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09 Feb

January 2021 Federal HR Updates

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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.

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