Now that COVID-19 vaccinations are being administered in the US, employers have to figure out what to do in terms of vaccinating the workforce.
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US Pay Equity and Transparency Developments: What You Need to Know Going Into 2021
By Caroline Burnett, Susan F. Eandi, Emily Harbison & Billie Wenter on
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.
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EEOC Issues Much-Anticipated Q&A Guidance on COVID-19 Vaccinations
By Susan F. Eandi, Emily Harbison, Robin Samuel & Autumn Sharp on
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.
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GC Agenda: Customer-Facing Employee Safety | Dec 2020 / Jan 2021
By Robin Samuel on
Originally published in Thomson Reuters Practical Law
Customer-Facing Employee Safety
In light of the COVID-19 pandemic and approaching holiday season, employers with customer-facing employees, such as retail clerks and restaurant workers, should take steps to protect those employees from potentially hostile encounters with customers who challenge employers’ COVID-19 mask-wearing policies or other safety protocols.
To protect customer-facing employees, employers should:
- Develop or revise policies on workplace violence, safety, and health to address COVID-19 issues.
- Train employees regularly on employer safety policies, government-mandated COVID-19 masking requirements, and appropriate de-escalation techniques.
- Post conspicuously all COVID-19-related policies, both physically in the business location and on employer websites.
When revising policies to address COVID-19, employers must be mindful of the Occupational Safety and Health Act’s General Duty Clause requiring employers to provide a workplace free from recognized harmful hazards, while balancing the employer’s obligation to reasonably accommodate customers with underlying health conditions. Employers should consider:
- Determining which employees are responsible for dealing with customers who refuse to wear masks (for example, security personnel, supervisors, or front-line workers).
- Ensuring that employees are trained on the employer’s relevant policies, state and local COVID-19 requirements, and workplace violence protocols.
- Drafting and posting a policy addressing customer requests for medical accommodations related to mask wearing.
- Offering alternatives to accessing the business, including curbside service or online shopping.
When developing employee training, employers should refer to guidance from:
- The Centers for Disease Control and Prevention.
- The Occupational Safety and Health Administration (OSHA) and state OSHA agencies.
- State health authorities.
- Industry-specific associations.
Key Changes to US Shelter-In-Place / Reopening Orders [Current as of December 11, 2020]
By Michael E. Brewer, Susan F. Eandi & Robin Samuel on
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.
FFCRA and California’s Supplemental Paid Sick Leave Expire December 31 — What Employers Need to Know
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.
Annual Equity Award Filing Chart: Filing & Reporting Requirements for Global Employee Share Plans
By Guest Contributor on
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.
Coronavirus Vaccines are Coming in the US: What Should US Employers Do Next?
By Michael E. Brewer, William F. Dugan, Susan F. Eandi, Paul Evans, Robin Samuel & Autumn Sharp on
In the somewhat-near future, US employers actually may be able to replace face coverings, social distancing markers, plexiglass barriers and Zoom calls with face-to-face interaction and handshakes. At least two COVID-19 vaccines are expected to be issued Emergency Use Authorizations (EUA) by the FDA before the end of 2020, following closely behind the footsteps of the UK, which began vaccinations on December 8, 2020.
While this is good news for the country, the change won’t be felt immediately for most US employers. On December 1, a Centers for Disease Control and Prevention (CDC) panel advised that the first vaccine doses should go to health-care workers and long-term care facility residents. The next group up is reportedly other “high risk” groups: bus drivers, factory workers, teachers, older people and people with underlying conditions. At this point, widespread availability of COVID-19 vaccines is not expected until spring or summer of 2021. So, what should US employers whose workforce may not be eligible for vaccinations until later in the year be doing now to prepare?
Continue Reading Coronavirus Vaccines are Coming in the US: What Should US Employers Do Next?
How a New US Administration Could Change Business Immigration
By Guest Contributor on
Posted in Immigration & Mobility, US
Special thanks to guest contributors David Serwer and Matthew Gorman.
The US is on the brink of a Presidential transition, leaving employers to consider how business immigration will be affected by a new Presidential administration. While the Biden administration has offered insight into its plan for the US as a nation of immigrants, how much of a priority business immigration will be to the new administration is not yet clear. We expect shifts in immigration policies implemented by the outgoing administration. Yet, the impact and timing is uncertain. Employers must be ready to acclimate to changes and to answer questions from the business, human resources and the foreign national population regarding potential effects of those changes on individual employees and the company as a whole. In this alert, we will look at changes that could take place under a new Presidential administration and, theoretically, how quickly those changes could occur.
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Key Changes to US Shelter-In-Place / Reopening Orders [Current as of December 4, 2020]
By Michael E. Brewer, Susan F. Eandi & Robin Samuel on
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: Georgia, Indiana, Maryland, Michigan and Rhode Island.
- The following states imposed more stringent limitations on gatherings and/or reduced capacities for certain businesses and establishments: Arizona, Delaware, Louisiana, New Jersey, Pennsylvania, South Carolina and Washington.
- The Governor of Pennsylvania issued a new order consolidating prior orders regarding cleaning, social distancing, face masks and other workplace protocols. The order, which took effect November 27, also requires all businesses to conduct their operations remotely, through teleworking, unless impossible. Where teleworking is impossible, businesses may conduct in-person operations provided the business complies with the order and related guidance.
- Those planning to escape to Hawai’i should be aware that travelers to Kauai must adhere to the mandatory 14-day self-quarantine regardless of whether a negative test has been obtained.
For more information, please contact your Baker McKenzie attorney.