Thursday, December 31, 2020
The U.S. Department of Labor’s Wage and Hour Division (WHD) issued two guidance memos on December 29, 2020 aimed at addressing several pandemic-related compliance challenges faced by employers. The first memo discusses when the WHD will consider electronic notices sufficient to satisfy the posting requirements under several statutes, including the Fair Labor Standards Act (FLSA) and the Family Medical Leave Act (FMLA). The second memo sets forth the requirements for a tele-medicine appointment to qualify as an “in-person” visit for purposes of establishing a serious health condition under the FMLA.
Electronic Notices
Like many enactments regulating the workplace, the FLSA and FMLA require employers to continuously post notices explaining employees’ statutory rights in a conspicuous location in the workplace, typically a break room or other common area where employees tend to gather. With many employers shifting some or all their ope
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On December 27, 2020, President Trump signed the Consolidated Appropriations Act, providing funding for the government as well as COVID-19 relief. Among other provisions relevant to businesses (summarized here), the legislation does
not extend the Families First Coronavirus Response Act (“FFCRA”), which is set to expire on December 31, 2020.
The FFCRA (summarized by HR Legalist here) required most employers with fewer than 500 employees to provide both paid sick leave and emergency family medical leave. While this latest law allows this obligation to lapse when 2021 begins, it does contain an incentive for employers to continue to voluntarily provide the benefits afforded to employees under the FFCRA. Indeed, the Act permits employers to continue to claim the provided tax credits (dollar-for-dollar on wages paid to employees taking FFCRA leave) through March 31, 2020–if the employer provides “FFCRA like” p
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As the sun rises on New Year’s Day 2021, California employment law will once again become more involved and challenging. For many employers, the following are the top five developments they most need to prepare for.
One Measure of Relief: COVID-19 Paid Sick Leave Requirements
Expire
For much of 2020, California law has required that employers of 500 or more employees provide eligible employees COVID-19 Supplemental Paid Sick Leave. Employees qualify for the supplemental paid sick leave if their health care provider advises they self-quarantine due to COVID-19, they are subject to a governmental isolation order related to COVID-19 or their employer bars them from working due to health concerns related to potential transmission. The law requires that covered employers provide qualified full-time employees, for example, up to 80 hours of supplemental paid sick leave.
Service Workers
Employers are also required to identify the number of employees by race, ethnicity, and sex whose annual earnings fall within each of the pay bands used by the U.S. Bureau of Labor Statistics in the Occupational Employment Statistics survey. To do so, the employer must calculate the total earnings for each employee for the entire reporting year, whether or not the employee worked a full calendar year. Lastly, the report must include the total number of hours each employee worked in each pay band.
To avoid duplicative reporting, if an employer is required to submit an EEO-1 under federal law (which provides substantially similar data), the employer may submit a copy of the same report to the DFEH. However, if an employer has multiple establishments, it must file a report for each establishment, as well as a consolidated report. Per S.B. 973, the first annual report will be due on or before March 31, 2021, and subsequent annual reports will be due on or before March 3
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On December 11, 2020, the Food and Drug Administration issued emergency use authorization (EUA) for a COVID-19 vaccine developed by Pfizer. On December 18, 2020, the FDA granted similar approval to a vaccine developed by Moderna. Approximately 100 million doses are expected to be distributed by the end of February. Wider distribution will occur over the next six months or longer, based upon manufacturing capacity for these and other vaccines still in clinical trials.
The availability of these vaccines, even to a limited population at the outset, raises questions about whether employers can require their employees to receive the vaccine. On December 16, the Equal Employment Opportunity Commission amended its technical assistance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” to address common employer questions regarding the vaccine. We anticipate that after the holidays