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Employment Law Potpourri (COVID-Related)

by Jennifer Shaw and Melissa Whitehead | | Apr 27, 2021

As 2021 marches on, so do legal developments related to COVID-19 and the workplace! Here is a round-up of recent news:

COVID-19 Paid Sick Leave Tool Now Available. On April 26, 2021, the DIR and Labor Commissioner released a web-based tool to assist workers and employers navigate paid sick leave options under SB 95’s Supplemental Paid Sick Leave law. The tool is anonymous, available in English and Spanish, and “helps workers and employers confirm if they are eligible for COVID-19 supplemental paid sick leave by answering short simple questions on the impact COVID-19 is having on an employee’s ability to work.” If you use the tool, be sure and check local ordinances for sick leave requirements, because those are not included in the tool. Review the Press Release here and the navigator tool here.

Labor Commissioner Updates SB 95 FAQs. The Labor Commissioner updated its FAQs on the COVID-19 Supplemental Sick Leave law. Read the FAQs here. Clarifications include:

– Leave for childcare purposes “means a child’s school or place of care has been closed after concern that a person who had been present on the school or daycare premises on or after January 1, 2021, was exposed to, or had contracted, COVID-19.”

– An employee may use leave to care for a sick family member “either because the family member has been recommended 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.”

– An employer must provide leave to an eligible employee “immediately” upon their “oral or written request.”

– SB 95 grants employees up to an additional 80 hours of COVID-19 related paid sick leave, separate from previous COVID-19 sick leave laws and any federal laws.

OSHA Issues New FAQs. OSHA added a new guidance topic on its COVID-19 FAQ page addressing when adverse reactions to COVID-19 vaccines are “recordable.” The simple answer is that employers likely must keep a record of adverse vaccination reactions when employers require employees to be vaccinated as a condition of employment. The analysis may differ if an employer recommends the vaccination or offers advancement opportunities contingent on vaccination, for example. Read the updated FAQs here.

Keep an eye out on this blog for information about the following anticipated developments:

Federal OSHA COVID Workplace Safety Rule Likely Coming Soon. President Biden issued an Executive Order in January 2021, directing OSHA and the Department of Labor to consider whether an emergency rule is necessary to ensure worker protections during the COVID-19 pandemic. The March 15, 2021, deadline to do so passed without comment, but in April 2021, a DOL spokesperson revealed that they are working on a rule, but delayed finalizing it to address the “latest scientific analysis.” The Education and Labor Committee’s Subcommittee on Workplace Protections directed officials from the DOL and National Institute for Occupational Safety and Health to appear at the April 30, 2021, subcommittee meeting, and both agencies are expected to press for the release of the rule. On April 26, 2021, the DOL sent the proposed emergency rule to the White House for final review, so we expect to see the new rule released in the near future.

EEOC Guidance on Vaccination Incentive Programs on the Horizon. In response to requests from various business groups, the EEOC’s Acting Legal Counsel sent a letter on April 15, 2021, confirming that the agency will “update its technical assistance about COVID-19” to address “the extent to which employers may offer employees incentives to vaccinate without running afoul of the Americans with Disabilities Act and other laws enforced by the EEOC.” The letter does not include a timeline for the release of the guidance. Read the letter here.

Don’t miss our interactive webinar tomorrow, “Practical Perspectives on California’s Covid-19 Sick Leave, the FFCRA Tax Credit, and the Cobra Subsidy,” from 11:00 a.m. to 12:30 p.m. California time. You can register here: https://shawlawgroup.com/employment-law-training-calendar/.

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