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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: New Mexico, Oklahoma, Oregon, South Dakota, Utah, Vermont and Washington, D.C.
  • The following states imposed more stringent limitations on gatherings, face mask requirements, and/or reduced capacities or limited closures of certain businesses and establishments: Kentucky, Maryland and Minnesota.
  • Indoor dining was suspended in New York, while in Michigan certain entertainment venues (other than restaurants and bars) were permitted to reopen for in-person business with limited capacity.
  • Connecticut updated its travel guidance to, among other things, reduce the quarantine time from 14 days to 10 days for people arriving from any jurisdiction beyond the neighboring states of New York, New Jersey and Rhode Island.

For more information, please contact your Baker McKenzie attorney.

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California Gov. Gavin Newsom (D) closed this most recent legislative season by signing dozens of new bills into law that affect California employers. Though some were emergency bills and took effect upon signing, the remainder take effect on Jan. 1, 2021.

The laws are wide-ranging, encompassing topics from pandemic-related measures, to the first board of directors’ diversity mandate of its kind in the U.S. Below is an overview of new requirements that employers should be aware of in a several key areas—workplace safety and Covid-19, worker classification, and diversity and fair pay.

Click here to continue reading.

This article was originally published in Bloomberg Law.

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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 from around the world.

Please click here to view.

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It’s hard to miss the uptick in litigation against high profile US companies over alleged unequal pay for female employees these days. Cases seem to hit the headlines frequently and several targeted industries include professional sports, professional services organizations, and technology companies. With equal pay protections constantly expanding, and employees often seeking class certification, in 2021, employers should be especially diligent in identifying and rectifying unjustified pay disparities.

So, if you need a New Year’s Resolution, consider undertaking a pay equity audit. This will position your company to determine, at baseline, whether any unjustified pay disparities exist, where those disparities lie and proactively take any remedial measures to help mitigate against becoming a headline. In conducting a pay equity audit, employers should pay close attention to the legal backdrop of pay equity, and how that landscape is changing.

As we head into the New Year, here are several US developments companies ought to know:

California Enacts First Employee Data Reporting Law

On September  30, California Gov. Gavin Newsom signed Senate Bill 973, Sen. Hannah-Beth Jackson’s bill relating to annual reporting of employee pay data. SB 973 requires private employers with 100 or more employees to report employee pay data to the Department of Fair Employment and Housing (DFEH) by March 31, 2021, and annually thereafter, for specified job categories by gender, race and ethnicity. California will be the first state to require employers to submit such employee data.

Continue Reading US Pay Equity and Transparency Developments: What You Need to Know Going Into 2021

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On December 16, 2020, the EEOC posted a new section on vaccinations in its COVID-19-related technical assistance Q&As, only five days after the FDA granted its first Emergency Use Authorization for a COVID-19 vaccine. Section K of the EEOC’s COVID-19 Q&As (“Vaccinations”) updates and expands the EEOC’s publication “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” providing information to employers and employees regarding the impact legal requirements under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA) may have on whether and how COVID-19 vaccines can be utilized in the workplace.

The Q&As are linked here, and copied below for ease of reference.

K. Vaccinations

The availability of COVID-19 vaccinations may raise questions about the applicablilty of various equal employment opportunity (EEO) laws, including the ADA and the Rehabilitation Act, GINA, and Title VII, including the Pregnancy Discrimination Act (see Section J, EEO rights relating to pregnancy).  The EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.

1.1  ADA and Vaccinations

K.1. For any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (FDA), is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) a “medical examination” for purposes of the ADA? (12/16/20)

No.  The vaccination itself is not a medical examination.  As the Commission explained in guidance on disability-related inquiries and medical examinations, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”  Examples include “vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.”  If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.

Although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.  If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.”  See Question K.2.

Continue Reading EEOC Issues Much-Anticipated Q&A Guidance on COVID-19 Vaccinations

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Originally published in Thomson Reuters Practical Law 

Customer-Facing Employee Safety

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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 states extended their state-wide orders and/or the duration of the current phase of their reopening plans: Alabama, Colorado, Georgia, Illinois, Iowa, North Dakota, Rhode Island, South Carolina, Utah, Washington and Wyoming.
  • The following states imposed more stringent limitations on gatherings, face mask requirements, and/or reduced capacities or limited closures of certain businesses and establishments: Indiana, Maine, Massachusetts, Mississippi, Nebraska, North Carolina, Pennsylvania and Virginia.
  • New Jersey updated its travel guidance to, among other things, reduce the quarantine time from 14 days to 10 days for people arriving from any jurisdiction beyond the immediate region of Connecticut, Delaware, New York and Pennsylvania. The State of Maine also updated its travel guidance to effectively reduce the quarantine time upon arrival to Maine.

For more information, please contact your Baker McKenzie attorney.

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The Families First Coronavirus Response Act (FFCRA) signed into law in March is set to expire December 31, 2020. The law requires covered employers with less than 500 employees to provide US-based employees with paid sick leave (up to 80 hours) and paid family care leave (up to 10 weeks) for COVID-19-related purposes. To help employers offset this cost, the government provides a special FFCRA-paid leave tax credit when employees take qualifying leave. FFCRA does not apply to larger employers.

In September, Governor Gavin Newsom closed the so-called “FFCRA loopholes” for California-based employees by signing A.B. 1867 into law. The new statute took effect immediately and requires employers to provide up to 80 hours of “COVID-19 supplemental paid sick leave” to the following “covered workers:”

  • California-based employees of larger employers (500 or more employees in the U.S.);
  • Specified “food sector workers” (A.B. 1867 effectively codifies Governor’s Newsom’s existing Executive Order already granting paid COVID-19 paid sick leave to these workers); and
  • Health care workers and emergency responders who were excluded from FFCRA by their employers.

California’s Supplemental Paid Sick Leave Act (CSPSL) is also set to expire December 31, 2020, unless FFCRA is extended by Congress.

Here’s what you need to know about the expiration of these leave laws:

  • FFCRA extension unlikely | The likelihood of extension under the current administration appears slim. President-elect Biden may push for a renewal once he is in office next year, but a lot will depend on the virus’s continuing impacts on U.S. employees.
  • Employers’ obligation ceases | Companies’ obligation to provide paid or unpaid leave for personal or child care issues relating to COVID-19 will end.
    • Employers who voluntarily continue such paid leave cannot claim the current tax credits for wages provided to qualifying employees.
  • Cashing out | In its current form, neither law requires employers to “pay out” unused COVID-19 leave to employees. Any balance of unused leave will expire on January 1, 2021, unless either law is extended or otherwise amended.
  • Leave over the New Year | Employers may wonder how to handle employees who are already out on leave when the laws expire New Years Day. The answer is different under FFCRA and CSPSL.
    • FFCRA benefits automatically end on December 31, and cannot continue into the new year. Leave taken after December 31 must be taken through some other mechanism (accrued PTO, FMLA if applicable, etc.). Whether the employee gets paid will depend on the type of leave applied.
    • Under CSPSL, if the law expires while a worker is taking COVID-19 Supplemental Paid Sick Leave, the worker is permitted finish taking the  leave they are entitled to receive (i.e., 80 hours for full time employees) even if some leave post-dates the law’s sunset date.
  • Other types of available leave | State and local sick leave statutes may entitle employees to time off from work, with or without pay, due to COVID-19 reasons even following the expiration of the FFCRA and CVSPL. Workplace safety statutes, such as Cal/OSHA’s temporary standards for workplace safety may also require leave and/or pay.  Employees with COVID-19-related medical complications may have serious health conditions that make them eligible for traditional unpaid FMLA leave. Longer-term COVID-19 medical complications could also meet the definition of a disability under the Americans with Disabilities Act and possibly qualify the employee for reasonable accommodations, including unpaid leave from work. Note that Neither the FMLA or ADA provide leave rights due to employee child care needs.
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Special thanks to guest contributors Narendra Acharya, Nicole C. Calabro, Denise M. Glagau, Sinead M. Kelly, Jennifer Kirk, Barbara Klementz, Lindsay A. Minnis, Aimee Soodan, and Brian K. Wydajewski.

It is almost the end of the calendar year and time for multinational companies to consider the necessary tax and regulatory filings for global share plans triggered by the close of 2020.

As you consider the steps your company may need to take to start the new year right, please see our Annual Equity Awards Filing Chart, which describes key employee share plan filing and reporting requirements.