In May of 2020, the Department of Labor (DOL) and Internal Revenue Service (IRS) released joint-agency guidance that extended several important deadlines for employees, including COBRA election and payment deadlines, HIPAA Special Enrollment deadlines, and claims submission and appeal deadlines.  Under the guidance, plan administrators were required to extend the deadlines that would otherwise apply for any individuals affected between March 1, 2020, until 60 days after the end of the National Emergency (also known as the “Outbreak Period”).  Although the guidance was generally well-received when issued, it has since raised confusion and administrative difficulties due to the length of the Outbreak Period.  Keeping open-ended COBRA election periods without payment of employee premiums has caused administrative difficulties and resulted in varying approaches amongst administrators to ensure plans don’t experience claims risk for periods of now up to 12 months in many cases.

When the guidance was issued, no one imagined that the Outbreak Period would realistically last for more than a year.  Because it is now clear the National Emergency will continue for several more months, the problem that has inadvertently arisen is this extension guidance is now at risk of directly conflicting with statutory guidance under ERISA Section 518 and Code Section 7508A, as amended under the CARES Act to include public health emergencies, like COVID, to the list of circumstances (that previously were comprised of declared disasters, terrorism, and military action, etc.) that allow for up to a one-year extension for applicable deadlines such as those dealt with under the extension guidance above.  This maximum one-year extension for each of the above-referenced deadlines will end on February 28, 2021, however, there has been no direction from the agencies as to how or when plan administrators can reinstitute applicable deadlines.

The agencies know the issue and are evaluating alternatives, but we have been told they likely will not have a solution before February 28, 2021, the end of the maximum statutory one-year extension.  What are employers to do in the meantime?  This is a hotly debated topic amongst employers, attorneys, third-party administrators, and consultants.  Many suggest that employers have no choice but to now enforce the previous deadlines as if the Outbreak Period has ended.  Even that conclusion still leaves open questions, such as does that mean that affected individuals should now be given 60 days from March 1, 2021, to enroll in COBRA and make payments? An additional 30 days to make up all prior COBRA payments deferred for those previously enrolled?

Ultimately, plan sponsors should discuss their next steps with counsel and third-party administrators to weigh all options.  Employers can still rely on the guidance that exists today to support continuing to extend deadlines.  The National Emergency is ongoing and there is good reason to continue to extend all deadlines until further guidance is received.  Even if the DOL and IRS announce an end to the Outbreak Period based on the one-year statutory framework, the agencies typically provide a period of relief for those who in good faith comply with current guidance.  Many are anxiously awaiting directions and we will keep our readers apprised of any developments.

We are available to help employers and plan administrators understand and evaluate how these issues impact their employee benefit plans.  Please contact a team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

As the state of California approaches one year of being under various shelter-in-place orders, the Labor & Workforce Development Agency and the Department of Industrial Relations have consolidated resources for employers into a new website. The site provides information on how to ensure a safer and healthier workplace. It also has information on handling employees who may be sick or exposed to COVID-19 in the form of an FAQ.

The site has training resources for employees and employers to learn more about preventing the spread of COVID-19 in the workplace.

The new state website further includes a “road map” section in which employers can select their county and industry and receive information about regulations and requirements relevant to their workforce. The guidance includes required safety protocols such as social distancing, as well as potential employee benefits that the employer may be required to comply with. It additionally provides information on the steps to take following a COVID-19 case in the workplace, including local health department contact information.

The guidance, while purporting to be “customized” by the state, is essentially pulling from state and county guidances already available. Employers will still need to sift through the information to determine how to best implement requirements and ensure compliance.

Jackson Lewis continues to track state and local developments related to COVID-19. If you have questions about how to comply with state and local requirements or have other questions about COVID-19 and the workplace, contact a Jackson Lewis attorney to discuss.

Making good on President Biden’s campaign promise, the House of Representatives has included in its $1.9 trillion Covid-19 relief bill, known as the “American Rescue Plan Act of 2021,” revisions to the Fair Labor Standards Act (FLSA) that would increase the federal minimum wage to $15 per hour by 2025. The current federal minimum wage is $7.25 and has not increased since 2009. Under the proposal, the minimum wage would almost immediately increase to $9.50 per hour, then would increase annually by $1.50 per hour until reaching $15 in 2025. Each year thereafter, any further increase would be based on the median hourly wage of all employees for the prior year.

In addition, under the bill the $2.13 minimum wage, known as the “tip credit,” that employers currently may pay to employees who customarily and regularly receive at least $30 per month in tips, would be eliminated by 2025, requiring employers by then to pay both tipped and non-tipped employees the same. In a similar, stepped fashion to the standard minimum wage, the tip credit initially would increase to $4.95 per hour and then would annually increase $2.00 per hour until it matched the standard minimum wage.

The bill also would eventually eliminate an FLSA provision that currently allows employers to pay a subminimum wage to employees under the age of 20 who are within the first 90 days of their employment, as well as a provision that allows an employer to obtain a certificate from the Secretary of Labor to pay a subminimum wage to its employees with physical or mental disabilities.

Whether these minimum wage provisions will remain in the Covid-19 relief belief is questionable. The non-partisan Congressional Budget Office (CBO) estimates that, by 2025, a $15 minimum wage would increase pay for 17 million people and pull 900,000 out of poverty. But the CBO also estimates that about 1.4 million jobs would be lost, as employers eliminate jobs to account for their higher labor costs. Some economists disagree with the CBO’s latter conclusion, pointing to studies that show minimum wage increases at the state level over the past several years have not resulted in significant job losses, if any at all. How Economists See Biden’s $15 Wage Proposal.

Nevertheless, the minimum wage provisions may not be allowed to remain in the pandemic relief bill if, as anticipated, Congressional Democrats seek to pass it without significant Republican support, using the procedure known as reconciliation. While the Senate may use reconciliation to pass bills with only a simple 51-vote majority versus the 60-vote supermajority threshold required to defeat a filibuster, there are limits on the types of laws that may be passed using reconciliation – and the minimum wage provisions may be deemed outside of those limits. Specifically, the fact that the minimum wage provisions are merely incidental to the primary purpose of the relief bill, as well as the fact that the minimum wage provisions are not within the jurisdiction of the Budget Committee proposing the bill, likely would cause some senators to object to the provisions, which would then require a 60-vote supermajority to overcome. As a result, President Biden has acknowledged that due to the limits of reconciliation, his proposed minimum wage hike is unlikely to ultimately remain in the relief bill and would instead have to be addressed separately. Biden Doesn’t Think $15 Minimum Wage Hike Will Survive COVID-19 Relief Bill.

Jackson Lewis will continue to monitor and report any developments concerning the minimum wage proposal. If you have any questions about this or any wage and hour or  issue, please consult the Jackson Lewis attorney(s) with whom you regularly work.

On January 13, House Delegate Sara Love Introduced the “Biometric Identifiers and Biometric Information Privacy Act” (the “Act”) substantially modeled after the Biometric Information Privacy Act in Illinois, 740 ILCS 14 et seq. (the “BIPA”). Enacted in 2008, the Illinois BIPA only recently triggered an avalanche of class actions in Illinois, spurring other legislative activity, including in New York. If enacted, Maryland’s Act would become effective January 1, 2022.

Just like the BIPA and the proposed law in the Empire State, the Act would establish rules for “private entities” possessing “biometric identifiers” and “biometric information” of a person, such as:

  • Development of a publicly available policy establishing retention and destruction guidelines,
  • Mandated reasonable safeguards relating to the storage, transmission, and disclosure of such information in a manner at least as protective as for “confidential and sensitive information,” such as social security numbers and account numbers,
  • Prohibiting private entities from profiting from the information, and
  • Limited right to disclose without consent.

Unlike the BIPA, the Maryland bill would clarify the policy need not be publicly available when it applies only to employees and is used only for internal operations.

Most important, the Act also would create a private right of action for persons “aggrieved” by violations of the Act, using language similar to the BIPA, permitting persons to recover the greater of (i) statutory damages of at least $1,000 for each negligent violation, or $5,000 for each intentional or reckless violation, and (ii) actual damages.

We know the Illinois Supreme Court decided that, in general, persons bringing suit under the BIPA do not need to allege actual injury or adverse effect, beyond a violation of their rights under the BIPA, in order to qualify as an “aggrieved” person and be entitled to seek liquidated damages, attorneys’ fees and costs, and injunctive relief under the BIPA. See Rosenbach v. Six Flags Entertainment Corp.

As with the proposed BPA in New York, Maryland’s Act is not yet the law. However, if enacted, private entities covered by the Act should promptly take steps to comply. That is, they should review their time management, point of purchase, physical security, or other systems that obtain, use, or disclose biometric identifiers or biometric information against the requirements under the Act. Biometric identifiers under the Act include data of an individual generated by automatic measurements of that individual’s biological characteristics such as fingerprint, voiceprint, genetic print, retina or iris image, or any other unique biological characteristic that can be used to uniquely authenticate the individual’s identity. In this respect, the Act would be broader than the BIPA – in Illinois, a biometric identifier is limited to a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry. There are, however, exclusions from biometric identifiers under the Act, such as writing samples, photographs, demographic data, physical descriptions (such as height and weight), and protected health information covered by HIPAA.

In the event private entities find technical or procedural gaps in compliance – such as not having a retention and destruction policy concerning such information or obtaining consent to provide biometric information to a third party – they should quickly remedy those gaps.

It is unclear whether courts in Maryland will interpret the availability of remedies under the Act, if enacted, the same as the Illinois Supreme Court in Rosenbach. However, if they do, the duties imposed on private entities subject to the law regarding the possession, retention, disclosure, safeguarding, and destruction of a person’s biometric identifiers or biometric information will define the statutory rights of persons protected by the law. Accordingly, when a private entity fails to comply with one of the Act’s requirements, that violation could constitute an invasion, impairment, or denial of a right under the Act resulting in the person being “aggrieved” and entitled to seek recovery.

As more healthcare employees receive their COVID-19 vaccinations, questions about when vaccinated healthcare employees can return to work if experiencing COVID-19 symptoms continue to arise.  Coupled with ongoing staffing shortages in the industry, the need for employees to return to work when safe to do so is a pressing concern for many healthcare employers.

To help, the U.S. Centers for Disease Control and Prevention (CDC) issued updated guidance on strategies for evaluating and managing post-vaccination signs and symptoms, which may be challenging to distinguish from the signs and symptoms of COVID-19 or other infectious diseases.  Vaccinated or not, healthcare employees must continue to abide by current infection control measures, but this updated guidance provides clarity on returning vaccinated employees to work even when they may be experiencing both COVID-19 vaccination-related and COVID-19 symptoms.

The CDC’s updated guidance recommends the following return to work strategies for healthcare personnel who experience post-vaccination systemic signs and symptoms:

  • If vaccinated within the last three days, a vaccinated employee experiencing symptoms following the vaccination common to the vaccination and COVID-19 (g., fever, fatigue, headache, chills, muscle and joint pain) who are not known to have unprotected exposure in the previous 14 days, may return to work without testing if they feel well enough to do so. More on fevers below.  If symptoms are not improving or persist for more than two days, the vaccinated employee should be excluded from the workplace and viral testing for COVID-19 should be considered.
  • If the vaccinated employee develops symptoms only related to COVID-19 and not vaccination (g., cough, shortness of breath, rhinorrhea, sore throat and loss of taste or smell), the employee should be excluded from the workplace and the CDC’s general criteria on returning to work for healthcare personnel should be followed.
  • Vaccinated employees with fevers should ideally be excluded from the workplace pending further evaluation. In the case of current or anticipated critical staffing shortages, vaccinated employees with fever and systemic signs and symptoms limited only to those observed following vaccination could be considered for work if they feel well enough and are willing.  In such case, the vaccinated employees should be re-evaluated, and viral testing for COVID-19 should be considered, if the fever does not resolve within two days.
  • If a vaccinated healthcare personnel is symptomatic and had unprotected exposure to COVID-19 in the past 14 days, they should be excluded from the workplace, evaluated for COVID-19 and CDC guidance should be followed.

Under recent CDC guidance, vaccinated healthcare personnel with an exposure to someone with suspected or confirmed COVID-19 may return to work if they meet all of the following criteria:

  • Are fully vaccinated (i.e., more than two weeks following receipt of the second dose in a 2-dose series, or more than two weeks following receipt of one dose of a single-dose vaccine).
  • Are within 3 months following receipt of the last dose in the series.
  • Have remained asymptomatic since the current COVID-19 exposure.

The CDC reminds healthcare employers to:

  • Educate employees about the potential for short-term systemic signs and symptoms post-vaccination to assist in identifying symptoms that may be vaccination related versus those that are not.
  • Create mechanisms for timely assessments of vaccinated employees to distinguish between circumstances warranting exclusion from work from situations where providers can safely return.
  • Consider nonpunitive sick leave options to encourage reporting of symptoms.

This guidance may evolve as we continue to learn more about the effects of vaccination, but is a helpful tool for healthcare employers looking to ensure adequate staffing coverage while confirming an employee’s return to work is done in a safe manner.  Jackson Lewis continues to monitor the unique issues affecting healthcare employers in a post-vaccinated world.  Please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team to learn more.

*This post was updated 2/12/2021 to include CDC guidance issued 2/10/2021, after the initial post publication.

California currently has a patchwork of local COVID-19 supplemental paid sick leave ordinances which remain in effect in 2021. But what about employers that are not located in those localities with a supplemental paid sick leave ordinance? Or employees who have exhausted supplement paid sick leave allotments?

Before the pandemic, California had the Healthy Workplace Healthy Family Act of 2014 (the Act), which mandated most employers in the state provide paid sick leave to employees.  Under the Act, employers must provide for the accrual of one hour for every 30 hours worked by the employee and allow the use of at least 24 hours or provide a lump sum of 24 hours of paid sick leave at the beginning of a 12-month period.

Under the Act, an employee can take paid leave for the employee’s own or a family member’s diagnosis, care, treatment of an existing health condition or preventive care, or for specified purposes for an employee who is a victim of domestic violence, sexual assault or stalking.

When the pandemic began, unique circumstances such as the need for employees to quarantine arose, and it was not clear if employers could permit employees to use paid sick leave for those circumstances.

The California Labor Commissioner’s Office, which enforces the Act and other labor laws, released an FAQ regarding COVID-19 shortly after California’s first shelter in place orders in March 2020. As California nears the year anniversary of the shelter in place orders, the FAQ is still relevant and important to review.

Employees may use paid sick leave under the Act for the following COVID-19 related reasons:

  • Illness due to COVID-19
  • Seeking diagnosis of COVID-19
  • Self-quarantining due to potential exposure
  • Caring for a family member who has COVID-19

Jackson Lewis continues to monitor local, state, and federal legislation pertaining to COVID-19. If you have questions about paid sick leave or other employment concerns related to COVID-19, contact a Jackson Lewis attorney to discuss.

A key tech initiative as COVID-19 vaccinations begin rolling out are digital health passports. One example is being developed by a group of large tech companies along with the Mayo Clinic as part of the Vaccination Credential Initiative. The Initiative’s digital vaccination record will likely be a smartphone app. The Initiative is leveraging the CommonPass app, which is already being used by airlines to allow passengers to show a negative COVID-19 test result, which is a requirement to board certain flights.

A goal of digital health passports is to establish universal standards to verify whether a person has had a vaccination. Such digital health passports will become important as governments and major airlines require proof of either negative COVID testing, or eventually of vaccinations.  For example, effective January 26, 2021, all air passengers arriving to the U.S. from a foreign country must provide proof of a negative test result or documentation that they have recovered from COVID-19 prior to boarding the flight.

A key aspect in the development of digital health passports is ensuring data security. The system is designed as a digital wallet, allowing individuals to have control over who they share their information with. However, the data still moves between multiple systems and users must maintain proper data safeguards on their device to ensure the data is protected.

See our blog post about other COVID related technologies and associated legal issues here. Reach out to any member of the Privacy, Data, and Cybersecurity Group, or your Jackson Lewis contact, if you have any questions or need help in this area.

On January 29, 2021, the Occupational Safety and Health Administration (OSHA) published “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” The Guidance incorporates much of the existing guidance from the Centers for Disease Control and Prevention (CDC), adds to guidance OSHA previously issued, and reflects strategies and practices familiar to many employers. Read more

Making good on President Biden’s position that everyone should wear a mask when using public transportation, the CDC issued an Order  effective February 2nd requiring all travelers using public transportation to wear masks while boarding, traveling and disembarking.  The Order requires all travelers, crew, and people who work at the transportation hub (airport, train station, port, bus depot, etc.) to wear a mask when travelling and when at the hub. The Order allows operators of public transportation and public transportation hubs to adopt additional practices that are more protective of public health and more restrictive than the CDC Order.

In the Federal Register Notice announcing the Order and the Order itself, the CDC describes in detail what types of properly worn masks satisfy this Order and what types of masks do not. For example, masks should not have exhalation valves and if a face shield is worn, it must be worn on top of a mask that is otherwise acceptable under the Order.

The Order does not apply to your personal vehicle if you are using it for personal, non-commercial use, but it does apply to rideshare arrangements for a fee or service. The Order also does not apply to commercial motor vehicles or trucks as defined by DOT regulation at 49 CFR 390.5 if the driver is the only person in the vehicle, and it does not apply to vehicles operated or chartered by the US military.

The Order provides an exemption for individuals under 2 years of age, individuals who cannot wear a mask due to workplace safety, and individuals with disabilities who cannot wear masks. The Order says CDC will be issuing further guidance regarding the exception for disabled individuals.

You do not have to wear a mask for brief periods when you are: eating; drinking; taking medication; using an oxygen mask due to loss of cabin pressure or ventilation issue; when unconscious, incapacitated or when you can’t remove the mask without assistance; when you need to remove to the mask to communicate with someone who is hearing impaired and they need to see your mouth to communicate (for example, masks with clear plastic panels may be used to facilitate communication with people who are hearing impaired or others who need to see a speaker’s mouth to understand speech); or when you need to pull your mask down to prove your identity. And yes, you have to wear your mask while you are sleeping on public transportation.