February 2021 Virginia HR Legal Updates

Virginia Approves Permanent COVID-19 Safety and Health Standards

Update Applicable to:
Employers operating within the state of Virginia.

What happened?
On January 12, 2021, the Virginia Safety and Health Codes Board voted 9-4 to approve a permanent safety and health standard (Permanent Standard) requiring employers to take steps to protect workers from Coronavirus (COVID-19).

What are the details?
The Permanent Standard largely mirrors the Temporary Standard that Virginia has previously passed and continues to require employers to, among other things:

  • Group jobs into categories of high, medium, and low exposure risk;
  • Inform employees of the methods of self-monitoring for signs and symptoms of COVID-19;
  • Develop and implement policies for employees with symptoms consistent with COVID-19;
  • Provide notice to specific individuals who have had contact with infected employees;
  • Develop and implement policies and procedures for employees to return to work after testing positive for COVID-19;
  • Create a workplace infection protection program if they have job tasks with risks classified as “very high” or “high,” and/or if they have 11 or more employees with job tasks classified as “medium”;
  • Train workers on COVID-19 and its infection protection program if the employer has job tasks with risks classified as “very high” or “high”; and

Additional important changes have been made to the permanent standard:

  • Using the phrase “close contact” (defined as being within six feet of someone with COVID-19 for a total of 15 minutes or more in a day) rather than just “six feet” when discussing COVID-19 exposure.
  • Explaining face shields are not considered a face covering and can be worn only if a face covering cannot be worn due to a medical condition.
  • Scaling back the requirement to report all positive COVID-19 cases to the Virginia Department of Health. Instead, employers will be required only to report to the Virginia Department of Health “outbreaks” of two or more cases of their own employees in the workplace within a 14-day period.
  • Changing the time-based return-to-work requirement from 10 days with three symptom-free days to 10 days with only one symptom-free day, to be consistent with CDC requirements.
  • Eliminating the requirement for employers to comply with respiratory standards when employees travel together in work vehicles due to shortages of N-95 and other respirators.
  • Explaining that Vermont Occupational Safety and Health Administration will not bring an enforcement action against employers making good faith efforts to secure personal protective equipment in short supply.
  • The Permanent Standard also requires employers with hazards or job-task risks classified as “very high,” “high,” or “medium” to implement certain ventilation controls to air-handling systems under the employer’s control including increasing airflow supply to occupied spaces (provided it does not create a greater hazard), routinely clean and inspect filters, and generate “clean-to-less clean” air movements by reevaluating the positioning of supply and exhaust air diffusers and/or dampers.

You can read more about the safety standard here.

The final permanent safety standard can be found here.

What do employers need to do?
Virginia employers should review the above information and linked resource to help determine the need for any changes to workplace policies.

February 2021 Washington HR Legal Updates

Seattle City Council Passes Hero Pay Ordinance

Update Applicable to:
Employers operating within the City of Seattle.

What happened?
On January 25, 2021, the Seattle City Council unanimously passed an ordinance requiring hazard pay for certain grocery business employees during the COVID-19 pandemic.

What are the details?
Much like the cities of California, Seattle has seen it fit to increase compensation to their grocery store workers for the risk they take when working with the public during a pandemic. The ordinance applies only to grocery businesses in Seattle that employ 500 or more employees worldwide regardless of where those employees are employed. A grocery business is defined as a retail store in Seattle that is either of the following: 

  • Over 10,000 square feet and primarily engaged in retailing groceries for offsite consumption; or 
  • Over 85,000 square feet with at least 30% or more of its sales floor area dedicated to the sale of groceries.

Any worker who performs work at a retail location of a grocery business in Seattle and who meets the definition of “employee” under Seattle Municipal Code Section 12A.28.200 must receive hazard pay.  These are any employees who are not employed in a bona fide executive, administrative, professional, or outside sales capacity.  Covered employees include, but are not limited to, full-time employees, part-time employees, and temporary workers. In addition to their regular compensation, the ordinance requires covered employees to receive $4 per hour in hazard pay for each hour worked in Seattle.  Employers are prohibited from reducing employee compensation to prevent employees from receiving the additional $4 per hour in required hazard pay.

Within 30 days of the ordinance’s effective date, employers must display a written notice of rights under the ordinance in a conspicuous and accessible place at any workplace or jobsite where any of their employees work.  The notice must be in English and the primary language(s) of the employees at the workplace. The notice must provide information regarding (1) the right to hazard pay guaranteed under the ordinance; (2) the right to be protected from retaliation for exercising in good faith the rights protected by the ordinance; and (3) the right to file a complaint with the Seattle Office of Labor Standards or bring a civil action for ordinance violations.

You can read more about the ordinance here.

What do employers need to do?
Applicable Seattle employers should update their payroll policies to accommodate this temporary ordinance, and work with onsite managers to ensure the posting requirement is met.

February 2021 Florida HR Legal Updates

New Effective I-9 and E-Verify Requirements

Update Applicable to:
All Florida employers.

What happened?
A new law in Florida has updated how businesses, both private and public, must handle their I-9 verification process and the storage of related documents.

What are the details?
Public Employers: Beginning January 1, 2021, every public employer, contractor, and subcontractor in Florida must register with and use the E-Verify system to verify the work authorization status of all newly hired employees. No public contract may be entered into unless each party to the contract registers with and uses the E-Verify system.

Private Employers: Beginning January 1, 2021, a private employer must, after making an offer of employment that has been accepted by a person, verify the person’s employment eligibility by either using the E-Verify system or requiring the person to provide the same documentation that is required by the U.S. Citizenship and Immigration Services on its Form I-9, Employment Eligibility Verification. Private employers utilizing the I-9 documentation option must maintain a copy of the documentation provided for at least three years after the person’s initial date of employment.

An article covering this law can be found here.

What do employers need to do?
Florida employers should look to update their documentation storage process to ensure the ability to properly store documents for the required amount of time. Additionally, public employers, contractors, and subcontractors should update their I-9 verification process and immediately move to using E-Verify, when possible.

February 2021 California HR Legal Updates

Ninth Circuit Decision Impacts Employers Expense Reimbursement Procedures

Update Applicable to:
All California employers.

What happened?
The Ninth Circuit Court of Appeals held that an employer’s per diem expense reimbursement payments functioned as compensation for work rather than business expense reimbursements. As a result, the employer was required to factor those per diem payments into employees’ “regular rate of pay.” An employee’s regular rate of pay is used to calculate overtime under the Fair Labor Standards Act (FLSA) and California Labor Code. It is also used to calculate double-time, sick leave, and reporting time pay in California.

What are the details?
The following breakdown of the applicable court case and what it may mean for employers is provided by the California Labor and Employment Law Blog.

The Case: Clarke v. AMN Services

AMN is a healthcare staffing company that places hourly-paid clinicians on short-term assignments. Each week AMN paid traveling clinicians a per diem amount to reimburse them for the cost of meals, incidentals, and housing while working over 50 miles away from their homes. AMN did not report these payments as wages and classified them as tax-exempt.

AMN used a number of factors to calculate the per diem payment, including the extent to which clinicians worked their scheduled shifts. Notably, under the per diem policy, the payments could decrease if clinicians worked less than their scheduled shifts, and work hours in excess of those scheduled could be “banked” and used to “offset” missed or incomplete shifts. Additionally, AMN provided “local” clinicians per diem payments under the same policy, but such payments were reported as taxable wages.

The Ninth Circuit determined that these characteristics indicate that the per diem payments to traveling clinicians functioned as compensation for hours worked, and not expense reimbursements. The court relied heavily on AMN’s decision to pay both local and traveling clinicians under the same per diem policy but treat payments to local clinicians as wages. The Court also noted that “AMN offers no explanation for why ‘banked hours’ should effect” per diem payments, and found “the only reason to consider ‘banked hours’ in calculating” per diems is to compensate clinicians for hours worked.”

“Many California employers implement a business expense reimbursement policy aiming to fully reimburse employees for all expenses they incur, while (1) minimizing administrative burdens and expenses, and/or (2) avoiding the creation of preferential work assignments and a perverse incentive for employees to “incur” expenses.

The process of submitting, reviewing and processing expense reimbursements is cumbersome. It also can be a liability minefield. Generally, an employer must reimburse an employee when it knows or had reason to know the employee incurred a necessary business expense. Thus, employers may be obligated to reimburse employees even if they do not actually request reimbursement. This issue leads some employers to adopt a flat-sum reimbursement policy in which the amounts paid are at least partially fixed, such as AMN’s per diem policy. And they often issue these payments automatically, without obtaining documentation of the expenses from employees. This issue is especially important during the COVID-19 pandemic because California employers often use fixed expense reimbursement amounts for computer and other expenses for remote workers.

The Clarke decision should concern any employer with a business expense policy that includes such flat-sum or automatic reimbursement payments. Significant liability can arise if reimbursement payments, in whole or in part, are deemed to function as wages that must be factored into the regular rate of pay. And, of course, plaintiffs arguing such payments were actually “wages” may then also claim they were not properly reimbursed for their business expenses. Employers should carefully review any flat-sum or automatic reimbursement policies and procedures to ensure that they do not present any of the dangers illustrated in the Clarke decision.”

What do employers need to do?
Employers utilizing per diem reimbursement procedures should review the facts of the case and update their workplace policies if there seem to be too many similarities. Clients may need to consult their employment attorney if they have questions.

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Various “Hero” Hazard Pay Ordinances Adopted Around the State

Update Applicable to:
Large California grocery store employers with employees located in Long Beach, Santa Monica, Los Angeles, or Oakland.

What happened?
Several cities and counties have passed ordinances requiring specific employers to pay hazard pay to their employees while they work during the COVID-19 pandemic.

What are the details?
Currently, three main cities in California have passed some sort of ordinance related to “hero” or hazard pay for these employees, while one, Santa Monica, is still tentative. The impacted employers vary from each ordinance but generally speaking, they all impact large grocery store operators in the state. 

Included below are summaries of who each of these ordinances apply to with a link to an article covering the ordinance.

Long Beach’s Ordinance applies to “grocery stores” with more than 300 grocery workers nationally and more than 15 employees per grocery store within the city of Long Beach.

Los Angeles’ Ordinance (the ordinance has passed as of early February 2021) applies to large publicly traded employers, or employers that have at least 300 employees nationwide and more than 10 employees per store in the unincorporated areas of Los Angeles County.

Oakland’s Ordinance applies to employers that operate large grocery stores in Oakland. Specifically, a “covered employer” is one who employs 500 or more employees nationwide, or is a franchise associated with a franchisor or a network of franchises with franchisees that employ more than 500 employees in the aggregate, regardless of where those employees are employed.

Santa Monica is still tentative, and is still waiting “for county supervisors to finalize their own ordinance.” However, it should be expected in the near future.

What do employers need to do?
Large grocery store employers should review the linked articles to review the necessary changes that may be required of them in various locations.

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COVID-19 Sick Leave Programs Extended

Update Applicable to:
Most Sonoma County, San Francisco, and City of Los Angeles employers.

What happened?
Employers in these three jurisdictions will need to continue to provide their existing COVID-19-related paid sick leaves that are required of them due to local ordinances. Each order has been extended for varying amounts of time with slight alterations, like no longer being applicable for non-profit companies, and extending the COVID-19 sick pay hours bank without refreshing it.

An article that does a great job of summarizing the changes and duration of the increases in each area can be found here.

What do employers need to do?
Employers in these areas should read the linked article above and possibly train their management staff on the changes if needed.

February 2021 Federal HR Updates

ICE Extends I-9 Verification Flexibility

Update Applicable to:
All employers with remote workforces.

What happened?
On January 27, 2021, U.S. Immigration and Customs Enforcement (ICE) announced the extension of flexibilities in the rules related to Form I-9 compliance. 

What are the details?
On March 19, 2020, due to precautions implemented by employers and employees associated with COVID-19, the Department of Homeland Security (DHS) announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) under section 274A of the Immigration and Nationality Act. This policy only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.

The current extension will apply through March 31, 2021.

The original announcement can be found here.

The current announcement can be found here.

What do employers need to do?
Employers with continued remote worksites may keep operating as they have.

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OSHA Issues New COVID-19 Guidance

Update Applicable to:
All employers.

What happened?
On January 29, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) released guidance for employers: “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”

What are the details?
The guidance contains recommendations as well as descriptions of mandatory safety and health standards.  It does not create new legal obligations for employers.  Instead, as OSHA states, “he recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.”

The resource touches on several aspects of COVID-19 prevention programs in the workplace. OSHA has noticed that programs that touch of some of these aspects are effective. The four key elements that should be included in these programs are:

  1. Identification of where and how workers might be exposed to COVID-19 at work by conducting a hazard assessment.
  2. Identification of a combination of measures that will limit the spread of COVID-19 in the workplace.  This includes a combination of eliminating the hazard, implementing engineering controls, establishing workplace administrative policies, and providing personal protective equipment (PPE), among other measures. Employers should prioritize controls from most to least effective to help protect workers from COVID-19 hazards.
  3. Instruct workers who are infected or potentially infected to stay home and isolate or quarantine to prevent or reduce the risk of transmission of COVID-19.
  4. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards.

Other content covered in the resource includes return-to-work criteria, engineering controls, face coverings and PPE, sanitization, cleaning, and disinfecting practices.

The guidance may be found here.

What do employers need to do?
Employers should read the provided information and review it with their workplace policies in mind.

January 2021 Federal HR Updates

EEOC updates Compliance Manual on Religious Discrimination

Update Applicable to:
All employers.

What happened?
On January 15, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued an updated Compliance Manual on Religious Discrimination.

What are the details?
The update supersedes the EEOC’s Compliance Manual on Religious Discrimination issued on July 22, 2008. The EEOC noted that “the contents of the manual do not have the force and effect of law and are not meant to bind the public in any way. The manual is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.”

According to the EEOC, the prior version of the manual, last updated in 2008, “did not reflect recent legal developments and emerging issues.” Since 2008, several Supreme Court decisions, as well as decisions from the lower courts, “have altered the legal landscape.” The update includes discussions of recent U.S. Supreme Court decisions and lower court decisions rendered subsequent to the publication of the prior compliance manual.

The updated manual covers topics ranging from discrimination in employment decisions to harassment to reasonable accommodations in the workplace. The manual also discusses the interaction of Title VII of the Civil Rights Act of 1964 (Title VII) with the First Amendment and the Religious Freedom Restoration Act (RFRA).

The updated manual can be found here.

An article providing additional information can be found here.

What do employers need to do?
Employers looking to update workplace policies, or who simply wish to stay up to date on federal guidance should review the manual.

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CDC Expands Guidance on Workplace COVID-19 Testing to Require Informed Consent

Update Applicable to:
All employers.

What happened?
On January 21, the U.S. Center for Disease Control and Prevention (CDC) issued new guidance for businesses and employers on SARS-CoV-2 testing of employees, as part of a more comprehensive approach to reducing transmission of the virus in non-healthcare workplaces.

What are the details?
While the CDC had already released some guidance on the matter of workplace testing (last updated in October), the CDC’s more recent guidance places a new emphasis on informed consent prior to testing and measures an employer can take to ensure employees are fully supported in their decision-making.

Specifically, the CDC’s guidance states:

“Workplace-based testing should not be conducted without the employee’s informed consent. Informed consent requires disclosure, understanding, and free choice, and is necessary for an employee to act independently and make choices according to their values, goals, and preferences.”

While this new guidance may be seen as the CDC now requiring consent from employees, it does not appear to prevent employers from requiring testing as a condition of entering the workplace. Instead, the CDC recommends that employers make it very clear how the testing program may impact employees’ lives, including employment decisions that may result from testing positive or negative to COVID-19.

The CDC provides a list of key measures an employer should implement when developing an SAR-CoV-2 testing program in the workplace to ensure employee informed consent and a supportive environment:

  • Ensure safeguards are in place to protect an employee’s privacy and confidentiality.
  • As noted above, provide complete and understandable information about how the employer’s testing program may impact employees’ lives, such as if a positive test result or declination to participate in testing may mean exclusion from work.
  • Explain any parts of the testing program an employee would consider especially important when deciding whether to participate. This involves explaining the key reasons that may guide their decision.
  • Provide information about the testing program in the employee’s preferred language using non-technical terms. Consider obtaining employee input on the readability of the information. Employers can use this tool to create clear messages.
  • Encourage supervisors and co-workers to avoid pressuring employees to participate in testing.
  • Encourage and answer questions during the consent process. The consent process is active information sharing between an employer or their representative and an employee, in which the employer discloses the information, answers questions to facilitate understanding, and promotes the employee’s free choice.

In addition, in order to ensure informed consent, an employee must be provided certain disclosures regarding the workplace testing program. Of course, the disclosures must include those required in the U.S. Food and Drug Administration (FDA) emergency use authorization patient fact sheet external for the particular test, such as the type of the test, how the test will be performed, and known and potential risks.  Notably, these disclosures must be provided during the consent process, meaning employers will have to know this information and ensure it is provided employees prior to the employee agreeing to the test.

Employers will need to consider which aspects of the testing program may be more relevant than others to an employee’s decision whether to accept an offered test and include the appropriate disclosures. Areas to consider include the process for scheduling tests and how the cost of the tests will be covered, what employees should expect at the testing site (e.g., screening), recommended next steps if an employee tests positive, and what assistance is available should an employee be injured while the test is administered.

The CDC’s new guidance can be found here.

What do employers need to do?
Employers looking to utilize required COVID-19 testing programs should review the above information when looking to create relevant workplace policies.

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FFCRA 2021 – Now What?

Update Applicable to:
All employers.

What happened?
With the New Year many questions remain about the FFCRA and how it now impacts the workplace.

What are the details?
While covered employers will not be required to offer additional paid leave benefits under FFCRA after December 31, 2020, they may elect to voluntarily provide FFCRA leave and claim a corresponding payroll tax credit for any leave taken through March 31, 2021. If an employee has exhausted all their FFCRA sick leave as of December 31, 2020, they would not be eligible to receive any additional FFCRA sick leave in 2021. However, if an employee has not exhausted all their FFCRA sick leave as of January 1, 2021, a covered employer may elect to voluntarily extend the employee’s deadline to use any remaining FFCRA sick leave through March 31, 2021. In exchange, the employer could seek a payroll tax credit for the employee’s use of the original allotment of FFCRA leave.

FFCRA sick leave or expanded FMLA leave taken before December 31, 2020 will still count against the total amount of any tax credits covered employers may claim for leave taken through March 31, 2021. Employees who already have exhausted their 80 hours of emergency paid sick leave and/or 12 weeks of emergency family leave will not be afforded a new allotment. Keep in mind that employers with 15 or more employees are still required to abide with the ADA, and any more generous state laws with protections for disabilities that may trigger an interactive process and reasonable accommodations (such as the FEHA in California).

Employers should be mindful of how this interacts with their existing FMLA policy (and any equivalent state law such as the CFRA in California). Regardless of whether an employee tests positive or not for COVID-19, if the employer is a covered employer under the FMLA (or equivalent/more generous state law), eligibility verification must take place. Generally, the FMLA provides certain employees with up to 12 weeks of unpaid, job-protected leave per every 12-month period for certain qualifying conditions. If an employer’s policy dictates that each employee’s 12-month FMLA period resets on January 1, 2021 as a calendar year method, an employee may be entitled to an additional 12 weeks of FMLA leave under the FFCRA – with the final 10 weeks paid – beginning on January 1, 2021, to use through March 31, 2021. However, most employers use the rolling 12-month period (look-back). And when it comes to the FMLA, nothing has changed. Determination of a serious health condition, as there may be an underlying medical condition the employee may assert leave for if COVID is also involved, is left to the employee’s physician to certify (although not required by law, most employers, including us, encourage use of a medical certification to determine whether or not the employee has a serious health condition under the statute so that we know whether or not the federal FMLA law will apply. When it does not, it then turns into looking at the ADA and other equivalent state laws, and an interactive process to review any reasonable accommodations will be required. Consult with our Leaves team for further discussion on this topic. I have also provided an example scenario at the bottom of this email given by a law firm or EFMLA and FMLA.

Jeff Nowak, a shareholder with Littler Mendelson PC in Chicago, who represents employers in employment law matters, said, “We don’t view this as a new bucket of time for employees come Jan. 1. To the extent that an employee had already exhausted paid sick leave or paid (Family Medical Leave Act), they’re not going to be entitled to a new bucket come Jan. 1. But to the extent they still have leave available,” employers can still voluntarily offer it. He added in regard to small employers, however, the new situation may put employers in the “rather uncomfortable position of telling their employees, ‘We could do this, but we’re not.’ Employees will have expectations,” and deciding to discontinue the program could mean companies “may face morale repercussions,”

Employers should make a plan on how they are going to proceed in 2021 as they have several choices, such as:

  • End all leave effective December 31, 2020. Employers are encouraged to communicate to all employees, including those currently on leave, of its decision to end the leave entitlement in advance of this deadline.
  • Continue to allow employees to use any unused, available FFCRA leave through some time in 2021. Providing another round of 10 days/12 weeks of paid leave is not encouraged as it is unlikely to qualify for the tax credits.
  • Only allow the continuation of Emergency Paid Sick Leave into 2021 so employees who contract or are exposed to the virus will not be at work but discontinue the entitlement to the much longer paid family leave

The CAA 2021 does not prohibit or require employers who choose to continue EPSL to also continue EFMLA. Thus, it appears the two decisions can be made separately and can differ.

As always, although not specifically addressed in the legislation, employers who choose to offer EPSL only or EPSL and EFMLA in Q1 2021, should do so for all employees eligible for it, and should not make that decision on a case-by-case, employee-by-employee basis. Additional liability may arise under other laws if employers cherry-pick who gets to carryover EPSL and who gets EFMLA and who does not.

**Also, if any employer has 500 or more employees, please keep in mind any state or local supplemental paid sick leave laws. For example, Colorado, New Jersey, Oregon, the District of Columbia and several cities in California (Emeryville, Long Beach, Los Angeles, Oakland, Sacramento, San Diego, San Francisco, San Jose, San Mateo, and Santa Rosa) have extended FFCRA-like benefits to employers not covered by the federal law. Some of these laws also expire December 31, 2020, while some do not.

The IRS has not yet released anything definitive but the DOL has answered a couple of questions relative to the FFCRA’s application in 2021 below (https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#104):

  • I was eligible for leave under the FFCRA in 2020 but I did not use any leave. Am I still entitled to take paid sick or expanded family and medical leave after December 31, 2020? (added 12/31/2020)

Your employer is not required to provide you with FFCRA leave after December 31, 2020, but your employer may voluntarily decide to provide you such leave. The obligation to provide FFCRA leave applies from the law’s effective date of April 1, 2020, through December 31, 2020. Any change to extend the requirement to provide leave under the FFCRA would require an amendment to the statute by Congress. The Consolidated Appropriations Act, 2021, extended employer tax credits for paid sick leave and expanded family and medical leave voluntarily provided to employees until March 31, 2021. However, this Act did not extend an eligible employee’s entitlement to FFCRA leave beyond December 31, 2020.

Employers with questions about claiming the refundable tax credits for qualified leave wages should consult with the IRS. Information can be found on the IRS website (http://www.irs.gov/coronavirus/new-employer-tax-credits).

  • I used six weeks of FFCRA leave between April 1, 2020, and December 31, 2020, because my childcare provider was unavailable due to COVID-19. My employer allowed me to take time off, but did not pay me for my last two weeks of FFCRA leave. Is my employer required to pay me for my last two weeks if the FFCRA has expired? (added 12/31/2020)

Yes. WHD will enforce the FFCRA for leave taken or requested during the effective period of April 1, 2020, through December 31, 2020, for complaints made within the statute of limitations. The statute of limitations for both the paid sick leave and expanded family and medical leave provisions of the FFCRA is two years from the date of the alleged violation (or three years in cases involving alleged willful violations). Therefore, if your employer failed to pay you as required by the FFCRA for your leave that occurred before December 31, 2020, you may contact the WHD about filing a complaint as long as you do so within two years of the last action you believe to be in violation of the FFCRA. You may also have a private right of action for alleged violations.

*EXAMPLE related to EMLA and FMLA in 2021:

Whenever there are two different leave clocks running, determining how much leave is available for each of the different reasons quickly gets complicated. Consider the following example.

Scenario Facts: ABC Company is both FMLA-covered (50 or more employees) and EFMLA-covered (fewer than 500 employees). ABC chose the popular rolling backward method for measuring the 12-month period in its regular FMLA policy. ABC also voluntarily chose to extend EFMLA to all of its employees for the first quarter of 2021, as allowed by the CAA 2021. Sally has a full-time job that cannot be performed remotely. Sally used six weeks of regular FMLA January 2, 2020 through February 11, 2020 to care for her spouse who was incapacitated due to a serious health condition. On March 17, 2020, she had to stay home to care for her school-age child because the Governor declared a pandemic and closed schools across the state. Sally used six weeks of EFMLA in spring 2020, until she exhausted her 12 weeks of combined FMLA and EFMLA on April 27, 2020. Sally worked the rest of 2020. On January 4, 2021, the school for Sally’s child went on a 100% virtual learning plan, meaning it was closed for purposes of EFMLA leave. Because ABC chose to extend EFMLA into Q1 2021, Sally requested EFMLA to begin on January 4, 2021.

Question: How much EFMLA is available to Sally? Does she have the same amount of regular FMLA if a need for that arises, too.

Answer: On January 4, 2021, Sally has six weeks available to use for EFMLA or for a regular FMLA purposes. If she needs it, she can use EFMLA or FMLA consecutively through about mid-February. If she does, she will have a gap in the availability of leave. Sally will not likely re-qualify to use EFMLA or FMLA until March 17, 2021. At that time, she should have six weeks of regular FMLA available to use, but only the first two weeks of that can be used for EFMLA purposes because the EFMLA voluntary extension sunsets on March 31, 2021. In this particular scenario, the clocks for both FMLA and EFMLA start at the same time, but the EFMLA clock runs out before the regular FMLA clock. Reference Dickinson.

Additional Resources: Hogan Lovells (Via JD Supra), SHRM, National Law Review.

What do employers need to do?
Employers with concerns about the FFCRA in 2021 should review the above information.

January 2021 Washington HR Legal Updates

2021 Washington Privacy Act Released

Update Applicable to:
Employers operating within Washington State.

What happened?
The Washington State Legislature is once again working on passing a complete version of the Washington Privacy Act (WPA), that will impact all employers operating in the state.

What are the details?
The WPA will put several new requirements on businesses that utilize any form of consumer or employee data. Few exemptions are created for business, mostly only exempting state agencies and other forms of data related to health concerns, like HIPAA personal health information.

The WPA would provide consumers (i.e., Washington state residents) with the right to request that controllers (1) correct inaccurate personal data, (2) delete personal data, (3)confirm whether they are processing personal data about a consumer and, if so, allow the consumer to access the categories of personal data, (4) provide the personal data that a consumer previously provided to the controller in a portable and usable format, and (5)permit consumers to opt out of the processing of personal data that is processed for the purposes of targeted advertising, sold to third parties, or used for certain types of profiling decisions. Controllers would have 15 days to process opt out requests and 45 days to process other requests.

The WPA will also, much like other privacy related legislation, regulates the relationship between data processors and controllers. This will require them to enter into written agreements with each other that “set out the processing instructions to which the processor is bound, including the nature and purpose of the processing, the type of personal data subject to the processing, the duration of the processing, and the obligations and rights of both parties.”

As most employers can expect, the WPA will also include a Privacy Notice requirement. The notice will identify, among other things, the categories of personal data the controller processes, the purposes for which the personal data are processed, how and where consumers may exercise their rights, the categories of third parties, if any, with whom the controller shares personal data, and whether the controller sells personal data or uses it for profiling. Additionally, controllers of personal data will be prohibited from processing sensitive personal data without consent 

Should the WPA pass, it currently has an effective date set for July 31, 2022.

You can read more about the legislation here.

The bill may be read here in its entirety.

What do employers need to do?
Washington State businesses should keep a close eye on this legislation, as it will include large administrative costs for companies who handle personal information.

January 2021 Colorado HR Legal Updates

CDLE Confirms COVID-19 Considered Public Health Emergency for Paid Sick Leave Considerations

Update Applicable to:
All Colorado Employers.

What happened?
The Colorado Department of Labor and Employment (CLDE) has new INFO documents that state that going into 2021 COVID-19 will trigger the Healthy Families and Workplaces Act’s (HFWA) Public Health Emergency provisions.

What are the details?
Those familiar with the HFWA will remember that there was a provision included in the legislation that would grant similar supplemental leave as was provided temporarily to Colorado employees for the duration of 2020. This supplemental leave would only be provided should a state of emergency be declared in the state of Colorado and would be usable for the same reasons as the temporary COVID-19 supplemental sick leave. Many employers were wondering if the provision would be active once 2021 arrived due to COVID-19 meeting the criteria but having been covered already by a previous piece of legislation.

The CDLE has since provided clarification in INFO # 6C that employers will now be required to provide another 80 hours of supplemental paid sick leave to employees, this is from a different pool as the previously required 80 hours of supplemental paid sick leave.

INFO #6C can be found here.

What do employers need to do?
Colorado employers should look to update their management teams about this potential increase in supplemental paid sick leave to avoid workplace confusion.

January 2021 California HR Legal Updates

DFEH Releases Family and Medical Leave Tool Kit

Update Applicable to:
All California employers with five or more employees.

What happened?
The Department of Fair Employment and Housing (DFEH), the administrative agency charged with enforcing the California Family Rights Act (CFRA), has released new documentation for Family and Medical Leave that reflects the expansion of CFRA which went into effect on January1, 2021.

What are the details?
These new documents include the required poster for employers for both Family and Medical Leave as well as for Pregnancy Disability Leave. Employers should be sure to update their posters and new hire and leave packets to include the revised information, in addition to relevant company policies and procedures pertaining to leave.

All the documents mentioned above can be found on this webpage.

What do employers need to do?
California employers may bookmark the webpage in case they ever are to need these resources or would like to double check facts against the state provided fact sheets.

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 City of San Jose Extends and Expands Its Supplemental Paid Sick Leave

Update Applicable to:
California employers with employees located in San Jose or working a majority of their time in San Jose.

What happened?
The City of San Jose recently passed an ordinance extending its supplemental paid sick leave ordinance until June 30, 2021 and expanding it to apply to all employers with employees working in San Jose.

What are the details? 
When it was first passed, San Jose’s supplemental paid sick leave ordinance was set to expire on December 31, 2020. In late 2020, the City committed to extending the ordinance into 2021 but waited to see if the Emergency Paid Sick Leave (EPSL) provided under the Families First Coronavirus Response Act (FFCRA) would be extended before taking action. When the federal government did not extend the FFCRA, the City of San Jose passed a revised ordinance that extends the City’s supplemental sick leave until June 30, 2021. The ordinance is retroactive to January 1, 2021.

San Jose’s original ordinance was designed to provide sick leave to employees who did not receive EPSL under the FFCRA; thus, it only applied to employers with 500 or more employees. Because the FFRCA was not extended into 2021, the City of San Jose decided to expand its ordinance to apply to all employers with employees in the City of San Jose, regardless of the size of the employer. That means that San Jose’s supplemental paid sick leave is now available to all employees working in the city.

The reasons to use the supplemental paid sick leave have not been altered. In addition, the city has decided not to grant additional time to employees who may have already exhausted their 80 hours of supplemental paid sick leave.

The revised ordinance can be found here.

What do employers need to do?
San Jose employers should review the above information and update their workplace policies to reflect the changes.

January 2021: USCIS Modifies H-1B Selection Process

Update Applicable to:
Any employers looking to utilize the H-1B visa program.

What happened?
U.S. Citizenship and Immigration Services has announced a final rule that will modify the H-1B cap selection process, amend current lottery procedures, and prioritize wages.

What are the details?
Previously the H-1b visa program awarded the visa to companies on a lottery basis, where companies would all have a relatively equal chance of winning the award. The new system will instead award the H1b visas with a focus on higher paid wages, making the visas much more competitive in respect to wages.

These rule changes will only affect H-1B registrations (or petitions, if the registration process is suspended) submitted by prospective petitioners seeking to file H-1B cap-subject petitions. It will be implemented for both the H-1B regular cap and the H-1B advanced degree exemption, but it will not change the order of selection between the two as established by the H-1B registration final rule.

The final rule can be found here.

What do employers need to do?
Employers looking to utilize the H-1b visa program should keep in mind the new selection process when submitting petitions for the visa program.