Three members of our Hogan Lovells team, Kenneth Kirschner, David Baron, and Sydney Rupe, are the authors of the lead article in the Fall 2020 issue of the Labor Law Journal, which analyzes the plaintiff’s duty to mitigate damages in the wake of COVID-19. The article, entitled “Plaintiff’s Duty to Mitigate Damages in the COVID-19 Era” provides in-depth insights into how COVID-19 is shaping the employment law landscape, the state of the job market, closures and layoffs, and what to expect in the “new” workplace. The full article can be accessed here. As always, please consult one of the authors of this article or the Hogan Lovells attorney with whom you regularly work for assistance with questions about COVID-19 issues or matters affecting your workplace.
On September 11, 2020, the Department of Labor (DOL) issued revised regulations under the Families First Coronavirus Response Act (FFCRA), which generally requires employers with fewer than 500 employees to provide paid sick leave and expanded Family and Medical Leave Act (FMLA) leave for certain COVID-19 related reasons. (We previously summarized the FFCRA’s leave requirements here.) The revisions are in response to an August 3 New York federal court decision, which held that four provisions of the original regulations were invalid, either because DOL failed to adequately explain its reasoning, or because the court believed that DOL’s interpretations were inconsistent with the FFCRA. The revisions, which go into effect September 16, reaffirm and provide further explanation for two of the provisions and amend two others. Specifically, the revised regulations:
- Reaffirm that employees are not eligible for FFCRA leave if the employer has no work available for them to perform;
- Reaffirm that intermittent leave under the FFCRA requires the employer’s consent, and clarify that leave taken because of a child’s hybrid school schedule is not intermittent leave;
- Narrow the definition of “health care providers” whom employers can exclude from FFCRA coverage; and
- Clarify when employers can require employees to provide notice of a need for FFCRA leave and supporting documentation.
DOL also updated its FFCRA FAQs to reflect changes to the regulations.
All other provisions of the original regulations are unchanged. DOL’s FFCRA regulations remain in effect through the FFCRA’s current December 31, 2020 expiration date. The revised regulations are discussed in greater detail below.
Work availability rule
The revised regulations reaffirm DOL’s original position that FFCRA leave is not available to employees whose employers have no work available for them. This means that if the employee has no work for the employee to perform (e.g., if the employee is on furlough), the employee is not eligible for FFCRA leave even if the employee has an FFCRA-qualifying reason for leave. The revised regulations clarify that this rule applies to all of the qualifying reasons for which leave may be taken under the FFCRA.
The revised regulations further clarify that the employer must have a legitimate, nondiscriminatory reason as to why work is unavailable (such as temporarily ceasing operations or furloughing employees due to COVID-19). For example, an employer may not place an employee on furlough to prevent the employee from taking FFCRA leave, but an employer may place employees on furlough due to a legitimate business downturn.
DOL has also reaffirmed its original position regarding intermittent leave, including that an employee may take intermittent leave only with the consent of the employer:
- If the employee is working on-site:
- Intermittent leave is available if the reason for leave is to care for a child whose school or place of care is closed or childcare provider is unavailable, but only if the employer consents. Leave must be taken in full-day increments.
- Intermittent leave is unavailable for any other FFCRA qualifying reason, in order to avoid the risk that the employee could expose others to the virus.
- If the employee is teleworking:
- Intermittent leave is available for any FFCRA-qualifying reason and may be taken in any increment, provided that the employer consents to the intermittent leave schedule.
According to DOL, the employer consent requirement for intermittent leave “balances the employee’s need for leave with the employer’s interest in avoiding disruptions.”
The revised regulations clarify that leave needed because of a child’s hybrid school schedule is not intermittent leave. For example, if the child is required to attend school Monday, Wednesday, and Friday and to do distance learning on Tuesday and Thursday, leave taken to care for the child on Tuesday and Thursday is not intermittent leave and does not require the employer’s consent.
As a reminder, a school is “closed” for purposes of FFCRA leave if the parent does not have a choice to send their child to school. If a parent elects to keep their child home for all of part of the week, the school is not considered “closed” during the time the child stays home at the election of the parent.
Definition of health care provider
The new regulations narrow the definition of “health care providers” whom employers may exclude from the leave provisions of the FFCRA. (The definition of “health care provider” for purposes of determining who can advise an employee to quarantine for COVID-19 reasons remains unchanged). The court found that DOL’s original definition was overly broad because it covered employees whose roles had no nexus to the actual provision of health care services. Under the revised regulations, “health care provider” is now more tightly focused on employees involved in the provision of medical care, and includes only:
- A licensed doctor of medicine, nurse practitioner, or other health care provider authorized to issue a certification under FMLA regulations; or
- Any other employee who “is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” This includes employees who directly assist or are supervised by a direct provider in providing such services. For purposes of this rule:
- Diagnostic services include “taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results”;
- Preventive services include “screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems”;
- Treatment services include “performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments”; and
- Integrated and necessary services that, if not provided, would adversely impact patient care, include “bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.”
Under the revised regulations, the definition of “health care provider” includes, for example, nurses, nurse assistants, medical technicians, and laboratory technicians who process test results to aid in diagnosis and treatment. Excluded are employees who do not themselves provide health care services, “even if their services could affect the provision of health care services,” such as IT professionals, building maintenance staff, human resources personnel, cooks and food service workers, and records and billing employees.
Timing of employee notice and documentation
DOL made two changes regarding when employees must provide notice and documentation of the need for FFCRA leave:
- Timing of employee notice: The original regulations provided that employers could not require employees to give notice of the need for either paid sick leave or expanded FMLA leave until after the first workday on which such leave is taken. DOL has revised this rule to state that notice may be required for expanded FMLA leave (i.e., leave for childcare reasons) as soon as practicable, which will ordinarily be before the leave is taken, when the leave is foreseeable. The rule regarding timing of employee notice for paid sick leave remains unchanged.
- Timing of employee documentation: Whereas the original regulations required employees to provide supporting documentation of the need for FFCRA leave “prior to taking” leave, under the revised regulations, documentation is required as soon as practicable. According to DOL, this will normally be at the same time as the employee gives notice. The type of documentation that employees must provide remains unchanged.
DOL’s revised regulations eliminate the uncertainty created by the court’s ruling. Employers should follow the revised regulations and conform their leave policies accordingly. This includes ensuring compliance with the latest DOL guidance regarding FFCRA leave for different types of school schedules. Employers should also confirm that their leave request forms are consistent with the changed rules, including on the definition of health care provider, where applicable, and the notice and documentation requirements. Employers previously treating their entire workforce as exempt under the “health care provider” exemption should reconsider whether the revised definition of health care provider requires coverage for some employees.
Because DOL continues to refine its FFCRA guidance, employers should monitor DOL’s website and this blog regularly for the latest updates. As always, please consult one of authors of this article or the Hogan Lovells attorney with whom you regularly work for assistance in implementing compliant FFCRA policies, or with questions about other COVID-19 issues or matters affecting your workplace.
A new D.C. emergency law titled “Protecting Businesses and Workers from COVID-19 Emergency Amendment Act of 2020” (Act), signed by the Mayor on August 13, 2020, requires all private employers and D.C. agencies to take measures to protect workers from COVID-19 transmission. The Act requires employers immediately to adopt and implement worker protection policies related to social distancing and face coverings. Many employers have already developed workplace safety policies to comply with guidance issued by the CDC (Centers for Disease Control and Prevention) and OSHA (Occupational Health and Safety Administration); however, the Act now makes certain safety policies mandatory. The Act also increases retaliation protections for certain employee conduct related to COVID-19. The Act is effective until November 10, 2020, and may be extended. The particulars of the Act are set forth below.
Worker protection policies
For the duration of the D.C. declared COVID-19 public health emergency (which is currently in effect through October 9, 2020, but may be extended), employers must “adopt and implement social distancing and worker protection policies” to prevent the spread of COVID-19 in their workplaces. The policies must adhere to the Mayor’s Order 2020-080, which clarifies and extends mask-wearing requirements in D.C, or any “subsequent Mayor’s Order.” The Act provides that any subsequent order the Mayor adopts imposing a stricter standard for “personal protective equipment” than applies under the current D.C. mask order will control.
The Act reminds employers that they may adopt policies requiring employees to report positive COVID-19 test results, but employers may not disclose the identities of employees who test positive, except to the D.C. Department of Health (DOH) or other D.C. or federal agencies responsible for contact tracing and containment of COVID-19.
Additionally, the Act reminds employers that they may restrict employees who test positive for COVID-19 from entering the workplace until a medical professional clears the employee to return to work or a period of quarantine recommended by DOH or the CDC has elapsed.
Employers should document their social distancing and worker protection policies in writing and disseminate them to employees, both as a best practice and to demonstrate compliance with the Act and applicable federal and D.C. guidance on COVID-19 safety protocols.
Prohibitions on retaliation
The Act also prohibits retaliation against employees who:
- refuse to serve a customer or client, or who refuse to work within six feet of an individual, who is violating the employer’s workplace protection policies;
- test positive for COVID-19 (provided the employee has not physically reported to the workplace after receiving a positive test result);
- need to quarantine after exposure to someone with COVID-19;
- are sick and awaiting COVID-19 test results;
- are caring (or seeking to care) for someone quarantined who is sick with COVID-19 symptoms or is quarantined; or
- take any action to secure their rights or protections under the Act or to stop a violation of the Act.
Employers face a civil penalty of up to $50 per violation per employee per day for repeated or willful violations of the requirement to adopt social distancing and worker protection policies, and a civil penalty of up to $500 for each violation of the Act’s anti-retaliation provisions. Additionally, the Attorney General is authorized to investigate potential violations (either after receiving a complaint or on the Attorney General’s own volition) and may enforce the Act through a civil action on behalf of one or more employees. In such actions, employers are subject to liability not only for the foregoing penalties, but also for employees’ lost wages, equitable relief, and reasonable attorneys’ fees and costs. The Act does not, however, create a private right of action for employees to sue directly.
All D.C. employers with onsite workers should ensure they have safety policies in place that comply with D.C.’s social distancing and worker protection policy requirements, including the Mayor’s mask order, and regularly check the D.C. coronavirus website and this blog for new orders. Employers should also train managers and supervisors about the Act’s retaliation prohibitions.
Please contact one of the authors of this article or another Hogan Lovells attorney with whom you work with any questions, or for assistance developing legally compliant COVID-19 policies.
On August 27, 2020, the Department of Labor (DOL) issued guidance (in FAQs numbered 98-100) clarifying how the childcare provisions of the Family First Coronavirus Response Act (FFCRA) apply to various remote and in-person school situations. As a reminder, the FFCRA generally requires private employers with fewer than 500 employees and many public sector employers to provide paid leave to eligible employees for certain COVID-19 related reasons, including up to 12 weeks of partially paid leave because of the employee’s need to care for a child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19. Employees qualifying for this FFCRA childcare leave are entitled to two-thirds of their regular pay, up to $200 per day and $12,000 in the aggregate, for which private employers can claim a fully refundable tax credit. (For additional information about the FFCRA, see our prior posts on this blog, including here and here.)
The FFCRA childcare leave provision takes on renewed importance as schools across the country begin to reopen with a variety of approaches to instruction. Some schools and school districts are offering only in-person instruction, only remote instruction, or a hybrid schedule (e.g., three days in school, two days distance learning). In some cases parents have the choice of in-person or remote instruction for their children.
The new DOL guidance explains the impact of these differing approaches on the availability of FFCRA leave for parents as follows:
- Hybrid schedule: For employees with children on a hybrid school schedule, FFCRA childcare leave is available only on those days when the child is not permitted to attend school in person, and only so long as the employee needs the leave to actually care for the child during that time, and no other suitable person is available to do so.
- Optional remote instruction: For employees offered a choice between remote and in-person instruction for their children, FFCRA childcare leave is unavailable for those who choose for their children to attend remotely, because the school is not “closed.” However, if, because of COVID-19, the child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, the employee may be eligible to take paid leave to care for the child under another FFCRA provision.
- Initial remote instruction: For employees with children whose schools initially provide only remote instruction, but may switch to in-person attendance later, FFCRA childcare leave is available while instruction is remote. Once the school reopens for in-person instruction, the employee’s eligibility for FFCRA childcare leave will depend on the circumstances of the reopening. (We note it is also possible that a school may initially open in-person, and then move to remote instruction due to an infection or other reason, in which case FFCRA childcare leave will be available during the period of remote instruction.)
Because DOL continues to refine its FFCRA guidance, employers should monitor DOL’s website and this blog regularly for the latest updates. As always, please consult one of authors of this article or the Hogan Lovells attorney with whom you regularly work for assistance in implementing compliant FFCRA policies, or with questions about other COVID-19 issues or matters affecting your workplace.
On October 1, 2020, a new Maryland law related to compensation will:
- prohibit employers from requesting or relying on job applicants’ prior pay history to make decisions about employment or initial pay in most circumstances; and
- require an employer to provide an applicant, upon request, with the wage range for the job applied for.
The new law amends Maryland’s existing Equal Pay for Equal Work (EWEW) law. Its requirements, which will apply to all private, state, and local government employers in Maryland, add to existing provisions that set nondiscrimination and equal pay standards and prohibit employers from requiring employees to keep their pay information confidential.
Wage history restrictions
Maryland joins approximately 18 other states and nearly two dozen local jurisdictions in limiting the circumstances in which employers may request or use a job applicant’s wage history information. (Neighboring Virginia and the District of Columbia currently have wage history restrictions only for government agencies).
Under the new Maryland law, employers may not seek wage history information from an applicant or the applicant’s current or former employers, and may not rely on wage history in screening applicants, considering applicants for employment, or setting initial pay.
There is one narrow exception: Once the employer makes a job offer (including a compensation offer), the employer may seek to confirm and may rely on any wage history voluntarily provided by the applicant in order to support the employer making a compensation offer higher than the employer’s original offer.
Wage range requirement
The new law also requires employers to give job applicants, upon request, “the wage range for the position for which the applicant applied.” “Wage range” is not defined, and the law does not explain what steps employers need to take to comply with the law if they do not have pre-determined wage ranges for every job classification.
Existing protections related to compensation
As a reminder, the EWEW contains other protections for employees related to compensation. The EWEW prohibits Maryland employers from providing “less favorable employment opportunities” based on sex or gender identity and from paying employees of one sex or gender identity less than other employees when both employees work in the same establishment (which may include different workplaces of the employer within the same county) and perform work of “comparable character” or work “on the same operation, in the same business, or of the same type,” except for specified reasons including, for example, a nondiscriminatory seniority or merit increase system.
The EWEW also contains a pay transparency requirement, which provides that employers may not prohibit employees from “inquiring about, discussing, or disclosing” their own or a co-worker’s pay. (Another recent amendment to the EWEW, which also goes into effect October 1, clarifies that retaliation is prohibited when an employee inquires about not only a co-worker’s wages, but also the employee’s own wages.) However, employers may establish reasonable “time, place, and manner” limitations on such conversations by written policy. The pay transparency rule does not apply when an employee, such as a Human Resources staff member, who has access to the wage information of other employees as part of his or her essential job functions, discloses another employee’s pay information without permission, except in the course of an investigation or legal proceeding. (As we discussed here, Virginia recently adopted a pay transparency provision that became effective July 1, 2020; D.C. also has a pay transparency law.)
Violations of the wage history and wage notice requirements are subject to civil penalties of up to US$300 for each applicant for whom the employer is not in compliance, and up to US$600 for each subsequent violation. Other violations of the EWEW are subject to actions for damages and/or injunctive relief by the employee or the Attorney General, in addition to potential civil penalties.
Employer Next Steps
All employers in Maryland should ensure that their policies and practices comply with the new wage history and wage notice amendments to the EWEW and the EWEW generally. Specifically, employers should remove any requests for prior pay information from job applications and should train recruiters and managers on all EWEW requirements. Employers who do not currently have formal wage ranges for each job classification should consider establishing a range for each new job posting, which could be shared with applicants who request it.
On August 3, 2020, in an action brought by the State of New York (New York) against the U.S. Department of Labor (DOL), a court in the Southern District of New York granted summary judgment to New York and vacated four features of the DOL’s April 1, 2020 Final Rule implementing the Families First Coronavirus Response Act (FFCRA).
The ruling strikes down the DOL’s (1) requirement that an employee is not eligible for FFCRA leave unless the employer has work for the employee; (2) definition of “health care provider”; (3) prohibition on intermittent leave without employer consent when needed for school or childcare closures; and (4) requirement that employees submit documentation “prior to taking” FFCRA leave.
The impact of this decision is unclear. If the decision stands (the DOL may appeal and seek a stay of the ruling), it would have the effect of substantially enlarging FFCRA leave entitlements beyond what the DOL contemplated in its Final Rule. It could also encourage employees who were denied leave previously to seek those benefits retroactively or prospectively, including by making claims. Further, unless and until the DOL issues replacement regulations, employers will have to navigate the regulatory gaps created by the now-invalidated rules.
We describe each vacated provision in turn.
The work-availability requirement
The FFCRA grants paid leave to employees who are “unable to work (or telework) due to a need for leave” because of certain qualifying conditions. In its Final Rule, the DOL interpreted the phrase “due to” as requiring a causal connection between the need for leave and the qualifying condition, and determined that FFCRA leave was not available for employees whose employers “do[ ] not have work” for them.
The court vacated this exception. The upshot is that employees who seek leave for a qualifying reason may be entitled to it even if their employer “does not have work” for them. The consequences could be far-reaching. For instance, employees who were furloughed or laid off prior to exhausting FFCRA leave may argue entitlement to those benefits regardless of the employment suspension or loss. The decision also could impact entitlement to unemployment benefits.
The definition of “health care provider”
The FFCRA permits an employer of “an employee who is a health care provider . . . to exclude such employee” from expanded FMLA benefits. The statutory definition of “health care provider” includes doctors and “any other person determined by the [DOL] to be capable of providing health care services.”
In the Final Rule, the DOL defined the term “health care provider” broadly to include:
anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions,
as well as
any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility, [and] anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.
The court vacated the DOL’s definition of “health care provider,” holding that it impermissibly expanded that definition beyond the confines of the statute. The DOL may attempt to redefine the term, but there is now renewed ambiguity over who constitutes a “health care provider” to whom an employer may deny FFCRA leave benefits. Individuals who were previously denied FFCRA benefits under the “health care provider” exception might now seek FFCRA leave retroactively and/or prospectively.
The Final Rule permits “employees to take Paid Sick Leave or Expanded Family and Medical Leave intermittently (i.e., in separate periods of time, rather than one continuous period) only if the Employer and Employee agree,” and, even then, only for a subset of the qualifying conditions for leave. The court accepted—and embraced—the DOL’s position that this restriction forbids intermittent leave when it is sought for a single qualifying reason, but does not restrict an employee from taking additional leave for a different qualifying reason. For example, an employee cannot take intermittent leave to seek a COVID-19 diagnosis, but could take a second chunk of leave if she later needs leave to care for her child due to school closure.
The court did, however, vacate the Final Rule on intermittent leave to the extent that it prohibits intermittent leave without the employer’s consent for qualifying reasons that do not “correlate with a higher risk of viral infection.” In other words, although the DOL had a reasonable basis to allow employers to forbid employees from coming in and out of the workplace while they are being checked for, have been exposed to, or have been diagnosed with COVID-19 (i.e., to prevent that employee from spreading the virus), the court found that the DOL had no justification for requiring employer consent for intermittent leave to care for a child whose school or childcare is closed. The takeaway is that, if the ruling is not stayed or reversed on appeal, employers cannot prohibit employees from taking intermittent leave when they wish to do so for childcare reasons unrelated to any confirmed or suspected COVID-19 in the employee’s household.
The Final Rule required employees to submit certain supporting documentation to their employer “prior to taking [FFCRA] leave.” The court vacated this requirement, holding that it conflicted with two statutory provisions: (i) an exemption from advanced notice when the need for leave is unforeseeable, and (ii) a provision allowing employees to collect a day of paid sick leave before being required to give notice of the need for FFCRA leave.
While the court upheld the substance of the documentation requirements in the Final Rule, it eliminated the temporal aspect. Thus, employers cannot require documentation as a condition precedent to FFCRA leave, at least where one of the statutory exceptions applies.
* * *
Employers will need to carefully monitor developments relating to this ruling, including whether it is stayed or reversed on appeal, or whether DOL issues new regulations or guidance in light of it.
Effective July 27, 2020, Virginia employers must comply with new COVID-19 workplace safety standards, known as the Emergency Temporary Standard (ETS). The ETS applies to all employers subject to the jurisdiction of the Virginia Occupational Safety and Health (VOSH) Program, which includes virtually all private and non-federal public employers in the Commonwealth. Failure to comply with the ETS can result in fines as high as $130,463 per each “repeat” or “willful” violation.
Even employers that have carefully complied with or exceeded recommendations of the federal Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA) will have work to do to comply with the ETS. The ETS not only effectively makes mandatory many recommendations of CDC and OSHA, it also imposes new obligations on Virginia employers, including:
- A requirement to conduct a hazard assessment of each job task (or group of job tasks) in the employer’s workplace;
- Employee training requirements;
- For many employers, a requirement to prepare an infectious disease preparedness response plan (and to conduct additional training once it is established); and
- A prohibition on retaliation against employees who exercise certain rights provided under the ETS.
All employers must conduct a hazard assessment
All employers must assess their workplace to determine the risk of COVID-19 exposure. Specifically, employers must classify each job task or group of similar job tasks according to the hazards employees are potentially exposed to, and label the risk as “very high,” “high,” “medium,” or “lower.”
- “Very high” or “high” refers generally to healthcare- or mortuary-type settings where there is a significant potential for employee exposure either through very close contact (“very high”) or inside 6 feet (“high”) with individuals known or suspected to have COVID-19 or with other sources such as laboratory specimens. (Note: a person is “suspected” to have COVID-19 if the person has signs or symptoms of COVID-19 but has not tested positive, and no alternative diagnosis has been made).
- “Medium” refers to tasks involving more than minimal occupational contact inside 6 feet with other employees, persons, or the general public who may be, but are not known or suspected to be, infected with the virus. Examples of “medium” risk include work in the food processing industry, commercial transportation, manufacturing, retail establishments including grocery and drug stores, restaurants, and healthcare settings not involving exposure to known or suspected sources of the virus.
- “Lower” refers to tasks that do not require contact inside 6 feet with others who are known or suspected to be infected, or who may have the virus. Examples of “lower” risk include work in office settings where contact inside 6 feet can be avoided through social distancing, physical barriers, telework, and similar steps.
Because the ETS requires analyzing each job task (or group of similar job tasks), a single business may have different risk levels throughout the organization. The regulations provide that “[t]asks that are similar in nature and expose employees to the same hazard may be grouped for classification purposes.”
For medium, high or very high risk job tasks, the employer must create a written certification of the hazard assessment. VOSH has posted a sample hazard assessment certification form that can be used to satisfy this requirement. (Although the regulations refer to assessment of job tasks or groups of job tasks, VOSH’s sample form suggests that an employer can alternatively classify individual employees or job categories.) Although not required by law, employers should consider creating a written record that a hazard assessment has been performed even with respect to tasks classified as lower risk.
The hazard assessment does not need to be submitted to VOSH but should be retained in the employer’s records.
Once the hazard assessment is completed, employers must comply with requirements specific to the hazard level or levels identified in the workplace.
All employers must implement certain safety measures that are largely consistent with CDC/OSHA guidance, including:
- Inform and encourage employees to self-monitor for COVID-19 symptoms;
- Implement procedures for employees to report COVID-19 symptoms, and prohibit employees or other persons known or suspected to be infected with the virus from coming to work until cleared under return-to-work protocols;
- Adopt flexible sick leave policies to the extent feasible and permitted by law and ensure that employees are aware of them;
- Discuss with contractors and contractor employees the importance of individuals with known or suspected COVID-19 remaining out of the workplace until cleared to return;
- Develop systems to receive reports of positive COVID-19 test results from employees and contractors, and notify i) others in the workplace who may have been exposed, or who were present at the workplace, within 24 hours of discovery of potential exposure; ii) the facility owner, within 24 hours of discovery of potential exposure; and iii) the Virginia Department of Health within 24 hours of the discovery of a positive case, and within 24 hours after learning that 3 or more employees at the same worksite tested positive in a 14-day period. All notifications must preserve the confidentiality of the infected person;
- Establish return-to-work protocols for employees known or suspected to have COVID-19, based on either a “time-based” approach (i.e., 72 hours after resolution of fever without use of fever-reducing medications; improvement in respiratory symptoms; and at least 10 days since onset of symptoms), or a “test-based” approach (i.e., resolution of fever without fever-reducing medications; improvement of respiratory symptoms; and two negative COVID-19 test results at least 24 hours apart, with the cost of testing paid by the employer);
- Ensure that employees observe physical distancing (e.g., by using signage/visual markers, limiting occupancy or access to common areas); and
- Ensure ready availability of cleaning and disinfecting supplies (e.g., soap/water, hand sanitizer, etc.) and that common or shared work spaces, frequently touched surfaces, and shared equipment are regularly cleaned.
The ETS also requires prescreening or surveying of employees for COVID-19 symptoms before the start of each shift where the employer has job tasks at the worksite classified at medium, high, or very high risk. The ETS does not specify the form that prescreening or surveying should take.
ETS requirements with respect to employee face coverings and personal protective equipment (PPE) depend on the assigned hazard level. Specifically:
- Face coverings are generally required in any setting (including lower-risk settings) whenever an employee has even brief contact with others inside of 6 feet;
- In medium risk settings, employers must also both require and provide face coverings to employees with customer-facing jobs or whose job tasks do not permit physical distancing, unless greater protection (such a medical-grade mask) is indicated by the employer’s hazard assessment; and
- For medium, high, and very high risk settings, employers must conduct a PPE assessment, with employee involvement, and select and have each employee use properly-fitting PPE appropriate to the hazard level, including respirators where indicated.
The ETS provides a medical exception to the face covering requirement and indicates that religious exemptions may be available in some circumstances. For employees in high and very high risk settings. the ETS contains additional requirements regarding PPE, as well as requirements concerning air-handling systems, enhanced training, medical monitoring, and psychological and behavioral supports for employees.
CDC “Safe Harbor”?
The ETS safety requirements are largely consistent with current CDC guidance, but there are differences. For example, the CDC’s current guidance for ending home isolation for infected persons no longer recommends a “test-based” approach and reduces the length of time the individual should be fever-free from 72 to 24 hours. Compliance with CDC guidance will be considered evidence of “good faith” in enforcement proceedings under the ETS. However, employers should be aware that compliance with CDC guidance is not a safe harbor if the ETS imposes a more stringent requirement. VOSH has stated that it will not provide advance guidance to employers on what is or is not more stringent.
Training requirements for all employers
The ETS also imposes training obligations based on the assigned hazard level. These requirements take effect August 26, 2020. Employers with medium, high, and very high risk job tasks must provide COVID-19 related training to all employees at the workplace regardless of the individual employee’s risk classification and must prepare a written certification that the training has been performed. A sample training certification form is available here. The training must cover:
- The ETS requirements;
- Other CDC or Virginia guidance the employer is complying with in lieu of the ETS (if any);
- Characteristics and methods of transmission of the virus;
- Signs and symptoms of COVID-19;
- Risk factors for severe COVID-19;
- Ability of pre-symptomatic and asymptomatic persons to transmit the virus;
- Safe and healthy work practices (such as physical distancing, disinfection procedures);
- PPE (when required, how to use); and
- The anti-discrimination provision of ETS.
Employers with only lower risk job tasks must provide oral or written information to employees on items 1, 3, 4, 6, 7, and 9 from the above list. A sample lower-risk training information sheet that can be provided to employees is available here.
Infectious disease preparedness response plan
Additionally, all employers with exposure risk levels of very high or high with any number of employees, and those with medium risk that have 11 or more employees, must—with employee involvement (or union involvement, if employees are represented)—develop and implement a written infectious disease preparedness response plan (Plan) and train employees on it. This requirement takes effect September 25, 2020. Employers must identify an individual “knowledgeable in infection control principles and practices” as they apply to the workplace who will have responsibility to administer the Plan. In addition to covering the safety measures discussed above, the Plan must address the following subjects:
- Persons at particularly high risk of COVID-19, e.g., those who have traveled to locations with “ongoing transmission,” and healthcare employees with unprotected exposures to persons known or suspected to be infected;
- Employees who work at jobs for other employers with different hazard levels;
- Individual risk factors due to underlying conditions, to the extent permitted by law;
- Controls needed to address the foregoing risks; and
- Contingency plans for issues that may arise during an outbreak, such as increased absenteeism and interrupted supply chains.
A template plan is available here.
The ETS prohibits employers from discharging or otherwise discriminating against employees who exercise their rights provided under the ETS, including the right to wear the employee’s own PPE (such as a respirator, face shield, gloves, or face covering) if such equipment is not provided by the employer and does not create a greater hazard for the employee or a serious hazard for other employees. Retaliation is also prohibited against employees who raise “a reasonable concern about infection control” related to the virus or COVID-19 to the employer, co-workers, a government agency, or to the public either in print or online, including on social media.
Enforcement and penalties
The ETS will be enforceable by VOSH, which can inspect workplaces and impose financial penalties for violation, including up to $130,463 for each willful or repeated violation (with smaller penalties for lesser violations), as well as criminal penalties in certain circumstances.
Furthermore, the ETS requires employers to continue to follow any applicable Virginia executive or public health orders. Accordingly, employers in the Commonwealth will need to consult multiple authorities in order to protect workers and avoid criminal and/or civil penalties.
Takeaways for employers
The ETS will remain in effect until the earlier of six months from its effective date, expiration of the Governor’s State of Emergency, or adoption of a permanent standard. Because these requirements may require substantial effort for many employers to comply, all Virginia employers should take immediate steps to come into compliance, beginning with conducting the required hazard assessment. To assist employers with their compliance efforts, VOSH has begun issuing guidance and training materials, some of which are linked above, and all of which are available here.
For more information regarding Virginia’s COVID-19 workplace safety standards or other COVID-19 issues impacting your workplace, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.
On July 8, 2020, the United States Supreme Court decided two cases addressing employers’ religious freedoms in very different contexts: one concerning whether religious school teachers could challenge adverse employment decisions in court, and one concerning rules permitting employers to assert religious and conscientious objections to a federal mandate to include contraceptive coverage in their group health plans.
First, in Our Lady of Guadalupe School v. Morrisey-Berru, the Court held by a vote of 7-2 that the so-called “ministerial exception” foreclosed federal employment discrimination claims brought by two religious school teachers against their former employers. The Court explained that the ministerial exception is rooted in the Religion Clauses of the First Amendment and serves the purpose of protecting religious institutions’ “autonomy with respect to internal management decisions that are essential to the institution’s mission,” including “the selection of the individuals who play certain key roles.” The Court first recognized the ministerial exception in the 2012 case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. There, the Court held that the ministerial exception applied to a teacher at a religious school based on the teacher’s religious training, her responsibility to teach religion and participate in religious activities with her students, and the fact that she held the title of, and held herself out to be, a “minister.” In Our Lady of Guadalupe, the Court clarified that the factors that informed its decision in Hosanna-Tabor did not establish a rigid “checklist” for determining when the ministerial exception applies. Rather, application of the exception depends on all of the circumstances relevant to the “fundamental purpose” of the exception. The Court held that the exception applied to both teachers in the cases before it, Catholic elementary school teachers who were in part responsible for “educating their students in the faith” and guiding them “toward the goal of living their lives in accordance with that faith.”
Second, in another 7-2 decision the Court in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania upheld a regulatory exemption for employers with religious and conscientious objections to the Affordable Care Act (ACA) “contraceptive mandate.” The contraceptive mandate is itself a regulation under the ACA that requires employers to provide contraceptive coverage to their employees through their group health plans. At issue in the case were two rules jointly promulgated by the Departments of Health and Human Services, Labor, and Treasury (Departments). The first rule established a broad “religious exemption” from the contraceptive mandate for any employer that “objects . . . based on its sincerely held religious beliefs” to “establishing, maintaining, providing, offering, or arranging [for] coverage or payments for some or all contraceptive services.” The second rule added a “moral exemption” for employers with “sincerely held moral objections” to providing some or all forms of contraceptive coverage. Two states challenged the rules, arguing they lacked statutory authority and were procedurally invalid under the Administrative Procedure Act. The Court rejected these challenges, holding that the exemptions were within the Departments’ discretion to create under the ACA and were not procedurally infirm. The Court also concluded that the Departments did not err in looking to the Religious Freedom Restoration Act as a guide when crafting the religions exemption, observing that “[i]t is clear . . . that the contraceptive mandate is capable of violating RFRA.”
What does this mean for employers?
These cases involve discrete issues that may not be directly relevant to many employers. For religious employers, however, Our Lady of Guadalupe reinforces First Amendment protections with respect to personnel decisions for certain types of employees. And Little Sisters expands protections for all employers who invoke religious or moral exemptions to the ACA contraceptive mandate.
Readers with questions about these cases are encouraged to contact the authors of this article or the Hogan Lovells attorney with whom they normally work.
 Celine Dorsainvil, a 2020 Hogan Lovells Summer Associate, contributed to this article.
As explained in greater detail in a prior alert, Virginia has enacted a number of new employment laws that increase employee rights and protections. Most of these new laws took effect on July 1, 2020. One major impact of the laws is that employers are likely to have more discrimination claims adjudicated in Virginia state courts instead of federal courts. Shifting the forum for adjudication in this way may pose a significant disadvantage to employers, as the applicable procedures in Virginia courts can make it more difficult to win before trial. Because of the significant legal expenses incurred in litigating a case through trial, this may significantly increase the legal expense to employers even in cases where their defenses are strong, in some cases above the value of the claim itself. We discuss several considerations relating to this change below, including the benefits and drawbacks of requiring employees to enter into arbitration agreements. Continue Reading Strategic litigation considerations for employers in light of the Virginia Values Act
On July 14, 2020, Colorado Governor Jared Polis signed the Colorado Healthy Families and Workplaces Act (Law). The law has two significant impacts. First, as a temporary measure, it immediately expands leave rights related to COVID-19 by requiring employers of any size (including employers with greater than 500 employees who are exempt from the Families First Coronavirus Response Act (FFCRA)) to provide leave for the reasons and the amounts set forth in the FFCRA to employees through the end of 2020. (For more information and summaries of the FFCRA please see our prior blog posts.)
Second, as a more permanent measure, beginning January 1, 2021, the Law will establish a new statewide paid sick leave law similar to laws enacted in other states. The changes taking effect in 2021 are summarized below.
Which employers and employees are covered? Between January 1, 2021 and December 31, 2021, employers with 16 or more employees must provide paid sick leave as specified in the Law. Effective January 1, 2022, all employers must provide paid sick leave as specified in the Law.
How much sick leave must be provided? Employees will earn at least one hour of paid sick leave for every 30 hours worked by the employee, and employees may earn and use a maximum of 48 hours of paid sick leave each year (unless the employer sets a higher limit). The employer may limit carrying over more than 48 hours of paid leave from year to year, and can also prohibit an employee from using more than 48 hours of sick leave in one year. Employers must provide additional accrued paid sick leave as necessary during public health emergencies for purposes specified in the Law, including but not limited to the need to self-isolate or seek medical care after experiencing symptoms of or being diagnosed with the illness that is the cause of the public health emergency; the need to care for a family member who is self-isolating or needs medical care after experiencing symptoms of or being diagnosed with such an illness; or inability to work due to a health condition that may increase the employee’s susceptibility to the illness.
When do employees begin accruing leave? Employees begin accruing paid sick leave when employment begins and may use the paid sick leave as it is accrued.
For what purposes may sick leave be used? An employee must be permitted to use sick leave where:
- The employee has a mental or physical illness, injury, or health condition that prevents the employee from working, or needs to care for a family member with a mental or physical illness, injury, or a health condition;
- The employee or a family member the employee is caring for needs to obtain a medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition;
- The employee or a family member the employee is caring for needs to obtain preventive care;
- The employee or a family member has been the victim of domestic abuse, sexual assault, or harassment and the use of leave is to seek medical attention, obtain services from a victim services organization, obtain mental health, seek relocation, or seek legal services; or
- A public health emergency exists and a public official has ordered closure of the employee’s place of business, the school or place of care of the employee’s child.
In what manner may an employee request use of his or her paid leave? An employer must allow an employee to use paid sick leave whether the request is made orally, in writing, electronically, or by any other means acceptable to the employer. Employers may create written policies with reasonable procedures for providing notice for use of paid sick leave when the need for leave is foreseeable, but cannot deny paid sick leave based on noncompliance with such policies where the employee provides otherwise-appropriate notice.
When may an employer require documentation? An employer may require reasonable documentation for paid sick leave of four or more consecutive work days.
What if an employer already has a paid time off or paid sick leave policy? Employers may use existing paid leave policies to satisfy the Colorado requirements so long as the terms are equal to or more generous than the Law requires.
What notices must an employer provide to its employees? Employers must provide notice to their employees, informing them of their right to leave under the Law. The notice must be in the form of written notice to employees and posters containing information about the Law. Employers may use posters and notices that will be published by the Division of Labor Standards and Statistics in the Department of Labor and Employment to satisfy the notice requirements, although they are not yet available. Notice requirements are waived during periods in which a business is closed for a public health emergency.
Are employees entitled to payment for unused sick leave upon termination? The Law does not require employers to pay employees for unused paid sick leave upon termination of the employment relationship. But an employee can recover paid sick leave as a remedy for a retaliatory action that prevented the employee from using the paid sick leave. Additionally, after termination of an employment relationship, if an employer rehires an employee within six months after separation, the employer must reinstate any paid sick leave that the employee accrued but did not use (and was not otherwise compensated for) during the employee’s previous employment.
What are the consequences for failure to comply? Employers who fail to provide leave under the Law may be subject to civil actions, payment of back pay, and additional consequences. Employers who willfully violate the notice provisions under the Law are subject to civil fines of up to $100 per violation.
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Employers should update or establish paid sick leave or paid time off policies consistent with the Law—immediately implementing the COVID-19 leave requirements and implementing by January 1, 2020 the long-term paid sick leave requirements. As the requirements change during the Law’s phased approach, employers should continue to update and ensure compliance with such policies including properly notifying employees.
For more information about the Law or other workplace policy issues, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.