of the requirement and federal and state law on your vaccination policies and practices.
Refer to the city's resources.
Notify employees.
Place a public notice at the front entrance stating that proof of vaccination is required. The notice is available for download here.
Train supervisors on how to enforce the requirements.

Michigan

Posted on March 30, 2021

Michigan has enacted legislation (House Bill 4047) that will provide funding to continue and expand hazard pay for direct care workers.

Direct care workers employed by the following entities will be eligible for $2.25 per hour in hazard pay from March 1, 2021 through September 30, 2021:

The Michigan Department of Health and Human Services, its contractors, and its subcontractors who received a $2 per hour state-funded hazard pay beginning in April 2020.
Skilled nursing facilities.
Area agencies on aging and their contractors for in-home and respite services.
Licensed adult foster care homes and licensed homes for the aged who weren't eligible for hazard pay under any other provision of House Bill 4047.

Direct support employees and job coaches who work in supported employment arrangements are also eligible for $2.25 in hazard pay from March 1, 2021 through September 30, 2021.

Front line workers employed by child-caring institutions (as defined by state law) are eligible for hazard pay of $2 per hour from March 1, 2021 to June 30, 2021.

Compliance Recommendations:

The Michigan Department of Health and Human Services has established a process for employers to seek reimbursement for hazard pay provided to covered direct care workers. Employers should retain documentation (such as payroll records and job descriptions) to demonstrate direct care workers' eligibility for, and receipt of, hazard pay, and to show that other eligible expenses were actually incurred. For more information, contact the Department of Health and Human Services.

Posted on January 18, 2021

Michigan has adopted legislation (Senate Bill 1258) that amends the rules for returning to work after testing positive for COVID-19, displaying symptoms of COVID-19, or having close contact with someone who has COVID-19. Senate Bill 1258 is effective immediately.

Background:

In October 2020, Michigan enacted legislation (House Bill 6032) that prohibited:

Employees who test positive for COVID-19 or who display the principal symptoms of COVID-19 from reporting to work until certain conditions are met. Among other conditions, these employees had to wait until 10 days had passed since their symptoms first appeared or they received a positive COVID-19 test, whichever was later.
Employees who have close contact with an individual who tests positive for COVID-19 or with an individual who displays the principal symptoms of COVID-19 from reporting to work until 14 days have passed since the employee last had close contact with the individual or the close contact receives a medical determination that they didn't have COVID-19 at the time of the close contact with the employee.
Employers from discharging, disciplining, or otherwise retaliating against an employee who complies with the return to work conditions prescribed in the law, opposes a violation of the law, or reports health violations related to COVID-19.

Senate Bill 1258:

Senate Bill 1258 removes the specific timeframes (10 days and 14 days) from the return-to-work requirements for COVID-19 and makes other changes.

Employees Who Test Positive:

Employees who test positive for COVID-19 are prohibited from reporting to work until:

The employee is advised by a healthcare provider or public health professional that they have completed their isolation period; or
All of the following conditions are met:
- If the employee has a fever, 24 hours have passed since the fever has stopped without the use of fever-reducing medications.
- If the employee displays the principal symptoms of COVID-19, those symptoms have improved.
- If the employee has been advised by a healthcare provider or public health professional to remain isolated, they are no longer subject to that advisement.
- The isolation period has passed.

Under the law, the isolation period means the recommended number of days for an individual to be in isolation after they first display the principal symptoms of COVID-19 as prescribed in the Centers for Disease Control and Prevention (CDC)'s COVID-19 guidelines.

Symptomatic Employees:

The law also clarifies that an employee who displays the principal symptoms of COVID-19 but hasn't tested positive is prohibited from reporting to work until:

The employee receives a negative diagnostic test result; or
All of the following conditions are met:
- If the employee has a fever, 24 hours have passed since the fever has stopped without the use of fever-reducing medication.
- The symptoms have improved.
- The isolation period has passed since the symptoms began.

Close Contact:

Employees who have had close contact with an individual who tests positive for COVID-19 are prohibited from reporting to work until one of the following conditions is met:

The quarantine period has passed since the employee last had close contact with the individual; or
The employee is advised by a healthcare provider or public health professional that they have completed their quarantine period.

Quarantine period means the recommended number of days for an individual to be in quarantine after they are in close contact as prescribed in CDC COVID-19 guidelines.

Senate Bill 1258 also establishes that the definition of close contact is how that term is defined in CDC COVID-19 guidelines at the time the contact occurred.

Exception:

There is an exception that allows certain types of employees who are otherwise subject to quarantine but aren't experiencing any symptoms and haven't tested positive for COVID-19 to participate in onsite operations. This only applies when strictly necessary to preserve the function of a facility in which ceasing facility operations would cause serious harm or danger to public health or safety. See the text of the law for details.

Compliance Recommendations:

Employers with employees working in Michigan should review their policies and practices to ensure compliance with Senate Bill 1258.

Posted on October 27, 2020

The Michigan Occupational Safety and Health Administration (MIOSHA) has adopted an emergency rule requiring employers to take certain steps related to COVID-19. The emergency rule is effective immediately.

Exposure Determination:

Employers must evaluate routine and reasonably anticipated tasks and procedures to determine whether there is actual or reasonably anticipated exposure to COVID-19. Employers must categorize job tasks and procedures into specified risk categories.

Preparedness and Response Plan:

Employers must develop and implement a written COVID-19 preparedness and response plan that is consistent with the current federal Centers for Disease Control and Prevention (CDC) guidance and recommendations in "Guidance on Preparing Workplaces for COVID-19" from the U.S. Department of Labor. The plan must include the employee exposure determination and the measures the employer will implement to prevent employee exposure, including any:

Engineering controls;
Administrative controls;
Basic infection prevention measures;
Personal protective equipment (PPE);
Health surveillance; and
Training.

The employer must make the plan readily available to all employees and their representatives, whether via the employer's website, internal network, or hard copy.

Basic Prevention Measures:

Employers must:

Promote hand washing. Promote frequent and thorough hand washing, including by providing employees, customers, and visitors with a place to wash their hands. If soap and running water aren't immediately available, employers must provide antiseptic hand sanitizers or alcohol-based hand towelettes containing at least 60 percent alcohol;
Require sick employees stay home. Require employees who are sick to stay away from work or work in an isolated location;
Prohibit sharing equipment. Prohibit workers from using co-workers' phones, desks, offices, or other work tools and equipment, when possible;
Increase cleaning. Increase facility cleaning and disinfection to limit exposure to COVID-19, especially on high-touch surfaces (e.g., door handles);
Develop disinfection protocols. Establish procedures for disinfection in accordance with CDC guidance if it is suspected or confirmed that an employee, visitor, or customer has a known case of COVID-19;
Use proper disinfectants. Use EPA-approved disinfectants that are expected to be effective against COVID-19 and follow the manufacturer's instructions for use, such as concentration, application method, and contact time; and
Allow remote work. Create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.

Health Surveillance:

Employers must:

Conduct daily self-screening. This is required for all employees or contractors entering the workplace, including, at a minimum, a questionnaire covering symptoms and suspected or confirmed exposure to people with COVID-19 and, if possible, a temperature screening;
Require symptom reporting. Direct employees to promptly report any signs and symptoms of COVID-19 to the employer before or during the work shift; and
Isolate. Physically isolate any employees known or suspected to have COVID-19 from the remainder of the workforce.

Known or suspected cases:

When an employer learns that an employee, visitor, or customer has COVID-19, the employer must:

Immediately notify the local public health department; and
Within 24 hours of learning of the case, the employer must also notify any co-workers, contractors, or suppliers who may have come into contact with the person with COVID-19.

The employer must allow employees with a known or suspected case of COVID-19 to return to the workplace only after they are no longer infectious according to the latest guidelines from the CDC and they are released from any quarantine or isolation order by the local public health department.

Workplace Controls:

Employers must:

Designate a safety coordinator(s). The safety coordinator(s) must implement, monitor, and report on the COVID-19 control strategies developed under these rules and must remain on-site at all times when employees are present;
Display health and safety posters. The posters must encourage staying away from the workplace when sick, cough and sneeze etiquette, and proper hand hygiene practices;
Ensure social distancing. Keep everyone on the worksite premises at least six feet from one another to the maximum extent possible. To reduce congestion, use ground markings, signs, and physical barriers, as appropriate to the worksite;
Provide face covering. Provide non-medical grade face coverings to employees at no cost to the employee;
Require employees wear face coverings. Require that face coverings be worn when employees can't consistently maintain six feet of separation from other individuals in the workplace. Face coverings are also required in shared spaces, including during in-person meetings and in restrooms and hallways; and
Consider face shields. Consider face shields when employees can't consistently maintain three feet of separation from other individuals in the workplace.

Personal Protective Equipment:

Employers must:

Provide PPE. Provide employees with the types of PPE for protection from COVID-19 appropriate to the exposure risk associated with the job, including respirators if necessary;
Follow government guidance. Follow current CDC and OSHA guidance for PPE; and
Ensure proper use. Ensure that the PPE is properly fitted and worn, used consistently, regularly inspected, maintained, and replaced, as necessary, and properly removed, cleaned, and stored or disposed of to avoid contamination of self, others, or the work environment.

Training:

Employers must provide training to employees on COVID-19. Any communications and training on COVID-19 must be provided in the primary languages common in the workplace.

The training must cover:

Workplace infection control practices;
The proper use of PPE;
Steps the employees must take to notify the business of any symptoms of COVID-19 or a suspected or confirmed diagnosis of COVID-19; and
How to report unsafe working conditions.

Employers must provide updated training if the employer changes its preparedness and response plan or new information becomes available about the transmission or diagnosis of COVID-19.

Recordkeeping Requirements:

Employers must maintain records of all the following for at least one year:

Training;
Screening protocols;
A record of screening for each employee or visitor entering the workplace; and
Notices provided to local health departments and those who may have come into contact with an infected person.

Industry-Specific Requirements:

The rule includes industry-specific requirements. For details, see the text of the rule.

Compliance Recommendations:

Michigan employers should read the rule in full and implement appropriate workplace measures to ensure compliance.

Posted on April 9, 2020

Michigan Governor Gretchen Whitmer has issued an executive order that expands protections for certain workers impacted by the coronavirus of 2019 (COVID-19). The executive order is effective immediately and will continue until the end of the states of emergency and disaster.

Background:

The Michigan Paid Medical Leave Act requires employers with 50 or more employees to provide paid leave to employees for the following reasons:

The employee's or a family member's mental or physical illness, injury, or health condition;
The employee's or a family member's medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition, or preventive medical care;
For medical care, counseling, obtaining legal services, or participating in a civil or criminal proceeding when the employee or a family member is a victim of domestic violence or sexual assault; and
The closure of the employee's primary workplace or their child's school or place of care due to a public health emergency, or when a health care provider has determined that the employee's or a family member's presence in the community would jeopardize the health of others.

Executive Order 2020-36:

Guidelines:

The executive order recommends that all individuals who test positive for COVID-19 or who display one or more of the principal symptoms (fever, atypical cough, or atypical shortness of breath) should remain home until:

Three days have passed since their symptoms have resolved; and
Seven days have passed since their symptoms first appeared or since they were swabbed for the test that yielded the positive result.

With limited exceptions (such as, healthcare professionals), the order also recommends that those who have had close contact with an individual who tests positive for COVID-19 or with an individual who displays one or more of the principal symptoms of COVID-19 should remain home until either:

14 days have passed since the last close contact with the sick or symptomatic individual; or
The symptomatic individual receives a negative COVID-19 test.

Employee Protections (applies to all employees):

The executive order addresses the following:

Prohibits employers from taking adverse action against an employee for staying home from work while following the guidelines described above. Note: An individual who returns to work prior to the periods specified in the guidelines isn't entitled to this protection.
Requires employers to treat an employee following the guidelines as if they were taking leave under the Paid Medical Leave Act, even if the employer has fewer than 50 employees.
To the extent that the employee has no paid leave, the leave may be unpaid.
The length of leave, whether paid or unpaid, must be extended for as long as the employee remains away from work under the guidelines.
Prohibits employers from taking adverse action against an employee for failing to comply with a requirement to document that the employee or the individual with whom the employee has had close contact has one or more of the principal symptoms of COVID-19.

Compliance Recommendations:

Employers with employees working in Michigan should review their policies and practices to ensure compliance with the executive order.

Note: On March 18, 2020, the United States enacted the Families First Coronavirus Response Act (FFCRA), which requires employers to provide paid leave to certain employees impacted by COVID-19. The law took effect on April 1, 2020. FFCRA leave is in addition to other leave provided under federal, state, or local law; an applicable collective bargaining agreement; or the employer's existing company policy.

Minnesota

Posted on January 14, 2022

Minnesota OSHA (MNOSHA) has announced that it will suspend enforcement of the state's emergency temporary standard (ETS), which requires that employers with 100 or more employees ensure that employees either be vaccinated against COVID-19 or produce a weekly negative test.

The Details:

The state's ETS is identical to a federal ETS issued in late 2021. On January 13, 2022, the U.S. Supreme Court blocked the federal government from enforcing the federal ETS pending future court proceedings. Shortly after the U.S. Supreme Court's decision was released, MNOSHA announced it will suspend enforcement of the state ETS pending future developments.

Next Steps:

If you have 100 or more employees and fall within the requirements of the state ETS, watch for developments closely. For now, MNSOHA won't enforce the state ETS but strongly encourages employers to continue to implement the requirements of the ETS.

Posted on January 12, 2022

Minnesota OSHA (MNOSHA) has adopted the federal emergency temporary standard (ETS) requiring that employers with 100 or more employees ensure that employees either be vaccinated against COVID-19 or produce a weekly negative test. The adoption of the ETS will remain in effect for up to six months, unless extended.

The Details:

Background:

On November 4, 2021, the U.S. Occupational Safety and Health Administration (federal OSHA) issued an ETS applicable to businesses with 100 or more employees requiring, among other things, that employees either be vaccinated against COVID-19 or produce a weekly negative test (and wear a mask). The ETS was stayed nationwide on November 12, 2021, by order of the U.S. Court of Appeals for the Fifth Circuit. The various legal challenges to the ETS were subsequently consolidated in the U.S. Court of Appeals for the Sixth Circuit for further proceedings. On December 17, 2021, the Sixth Circuit dissolved the stay, allowing federal OSHA to resume efforts to implement the ETS. The U.S. Supreme Court heard oral arguments on the appeal of that decision on January 7, 2022.

MNOSHA Adopts ETS:

On January 3, 2022, MNOSHA adopted an ETS that is identical to federal OSHA's. The state's ETS applies to all Minnesota employers with 100 or more employees, except for:

Employees who don't report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.
Workplaces covered under a separate federal rule for federal contractors and subcontractors.
Settings that are covered under a separate federal rule for healthcare facilities that participate in Medicare and Medicaid programs.

MNOSHA has announced that it will take a similar enforcement strategy to federal OSHA's, which said it wouldn't take action against businesses for noncompliance with any portion of the ETS before January 10, 2022, and specifically with respect to the ETS's testing requirements, before February 9, 2022, "so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard."

Next Steps:

If you have 100 or more employees and fall within the requirements of the state ETS, ensure compliance with it by no later than the deadlines provided by MNOSHA.

If you operate in a local jurisdiction that prohibits or restricts vaccination or face covering requirements, discuss planning and preparation options with legal counsel.
For a more detailed review of the various requirements of the federal ETS, please see OSHA Releases COVID-19 Vaccination and Testing Emergency Rule, available here.
Watch for developments closely to determine if/how MNOSHA responds to the forthcoming U.S. Supreme Court decision.

Posted on December 12, 2020

Minnesota has approved a stimulus package that will provide relief payments to certain businesses impacted by the COVID-19 pandemic and the subsequent executive orders issued by the governor in response to it.

The stimulus package includes:

$88 million in direct payments to restaurants, bars, gyms, and certain other businesses that saw at least a 30 percent drop in revenue. The payments will be based on the employer's workforce size, with a maximum payment of $45,000.
$14 million for grants to movie theaters and convention centers.
$114.8 million for counties to distribute to businesses, which must use the grants for operations expenses incurred during the COVID-19 pandemic.

Compliance Recommendations:

Minnesota employers should read the text of the stimulus package to see if they may be eligible for the direct payments and/or grants.

Montana

Posted on May 7, 2021

Montana has enacted legislation (House Bill 702) that prevents employers from discriminating against a person based on their vaccination status or possessing an immunity passport. House Bill 702 is effective immediately.

Prohibited Actions:

House Bill 702 prohibits employers from refusing employment to an individual or discriminating against an employee in compensation or other terms, conditions, or privileges of employment based on their vaccination status or whether they have an immunity passport.

It is also an unlawful discriminatory practice to refuse or deny the following based on vaccination status:

Local or state services;
Goods;
Facilities;
Licensing;
Educational opportunities; and
Health care access.

Note: Exceptions exist for certain industries. See the text of the law for further details.

A person, governmental entity, or an employer does not unlawfully discriminate under this section if they recommend that an employee receive a vaccine.

"Immunity passport" means a document, digital record, or software application indicating that a person is immune to a disease, either through vaccination or infection and recovery.

"Vaccination status" means an indication of whether a person has received one or more doses of a vaccine.

Compliance Recommendations:

Montana employers should review their policies and practices to comply with House Bill 702.

Nevada

Posted on June 22, 2021

Nevada has enacted legislation (Senate Bill 209) that amends its paid leave law to require paid leave for COVID-19 vaccination. Senate Bill 209 is effective immediately and is set to expire on December 31, 2023.

Background:

Currently, Nevada employers with 50 or more employees that have been in business for at least two years must provide employees with paid leave that the employee may use for any purpose. Covered employees accrue0.01923 hours of paid leave for each hour worked, which they may use for any purpose.

Senate Bill 209 requires these employers to provide up to four hours of paid leave for COVID-19 vaccination until December 31, 2023.

Senate Bill 209:

Covered employers must provide two consecutive hours of paid leave for a one-dose COVID-19 vaccine or two consecutive hours of paid leave per absence (a total of 4 hours of paid leave) for a two-dose vaccine.

Note: Employers that provide an on-premises vaccination clinic where an employee can receive a vaccine during regular work hours are not required to provide such leave.

Employee Notice:

Employees must provide an employer with at least 12 hours of notice before using paid leave.

Employer Notice:

Employers will be required to post a bulletin of employee rights in a conspicuous location in each workplace they maintain. The Nevada Labor Commissioner will prepare the bulletin and post it to its website.

Recordkeeping:

Employers are required to maintain a record of the receipt or the accrual and use of paid vaccine leave for each employee for at least one year. They must also, upon request, make those records available for inspection by the Labor Commissioner.

Employer Restrictions:

Senate Bill 209 prohibits an employer from:

Denying an employee the right to use lawful paid leave;
Requiring an employee to find a replacement as a condition of using the paid leave;
Retaliating or taking any adverse action against an employee for using their paid leave.

Compliance Recommendations:

Covered employers should review their policies and procedures to ensure compliance with Senate Bill 209.

Posted on April 30, 2021

The Nevada Office of the Commissioner of Labor issued guidance on whether employees should receive pay for the time they spend receiving COVID-19 vaccinations.

The Guidance:

The guidance follows the Fair Labor Standards Act, which states that if an employer requires an employee to get vaccinated, then the time an employee spends obtaining the vaccine, including during non-working hours, is likely to be compensable.

However, if an employer makes the vaccine optional or an employee receives the vaccine without a work-related requirement, the employer should allow the employee to use paid leave, regular leave, or flex time to obtain the COVID-19 vaccine.

Compliance Recommendations:

Employers in Nevada should review their policies, forms, practices, and supervisor training to ensure compliance with the state's guidance.

New Jersey

Posted on April 15, 2021

The New Jersey Department of Labor (NJDOL) has released guidance clarifying the circumstances in which employers may require their employees to receive the COVID-19 vaccination prior to returning to work.

April 2021 Guidance:

The guidance says employers may require that their employees receive COVID-19 vaccinations to return to the workplace, except under the following circumstances:

The employee has a disability or a sincerely held religious belief, practice, or observance that precludes them being vaccinated; or
The employee's physician has advised otherwise due to pregnancy, or need to breastfeed.

Reasonable Accommodation:

An employer must provide a reasonable accommodation from a mandatory vaccine policy for any of the reasons listed above unless doing so would impose an undue burden on their operations.

Employers must consider the safety of themselves, coworkers, clients, and customers when evaluating whether a potential accommodation would be reasonable. They must base all safety decisions regarding any potential safety hazard on objective, scientific evidence and not unfounded assumptions or stereotypes.

Reasonable accommodation may include:

Allowing an employee to continue to work remotely or otherwise work in a manner that would reduce or eliminate the risk of harm to other employees or the public; or
Providing an employee with personal protective equipment that sufficiently mitigates the employee's risk of COVID-19 transmission and exposure.

Compliance Recommendations:

New Jersey employers should review their policies and practices to ensure adherence to the new guidance.

Posted on November 2, 2020

New Jersey has enacted Executive Order 192, which establishes specific health and safety measures for employers during COVID-19. Executive Order 192 takes effect November 5, 2020.

Health & Safety Requirements:

Under the Order, employers must adhere to the following health and safety protocols:

Require social distancing. Individuals at the worksite must maintain at least six feet of distance from one another to the maximum extent possible, including but not limited to during worksite meetings, orientations and similar activities that would traditionally require individuals to be present in a single room or space, in common areas such as restrooms and breakrooms, and when individuals are entering and exiting the workplace. When the nature of an employee's work or the work area does not allow for six feet of distance, employers must ensure that employees wear a mask and install physical barriers between workstations wherever possible.
Provide sanitization. Employers must provide sanitization materials, such as hand sanitizer with at least 60% alcohol and EPA approved sanitizing wipes at no cost to employees and visitors.
Require face coverings for customers and visitors. Customers and visitors must wear a cloth or disposable face mask, except when the individual is under two years of age or when it's impractical for an individual to do so. Employers may deny entry to the worksite to any customer or visitor who declines to wear a face mask, except when doing so would violate state or federal law. When a customer or visitor cannot wear a mask because of a disability, an employer may be required to provide them with a reasonable accommodation.
Require face coverings for employees. Employers must require employees to wear a face covering and provide such coverings at the employer's expense. Employers may permit employees to remove face masks when the employees are situated at their workstations and are more than six feet from other individuals, or when an individual is alone in a walled office. Employers may deny entry to the worksite to any employee who declines to wear a face mask, except when doing so would violate state or federal law. When an employee cannot wear a mask because of a disability, an employer may be required to provide the employee with a reasonable accommodation. An employer may require an employee to produce medical documentation to support a claim that they are unable to wear a face mask because of a disability.
Enforce hygiene standards. Ensure that employees practice regular hand hygiene, particularly when interacting with the public, and provide employees break time for repeated handwashing throughout the workday and access to adequate hand washing facilities. Employers may adopt policies that require employees to wear gloves in addition to regular hand hygiene. Where an employer requires its employees to wear gloves while at the worksite, the employer must provide such gloves to employees.
Clean and disinfect. Routinely clean and disinfect high-touch areas, such as restrooms, handrails, door knobs, and safety equipment in accordance with Department of Health (DOH) and Center for Disease Control (CDC) guidelines.
Conduct daily health checks. Prior to each shift, employers are required to conduct daily health checks of employees, such as temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires consistent with CDC guidance.
Send symptomatic employees home. Employers must immediately separate and send home employees who appear to have COVID-19 symptoms, as defined by the CDC, upon arrival at work or who become sick during the day.
Notify employees exposed to COVID-19. Employers are required to immediately notify all employees of any known exposure to COVID-19 consistent with confidentiality requirements of the Americans with Disabilities Act (ADA) and other applicable laws.

Training Requirements:

The New Jersey Department of Labor & Workforce Development (DOLWD) is directed to provide compliance and safety training for employers and employees, focused at least in part on the health and safety protocols outlined in the Order.

Enforcement:

The DOLWD is authorized to establish an intake mechanism to receive complaints from individuals working in the state and establish a process to address such complaints. Such a process, at minimum, must provide employers with an opportunity to correct the alleged or confirmed deficiency.

Compliance Recommendation:

New Jersey employers should read Executive Order 192 in full and ensure employees receive training on all workplace safety protocols.

Posted on April 28, 2020

New Jersey has enacted legislation (Senate Bill 2374) that amends the state's Family Leave Act (NJFLA) and the Temporary Disability Insurance (TDI) program. Senate Bill 2374 takes effect immediately and is retroactive to March 25, 2020.

Background:

In March 2020, New Jersey enacted SB 2304 to expand its earned sick leave, family leave act, and temporary disability insurance rules during a state of emergency in order to cover absences related to epidemics such as COVID-19.

Senate Bill 2374:

Senate Bill 2374 further expands on the NJFLA and TDI program as follows:

NJFLA Amendments:

Senate Bill 2374 amends the NJFLA to allow employees to use family leave in the event of a state of emergency or an order by the Governor or public health authorities that results in:

In-home care or treatment of a child whose school or place of care has been closed;
Mandatory quarantine because the presence in the community of a family member with known or suspected exposure would jeopardize the health of others; or
The recommendation of a health care provider or public health authority that a family member voluntarily undergo self-quarantine as a result of known or suspected exposure.

Certification:

The employer may request certification from the employee seeking leave for the above reasons, including:

The date and reason of closure (for their child's school or place of care closing)
Date and anticipated length of the order (for a family member's mandatory quarantine)
The date and probable length of recommended quarantine and medical or other facts that prompted the recommendation (for the family member's voluntary self-quarantine)

Intermittent Leave:

The amendments allow a covered employee to use NJFLA for the above reasons intermittently, provided the employee gives advance notice and attempts to schedule the intermittent leave in a way that does not disrupt normal business operations. Additionally, if possible, the employee should provide the employer with a regular schedule of the day or days of the week on which the intermittent leave will be taken.

TDI Amendments:

Senate Bill 2374 makes temporary disability and family temporary disability funds available to employees who take leave for pandemic-related reasons (covered above). The amendment also eliminates the seven-day waiting periods for benefits related to the above reasons.

Compliance Recommendations:

New Jersey employers should review their policies, forms, practices, and supervisor training to ensure compliance with Senate Bill 2374.

Posted on March 31, 2020

New Jersey has enacted legislation (SB 2304) to expand its earned sick leave, family leave act, and temporary disability insurance rules during a state of emergency.

Senate Bill 2304:

The expansions under Senate Bill 2304 are covered below.

Earned Sick Leave Law Expansion:

SB 2304 expands New Jersey's earned sick leave law to allow an employee to take leave due to an epidemic-related state of emergency declared by the Governor, a health official acting to contain a disease, or a determination by a health care provider, the Commissioner of Health or other public health authority that the employee's presence in the community, or the presence of an employee's family member in need of care, would "jeopardize the health of others."

Family Leave Act Expansion:

SB 2304 also amends the New Jersey Family Leave Act (NJFLA), which provides unpaid, job protected leave in the event an employee needs to care for a family member with a serious health condition (among other reasons for use). The NJFLA applies to employers with 30 or more employees and provides 12 weeks of unpaid, job-protected leave in a 24-month period.

SB 2304 expands the definition of "serious health condition" during a state of emergency to include an illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease, which requires in-home care or treatment of an employee's family member.

The amendments also restrict an employer's ability to exercise the highly compensated exception (which ordinarily allows leave to be denied to certain highly compensated individuals to prevent substantial economic injury to the company) and require job reinstatement rights to individuals who take such leave during an epidemic.

Temporary Disability Insurance (TDI) Expansion:

The definition of a serious health condition under New Jersey's Family Leave Insurance and TDI is also amended to be consistent with the amended definition under the NJFLA, covered above. Additionally, the one-week waiting period for TDI benefits is removed for illnesses caused by an epidemic.

Compliance Recommendations:

New Jersey employers should review their policies, forms, practices, and supervisor training to ensure compliance with SB 2304.

Posted on March 30, 2020

New Jersey has enacted legislation (Assembly Bill 3848) to prohibit employers from retaliating against an employee for taking time off due to illness during the COVID-19 outbreak.

Assembly Bill A3848:

During the COVID-19 outbreak, an employer may not terminate or otherwise penalize an employee if: the employee requests or takes time off from work based on the written or electronically transmitted recommendation of a medical professional to do so for a specific duration because the employee has, or is likely to have, an infectious disease, which may infect others at the employee's workplace.

At the conclusion of leave, an employer may not refuse to reinstate the employee to the position held when the leave began with the same seniority, status, employment benefits, pay or other terms and conditions of employment.

Enforcement:

Employers found in violation of the law must reinstate the employee to the position previously held and may be subject to a penalty of $2,500 for each violation.

Compliance Recommendations:

New Jersey employers should review their policies and procedures, and train supervisors to ensure compliance with Assembly Bill 3848.

Posted on October 15, 2020

New Jersey has enacted legislation (Senate Bill S2380) that adds benefit protections for essential workers. The law is retroactive to March 9, 2020, and extends for the duration of the public health emergency declared under Executive Order 103.

Overview:

Essential workers who test positive for COVID-19 during the public health emergency are presumed to have contracted the virus at work. This means that covered workers would be entitled to workers' compensation, ordinary and accidental disability retirement, and any other benefits required by law to individuals suffering injury or illness during their employment.

Essential Employees:

An essential employee is an employee who, during a state of emergency:

Is a public safety worker, first responder, or other emergency responder;
Provides medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in health care facilities, residential facilities, or homes;
Performs functions which involve physical proximity to members of the public and are essential to the public's health, safety, and welfare, including transportation services, hotel, and other residential services, financial services, and the production, preparation, storage, sale, and distribution of essential goods such as food, beverages, medicine, fuel, and supplies for conducting essential business and work at home; or
Is deemed essential by the public authority declaring a state of emergency.

Compliance Recommendations:

New Jersey employers should review any workers' compensation claims related to COVID-19 that have been filed since March 9, 2020 to determine if they are now compensable. Workers' compensation claims paid under these circumstances will not affect the insurance premium rate for the employer's workers' compensation policy.

New York

The New York State Fiscal Year 2025 Budget will end the state’s paid COVID-19 quarantine and isolation leave requirement. The changes will take effect on July 31, 2025.

The Details

New York employees will no longer be entitled to paid time off COVID-19 leave for a mandatory or precautionary order of quarantine or isolation due to COVID-19. The changes under the New York State 2025 Budget take effect on July 31, 2025.

Note: Employees needing time off for COVID-19-related reasons may use other applicable paid leave, such as New York Paid Sick Leave.

Next Steps

Employers in New York should review their policies, forms, practices and supervisor training to ensure compliance with the changes to COVID-19 laws under the New York State Fiscal Year 2025 Budget by July 31, 2025.

Updated on August 31, 2022

The State of New York enacted Senate Bill 2588-A, which granted employees paid time off to receive a COVID-19 vaccination. Senate Bill 2588-A was set to expire on December 31, 2022.

Update (August 2022): The State of New York enacted legislation (Assembly Bill 9513) that extends the end of the paid leave law from December 31, 2022 to December 31, 2023.

Guidance (March 2021):

The State of New York has released guidance on Senate Bill 2588-A in the form of frequently asked questions. Among other things, the guidance clarifies that employers are not required to provide this paid leave retroactively for employees who obtained the vaccine on or before March 12, 2021. For further details, see the FAQs here.

Senate Bill 2588-A:

Under Senate Bill2588-A, all New York employees are entitled to up to four hours of paid leave per injection. Employers must provide the leave at the employee's regular rate of pay, and employers are prohibited from deducting this leave from any other earned or accrued time.

Compliance Recommendations:

New York employers should review their policies, forms, practices, and supervisor training to ensure compliance with the law.

Posted on December 13, 2021

Governor Kathy Hochul of New York has announced a temporary mask mandate for businesses and venues, unless they implement a vaccine requirement. The mandate will be in effect from December 13, 2021 until January 15, 2022, unless extended.

The Details:

Starting December 13, 2021, New York employers and venues must require customers and staff aged two years and older to always wear masks in indoor public places unless the businesses implement the proof of fully being vaccinated requirement.

Proof of Full Vaccination:

Businesses and venues that implement a proof of vaccination requirement can accept:

An Excelsior Pass or Excelsior Pass Plus (Parents and guardians can retrieve and store this for children or minors under legal guardianship);
A SMART Health Cards issued outside of New York State; or
A CDC Vaccination Card.

Full vaccination is defined as 14 days past an individual's last vaccination dose in their initial vaccine series, including the second shot of a two-dose Pfizer-BioNTech or Moderna vaccine; or the one-shot Janssen/Johnson & Johnson vaccine. New York also accepts WHO-approved vaccines for these purposes.

Penalties:

Local health departments are tasked with enforcing these requirements. A violation may result in penalties such as a maximum fine of $1,000 per violation.

Next Steps:

New York Employers should consult legal counsel to discuss the impact of the temporary mandate on their vaccination policies and practices.

Updated on September 9, 2021

New York Governor Andrew Cuomo signed the New York Health and Essential Rights Act, or "the NY HERO Act" (the Act), into law on May 5, 2021. The Act adds workplace health and safety protections for airborne infectious diseases and requires employers to establish a health and safety plan.

Update September 2021: Governor Kathy Hochul announced that the New York State Commissioner of Health has designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health, effectively requiring New York employers to implement their workplace health and safety plans.

Update July 2021: Governor Andrew Cuomo signed Assembly Bill 7477, which, among other things, extends the deadline to August 5, 2021 for employers to adopt a disease prevention plan. Within 30 days of adopting a plan, employers must also provide written notification of the plan to employees. The NYDOL also posted its model standards and will continue to update its website as needed.

Health & Safety Plan:

By August 5, 2021, employers are required to create a health and safety plan. The state has published a model plan in English and has indicated a Spanish version will be published shortly. Employers must either adopt the model plan that is relevant to their industry or develop an alternate that meets or exceeds the minimum requirements set forth in the model standards. Employers weren't required to implement their plans until an airborne infectious disease was designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health. This designation was announced on September 6, 2021.

The model plan includes best practices related to:

Cleaning and disinfecting of shared equipment and common-use surfaces;
Face coverings;
Health screenings;
Personal protective equipment;
Hand hygiene;
Physical distancing protocols;
Engineering controls;
Enforcement responsibility;
Employee notice requirements;
Verbal review of standards, policies, and employee rights; and
Anti-retaliation provisions.

Note: The state also published industry-specific plans for the following industries: agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail.

Covered Workers:

The rules apply to all employees, including part-time workers, domestic workers, home care workers, and other temporary and seasonal workers. It also covers independent contractors and individuals who work for staffing agencies or who deliver goods or transport people at, to, or from the worksite on behalf of the employer.

Notice and Posting Requirements:

Within 30 days of adopting a disease prevention plan, employers must provide written notification of the plan to employees in writing, in English, and in the language identified by each employee as their primary language (provided there is a model plan developed in that specific language). For example, if the employer adopts a plan on August 3, 2021, they must provide the notice to employees by September 2, 2021. The plan must also be provided to employees at the time of hire, within 15 days after reopening after a period of closure due to airborne infectious disease, and must be made available upon request.

The plan must also be posted in a visible and prominent location within each website and included in the employee handbook if the employer provides their employees with an employee handbook.

Workplace Health and Safety Committees:

Beginning November 1, 2021, employers who employ at least 10 employees must allow employees to establish a joint employer-employee workplace health and safety committee authorized to raise health and safety concerns and evaluate the worksite's health and safety policies. The committees must be comprised of at least two-thirds of non-supervisory employees, and non-supervisory employees must select the non-supervisory employees on the committees.

Employers are also required to allow these safety committee designees to attend training, without loss of pay, on the function of worker safety committees, their rights under the Act, and an introduction to occupational safety and health.

Authorized tasks:

Committee members are authorized to perform the following tasks, including but not limited to:

Raise health and safety concerns, hazards, complaints, and violations to their employer, that the employer must respond to;
Review any policy put in place at the worksite under the HERO Act and any provision of the workers' compensation law and provide feedback;
Review any policy their employer adopts in the workplace that is in response to a health or safety law, ordinance, rule, regulation, executive order, or another related directive;
Participate in any site visit by any governmental entity responsible for enforcing safety and health standards;
Review any report filed by the employer that relates to the health and safety of the workplace as required by law; and
Regularly schedule meetings during work hours at least once a quarter.

Employee Protections:

Employers are expressly prohibited from retaliating and discriminating against or threatening employees who exercise their rights under the Act. Employees are also protected if they:

Participate in workplace safety committees;
Refuse to work if, in good faith, they believe there's an unreasonable risk of exposure based on working conditions that are inconsistent with the HERO Act or other laws, rules, policies, or relevant government orders and they have notified their employer, and their employer failed to correct the conditions, or the employer had or should have had reason to know about the inconsistencies; or
Report violations or concerns to a state, local, or federal government entity, public officer, or elected official.

Compliance Recommendations:

New York employers should review Senate Bill S1034B as well as their policies, practices and training to ensure compliance. With the Commissioner of Health's recent designation, New York employers must now implement their infectious disease exposure prevention plan, follow all distribution and notice requirements, and include their plan in their employee handbook where applicable.

Updated on February 17, 2021

In March 2020, the State of New York enacted legislation (Senate Bill 8091) that provides paid or unpaid leave to employees subject to a quarantine or isolation order as a result of COVID-19. On February 2021, the state provided situational guidance for employees subject to multiple quarantine or isolation orders, for when an employee tests positive following their quarantine, and for when an employer mandates that an employee stay home due to potential exposure.

Background:

Senate Bill 8091 requires New York employers to provide leave to employees who are subject to a quarantine or isolation order as follows:

Impacted Employers:

Employer Size	Employer Requirements
10 or fewer employees with a net income less than one million dollars*	Provide employees with unpaid leave and job protection for the duration of the quarantine order and guarantee access to paid family leave and disability benefits (short-term disability), capped at $2,884.62 per week.
11-99 employees, or employers with 10 or fewer employees and a net income greater than one million dollars*	Provide at least five days of paid quarantine leave and job protection. After this leave is exhausted, the employee may apply for paid family leave and disability benefits, capped at $2,884.62 per week, for the duration of the quarantine order.
100 or More Employees	Provide employees with up to 14 days of paid quarantine leave and guarantee job protection for the duration of the quarantine order.

* Earned in the previous tax year.

Update February 2021:

The New York Department of Labor provided the following situational guidance:

Situation 1:

An employee who returns to work following a period of mandatory quarantine or isolation does not need to be tested before returning to work, except for nursing home staff. However, an employee who subsequently receives a positive COVID-19 test result must not report to work. In such cases, the employee will be subject to a mandatory isolation order from the New York Department of Health (DOH) and is entitled to quarantine leave, whether or not the employee already has received such leave for the first period of quarantine or isolation. The employee must submit documentation from a licensed medical provider or testing facility attesting that they tested positive for COVID-19, unless the positive result came from an employer-provided test.

Situation 2:

An employee who is subject to a quarantine or isolation order, but continues to test positive for COVID-19 at the end of their quarantine or isolation period must not report to work (though it's not recommended that an employee be tested in order to end isolation or quarantine). In such cases, the employee will be subject to a second mandatory isolation order from the DOH and is entitled to quarantine leave for the second period of isolation. The employee must submit documentation from a licensed medical provider or testing facility attesting that they tested positive for COVID-19 after completing the initial period of isolation, unless the positive result came from an employer-provided test.

Situation 3:

If an employer mandates that an employee who is not otherwise subject to a quarantine or isolation order to remain out of work due to potential exposure to COVID-19, the employer must continue to pay the employee at their regular rate of pay until the employer permits the employee to return to work or the employee becomes subject to a mandatory quarantine or isolation order. At that time, the employee must receive quarantine leave for the period of time the employee is subject to such an order.

Additional Information:

In no case does an employee qualify for quarantine leave for more than three orders of quarantine or isolation, and the second and third orders of quarantine or isolation must be based on a positive COVID-19 test. For more information, visit New York State's Department of Health and paid sick leave websites.

Job Protections:

Employees who return to work after a protected leave must be restored to the same pay, position of employment, and other terms and conditions of employment they had before taking their leave.

Employee Exemptions:

Senate Bill 8091 does not apply to quarantined or isolated employees who have returned to the U.S. after traveling to a country categorized as a level two or three by the Centers for Disease Control and Prevention (CDC) for non-work related reasons. For this exception to apply, the employee must have been made aware of this exception and of the CDC's warning.

Note: These employees are still eligible to use other accrued leave provided to them by their employer, after which the employee must receive unpaid sick leave until the end of any required or preventative order of quarantine or isolation.

Compliance Recommendations:

Employers in New York should review their policies, forms, practices, and supervisor training to ensure compliance with Senate Bill 8091 and subsequent guidance.

Posted on August 21, 2020

A federal district court judge in New York has struck down key regulations implementing the Families First Coronavirus Response Act (FFCRA).

Background:

On April 1, 2020, the Department of Labor (DOL) issued regulations that defined key terms and made important clarifications to the law, including the following:

Work-Availability Requirement: Entitled employees to FFCRA leave only if there was work available to them. For instance, if the employer sends employees home and stops paying them because of a lack of work, the employee wouldn't be eligible for FFCRA leave under the regulations;
Definition of Healthcare Provider: Defined healthcare provider as anyone employed at any doctor's office, hospital, health care center, clinic, postsecondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity;
Intermittent Leave: Allowed employees to take leave intermittently for certain qualifying reasons but only if the employer agrees to it;
Documentation: Required that prior to taking FFCRA leave, employees must submit certain documentation to the employer.

Shortly after the regulations were issued, the attorney general for the state of New York filed a lawsuit challenging each of the four provisions above, arguing that they unduly restrict FFCRA leave.

New York District Court Ruling:

Work-Availability Requirement:

On August 3, 2020, a federal district court judge in New York struck down the regulations' work-availability requirement, finding that the explanation the DOL provided in the regulations for the requirement is insufficient.

Definition of Healthcare Provider:

The judge also struck down the regulations' definition of healthcare provider as overly broad because it hinges entirely on the identity of the employer and includes employees whose roles have no connection with providing healthcare services. For instance, an English professor, librarian, or cafeteria manager at a university with a medical school could all be considered "healthcare providers" under the definition.

Intermittent Leave:

Documentation:

The judge struck down the requirement that documentation be provided prior to the employee taking the leave.

Remaining Regulations Not Impacted:

All other provisions of the FFCRA regulations stand.

Compliance Recommendations:

The judge's ruling creates confusion about how to apply the rules for paid leave under the FFCRA. For instance, it's unclear whether the ruling applies to just employers in the Southern District of New York (the counties of New York, Bronx, Westchester, Rockland, Putnam, Orange, Dutchess, and Sullivan) or employers nationally or how employers should handle leave that was previously denied based on the struck-down regulations. The ruling itself doesn't address these issues, and the DOL hasn't responded to the ruling yet. All employers should monitor the situation closely and discuss the implications of the ruling with their legal counsel.

Posted on June 3, 2020

The state of New York has launched a loan program (New York Forward Loan Fund) to help small businesses that have been impacted by the COVID-19 pandemic.

The New York Forward Loan Fund will provide loans for working capital. The loans will have an interest rate of 3 percent and a term of five years, with monthly payments limited to interest during the first 12 months. The program has an initial funding of $100 million.

Loan Amount:

For small businesses, the maximum loan amount is the lesser of: (a) $100,000; or (b) up to 100% of average monthly revenues in a three-month period prior to the COVID-19 outbreak. The three-month period can be any three-month period from 2019 or January to March 2020.

Eligibility:

To be eligible for a loan under the program, a small business must meet the following requirements:

Employ 20 or fewer full-time equivalent (FTE) employees;
Have gross revenues of less than $3 million per year;
Did not receive a loan from either SBA Paycheck Protection Program (PPP) or SBA Economic Injury Disaster Loan (EIDL) for COVID-19 in 2020;
Suffered a direct economic hardship as a result of COVID-19 related social distancing policies and stay-at-home orders that have materially impacted their operations;
Been in business for at least one year as of the date of the loan application; and
Located in the state of New York.

The following businesses are ineligible for loans under the program:

Corporate-owned franchises;
Not-for-profit social clubs;
Branch banks;
Pay day loan stores;
Pawn shops;
Astrology, palm reading;
Liquor stores, night clubs;
Adult bookstores, massage parlors, strip clubs;
Track waging facilities;
Trailer-storage yards;
Marijuana dispensaries.

Applying for a Loan:

Small businesses must complete a pre-application and then a participating lender will contact the applicant to collect information and finalize the application review process. Pre-applications will be reviewed on a rolling basis as regions and industries are phased to reopen.

More Information:

More information on the New York Forward Loan Fund, including the pre-application, can be found here.

Posted on April 29, 2020

The New York State Department of Labor (NYSDOL) has adopted an emergency rule that requires employers to provide an unemployment insurance notice to employees whose work schedule and/or employment status is impacted by COVID-19.

The following information must be provided:

NYS Employer Registration Number
Federal Employer Identification Number
Employer Name
Employer Address

All relevant employees, including those who have already been impacted by COVID-19, must be promptly provided with this information. The NYSDOL recommends employers use Form IA 12.3 to help employees expedite the completion of their unemployment applications.

Compliance Recommendations:

Employers with employees in New York must ensure compliance with the new notification requirements.

New York City

Posted on January 5, 2022

New York City has amended its Earned Safe and Sick Time Act (Int. 2448-2021) to allow employees to use paid sick time for COVID-19 child vaccinations. The amendments are retroactive to November 2, 2021, and are set to expire on December 31, 2022.

The Details:

Employers in New York City must provide an employee who is a parent of a child under the age of 18 or the parent of an older child who is incapable of self-care due to a mental or physical disability four hours of paid sick leave to accompany a child to receive a COVID-19 vaccine injection or to care for a child experiencing temporary side effects from a COVID-19 vaccine injection. This time must be granted per vaccine injection and per child.

Note: A parent is defined as biological, foster, step- or adoptive parent, or a legal guardian of a person, or a person who currently stands in place of a parent.

Pay Requirement:

Under the law, employers must pay employees their regular rate of pay (not including tip credits or allowances) for COVID-19 child vaccination time by the next regular payday after an employee uses the COVID-19 vaccination time.

Retroactivity Requirements:

The law is also retroactive for employees who took unpaid time off between November 2, 2021, and December 24, 2021. Employers should compensate their employees for the time spent on any applicable COVID-19 child vaccination no later than the payday for the next regular payroll period beginning after December 24, 2021.

Employee Notification:

Under Int. 2448-2021, employers may require reasonable advance notice, up to seven days prior to using COVID-19 child vaccination time, when the need is foreseeable. Otherwise, employers may require an employee to provide notice as soon as practicable.

Reasonable Documentation:

Employers can also require employees who use Child COVID-19 Vaccination time to provide reasonable documentation within seven days that shows the employee's child received a COVID-19 vaccination.

Prohibited Employers Actions:

The law bans employers from requiring an employee to work extra hours or find a replacement employee due to an absence taken for COVID-19 child vaccination time or from taking adverse actions against employees that use COVID-19 child vaccination time or exercise their rights under Int. 2448-2021.

Enforcement:

An employer who fails to comply could face penalties equal to the greater of three times the wages they should have paid or $250 for each instance they unlawfully compensated an employee for COVID-19 child vaccination time. Employers may also face penalties of $500 for each instance of COVID-19 child vaccination time that they unlawfully deny or charge against an employee's accrued paid safe and sick time.

The law also includes a 60-day phase-in period during which the Department of Consumer and Worker Protection will provide a written notice to non-compliant employers. Non-compliant employers will then have 15 days to ensure compliance before facing penalties.

Next Steps:

New York employers should review their time-off policies, time and attendance records, forms, and practices. They should also train their supervisors to ensure compliance with Int. 2448-2021 and refer to legal counsel with implementation inquiries.

Posted on December 28, 2021

New York City has enacted an Order that establishes worker COVID-19 vaccination requirements, creates recordkeeping obligations, and includes a posting requirement. The Order took effect on December 27, 2021.

The Details:

All private-sector employers in New York City must verify that their employees are vaccinated against COVID-19.

Covered Workers:

All workers in New York City that perform in-person work or interact with the public while conducting business must show proof that they received at least one dose of a COVID-19 vaccine, starting December 27, 2021. This includes requiring non-employee workers, such as contractors, to provide vaccination proof to their employers.

Note: The Order does not apply to covered entities or individuals that are already subject to another Order of the Commissioner of the Department, Board of Health, the Mayor, or a State or federal entity that requires them to maintain or provide proof of full vaccination. Entities covered by the OSHA ETS rule that allows either employee vaccination or testing must still comply with this order and require workers to be vaccinated if they do not have a reasonable accommodation.

Workplace Vaccination Requirement:

Workers in New York City that perform in-person work or interact with the public while conducting business must show proof that they received at least one dose of a COVID-19 vaccine, starting December 27, 2021. After which, workers who received a first dose of a two-dose vaccine will have 45 days to show proof of their second dose.

Under the Order, businesses may request that a contractor's employer confirm proof of vaccination. Those that do so must keep a log of the requests and confirmations.

Note Workers are prohibited from submitting a weekly negative COVID-19 test as an alternative to getting vaccinated.

Prohibited Actions:

Businesses are prohibited from allowing an unvaccinated worker to come to the workplace. This includes a vehicle if an employee works in the presence of at least one other person.

Verifying Worker Vaccinations:

Employers must verify each worker's proof of vaccination. This may be done using the proofs of vaccination that are accepted for Key to NYC(A photo or hard copy of a CDC vaccination card, NYC COVID Safe App, New York State Excelsior Pass, CLEAR's Digital Vaccine Card, CLEAR Health Pass, Official Vaccine Record, or a photo or hard copy of the official vaccination record of a vaccine administered outside the U.S. for one of the following vaccines: AstroZeneca/SK Bioscience, Serum Institute of India/COVISHIELD and Vaxzevria, Sinopharm, or Sinovac).

Employers may verify an employee's proof of COVID-19 vaccination by either:

Having a copy of a worker's proof of vaccination or a record of reasonable accommodation with supporting documentation;
Checking each worker's proof of vaccination before they enter the workplace each day and keeping a record of each verification; or
·Creating a paper or electronic record for each worker that includes the worker's name, whether the worker is fully vaccinated, and a record of reasonable accommodation with supporting documentation. The record for workers who submitted proof of their first dose must also contain the date by which the employee can provide proof of a second dose (no later than 45 days after submitting proof of the first dose).

Recordkeeping Requirement:

Employers must treat all records that are created or maintained as confidential and be prepared to make their records available for inspection, as required by law.

Notice Requirement:

Employers must complete and post in a public place a certificate that affirms they are in compliance with the Order. This must be done by December 27, 2021.

Exceptions:

The Order does not require employers to collect proof of COVID-19 vaccination for people that:

Work alone (at home or otherwise) and who do not have in-person contact with co-workers or others while conducting business;
Enter the workplace briefly for a limited purpose (for example: using the restroom);
Are non-NYC resident performing artists, college or professional athletes, and anyone who accompanies them; or
Have requested reasonable accommodations for either medical or religious reasons.

Reasonable Accommodation:

Workers who have a sincerely held religious belief (not a social or political belief) or a medical condition that prevents them from being vaccination may apply for a reasonable accommodation. Workers who request such an accommodation must do so by December 27, 2021. While a reasonable accommodation request is pending, employers may permit workers to continue coming into the workplace.

New York City published checklists to guide employers in evaluating requests for reasonable accommodations, which can be found here. New York City has stated that employers who complete checklists to evaluate accommodation requests should maintain copies to serve as a record for any exemptions or accommodations that are granted.

Note: With regard to religious exemption requests, New York City published a form that includes questions an employer may ask of employees to determine the sincerity of their religious accommodation request. Employers should review the questions included on the form with their legal counsel to ensure they comply with other antidiscrimination laws that may apply to the employer, such as Title VII and the New York State Human Rights Law.

Penalties:

Employers who refuse to comply may be subject to a fine of $1,000 and escalating penalties thereafter if the violations persist.

Next Steps:

New York City employers should consult with legal counsel to discuss the impact of the Order on their vaccination policies and practices and review the FAQs sheet provided by the City.

For further help with the Order, small businesses may call the NYC Department of Small Business Services hotline (888-727-4692) or visit COVID-19 Commissioner Orders and Advisories to review existing vaccine requirements that may impact their business or employees.

Posted on August 20, 2021

New York City Mayor, Bill DeBlasio, has signed an Order (Emergency Executive Order 225) that requires businesses to ensure that individuals are vaccinated before allowing them on the premises. The Order is effective immediately.

Covered Employers:

The Order covers indoor businesses that have any part of a covered premises with a roof or overhang that is enclosed by at least three walls. This includes, but is not limited to indoor:

Dining facilities, such as restaurants, catering halls, event spaces, hotel banquet rooms, bars, nightclubs, cafeterias, grocery stores, and coffee shops;
Fitness, such as gyms, fitness centers, classes, pools, and studios; or
Entertainment, such as movie theaters, music venues, museums and galleries, aquariums and zoos, and professional sports arenas.

Note: The Order does not apply if there is adequate ventilation to allow for air circulation or the structure is on a sidewalk or road that is entirely open on the side facing the sidewalk.

See the Order for all covered businesses and exceptions.

Vaccination Check Requirements:

Covered employers must check that everyone who is 12 or older, and wishes to enter the premises, has received at least one dose of a COVID-19 vaccine. Employers are also are prohibited from allowing a full or part-time employee, contractor, intern, patron, or volunteer to enter their premises without displaying proof of vaccination and identification bearing the same identifying information as the proof of vaccination.

Employers who do not comply with the Order may face penalties starting September 13, 2021.

Proof of Vaccination:

Employers may consider the following as proof of vaccination:

The NYC COVID Safe Pass: Android | iOS, a New York State Excelsior Pass, a CDC Vaccination Card, an NYC Vaccination Record or an official immunization record from where the vaccine was administered (or a digital or physical photo of such).

International Vaccination Requirements:

Employers must check an official immunization record for individuals who received the vaccine outside the U.S. This includes their first and last name, date of birth, vaccine product name (only vaccines authorized by the WHO) and vaccination date(s), and sites or the name of the person who administered it.

Exceptions:

The Order waives the requirement to display proof of COVID-19 vaccination before allowing entry under certain circumstances. In such cases, the individual must wear a face mask every time they are unable to maintain six feet of social distancing inside the covered premises. They must enter for a quick and limited purpose, such as using a restroom, placing or picking up an order or service, changing in a locker room, or performing necessary repairs; or be:

A nonresident performing artist (and their employed entourage) who is not regularly employed by the business and is there for performance purposes; or
A nonresident professional athlete/sports team (and their employed entourage) who is competing as part of their regular employment.

Record Requirements:

Employers must develop and keep a written record describing their protocol for implementing and enforcing the requirements under the Order and make such records available for inspection by a City official.

Signage Requirements:

Employers must post a sign (available online) with vaccination requirements in a conspicuous place that is viewable by prospective patrons prior to entering the establishment. An employer may use their own sign if it meets or exceeds 8.5 inches by 11 inches and has text provided by the Department for Health and Mental Hygiene in at least 14-point font.

Compliance Recommendation:

Covered employers should update their policies and procedures to ensure compliance with the Order, refer to the Additional Resources for Businesses section located here, and call the NYC Department of Small Business Services hotline at 888-SBS-4NYC (888-727-4692) with additional questions.

North Dakota

Posted on December 13, 2021

North Dakota has enacted legislation (HB 1511) that requires private employers to allow certain employee exemptions from the COVID-19 vaccine. The law is effective from November 15, 2021 to August 1, 2023, unless extended.

Background:

North Dakota had enacted House Bill 1465, which generally prohibits a state government entity from requiring employers to obtain physical or electronic documentation to certify an individual's vaccination status, presence of antigens, pathogens or antibodies, or post-transmission recovery status before their employment.

The Details:

Under the new law, if an employer or contractor requires an employee, prospective employee, or independent contractor to be vaccinated against COVID-19 as a condition of employment, the employer must allow the following exemptions:

Proof of COVID-19 antibodies, which is valid for six months from the date of the antibody test;
Submission to periodic COVID-19 tests;
A certificate from a North Dakota licensed physician, physician assistant, or advanced practice registered nurse stating the physical condition of the individual is such that immunization would endanger the life or health of the individual; or
A certificate signed by the individual stating the individual’s religious, philosophical, or moral beliefs are opposed to such immunization.

The exemption process does not apply to the extent an employer or an independent contractor is required to comply with federal law, rules, or guidance relating to requirements for vaccinations for COVID-19.

Next Steps:

North Dakota employers should consult with legal counsel to discuss the impact of the mandate on their vaccination policies and practices.

Posted on June 9, 2021

North Dakota Governor Doug Burgum has signed legislation (HB 1465) that addresses rules pertaining to vaccination status. HB 1465 is effective immediately.

Customers:

House Bill 1465 prohibits an employer from requiring a patron or customer to provide documentation that certifies vaccination or post-transmission recovery in order to gain access to, entry upon, or services from the business. This provision does not apply to a health care provider, including a long-term care provider.

For purposes of House Bill 1465, a vaccination is one that is authorized by the federal Food and Drug Administration pursuant to an emergency use authorization.

Pre-employment:

House Bill 1465 also prohibits a state government entity from requiring employers to obtain physical or electronic documentation to certify the following before employment:

An individual's vaccination status;
The presence of antigens, pathogens or antibodies; or
An individual's post-transmission recovery status.

Note: Exceptions to this rule exist in sections 15.1 - 23 - 02, 23 - 01 - 05.3 and 23 - 07 - 17.1.

Compliance Recommendations:

North Dakota employers should review their policies and practices and train their supervisors to ensure adherence to House Bill 1465.

Oregon

Posted on January 5, 2022

The Oregon Occupational Safety and Health Division has amended its rule (OAR 437-001-0744), which covers requirements for masks, physical distancing, and cleaning to combat COVID-19. The amended rule went into effect December 21, 2021.

The Details:

Cleaning Protocols:

Previous Rule: Employers were required to regularly clean and sanitize all common areas. In addition, employers must clean and disinfect common areas, high-touch-surfaces, and any shared equipment under the employer's control that a person who has COVID-19 either used or had direct physical contact with, depending on the timing of the exposure.

What's changed: The amended final rule now only requires employers in healthcare settings to regularly clean or sanitize all common areas. However, employers must provide employees time and supplies to clean more frequently than required, or if they use shared equipment. Employers are still required to clean and disinfect areas known to be infected with COVID-19.

Masks:

What's Changed: Employers must provide masks, face coverings or shields at no cost and allow an employee to wear a face covering even when it is not required. They must also implement the indoor mask requirements of OR. Admin. R. 333-019-1025, unless the person is:

Under 5 years of age (or under 2 years of age in public transportation or transport hubs);
Doing an activity that makes wearing a mask, face covering or face shield not feasible, for instance, while showering, eating, drinking, or sleeping;
Is in a room or vehicle that is shared solely with members of the same household; or
Is required to briefly remove their mask, face covering, or face shield because their identity needs to be confirmed, such as security checks at banks or with law enforcement. While the covering is removed, the person should limit their speaking.

Under the amended rule, healthcare employers must also ensure that all individuals in the workplace wear a mask, face covering, or face shield when:

Working inside and social distancing of six feet can't be consistently maintained; or
An employee shares a room with one or more others and the total square feet does not provide at least 100 square feet per person.

Social Distancing:

Existing rule: All employers must ensure social distancing of six feet from co-workers.

What's changed: Oregon OSHA only requires the implementation of social distancing in healthcare and transit settings. All healthcare employers must ensure that work activities and workflows eliminate the need for an employee to be within six feet of another person to perform their duties unless the employer determines and can show that social distancing is not feasible for certain work activities.

Protected Benefits for Medical Removal:

Existing Rule: Employees ordered to quarantine or isolate by a healthcare or local public official (medical removal) must be permitted to return to their previous duties, if still available, without any adverse action because they had to quarantine or isolate.

What's Changed: Certain healthcare employers with more than 10 employees must provide the following benefits to employees who are engaged in direct patient care or in direct support of such care if the employee undergoes medical removal:

The benefits the employee would normally be entitled to while working;
Employers with 500 or more employees: The same regular (non-overtime) pay the employee would have received had the employee not been absent from work, up to a maximum of $1,400 per week, until the employee is able to return to work; or
Employers with fewer than 500 employees: The same benefits as required by employers with 500 or more employees, but starting the third week of an employee's removal, an employer may reduce the pay to two-thirds of the same regular pay the employee would have received had they not been absent from work, up to $200 per day (generally $1,000 per week).

Note: Employers will only be responsible for compensating the amount they owe, less the amount of compensation for lost earnings that an employee receives from any other source.

Next Steps:

Oregon employers should train employees on the updated COVID-19 information and safety requirements and ensure that their health and safety policies align with the amended regulations.

Posted on July 1, 2021

Oregon's Occupational Safety and Health Administration (OSHA) has published a final rule that requires employers to follow certain safety protocols to stop the spread of COVID-19.

Background:

Previously, Oregon published a temporary rule to help control the spread of COVID-19. The temporary rule was in effect through May 4, 2021. The final rule adds and extends certain safety provisions from the temporary rule. The final rule will remain in effect until the state determines it is no longer necessary to address the COVID-19 pandemic and repeals it.

New requirements:

The final rule added several provisions, including but not limited to:

Clarification that employers who completed actions under the temporary rule, such as training, exposure risk assessments, infection control plans, or posting requirements, do not need to revise or repeat these actions if they had acted in compliance with the temporary rule;
Employees in quarantine or isolation for COVID-19 must be allowed to work at home if suitable work is available for them and their condition does not prevent it;
Employers must notify employees who quarantine or isolate of their right to return to their job (as long as it's available) when their quarantine or isolation period ends. This notification must be in writing;
Employers with more than 10 employees statewide and an existing HVAC system must certify in writing that they're operating that system in accordance with the rule. Such certifications can be made using the sample format provided by Oregon. This may be done using Oregon OSHA ‘s sample format or by other means.

Extended requirements:

Under the final rule, employers must continue the following protocols from the temporary rule:

Establish a process to notify their employees of potential workplace COVID-19 exposure within 24 hours;
Notify both employees who were within six feet of someone who tested positive for COVID-19 for a cumulative total of 15 minutes and employees who worked in the same facility or a well-defined portion of the facility. They may also continue to rely on Oregon OSHA's model policy for this purpose;
Continue to follow the exceptional risk workplace and industry-specific guidelines*

*Note: While the final rule also required employees and visitors to continue physical distancing and use face masks in the workplace, Oregon Governor Kate Brown recently signed Executive Order No. 21-15, which lifted the statewide mask mandate and requirements for physical distancing indoors, effective June 30, 2021. In following the Executive Order, OR OSHA lifted workplace rules that required masks and physical distancing on June 30, 2021.

Compliance Recommendations:

Oregon employers should review the final rule in full and ensure compliance with all applicable requirements.

Posted on November 17, 2020

Oregon's Occupational Safety and Health Administration has enacted a temporary rule to help control the spread of COVID-19. The temporary rule is in effect from November 16, 2020 until May 4, 2021, unless extended. Below is an overview of the requirements.

Due Date	Summary of Requirements
Immediately	Notification: Employers must create a process to notify, within 24 hours, an employee who had contact with someone at work who later tested positive for COVID-19.
Immediately	Distancing & face coverings: Employers must ensure that employees remain at least six feet apart while performing their job duties, unless physical distancing is not feasible. Employers must also ensure everyone in the workplace wears a mask, face-covering, or face shield. Employers must provide masks, face covering or face shields for employees at no cost to the worker.
Immediately	Cleaning: Employers must regularly clean all common areas, shared equipment, and high-touch surfaces that are used by employees or the public. Cleaning must occur at least every 24 hours in workplaces occupied less than 12 hours a day and at least every 8 hours in workplaces occupied for 12 or more hours a day. Employers must provide employees with sufficient hand-washing supplies and reasonable time to sanitize their work surfaces.
Immediately	High-risk workplaces: There are additional rules for workplaces with exceptional exposure risks, including workplaces in which employees perform: direct patient care; direct client service in residential care or assisted living facilities; emergency responder activities; and personal care activities that involve very close contact with an individual. See the temporary rule for further guidance.
Immediately	Posting: Employers must post a COVID-19 Hazards Poster in a conspicuous area of the workplace and provide a copy to remote employees either electronically or by other effective means.
12/7/2020	Risk assessment: Employers must conduct an exposure risk assessment involving participation and feedback from employees. The assessment must involve an analysis of, among other things, whether employees can work remotely, how job duties have been modified to account for social distancing, procedures for reporting COVID-19 symptoms, and engineering controls, such as ventilation and physical barriers. The state is expected to release a sample risk assessment template. Employers with more than 10 employees in the state must document their assessment in writing and make a copy accessible in the workplace.
12/7/2020	Infection control plan: Employers must develop and implement an infection control plan based on the risk factors identified in their risk assessment. At a minimum, the plan must include a list of tasks requiring the use of personal protective equipment, how the company will ensure there's an adequate supply of face coverings, a list of hazard control measures implemented to minimize exposure to COVID-19, procedures used to communicate to employees about potential exposure, and how the company will provide workers with information and training on the requirements found in the temporary rule. Employers with more than 10 employees in the state must document their plan in writing and make a copy accessible in the workplace.
12/21/2020	Training: Employers must train employees on physical distancing, face coverings, sanitation requirements, the signs and symptoms of COVID-19, and the company's COVID-19 reporting procedures. The state will release sample training materials. The training may be provided remotely.
1/6/2021	Ventilation: Employers must optimize the amount of outside air that circulates through existing HVAC systems and ensure proper maintenance and cleaning of the systems.

Industry-specific requirements:

There are additional requirements for employers in the following industries (see the Appendices of the temporary rule for further information):

Restaurants, Bars, Brewpubs and Public Tasting Rooms at Breweries, Wineries and Distilleries
Retail Stores
Outdoor/Indoor Markets
Personal Services Providers
Construction Operations
Indoor and Outdoor Entertainment Facilities
Outdoor Recreation Organizations
Transit Agencies
Collegiate, Semi-Professional and Minor League Sports
Professional and PAC-12 Sports
Licensed Swimming Pools, Licensed Spa Pools and Sports Courts
Fitness-Related Organizations
K-12 Educational Institutions (Public or Private)
Early Education Providers
Institutions of Higher Education (Public or Private)
Veterinary Clinics
Fire Service and EMS
Law Enforcement
Jails and Custodial Institutions

Compliance Recommendations:

Oregon employers should review the temporary rule in full and ensure compliance with all applicable requirements.

Posted on October 5, 2020

Oregon has enacted Order BLI 7-2020 (the "Order"), which amends the Oregon Family Leave Act (OFLA) to permit employees to take leave to care for a child when their school or childcare provider closes due to COVID-19. The Order is effective immediately.

Background:

The OFLA requires employers with 25 or more employees in Oregon to provide eligible employees with job-protected leave for certain qualifying situations, including:

Leave type	Description	Employee eligibility	Duration of leave
Parental leave	Leave for the birth, adoption, or foster placement of a child.	Employees who have worked for their employer for at least 180 days.	Up to 12 weeks per year
Serious health condition	Leave for an employee's own serious health condition, or to care for a spouse, parent, parent-in-law, or child.	Employees who have worked for their employer for at least 180 days, averaging at least 25 hours per week during the 180 days before they start leave.	Up to 12 weeks per year
Pregnancy disability leave	Before or after the birth of a child or for prenatal care.	Employees who have worked for their employer for at least 180 days, averaging at least 25 hours per week during the 180 days before they start leave.	Up to 12 weeks per year (in addition to other types of leave)
Sick child leave	Leave to care for a child with a non-serious health condition that requires home care.	Employees who have worked for their employer for at least 180 days, averaging at least 25 hours per week during the 180 days before they start leave.	Up to 12 weeks per year (if an employee used all 12 weeks for parental leave, employees can take up to 12 more weeks for sick child leave)
Military family leave	Leave if an employee's spouse is a service member who's been called to, or is on leave from, active duty.	Employees who have worked for their employer for at least 180 days, averaging at least 25 hours per week during the 180 days before they start leave.	Up to 14 days per year
Bereavement leave	Leave following the death of a family member.	Employees who have worked for their employer for at least 180 days, averaging at least 25 hours per week during the 180 days before they start leave.	Up to 2 weeks

Temporary Rules:

Under a temporary administrative order, effective March 18, 2020, Oregon employees may be absent for up to 12 weeks, on a continuous or intermittent basis, because the employee's child's school or place of care has been closed by public authorities, including out of concerns related to the COVID-19 outbreak.

Amendment:

In September 2020, the Labor Commissioner made the temporary administrative order expanding sick child leave permanent. Order BLI 7-2020 amends the OFLA by permitting employees to take up to 12 weeks of job protected leave per year to care for a child whose school or childcare provider closes due to COVID-19. This leave may be taken intermittently.

School closures:

If access to the physical location where the employee's child receives instruction or care is closed due to COVID-19 precautions, the school or childcare provider is considered "closed" for purposes of OFLA sick child leave. This is true even if instruction is being provided online or through another format such as "distance learning," and the child is still expected or required to complete assignments.

Documentation:

Employers may require employees to provide documentation demonstrating the need for such leave, including:

The name of the child receiving the care;
The name of the childcare provider or school that is unavailable or closed; and
A statement that no other family member is available to provide care.

Employers may require an additional statement from an employee explaining the special circumstances that necessitate care when the child is over 14 years old.

Compliance Recommendations:

Employers with employees in Oregon should review their policies and practices to ensure compliance with the Order.

Note: The Family and Medical Leave Policy for Oregon employees in the HR411^® Employee Handbook Wizard has been updated to reflect the changes made by Order BLI 7-2020. Check the Alerts section of the Employee Handbook Wizard home page to incorporate these changes into your handbook.

Posted on March 24, 2020

Oregon has enacted a temporary rule that expands the Oregon Family Leave Act (OFLA) to cover certain situations that may arise as a result of COVID-19. The rule is in effect from March 18, 2020 through at least September 13, 2020.

Background:

The OFLA requires employers with 25 or more employees to provide eligible workers with unpaid, job protected leave to care for themselves or family members in certain circumstances. Generally, to be eligible for leave, an employee must be employed for the 180 day calendar period immediately preceding the leave and have worked at least an average of 25 hours per week during the 180-day period, though there are some exceptions.

Under existing rules, OFLA permits eligible employees to use up to 12 weeks of sick-child leave to care for a child with a non-serious health condition who requires home care and certain other reasons.

Temporary Rule:

The temporary rule permits eligible employees to also use sick-child leave to care for a child whose school or place of care has been closed in conjunction with a statewide public health emergency declared by a public health official.

Compliance Recommendations:

Employers in Oregon should review their policies, forms, practices, and supervisor training to ensure compliance with the temporary rule.

Pennsylvania

Posted on April 21, 2020

Pennsylvania has enacted legislation (House Bill 68) that eases unemployment eligibility rules and requires employers to provide employees with an unemployment notice. House Bill 68 takes effect immediately.

Unemployment eligibility:

House Bill 68 eases unemployment compensation eligibility requirements for employees who become unemployed due to COVID-19.

Waiting periods:

House Bill 68 waives the one-week waiting period and requirement for employees to actively look for work for the duration of the COVID-19 emergency declared by the Governor. Employees must still meet certain other conditions in order to qualify.

Employer Assistance:

Where permitted by federal law, an employer's unemployment account will not be charged if employees are filing unemployment claims for certain reasons related to COVID-19.

Unemployment notice:

When an employee separates from an employer, the employer must provide the employee with a notice containing the following information:

Employees may be eligible for unemployment payments;
That information on filing unemployment claims may be found on the state's website or by calling the Department: (888) 313-7284;
Employees will need to provide information such as their full legal name, social security number, and work authorization (if not a U.S. citizen or resident); and
Employees may file unemployment claims during the first week that their employment ends, or their hours are reduced.

Note: The employer notice requirement will be required beyond the COVID-19 outbreak.

Compliance Recommendations:

Pennsylvania employers should review and adjust their policies and procedures to ensure compliance with House Bill 68.

Cities in Pennsylvania

Posted on January 6, 2021

The City of Pittsburgh has adopted a temporary ordinance that requires employers to provide leave for certain COVID-19 related reasons to employees who work within the city. The ordinance is in effect from December 9, 2020, until the end of the COVID-19 public health emergency.

Background:

The City of Pittsburgh's Paid Sick Days Act (PSDA), effective March 15, 2020, requires employers to provide paid sick leave to employees working within the geographic boundaries of Pittsburgh.

Under the Act, employees accrue one hour of sick leave for every 35 hours worked. Employers with 15 or more employees must allow employees to accrue up to 40 hours of paid sick leave per year. Employers with fewer than 15 employees must allow employees to accrue up to 24 hours per year. The sick time is unpaid during the first year the Act is in effect, but employees may accrue paid sick time beginning one year after the effective date of the Act.

Supplemental COVID-19 Sick Time Ordinance:

Pittsburgh's Mayor signed a temporary ordinance, effective December 9, 2020, which amends the PSDA to permit employees to take PSDA leave before such time is accrued if the reason for leave is directly related to COVID-19.

The ordinance will remain in effect until the Pennsylvania COVID-19 Declaration of Emergency or the Pittsburgh COVID-19 Declaration of Emergency ends, whichever is sooner.

Covered Employees:

Under the ordinance, employers in Pittsburgh with 50 or more employees working in the city must provide employees with up to 80 hours of COVID-19 sick time. This time is in addition to PSDA time and any paid leave or sick time provided by an employer.

Employees are eligible for supplemental COVID-19 sick time if the employee has been employed by the employer for the previous 90 days and:

Is working for an employer within Pittsburgh after December 8, 2020;
Normally works for an employer located within Pittsburgh but is currently teleworking from any other location due to COVID-19; or
Works for an employer from multiple locations or from mobile locations, if 51% or more of the employee's time is spent within the city of Pittsburgh.

COVID-19 sick time must be provided to eligible employees immediately, without any waiting period or accrual requirements. Employees may use this leave until one week following the official conclusion or suspension of the public health emergency.

Leave entitlement:

The amount of COVID-19 sick time entitlement is based on the hours an employee works per week. Employees who work 40 or more hours per week are entitled to 80 hours. Employees who work fewer than 40 hours in a week are entitled to sick time in an amount equal to the amount of time the employee is otherwise scheduled to work, or works on average, in a 14-day period, whichever is greater, unless the employer designates a higher limit. If an employee's schedule fluctuates weekly, the employer can use a number equal to the average number of hours that the employee was scheduled over the past 90 days of work. This includes hours for which the employee took leave of any type.

Employees who are exempt from overtime under the federal Fair Labor Standards Act (FLSA) will be assumed to work 40 hours per week unless their normal workweek is less than 40 hours.

Reasons for Leave:

Eligible employees may take COVID-19 paid sick time if they are unable to work or telework because they are:

Self-isolating and caring for themselves, or a family member, due to a COVID-19 diagnosis, or they're experience symptoms of COVID-19;
Seeking or obtaining a medical diagnosis, care, or treatment, if they, or a family member, are experiencing symptoms of an illness related to COVID-19; or
Caring for themselves, or a family member, if: (a) a public official or public health authority, health care provider or an employer determines that the affected person's presence on the job or in the community would jeopardize the health of others because of their exposure to COVID-19; or (b) they exhibit symptoms that might jeopardize the health of others, regardless of a COVID-19 diagnosis.

Employee Notice Requirements:

Employees must provide notice to their employer of their need for COVID-19 sick time as soon as practical.

Interplay with Other Laws and Employer Policy:

To the extent that federal or state law requires employers to provide paid leave or paid sick time related to COVID-19, employers may substitute leave under the federal or state law to meet the obligations of this ordinance. In order to be able to do so, an employee must be able to use such leave for the same purposes and under the same conditions. However, employers are required to provide additional COVID-19 sick time under the ordinance to the extent the ordinance exceeds the requirements of the federal or state law.

Compliance Recommendations:

Pittsburgh employers should review their policies, forms, practices, and supervisor training to ensure compliance with the ordinance.

Posted on January 5, 2021

The City of Philadelphia issued regulations to clarify the circumstances in which certain employees can take leave under the Promoting Healthy Families and Workplaces Ordinance (PHFWO).

Background (September 2020):

In September, Philadelphia issued two paid sick leave ordinances, Ordinance 200306 and 200303 (see Philadelphia Amends and Expands Paid Leave Law below), amending the City's paid sick and safe time law, known as PHFWO. The amendments require new public health emergency leave (PHEL) and pay protections for employees, gig workers, and others who do not receive leave under the federal Families First Coronavirus Response Act (FFCRA).

PHFWO Regulations (December 2020):

The City of Philadelphia released new regulations that define key terms in Ordinances 200306 and 200303 and clarify the circumstances under which each type of leave benefit (PHEL or Health Epidemic Leave) may be used. Below is a summary:

PHEL(Ordinance 200303):

Covered employers: Any hiring entity that employs a covered individual, unless the employer provides paid leave that can be used for the same purposes and under all the same conditions as PHEL and provides leave in the same or greater amount as required under applicable City law.
When leave may be taken: Covered individuals may use PHEL for a COVID-19 related purpose beginning on September 17, 2020, and continuing until the earlier of one month after the conclusion of the Public Health Emergency or December 31, 2020. A hiring entity is not required to allow a covered individual to take PHEL if they're reasonably able to perform work remotely.
Reasonable documentation: Reasonable documentation of the need for leave may include, but is not limited to, a public statement from a government official, the City Department of Public Health, or the Center for Disease Control if the statement specifically addresses the covered individual's circumstances. Documentation from a governmental official is not required; however, an employer may require a signed statement from an employee affirming leave was for a covered reason. Consistent with CDC guidance, employers may not require a note from a health care professional.

Health Epidemic Leave (Ordinance 2000306):

Covered employers: Any employer that provides healthcare services and employs 10 or more employees for at least 40 weeks in a calendar year must provide Healthcare Epidemic Leave.
When leave may be taken: Covered individuals are entitled to Healthcare Epidemic Leave for the time period in which the employee is unable to work due to the employee's contraction of COVID-19. The leave should begin on the earlier of: (a) the date of the first positive COVID-19 test; or (b) the date the employee's isolation begins pursuant to either a federal, state or local governmental isolation order; or a written isolation recommendation from either a healthcare employer or a healthcare provider.
Reasonable documentation: The following are examples of acceptable documentation: (a) a positive COVID-19 test or written communication from a healthcare provider indicating a positive COVID-19 test; (b) a federal, state, or local governmental isolation order; or (c) a written isolation recommendation from a healthcare provider.
Interaction with other types of leave: A employee that chooses to take Healthcare Epidemic Leave is not entitled to take any other leave benefit for the same purpose. Additionally, the Health Care Employer may not require the employee to use the other leave concurrently.

Common Reasons for Leave:

The regulations provide a non-inclusive list of common circumstances in which the different types of leave may be permitted. These include:

Reason for Leave	PHEL	Healthcare Epidemic Leave
Individual contracts Covid-19 during a qualifying emergency	Yes	Yes
Individual contracts Covid-19 when no qualifying emergency is declared	No, unless within one month following the end of the declared emergency and the leave concludes before December 31, 2020	No
Time off needed to care for a family member who has Covid-19	Yes	No
Time off because no work hours were given because of business closure related to the pandemic	No, unless quarantine or isolation of covered individual is mandated	No
Individual is required to quarantine due to potential exposure to Covid-19	Yes	No
Leave needed to care for a family member whose school or daycare is closed due to Covid-19	Yes	No

Compliance Recommendations:

Employers with employees in Philadelphia should review their policies and practices to ensure compliance with both ordinances and the new regulations.

Posted on October 6, 2020

The City of Philadelphia passed two ordinances related to paid sick leave. Ordinance 200306 amends the city's paid sick and safe time law (also known as the Promoting Healthy Families and Workplaces Ordinance (PHFWO)). Ordinance 200303 requires new public health emergency leave (PHEL) for workers who do not receive leave under the federal Families First Coronavirus Response Act (FFCRA).

Ordinance 200306:

Ordinance 200306 requires certain healthcare employees who contract a disease during a declared pandemic or epidemic to receive compensation and medical care or reimbursement. Ordinance 200306 is effective immediately.

Ordinance 200303:

Ordinance 200303 requires PHEL for employees, gig workers, and others who are not entitled to leave under the federal FFCRA. Under the law, a public health emergency (PHE) is an emergency related to a public health threat or risk in Philadelphia and is declared by a federal, state, or local official.

Covered Employees:

The law covers employees and individuals who perform at least 40 hours of work per year in Philadelphia for an employer or hiring entity. This includes domestic workers, certain healthcare professionals, home healthcare workers, food delivery workers, and transportation workers.

Reasons for Leave:

Covered workers may use leave when they're unable to work for reasons such as:

They're subject to a federal, state, or local quarantine or isolation order that relates to the PHE;
A health care provider advised them to self-quarantine due to concerns related to a PHE;
They're experiencing symptoms related to a PHE and are seeking a medical diagnosis;
Their child's school or place of care has been closed, or their childcare provider is unavailable, due to PHE precautions;
They're caring for an individual who is subject to a federal, state, or local quarantine or isolation order, or whose health care provider advises that individual to self-quarantine due to PHE concerns; or
They're experiencing any other substantially similar condition specified by the U.S. Secretary of Health and Human Services in consultation with the U.S. Secretary of the Treasury and the U.S. Secretary of Labor.

Note: Workers aren't entitled to PHEL if they can reasonably perform work remotely, considering all relevant circumstances that affect their ability to perform remote work.

If a federal or state law requires a hiring entity to provide paid leave or paid sick time related to a PHE, the hiring entity may require PHEL to run concurrently with such leave unless another law prohibits concurrent use. Hiring entities must also provide additional PHEL if Philadelphia law's requirements exceed the requirements of other laws.

Amount of PHEL:

Covered employees are entitled to leave based on the number of hours worked:

Hours Worked	Amount of Leave
40 or more hours per week	80 hours or an amount of leave equal to their average hours worked over a 14-day period (whichever is greater), up to 112 hours.
Fewer than 40 hours per week	Leave equal to the average number of hours worked in a 14-day period.
Varying Hours per Week	Average hours in a 14-day period is calculated by using the average hours the individual worked per day over the six-month period prior to the date the PHE was declared, multiplied by 14 (including any hours that the individual took any type of leave). If the individual didn't work over such a period, use the individual's reasonable expectation at their time of hire of the average hours they would normally receive in a typical 14-day period.

Leave can be taken in increments as small as the lowest increment that an entity's payroll system uses to track absences or other uses of time.

Relationship to existing paid leave policies:

The law doesn't require a hiring entity to change its existing sick leave policies or provide additional paid leave if it already provides paid sick leave that meets or exceeds the requirements of the law. Under existing policies, employees must be able to use their leave for the same purposes and under the same conditions.

Employee Notice:

When the need for leave is foreseeable, workers must provide notice as soon as feasible. A hiring entity cannot require an individual to find coverage for any shift during which the individual uses PHEL.

A hiring entity can request that workers submit self-certified statements declaring that leave was used for a lawful purpose. If employers elect this option, it's a best practice to request certification on a consistent basis.

Employer Notice:

By October 2, 2020, hiring entities must provide notice to individuals that they're entitled to PHEL. Notice must also indicate that retaliation for requesting or using PHEL is prohibited. The notice must be provided in English and in any language that is the first language spoken by at least 5% of the employer's workforce.

Employers can satisfy this request by posting a notice in a conspicuous area of the workplace or by supplying each individual with a copy of the notice. If employees perform telework, or the hiring entity doesn't have a physical location, the notice can be furnished electronically.

Pay:

Workers are entitled to their regular rate of pay during PHEL, with the same benefits, including health insurance.

Reinstatement:

When leave ends, hiring entities must return covered individuals to the position they held when their leave began.

Recordkeeping:

A hiring entity must keep, for at least two years, records documenting hours worked, PHEL taken by employees, and payment for PHEL.

Anti-retaliation:

Employers are prohibited from taking adverse action against an employee for exercising their rights under the law and/or interfering with an employee's ability to take PHE. This includes counting a PHEL absence against an employee for purposes of the entity's absence control policy.

Compliance Recommendations:

Employers with employees in Philadelphia should review their policies and practices to ensure compliance with both ordinances.

Posted on March 19, 2020

Due to the COVID-19 outbreak, the City of Philadelphia expanded its paid sick leave ordinance and postponed its predictive scheduling law.

Background:

The Promoting Healthy Families and Workplace Act (Act) requires employers to provide paid sick leave to employees who work in Philadelphia at least 40 hours in a year. Under the Act, an employee accrues one hour of sick leave per 40 hours worked, which includes any overtime. Exempt administrative, executive or professional employees accrue sick leave based on their normal workweek or a 40-hour workweek, whichever is less.

Employees are permitted to use 40 hours of paid sick time for:

An existing health condition requiring diagnosis, care, or treatment;
Preventative care; or
Issues related to an employee being a victim of domestic violence, sexual assault, or stalking.

COVID-19 Expansion:

The Promoting Healthy Families and Workplace Act has been expanded to cover absences related to COVID-19. This includes business closures, quarantines, and the need to stay home with children during school closures.

Fair Workweek Ordinance:

The City of Philadelphia also postponed its Fair Workweek Ordinance. Under the Ordinance, if an employee did not consent to a schedule change and a work schedule was altered within ten days of the schedule's delivery, the employer would be required to:

Pay employees one hour of predictability pay if hours are added to a schedule, or if a schedule is changed with no loss in hours; or
Pay employees predictability pay at a rate of time and a half for all hours not worked if the scheduled hours are reduced.

The Ordinance is postponed until further notice from the City.

Compliance Recommendations:

Philadelphia employers should review their policies, forms, practices, and supervisor training to ensure compliance with the paid sick leave expansion.

Rhode Island

Posted on January 5, 2022

Rhode Island has enacted emergency rules to help prevent the spread of COVID-19. The rules are in effect from December 29, 2021 to April 21, 2022.

The Details:

Covered Employers:

The emergency rules cover recreation, entertainment, historical and cultural establishments, along with retail and service businesses, restaurants and bars, venues of religious and faith-based organizations, catered events, and office-based and other public and private employers.

Masking Requirements:

Establishments with indoor capacities of 250 or more people must require everyone to wear a mask while indoors, regardless of their vaccination status. Those with a capacity of fewer than 250 people may exempt a person from the indoor mask requirement if the person can provide proof of vaccination. Under the rules, capacity is the maximum number of people allowed by the fire marshal, not the actual number of people present.

For catered events, capacity is the number of guests in attendance. In these events, if there are more than 250 guests, everyone must be masked, regardless of vaccination status. However, if there are fewer than 250 guests, the event host and/or venue operator must implement either: (1) an event-wide indoor masking requirement; (2) a proof of vaccination requirement; or (3) require individuals to either show proof of vaccination or wear masks indoors.

Notice Requirements:

Employers must post a sign about the mask requirement at all entrances of an establishment as well as information on proof of vaccination requirements, if applicable. Although Rhode Island’s Department of Health provides examples of appropriate posters (Masks, Proof of Vaccination, and Masks or Proofs of Vaccination), an employer can also create their own poster. Those that do must include one of the following applicable statements on their poster in bold print:

A MASK OR PROOF OF VACCINATION IS REQUIRED IN THIS ESTABLISHMENT;
MASKS ARE REQUIRED IN THIS ESTABLISHMENT; or
PROOF OF VACCINATION IS REQUIRED IN THIS ESTABLISHMENT.

Enforcement:

Each individual violation of the rules may result in a penalty of up to $500, and every individual that is allowed to enter a premise against the rules counts as a separate and distinct violation.

Next Steps:

Rhode Island employers should display the workplace poster that is applicable to their business, enforce the required protective protocols, and train their managers and HR personnel on the rules.

Tennessee

Posted on May 18, 2022

Tennessee has enacted legislation (Senate Bill 1823) that requires employers that mandate COVID-19 vaccinations to allow certain exemptions. Senate Bill 1823 is effective immediately.

Background:

Tennessee had previously enacted legislation (Senate Bill 9014) that, among other things, prohibited employers from compelling a person to provide proof of their vaccination from COVID-19 if the person objects to receiving the vaccine.

The Details:

Senate Bill 1823 amends Senate Bill 9014 to require employers that mandate workers to receive, or provide proof of a COVID-19 vaccination, to enact an exemption process for medical and religious reasons.

An employer may not take longer than 10 business days to grant or deny the person's request for an exemption, and they must provide a written statement that explains their decision to deny a request for exemption.

Medical Exemptions:

To claim an exemption based on medical reasons, an individual must provide a valid medical reason that is supported by a signed and dated statement from a licensed healthcare provider.

Religious Exemptions:

To claim a religious exemption, a person must state that they have a religious belief.

Note: Employers cannot require proof beyond the initial statement to grant the exemption.

Non-retaliation:

Under the law, an employer cannot discharge, threaten to discharge, or reduce the compensation of a person because that individual received an exemption.

Enforcement:

Employers that are found to have violated the law may face penalties of up to $10,000.

Next Steps:

Tennessee employers should review their policies and procedures and train supervisors to help ensure compliance with Senate Bill 1823.

Updated on January 6, 2022

Tennessee has issued an emergency rule that sets forth quarantine procedures related to COVID-19. The rule is effective from December 22, 2021 to June 20, 2022.

Update January 2022: Tennessee has released new guidance that lowers the period of isolation to five days in certain circumstances, while continuing to require masking.

The Details:

The emergency rule provides guidance on quarantine and isolation procedures for businesses and individuals to help prevent the transmission of COVID-19.

Business Quarantine:

Under the emergency rule, a private business may be temporarily quarantined when the Commissioner of Health or their designee determines that the potential for transmission of COVID-19 to people on an employer's premises poses a serious public health or safety threat that is not effectively managed by mitigation measures.

Note: An employer's quarantine will end when the serious public health or safety threat no longer exists.

Individual Quarantine:

Under the emergency rule, a person who tests positive for COVID-19 must now immediately isolate for at least five days from the date of:

Their specimen collection that resulted in the positive test result (for individuals without COVID-19 symptoms); or
The initial onset of symptoms. They must continue to isolate until they can show improvement in symptoms and have been fever-free (without using fever-reducing medication) for at least 24 hours.

Note: A person may end isolation at any time following a negative test result for COVID-19.

Next Steps:

Tennessee employers should train their management, HR personnel and employees on the emergency rule.

Posted on December 13, 2021

Tennessee has passed legislation (Senate Bill 9014) that adds protections for employees who refuse to provide proof of COVID-19 vaccination. Senate Bill 9014 is effective immediately.

The Details:

Under the law, employers are prohibited from compelling a person to provide proof of their vaccination from COVID-19 if the person objects to receiving the vaccine. The law also provides that a person who is terminated because of their refusal to receive a COVID-19 vaccine is eligible for unemployment benefits.

Unemployment Benefits:

The law additionally prohibits an individual from being disqualified from unemployment benefits if a claimant left their employment because the claimant’s employer required its employees to receive a COVID-19 vaccine and the claimant failed or refused to receive a COVID-19 vaccine.

Retaliation prohibited:

Under the law, employers cannot take adverse action to compel a person to provide proof of vaccination if the individual objects to receiving a COVID-19 vaccine for any reason. This includes denying employment or discharging, threatening, or otherwise discriminating against an employee in any manner that affects their employment, including compensation, terms, conditions, locations, rights, immunities, promotions, or privileges.

Next Steps:

Tennessee employers should consult with legal counsel to discuss the impact of the mandate on their vaccination policies and practices.

Texas

Texas has enacted legislation (Senate Bill 7) that bans certain COVID-19 vaccine mandates. Senate Bill 7 takes effect on February 6, 2024.

The Details

The law prohibits a private employer from adopting or enforcing a mandate that requires an employee, contractor or applicant to be vaccinated against COVID-19 as a condition of employment or a contract position.

Note: The law applies to employer actions that occur on or after February 6, 2024.

Exceptions

Under Senate Bill 7, healthcare facilities and providers may establish and enforce a policy to help prevent the spread of COVID-19. The policy may include requiring an individual who is an employee or contractor of the facility, or a provider or physician, that is not vaccinated against COVID-19 to use protective medical equipment (based on the level of risk the individual presents to patients from their routine and direct exposure to patients).

Nonretaliation

The law prohibits an employer from taking an adverse action that would punish, alienate, or otherwise adversely affect an employee, contractor, or applicant for refusing to be vaccinated against COVID-19.

Enforcement

Employers that are found to have violated the law may be fined $50,000 per violation, unless the employer:

Hires the applicant for employment or the contract position; or
Reinstates the employee or contractor and provides them with back pay from the date of the adverse action and makes every reasonable effort to reverse the effects of the adverse action. This includes reestablishing employee benefits that the employee or contractor would have been eligible for, if the adverse action had not been taken.

Next Steps

Texas employers should consult legal counsel to discuss the impact of Senate Bill 7 on their vaccination policies and practices.

Posted on October 18, 2021

Governor Greg Abbott has issued an executive order (the Order) that prohibits employers in Texas from requiring individuals to receive a COVID-19 vaccine. The Order is effective immediately.

The Order:

Employers in Texas are prohibited from compelling an employee or any other individual to receive a COVID-19 vaccination if the individual objects to such vaccination:

For any reason of personal conscience;
Based on a religious belief; or
For medical reasons, including prior recovery from COVID-19.

Employers who do not comply with the Order may face fines.

Compliance Recommendation:

Texas employers should consult legal counsel to discuss the impact of the Order on their vaccination policies and practices.

Utah

Posted on: April 20, 2023

Utah has enacted legislation (House Bill 131), which prohibits most private employers from discriminating on the basis of vaccination or immunity status in employment decisions. House Bill 131 takes effect on May 3, 2023.

The Details

House Bill 131 prohibits many employers from taking the following actions on the basis of an individual's vaccination status or whether the individual has an immunity passport:

Refusing or barring them from employment; or
Discriminating in compensation, or in a term, condition or privilege of employment.

The law defines an immunity passport as a document, digital record or software application that indicates an individual is immune to a disease (through vaccination or infection and recovery). Vaccination status is defined as an indication of whether an individual has received one or more doses of a vaccine.

Exceptions

The law does not cover the following:

Employers that establish a link between a vaccination requirement and the employee's assigned duties and responsibilities or identify an external requirement for vaccination (not imposed by the employer) that relates to the employee's duties and responsibilities;
Employees that are directly exposed to human blood, human fecal matter or other potentially infectious materials that may expose them to hepatitis or tuberculosis (as determined by the employer);
Certain childcare programs that require vaccinations under the law;
Federal contractors;
A regulated entity where compliance with the law would violate binding, mandatory regulations or requirements that affect funding issued by the Centers for Medicare and Medicaid Services or the U.S. Centers for Disease Control and Prevention; or
A contract for goods or services that is entered into before May 3, 2023, if:
- It would result in a substantial impairment of the contract; and
- The contract is not between the employer and their employee.

Requesting Proof of Vaccination

Existing law allows employers to request proof of a COVID-19 vaccination from employees or prospective employees, but they must exempt the employee or prospective employee from the requirement if the individual:

Provides a statement that receiving the COVID-19 vaccination would be injurious to their health and well-being or conflict with a sincerely held personal belief, or religious belief, practice or observance; or
Has a letter from a primary care provider that states they had previously contracted COVID-19.

House Bill 131 does not repeal existing law and does not appear to expressly prohibit employers from requesting vaccination status or proof of immunity from employees. However, the law prohibits employers from discriminating against employees or prospective employees by using their vaccination status or whether they have an immunity passport as the basis for hiring decisions, termination or making other decisions related to terms and conditions of employment.

Existing law also prohibits employers from keeping or maintaining records or copies of an employer's proof of vaccination unless a legal requirement, established business practice, or industry standard requires otherwise. House Bill 131 does not appear to alter this existing prohibition.

Next Steps

Review all vaccination policies and procedures and make any necessary changes.

Posted on November 30, 2021

Utah has enacted legislation (Senate Bill 2004) that adds a COVID-19 vaccination exemption process and requires employers to pay for testing. Senate Bill 2004 is effective immediately.

Vaccination Exemption Process:

Utah employers who require an employee or candidate to receive, or provide proof of, COVID-19 vaccination as a condition of employment must provide an exemption to the requirement if the individual submits a statement that receiving the vaccine would:

Harm their health and well-being; or
Conflict with a sincerely held personal or religious belief, practice, or observance.

Exempt Employers:

Federal contractors; certain individuals subject to the Centers for Medicare and Medicaid Services’ COVID-19 vaccine regulations, and employers with fewer than 15 employees who can establish a nexus between the requirement and the employee's assigned duties are not covered by the exemption requirement.

COVID-19 Testing Costs:

Senate Bill 2004 also requires employers to cover all costs of COVID-19 testing that relate to, or are required for, the employee's presence at the workplace.

Recordkeeping Requirements:

Employers may record whether or not an employee is vaccinated, but employers generally may not maintain an employee's proof of vaccination, unless required by law or industry standards.

Non-Retaliation:

Senate Bill 2004 prohibits Utah employers from taking adverse action (such as refusing to hire, terminating, demoting, or reducing wages) against an employee who complies with the law, but employers may reassign or terminate an employee if reassignment is impractical.

Compliance Recommendations:

Utah employers should consult legal counsel to discuss the impact of the law on their vaccination policies and practices.

Posted on December 15, 2020

Utah Governor Gary Herbert has issued Executive Order 75, which requires employers to follow certain COVID-19 related safety requirements for the duration of the public health emergency. The Order is effective immediately.

General Requirements:

Under the Order, businesses must require each:

Employee and contractor to wear a face mask while at work;
Patron who enters a business premise to wear a face mask, including at doors and entrances; and
Separate household group at a business, or each separate party at a bar or restaurant, to maintain at least six feet of physical distance from others, including at doors and entrances.

Employee Mask Requirements:

An employee's mask must cover their nose and mouth, be made of synthetic or natural fabrics and rest snugly against an employee's nose, sides of the face, and under the chin. The Order expressly prohibits face masks made of web-like materials (mesh, lace, and crochet) or masks with openings, such as vents, exhalation valves, or other gaps.

Employees may remove their masks in the following circumstances:

While actively eating or drinking;
While solely occupying a room, cubicle, or similar enclosure;
When communicating with a person who is deaf or hard of hearing, if communication cannot be achieved through other means and the speaker wears a face shield or uses alternative protection such as a plexiglass barrier;
While obtaining or providing a service that requires the temporary removal of the mask;
While swimming or on duty as a lifeguard;
While giving a religious, political, media, educational, artistic, cultural, musical, or theatrical presentation for an audience;
When engaging in work in which wearing a mask would create a risk to the person, while following government safety guidelines;
When it's necessary to confirm a person's identity;
When federal or state laws or regulations prohibit wearing a face mask; and
If they're prevented from wearing a mask due to a medical or mental health condition or an intellectual or developmental disability.

Sign Requirements:

Employers must post signage in a conspicuous location that:

Provides notice of face mask and physical distancing requirements;
Asks employees and customers experiencing COVID-19 symptoms to stay home; and
Lists COVID-19 symptoms.

Compliance Recommendations:

Employers should update their health and safety policies, procedures and training to comply with the Order.

Virginia

Posted on July 27, 2020

The Virginia Safety and Health Codes Board enacted a temporary workplace safety standard in response to the COVID-19 pandemic. The Emergency Temporary Standard is effective July 27, 2020.

Below is an overview of the standard. To read the standard in full, click here.

Assessment and Classification:

Employers must conduct an assessment of the workplace for hazards and job tasks that potentially expose employees to COVID-19. Employers must also classify each job task according to the risk of exposure.

Self-Monitoring:

Employers must notify employees of the methods of exposure and transmission of COVID-19 and encourage employees to self-monitor for signs and symptoms of COVID-19 if they suspect possible exposure or are experiencing signs of an oncoming illness.

Notification Requirements:

Employee Notification:

Employers must develop and implement policies and procedures for employees to report when they are experiencing symptoms consistent with COVID-19.

Employer Notification:

Generally, if an employer receives a report of an individual who has tested positive for COVID-19, the employer has 24 hours to notify individuals who may have been exposed, the building or facility owner, and the Virginia Department of Health. When notifying the building or facility owner and other individuals, employers must keep the identity of the infected person confidential. Employers must also notify the Virginia Department of Labor and Industry (DOLI) within 24 hours of the discovery of three or more employees within a 14-day period testing positive for COVID-19.

Return to Work (Infected Employees):

Employers must develop and implement policies and procedures for employees with known or suspected cases of COVID-19 and may not permit employees known or suspected to be infected with COVID-19 to report to, or remain at, the work site until they're cleared to return to work (using a symptom- or test-based strategy). A symptom-based approach excludes employees from the workplace until at least three days have passed since recovery and at least 10 days have passed since symptoms first appeared. A testing approach excludes infected employees until they have a negative COVID-19 test result. If an employer elects to require employees to test negative for COVID-19 before returning to work, the employer must pay for the tests.

Employers are not permitted to use anti-body testing when making return to work decisions.

Workplace Controls:

Social Distancing:

Employers must ensure that employees observe physical distancing at all times and leverage verbal announcements, signage, or visual cues to promote physical distancing. Access to common areas, breakrooms, or lunchrooms must be closed or controlled.

Sanitation and Disinfecting:

Employees that interact with customers or other persons, must be provided with and immediately use supplies to clean and disinfect surfaces contacted during the interaction.

All common spaces, including bathrooms, frequently touched surfaces and doors must, at a minimum, be cleaned and disinfected at the end of each shift. All shared tools, equipment, workspaces, and vehicles must be cleaned and disinfected prior to transfer from one employee to another. Employers must ensure that cleaning and disinfecting products are readily available to employees.

Personal Protective Equipment (PPE):

When engineering, work practice, and administrative controls are not feasible or do not provide sufficient protection, employers must provide PPE to their employees and ensure its proper use in accordance with VOSH laws, standards, and regulations. Employers must also ensure compliance with respiratory protection when the nature of an employee's work or work area doesn't allow physical distancing. When multiple employees are occupying a vehicle for work purposes, the employer must ensure compliance with respiratory protection and PPE standards applicable to its industry.

Very High and High Risk of Exposure:

The following requirements for employers with hazards or job tasks classified as "very high" or "high" exposure risk also apply:

To the extent feasible, employers must install physical barriers, such as clear plastic sneeze guards, where such barriers will aid in mitigating the spread of virus transmission.
Prior to the start of each shift, prescreen or survey each covered employee to ensure they do not have signs or symptoms of COVID-19.
Limit non-employee access to the workplace or restrict access to only certain areas to reduce the risk of exposure.
Where feasible, postpone non-essential travel and implement telework, staggered shifts, phone and video conferencing, and curbside pickup.
Develop an infectious disease preparedness and response plan (this requirement also applies to employers with hazards or job tasks classified as "medium" if the employer has 11 or more employees) by August 26, 2020. The plan must address the level(s) of risk associated with the hazards employees are exposed to, and the engineering, administrative, and PPE controls necessary to address those risks.

Examples of high and very high risks tasks include healthcare and mortuary services. Medium risk job tasks involve certain specialty work, like meat processing and commercial transportation, as well as tasks that involve frequent interaction with the public, like stores and restaurants. Traditional office work tasks are classified as lower risk.

Training:

Employers with hazards or job tasks classified as "very high," "high," or "medium exposure" risk must provide training to all employees working at the place of employment regardless of employee risk classification by September 25, 2020. Employers must prepare and maintain a written certification of training completed for each employee. Lower risk employers do not have to provide formal training but must distribute information to employees about hazards and characteristics of COVID-19.

Anti-Retaliation Provisions:

Employers may not retaliate against an employee for exercising their rights under the standard, voluntarily providing and wearing their own PPE, or raising a reasonable concern about infection control.

Additional Information:

The DOLI plans to provide supplemental materials on infectious disease preparedness and response plans, training, and more here.

Compliance Recommendations:

Employers should review the standard in full as well as DOLI guidance to ensure their policies, procedures, and training comply.

Washington

Posted on June 22, 2021

Washington Governor Jay Inslee has signed Senate Bill 5115, also known as the Health Emergency Labor Standards Act (or HELSA). The HELSA expands worker protections during a public health emergency and requires employers to follow certain notice requirements. Senate Bill 5115 is effective immediately.

Covered Employees:

The Act covers frontline workers in various industries, including but not limited to:

Restaurants;
Retail stores;
Hotel, motel, or transient accommodations;
First responders (enforcement and paramedics);
Food processing and distribution;
Maintenance, janitorial, and food service workers at facilities treating patients with infectious or contagious disease subject to a public health emergency;
Childcare facilities;
Home care aides;
Education; and
Nursing homes.

Employee Protections:

For workers' compensation and other benefit purposes, employees are assumed to be exposed to infectious or contagious diseases through the transmission of respiratory droplets, aerosols, or contact with contaminated surfaces at work, unless an employer can show that the exposure occurred outside of work.

Benefits:

Frontline employees who are exposed to infectious or contagious diseases at work are eligible to receive workers' compensation benefits, including time loss or temporary disability benefits the day after the employee contracts the occupational disease. This is defined as the earlier of the date that the employee:

First missed work due to their symptoms;
Was quarantined by a medical provider or a public health official; or
Received a positive test result.

Note: Frontline employees are ineligible for temporary disability if they meet a federal or state program's requirements for paid sick leave benefits during a public health emergency.

Reasonable Accommodations:

The HELSA prohibits employers from discriminating against a high-risk employee who asks for an accommodation to shield them from being exposed to the infectious disease. If no reasonable accommodation exists, employers must provide employees with all available leave options, including leave without pay and unemployment insurance, until completion of the public health emergency or accommodation is made available.

Employer Notice Requirements:

Under the HELSA, if an employer receives a notice of potential exposure during a public health emergency, the employer must follow the steps outlined below:

Provide written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite that an individual has a positive confirmed case of the infectious or contagious disease. Employers have one business day to provide such notice.
The notice must be in English and in the language understood by the majority of the employer's workforce.
The notice must be made in a manner the employer normally uses to communicate employment-related information, which may include e-mail, text message, personal service, or other methods, if the employer can reasonably anticipate the notice to be received by the employee within one business day.

Note: Health care facilities (hospitals and clinics) are subject to different rules.

Reporting Requirements:

An employer with more than 50 employees at a workplace or worksite must report outbreaks to the Washington Department of Labor and Industries within 24 hours. Reporting is required if the employer has confirmed 10 or more of their employees at the workplace or worksite in the state have tested positive for the infectious or contagious disease.

Compliance Recommendations:

Employers should review their reporting policies and procedures to ensure compliance with Senate Bill 5115.

Seattle, WA

Posted on April 2, 2020

Effective immediately, Seattle has expanded the reasons employees may take leave under its Paid Sick and Safe Time (PSST) Ordinance.

Background:

Under Seattle's paid sick leave ordinance, an employee may take leave to care for themselves or a family member due to:

A physical or mental health condition, including a doctor's appointment;
Domestic violence, sexual assault or stalking;
Their child's place of care or school was closed due to the order of a public health official for a health-related reason; or
When a public official ordered their place of business to close.

Amendments:

The City Council amended the ordinance to allow employees to take leave when any family member's (not just their child's) school or place of care has been closed for any reason. For employers with 250 or more full-time equivalent employees, employees can also take leave when their place of business has been closed for any health or safety reason.

Compliance Recommendations:

Seattle employers should review their policies, forms, practices, and supervisor training to ensure compliance with the Ordinance as amended.

West Virginia

Posted on November 12, 2021

Governor Jim Justice has signed legislation (House Bill 335) that requires employers to provide an exemption process as an alternative to COVID-19 vaccination mandates. House Bill 335 takes effect on January 18, 2022.

House Bill 335:

West Virginia has enacted legislation that requires employers who mandate vaccination for an employee or candidate to provide an alternative exemption process. House Bill 335 requires employers to exempt those who present one of the following certifications:

A medical certification signed by a physician or advanced practice registered nurse who has conducted an in person examination stating:
- The COVID-19 immunization is contraindicated;
- A specific precaution to the mandated vaccine exists; or
- The individual has antibodies from exposure to the COVID-19 virus or has suffered and recovered from the COVID-19 virus.
A notarized certification by the current or prospective employee stating that their religious beliefs prevent them from receiving COVID-19 immunization.

Nonretaliation:

Employers are prohibited from penalizing or discriminating against current or prospective employees for their exercising exemption rights under the law. This includes benefits decisions, hiring, firing, or withholding bonuses, pay raises, or promotions.

Compliance Recommendations:

West Virginia employers should consult legal counsel to discuss the impact of House Bill 335 on their vaccination policies and practices.

This content is based on generally accepted HR practices, is advisory in nature, and does not constitute legal advice or other professional services. ADP does not warrant or guarantee the accuracy, reliability, and completeness of the content. Employers are encouraged to consult with legal counsel for advice regarding their organization's compliance with applicable laws. This content is current as of the published date.

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