May Updates

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EEO-1 Reporting is Now Open!

From April 26 to July 19, 2021, applicable employers must submit 2019 and 2020 EEO-1 Component 1 data to the Equal Employment Opportunity Commission (EEOC). The EEOC recently issued guidance on how to submit the required data. For the latest information, employers should visit the EEO-1 website.

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Sixth Circuit: Post-Termination Retaliation Prohibited

On March 31, 2021, in Felten v. William Beaumont Hospital, the Sixth Circuit Court of Appeal stated that retaliating against a former employee post-termination based on protected whistleblowing activity is prohibited under the federal False Claims Act. There, the former employee claimed that the hospital intentionally criticized or slandered him following his termination because of his whistleblowing activity, which prevented him from being able to get another job. This ruling creates a split with the Tenth Circuit. Employers should take care in post-termination activities to avoid violating retaliation laws.

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Ninth Circuit: Motor Carriers Again Subject to AB 5 Rules

On April 28, 2021, in Cal. Trucking Ass’n v. Bonta, the Ninth Circuit Court of Appeal stated that the Federal Aviation Administration Authorization Act (FAAAA) does not preempt the independent contractor requirements of AB 5 as to motor carriers. There originally was a preliminary injunction in place for the application of AB 5 to motor carriers; this case removed the preliminary injunction making motor carriers subject to AB 5 currently.

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California: Eases Restrictions for Vaccinated People

As of May 3, 2021, the California Department of Public Health (CDPH) eased restrictions for vaccinated employees to mirror the changes made by the CDC. Of particular note, asymptomatic vaccinated employees do not need to test or quarantine following a workplace exposure as is otherwise required by the Cal/OSHA Emergency Temporary Standard. Vaccinated employees must otherwise still comply with safety requirements, including wearing masks in the workplace and quarantine if testing positive.

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California: Revised Wildfire Smoke Regulations Adopted

On February 1, 2021, a new section of the California Code of Regulations, “Protection from Wildfire Smoke,” went into effect.  This new section arises from emergency regulations published by Cal/OSHA following an intense fire season in 2018.  The new section has now been adopted as final, and is largely unchanged except to clarify some tables, remove some references to air quality index, and other editorial revisions. Employers can learn more about the regulation on the DIR website.

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California: Wi-Fi Sickness May Prompt Disability Accommodation

On February 18, 2021, Brown v. Los Angeles Unified School District, the California Court of Appeal acknowledged that an employee who is diagnosed with electromagnetic hypersensitivity due to the employer’s wi-fi system, may be eligible for a reasonable accommodation under the California Fair Employment and Housing Act (FEHA). Although this type of disability may not be recognized under the Americans with Disabilities Act, this case highlights the broader protections of FEHA. Employers should ensure proper handling of employee claims of disability.

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Los Angeles County, CA: New Guide to Reopening Businesses

Effective May 6, 2021, businesses in Los Angeles County must follow the “Reopening Safer at Work and in the Community for Control of COVID-19” order. There are dozens of appendices applicable to specific industries (e.g., retail, restaurants, hotels, movie theaters, personal care businesses, etc.). Of particular note, office worksites must post and comply with Appendix D. There are continuing safety rules as well as guidance on vaccinated employees. More information is available on the County website.

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San Francisco, CA: New COVID-19 Worker Protection Ordinance

As of April 26, 2021, the San Francisco Grocery Store, Drug Store, Restaurant, and On-Demand Delivery Service Worker Protections Ordinance requires applicable grocery stores, drug stores, restaurants, and on-demand delivery services to provide workers with face coverings, gloves, hand sanitizer and disinfectant; provide a social distancing policy and instruct workers and customers on this policy; provide contactless payment systems or sanitize payment systems after each use; provide contactless delivery or pick up, if feasible; and pay workers for time spent disinfecting high-touch surfaces. The Ordinance is in effect for two years or until the City declares an end to the local health emergency.

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Colorado: Mask Mandate Loosened

As of May 2, 2021, Colorado now ties its face covering mandate to certain levels of COVID-19 within each county. Additionally, the statewide face covering mandate is limited to only where 10 or more unvaccinated individuals or individuals of unknown vaccination status are present, or where less than 80% of 10 or more people have shown proof of vaccination. Employers should note that some counties may have more strict requirements. Also, the CDC rules are stricter than the new state guidance. Best practice would be to follow the rules offering the most protection to employees.

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Illinois: Expansion of Statewide Paid Sick Leave

As of April 27, 2021, HB 158 permits employees to use up to half of their annual paid sick leave entitlement for personal care of a family member. Personal care includes activities to ensure that the family member’s basic medical, hygiene, nutritional, or safety needs are met, or to provide transportation to medical appointments, for a family member who is unable to meet their own needs. Personal care also means being physically present to provide emotional support to a family member with a serious health condition who is receiving inpatient or home care.

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Chicago, IL: Employers Must Provide Vaccination Time Off Leave

As of April 21, 2021, a new city ordinance requires employers to allow all Chicago employees and independent contractors time off to obtain a COVID-19 vaccine. More specifically, employers cannot take adverse action against workers who take time off to obtain the vaccine, nor can the employer require the workers to obtain the vaccine outside of working hours. Employees may take the time off unpaid or may use accrued paid time off benefits, but cannot be required to utilize such benefits.

If the employer requires workers to get vaccinated, the employer must provide up to four hours of paid vaccination time off per injection, paid at the workers’ regular rate of pay, if the appointment occurs during a scheduled work shift. This ordinance does not have a specific end date. Rather, it expires when the city commissioner of public health releases a written determination that the COVID-19 public health threat has been diminished sufficiently to repeal the ordinance.

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Indiana: Mandatory Device Implantations Prohibited

Effective July 1, 2021, HB 1143 prohibits employers from requiring an applicant or a current employee to have a device (e.g., microchip) implanted or incorporated into their body as a condition of employment or condition to receive additional compensation or benefits. This bill supports employee privacy rights in an age where employers’ ability to monitor remote work and track productivity has become an increasing concern.

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Kentucky: State OSHA Updated for Alignment with Federal OSHA

The federal Occupational Safety and Health Administration (OSHA) requires employers to provide a safe working environment. Kentucky is one of 28 states that implemented its own state-level occupational safety and health program (KOSH) with stricter safety standards than the federal OSHA. Beginning July 2, 2021, HB 475 removes all original provisions of the Kentucky Occupational Safety and Health Act. A new section of the Act prohibits KOSH or its agents from adopting or enforcing any OSHA regulation more stringent than the corresponding federal provision. KOSH will be required to adopt federal OSH standards moving forward.

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New York: Updated Guidance on Healthcare Workers Returning to Work After COVID-19 Exposure and Travel

On April 1, 2021, the New York Department of Health updated previously released guidance regarding health care workers’ returning to work following exposure to COVID-19. The updated interim health advisory supersedes previous guidance and also provides more details on quarantine and furlough requirements for different healthcare settings.

Among the information provided, the health advisory indicates that all healthcare facilities are expected to keep track of which staff members have been vaccinated.  Further, staff members who obtained the vaccine outside of the workplace must inform the facility of their vaccination status in the same manner the facility tracks annual influenza vaccination and tuberculosis testing information. The guidance provides detailed information on routine COVID-19 testing requirements, guidelines for personnel who travel, and strategies to mitigate current or imminent staffing shortages.

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Virginia: New Paid Sick Leave Requirements for Home Health Workers

Effective July 1, 2021, HB 2137 requires employers to provide Virginia home health workers with paid sick leave, which can be used to care for mental or physical injury or illness for the employee’s own self or family members. Paid sick leave accrues at a rate of one hour per 30 hours worked, and accrued, unused leave must be carried over to the following year up to a cap maximum of 40 hours.  Employers may choose to frontload paid sick leave.

To be eligible for leave, the home health workers must work an average of at least 20 hours per week or 90 hours per month. The new law also excludes doctors, dentists, nurses, and similar individuals who are licensed by the Department of Health Professions, work at a hospital, or work fewer than 30 hours per month.

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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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