The Oregon legislature has temporarily amended Oregon’s Equal Pay Act to allow employers latitude to both encourage COVID-19 vaccinations and to attract new employees as the state emerges from COVID-19 business restrictions. Under the revised statute, when evaluating whether employees who perform work of comparable character are paid equitably, a comparison of employee compensation may exclude vaccine incentives. Similarly, hiring and retention bonuses are excluded from the calculation. The exclusion is only temporary, however, and scheduled to expire on March 1, 2022.

Read more on these developments.

The United Food and Commercial Workers International Union, AFL-CIO, CLC (UFCW), and the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) have filed a petition for review of OSHA’s recent COVID-19 Emergency Temporary Standard (ETS) in the District of Columbia Circuit Court of Appeals. The ETS covers only healthcare settings where COVID-19 patients are treated.

According to the petition, UFCW and AFL-CIO have requested review on the grounds that the ETS “fails to protect employees outside the healthcare industry who face a similar grave danger from occupational exposure to COVID-19.” A June 10, 2021, statement issued by AFL-CIO President Richard Trumka indicates that the union is particularly concerned about workers in industries with high rates of COVID-19 infections and deaths, such as meatpacking, grocery, transportation, and corrections. UFCW and AFL-CIO’s statement of issues is due to the court on July 26, 2021.

National Nurses United (NNU) also filed a petition for review of the ETS in the Ninth Circuit Court of Appeals on June 24, 2021. NNU did not identify the grounds for review in the petition and withdrew the petition on July 7, 2021.

In Washington federal court, H-4 and L-2 spouses are continuing their fight to end the delays in approving visa extensions and work authorization – some of which are taking over a year to adjudicate. The plaintiffs in Edakunni v. Mayorkas are asking the court to decide whether this constitutes an unreasonable delay.

The plaintiffs contend USCIS is not using its workforce effectively and is continuing adjudication delays to force more petitioners and applicants to pay for premium processing and, thus, help USCIS with its budgetary problems. The government counters that the delays are basically due to the disruptions caused by COVID-19 and that the harm suffered by the plaintiffs is “purely economic harm and does not implicate human health or welfare” – therefore, is not unreasonable.

Leading companies and organizations, along with the U.S. Chamber of Commerce, filed an amicus brief in the case, noting the delays in EAD adjudications are “directly and indirectly” affecting the economy. The companies argued that, when the highly educated and highly skilled spouses of the 580,000 H-1B and 75,000 L-1 visa holders cannot obtain work authorization, all of these individuals will ultimately decide to leave the United States and take their talents to other countries. The companies also explained that the costs are not “purely economic.” Many visa holders have made “irreversible life decisions” about housing and having children and “indeterminate gaps in employment authorization” are leading to increased anxiety and depression among those affected.

Meanwhile, the American Immigration Lawyers Association (AILA) sent a letter to USCIS in March 2021 with suggestions on how to deal with the delays:

  • Eliminate unnecessary biometrics;
  • Grant automatic extensions for timely filed EAD applications; and
  • Allow earlier filing of EAD renewals.

In May, USCIS eliminated the biometrics requirement for some applications, including H-4 and L-2 applications, in response to a declaration in Edakunni, but none of AILA’s other recommendations have been adopted and the delays continue.

Jackson Lewis attorneys will provide updates as they become available.

The state and some local COVID-19 supplemental paid sick leave requirements continue through the summer. And the City of Los Angeles’ mayor issued a public order mandating additional paid leave.

Under the order, employees who work within the City of Los Angeles and have been employed by their employer for 60 days are entitled to paid time off to get vaccinated for COVID-19, including traveling to and from the appointment, as well as recovering from the side effects of vaccination, if it prevents the employee from being able to work or telework.

Effective Period

The leave mandate went into effect immediately on June 24th and expires on September 30, 2021. However, certain payment requirements are retroactive to January 1, 2021.

Amount of Leave

The amount of time an employee is entitled to take is dependent on the size of the employer and whether the employee is full-time or part-time.

Size of Employer Full-Time Employee Part-Time Employee
25 or fewer employees

·       4 hours of COVID-19 Vaccine Leave to obtain each COVID-19 vaccine injection.

·       Up to 8 hours of COVID-19 Vaccine Leave to recover from any vaccination-related side effects.

·       The prorated amount of 4 hours of COVID-19 Vaccine Leave per injection based on the average number of hours worked in the 60 days preceding the injection.

·       Up to the prorated amount of 8 hours of COVID-19 Vaccine Leave to recover from any vaccination-related side effects.

More than 25 employees ·       If the employee has exhausted leave under other sick leave allotments such as the city mandated supplemental paid sick leave

o   4 hours of additional paid leave per injection

o   Up to 8 hours of additional paid leave for recovery from vaccination-related side effects.

·       If the employee has exhausted leave under other sick leave allotments such as the city mandated supplemental paid sick leave

o   Up to the prorated amount of 4 hours per injection based on the average number of hours worked in the 60 days preceding the injection.

o   Up to the prorated amount of 8 hours for recovery from vaccination-related side effects.

 

 

Rate of Pay

Non-exempt employees entitled to the leave are to be compensated at the highest of the following rates:

  • The normal rate of pay for the workweek in which the leave is taken;
  • The City’s minimum wage;
  • The average hourly pay for the preceding 60 days, not including overtime.

Exempt employees are to be compensated for the leave in the same manner as the employer calculates other forms of paid leave. However, leave required by the order is not to exceed $511 per day (or $255.50 per each 4 hours), or $1,022 in aggregate.

Retroactive Provisions

If an employee took leave to receive a COVID-19 vaccine or to recover from vaccination on or after January 1, 2021, and was not compensated at an amount equal or greater to the rate required by the order, then upon oral or written request of an employee, the employer must provide a retroactive payment.

Retroactive payment will also be due to an employee if the employee had to use leave other than the city-mandated sick leave or city-mandated supplemental paid sick leave, such as vacation time and such leave must be restored to the employee.

If you have questions about compliance with the City of Los Angeles order or related issues with COVID-19 leave, contact a Jackson Lewis attorney to discuss.

On May 18, 2021, Santa Clara County ordered businesses to track employee’s COVID-19 vaccination status. This Order departed largely from the prior County Orders as well as the California Blueprint for a Safer Economy.  However, in conjunction with the California Department of Industrial Relations, Division of Occupational Safety and Health (commonly known as Cal/OSHA), the County has now issued a new Order limiting the requirement.

The June 21, 2021 health order includes recommendations to continue to keep the community safe from COVID-19, which the County suggests include: (1) getting vaccinated; (2) continuing to emphasize outdoor activities; (3) avoid travel if not fully vaccinated; and (4) continue regular testing for COVID-19 if not fully vaccinated and, regardless of vaccination status, get immediately tested if you have COVID-19 symptoms.  The County cited declining cases, widespread community vaccination, and the newly amended Cal/OSHA regulations as the reasons it was phasing out its May 18th Order.

Under the revised order, businesses in Santa Clara county must have completed two rounds of ascertainment of the vaccination status of their personnel. Prior to the June order, ascertainment of vaccination status was an ongoing obligation for employers in the county.

As clarified by the County, the first round of ascertainment was to be for all personnel and the second round for those who did not indicate they were fully vaccinated. Once two rounds of ascertainment are completed, the May 18th order will no longer apply.

The first round should have been completed by June 1, 2021, per the original order. The FAQs Santa Clara issued regarding the revised order state that if employers have not completed ascertainment to date, the first round should be completed immediately, and the second round 14 days thereafter.

The County states all entities must maintain their records of compliance for the period Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) remain in effect. Currently, the ETS are set to expire on January 14, 2022.

Under the May and June orders, a business can ascertain an employee’s vaccination status by reviewing the documentation establishing the employee’s vaccination status e.g. the employee’s vaccine card, or the employee may complete a certification of vaccination status. The County developed a template for self-attestation to assist with compliance with the order.

Employers are directed to document if an employee declines to disclose their vaccination and like the ETS treat the employee as if they are not fully vaccinated.

Jackson Lewis continues to track local and state regulations pertaining to COVID-19 in the workplace. If you have questions about complying with the Santa Clara order or related issues contact a Jackson Lewis attorney to discuss.

Essential travel restrictions in response to the COVID-19 pandemic, first instituted in March 2020, between the United States and Canada (and Mexico), will continue until July 21, 2021, or be lifted sooner for fully vaccinated individuals. This is welcome news for communities on both sides of the Northern Border that have been feeling the familial and economic pain.

Not only are Canadians and Americans missing their family members and friends who live on the other side of the border, but many of the small U.S. towns along the Northern Border have suffered from the disruption of “a symbiotic relationship” with Canadian consumers. Because prices on common consumer goods such as gasoline and milk are considerably lower in the United States, Canadians used to be able to simply cross the border for purchases. But due to travel restrictions, sales have dropped off precipitously. Canadians used to have items shipped to U.S. border towns to avoid the high cost of international shipping to Canada. But since they can no longer easily cross the border to pick up their packages, mailbox service firms are flooded with goods that have not been picked up or are simply losing money every month for lack of business. Although large chain stores are better able to absorb these temporary losses, small businesses cannot, and they are anxious to have the restrictions lifted.

There is hope, however, that the restrictions are easing. Working groups have been established to study the issue, but Prime Minister Justin Trudeau has said that restrictions will not be lifted until 75 percent of Canadians are fully vaccinated. Canada’s chief medical officer has estimated that if vaccinations continue at current rates, that goal may be reached within weeks. Further, as of 11:59 p.m. (EDT) on July 5, 2021, restrictions on fully vaccinated individuals (who are otherwise eligible to enter Canada, i.e., not subject to essential travel restrictions) will be eased. Fully vaccinated individuals who have had the Pfizer, Moderna, AstraZeneca, or Jansen (Johnson & Johnson) vaccines will no longer need to quarantine, participate in a mandatory hotel stay, or take COVID-19 tests eight days after their arrival if they meet the eligibility requirements. Whether they do or not will be decided at the border.

To qualify for the “fully vaccinated” exemption, travelers must, among other things:

  • Submit COVID-19-related information into ArriveCAN in advance of arrival;
  • Meet pre- and on-arrival test requirements;
  • Be asymptomatic;
  • Have an acceptable quarantine plan (in case quarantine is necessitated); and
  • Carry written proof of vaccination in English or French (or with a certified translation).

A detailed outline of the requirements is on the Government of Canada website.

Please reach out to your Jackson Lewis attorney with any questions about continuing COVID-19 travel restrictions.

Under Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS), employers are mandated to have a written COVID-19 Prevention Program. In light of the recent revisions to the ETS, Cal/OSHA has released an updated model prevention program. The updated program includes directives for vaccinated and unvaccinated individuals such as face-covering requirements. The new model program also includes an appendix for documentation of employee’s COVID-19 vaccination status.

While the model prevention program is very detailed, employers will still need to conduct a workplace-specific evaluation to ensure they are appropriately addressing the hazards facing their workforce. Employers can find fact sheets and links to Cal/OSHA’s FAQs about the ETS on the COVID-19 Prevention Emergency Temporary Standards page.

If you have need assistance in updating your COVID-19 Prevention Program or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

To help employers dealing with labor shortages due to the limits on H-2B temporary, seasonal visas, a new rule published by the Department of Labor (DOL) increases the H-2B numerical limits. DOL also released a rule that allows H-2B nonimmigrant workers already in the United States to begin work immediately with a new employer after an H-2B petition has been filed if it is supported by a valid Temporary Labor Certification (TLC) received by USCIS even if it is not yet approved.

The new rules do not apply to employees who are continuing to work with the same employer. Those employees are not “portable,” instead they are entitled to keep working for up to an additional 240 days if the extension of stay was timely filed.

Portability for workers changing employers applies if:

  • The H-2B extension was received before May 25 and is pending on May 25, 2021; or
  • USCIS receives the H-2B petition between May 25 and November 22, 2021.

First, the new employee may be employed for up to 60 days beginning on the employment start date of the petition or May 25, 2021, whichever is later.

Second, the 60-day period begins on the Received Date of the Form I-797, Notice of Action, acknowledging receipt of the petition or the employment start date, if later than the receipt date.

Completing a Form I-9, Employment Eligibility Verification, for H-2B portability requires:

  • An unexpired Form I-94, Arrival/Departure Record indicating H-2B status and the employee’s foreign passport constitute a List A Document
  • In Section 2, List A enter:
    • Unexpired foreign passport information
    • Unexpired Form I-94 information
    • Enter “60-Day Ext.” and the date extension of stay petition was submitted to USCIS in the Additional Information field
  • Employment authorization must be reverified in Section 3 by the end of the 60-day period or when a decision is received from the USCIS, whichever is sooner.

If USCIS denies the petition or the new petition is withdrawn by the employer before the 60-day period expires, USCIS will automatically terminate the worker’s employment authorization 15 calendar days after the denial or the withdrawal.

Although the new allotment of H-2Bs have been snatched up, there are still some H-2B visas available for employees from the Northern Triangle countries. If those are not all allotted by July 8, 2021, the remaining visas will be released by the end of July.

If you have questions about the I-9 process for H-2B workers, please reach out to your Jackson Lewis attorneys. We will continue to provide updates as they become available.

For more information on H-2B petitions, see the new H-2B Employer Data Hub.

Since 2019, private employers with at least 50 employees have been required in most instances, pursuant to NRS 608.0197, to provide 0.01923 hours of paid leave to their employees for each hour worked. Now, Nevada has enacted new law requiring employers to provide additional paid leave to allow employees to receive a COVID-19 vaccination and clarifying that employees may use existing paid leave to care for themselves and their family members. Read more from our Nevada colleagues about these new employer obligations.