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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.

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We are pleased to share with you The Global Employer – Global Immigration & Mobility Quarterly Update which is a collection of immigration and mobility alerts and videos from around the world.

Please click here to view.

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Companies understand the benefits of bringing people together, and prior to COVID-19 many invested in new spaces in major cities to attract talent and encourage collaboration. Now that many workforces are operating remotely, how can employers instill company values and culture, maintain the employee experience, and effective and collaborative teams? How does the possibility of a permanent remote workforce affect the war for talent?

In this video, Susan Eandi moderates a discussion with experienced legal minds deep in the weeds of remote work. Erin Heller (Vice President Legal, Western Digital), and Shella Neba (Head of Global Employment Law, Slack Technologies) provide practical tips and takeaways for building out an effective and fair remote work program for a truly global workforce.

Click here to watch the video.

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On March 12, 2021, Governor Andrew M. Cuomo signed Senate Bill S2588, which grants time off for public and private employees to receive a COVID-19 vaccination. The newly enacted legislation is effective immediately, and expires on December 22, 2022.

New Paid Leave Entitlement

Employees receiving the COVID-19 vaccination will be provided with a paid leave of absence from their employer for a sufficient period of time, not to exceed four hours per vaccine injection, unless an employee is permitted to receive a greater number of hours pursuant to a collective bargaining agreement or as otherwise authorized by an employer. Time is to be paid at the employee’s regular rate of pay for each COVID-19 vaccine injection.

Continue Reading New York Enacts COVID-19 Vaccine Paid Leave Law

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Government agencies are increasingly setting their sights on larger targets, ramping up enforcement efforts to root out systemic discrimination. This has important ramifications for employers who may suddenly find themselves defending a claim that, for all intents and purposes, feels like a class action, even though it started as an individual agency charge. With advancements in technology, large data sets on workforces are more common than ever, and government agencies are taking advantage of this and will not hesitate to request data on classes of individuals to search for trends indicating potential discrimination.

EEOC Intensifies Campaign against Systemic Discrimination

In her first public speech since being named as Chair of the EEOC, Charlotte Burrows pledged that the federal government’s workplace civil rights agency will emphasize enforcement of laws to combat systemic discrimination. This commitment to addressing systemic discrimination is consistent with President Biden’s plans to combat racism. (In January, Biden signed an executive order creating a government-wide “racial equity review” and underscoring enforcement of anti-discrimination laws. Read more here.)

Continue Reading Government Agencies Eye Larger Targets: How Employers Can Navigate the Increase in Systemic Litigation

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Special thanks to guest contributors Melissa Allchin and Harry Valetk

Our Labor and Employment, Global Immigration and Mobility, and Data Privacy lawyers discuss vaccine passports — what they are, how countries are already using them domestically and for international travelers, data privacy concerns related to the use of digital health documentation, and what employers should keep top-of-mind as vaccine passports become more common.

Click here to watch the video.