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This Short List addresses the following topics:
  1. DOL Extends Exception Qualifying Telemedicine Visits for FMLA Purposes
  2. DOL Raises Penalties for Employer Violations
  3. Executive Order for Federal Contractor Diversity and Inclusion Training Revoked
  4. Fifth Circuit: Daily Rate May Be Used for Exempt Employees
  5. Sixth Circuit: Employee Statute of Limitations Periods are Unwaivable
  6. California: Local Emergency Paid Sick Leave Laws Updated
  7. California: Certain Truckers Follow Federal Meal and Rest Rules
  8. New York: Single-Occupancy Restrooms Must be Gender Neutral
  9. New York: New COVID-19 Paid Sick Leave Guidance
  10. New York, NY: Fast Food Worker Protections Coming!
  11. North Carolina: A Wave of Local Anti-Discrimination Laws
  12. Seattle, WA: Hazard Pay for Grocery Employees

DOL Extends Exception Qualifying Telemedicine Visits for FMLA Purposes

Recent guidance from the U.S. Department of Labor (DOL) extended the temporary exception qualifying telemedicine/virtual doctor’s visits for the purposes of establishing an employee’s entitlement to leave under the Family and Medical Leave Act (FMLA).  Employees may qualify for FMLA leave if they are receiving continuing treatment for a serious health condition.  Regulations previously required treatment to consist of in-person visits. In July 2020, this standard was temporarily loosened, allowing telemedicine visits to be considered “in-person” visits for FMLA eligibility.  Originally set to expire December 30, 2020, this temporary rule has been extended with the likelihood that it will be made permanent in 2021.

DOL Raises Penalties for Employer Violations

Effective January 15, 2021, the DOL issued a final rule to adjust for inflation the civil monetary penalties assessed or enforced by the Department, pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended.

Executive Order for Federal Contractor Diversity and Inclusion Training Revoked

Executive Order 13950 previously placed limitations on the content of diversity and inclusion training provided to federal contractors related to “stereotyping” and “scapegoating” based on race and sex. On December 22, 2020, a California federal district court issued a preliminary injunction against the Order based on a likely determination that the Order would be found unconstitutional. However, the injunction is now moot as the current White House administration revoked the Order as of January 20, 2021.xxx

Fifth Circuit: Daily Rate May Be Used for Exempt Employees

On December 21, 2020, in Hewitt v. Helix Energy Sols. Grp., Inc., the Fifth Circuit stated that a daily rate employee can satisfy the salary basis test for the executive, administrative, professional, and highly compensated employee overtime exemptions under the Fair Labor Standards Act if (1) the employee is guaranteed at least $684 per week on a salary basis regardless of the number of hours, days, or shifts worked; and (2) a reasonable relationship exists between the guaranteed amount and the amount actually earned.

Sixth Circuit: Employee Statute of Limitations Periods are Unwaivable

On January 15, 2021, in Thompson v. Fresh Products, LLC, the Sixth Circuit Court of Appeal stated that employers cannot enter into contractual agreements that shorten the statute of limitations for filing suit under the Americans with Disabilities Act (ADA) or the Age Discrimination in Employment Act (ADEA) because those laws expressly state the time period within which employees may bring claims. However, it is not clear if this limitation would apply to arbitration agreements. Employers should have claim limitations provisions reviewed by legal counsel for compliance.

California: Local Emergency Paid Sick Leave Laws Updated

All local emergency paid sick leave laws, which previously expired at the end of 2020, have been revived for 2021 and many have been expanded to cover all employers, not just those who were not covered under the Families First Coronavirus Response Act which also expired at the end of 2020. Localities with updates include Long Beach; Los Angeles (City & County); Oakland; Sacramento (City & County); San Francisco; San Jose; San Mateo County; Santa Rosa; and Sonoma County. Note that the state emergency paid sick leave law has not yet been reinstituted.

California: Certain Truckers Follow Federal Meal and Rest Rules

On January 15, 2021, in International Brotherhood of Teamsters, Local 2785 v. Federal Motor Carrier Safety Administration, the Ninth Circuit Court of Appeal agreed with the Federal Motor Carrier Safety Administration’s (FMCSA) determination that federal law preempted California’s meal and rest break rules. The preemption applies to drivers of property-carrying commercial motor vehicles who are subject to the FMCSA’s own rest break regulations.

New York: Single-Occupancy Restrooms Must be Gender Neutral

Effective March 23, 2021, Assembly Bill A5240A requires single-occupancy bathrooms located in public places—such as schools, restaurants and bars, and other establishments—to be designated as gender-neutral restrooms.  Schools and businesses are not required to build new restrooms, but must remove gendered signage on existing single-occupancy restrooms and replace with gender-neutral signage.

New York: New COVID-19 Paid Sick Leave Guidance

On January 20, 2021, the New York Department of Labor issued additional guidance for implementation of the COVID-19 Paid Sick Leave Law. The guidance clarifies circumstances under which employees may be eligible for benefits, including implementing a cap on the number of times benefits may be accessed, and continuation of employee pay while excluded from the workplace due to COVID-19 exposure.

New York, NY: Fast Food Worker Protections Coming!

On July 4, 2021, Proposed Int. No. 1415-A and Proposed Int. No. 1396-A will significantly change the nature of employment for fast food employees. There are restrictions on reductions of hours or schedules, and requirements for “just cause” for termination, progressive discipline policies, employee training, employee investigations, and termination notices. Additionally, layoffs must occur in the order of reverse seniority and there is a recall requirement for up to 12 months. Employers should prepare now for these extensive changes.

North Carolina: A Wave of Local Anti-Discrimination Laws

As of December 1, 2020, localities in North Carolina are free to enact their own anti-discrimination protections without state preemption. As a result, Carrboro, Chapel Hill, Durham, Greensboro, Hillsborough, and Orange County have passed local anti-discrimination ordinances expanding protections in varying instances on the basis of sexual orientation, gender identity, and gender expression. Durham and Greensboro have also added protections on the basis of protected hairstyles, such as braids, locks, and afros.

Seattle, WA: Hazard Pay for Grocery Employees

As of January 29, 2021, grocery businesses in Seattle who employ 500 or more employees worldwide must provide an additional $4/hour hazard pay to non-exempt full-time, part-time, and temporary employees. Grocery businesses do not include convenience stores, food marts, and farmers’ markets. There are additional wage statement, notice, and posting requirements, as well as anti-retaliation protections. Documentation of compliance must be retained for at least three years.

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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