On his first day in office, President Joe Biden signed a memorandum fortifying the Deferred Action for Childhood Arrivals (DACA) policy. His administration also has granted Temporary Protected Status (TPS) to more individuals: those from Venezuela and Burma. Building on this, President Biden also proposed broad legislative immigration reform, including a path to citizenship for DACA (or Dreamers) and TPS beneficiaries, as well as for the 11 million undocumented immigrants currently living and working in the United States. But finding enough bipartisan support for passing broad immigration reform is far from assured. In recognition of that, the administration has adopted a “multiple trains” strategy to move specific pieces of the plan.

On March 18, 2021, the House passed two such bills: The American Dream and Promise Act (“Dream Act”) and the Farm Workforce Modernization Act (“Farm Act”).

The Dream Act would provide a path to citizenship for Dreamers, certain TPS beneficiaries, and Deferred Enforced Departure (DED) beneficiaries, approximately two million people in total. The bill passed the House with a 228 to 197 bipartisan majority. The Farm Act passed with a larger 247 to 174 bipartisan majority. It would allow undocumented farm workers who pass necessary background checks and pay a $1,000 fine to receive temporary legal status. This status could be renewed indefinitely for as long as the individual maintains farm employment. There would also be a path to permanent residency for longtime workers, streamlining of the H-2A visa process, new wage standards, and a mandate for E-Verify for agriculture.

The COVID-19 pandemic brought to the fore the essential nature of the work performed by many DACA, TPS, and DED beneficiaries, particularly in healthcare, as well as work performed by undocumented workers, especially in agriculture, ranching, and the dairy industry. Despite that, some Senators’ concerns about amnesty, asylum policies, and the increase in individuals detained at the Southern border may delay or block the passage of the bills.

Jackson Lewis attorneys will provide updates as they become available.

Some of the inbound international travel restrictions that have bedeviled U.S. employers reportedly are expected to be lifted by mid-May.

This will include restrictions on travel from the UK, Europe, and Brazil, as well as the travel restrictions at the Northern and Southern borders, which were recently continued until April 21, 2021. An anonymous senior administration official said there would be a “sea-change in mid-May when vaccines are more widely available to everyone.”

The administration reviews the travel restrictions weekly. There appear to be two schools of thought: 1) those who are concerned about lifting travel restrictions due to the spread of COVID-19 variants and 2) those who believe that the COVID-19 testing requirements for boarding international flights are sufficient.

The plethora of world-wide travel restrictions has led to confusion and hardships to businesses and individuals, and there is no direct evidence that the travel bans are needed now that COVID-19 testing is widely available.

Industry groups, including the airlines, have been urging the administration to loosen restrictions and rely on “core public health protections, such as the universal mask mandate, inbound international testing requirements, physical distancing or other measure that have made travel safer and reduced transmission of the virus.”

Jackson Lewis attorneys will be monitoring this situation and provide updates as soon as they become available.

Over 40 percent of counties in the United States are experiencing population declines, and the country is experiencing a decline in the working-age population. Together, these demographics, some say, may signal an eventual slowdown of the economy. How to reverse the trend? Immigrants moving to targeted areas could help stem the decline.

Countries such as Australia and Canada have already adopted immigration programs that focus on their particular states’ or provinces’ needs for workers.

In the United States, various internal economic development programs have targeted immigrants for training and have found way to “match” immigrants with local businesses. But these programs are aimed at tapping immigrants who are already in the United States. For at least 10 years, some states have been trying to gain permission to establish their own work visa programs. The American Citizenship Act of 2021 (ACA 2021), proposed by the Biden administration, would provide such an opportunity. One of its many features is a five-year pilot program that would allow states to essentially recruit immigrants from abroad to join particular industries in specific geographic areas.

The ACA 2021 program would allow an additional 10,000 immigrant visas a year based on localized economic development strategies. Labor certifications proving there are not sufficient U.S. workers in the area to fill the need would be required. The bill also would give the Department of Homeland Security (DHS) the authority to adjust the number of green cards available annually based on macroeconomic conditions.

The “heartland visa” program discussed in Congress is similar to the ACA 2021 pilot program. It is also geographically targeted, with communities and foreign skilled workers “opting-in.” The heartland visa program would require communities to provide funding to “welcome” the new immigrants in exchange for the immigrants remaining in the community for at least a certain amount of time. Similar programs have been adopted by states outside the immigration context to welcome new residents to work and build their state economies. A couple of examples include Tulsa, Oklahoma, which has a remote worker program that includes a $10,000 stipend. Newton, Iowa, also offers a $10,000 grant toward purchasing a home to bring residents to the city.

As the country looks toward a post-COVID-19 economy, targeted immigration programs could speed the recovery. Jackson Lewis attorneys will provide updates particularly regarding the progress of the ACA 2021 as they become available.

On the anniversary of California’s statewide shelter-in-place orders, Governor Newsom signed legislation bringing back the statewide COVID-19 Supplemental Paid Sick Leave.

The new statute requires employers to display a required poster issued by the California Labor Commissioner and which the Labor Commissioner issued on March 22, 2021. Like prior required posters, the notice includes covered leave reasons and the amount of time eligible employees are entitled. If employees do not frequent the workplace, employers may satisfy the notice requirement by disseminating via electronic means, including e-mail. The statute provides a 10-day grace period until March 29, 2021, for employers to comply but should disseminate or display the poster as soon as feasible.

The Labor Commissioner, also quickly released a Frequently Asked Questions page, regarding the new COVID-19 Supplemental Paid Sick Leave. It includes information on:

  • Coverage
  • Reasons for Taking Leave
  • Start Date and End Date of the Statute
  • Requesting Leave from an Employer
  • Calculating Leave Entitlement
  • Credits Against Entitlement
  • Record-keeping and Paystubs
  • Enforcement
  • Relation to Other Laws

Jackson Lewis continues to track issues related to employee leave and COVID-19. If you have questions about California’s new supplemental paid sick leave or related issues, contact a Jackson Lewis attorney to discuss.

Employee Snooping: Your Employees' Temptations = Your LiabilityAs we noted in late January 2020, the spread of infectious disease raises particular concerns for healthcare workers who want to do their jobs and care for their patients, while also protect themselves and their families. Perhaps the desire to protect one’s self and family is what motivated a California state healthcare worker to access COVID-19-related health records of more than 2,000 current and former patients and employees over a ten-month period.

Regardless, this data breach should be a reminder for all organizations that (i) compromises to personal information of whatever kind are not only caused by criminal hackers, and (ii) considering all the personal health information being collected by organizations in connection with COVID-19 screening, testing, and vaccination programs, this is not a problem limited to health care employers.

In the healthcare sector, as with prior contagious disease outbreaks, fears about contracting the virus could lead to impermissible “snooping” and sharing of information by healthcare employees. According to a press release and published FAQs, an employee of Atascadero State Hospital with access to the hospital’s data servers as part of the employee’s information technology job duties improperly accessed approximately 1,415 patient and former patient, and 617 employee names, COVID-19 test results, and health information necessary for tracking COVID-19. The hospital discovered the breach on February 25, 2021, and, evidently, the employee’s improper access had been ongoing for 10 months.

Of course, HIPAA covered entities and business associates should be taking steps to address this risk. Such steps include, for example, continually reminding workforce members about access rights and the minimum necessary rule, which are required under HIPAA’s privacy and security regulations. At times, unauthorized access may be difficult to identify, particularly where employees have a need for broad access to information. In the case noted above, the breach was discovered as part of the hospital’s annual review of employee access to data files. Reviewing system activity generally is a good idea for all organizations, taking into account relevant threats and vulnerabilities to shape frequency, scope, and methodology.

The Office for Civil Rights has issued bulletins addressing HIPAA privacy in emergency situations, such as one in November 2014, during the Ebola outbreak, and one in February 2020 for the coronavirus. These bulletins provide good resources and reminders for health care providers when working in this environment.  They also convey helpful considerations for all organizations handling sensitive personal health information.

During the past 12 months, organizations have collected directly or through third party vendors massive amounts of data about employees. Examples include data collected during daily temperature and symptom screenings, COVID-19 test results for contact tracing purposes, and now vaccination status. Some organizations have used thermal imaging cameras that leverage facial recognition technology to screen, while others have rolled out newly developed devices and apps to manage social distancing and facilitate contact tracing efforts. We now are seeing systems being rolled-out to track and incentivize vaccinations. All of these activities involve the collection and storage of personal information at some level.

Organizations, whether covered by HIPAA or not, engaged in these activities should be thinking about how this information is being safeguarded. This includes assessing the safeguards implemented by third party vendors supporting the systems, devices, and activities. Again, these efforts should not be focused only on systems designed to prevent hackers from getting in, but what can be done internally to prevent unauthorized access, uses, and disclosures of such information by insiders, employees.

Effective immediately, New York State employers must provide employees with up to four hours of paid time off per COVID-19 vaccination. The new law sunsets on December 31, 2022.

The new law provides that:

  1. All New York employees must receive a paid leave of absence for “a sufficient period of time” not to exceed four hours per vaccine injection. In other words, employees may be entitled to up to eight hours of paid time off if receiving a two-injection COVID-19 vaccine;
  2. This leave must be paid at the employee’s regular rate of pay; and
  3. Employers cannot require employees to use other available leave (such as sick leave or vacation time) before providing this leave.

The new law applies to both public and private employers, with potential carveouts for employees subject to a collective bargaining agreement.

In addition to the paid time off requirement, the new law prohibits discrimination or retaliation against any employee who exercises their rights under the law.

The new law is silent as to any retroactive effect, if any. It is also silent as to the types of documentation employers can request from employees seeking this leave.

While some employers already voluntarily provide paid time off to employees for COVID-19 vaccination, New York employers should:

  1. As a best practice, ensure policies are updated to reflect this additional leave entitlement, although the law does not have a policy or specific recordkeeping requirement;
  2. Confirm that no one is required to use available time off under company policy before using this leave;
  3. Communicate this paid time off entitlement to employees;
  4. Decide whether to request proof of vaccination, keeping in mind confidentiality and privacy issues; and
  5. Ensure managers are aware of this leave right and the relevant non-discrimination and retaliation provisions.

As similar time-off-to-vaccinate legislation are pending in many jurisdictions, employers are encouraged to reach out to the Jackson Lewis attorney with whom they work for additional information.

Jackson Lewis attorneys are closely monitoring updates and changes to legal requirements and guidance and are available to help employers weed through the complexities involved with state-specific or multistate-compliant plans.

If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team.

Governor Newsom has signed Senate Bill 95, which resurrects the statewide COVID-19 Supplemental Paid Sick Leave that expired at the end of 2020. The bill takes effect immediately but provides a 10-day grace period for employers to start providing sick leave. The new law also applies retroactively to January 1, 2021 and will remain in effect until September 30, 2021.

What employers are covered?

The new law applies to employers in the state of California with 25 or more employees.

Which employees are eligible?

Employees who are not able to work or telework for any of the reasons detailed in the legislation qualify for the paid leave. There is no length of service requirement for the leave entitlement provided under the new law.

When can employees take leave?

Employees are entitled to leave for the following reasons:

  • The employee is subject to a quarantine or isolation period related to COVID-19;
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The employee is attending an appointment to receive a vaccine for protection against COVID-19;
  • The employee is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework;
  • The employee is experiencing symptoms related to COVID-19 and seeking medical diagnosis;
  • The employee is caring for a family member who is subject to a quarantine or isolation order or has been advised to self-quarantine;
  • The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

How much leave are employees entitled to?

Full-time employees are entitled to 80 hours of COVID-19 supplemental paid sick leave. Full-time is defined as either an employee who is classified as full-time by the employer or who was scheduled to work, on average, 40 hours or more per week in the two weeks preceding the date on which leave is taken.

If an employee is not classified as full-time, the employee’s schedule and length of employment will determine the amount of their leave entitlement as follows:

  • An employee with a regular schedule is entitled to the total number of hours the employee is normally scheduled to work for the employer over two weeks.
  • An employee with a variable schedule is entitled to 14 times the average number of hours the employee worked each day for the employer in the six months preceding the leave.
  • An employee with a variable schedule who has worked for the employer for 14 days or less is entitled to the total number of hours the employee has worked for the employer.

The rate of pay for the leave for non-exempt employees shall be calculated by the highest of the following:

  • The employee’s regular rate of pay for the workweek in which the employee uses the leave.
  • A formula of dividing the covered employee’s total wages not including overtime by the employee’s total hours worked in the full pay period of the prior 90 days of employment
  • The state minimum wage
  • The local minimum wage to which the employee is entitled

For exempt employees, the leave will be paid at the rate that the employer calculates wages for other forms of paid leave time.  The amount paid for supplemental paid sick leave is capped at $511 per day and $5,110 in aggregate.

Due to the retroactive effect of the legislation, employers will need to consider retroactive payments for leave. Any retroactive payment of leave must be paid on or before the payday for the next full pay period after the oral or written request of the employee.

Employers who provided supplemental paid sick leave on or after January 1, 2021 (or April 1, 2021, if the employee qualifies as a home health care provider), under local COVID sick leave ordinances or a COVID specific employer policy may be able to count such hours towards satisfaction of the requirements under this new legislation.

Notice Requirement

Employers will need to provide employees with notice of this new law.  The new law states the Labor Commissioner’s office will release a model notice within 7 days of the passing of the bill.  Employers will also need to provide employees (other than home health care providers) with written notice of available leave balances.  For employees who work a variable schedule, this leave balance notice can be satisfied by performing an initial calculation of hours and indicating “(variable)” next to that calculation.

Jackson Lewis continues to track COVID-19 legislation affecting employers. If you have questions about the new supplemental paid sick leave requirements or related issues, contact a Jackson Lewis attorney to discuss.

The EB-5 Investor Visa was created by an act of Congress in 1993, and it has proved to be a critical driver in American job creation since its inception.

By some estimates, the program has brought in over $20.6 billion in Foreign Direct Investment (FDI) at no cost to the American taxpayer. The program has undergone a series of drastic changes since November 21, 2019; most significantly the minimum investment amount was increased from $500,000 to $900,000. The minimum investment amount is even higher in non-Targeted Employment Areas ($1.8 million).

With the increase in investment amount, interest in the visa declined significantly. This decline in interest, coupled with a new USCIS policy that led to petitions being adjudicated based on a visa availability approach (as opposed to a first-in, first-out approach) is reflected in the visa bulletin; India is now current in the EB-5 category, and Vietnam and China have progressed significantly.

As the United States looks for options to spur economic recovery in the wake of the COVID-19 pandemic, the EB-5 program, with its job creation requirements, seems like a logical option. However, recent developments have put the program at risk.

EB-5 Authorization

Traditionally, the EB-5 regional center program has been tied to Congress’ omnibus spending bill. This means that whenever Congress passes the omnibus bill, the EB-5 regional center program would automatically be re-authorized. While the Consolidated Appropriations Act of 2021 extended the program through June 30, 2021, it disjointed EB-5 re-authorization from future omnibus bills. This means that Congress must re-authorize the EB-5 regional center program as a standalone bill.

While the benefits of the programs are well known, the EB-5 program has undergone considerable media coverage. Anti-immigration rhetoric is also playing a part in the discussion. Together, this makes EB-5 re-authorization in June 2021 uncertain.

The EB-5 Reform and Integrity Act

Senators Chuck Grassley (R-IA) and Patrick Leahy (D-VT) have introduced the EB-5 Reform and Integrity Act. The bill provides for some crucial changes that would likely safeguard the EB-5 program’s longevity. This includes a five-year authorization for the EB-5 Regional Center Program, protections for innocent investors who have invested into disbarred projects, and increased oversight for regional center programs. The EB-5 industry has welcomed the bill, with the understanding that increased oversight will lend more credibility to the program and appease the program’s detractors. The economic effects of the COVID-19 pandemic provide compelling grounds for both re-authorization and reforms, and the program has brought in billions of dollars of investment and created thousands of American jobs.

The Jackson Lewis team will continue to monitor developments in the EB-5 program and provide updates.

The American Rescue Plan Act of 2021 includes a modified version of the Butch Lewis Act, referred to as the Emergency Pension Plan Relief Act of 2021 (EPPRA), which restores to financial health more than 100 failing multiemployer pension plans. However, the measure falls well short of any meaningful long-term funding reform.  More