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.

As workplaces continue to reopen, certain companies have begun to require their employees to sign waivers upon reentry to the workplace.  Hogan Lovells employment partner Mike DeLarco recently provided commentary on when (if) such waivers should be used, in an article on the Society for Human Resource Management website, available here.

The Consolidated Omnibus Budget Reconciliation Act (COBRA) permits employees and their dependents to extend health coverage under an employer’s group health plan when coverage would otherwise be lost due to termination of employment or other “qualifying events.” Under COBRA, employees must receive specific notices explaining their COBRA rights. In recent months, there has been an onslaught of class action litigation against employers who are allegedly omitting critical information from their COBRA notices. While seemingly a mere oversight, class action litigation over faulty COBRA notices may involve thousands of participants and beneficiaries of a health plan, and amount to millions of dollars in informational and economic injuries, specifically in the form of lost health insurance and unpaid medical bills. Just last week, a Fortune 500 company settled a class action lawsuit, relating to deficient COBRA election notices, for US$1.6 million dollars.

In addition to informational and economic damages asserted by individuals, the Department of Labor (DOL) and Internal Revenue Service (IRS) have the right to impose civil penalties if COBRA notices are noncompliant. The DOL can impose civil penalties up to US$110 per day per person and the IRS can impose an excise tax of US$100 a day per beneficiary and US$200 a day per family, until employees receive an adequate notice. In the context of class action litigation, employers may face hundreds of thousands of dollars in damages although certain defenses may be available.

The specifics of COBRA notices are fairly straightforward. Principally, an employer subject to COBRA is required to notify its group health plan administrator within 30 days after an employee’s termination of employment, or certain other qualifying events. Within 14 days of that notification, the plan administrator is required to notify the individual of his or her COBRA rights. If the employer is also the plan administrator and issues COBRA notices directly, the employer has the entire 44-day period in which to issue a COBRA election notice. COBRA election notices must be written in a manner calculated “to be understood by the average plan participant” and include:

  • The name of the plan and the name, address, and telephone number of the plan’s COBRA administrator;
  • Identification of the qualifying event;
  • Identification of the qualified beneficiaries (by name or by status);
  • An explanation of the qualified beneficiaries’ right to elect continuation coverage;
  • The date coverage will terminate (or has terminated) if continuation coverage is not elected;
  • How to elect continuation coverage;
  • What will happen if continuation coverage isn’t elected or is waived;
  • What continuation coverage is available, for how long, and (if applicable), how it can be extended for disability or second qualifying events;
  • How continuation coverage might terminate early;
  • Premium payment requirements, including due dates and grace periods;
  • A statement of the importance of keeping the plan administrator informed of any new addresses of qualified beneficiaries; and
  • A statement that the election notice does not fully describe COBRA or the plan and that more information is available from the plan administrator and in the summary plan description.

Failure to comply with the details of COBRA notice requirements may have significant consequences if not remedied. A current putative class bringing a lawsuit, for instance, alleges that a Fortune 500 company’s COBRA notices are confusing, misleading, and fail to identify the administrator of the health plan or explain how to enroll in COBRA coverage, instead directing workers to a “catch-all” human resources phone number. Similarly, a class action lawsuit brought against another large employer alleges that its COBRA notices fail to include an address indicating where COBRA payments should be mailed, explain how to enroll in COBRA, and provide information about the COBRA administrator, but merely direct employees to a general human resources phone number. In another COBRA notice class action filed this June, the putative class alleges that COBRA notices are not “written in a manner calculated to be understood by the average plan participant” because the notices fail to sufficiently identify the plan administrator or provide a termination date for COBRA coverage if elected. An airline is facing a class action COBRA notice lawsuit, whereby its employees allege that its COBRA notices were noncompliant in failing to include the date of the qualifying event or the name of the plan and plan administrator. Moreover, the putative class alleges that the company failed to timely provide the notice within the requisite 44-day period.

More than 20 class action lawsuits have been filed in 2020 for alleged COBRA notice deficiencies against companies of all sizes. Employers should be familiar with the content and details of their COBRA notice obligations and review their COBRA notices carefully to ensure that all requisite information is provided. The DOL has provided a model COBRA notice and considers use of the model notice to be good faith compliance with the general notice content requirements of COBRA. Employers who choose not to use the DOL model notice should compare their notices to the model notice to ensure they are sufficiently detailed to comply with COBRA. Moreover, the use of a third party administrator to issue COBRA notices does not mitigate an employer’s risk of noncompliance. Employers should periodically check in with their third party administrators to ensure that they are aware of current legal developments, as well as draft their service agreements to provide for indemnification of the employer for any acts of negligence or contractual breaches with respect to COBRA compliance. We recommend engaging the advice of counsel to review COBRA notices issued by your company or a third party.

The employment and benefits lawyers at Hogan Lovells remain abreast of the requirements of COBRA notices and are prepared to answer any questions that may arise.

After several weeks of discussion, the Virginia Safety and Health Codes Board (Board) on July 15, 2020 adopted the nation’s first workplace safety standards designed to establish requirements for employers to control, prevent, and mitigate the spread of COVID-19. At this time, the text of the Emergency Temporary Standard (ETS) has not been finalized; however, it will take effect immediately upon final publication, which is expected sometime during the week of July 27, 2020. The announcement of the Board’s action is available here. These standards will be enforceable by the Virginia Department of Labor and Industry’s Occupational Safety and Health Program (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.

When it becomes effective, the ETS will apply to all employers in the Commonwealth. Under the most recent, but non-final, version of the ETS, employers will need to assess each employee’s exposure risk level (i.e., “very high,” “high,” “medium,” or “lower”) based on the employee’s job tasks and the specific hazards they face at work to determine the applicable safety standard. Accordingly, employers may need to implement several different standards regarding social distancing, personal protective equipment (PPE), face coverings, sanitization/hygiene, health screenings/testing, and other return-to-work protocols.

The VOSH Program is expected to release training and resource materials on the ETS. Once the ETS becomes effective, employers will have 30 days to provide training to employees on the new standards and 60 days to develop and train employees on an infectious disease preparedness and response plan.

Employers should watch closely for further developments. For more information regarding Virginia’s COVID-19 workplace safety standards or other issues impacting your workplace, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.

The District of Columbia recently adopted a new version of emergency laws requiring employers to provide both paid and unpaid leave to eligible employees for certain COVID-19 related reasons. The Mayor signed the Coronavirus Support Emergency Amendment Act of 2020 and the Coronavirus Support Clarification Emergency Amendment Act of 2020 (together, CSEA) into law on May 27,2020 and July 7, 2020, respectively. CSEA replaces prior versions of the District’s COVID-19 related emergency leave laws.

In brief, the CSEA:

  • Amends the D.C. Accrued Sick and Safe Leave Act (ASSLA) to require employers with between 50 and 499 employees (other than “health care providers” as defined in the law) to provide eligible employees with up to 2 weeks of paid “public health emergency leave” at full pay for any reason for which paid leave is available under the federal Families First Coronavirus Response Act (FFCRA). We blogged about the reasons for FFCRA leave in a previous post. Employees who have been employed by the employer for at least 15 days prior to the leave request are eligible for D.C. public health emergency leave. The leave may only be used concurrently with or after exhausting other paid leave benefits under the FFCRA or other applicable laws or the employer’s own leave policies. The CSEA contains provisions for coordinating benefits to avoid duplication.
  • Expands the D.C. Family and Medical Leave Act (DCFMLA) to require all employers with one or more employees in D.C. to provide 16 weeks of unpaid, job-protected “COVID-19” leave to eligible employees who are unable to work because (a) a health care provider has recommended “that the employee isolate or quarantine, including because the employee or an individual with whom the employee shares a household is at high risk for serious illness from COVID-19”; (b) the employee is caring for a family or household member who is “under a government or health care provider’s order to quarantine or isolate”; or (c) the employee “need[s] to care for a child whose school or place of care is closed or whose childcare provider is unavailable to the employee.” Employees are eligible for this leave if they have worked for the employer for at least 30 days prior to the leave request.

These leave entitlements apply only for the duration of the public health emergencies declared by the Mayor, which are currently slated to expire on July 24, 2020, but may be extended. The CSEA itself is also a temporary measure, which is currently set to expire August 25, 2020, unless it is extended.

Earlier this month the D.C. Office of Human Rights (OHR), which administers the DCFMLA, issued  enforcement guidance and a workplace poster related to the CSEA’s expansion of the DCFMLA. The poster states that employers “must post and maintain this notice in a conspicuous place and transmit it to remote employees.” The D.C. Department of Employment Services (DOES) Office of Wage-Hour Compliance (OWH), which administers the ASSLA, has not issued guidance or a poster on D.C. public health emergency leave.

For answers to your questions about how the D.C. COVID-19 leave laws or other leave laws impact your workplace, contact one of the authors of the post or another Hogan Lovells lawyer with whom you regularly work.

Recent events across the U.S. have spurred companies to reexamine diversity and inclusion (D&I) policies and efforts in order to better address inequities in the workplace. In this webinar, our Hogan Lovells employment team will discuss the legal and practical considerations of popular initiatives such as hiring quotas, self-identification questionnaires, and pay equity studies so that companies are better equipped to meet their D&I goals while mitigating potential legal risk.

We hope you will join us on July 2 from 12:00pm -1:00pm EDT. To register please click here.

We would like to share this Chicago Tribune article—‘PTO Bomb’ as vacation-starved employees make time-off requests.— featuring a quote and commentary by Hogan Lovells employment lawyer David Baron.  As we predicted in our April 8, 2020 blog post on the topic (re-posted below), this article discusses the issues employers face, and what they can and should consider, as they brace for a deluge of employee requests for paid time off.

Continue Reading COVID-19 considerations: vacation and PTO

On Friday June 26, the Department of Labor (DOL) issued clarification guidance regarding the availability of Family First Coronavirus Response Act (FFCRA) leave.  Specifically, the DOL stated that FFCRA leave is equally available for summer camps, summer enrichment programs or other summer programs as it was available for day cares or schools.

As a reminder, the FFCRA requires covered employers to provide eligible employees with up to two weeks of paid sick leave and up to twelve weeks of expanded family and medical leave, of which up to 10 weeks may be paid.  FFCRA leave may be taken if the employee is unable to work or telework due to the need to care for his or her child whose “place of care” is closed due to COVID-19 related reasons. Continue Reading Department of Labor clarifies FFCRA Leave based on summer camp closure is similar to leave based on school or day care closure

On Thursday, June 18, the Occupational Safety and Health Administration (OSHA) published a pamphlet with “guidance to assist employers and workers in safely returning to work and reopening businesses deemed by local authorities as ‘non-essential businesses’ during the evolving [COVID-19] pandemic.”  OSHA states that the guidance does not create new legal obligations and instead is advisory. OSHA’s guidance tracks the three reopening phases identified by the White House in its “Opening Up America Again” guidelines, which in turn are based on proposed state or regional gating criteria. Continue Reading OSHA issues return-to-work guidance for non-essential businesses