While many employers are concerned with complying with the recently passed statewide COVID-19 Supplemental Paid Sick Leave, employers should also be aware of the interactions between regular paid sick leave and COVID-19 related absences. As such, employers are well-served to stay current on the latest updates for San Francisco’s Paid Sick Leave Ordinance.

The San Francisco Office of Labor Standards Enforcement (OLSE) recently issued a temporary update to its guidance regarding San Francisco’s Paid Sick Leave ordinance and COVID-19. The following is a summary of the temporary changes made to that guidance.

Policies Requiring Doctor’s Notes

Under the temporarily amended guidance, policies or practices that require a doctor’s note or other documentation for the use of paid sick leave of more than five consecutive workdays (whether full or partial days) shall be deemed presumptively reasonable, provided an employee is using paid sick leave for a COVID-19 related reason and is not under a doctor’s care, the employer shall accept the employee’s attestation of the need for paid sick leave pursuant to current CDC guidelines and OLSE Rule 2.4, pertaining to potential abuse of sick leave. This change is temporary and only in effect for the duration of the COVID-19 public health emergency.

When the public health emergency ends, or upon a decision to revoke this temporary guidance, the guidance will revert back to the previous rule which stated that requiring a doctor’s note for the use of paid sick leave of three or fewer consecutive workdays shall be deemed unreasonable. The previous rule also stated that practices that required a doctor’s note for the use of paid sick leave of more than three workdays was deemed reasonable.

COVID-19 Related Reasons for Use of Paid Sick Leave

The temporary guidance sets forth several COVID-19 specific reasons for which an employee may use San Francisco Paid Sick Leave.  Those reasons are:

  • The employee takes time off work because public health officials or healthcare providers require or recommend an employee isolate or quarantine to prevent the spread of disease.
  • The employee takes time off work for a COVID-19 vaccination appointment or vaccination side effects.
  • The employee takes time off work because the employee’s business or a work location temporarily ceases operations in response to a public health or other public official’s recommendation.
  • The employee takes time off work because the employee needs to provide care for a family member to attend a COVID-19 vaccination appointment, who is experiencing vaccination side effects, or who is not sick but who public health officials or healthcare providers have required or recommended isolate or quarantine.
  • The employee takes time off work because the employee needs to provide care for a family member whose school, childcare provider, senior care provider, or work temporarily ceases operations in response to a public health or other public official’s recommendation.

Finally, the guidance makes it clear that workers who have been laid off by their employers are not eligible for paid sick leave. Employees also are not allowed to use sick leave to supplement a reduction in hours.  The guidance states that leave is only available to use for qualifying reasons when an employee is unable to work a portion of their scheduled hours.

If you have questions about compliance with San Francisco’s Paid Sick Leave requirement or have questions about related issues, contact a Jackson Lewis attorney to discuss.

As the COVID-19 pandemic continues to evolve daily, the Centers for Disease Control and Prevention (CDC) has updated its guidelines on what is required or recommended for travelers after their arrival in the United States. These new changes join the December 2021 requirements about travel to the United States.

Reiterating: Before Boarding

Non-U.S. individuals (those who are neither U.S. citizens, U.S. nationals, nor legal permanent residents) are required to show two things:

U.S. individuals, on the other hand, are only required to either show a negative COVID-19 test result taken no more than one day before travel or provide documentation of recovery from COVID-19 within the past 90 days. Because there is no vaccination requirement, U.S. individuals may also be required to provide contact information to airlines before boarding to facilitate contact tracing if it becomes necessary.

New: After Arrival

The new post-arrival recommendations and requirements also vary based upon citizenship status.

Non-U.S. individuals who were allowed to fly to the U.S. based on an exception without being fully vaccinated may be required to make certain attestations:

  • Agree to be tested within 3-5 days after arrival, unless they have documentation of recovery from COVID-19 within the past 90 days.
  • Agree to stay home or in a hotel room and self-quarantine for a full 7 days, even if they have a negative test, unless they have documentation of recovery from COVID-19 within the past 90 days.
  • If the COVID-19 test comes back positive or if COVID-19 symptoms develop, the non-U.S. individual should isolate.
  • Those who intend to remain in the United States for 60 days or longer must become fully vaccinated within 60 days of arrival or as soon as medically appropriate, absent a medical contraindication or if the individual is too young to be vaccinated.

Non-U.S. individuals who are fully vaccinated but not “up to date,” i.e., have not received a booster, should stay home and self-quarantine for full 5 days after travel.

  • CDC recommends testing within 3-5 days after travel, self-monitoring for symptoms, and isolating and testing if symptoms develop

U.S. individuals should do the following upon arrival:

If not vaccinated or not up to date with COVID-19 vaccines:

  • Stay home and self-quarantine for a full 5 days after travel

Even U.S. individuals who are vaccinated should:

  • Get tested within 3-5 days after travel
  • Self-monitor for symptoms and isolate if symptoms develop

There is a distinction between isolation and quarantining, but that distinction does not change the required behavior.

  • Isolation separates sick people with a contagious disease from people who are not sick.
  • Quarantine separates and restricts the movement of people who were exposed to a contagious disease to see if they become sick.

Jackson Lewis attorneys are available to help answer questions about these requirements.

The same week that California’s third round of COVID-19 Supplemental Paid Sick Leave went into effect, the Governor released the state’s strategy for the endemic phase of COVID-19.

Aligning with the new endemic strategy, on February 28, the California Department of Public Health (CDPH) issued revised guidance regarding masks. Effective March 1, 2022, vaccinated and unvaccinated individuals are not required to wear masks in public settings, though it is still strongly recommended.

To address the fact that Cal/OSHA’s Amended COVID-19 Emergency Temporary Standard (ETS) still required unvaccinated individuals in the workplace to wear a mask, the Governor issued an Executive Order, which suspends the general requirement that unvaccinated workers wear face coverings when indoors. In doing so, the Governor brings the ETS into alignment with the CDPH guidance. This allows employers to follow the CDPH guidance unless a more stringent local order applies. Nevertheless, employers should keep in mind that employees may still be required to wear face coverings under CDPH’s isolation and quarantine recommendations.

Universal masking is still required under the CDPH guidance in the following indoor settings:

  • Indoors in K-12 schools and childcare facilities (this will be lifted effective March 11, 2022)
  • On public transit
  • Emergency shelters and cooling and heating centers
  • Health care settings
  • State and local correction facilities and detention centers
  • Homeless shelters
  • Long term care settings and adult senior care facilities

Employers should continue to monitor local health departments, the California Department of Public Health, and Cal/OSHA for changes to COVID-19 workplace requirements. Employers can check Jackson Lewis’ COVID-19 Advisor for updates on workplace requirements in California and around the country.

If you have questions about COVID-19 workplace requirements or related issues, contact a Jackson Lewis attorney to discuss.

On February 19, 2022, the newest statewide COVID-19 Supplemental Paid Sick Leave took effect.

California’s Division of Labor Standards Enforcement (DLSE) has published an FAQ Page to provide guidance regarding COVID-19 Supplemental Paid Sick Leave (SPSL).

The new FAQ page covers questions pertaining to the following:

  • Reasons for Taking Leave
  • Start Date and End Date
  • Requesting Leave from An Employer
  • Calculating an Employee’s Hours of Leave
  • Permissive Limits on Use and Verification
  • Credits
  • Payment of Leave, Record-Keeping, and Paystubs
  • Enforcement
  • Relation to Other Laws

There is some information in the FAQs that employers should take special note of.

Retroactive Payment

Retroactive payments are only required if the covered employee requests retroactive time for qualified absences prior to February 19, 2022.

Employers may request documentation if the employee is requesting retroactive leave for the employee or a qualifying family member testing positive for COVID-19.

This documentation could include, among other things, a medical record of the test result, an e-mail or text from the testing company with the results, a picture of the test result, or a contemporaneous text or e-mail from the employee to the employer stating that the employee or a qualifying family member tested positive for COVID-19.

If retroactive payment is being sought from the hours that an employee may use for any other qualifying reason employer may not deny a worker 2022 COVID-19 Supplemental Paid Sick Leave based solely on a lack of certification from a health care provider.

Wage Statement

The itemized wage statement or separate writing requirement ensures covered employees understand how many separate hours they have used for 2022 COVID-specific sick leave. The 2022 SPSL differs from the 2021 SPSL in that the paystub must list what has been used instead of what is available to use.  If no hours have yet been used then the paystub or other writing issued at the time wages are paid must indicate 0.

In addition, Labor Code Section 247.5 requires that records be kept for a three-year period on regular paid sick days and 2022 SPSL days accrued and used and that the records be made available to the Labor Commissioner or employee upon request.

Notice Requirement

Under California law, employers are required to display the required poster about 2022 SPSL in a place at the worksite where employees can easily read it.

If an employer’s covered employees do not frequent a workplace, the employer may satisfy the notice requirement by disseminating notice through electronic means.

If you have questions about 2022 COVID-19 Supplemental Paid Sick Leave or related issues, contact a Jackson Lewis attorney to discuss.

In this issue of the Class Action Trends Report, Jackson Lewis attorneys look back at class action developments in 2021, including COVID-19 vaccine mandate litigation, significant procedural decisions, wage and hour suits, and the continuing rise of cases brought under the California Private Attorneys General Act and Illinois Biometric Information Privacy Act, among other litigation trends.

On April 4, 2022, a merits panel of the D.C. Circuit Court of Appeals will hear oral arguments on a petition seeking to force OSHA to issue a permanent standard for healthcare occupational exposure to COVID-19 and to reinstate the Healthcare Emergency Temporary Standard on Occupational Exposure (Healthcare ETS) to COVID-19 pending the permanent standard. The D.C. Circuit Court of Appeals’ referral of this matter to a merits panel was initiated by the Court’s own motion.

On December 27, 2021, OSHA announced the withdrawal of the Healthcare ETS and confirmed its intent to issue a permanent infectious disease standard. Less than two weeks later, on January 5, 2022, National Nurses United and several other labor unions filed an Emergency Petition for a Writ of Mandamus and Request for Expedited Briefing and Disposition with the D.C. Circuit Court of Appeals. In re: National Nurses United, et al., No. 22-1002 (D.C. Cir. Jan. 5, 2022).

The unions argue that OSHA has failed to adequately protect nurses and other healthcare workers from COVID-19. OSHA filed its opposition to the petition on January 21, 2022, arguing, among other things, that OSHA was unable to finalize a permanent healthcare standard because it focused the agency’s resources on its COVID-19 Vaccination and Testing Emergency Temporary Standard (which was also withdrawn). OSHA indicated it expects to complete rulemaking for a permanent healthcare standard within six-to-nine months.

The Healthcare ETS applied in settings where COVID-19 patients are treated, and it required healthcare employers with more than 10 employees to develop and implement written COVID-19 plans that included the following elements:

  • Assigning a designated safety coordinator;
  • Patient screening and management;
  • Policies and procedures to comply with CDC guidelines;
  • Facemask and PPE requirements;
  • Protections while using aerosol-generating procedures on persons with suspected or confirmed COVID-19;
  • Physical distancing;
  • Solid barriers at employee work stations;
  • Cleaning and disinfection protocols;
  • HVAC system requirements;
  • Health screening and medical management requirements;
  • Paid leave for vaccinations, vaccination recovery, and medical removal from work due to COVID-19 infection or certain COVID-19 exposures;
  • Employee training;
  • Anti-retaliation protections;
  • Employee COVID-19 logs; and
  • Reporting work-related COVID-19 fatalities and in-patient hospitalizations.

OSHA has indicated its forthcoming permanent infectious disease standard will cover all industries and address airborne, droplet, and non-bloodborne contact diseases.

While OSHA has indicated it may use the now-withdrawn Healthcare ETS to support citations against healthcare employers under the General Duty Clause of the OSH Act, only the COVID-19 log and reporting provisions formally remain in effect.

Reinstatement of the Healthcare ETS would have a significant impact on covered employers, particularly as COVID-19 cases appear to be dropping throughout the country and more jurisdictions are loosening restrictions.

Please contact a Jackson Lewis attorney with any questions.

On February 19, 2022, 2022 COVID-19 Supplemental Paid Sick Leave wentinto effect. The legislation, similar to 2021 COVID-19 Supplemental Paid Sick Leave, requires employers with 25 or more employees to provide paid leave for reasons related to COVID-19, including the need to isolate or quarantine or to care for a family member who needs to isolate or quarantine.

The new statute also requires employers to post a notice regarding the new leave entitlement. The Division of Labor Standards Enforcement (DLSE) has published a model notice, which details the reasons leave is permitted and the amount of leave employees are entitled to take.

If employees do not frequent a physical workplace, the notice may be sent to employees electronically. This aligns with a law passed last year permitting the distribution of required postings via email to employees in addition to posting at the worksite.

The DLSE is also going to publish an FAQs page regarding the new leave, though currently the page only indicates “updates are coming soon.”

If you have questions about 2022 COVID-19 Supplemental Paid Sick Leave or related issues, contact a Jackson Lewis attorney to discuss.

COBRA Coverage

The normal difficulties that employers have adhering to the technical requirements of COBRA have been exacerbated during the past two years as COBRA rules were changed to recognize the complications accompanying the COVID-19 pandemic.  This added complexity is particularly worrisome as an employer’s simple oversight in administering COBRA can result in ERISA penalties, an excise tax, unintended self-insurance of medical claims, and litigation, including class-action lawsuits.

To better mitigate their exposure, employers should know these significant developments with COBRA during the past two years.

  • Updated Model COBRA Notices: On May 1, 2020, the Department of Labor (DOL) published a new model general COBRA notice and a new model election COBRA notice.  The primary update to the DOL model notices is an added section for those considering Medicare in lieu of COBRA.  Use of the model notices, if properly adapted for the specifics of an employer’s group health plan, is considered good faith compliance with the notice content requirements of COBRA.  The model notices are available on the Department of Labor website.  (For additional information, please see our Benefits Law Advisor article.)
  • Extended COBRA Deadlines: On April 29, 2020, the DOL and Internal Revenue Service (IRS) issued a Joint Notice extending many deadlines relating to COBRA, including the deadlines for an individual to elect COBRA coverage and pay COBRA premiums.  Generally, the deadlines were extended by requiring plans to disregard the period from March 1, 2020, until 60 days after the announced end of the COVID-19 National Emergency (known as the “Outbreak Period”).  The DOL later issued guidance clarifying that a COBRA deadline cannot be delayed for more than one year after the date of the original deadline (see our Benefits Law Advisor article).  This extension of COBRA deadlines is still in effect.  An employer should consider revising its standard COBRA notices to reflect the extended deadlines or provide a supplemental notice explaining the revised deadlines.
  • COBRA Subsidy: The American Rescue Plan Act of 2021 (ARPA) included a provision to fully subsidize COBRA premiums for a period of up to 6 months from April 1, 2021, through September 30, 2021, for individuals who lost health coverage (including dental and vision) due to involuntary termination or reduction in hours since November 2019.  The DOL issued model ARPA COBRA notices and guidance, which required health plans to notify eligible employees about the availability of the subsidy.  The IRS followed with its own expansive guidance on the ARPA subsidy and related tax credit issues for those employers paying for the subsidy (see our Benefits Law Advisor article).  Though the COBRA premium subsidy ended on September 30, 2021, employers that did not administer the ARPA subsidy provisions correctly may still need to take actions to mitigate their risks (COBRA’s existing penalty structure also applies to failures relating to ARPA subsidies).
  • Increase in COBRA Litigation: Even before the above changes went into effect, our firm noted the explosion of class action litigation under COBRA.  These cases usually alleged a purely technical violation of the content requirement of the COBRA notice, showing little or no actual harm to the plaintiff class members.  As the complexity of COBRA administration has grown in the past two years, these class action lawsuits will likely continue to take advantage of the situation.  Consequently, it is essential that employers take steps to mitigate their exposure.

If you have any questions about COBRA compliance or litigation issues, the members of the Jackson Lewis Employee Benefits and ERISA Complex Litigation Practice groups are available to assist.  Please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

As employers and insurers continue to establish programs to enable participants in group health plans to receive at-home COVID-19 tests at no cost, even without a prescription, the Department of Labor (DOL) has issued additional guidance and an updated FAQ providing further clarification and flexibility to insurers and plan sponsors in providing coverage to eligible individuals.  This additional guidance is effective February 4, 2022.

As a recap, effective January 15, 2022, all insurers and other group health plans must cover all types of COVID-19 tests, including those performed or prescribed by a physician or other health care provider, and for in-home COVID-19 tests procured without a doctor’s order.  The DOL issued FAQ Part 51 to provide guidance about how insurers and plans can comply with the obligation to provide at-home COVID-19 tests at no-cost, including the establishment of two “safe harbors” that plans and insurers can follow to ensure compliance:

Safe Harbor #1: The plan or insurer can satisfy its coverage obligation by providing “direct coverage” of at-home COVID tests through network pharmacy arrangements and other direct contract arrangements, with the participant paying no up-front cost to receive COVID testing kits through these services at the counter or other points-of-service.  If a participant submits invoices for COVID tests purchased through other non-pharmacy or retailer arrangements, the insurer or plan must reimburse the participant for the cost of such COVID tests at the lessor of the actual cost of the test purchased or $12 per test (noting that if a “kit” comes with two tests per kit, the amount to be reimbursed would be up to $24 in total).

Safe Harbor #2:   The plan or insurer can limit the total number of COVID tests to 8 per person, per month (or 4 kits, if the kit includes two tests).  A separate limit applies for each covered family member (e.g., a family of 4 could receive up to 32 tests per month (or 16 kits, if it includes two tests each).  There is no annual maximum limit.

FAQ Part 52 Update

On February 4, 2022, the DOL issued FAQ Part 52 to further clarify what COVID tests qualify for the no-cost coverage options under Safe Harbor #1, how a plan or insurer provides “direct coverage” of COVID-19 tests at no cost to the participant, and provides flexibility in coverage when the plan or insurer experiences supply shortages.  Lastly, the latest guidance confirms the coordination of plan coverage between the plan or insurer and related health flexible spending plans and health savings account arrangements.

Q/A-1 confirms that employers have flexibility in establishing a “direct coverage” arrangement to satisfy Safe Harbor #1 in FAQ Part 51.  At a minimum, the plan or insurer must provide at least one “direct-to-consumer shipping mechanism” and at least one “in-person mechanism.”

  • A direct-to-consumer shipping mechanism is any program that provides direct coverage of over-the-counter COVID-19 tests without requiring the individual to obtain the test at an in-person location. It can include an online or telephone ordering system provided through a pharmacy network or other non-pharmacy retailer that has contracted with the insurer or plan to provide COVID-19 tests to eligible participants at no-cost at the time of ordering.
  • The guidance emphasizes that systems and technology changes need to be modified to the extent necessary to ensure that pharmacy networks and retailer arrangements, including all direct-to-consumer shipping mechanisms, operate sufficiently with no upfront cost to the participant for the purchase of at-home COVID-19 test kits.
  • Plans and insurers must pay for all shipping costs consistent with the plan’s mail-order shipping arrangements.
  • When implementing an in-person mechanism, the plan or insurer can satisfy this requirement by offering alternative COVID-19 testing at in-person distribution sites with drive-through or walk-up testing services at no-cost to the participant. These services can also be provided through participating pharmacies and other contracted service providers available based on the locality of participants and beneficiaries and the current utilization of participants at each location.  Key information must be provided to all participants to ensure they are aware of each location and what other information they need to have available to receive COVID-19 testing coverage at no-cost.

Q/A-2 provides a crucial clarification that plans and insurers will not be deemed to violate Safe Harbor #1 if they are temporarily unable to provide over-the-counter COVID-19 tests due to supply shortages, as long as they have taken all other steps necessary to establish direct coverage arrangements in the manner required under Safe Harbor #1.  In that case, the plan or insurer can still meet its coverage responsibility by reimbursing the cost of COVID-19 tests/kits purchased outside of the prescribed direct coverage arrangement for up to $12 per test.

Q/A-3 clarifies that plans and insurers can disallow reimbursement for tests purchased by participants from a private individual via an in-person, online person-to-person sale, or any seller using online auctions or other resale marketplace arrangements.  Proof of purchase through a verified retailer with actual documentation of the item purchased will not violate the obligations set forth above or from previous guidance issued that restricts any medical management of COVID-19 coverage (see DOL FAQ Part 44).

Q/A-4 clarifies that the type of COVID-19 tests that must be covered under FAQ Parts 51 and 52 do not include COVID-19 tests that use a self-collected sample that must be processed by a lab or other health care provider to return a valid result—the type of COVID-19 tests referred to under FAQ Parts 51 and 52 are only tests that can be self-administered and self-read without the involvement of a health care provider.

Q/A-5 also clarifies that the cost of a COVID-19 test covered under the group health plan is not eligible for reimbursement under a health flexible spending arrangement (FSA), health reimbursement arrangement (HRA), or a health savings account (HSA) for the same expense.  To the extent an individual mistakenly receives reimbursement for the same COVID-19 test costs from a health FSA, HRA, or HSA arrangement separately covered and paid through an employer’s or insurer’s group health plan, such individual would need to contact their plan administrator for correction of the error or could be subject to income tax on the amounts overpaid.

As with the previous guidance on this topic, these obligations will continue until at least the end of the current national emergency period.

Members of the Jackson Lewis Employee Benefits group are available to discuss these latest updates and other options and alternatives for compliance.