August Updates

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DHHS and DOJ Warn COVID Long-Haulers May be Protected Under ADA

On July 26, 2021, the U.S. Department of Health and Human Services (DHHS) and the Department of Justice (DOJ) issued joint guidance that people experiencing long COVID-19 symptoms may qualify for protections under the Americans with Disabilities Act (ADA) if they substantially limit a major life activity. The guidance also describes suggestions for reasonable accommodations for those who are disabled by long COVID-19. Employers must take care to ensure ADA requirements are followed. Employers may also review a new COVID-19 and Long COVID website published by the U.S. Department of Labor with resources on ADA protections and COVID-19, mirroring the DHHS/DOJ guidance.

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Tax Credits Available for COVID-19 Vaccines Under ARPA

On July 29, 2021, the IRS updated its FAQ on tax credits employers may claim for emergency leave employees take under the American Rescue Plan Act of 2021 (ARPA). Specifically, the updates clarify that eligible employers can claim the credits for providing leave to employees to accompany a family or household member or certain other individuals to obtain immunization relating to COVID-19 or to care for a family or household member or certain other individuals recovering from the immunization. Employers must ensure that ARPA’s pay requirements are met for emergency leave taken for this reason in order to receive the corresponding tax credit.

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U.S. DOL Joint Employer Rule Rescinded

As of September 28, 2021, the current U.S. Department of Labor’s (DOL) joint employer rule will be officially rescinded. On March 6, 2020, the DOL issued a final rule creating a new joint employer standard under the Fair Labor Standards Act (FLSA) using a four-factor balancing test. The DOL is rescinding the rule, in part, in response to a recent court ruling invalidating portions of the rule and inconsistency with current law.

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California: NEW Healthcare Worker COVID-19 Vaccine Requirements!

On July 26, 2021, the California Department of Public Health (CDPH) issued an order requiring certain healthcare workers to be vaccinated or receive regular COVID-19 testing. A little over a week later, on August 5, 2021, CDPH issued another order eliminating the testing option for healthcare workers, requiring instead that defined healthcare workers must be vaccinated by September 30, 2021, subject to limited exceptions for religious beliefs and qualified medical conditions. Exempt employees are still subject to mask and regular testing requirements. Note that the July 26^th order remains in effect until the mandatory vaccine requirement is completed on September 30^th. Affected employers should immediately issue updated vaccination policies and procedures to comply with the new requirements.

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San Francisco, CA: NEW COVID-19 Vaccination Requirement for High-Risk Environments

By August 20, 2021, employers in high-risk environments (e.g., gyms, restaurants, bars, and theaters) must ascertain the vaccination status of their employees, and begin requiring patrons 12 years and older to provide proof of vaccination (except in food to-go situations). Additionally, all employees must provide proof of full vaccination status by October 13, 2021. Employers also have notice posting requirements for employees and patrons. Employers should review the city’s COVID-19 Outreach Toolkit for related resources.

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Connecticut: NEW Long-Term Healthcare Worker COVID-19 Vaccine Requirement

As of August 6, 2021, Connecticut requires all long-term care facility employees to be fully vaccinated against COVID-19, have received a second-dose shot, or have their second-dose shot scheduled by September 7, 2021. Employees may be exempt from the requirement for a qualifying medical reason or religious belief, and the individual is able to perform the essential duties of their job with a reasonable accommodation that does not impose an undue hardship on the employer. Subject to penalty, covered employers are not permitted to employ individuals who are not vaccinated or exempt from the requirements.

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Connecticut: Age Inquiries Banned Pre-Employment

As of October 1, 2021, Public Act 21-69 prohibits employers from inquiring into an applicant’s age (including date of birth and education attendance or graduation dates) on job applications, unless there is a bona fide occupational need or to comply with federal or state law. Employers should update job application forms and have applicable personnel trained on the new requirements.

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Connecticut: Mandatory Harassment Training Not Required Under Specific Conditions

SB 1023 amends the Time’s Up Act, which dictates the conditions and timing in which employers must provide employees harassment prevention training. Previously, employers of three or more employees were required to provide harassment prevention training to all workers hired after October 1, 2019 within six months of hire. Effective October 1, 2021, SB 1023 allows employees to forego training with a new employer under specific conditions:

• The employee received the initial training in person or online from the Connecticut Commission on Human Rights and Opportunities.
• The initial training occurred within two years of being hired.

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Illinois: Work Authorization Status is Protected from Discrimination

On August 2, 2021, HB 121 prohibits employers from discriminating, harassing, or retaliating against applicants and employees on the basis of their work authorization status – i.e., those who are foreign nationals authorized by the U.S. government to work in this country. Specifically, employers cannot refuse to honor work authorization based on the specific status or term of status that accompanies the U.S. authorization to work.

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Nevada: NEW Mandatory Indoor Mask Requirement

As of July 30, 2021, Nevada adopted the CDC’s latest mask requirements now requiring all individuals in substantial or high-risk areas to wear masks in indoor public areas regardless of vaccination status. Earlier this year, Nevada tied its mask requirements to the recommendations of the CDC. A county must remain in a different transmission classification for two consecutive weeks before the mask requirement will be either lifted or applied, and the change is implemented on the Friday of that week.

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New Hampshire: Wage and Hour Records Can be Retained Electronically

Employers are required to maintain employee records of hours worked, wages paid, and employment classification for up to three years. As of June 22, 2021, HB 258 permits these records to be made, signed, acknowledged, approved, and returned electronically.

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New Jersey: Expanded Employee Remedies for Employer’s Failure to Accommodate Disability

On June 15, 2021, in Richter v. Oakland Board of Education, the New Jersey Supreme Court stated that the New Jersey Law Against Discrimination allows employees to pursue damages against employers for emotional and physical injury and distress for failure to accommodate a disability. Also, the employer’s failure to engage in the interactive process was enough for the employee to establish a claim, even without an adverse employment action (e.g., termination, demotion, etc.). Employers must take care to ensure disability accommodation procedures, including the interactive process, are regularly followed.

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Oregon: COVID-19 Rules Off, On Again

On June 25, 2021, Oregon Governor Kate Brown issued an executive order ending all remaining COVID-19 restrictions effective June 30, 2021. On August 13, 2021, the state reinstituted a universal mask mandate for individuals five or older, regardless of vaccination status. Employers should immediately adjust mask policies. The renewed mandate follows a recent vaccine requirement or submission to weekly COVID-19 testing for all healthcare workers in Oregon.

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Oregon: Employee Paid Sick Leave Use Expanded

From July 22, 2021 through January 17, 2022, employees may use accrued paid sick leave for expanded public health emergency reasons: “(d) An emergency evacuation order of level 2 (SET) or level 3 (GO) issued by a public official with the authority to do so, if the affected area subject to the order includes either the location of the employer’s place of business or the employee’s home address; or (e) A determination by a public official with the authority to do so that the air quality index or heat index are at a level where continued exposure to such levels would jeopardize the health of the employee.”

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Pittsburgh, PA: New Temporary Paid Sick Leave Enacted

On July 29, 2021, Pittsburgh enacted a new temporary COVID-19 paid sick leave (TCPSL) ordinance (Section 626B). The previous ordinance (Section 626A) expired on July 17, 2021. The new ordinance largely mirrors the previous ordinance and requires a new bank of 80 hours TCPSL for full-time employees (pro-rated for part-time employees) of employers with 50+ employees, expiring on July 29, 2022. TCPSL may now also be taken for the employee’s or family member’s need to obtain a vaccine or vaccine booster. Employers should update payroll processes and paid sick leave policies to reflect the current requirements.

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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

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