May 2021 Washington HR Legal Updates

Temporary Paid Family and Medical Leave Act Changes

Update Applicable to:
Applicable to all employers in Washington State offering paid family and medical leave.

What happened?
Washington State has passed temporary amendments to its Paid Family and Medical Leave (PFML) Act, which will give employees and employers special grants related to administering this leave.

What are the details?
Employee Grant
Previously, to qualify for PFML with a serious health condition, an employee would have had to have worked 820 hours in the qualifying period. The temporary amendment makes it so that employees who would not have worked the 820 hours in the qualifying period may now consider this requirement met if:

  • They worked 820 hours in 2019; or
  • They worked 820 hours through the second quarter of 2019, to the first quarter of 2020.

An employee would be ineligible if they have worked insufficient hours in either of these two categories or if they were separated from employment due to misconduct or voluntarily unrelated to COVID-19.

The grant is equal to the normal PFML benefit.

Employer Grant
The statute currently provides grants to two categories of employers: (1) employers with 150 or fewer employees; and (2) employers with 50 or fewer employees who choose to pay the employer-side PFML premiums. If an employer hires a temporary worker to replace an employee on PFML for seven days or more, the employer may receive a grant of $3,000. If an employee’s PFML creates significant additional wage-related costs, an employer may receive a grant of up to $1,000 as reimbursement.

Both grants will expire on June 30, 2023.

What do employers need to do?
Employers should review their existing PFML practices and update their administrative side to take advantage of the additional benefits being provided by the state.

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Washington Phases in New Overtime Requirements

Update Applicable to:
All agricultural employers in Washington State.

What happened?
On May 11, 2021, Senate Bill 5172 was passed, creating a new phased approach for overtime as it applies to agricultural workers.

What are the details?
In response to the recent ruling of the Washington Supreme Court, which provided that dairy workers should receive overtime as other workers do, the legislature worked together on a bill to provide a path for all other agricultural employers on how to provide overtime to their employees. Historically, Washington State had exempted agricultural work from overtime requirements.

The new law sets the following schedule:

  • From January 1, 2022 to December 31, 2022, agricultural workers must be paid time-and-a-half for any hours worked beyond 55 hours in a workweek.
  • From January 1, 2023 to December 31, 2023, agricultural workers must be paid time-and-a-half for any hours worked beyond 48 hours in a workweek.
  • Beginning January 1, 2024, agricultural workers must be paid time-and-a-half for any hours worked beyond 40 hours in a workweek.

Senate Bill 5172 can be found here.

What do employers need to do?
Agricultural employers should review their pay structures and begin making any needed adjustments to prepare for the first changes to overtime on January 1, 2022.

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Washington Passes Workers’ Compensation Liability Presumption and Notice Requirements

Update Applicable to:
All employers operating in Washington State.

What happened?
On May 11, 2021, Washington State Governor Inslee signed into law SB 5115, the Health Emergency Labor Standards Act (HELSA), which expands the workers’ compensation framework for infectious and contagious diseases and imposes new notice requirements on employers.

What are the details?
The new law applies to industries with frontline workers, including:

  • First responders, such as law enforcement and paramedics;
  • Employees in food processing and distribution industries;
  • Maintenance, janitorial, and food service workers at any facility treating patients with infectious or contagious disease subject to a public health emergency;
  • Drivers and operators employed by transit agencies;
  • Childcare facility employees;
  • Retail store employees who have in-person interaction with the general public;
  • Hotel, motel, or transient accommodation employees;
  • Restaurant employees;
  • Home care aides;
  • Correctional officers;
  • Educational employees (K-12 and higher education) who have in-person interaction;
  • Public library employees; and
  • Nursing home employees.

Under a public health emergency, SB 5115 provides a “prima facie presumption” that infectious or contagious diseases transmitted through respiratory droplets, aerosols, or contact with contaminated surfaces are occupational in nature. To rebut the presumption, an employer must establish that exposure occurred during nonemployment (or other employment) activities, leave from work, or during a period of quarantine occurring immediately prior to the injury or occupational disease. The presumption provides worker’s compensation benefits, including temporary disability benefits for frontline employees who contract infectious or contagious diseases. The bill also eliminates the existing three-day waiting period before allowing employees to receive temporary disability benefits.

SB 5115 creates a new reporting requirement to the Washington State Department of Labor and Industries in the event of an outbreak. Under SB 5115, an outbreak exists during a public health emergency when an employer with more than 50 employees at a workplace or worksite has 10 or more employees at the workplace test positive for the infectious or contagious disease.

A “potential exposure” occurs when an individual at the worksite has a positive confirmed case of an infectious disease. Under SB 5115 employers must take the following actions within 24 hours of the occurrence of a “potential exposure”:

  • Provide written notice to all employees and employers of subcontracted employees who were at the worksite within the infectious period who may have been exposed to the infectious or contagious disease.
  • Provide written notice to employee representatives.

Senate Bill 5115 can be found here.

What do employers need to do?
Washington employers should review their workplace practices to ensure there will be minimal possibility of being impacted by the changes passed by SB 5115.

May 2021 Virginia HR Legal Updates

Virginia Mandates Paid Leave for Certain Healthcare Workers

Update Applicable to:
Employers with home health workers as employees in Virginia.

What happened?
House Bill 2137 has gone into effect, requiring employers to provide paid sick leave to their home health workers.

What are the details?
Home health workers are defined as employees who, “provide personal care, respite, or companion services,” to patients enrolled in Medicaid. The bill provides that employers must offer paid sick leave to these employees. The paid sick leave will accrue at a rate of one per 30 hours worked. Any unused hours must be allowed to carry over to the following year in which it accrued. The employee may take the leave to care of their  health needs, or for a family member who is sick. Family is defined as “any other individual related by blood or affinity whose close association with an employee is the equivalent of a family relationship.” Employers may not retaliate against employees for using this leave. Employers may request notice beforehand of the need to use paid sick leave, within reason. However, this procedure must be provided in writing. Employees may still use paid sick leave for unforeseeable instances. Employees must provide reasonable documentation to substantiate the need for the leave if the duration is three or more days in duration.

House Bill 2137 can be found here.

What do employers need to do?
Employers should update their leave policy for the applicable employees to accommodate this new requirement.

May 2021 South Carolina HR Legal Updates

South Carolina Implements COVID-19 Liability Shield

Update Applicable to:
All employers operating within South Carolina.

What happened?
On April 28, 2021, Governor McMaster signed South Carolina’s COVID-19 Liability Immunity Act into law.

What are the details?
Under the law, any claim arising from any actual, alleged, or feared exposure to COVID-19 on the premises of a business or from the operations, products, or services provided by a business would be barred by immunity unless a plaintiff can show by clear and convincing evidence that the business: (1) engaged in conduct that was grossly negligent, reckless, willful, or intentional; or (2) failed to make any attempt to adhere to public health guidance.  Healthcare providers are also covered entities under the Act, but a different standard of proof (preponderance of the evidence) applies to certain acts or omissions in the healthcare setting.

To invoke immunity for acts or omissions related to COVID-19, covered entities would need to show “reasonable adherence” to applicable public health guidance.

The liability protection applies retroactively, meaning, employers are protected from claims arising between March 13, 2020 (the date of the governor’s declaration of a state of emergency) and June 30, 2021, or 180 days after the state of emergency is lifted in the future, whichever is later.

The bill can be read here.

What do employers need to do?
South Carolina employers should ensure they are making a good-faith effort to comply with all regulations placed on them by local and statewide entities, to take full advantage of the protection offered by this legislation.

May 2021 Pennsylvania HR Legal Updates

Philadelphia Passes Law Restricting Pre-Employment Marijuana Tests

Update Applicable to:
All employers in Philadelphia, Pennsylvania.

What happened?
On April 28, 2021, Bill No. 200625 was passed by Mayor Kenney.

What are the details?
Bill No. 200625 was signed to be effective as of January 1, 2022. This bill prohibits employers from requiring prospective employees to undergo testing for the presence of marijuana as a condition of employment. This bill does not impact all employers, the prohibition does not apply to individuals applying to work in the following professions.

  • Police officer or other law enforcement positions;
  • Any position requiring a commercial driver’s license;
  • Any position requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals;
  • Any position in which the employee could significantly impact the health or safety of other employees or members of the public, as determined by the enforcement agency and set forth in regulations pursuant to the bill.

It also does not apply to drug testing required pursuant to:

  • Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security;
  • Any contract between the federal government and an employer, or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant; or
  • Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.

The bill will also require that the agency, which is decided by the mayor, will be tasked with the responsibility for enforcement to make the regulations widely known for the implementation and administration of the new requirements.

The bill can be read here.

A reference article can be found here.

What do employers need to do?
Employers should follow the guidelines listed in the bill to continue to stay in compliance once the bill is active.

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Philadelphia Updates Workplace Protections for Victims of Domestic Violence

Update Applicable to:
All employers in Philadelphia, Pennsylvania.

What happened?
On May 11, 2021, Bill No. 210249 was passed into law.

What are the details?
Bill No. 210249 was passed into law on May 11, 2021, and to be immediately enacted to strengthen workplace protections for victims of domestic violence. The bill adds “coercive control” to the definition of “domestic abuse” under the Promoting Healthy Families and Workplaces bill used by the city’s unpaid safe time leave ordinance: Entitlement to Leave due to Domestic Violence, Sexual Assault, or Stalking Ordinance.

Under both laws, “coercive control” will mean:

“A pattern of threatening, humiliating, or intimidating actions toward an individual used to punish or frighten the individual, including but not limited to a pattern of behavior that, in effect, takes away the individual’s liberty, freedom, or sense of self, safety, or bodily integrity; including, but not limited to, a pattern of one or more of the following actions:

  • Isolating the victim from support networks;
  • Controlling the victim’s economic and other resources, such as transportation;
  • Closely monitoring the victim’s activities, communications, or movements;
  • Repetitively degrading and demeaning the victim;
  • Threatening to kill or harm the victim or the victim’s children or relatives or pets; or to take steps to separate the victim from the victim’s children and or pets;
  • Threatening to publish or publishing sexualized, false, or embarrassing information, videos, photographs, or other depictions of the victim;
  • Damaging or taking the victim’s property or possessions;
  • Displaying or referring to weapons as a means to intimidate or threaten; or
  • Forcing the victim to engage in unlawful activity.”

Both of the ordinances will allow employees to take job-protected leave for reasons not limited to themselves, but also if a family member is a victim of domestic violence. The amounts for leave and pay status will be varied based on the employer size and type of leave being requested.

Bill No. 210249 can be read here.

A reference article can be found here.

What do employers need to do?
Employers should review the law and guidance to ensure compliance with the new definition.

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Reminder: Unemployment Notice Requirements for Pennsylvania Employers

Update Applicable to:
All employers in Philadelphia, Pennsylvania.

What happened?
In March 2020, Governor Wolf signed Act 9 of 2020.

What are the details?
Employers should remember that while Act 9 was signed in response to the pandemic, it is a permanent requirement for any laid-off employee who may make an unemployment claim. The notice requirement of Act 9 must include the following information:

  1. The “availability of unemployment compensation benefits to workers who are unemployed and who meet the requirements” of the Pennsylvania Unemployment Compensation Law;
  2. The “ability of an employee to file an unemployment compensation claim in the first week that employment stops or work hours are reduced” (i.e. eliminating the seven-day waiting period);
  3. The “availability of assistance or information about an unemployment compensation claim” on the website of the Pennsylvania Department of Labor and Industry or by calling its toll-free phone number (888) 313-7284; and
  4. “That the employee will need certain information to file a claim, including:
    1. the employee’s full legal name;
    2. the employee’s Social Security number; and
    3. if not a citizen or resident of the United States, authorization to work in the United States.”

The Department of Labor and Industry has provided a template notice for employers to use, which can be found here.

What do employers need to do?
Employers should ensure they are complying with the notice requirement. If they are not already, employers should adopt the model notice provided by the Department of Labor and Industry to remove any uncertainty in compliance with the requirement.

May 2021 New York HR Legal Updates

New York City Passes Executive Order on Sexual Harassment Reporting Requirements

Update Applicable to:
All employers contracting “human services” in New York, New York.

What happened?
On March 3, 2021, Executive Order No. 64 was passed by New York City Mayor de Blasio.

What are the details?
Executive Order No. 64 was passed into law and took effect on March 3, 2021. The order introduces new sexual harassment reporting requirements on all employers that contract with New York City agencies for “human services.”

“Human services” is defined as services provided to third parties, including social services such as day/foster/home care, homeless assistance, housing and shelter assistance, preventive services, youth services, and senior centers; health or medical services; legal services; employment assistance services, vocational and educational programs; and recreation programs. (See N.Y.C. Admin. Code § 6-129(c)(21).)

With this new order, covered organizations are required to make the following information available to the NYC Department of Investigation (DOI):

  • A copy of the organization’s sexual harassment policies, including complaint procedures.
  • A copy of any complaint or allegation of sexual harassment or retaliation brought by an employee, client, or any other person against the chief executive officer or equivalent principal of the organization, within 30 days of receipt of the complaint.
  • A copy of the final determination or judgment regarding any complaint or allegation.
  • Any additional information the DOI requests to effectuate its review of any investigation and determination.

The information above must be uploaded through the city’s Procurement and Sourcing Solutions Portal (PASSPort). The copies of the complaints or allegations that are raised must be provided to the DOI via the PASSPort system within 30 days of receipt. Any names or other identifying information of individuals, other than the accused that are mentioned in any complaint, final determination, or judgment can be redacted. The DOI reserves the right to request the information that was redacted from the covered organizations after the redacted information is uploaded.

The DOI will be reviewing the complaints or allegations, and gather their findings to provide to the city agencies for their considerations on any contract renewals or changes.

In addition, providers will be required to certify annually in writing that they have filed all required reports or that they have no information to report. While unclear, law firms advise the employer’s sexual harassment policy to be uploaded even in the absence of a complaint. 

The executive order can be read here.

Articles on the order can be found here and here.

More can be read about the PASSPort system here.

What do employers need to do?
To ensure compliance with the new order, covered organizations should revise their sexual harassment policies and implement training as needed. Any employers contracted with New York City agencies should also communicate with them to ensure they are complying when they update their contacts.

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New Workplace Safety Requirements of New York Employers

Update Applicable to:
Employers operating within New York State.

What happened?
On May 5, 2021, Governor Cuomo signed the NY Health and Essential Rights (HERO) Act, passing it into law. However, the governor promised changes to the legislation in the coming days.

What are the details?
The NY HERO Act will require the state’s Department of Labor (DOL) to create workplace safety standards for airborne infectious disease prevention. Employers are required to either adopt the DOL-issued standard that is relevant to their industry and workforce or to establish their disease prevention plan that must satisfy the minimum requirements set by the legislation. Employers will be required to post the plan they choose in the workplace and any employers who distribute an employee handbook must include the plan in their handbook and must distribute the plan to all employees after re-opening following a closure due to an airborne infectious disease. Businesses permitted to operate as of the effective date of the legislation must distribute the plan to existing employees as well.

Employers will be required to permit employees to form a joint labor-management workplace safety committee with employee and employer designees. The committee must be allowed to raise workplace health and safety concerns, review employer workplace safety policies, participate in government site visits relating to workplace health and safety standards, and attend committee meetings and trainings related to workplace health and safety standards. Each workplace that employs the legislation also includes anti-retaliation protections for employees who feel that the workplace is not safe or not adhering to the relevant plan.

The amendments clarify that employers will not need to create a disease prevention plan until 30 days after the DOL creates its model industry-specific protocols.  Additionally, employers would have 60 days following the DOL publication to provide such safety protocols to their employees. The window for the DOL to publish their standards was also extended an additional 30 days, to July 5, 2021. It is unclear how soon we can expect the NY DOL to have the example standards published. It appears that employers will not be required to establish their disease prevention plan until the DOL issues its standards.

Employees will need to provide an employer with 30 days’ notice and an opportunity to cure a violation before bringing a civil action unless the employee can show that the employer has demonstrated an unwillingness to cure a violation in bad faith. The employee may not bring civil action if the employer cures the alleged violation, as well as if six months pass from the date the employee had knowledge of the violation.

The Act can be found here.

Articles covering the bill and the amendments can be found here and here, respectively.

What do employers need to do?
Employers should monitor the NY DOL’s website (here) for the published industry standards. Then adopt the standards as they are published. Employers who wish to create own standards should adopt the DOL standard in the meantime until own standard is finished and ready to be implemented.

May 2021 New Jersey HR Legal Updates

New WARN Changes Upcoming in New Jersey

Update Applicable to:
All employers operating within New Jersey.

What happened?
With the ending of the public health state of emergency in New Jersey, the effective date for changes tied to New Jersey’s Worker Adjustment and Retraining Notification (WARN) Act laws will begin to get closer.

What are the details?
Currently, the new set of changes to New Jersey’s WARN laws are tied to the ending of the state of emergency. With the state of emergency likely to end on or before June 13, 2021, it would place the effective date of these changes on September 11, 2021.

The major changes to the WARN laws in New Jersey would be as follows:

  • The amended law applies to employers with at least 100 employees, regardless of tenure or hours of work.
  • Notice is triggered by the termination of 50 employees, regardless of tenure or hours of work.
  • Terminations across the state are aggregated to determine if the threshold is met, regardless of where within the state the terminations occur.
  • Notice is increased to 90 days, previously 60.
  • Severance pay is automatic (though it integrates with existing employer severance plans, policies, or Collective Bargaining Agreement requirements) – with additional severance due if notice is not given.
  • Employees may not waive their right to severance under the law without state or court approval.

The bill can be read here.

An article with a more detailed breakdown may be found here.

What do employers need to do?
Employers should continue to monitor the situation and prepare to update their procedures related to layoffs and terminations once the effective date is settled.

May 2021 Montana HR Legal Updates

Montana Changes Three Major Employment Laws

Update Applicable to:
Applicable to all employers operating within the state of Montana.

What happened?
Montana Governor Gianforte recently signed three bills that make significant changes to Montana’s Wrongful Discharge from Employment Act (WDEA), Human Rights Act, and Wage Protection Act.

What are the details?
The changes will be listed below in their applicable sections.

Wrongful Discharge from Employment Act: Previously, the WDEA required employers to at most have a probationary period that lasted six months. The new bill will increase this maximum to 12 months, with the possibility of the employer increasing this by an additional six months (for a total of 18 months).  Employers may now also terminate employees after the probationary period in cases where the employees have violated the employer’s written policies several times. Additionally, employers in line with recent Montana Supreme Court decisions will now have “the broadest discretion when deciding to discharge any managerial or supervisory employee.” Awards from successful lawsuits related to unlawful termination have also been changed. Unemployment benefits and income generated as a result of the unlawful termination will not be deducted from the award to the employee.

Employees will now only have six months to file a complaint of an unlawful discharge, as opposed to the previous three years.

Human Rights Act: Employers may not discriminate against a person’s vaccination status or use this status to reach a negative employment decision. This specifically applies to vaccines, which are being administered via an emergency use authorization from the Food and Drug Administration.

Wage Protection Act: These changes will now allow employers to require tip pooling, whereas previously Montana was one of the few states that allowed only voluntary tip pooling. Employers who require tip pooling must follow the below requirements:

  • An employer must notify its employees of any mandatory tip pooling arrangement.
  • A tip pooling arrangement may include employees involved in providing customer service or food preparation, including servers, hosts, bussers, dishwashers, and cooks. Employers and exempt salaried supervisors or managers, however, cannot participate in a tip pool but may keep tips they receive directly from customers based on services they directly provided to the customers.
  • There is no minimum or maximum contribution limits for mandatory tip pools, provided that an employer does not require employees to contribute more than the amount of tips they actually receive to a tip pool.
  • An employer that collects and redistributes employee tips as part of a tip pool must fully distribute any tips collected no later than the regular payday for the workweek in which the tips were collected.
  • An employer must maintain payroll and other records showing the tips received and distributed under the tip pooling arrangement.

An article containing a more detailed breakdown of the changes may be found here.

The bill impacting the WDEA can be found here.

The bill impacting the Montana Human Rights Act can be found here.

The bill impacting the Montana Wage Protection Act here.

What do employers need to do?
Employers should review their hiring policies and update them to take advantage of the changes made by the bills. Additionally, employers may need to update their hiring and employment practices surrounding vaccination status. Employers wanting to utilize mandatory tip pooling should review the requirements above and update their workplace policies as needed.

May 2021 Illinois HR Legal Updates

Illinois Expands Paid Sick Leave Requirements

Update Applicable to:
All Illinois employers who offer paid sick leave benefits.  

What happened?
On April 27, 2021, Illinois Governor Pritzker signed House Bill 158 (HB 158), which amends the Employee Sick Leave Act (ESLA) to cover leave for a family member’s “personal care.”

What are the details?
The bill adds that employees may now use their accrued sick leave benefits for the use of covering a family member’s “personal care.” Personal care is defined to include: 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 own needs, being physically present to provide emotional support to family members with a serious health condition who is receiving inpatient or home care.

Employers should remember that while Illinois does not require employers to provide paid sick leave, outside of Cook County and Chicago, it does place restrictions on how employers may treat employees who use a sick leave policy. For example, employers may restrict the amount of time employees may use the leave for family member care up to the amount of sick leave that would be earned or accrued during six months of the employee’s then-current rate of entitlement.

HB 158 can be found here.

An article going over these changes can be found here. 

What do employers need to do?
Illinois employers should review and update their leave policies to include the newly added definitions for acceptable usage of leave.

May 2021 California HR Legal Update

Cal/OSHA Releases FAQ Regarding COVID-19 Emergency Temporary Standards

 Update Applicable to:
All California employers.

What happened?
On May 5, 2021, Cal/OSHA issued FAQs meant to provide clarity for employers regarding the exclusion of fully vaccinated employees in the workplace if they were exposed to a confirmed positive COVID-19 case.

What are the details?
Prior to the FAQs, employers were required to still fully exclude employees who were exposed to COVID-19, regardless of vaccination status. The new FAQs make it clear that employers do not need to exclude fully vaccinated employees who are not exhibiting symptoms of COVID-19 after exposure.

This guidance was published before the Centers for Disease Control (CDC) published their guidance regarding mask requirements for people fully vaccinated individuals against COVID-19. Employers will need to wait until June 15, 2021, for any major developments regarding face masks in California.

The FAQs can be found here.

What do employers need to do?
California employers should be wary of the requirements created by the California Department of Public Health, as their requirements are not entirely in line with the Emergency Temporary Standards enforced by Cal/OSHA.

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Los Angeles County Passes Paid COVID-19 Vaccine Leave Ordinance

Update Applicable to:
All California employers in Los Angeles County.

What happened?
An urgency ordinance for COVID-19 Vaccine Leave (CVL) was passed on May 18, 2021, adding Chapter 8.205 to Title 8.

What are the details?
Chapter 8.205 was enacted on May 18, 2021 – it is retroactive to January 1, 2021, and will remain in effect until August 31, 2021. It will provide COVID-19 vaccine leave in addition to any job-protected paid leave employees receive under California’s paid sick leave (PSL) law and the Healthy Workplace Healthy Family Act. It applies to all employees performing any work in Los Angeles County’s unincorporated areas and more importantly, it is only available to those who have exhausted all available California supplemental paid sick leave (SPSL).

Full-time employees who have exhausted California SPSL can use up to four hours of CVL per injection, whereas part-time employees can use a proportionate amount, based on their normally scheduled work hours over the two-week period before the injection. As an example, the ordinance provides that 20-hour-per-week employees can use two hours of CVL per injection.

The CVL hours must be paid at their “normal rate of pay,” which is calculated using the employee’s highest average two-week pay throughout January 1, 2021 through May 18, 2021. The ordinance also requires employers to conspicuously display a written notice that is being created by the Los Angeles County Department of Consumer and Business Affairs (LACDCBA). As of May 21, 2021, the notice has not been posted so employers should monitor their website.

The ordinance can be read here.

An article on this topic can be found here.

What do employers need to do?
Employers should update their workplace policies to follow the guidelines and display the notice from LACDCBA.

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Santa Clara County Required Vaccine Inquiries

Update Applicable to:
All Santa Clara County employers.

What happened?
The County of Santa Clara Emergency Operations Center issued a May 18 Order of The Health Officer Of the County of Santa Clara establishing focused safety measures to protect the community from COVID-19 requiring businesses to obtain the vaccination status of all “personnel” who are currently or will be working at a facility or worksite in the county.

What are the details?
Employers will be required by July 1, 2021, to inquire of their employees if they are vaccinated. Employers will need to keep the information documented and maintain the information securely. Employees are not required but employers are encouraged to see proof, such as an individual’s vaccine card. Until an employee certifies that they are fully vaccinated, they will be treated as if they were unvaccinated. Employers should inquire with people who refuse to provide an answer and employees who identify as unvaccinated every 14 days about their vaccination status. To maintain compliance with the order, businesses must maintain a record of (1) the request for vaccine status and (2) who is fully vaccinated and who is not fully vaccinated, until the provision of the Order requiring ascertainment of vaccination status is no longer effective.

The order can be found here.

What do employers need to do?
Santa Clara employers should update their workplace policies to reflect the new requirements.

May 2021 Federal HR Updates

Biometric Requirements Suspended on Certain Visa Applications

Update Applicable to:
All employers utilizing the following visas:

  • H-4
  • L-2
  • E-1
  • E-2
  • E-3

What happened?
United States Citizenship and Immigration Services (USCIS) will allow adjudications for the visa categories listed above to proceed based on biographic information and related background checks, without capturing fingerprints and a photograph. This suspension will apply through May 17, 2023, subject to affirmative extension or revocation of the suspension period by the USCIS director.

What are the details?
This temporary suspension will apply to applicants filing Form I-539 requesting the following:

  • Extension of stay in or change of status to H-4 nonimmigrant status;
  • Extension of stay in or change of status to L-2 nonimmigrant status;
  • Extension of stay in or change of status to E-1 nonimmigrant status;
  • Extension of stay in or change of status to E-2 nonimmigrant status (including E-2C (E-2 CNMI Investor)); or
  • Extension of stay in or change of status to E-3 nonimmigrant status (including those selecting E-3D).

This suspension will apply only to the above categories of Form I-539 applications that are either:

  • Pending as of May 17, 2021, and have not yet received a biometric services appointment notice; or
  • New applications are postmarked or submitted electronically on or after May 17, 2021.

However, The USCIS retains discretion on a case-by-case basis to require biometrics for applicants who meet the criteria above, and any applicant may be scheduled for an application support center (ASC) appointment to submit biometrics.

Form I-539 applicants who have already received a biometric services appointment notice should still attend their scheduled appointment.

The official announcement may be found here.

What do employers need to do?
Employers will likely not need to take any action but may wish to inform their employees who are impacted by this visa change.

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OSHA Changes Position on Recordability of Adverse Vaccine Reaction

Update Applicable to:
All employers.

What happened?
The Occupational Safety and Health Administration (OSHA) has published a new FAQ in which they have backtracked on their previous stances regarding the recordability of adverse reactions in employees who have had the COVID-19 vaccine administered.

What are the details?
Previously, OSHA had stated that employers should record adverse reactions to the COVID-19 vaccine, if they required employees to have them to work, as work-related injuries. However, in their most recent FAQ, OSHA has instead taken the stance that employers should not record any instance of adverse reactions as work-related injuries, even if the vaccine was required by the employer. 

The FAQ can be found here.

What do employers need to do?
Employers may choose to no longer record adverse vaccine reactions in their OSHA recordkeeping log, in accordance to OSHA guidance.