The City of San Jose recently passed an ordinance extending its supplemental paid sick leave ordinance until June 30, 2021 and expanding it to apply to all employers with employees working in San Jose.

Extension

When it was first passed, San Jose’s supplemental paid sick leave ordinance was set to expire on December 31, 2020. In late 2020, the City committed to extending the ordinance into 2021 but waited to see if the Emergency Paid Sick Leave (EPSL) provided under the Families First Coronavirus Response Act (FFCRA) would be extended before taking action. When the federal government did not extend the FFCRA, the City of San Jose passed a revised ordinance that extends the City’s supplemental sick leave until June 30, 2021. The ordinance is retroactive to January 1, 2021.

Expansion

San Jose’s original ordinance was designed to provide sick leave to employees who did not receive EPSL under the FFCRA; thus it only applied to employers with 500 or more employees. Because the FFRCA was not extended into 2021, the City of San Jose decided to expand its ordinance to apply to all employers with employees in the City of San Jose, regardless of the size of the employer. That means that San Jose’s supplemental paid sick leave is now available to all employees working in the city.

Reasons for Leave

The revised ordinance does not change the reasons for which sick leave may be taken. An employee may take leave when unable to work because the employee:

  • Is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or is caring for someone who is;
  • Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19 or is caring for someone who is;
  • Is experiencing symptoms of COVID-19 and seeking a medical diagnosis; or
  • Is caring for their child if the child’s school or place of care is closed or unavailable due to COVID-19 precautions.

No Additional Time

Like the original ordinance, the revised ordinance provides full-time employees with 80 hours of paid sick leave (part-time employees receive a pro-rata amount). However, the ordinance states that 80 hours is the total amount available to employees for the period of April 2, 2020, to June 30, 2021.

Other local ordinances such as the City and County of Sacramento have also been extended. But like the federal government, the state of California has thus far not extended statewide supplemental paid sick leave.

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

At the end of 2020, California approved the Division of Occupational Safety & Health’s (“Cal OSHA”) COVID-19 Emergency Temporary Standard (“ETS”).

Among the many requirements in the new ETS, Cal OSHA imposed a performance-based obligation on employers to establish and implement an effective COVID-19 Prevention Program, COVID-19 preventive measures (e.g., social distancing and mandatory use of face coverings), and COVID-19 case management (e.g., investigation, recording, and reporting). In establishing these requirements, the ETS also published prescriptive written COVID-19 Prevention Program components and procedures for handling COVID-19 cases, as well as steps to regulate multiple infections and presumed outbreaks at the workplace that are already subject to substantial state and local health department requirements. Moreover, the ETS substantially departs from other health and safety regulations by compelling worker exclusion following a potential workplace exposure to COVID-19, mandating exclusion pay in limited circumstances,  and that employees be provided COVID-19 testing. The ETS further imposes potential liability on employers if they fail to comply with the various requirements.

The ETS has created confusion and frustration among California employers already facing a multitude of federal, state, and local COVID-19 requirements, which are in a constant state of flux. The ETS also attempts to impose requirements that are administered by other responsible agencies and authorities, making employers’ obligations unclear and duplicative. For example, the ETS imposes an obligation on employers to notify state and local health departments of multiple COVID-19 cases despite this obligation already being imposed on employers under AB 685, guidance from the state health department, and standing health department orders.

Cal OSHA’s ETS also uses inconsistent language to discuss requirements (e.g., “offer” vs. “provide” in the context of required testing), imprecise language, and imposes obligations that do not make sense from either a technical or feasibility standpoint. For instance, the ETS defines a “COVID-19 test” as one that is (i) approved by the United States Food and Drug Administration (“FDA”) or has an Emergency Use Authorization from the FDA, and (ii) is administered in accordance with the FDA approval or Emergency Use Authorization. In doing so, Cal OSHA fails to take into account that COVID-19 tests can be approved for use under other regulatory pathways and that many COVID-19 tests on the market are not approved by FDA or under an Emergency Use Authorization. Restricting testing in this way also unnecessarily complicates an already complicated requirement and makes compliance more difficult, costly, and time-intensive.

Despite numerous concerns raised in public meetings and written responses to the ETS, Cal OSHA also has not provided sufficient guidance on how to comply with the ETS, leaving many obligations on testing, worker exclusion, and COVID-19 case management unclear. Cal OSHA only just recently provided the public updated FAQs but still left numerous questions and ambiguities.

In response to the ETS’ ambiguities and overwhelming compliance burden, the Western Growers Association, the California Business Roundtable, the California Association of Winegrape Growers, the California Farm Bureau Federation, Ventura County Agricultural Association, and the Grower-Shipper Association of Central California joined together to file a lawsuit against Cal OSHA and related entities and individuals over the ETS before the Los Angeles Superior Court. The lawsuit contends that the Board violated employers’ due process rights and the state’s administrative procedure laws by failing to provide clear and adequate notice of the link between the ETS and the emergency situation necessitating the new rules. The lawsuit also claims that the ETS improperly imposes “unprecedented financial and operational costs on employers” in the state and without evidence that the new requirements will significantly or even materially improve workplace health and safety as it pertains to COVID-19. The required measures further lack clarity, such that employers are not understanding what is required of them, and do not take into account resources, feasibility, or costs. Further, the action alleges that many of the requirements in the ETS have little to no connection to workplace health and safety and instead deputize employers to monitor non-work-related COVID-19 exposure risks. The suit filed by the agricultural associations follows a lawsuit filed in San Francisco Superior Court by retail industry groups seeking declaratory and injunctive relief from the ETS.

To date, Cal OSHA and the other entities named in the suits have not publicly responded or acknowledged either complaint.

Jackson Lewis will continue to monitor issues pertaining to COVID-19 and the workplace in California. If you have questions about the ETS or related workplace safety issues, contact a Jackson Lewis attorney to discuss.

The Consolidated Appropriations Act, 2021 (Act) provides certain COVID-19-related relief, including temporary additional flexibility regarding flexible spending accounts (FSAs). Employers have several practical considerations when deciding whether to adopt one or more of the changes in their plans.

Under the FSA changes, employees need not lose the benefit of the dollars they set aside from their pay into healthcare and dependent care FSAs and may use the amounts contributed for up to 12 months after the end of the 2020 or 2021 plan years.  More

In the final days of 2020, the Office for Civil Rights (OCR) at the U.S. Health and Human Service (HHS) released a HIPAA Audits Industry Report (“the Report”), that could be quite helpful to covered entities and business associates for tackling HIPAA compliance as we enter the new year.  The Report examines OCR’s findings from HIPAA audits the agency conducted during 2016-2017 of 166 healthcare providers and 41 business associates. The audits were intended to examine mechanisms for compliance, identify promising practices for protecting the privacy and security for health information, and discover vulnerabilities that may be have been overlooked by OCR enforcement activity. It is the OCR’s hope that insights from the Report will enhance industry awareness of compliance obligations and assist the OCR in developing tools and guidance to assist industry compliance, self-evaluation, and prevent data breaches.

The Report looked at seven components of HIPAA compliance by covered entities:

Privacy Rule:

      • notice of privacy practices/content requirements
      • provision of notice – electronic notice (website posting)
      • right of access

Breach Notification Rule:

      • timeliness of notification
      • content of notification

Security Rule:

      • security management process – risk analysis
      • security management process – risk management

For business associates, the Report examined three components:

Breach Notification Rule –

      • notification by a business associate,

Security Rule –

      • security management process – risk analysis and
      • security management – risk management.

The Report applied a rating scale of 1-5 to covered entities, one being essentially full compliance and five being no evidence of a serious attempt to comply with the rules. Based on this scale and the results from the audits, the Report concludes covered entities generally demonstrated compliance in only two of the seven areas audited: 1) timeliness of breach notification and 2) prominent posting of the notice privacy practices on their websites. Here are some troubling data points from the Report:

  • With regard to satisfying the content requirements for HIPAA notices of privacy practices, only 2% of covered entities fully met the requirements, and two-thirds failed to or made minimal or negligible efforts to comply.
  • Almost all covered entities audited (89%) failed to show they were correctly implementing the individual right of access. Notably, right of access compliance is a specific enforcement initiative of the OCR, having announced 13 enforcement actions over the past two years. Compliance gaps included inadequate or incorrect policies and procedures for providing access, such as policies that incorrectly state that the entity could deny access to PHI or lack of policies for honoring requests for information to be provided to a designated third party.
  • Approximately 70% of covered entities used breach notification letters that failed to satisfy regulatory content requirements, such as a description of the electronic personal health information (ePHI) breached and steps individuals can take to protect themselves from additional harm.
  • As the OCR’s previous audit (from 2012) found, covered entities struggled to implement the Security Rule’s requirements for both risk analysis and risk management – the Report highlighted that only 14% of audited covered entities “substantially fulfilled” responsibilities regarding safeguarding of ePHI through risk analysis mechanisms, and only 6% of covered entities adequately fulfilled requirements to implement appropriate risk management mechanisms to reduce risks and vulnerabilities to a reasonable and appropriate level.

Business associates shared similar struggles with covered entities regarding implementation of security risk analysis and management requirements – only 17% of audited business associates “substantially fulfilled” requirements regarding safeguarding of ePHI through risk analysis, and only 12% of business associates fulfilled the requirement to implement appropriate risk management mechanisms. Moreover, while few audited business associates reported a breach of ePHI, those that did generally evidenced minimal or negligible efforts to address audited requirements.

On a positive note, the Report noted that a large majority of the covered entities and business associates shared their appreciation for the comments or findings, and already initiated steps to strengthen policies, procedures, and/or correct deficiencies.  The Report also provides helpful easy-to-use tools and resources to assist organizations with compliance. For example, the Report highlights the Model Notices of Privacy Practices available on the OCR’s website – covered entities may customize these models by entering their entity-specific information.

In the OCR’s announcement of the Report, OCR Director Roger Severino emphasized,

The audit results confirm the wisdom of OCR’s increased enforcement focus on hacking and OCR’s Right of Access initiative.  We will continue our HIPAA enforcement initiatives until health care entities get serious about identifying security risks to health information in their custody and fulfilling their duty to provide patients with timely and reasonable, cost-based access to their medical records.

Takeaway

The OCR was active in enforcing HIPAA regulations in 2020. In particular, there were thirteen settlements under the OCR’s Right to Access Initiative which enforces patients’ rights to timely access medical records at reasonable cost. In September of 2020 alone, the OCR announced settlements with five providers under that Initiative. OCR settlements have impacted a wide array of health industry related businesses including hospitals, health insurers, business associates, physician clinics, and mental health/substance abuse providers. Furthermore, 2020 saw more than $13.3 million recorded by OCR in total resolution agreements.

In addition, there was a significant amount of OCR issued guidance relating to HIPAA in 2020. In March OCR issued back-to-back guidance on COVID-19 related issues, first regarding getting protected health information (PHI) of COVID-19 exposed individuals to first responders, and next providing FAQs for telehealth providers. In July, the Director of the OCR issued advice to HIPAA subject entities in response to the influx of recent OCR enforcement actions – “When informed of potential HIPAA violations, providers owe it to their patients to quickly address problem areas to safeguard individuals’ health information.” In September, the OCR published best practices for creating an IT asset inventory list to assist healthcare providers and business associates in understanding where electronic protected health information (ePHI) is located within their organization and improve HIPAA Security Rule compliance, and shortly after issued updated guidance on HIPAA for mobile health technology. Finally, regulations have been issued to permit hospitals and health systems to donate cybersecurity technology to physician practices.

The Report combined with increased OCR enforcement activity and guidance, serves as a reminder of the seriousness in which OCR treats HIPAA compliance obligations, and healthcare organizations and their business associates need to address basic best practices as they enter 2021.

When the federal Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020, COVID-19-related leave was no longer assured for many employees throughout the United States unless another law, like the Family and Medical Leave Act or the Americans with Disabilities Act, applies. Jurisdictions that have COVID-19-related leave laws (such as the District of Columbia and certain California municipalities), however, will continue to grant time off to eligible employees.

D.C.’s COVID-19-leave laws took effect on March 11, 2020, and are set to expire on March 31, 2021. In 2020, employers subject to both the FFCRA and these D.C. laws generally fulfilled their D.C. COVID-19 leave obligations when they provided FFCRA leave to covered employees. Now, employers with workers in D.C. should ensure they provide D.C. COVID-19 leave to covered employees who need it. For further discussion of D.C.’s COVID-19 leave laws, please see our full article.

On January 4, 2021, DHS announced that for I-9 purposes, Deferred Action for Childhood Arrivals (DACA) recipients may present an unexpired Employment Authorization Document (EAD) with Code C33 issued on or after July 28, 2020, along with an I-797 Extension Notice that shows an additional one-year extension. This new procedure is in response to a court order.

After the U.S. Supreme Court ruled the Administration had not properly terminated DACA, Acting Director of Homeland Security, Chad Wolf, issued a memo explaining that the Administration would be reviewing DACA and that until the review was concluded, DACA would be restricted. No new initial applications would be accepted, renewals (including renewals of EADs) would be limited to one year, and advance parole would be issued only for urgent humanitarian purposes, the memo stated. Then, in November 2020, a federal judge, Nicolas G. Garaufis, ruled that Acting Director Wolf had not been properly appointed and his rollback of DACA, therefore, was invalid.

As part of the Judge’s ruling, USCIS was ordered to post notices informing the public of how the court’s order would be implemented. That notice can be found on the USCIS website along with instructions on how to apply for DACA. In compliance with the court order, USCIS notified the public it would do the following under the terms of the DACA policy in effect prior to its termination by President Donald Trump on September 5, 2017:

  • Accept first-time requests for deferred action;
  • Accept renewal requests for deferred action;
  • Accept applications for advance parole documents;
  • Extend one-year grants for deferred action to two years; and
  • Extend one-year employment authorization documents to two years.

USCIS also agreed to take appropriate steps to provide evidence of the one-year extensions of deferred action and employment authorization to those who were issued such documentation on or after July 28, 2020, with only a one-year validity period. As it turns out, that evidence will be in the form of an I-797 Extension Notice.

DHS plans to comply with the above while the Judge’s ruling remains in effect, “but DHS may seek relief from the order.” DHS has not yet appealed the order. Although President-elect Joe Biden has said he would protect DACA, another case threatening the program is pending in federal court in Texas.

Jackson Lewis attorneys will continue to provide updates as they become available.

President-Elect Joseph Biden has not named a nominee for Secretary of Labor yet, much less an Assistant Secretary of Labor for Occupational Safety and Health who would lead the Occupational Safety and Health Administration (OSHA). But individuals with a background in organized labor may be forerunners. He has promised to be “the most pro-union president you have ever seen” and that “unions are going to have increased power” in his administration.

To read the article in its entirety, click here.

U.S. Citizenship and Immigration Services (USCIS) has issued an alert on delays in processing receipt notices due to the surges in petition filings at lockbox facilities because of the COVID-19 pandemic and the agency’s “flexibility” in response.

Due to the COVID-19 pandemic, many foreign nationals continue to be stuck and unable to leave the United States at the conclusion of their approved stays – either because of their home country travel restrictions, flight restrictions, or the rising COVID-19 cases abroad.  USCIS has suggested that those who unexpectedly have to remain in the United States beyond their authorized stay apply for an extension or change of status on a Form I-539 application. Individuals who timely file (prior to their expiration date) will not accrue unlawful presence. For many, just preparing a filing could be delayed because of lockdowns, illness, and other circumstances related to remote work. USCIS has excused delays that are due to extraordinary circumstances beyond the applicant’s control, including some caused by COVID-19. USCIS may use its discretion to excuse a delay on a case-by-case basis if the request is accompanied by credible evidence that the delay was beyond the applicant’s control and that it was commensurate with the circumstances.

Given the continuation of the pandemic and USCIS’ “flexibility,” it is not surprising that requests for extensions of stay have been soaring during the pandemic. In May 2020 alone, USCIS received 67,000 Form I-539 requests – four times the usual monthly average, with the B-2 Visitor category leading the way. There was a 500% increase in May 2020 compared to May 2019. May 2020 also saw a 100% increase in change of status requests from the previous year – from 4,000 to 8,000. Similarly, online filings increased as individuals struggled to avoid paper filings that would require services that might not be readily available – paper supplies, printing, and mailing.

In the meantime, the increase in filings may have exacerbated the “crisis level” delays and backlogs at USCIS. Between 2014 and 2019, overall case processing time rose by almost 100%. Currently, extension of stay and change of status requests can take from 4 months to 22 months to process. USCIS has been given the authority to institute premium processing for Form I-539 applications (as well as other petitions and applications), but that has yet to be implemented.

The way out of this situation, immigration advocacy groups have suggested, is more Congressional oversight and termination of new policies that are creating delays.

If you have any questions or need assistance regarding new rule changes or USCIS flexibility, please reach out to your Jackson Lewis attorney.

In mid-November, as cases continued to rise, the California Department of Public Health issued a “travel advisory” which recommended quarantining for those who returned to the state from other states or countries. The advisory distinguished between “non-essential travel” such as tourism and “essential travel” such as for work, study, economic services, immediate medical care, or health and safety.

Before the state advisory, the County of Santa Clara issued an order which required all person traveling into Santa Clara County from a point of origin 150 miles from the County border to quarantine for 10 days after arrival. The County had exemptions from the quarantine requirements for licensed healthcare professionals, persons traveling to perform essential governmental functions, or those working for essential critical infrastructure work.

San Francisco also issued a travel quarantine order, which requires anyone who in the 10 days before arriving in San Francisco spent any time outside of the 10 Bay Area counties (San Francisco, San Mateo, Santa Clara, Alameda, Contra Costa, Solano, Sonoma, Napa, Marin, and Santa Cruz) to quarantine for 10 days, including residents. Similar to Santa Clara, San Francisco exempts healthcare professionals, employees of essential infrastructure who are traveling for work, or employees of an essential business who must return to work due to a lack of staffing.

Most recently, the County of Los Angeles issued a travel quarantine order, which requires that those traveling outside the Southern California Region (Imperial, Inyo, Los Angeles, Mono, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, and Ventura) quarantine for 10 days after arrival. Like San Francisco and Santa Clara, certain types of employees such as licensed healthcare professionals and those commuting for work for essential infrastructure may be exempt from the order. Also exempted from the Los Angeles County order are professional or collegiate sports teams and team staff; personnel of a film or media production traveling for work.

Employers should be aware of the quarantine and travel quarantine orders applicable to their employees and consider whether there is a supplemental paid sick leave requirement for an employee who needs to quarantine.

Jackson Lewis will continue to monitor state and local orders pertaining to COVID-19. If you have questions about these or other health orders, contact a Jackson Lewis attorney to discuss.

Major League Soccer (MLS) has informed the MLS Players Association that it intends to exercise the force majeure clause that was recently added to the parties’ collective bargaining agreement (CBA) to negotiate additional contract modifications in good faith for 30 days. If a new agreement is not reached during the 30 day period, the league will be permitted to consider terminating the current agreement and initiating a lockout of its players.

Following the league’s notification to the MLS Players Association, the union responded by strongly criticizing the league’s decision to exercise the force majeure clause. Echoing MLS Players Association Executive Director Bob Fosse’s statement from earlier this month that the league’s decision to exercise the force majeure clause “would be a mistake,” the union issued the following strongly word statement:

After a 2020 season of extreme sacrifice, immeasurable risk to personal health, and a remarkable league-wide effort to successfully return to play, this tone-deaf action by the league discredits the previous sacrifices made by players and the enormous challenges they overcame in 2020.

MLS and its players association had reached an agreement in principle on the terms of a new collective bargaining agreement on January 31, 2020. However, the five year agreement which was negotiated between the parties and scheduled to run through the 2025 season was never ratified as a result of the COVID-19 pandemic.

Lacking formal ratification, MLS was able to reach agreement on a renegotiated CBA with the MLS Players Association in June. The renegotiated agreement included substantial economic concessions from the union following a near three month COVID-19 delay to the start of the 2020 season. While the agreement that was originally negotiated between the parties included more liberal free agency rights for the league’s players and drastic increases in minimum salary levels for veteran players, the modified CBA delayed the effective date of those modifications.

According to Executive Director Fosse, the modified CBA provided player economic concessions in excess of $100 million, including a 5% reduction in player wages, in addition to a $5 million cap on performance and individual bonuses.

The alterations to the CBA also involved the introduction for the first time of a force majeure clause, which allowed MLS to opt out of the revised agreement in the event of a catastrophic event, such as the continuation of the pandemic or its reoccurrence.

While MLS reportedly attempted to negotiate a force majeure escape provision based upon specific attendance numbers in the event of a second wave of COVID-19, the players refused to agree to any type of attendance language in the clause. Rather, the final version, agreed upon by the parties, allowed the league to potentially opt out of  the contract with 30 days’ notice if an event made the CBA economically unfeasible.

According to published reports, the force majeure clause specifically authorizes MLS to terminate the CBA with 30 days’ notice “if an event or condition makes it impossible for the league to perform its obligations under the CBA, frustrates the underlying purpose of the CBA or makes the CBA economically impracticable.”

The league now seeks to utilize the force majeure clause to conduct further negotiations with its players union and to seek additional concessions to lower costs as the financial realities of the pandemic continue to impact the league. While projected financial losses for the 2021 season have not been released, MLS Commissioner Don Garber has reported that MLS lost nearly $1 billion in revenue in 2020.

While the parties begin plans to initiate another round of negotiations for the third time in less than a year, the ongoing economic impact of COVID-19 and the anticipated restrictions on attendance at sporting events, such as professional soccer, will continue to have a drastic financial impact on MLS and other professional sports leagues well into 2021.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the economic impact of COVID-19 throughout professional and collegiate sports. We will also closely follow the ongoing MLS collective bargaining issues arising from the league’s exercising of the force majeure clause in the CBA. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.