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The California Department of Industrial Relations (DIR) recently updated its “Guide to COVID-19 Related Frequently Asked Questions [FAQs]” to include wage and hour issues arising out of employer-mandated COVID-19 tests or vaccinations.

On March 4, 2021, the Department of Fair Employment and Housing (DFEH) confirmed that an employer does not violate the California Fair Employment and Housing Act (FEHA) by requiring employees to receive an FDA-approved COVID-19 vaccine so long as the employer does not discriminate against or harass employees or job applicants on the basis of protected characteristics, provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices, and does not retaliate against employees who engage in protected activity, such as requesting an accommodation. While this guidance arguably protects employers against FEHA claims, employers should not take the DFEH’s guidance as permission to mandate vaccines in other contexts, and it is not yet clear whether employers can safely mandate vaccines approved only under Emergency Use Authorizations by the Food and Drug Administration.

If employers can legally mandate vaccines, the question becomes whether employers must pay for the time spent being vaccinated. Now, the DIR has weighed in on employer obligations to pay for tests and vaccines when mandated by the employer.

For ease of reference, the FAQ is copied here.

    1. Is my employer required to compensate me for the time spent obtaining a COVID-19 test or vaccination?

If the employer requires an employee to obtain a COVID-19 test or vaccination (see Department of Fair Employment and Housing FAQs for guidance on the types of COVID-19 tests an employer may require and on vaccination), then the employer must pay for the time it takes for the testing or vaccination, including travel time.

Continue Reading California Requires Employers to Compensate Employees for Time Spent Obtaining a COVID-19 Test or Vaccination

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Special thanks to guest contributors Christopher Guldberg and Janel Brynda.

The American Rescue Plan Act of 2021 (the “ARPA”), was signed into law on March 11, 2021, and creates a temporary COBRA premium subsidy for certain qualifying individuals. This COBRA premium subsidy applies to all group health plans subject to the Employee Retirement Income Security Act of 1974.  Thus, most employers will be impacted by the new COBRA subsidy.

Employers will need to evaluate the impact of the ARPA not only with respect to COBRA administration, but equally important,  employers may need to make changes to their severance arrangements to take into account the temporary COBRA subsidy.

The ARPA provides that an assistance eligible individual who elects COBRA coverage will be deemed to have paid 100% of any applicable COBRA premium (including the 2% administrative charge) during the period April 1, 2021 to September 30, 2021. In this respect, ARPA differs from the premium assistance under the American Recovery and Reinvestment Act of 2009 that only provided for a partial premium subsidy for eligible individuals.

Continue Reading The American Rescue Plan of 2021 Requires Employer Action and Potential Updates to Severance Arrangements

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As a result of the pandemic, many companies have been forced to consider layoffs and furloughs. In this video, our Labor and Employment attorneys discuss how employers should approach such cost-cutting measures to ensure they are not discriminatory and to avoid allegations of differential treatment.

Click here to watch the video.

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We are increasingly seeing governments around the globe pass more progressive and compassionate legislation around families and pregnant women. For instance, in the US, there’s a new bill, known as the Pregnant Workers Fairness Act, currently in the House and commentators believe it just might pass. The bill would clarify and strengthen the Pregnancy Discrimination Act, which was passed more than 40 years ago as an amendment to the 1964 Civil Rights Act, and provide women who face pregnancy discrimination a clear channel for recourse.

Along these lines, this week New Zealand will become one of the first few countries providing paid leave for miscarriages.[1] The Holidays (Bereavement Leave for Miscarriage) Amendment Bill (No 2) (view bill HERE) was just granted royal assent and the new law is effective March 31. The law extends current paid bereavement leave law for employees in New Zealand to miscarriages and stillbirths.

Continue Reading New Zealand Paid Bereavement Leave for Miscarriage Effective March 31, 2021

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As previously covered, California reinstated and expanded COVID-19 supplemental paid sick leave last week. For more on the law’s requirements, click here.

The new law requires employers to give employees notice of the leave benefit:

  • The California Labor Commissioner has issued a model poster available here and FAQs are available here.
  • The poster must be displayed in a conspicuous location in the workplace, such as in a breakroom or near employee time clocks.
  • If employees do not frequent the workplace, employers may distribute the notice by electronic means.
  • The new obligations are effective March 29, 2021, and so we recommend distributing the notice and displaying it as soon as feasible.
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Employers are busy putting together return-to-work plans and deciding whether they should mandate employee vaccination or simply encourage it. Before creating a uniform vaccination policy, it’s imperative to understand the legislative landscape in each jurisdiction where the employer operates, especially regarding the freedom to mandate vaccines, require proof of vaccination, etc.

While most employers will not be surprised to hear that mandatory vaccination is permitted under the ADA, except for employees with disabilities or sincerely-held religious beliefs, a recent surge in state legislation may call this general rule into question. This pending legislation varies from requiring employers to use government-approved vaccines to outright bans of any consideration of vaccination status, as summarized below. (This information is current as of March 24, 2021.)

Continue Reading Efforts to Craft National Vaccination Policies Complicated by Patchwork Legislation

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For the last year, employers have faced unprecedented challenges navigating the impact of the pandemic. Keeping up with scores of new laws, evolving standards, shelter-in-place orders (see our tracker here), quarantine restrictions and more has meant no rest for the weary. And, in the backdrop, there’s the looming threat of employment litigation arising from all of these new obligations and never-seen-before circumstances.

In the last several weeks, a number of significant wage and hour class actions were filed against large employers for claims relating to COVID-19 screening policies.

According to BTI Consulting Group’s Litigation Outlook 2021 Report, companies expect more litigation than ever before and employment litigation is surging faster than all other areas. To help employers prepare to mitigate any potential litigation dangers, we prepared a checklist of claims to beware of. And, by way of example, we’ve included allegations lifted directly from filed complaints. As experienced litigators, we are also well-seasoned counselors and can advise on strategies to minimize exposure early on in these key areas. Please contact us for assistance.

To read our Report on COVID-19 employment litigation, please click here.
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Whether you need information about a specific US visa type, or are looking for a high-level overview of employer obligations related to the movement of foreign nationals under US immigration and employment law, this handbook covers a wide range of topics and serves as a go-to desk-side guide for US employers.

The publication is available in hard copy to North America recipients or by request through your Baker McKenzie attorney. The electronic (pdf) version is available to everyone. Click here to request your complimentary copies for yourself and your colleagues.

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Last Friday, California Governor Gavin Newsom signed Senate Bill 95 into law, providing California employees with up to two weeks of supplemental paid sick leave (SPSL) for COVID-19 absences, including paid time off for vaccination. The new law reinstates and expands the prior California supplemental paid sick leave law that expired on December 31, 2020, with the key differences outlined below.

Here is what employers need to know about California’s new law:

  • Employers with 26 or more employees are now required to provide SPSL.  The original SPSL law only applied to employers with 500 or more employees.
    • Full time employees are entitled to 80 hours of SPSL, while part time employees receive lesser amounts according to calculations specified in the statute.
    • Unlike the original SPSL, employees must be unable to work or telework to qualify for the new leave benefit.
  • The SPSL obligation takes effect on Monday, March 29, but can apply retroactively to leave taken for covered reasons since January 1, 2021.  Specifically, if employees took unpaid leave for covered reasons earlier this year, employers must pay retroactive SPSL upon oral or written request from such employees.  Employers also must “true up” retroactive paid leaves if the minimum hourly pay specified under the new SPSL exceeds the amount previously paid, again upon oral or written request by employees for the difference.  Such retroactive payments must be made no later than the next payday after receipt of the request for retroactive pay.
  • The new law expands the reasons for which employees may take paid leave to include time off for vaccination and vaccination symptom recovery, as well as to care for family members, neither of which was covered by the original SPSL law.
    • Employees can use SPSL to recover from COVID-19, to schedule a vaccine appointment, to recuperate from vaccine side effects, to seek a medical diagnosis if they suspect they have the virus, to care for a family member in quarantine, or to care for a child whose school or day care has closed because of COVID-19.  Family members include children, grandchildren, grandparents, parents, siblings, or spouses.
  • Employers must begin paying supplemental sick leave by Monday, March 29.  The rates of pay for SPSL differ from the 2020 version of the law, and there are FFCRA-like caps of $511 a day and $5,110 overall.
  • The obligation to provide SPSL runs through September 30, 2021, and like the original SPSL law, employees who start a paid leave by September 30 will be entitled to finish the leave.
  • Employers must list SPSL balances on the paystub, and separately from non-SPSL sick leave balances.  Paystub violations may be enforced starting on the second payday following the law’s March 29 effective date.
  • Employers may require employees to use SPSL before they receive exclusion pay under the Cal/OSHA Emergency Temporary Standard for COVID-19, but employers may not require the use of non-supplemental paid leave (such as regular sick leave or vacation) before taking SPSL.  As before, employees generally are free to decide how much SPSL they wish to use, and employers are limited in how they can verify the need for SPSL.
  • The new SPSL obligation is in addition to whatever local legislation may apply (including city supplemental paid sick leave laws), but employers may be entitled to an “offset” if employees receive other supplemental paid leave benefits.  Several cities, including Los Angeles and San Francisco, have passed their own COVID-19 supplemental sick leave ordinances.
  • Employers must conspicuously display or distribute electronically a poster explaining the new law’s requirements.  The state labor department will issue a model poster any day now.

New York

Effective March 12, 2021, New York has instituted paid leave for employees who receive a COVID-19 vaccination.  The requirements are summarized here.

For help complying with these new laws, please reach out to your Baker McKenzie employment lawyer.

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We recently published an update to our 50-state Shelter-In-Place / Reopening Tracker.

Please see HERE. This is updated weekly.

For your convenience, here is a summary of the major updates from around the country:

  • The following jurisdictions extended their state-wide orders and/or the duration of the current phase of their reopening plans: Delaware, Nebraska, New Jersey, New Mexico and Vermont.
  • The following jurisdictions eased restrictions and/or advanced to the next phase of their reopening plan: Connecticut, Massachusetts and New York.
  • The following jurisdictions lifted quarantine requirements on incoming travelers: Massachusetts and Washington.

You can also view our brochure which highlights key areas of expertise where we can support your business’s tracking and reopening plans.

For more information, please contact your Baker McKenzie attorney.