As California employers brace for a host of new laws that will affect operations in the workplace, the City of San Diego recently passed two new COVID-19 ordinances. The City Council passed a right of recall ordinance and a supplemental paid sick leave ordinance before Governor Newsom signed Assembly Bill 1837, which covers similar supplemental paid sick leave requirements.

The supplemental paid sick leave, like other similar local ordinances, is intended to ensure that an employee working for companies that employ 500 or more employees will receive similar benefits as those offered under the federal Families First Coronavirus Response Act (“FFCRA”).  These benefits include 80 hours of paid sick leave to any employee who is infected by COVID-19 or who has an infected family member.

Covered Employers

The new supplemental paid sick leave ordinance covers all employers that are not considered a “covered employer” under the FFCRA, including those with over 500 employees.

The following employers are exempted from the supplemental paid sick leave:

  1. Employers of emergency responders or a healthcare provider.
  2. Employers that provide global delivery services.
  3. Employers that were closed or not operating for a period of 14 or more consecutive calendar days due to a City of San Diego official’s emergency order because of COVID-19.
  4. Employers that have a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually.
  5. Government Agency employers whose employees are working within the scope of their public service employment.

Covered Employees

Under the ordinance, “covered employees” are any employee as defined under the Labor Code who performed work for an employer within the geographical boundaries of the City of San Diego on or after June 1, 2020. An employee is entitled to leave if they have been employed by the same employer for the 3 months immediately preceding June 1, 2020.

Amount of Leave

Employees normally scheduled to work at least 40 hours or classified as full-time by the employer on June 1, 2020, will be entitled to 80 hours of supplemental paid sick leave. Employees working less than 40 hours or classified as part-time on June 1, 2020, will receive supplemental sick leave equal to the average number of hours worked over a two-week period. Like the FFCRA the amount of leave paid to an employee shall not exceed $511 per day and a $5,110 in aggregate.

A covered employer’s obligation to provide 80 hours of leave under the ordinance is reduced for every hour an employer allowed an employee to take paid leave in an amount equal or greater than the requirements of the ordinance, not including previously accrued hours, on or after June 1, 2020, for any reason covered by the ordinance.

Reasons for Leave

Employees may take leave for the following reasons:

  1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a healthcare provider to self-quarantine due to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. The employee is at least 65 years old and has a health condition such as heart disease which puts the employee at heightened risk of serious illness or death if exposed to COVID-19;
  5. The employee needs to provide care for a family member or household member who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19;
  6. the employee needs to provide care for a family member or household member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine due to COVID-19 concerns;
  7. the employee needs to provide care for a family member or household member whose senior care provider, or whose school or child care provider for a child under the age of 18, has been closed or is otherwise unavailable in response to a public health order or other public official’s recommendation related to COVID-19

An employer may not require a doctor’s note or other documentation for the use of the leave.

Notice Requirement

The City of San Diego will publish a notice suitable for every employer to inform employees of their rights. Every covered employer must within three days of the City publishing the notice must provide the notice to employees in a manner calculated to reach all employees, including posting or via electronic communication.

Jackson Lewis will continue to monitor emergency regulations pertaining to COVID-19. Jackson Lewis’ Coronavirus Task Force is actively monitoring the developing situation surrounding the complexities of COVID-19.

Facial-recognition tech creates service, security options | Hotel ManagementThe City of Portland, Oregon becomes the first city in the United States to ban the use of facial recognition technologies in the private sector citing, among other things, a lack of standards for the technology and wide ranges in accuracy and error rates that differ by race and gender. Failure to comply can be painful. Similar to the remedy available under the Illinois Biometric Information Privacy Act, fueling hundreds of class action lawsuits, the Ordinance provides persons injured by a material violation a cause of action for damages or $1,000 per day for each day of violation, whichever is greater. The Ordinance is effective January 1, 2021.

Facial recognition technology has become more popular in recent years, including during the COVID-19 pandemic. As the need arose to screen persons entering a facility for symptoms of the virus, including temperature, thermal cameras, kiosks, and other devices with embedded with facial recognition capabilities were put into use. However, many have objected to the use of this technology in its current form, citing problems with the accuracy of the technology, as summarized in a June 9, 2020 New York Times article, “A Case for Banning Facial Recognition.”

Under the Ordinance, a “private entity” shall not use “face recognition technologies” in “places of public accommodation” in the boundaries of the City of Portland. Facial recognition technologies under the Ordinance means

an automated or semi-automated process that assists in identifying, verifying, detecting, or characterizing facial features of an individual or capturing information about an individual based on an individual’s face

Places of public accommodation include any place or service offering to the public accommodations, advantages, facilities, or privileges whether in the nature of goods, services, lodgings, amusements, transportation or otherwise. This covers just about any private business and organization. Note, Portland also passed a separate ordinance prohibiting the use of facial recognition technology by the city government.

There are some exceptions, however. Places of public accommodation do not include “an institution, bona fide club, private residence, or place of accommodation that is in its nature distinctly private.” It is not clear from the Ordinance what it means to be “distinctly private.” Also, the Ordinance does not apply:

  • When facial recognition technologies are necessary to comply with federal state or local law,
  • For user verification purposes by an individual to access the individual’s own personal or employer issued communication and electronic devices, or
  • To automatic face detection services in social media applications.

So, in Portland, employees can still let their faces get them into their phones, including their company-provided devices. But, businesses in Portland should evaluate whether they are using facial recognition technologies, whether they fall into one of the exceptions in the ordinance, and if not what alternatives they have for verification, security, and other purposes for which the technology was implemented.

On August 27, 2020, Michigan Governor Gretchen Whitmer issued Executive Order 2020-172. The Executive Order affirms that employers are prohibited from discharging, disciplining, or retaliating against employees who stay home when they or their close contacts are sick. 

However, the Executive Order redefines the “principal symptoms of COVID-19” as follows:

The principal symptoms of COVID-19 are (i) any one of the following not explained by a known medical or physical condition: fever, an uncontrolled cough, shortness of breath; or (ii) at least two of the following not explained by a known medical or physical condition: loss of taste or smell, muscle aches (“myalgia”), sore throat, severe headache, diarrhea, vomiting, abdominal pain.

This stricter standard of “not explained by a known medical or physical condition” makes clear that employees may be subject to disciplinary action if they remain home when COVID-like symptoms could be explained by a known medical or physical condition other than COVID-19 (e.g., allergies or a cold).  A prior Executive Order defined the principal symptoms as “fever, sore throat, a new uncontrollable cough that causes difficulty breathing, diarrhea, vomiting, abdominal pain, new onset of a severe headache, and new loss of taste or smell.”

Although the Executive Order gives employers a bit more room to address attendance issues in the pandemic environment, employers must keep in mind that applicable law still protects employees against discrimination and retaliation due to a disability, which could include conditions with similar symptoms that are not COVID related.

Executive 2020-172 is effective immediately.

Since March of this year, the Equal Employment Opportunity Commission (EEOC) has released guidance on a near-monthly basis addressing various FAQs concerning COVID-19 issues. The guidance has focused on disability-related inquiries, confidentiality, hiring, and reasonable accommodations under the Americans with Disabilities Act (ADA), as well as issues under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (ADEA). In its latest FAQ update posted yesterday, the EEOC covers some more practical questions employers have on several COVID-19 issues, such as testing, telecommuting, and sharing employee medical information.

COVID-19 Testing

As COVID-19 testing capabilities and resources have expanded, many employers across the country have been working on establishing testing protocols. Some still have concerns, however, about whether they are permitted to test, particularly considering the general ADA requirement that any mandatory medical test of employees be “job related and consistent with business necessity.”

The EEOC has already confirmed that employers may opt to administer COVID-19 testing to employees before initially permitting them to enter the workplace.  In the updated FAQs, the EEOC further clarified that periodic testing to determine if the employees  presence in the workplace is permissible to determine if the employee poses a direct threat to others. In its updated FAQs, the EEOC also sought to address updates to CDC guidance. Specifically, the EEOC made clear that employers administering COVID-19 viral testing consistent with current CDC guidance will meet the ADA’s “business necessity” standard, and that following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. The EEOC acknowledged that the CDC and FDA may revise their recommendations based on new information, and reminded employers to stay up to date.

More on What Employers Can Ask Employees, and If Employees Refuse to Answer

For several months, employers have been building COVID-19 screening programs – taking employee temperatures and asking questions about COVID-19 symptoms and travel, among other things – before permitting employees to enter the employer’s facilities. Some employers have continued to wonder whether they are permitted under the ADA to ask employees whether they have had a COVID-19 test. The EEOC confirmed in the updated FAQs that employers may ask if employees have been tested for COVID-19. Presumably, this also means that employers may ask if the employee’s test was positive or negative, but this is not clear in the updated EEOC FAQs.

Because the permissibility of certain COVID-related requests are based on the existence of a direct threat, asking employees about COVID-19 testing does not extend to employees who are teleworking and not physically interacting with coworkers or others (for example, customers). Asking employees about COVID-19 testing also does not extend to whether the employee’s family members have COVID-19 or symptoms associated with COVID-19. This is because the Genetic Information Nondiscrimination Act (GINA) generally prohibits employers from asking employees medical questions about family members. But, the EEOC clarified employers may ask employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease.

The EEOC also further addressed whether employers may focus screening efforts on a single employee – e.g., asking only one employee COVID-19 screening questions. In this case, the employer must have a reasonable belief based on objective evidence that this person might have the disease, such as a display of COVID-19 symptoms. However, employees working regularly or occasionally onsite and who report feeling ill or who call in sick may be asked questions about their symptoms as part of workplace screening for COVID-19, according to the EEOC.

During the summer, several states began to implement mandatory and recommended quarantines for persons arriving in their states from other states with high levels of community spread. The EEOC confirmed that employers do not have to wait until employees experienced COVID-19 symptoms before they may ask employees where they traveled as such questions would not be disability-related inquiries.

As several employers have learned, not all employees cooperate with employer-administered screening programs. When they object, employers should consider their options carefully and whether an accommodation may be necessary. The EEOC acknowledges that the ADA allows employers to bar employees from physical presence in the workplace if they refuse to have their temperature taken or refuse to confirm whether they have COVID-19, symptoms associated with COVID-19, or have been tested for COVID-19. Some employers desire to make compliance with screening programs a condition of employment, subjecting employees to termination from employment if they fail to comply. The EEOC did not discuss that option, however, the agency reminded employers they can gain cooperation by asking employees the reasons for their refusal. They also can offer information and/or reassurance that they are taking steps to ensure workplace safety, that the steps are consistent with health screening recommendations from CDC, and that the employer is careful about maintaining confidentiality.

Managers Sharing Information About Employees with COVID

It is not uncommon for managers to learn about the medical condition of employees they supervise. Because the ADA requires all employee medical information to be maintained confidentially, managers who discover an employee has COVID-19 may be unsure about what they may and/or should do with that information. The EEOC FAQS make clear that managers may report this information to appropriate persons in the organization in order to then comply with public health authority guidance, such as contact tracing. Employers should consider directing managers on where to report this information in order to minimize who receives it, and what to report. However, the EEOC clarified that it would not violate the ADA if a worker reported to her manager the COVID-19 status of a coworker in the same workplace.

Recognizing that coworkers in small workplaces might be able to identify which worker(s) triggered contact tracing efforts, the EEOC reminds employers they still may not confirm or reveal the employee’s identity. For employees that have a need to know this information about other employees, they should be specifically instructed to maintain the confidentiality.

Telework

Many employees continue to telework, particularly in occupations where it is feasible to do so. Being away from the office, however, does not eliminate these COVID-19 issues. For example, managers still have to maintain the confidentiality of employee medical information when they are working from home. This includes, where necessary, taking steps to limit access to the information until the manager can return to the office to store the information according to normal protocols. It also includes not disclosing the reason an employee may be teleworking or on leave if the reason is COVID-19.

 

While many questions remain, these updated FAQs provide some helpful guidance for employers. Of course, certain situations can present additional issues for employers to consider. And, state and local law also may modify the employer’s analysis for those jurisdictions. Employers need to keep up to date and should consult experienced counsel when navigating these issues.

Virginia recently enacted its Emergency Temporary Standard for COVID-19. The standard’s requirement that employers train workers came and went on August 26, 2020. Virginia Occupational Safety and Health expects employers to complete their Infectious Disease Preparedness and Response Plans no later than September 25, 2020.

To view the complete article, please click here.

Foreign students wishing to study in this country may have whiplash over the Trump Administration’s many moves.

Early in 2020, a federal court blocked the Department of Homeland Security (DHS) from changing the rules regarding duration of status admission to the United States. Under the Trump Administration’s proposed policy, students might unknowingly accumulate unlawful presence and become subject to the three- and ten-year bars to admission. The Court found the policy violated not only the Administrative Procedures Act (APA), but also the Immigration and Nationality Act (INA). Colleges hoped the Administration would not appeal the decision and put foreign students back into limbo. But the Administration did appeal. Then, at the end July, the Administration unexpectedly withdrew its appeal. That may just mean, however, that the Administration is planning to try a different route to achieve its goals.

Proposed rules changing unlawful presence calculations, changing the duration of status designation, establishing a fixed time period for admission, and reforming practical training options have been on the DHS’s regulatory agenda for some time. When the Spring 2020 Regulatory Agenda appeared (late) on June 30, 2020, those proposed rules were all there again – scheduled for publication by the end of 2020. While the schedules set out in regulatory agendas are frequently aspirational, with the presidential election looming, the Administration may want to fast track some of these agenda items.

During the COVID-19 pandemic, the Administration has taken 740 administrative actions thus far. Some actions it would like to make permanent. In the proclamations the President issued in April and June 2020 that block the entry of immigrants and non-immigrants in H, L, and J status, the Secretaries of State, Homeland Security, and Labor were ordered to issue regulations to ensure foreign nationals would not disadvantage U.S. workers. Regulations regarding student status and student work authorization could fall into that category, along with regulations tightening H-1B requirements and removing H-4 EADs.

Jackson Lewis attorneys will continue to follow these developments and provide updates as they become available.

Some 50,000 foreign nationals with approved Lawful Permanent Residency (Green Card) applications have been waiting for months to receive their cards, which provide proof of lawful permanent resident status. Without these cards, the foreign nationals will have difficulty travelling internationally and proving employment authorization. Causing further stress to these individuals is the requirement under the Immigration and Nationality Act (INA) that permanent residents should always carry their Green Cards.

How did this happen? USCIS cancelled its printing contract with an outside vendor, creating a delay in printing not only Green Cards, but also 75,000 Employment Authorization Documents. Once the printing was brought in-house with USCIS, it did not keep up with demand. The ongoing threat of USCIS employee furloughs and budgetary constraints has only exacerbated the issues. Like a Greek tragedy where everything goes wrong that can go wrong, the onset of the COVID-19 pandemic closed USCIS Field Offices, which made it impossible for individuals with approved cases to get temporary I-551 stamps proving permanent residence, foreclosing another way for them to prove their status.

Concerns over the printing problems have been raised and even litigated with respect to EAD cards. In Subramanya v. USCIS, a Consent Order was issued that set a specific schedule for EAD card production and adopted an interim rule that allows individuals with certain approved EAD applications to use their I-797 Notices of Approval as List C documents in the Form I-9 employment verification process. But that Order does not apply to and does not help those with approved Green Card applications.

Individuals with approved Form I-485 Adjustment of Status applications, but whose Green Cards have not been printed, can consider taking the following steps:

  • Call the USCIS Contact Center at 1-800-375-5283 and request an appointment at a USCIS Field Office to obtain a temporary Form I-551 stamp (sometimes called an Alien Documentation, Identification and Telecommunications, or ADIT, stamp) as evidence of lawful permanent residence for purposes of employment or travel. Callers should eventually be connected to a “live” representative.
  • The USCIS Ombudsman is sending weekly spreadsheets to USCIS confirming applicants whose cards are awaiting production. Requests for case assistance can be submitted to the Ombudsman at https://www.dhs.gov/topic/cis-ombudsman/forms/7001.
  • If the Green Card is needed for employment authorization and USCIS will not schedule an appointment for a temporary Form I-551 stamp, try the Department of Justice Immigrant and Employee Rights (IER) Section hotline at 1-800-255-7688 (for employees) or 1-800-255-8155 (for employers) for assistance. In some circumstances, the IER can intervene with USCIS to seek additional guidance.

Those waiting for a Green Card renewal or replacement (not an initial Green Card) and have filed a Form I-90 Application to Replace Permanent Resident Card can use the receipt as a List A document for Form I-9 employment verification purposes (for up to 90 days). The receipt also may be an option for international travel, but first ask your immigration lawyer if travel is advisable.

If you have questions about your pending Green Card application, Jackson Lewis attorneys are available to assist you and to strategize about the best avenues to pursue.

In April and June, numerous Presidential Proclamations suspended entry of thousands of legal immigrants and nonimmigrants least until December 31, 2020, using the COVID-19 pandemic as the reason. This is despite the fact that legal immigration has been proven to bring economic growth.

One proclamation affects family-based, diversity visa, and employment based “Green Card” applicants. Another affects those applying for H-1B, L-1, and J-1 visas.

The web of COVID-19 travel restrictions and exemptions has led to a lawsuit seeking to block any further implementation of the proclamations. The plaintiffs and amici in Domingo Arreguin Gomez et al. v. Donald Trump et al. include diversity visa applicants, family-based immigration applicants, advocacy groups, employers, and 21 states. Judge Amit P. Mehta held a hearing on August 27, 2020, on a motion for injunctive relief.

In support of their motion, the plaintiffs contended the Trump Administration is exploiting the COVID-19 crisis to prevent immigration of the sort the President has long opposed. They argued the record does not support the Administration’s contention that allowing immigrants into the U.S. will exacerbate unemployment. They stated that the only evidence on this issue indeed proves the opposite – immigrants are important to the economic recovery. The plaintiffs distinguished U.S. Supreme Court precedent from the Travel Ban case (Trump v. Hawaii), which held that the President has great deal of power in terms of preventing the entry of foreign nationals based upon national security concerns, as long as the policy is not based solely on guesswork. The Gomez plaintiffs argued, however, that this case is very different because there is a clear lack of reasoned decision-making, in violation of the Administrative Procedures Act (APA). Another difference is that the proclamations are adding new visa eligibility requirements – something only Congress can do.

At the hearing, there was sharp argument about how much work is being done by the Consulates and how much more they could be doing at this time. While all of the plaintiffs are being subjected to various levels of hardship due to the proclamations, diversity visa applicants are in a particular bind. If their cases are not adjudicated by the end of the fiscal year (September 30, 2020), they will lose their chance to apply for permanent residence.

Judge Mehta said he will issue his decision as soon as possible.

If an injunction is issued in this case, employers with employees in H-1B, L-1, and J-1 status may be able to move forward with their currently stymied employment and business plans. Jackson Lewis attorneys will provide updates in this important case as soon as they become available.

As safe in-person voting became an issue in other states, California Governor Gavin Newsom issued an executive order requiring each county’s election officials to send vote-by-mail ballots to registered voters for the November election. The Governor also issued an executive order requiring counties to provide early polling locations for at least three days prior to election day. In light of these initiatives to ensure wide availability of voting options in California, employers may question if they still are required to provide time during the workday for their employees to vote?

Read the full article on the Jackson Lewis Disability, Leave & Health Management Blog.

On August 28th, Governor Newsom announced new reopening plans for California in hopes of preventing another COVID-19 surge. The plan incorporates information learned over the past six months in addition to new scientific discoveries to create a system for reducing the transmission of COVID-19. It involves a four-tiered color system that ranks counties based on the number of virus cases and infection rates. Purple means that COVID-19 is widespread in the county, Red means substantial infections, Orange means moderate infections, and Yellow means minimal infections. The color provided will indicate how sectors can operate. Governor Newsom said the new system is “simple, stringent, and slow.” Business owners can check the status of their county or industry on the State’s new website: https://covid19.ca.gov/safer-economy/

In conjunction with the announcement, the California Department of Public Health (“CDPH”) issued a new statewide order explaining the basis for the four-tiered system. The order explains that counties may reopen specified sectors according to their tier. However, a county that moves to a tier permitting further reopening “must pause for 21 days,” or a different period identified by the CDPH before reopening additional industries. Conversely, counties must also close sectors based upon their tier. Counties will also be permitted to implement or maintain more restrictive measures if the Local Health Officer determines it is warranted.

Jackson Lewis will continue to monitor developments about state and local guidance for businesses pertaining to COVID-19. If you have questions about complying with state and local health orders pertaining to your business, contact a Jackson Lewis attorney to discuss.