[UPDATE: On April 7, 2021, the Department of Labor issued the model notices required by ARPA, as well as an FAQ to provide additional guidance on the changes to the COBRA subsidies.]

On March 12, 2021, President Biden signed the American Rescue Plan Act (ARPA) into law, aiming to provide relief to individuals and businesses suffering from the COVID-19 pandemic. ARPA impacts employer-sponsored health plans in several ways, including the implementation of a COBRA premium subsidy. Employers should be aware of the actions they must take in response to this change.

COBRA requires an employer-sponsored group health plan to give employees who otherwise would lose coverage due to termination (or another qualifying event) a chance to continue to buy coverage for themselves and any family members on the plan for a limited period after that event. The maximum coverage period generally is 18 months. The plan typically may charge up to 102 percent of the cost of coverage for similarly situated active participants (the COBRA premium).

Continue Reading American Rescue Plan Act’s COBRA health care premium subsidy

On March 18, 2019, New Jersey amended the New Jersey Law Against Discrimination (NJLAD) to include a provision that rendered unenforceable any “provision in an employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment.” On August 30, 2019, business advocates filed a lawsuit in the District of New Jersey, N.J. Civ. Justice Inst. v. Grewal, arguing that the Federal Arbitration Act (FAA) preempts this amendment by effectively prohibiting the enforcement of pre-dispute arbitration agreements between employers and their employees for claims under the NJLAD.

On March 25, 2021, U.S. District Judge. Anne E. Thompson ruled that the FAA does preempt the NJLAD amendment to the extent it would impede the use of employment arbitration agreements governed by the FAA. In her decision, Judge Thompson relied on Section 2 of the FAA, which forecloses state legislatures from attempting to undercut the enforceability of arbitration agreements. Judge Thompson found that even though the amendment does not expressly preclude arbitration, its enforcement may undercut the FAA in practice. Accordingly, the court enjoined New Jersey from enforcing the amendment with respect to arbitration agreements between employers and employees that are governed by the FAA. According to the U.S. Supreme Court’s decision in Circuit City Stores, Inc. v. Adams, the FAA governs all employment contracts except for those involving transportation employees. Thus, the impact of Judge Thompson’s ruling is far-reaching.

While this opinion may be appealed, it is welcome news for New Jersey employers who maintain pre-dispute arbitration agreements. For now, at least, pre-dispute arbitration agreements are enforceable as to NJLAD claims.

If you have any questions regarding this development or if we can be of further assistance regarding other concerns in the workplace, please do not hesitate to contact us.

*Shannon Finnegan, a Law Clerk in the New York office, contributed to this post.

As we previously discussed, New York passed legislation on March 12, 2021 to provide employees in the state with up to four hours of paid leave for each COVID-19 vaccination injection they receive. On March 21, 2021, the New York Department of Labor released Frequently Asked Questions (FAQs) that clarify several aspects of the new paid vaccination leave law.

Our previous post on this new law raised several questions with regard to its application. The newly released FAQs answer most of these questions. First, employers may require proof of vaccination to allow employees to claim paid leave, but the FAQs encourage employers to consider any confidentiality requirements applicable to such records prior to requesting proof of vaccination. Second, while the FAQs do not address whether employers may control when employees schedule their vaccination appointments, they do note that employers are permitted to require notice from employees before they take their paid leave. So, employers can likely request that the employee provide the employer with the date and time of the appointment as soon as the appointment is made. Third, employers must only provide paid leave for the “sufficient period of time” in which an employee is absent from work (not exceeding four hours). So, while an employee is entitled to up to four hours of paid leave per vaccination injection, if the employee’s appointment is at 9am, absent extenuating circumstances, the employer likely could require the employee arrive at the workplace immediately after receiving their vaccination, as opposed to permitting the employee to arrive at 1pm. Fourth, the FAQs define employers and employees: employers include any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business, or service.

In addition to answering these questions, the FAQs clarify several other aspects of the law. The most important of these clarifications include:

  • The law will remain in effect until December 31, 2022;
  • If an employee took time off to get the COVID-19 vaccination prior to March 12, 2021, employers may voluntarily provide paid leave benefits, but the new law does not require employers to provide the benefits retroactively;
  • The four hours of paid leave provided applies to each vaccine injection;
  • Employees can only take the paid leave to get vaccinated themselves, and thus may not use the paid leave to assist a relative or other person in getting vaccinated;
  • Employers may not substitute paid vaccination leave with any other paid leave benefit, such as paid sick time or leave provided by a collective bargaining agreement (CBA); and
  • Employees must be paid their regular rate of pay.

Though the FAQs have clarified many aspects of the New York paid vaccination leave law, there are still some open questions. First, the FAQs do not address whether employers may control when employees schedule vaccinations. Second, because the law and FAQs do not distinguish between full-time and part-time employees, it is unclear whether employers must provide the same leave to part-time employees.

For assistance in navigating these ambiguities, forming policies related to vaccination leave, or any other concerns regarding COVID-19 policies and procedures in the workplace, please contact an author of this article or the Hogan Lovells lawyer with whom you regularly work.

Heather McAdams, a Law Clerk in the New York office, contributed to this blog post.

[UPDATE: The California Labor Commissioner updated its FAQs in April to provide further clarification as to when employees may use COVID-19 supplemental paid sick leave (COVID-19 SPSL). Highlights from the updated guidance include:

  • For employees to receive COVID-19 SPSL due to daycare closures, the closure must have been a total or partial closure that occurred on or after January 1, 2021, and rendered the care unavailable, because of COVID-19 on the premises.
  • An employee may receive COVID-19 SPSL if they are caring for a family member either because the family member has been advised by a medical professional to stay home due to COVID-19, or the family member is subject to a COVID-19 related quarantine or isolation period.
  • Employers must provide COVID-19 SPSL immediately upon the eligible employee’s oral or written request.]

On March 19, 2021 Governor Newsom signed into law SB 95 (adding sections 248.2 and 248.3 to the Labor Code), which requires employers to pay California employees up to two weeks of COVID-19 supplemental paid sick leave (COVID-19 SPSL).

This new law revives and expands the supplemental paid sick leave law that expired on December 31, 2020. As a result of these changes from the prior iteration of California’s Supplemental Paid Sick Leave law, many more California employers will be required to provide, and many more employees will be eligible for, COVID-19 SPSL. Continue Reading California brings back, and expands, COVID-19 Supplemental Paid Sick Leave

As employers anticipate returning to work in light of increased availability of vaccines, some have considered requiring employees to get a COVID-19 vaccination to return to the workplace. On March 4, 2021, California’s Department of Fair Employment and Housing (DFEH) updated its DFEH Employment Information on COVID-19 to address whether employers may mandate vaccines under the California Fair Employment and Housing Act (FEHA). The FEHA prohibits discrimination against employees based on protected characteristics, including disability and religious beliefs.

Under the recent update, the DFEH states that employers may require employees to receive an FDA-approved vaccination against COVID-19 as long as the employer 1) provides reasonable accommodation related to disability or sincerely held religious beliefs, and 2) does not retaliate against employees for requesting such an accommodation.

Continue Reading DFEH issues guidance addressing mandatory vaccines in California

As employers are revising their return to work protocols in light of increased vaccination efforts and the prospect of increased on-site work, the federal government has been busy implementing additional COVID-19 safety measures for the workplace, including targeted on-site inspections of workplaces where workers may have been or are likely to be exposed to SARS-CoV-2 (COVID-19).

Among other actions, on March 12, 2021, the U.S. Occupational Safety and Health Administration (OSHA) issued a new National Emphasis Program (NEP), effective immediately, prioritizing inspections for “high-hazard industries or activities” where there is a hazard for contracting COVID-19 at the workplace. The NEP, published alongside an Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) (ERP) is a result of President Biden’s inauguration day Executive Order in which he directed OSHA to focus its enforcement on COVID-19 efforts. President Biden’s executive order called for OSHA to consider implementing a potential nationwide Emergency Temporary Standard (ETS). The NEP and ERP suggest that an ETS may be issued in the future by stating that if an ETS is issued, its requirements will take precedence over OSHA’s currently-available standards.

The stated goal of the NEP is to “significantly reduce or eliminate worker exposures to SARS-CoV-2 by targeting industries and worksites where employees may have a high frequency of close contact exposures and therefore, controlling the health hazards associated with such exposures. This goal will be accomplished by a combination of inspection targeting, outreach to employers, and compliance assistance…” Continue Reading OSHA issues National Emphasis Program and Enforcement Response Plan, targeting certain industries for inspections

Certain employers are considering rewarding their employees with bonuses for their work during the COVID-19 pandemic.  However, in order to avoid triggering potential overtime payments under the Fair Labor Standards Act, employers need to ensure that the bonuses provided are discretionary bonuses, rather than non-discretionary bonuses.  Hogan Lovells employment lawyer Zach Siegel recently provided commentary on this topic in an article on the Society for Human Resource Management website, available here.

[UPDATE: On March 12, 2021, Governor Cuomo signed the bills into law, providing for paid COVID-19 vaccination leave for New York employees, effective immediately.]

The New York State Legislature recently passed bills (Bill S2588A; A3354B) that would provide all public and private employees in New York with up to four hours of paid leave to obtain the COVID-19 vaccine. The legislation is expected to be signed by Governor Cuomo shortly.

The proposed law provides that the paid vaccination leave may not be charged against any other leave that the employee is entitled to, such as any paid sick leave or leave pursuant to any collectively bargained agreement. An employee will be entitled to up to four hours for each COVID-19 vaccination through December 31, 2022. Continue Reading Paid vaccination leave coming to New York

On March 2, 2021, the Office of Federal Contract Compliance Programs (OFCCP) in the U.S. Department of Labor announced that it is amending its FY 2020 Corporate Scheduling Announcement List (CSAL) for federal supply and service contractors to forego “compliance checks” and “focused reviews” on that list that are not currently underway. Contractors that were identified for a compliance check or focused review in the FY 2020 CSAL should check the amended FY 2020 CSAL to determine whether they are listed for any other type of review. Notably, OFCCP’s announcement does not cancel its more fulsome compliance reviews, impact any reviews from prior lists (e.g., the FY 2019 CSAL) or open reviews, or make any changes to reviews that are pending for construction contractors (which are subject to a different CSAL).

Continue Reading OFCCP amends FY 2020 CSAL, indicating a move to conducting fewer but broader compliance reviews of government contractors

As we previously discussed, employers with fewer than 500 employees will no longer be legally required to provide employees with leaves of absence under the Families First Coronavirus Response Act (FFCRA). As of January 1, 2021, covered employers may choose to voluntarily provide such leave through March 31, 2021, and continue to take tax credits for doing so.

Although FFCRA leave may now be an employer elective, covered employers in states and local jurisdictions that have passed their own COVID-19 leave laws may remain obligated to provide their eligible employees with COVID-19 leave. We previously discussed an expansion of Washington D.C.’s COVID-19 leave obligations through March 31, 2021. To a similar end, New York employers also have continuing COVID-19 leave obligations into 2021, and perhaps beyond. Continue Reading NY employers’ continuing COVID-19 leave obligations…for the foreseeable future