THE OSHA VACCINATION MANDATE IS BACK!

Posted On December 20, 2021  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

December 20, 2021

 

What a weekend!

Just as we were about to start writing a blog summarizing various state vaccination-related laws, we received word on late Friday evening, December 17, that the 6th Circuit Court of Appeals dissolved the prior stay on the OSHA Vaccination and Testing Emergency Temporary Standard (OSHA ETS).

In response, OSHA has announced that it will enforce the ETS but will not issue citations for noncompliance with any of its requirements until January 10 or after and will not issue citations for noncompliance with testing requirements until February 9.   

In other words, the OHSA ETS is back, the compliance deadlines are delayed, and employers subject to it need to comply.

Background on the OSHA ETS

As a refresher, the OSHA ETS, published November 5 in the Federal Register, requires private employers with 100 or more employees to implement vaccination or weekly testing requirements for their employeesThe previous deadline to do so was January 4, 2022; other requirements such as implementing mandatory policies in compliance with the ETS, masking, and temporary removal of COVID-positive employees from the workplace had a compliance deadline of December 6, 2021.

In November, the 5th Circuit Court of Appeals issued stays stopping implementation of the OSHA ETS and ordering that OSHA "take no steps to implement or enforce" the ETS "until further court order.” OSHA announced shortly thereafter that it was suspending implementation and enforcement of the ETS.

On November 16, the 6th Circuit Court of Appeals was tapped to decide all federal court challenges relating to the OSHA ETS, and the government filed a motion requesting that the 6th Circuit dissolve the stay.

Below are links to our prior blogs summarizing these developments and the OSHA ETS below (or just scroll down). 

November 5, 2021 Blog (matrix-radar.com)

November 8, 2021 Blog (matrix-radar.com)

November 15, 2021 Blog (matrix-radar.com)

November 18, 2021 Blog (matrix-radar.com)

December 1, 2021 Blog (matrix-radar.com)

December 10, 2021 Blog (matrix-radar.com)

December 16, 2021 Blog (matrix-radar.com)

December 17, 6th Circuit Opinion

As mentioned, the 6th Circuit Court of Appeals, on the evening of December 17, granted the government’s motion to dissolve the 5th Circuit’s stay of the OSHA ETS.

A three-judge panel conducted the review.  Two judges voted to dissolve the mandate and one dissented. You can read the entire opinion here. 

The court stated that OSHA has “long asserted its authority to protect workers against infectious disease.” The majority further stated:

Relying on employee declarations, other Petitioners claim that they will need to fire employees, suspend employees, or face employees who quit over the standard. These concerns fail to address the accommodations, variances, or the option to mask-and-test that the ETS offers. For example, employers that are confident that they can keep their employees safe using alternative measures can seek a variance from the standard …  Or employers may choose to comply with the standard by enforcing the mask-and-test component, which are entirely temporary in nature and do not create irreparable injuries. These provisions of the ETS undercut any claim of irreparable injury.

The 6th Circuit’s decision was appealed on an emergency basis to the U.S. Supreme Court.  We will keep you posted! 

OSHA Will Require Compliance but Deadlines are Delayed

OSHA updated it webpage over the weekend and the Department of Labor issued a news release stating:

To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

Now What?

Employers, who have not done so already, should ramp up their efforts to comply with the OSHA ETS. Remember, and as we previously reported, the OSHA ETS applies to private employers with 100 or more employees.  More information can be found here.

The OSHA ETS does not apply to employers subject to theInterim Final Rule (“IFR”) issued by the Centers for Medicare and Medicaid Services (“CMS”) applicable to Medicare- and Medicaid-certified providers and suppliers.  It also does not apply to employers subject toExecutive Order (“EO”) 14042 applicable to federal contractors or subcontractors. The status of each can be found here and here

Also, make sure you confer with counsel, especially if you have employees located in a state that imposes limitations on vaccination mandates.

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

 

NEW YORK CITY'S GUIDANCE ON VACCINATION MANDATES AND OTHER VACCINATION MANDATE LITIGATION...

Posted On December 16, 2021  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

December 16, 2021

 

New York City (NYC) released its guidance, the Implementing Order of the Commissioner of Health and Mental Hygiene to Require COVID-19 Vaccination in the Workplace (“Order") and additional resources on its vaccination mandate for private businesses with workers in NYC. We previously discussed NYC’s announcement of this vaccination mandate here.

And in other news, we have litigation updates relating to the OSHA Emergency Temporary Standard (ETS) applicable to private employers with 100 or more employees and the Interim Final Rule (IFR) issued by the Centers for Medicare and Medicaid Services (CMS) applicable to Medicare and Medicaid certified providers and suppliers.

So, read on.

NYC Guidance and NYC Commissioner of Health and Mental Hygiene’s Order

Here are important take aways for employers.

Reason for Implementation

According to the Order, it is “necessary for the health and safety of the City and its residents when urgent public health action is needed to protect the public health against an existing threat and a public health emergency has been declared.”

Businesses Subject to the Order

The Order only applies to workplaces in NYC. A “workplace” is any place where work is performed in the presence of another worker, or a member of the public.

Businesses that employ more than one worker in NYC or maintain or operate a workplace in NYC are covered by this Order. Individuals who are self-employed or sole proprietors are not covered by the Order unless they work at a workplace, or interact with other workers or the public in-person.

For more information see NYC’s FAQ which cover this very issue and provide specific examples.

Workers Subject to this Order

The Order covers full or part time employees, staff members, interns, volunteers, contractors, self-employed individuals, employers, or sole practitioners working in person in NYC at a workplace.

It does not apply to:

  • Remote workers
  • People who do not interact in-person with co-workers or the public
  • Individuals who enter the workplace for a quick and limited purpose
  • Non-NYC residents who are performing artists, college or professional athletes (or individuals accompanying them) not required to be vaccinated per the Key to NYC program

Key Requirements:

  • Proof of Vaccination: Beginning December 27, 2021, NYC workers must provide proof of at least one vaccination dose against COVID-19 before entering a workplace.

    They must provide proof of the second dose, if applicable, within 45 days.
  • Exclude Workers Not Vaccinated: NYC businesses must exclude from the workplace workers who have not provided proof of vaccination status, subject to medical or religious accommodation.
  • Maintain Records of Vaccinated Status. Businesses must verify workers’ proof of vaccination and maintain it in one of the following ways:
    • Keep a copy of each worker’s proof of vaccination;
    • Maintain a record of proof of vaccination showing the worker’s name, vaccination status, due date of second dose, if applicable; or
    • Check the proof of vaccination before permitting the worker into the workplace and keep a record.
    • For contractors, businesses are not required to keep a record of their vaccination status if the contractor’s employer confirms the contractor is vaccinated. In that case, the business must still maintain a record of its request and confirmation.
  • By December 27, 2021, employers must affirm on this form created by the NYC Department of Health and Mental Hygiene that it has complied with the NYC vaccination requirement and post in a conspicuous location.

Reasonable Accommodations

  • Individuals subject to the Order may request religious and/or medical accommodations to the vaccination requirement by December 27, 2021, which “begins the reasonable accommodation process.”
  • The FAQs clarify that workers may not qualify for an exemption based upon their social or political beliefs.
  • Businesses may allow those with a pending accommodation request to come into the workplace.
  • According to the reasonable accommodation guidance, employers may deny accommodations that impose an undue hardship based upon factors identified by EEOC guidance such as:
    • the nature and cost of the accommodation needed;
    • the overall financial resources of the facility making the reasonable accommodation;
    • the number of persons employed at this facility;
    • the effect on expenses and resources of the facility;
    • the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
    • the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;
    • the impact of the accommodation on the operation of the facility.
  • NYC provides a checklist which is here to use when undertaking the reasonable accommodation process. According to the FAQs, “If an employer chooses to follow this checklist and keeps it on file, that will demonstrate that the employer handled the reasonable accommodation request appropriately.”
  • Businesses must keep records of reasonable accommodations which identify the date the accommodation was granted, the basis for doing so, and any supporting documentation provided in support of the requested accommodation.

Penalties for Noncompliance

Businesses out of compliance are subject to a fine of $1,000 and escalating penalties thereafter if violations persist.

Resources

The NYC guidance can be found at COVID-19: Vaccination Workplace Requirement - NYC Health

The implementing Order of the Commissioner of Health and Mental Hygiene to Require COVID-19 Vaccination in the Workplace, is published as well as helpful Frequently Asked Questions and Guidance on Accommodations.

Litigation Updates on Federal Vaccination Mandates

OSHA Emergency Temporary Standard (ETS)

  • As previously reported, we are waiting for the 6th Circuit Court of Appeals to decide the outcome of OSHA’s Motion to Dissolve the Stay of the OSHA ETS, which would require private employers with 100 or more employees to mandate COVID-19 vaccinations or weekly testing of employees.
  • So far, the 6th Circuit has denied the petition requesting that all 6th Circuit judges, rather than the typical panel of three judges, make the decision. The Court stated:

In a case as important, accelerated, and briefing-filled as this one, however, gathering all hands on deck would have strained the resources of the sixteen active judges, requiring each of us to review the voluminous record and the relevant underlying legal doctrines. What’s more, it would have done so for no discernable purpose: the case already sits before three thoughtful, independent judges on the panel who have spent the past weeks steeped in this matter. We properly leave the matter in their hands.

This court order can be found here. https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0283p-06.pdf.

CMS Vaccination Mandate

  • First, for background, the IFR—Interim Final Rule—is a government mandate issued by the Centers for Medicare and Medicaid Services (CMS) which requires health care workers in hospitals, nursing homes and other health care facilities to get fully vaccinated. Our prior discussion about the IFR can be found here.
  • On November 29th a federal district court in Missouri granted a preliminary injunction against the government temporarily stopping enforcement of the IFR in the following 10 states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. See our summary of this here.
  • On November 30th, a federal district court in Louisiana granted a preliminary injunction against the government also temporarily stopping enforcement of the IFR. See our prior summary here. This lawsuit was brought against the government by 14 additional states Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah and West Virginia. The court applied this injunction nationwide except for the 10 states already subject to the November 29th injunction from the Eastern District of Missouri.
  • As a result, CMS stated on its FAQ guidance: “While CMS remains confident in its authority to protect the health and safety of patients in facilities funded by the Medicare and Medicaid programs, it has suspended activities related to the implementation and enforcement of this rule pending future developments in the litigation.”
  • But then on December 15th, the 5th Circuit Court of Appeals reviewed the November 30th decision of the federal district court in Louisiana and issued an order stating the lower court should have limited its stay to the 14 states that brought the action, and not nationwide. The 5th Circuit’s order can be found here.
  • What does that mean? We can assume that Medicare and Medicaid certified providers and suppliers not in the states identified above may be subject to the CMS IFR. We will need to see CMS’s position. Confer with your counsel and keep watching this blog as we are on this!

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

VACCINATION MANDATES: MORE COURT ACTIVITY

Posted On December 10, 2021  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

December 10, 2021

 

As we were writing our blog on the NYC vaccination mandate, a federal district court issued a nationwide injunction on the federal contractor COVID-19 vaccination mandate, Executive Order 14042.

Here is the rundown of that decision and additional vaccine-related court developments.

Nationwide Injunction on Federal Contractor Vaccine Mandate

What Happened?

  • A federal district court in Georgia (Southern District) issued an Order on December 7, 2021, granting a preliminary injunction against the government. Now, the government is prohibited from enforcing "the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America."

What does that mean?

  • The government is temporarily prohibited from enforcing the vaccine mandate under Executive Order (EO) 14042 against employers that are covered federal contractors and subcontractors. In other words, federal contractor employers do not have to comply with the vaccinate mandate required by EO 14042.
  • As we discussed in last week’s blog, a federal district court in Kentucky also prevented enforcement of the federal contractor vaccine mandate but at that time, the order was limited to the states of Kentucky, Ohio, and Tennessee. Now, the Georgia court order applies throughout the United States.

What is EO 14042?

  • EO 14042, issued on September 9, 2021, requires, among other things, that employees of certain federal contractors and subcontractors receive COVID-19 vaccinations, subject to medical or religious exemptions. The vaccination deadline was originally December 8th , but this was pushed back to January 18th. See our prior blogs here and here for more information.

Where is the decision?

  • The Southern District of Georgia court decision can be found here.

What should employers do?

  • Confer with counsel but this decision currently prohibits the federal government from enforcing the vaccine mandate described in EO 14042 against employers who are covered federal contractors and subcontractors. It does not prevent these employers from implementing their own mandatory vaccination policy, subject to state and local laws.

11th Circuit Denies Florida’s Appeal on CMS Mandate

What Happened?

  • On December 6, 2021, the 11th Circuit court of appeals denied the State of Florida’s request to enjoin the Interim Final Rule (IFR) issued by the Centers for Medicare and Medicaid Services (CMS).

What does that mean?

  • As we previously discussed here, there is already a nationwide injunction preventing the government from enforcing the CMS healthcare COVID-19 vaccine mandate. Therefore, right now, this decision has no practical effect for employers. Why are we talking about it? We wanted you to know that not all courts may agree on the outcome of these government vaccine mandates so employers should stay alert and be ready to comply if required!

What is the CMS IFR?

  • The IFR—Interim Final Rule – is a government mandate from CMS requiring health care workers in hospitals, nursing homes and other health care facilities to get fully vaccinated by Jan. 4, 2022—subject to medical or religious exemptions. Our prior blogs about the IFR are here and here.

Where is the decision?

  • The 11th circuit opinion can be found here.

What should employers do?

  • Employers subject to the IFR should confer with counsel on next steps. Again, nothing prohibits employers from implementing their own mandatory vaccination policy, subject to state and local laws.

6th Circuit Decision on OSHA’S Motion to Dissolve Stay Still Pending

After December 10, 2021, the Sixth Circuit Court of Appeals will decide the outcome of OSHA’s Motion to Dissolve the Stay of the OSHA vaccination mandate, which we reported here.

What Should Employers do?

  • The good news is that most employers, subject to state and local law, may, at the moment, implement their own vaccination policy or not—there is currently no federal mandate requiring them to do so. Specifically:
    • Employers that are federal contractors and subcontractors are not required to comply with the vaccination mandate in EO 14042.
    • Health care facilities and suppliers subject to the CMS IFR are not required to comply the mandate.
    • Private employers subject to the OSHA vaccination mandate are also not required to implement a mandatory vaccination policy.
  • Employers who have employees in New York City (NYC), please confer with counsel and see our blog about NYC’s vaccination mandate here.
  • All of these court decisions will likely be appealed, and the ultimate outcome is unknown. Meanwhile, more cities and states may follow the lead of NYC and implement additional vaccination mandates.

We will be monitoring and waiting. Stay tuned!

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

CHANGES TO CONNECTICUT FMLA ARE COMING! JUST WHEN YOU THOUGHT YOU HAD CT PAID LEAVE MASTERED...

Posted On December 09, 2021  

by Armando Rodriguez, Esq - Product Compliance Counsel, Compliance And Legal Department

& Marti Cardi, Esq. - Vice President, Product Compliance

December 09, 2021

 

January 1 is just around the corner and Connecticut employees will be eligible to receive Paid Family and Medical Leave (PFML) benefits. But that's not all! Many changes to the Connecticut Family and Medical Leave Act (CT FMLA) are also effective as of January 1, 2022. In all of the hullabaloo concerning CT private plan exemptions and collecting contributions, it is easy to overlook changes to CT FMLA but you do so at your peril!

The good news is that the changes were meant to make the CT FMLA align more closely with CT PFML. Remember, CT PFML is a pay benefit and is not job-protected. That job protection comes from the CT FMLA and a Connecticut law that provides leave for reasons related to family violence.

Wow, it's been a busy time for this blog! We've been posting fast and furiously regarding all the developments relating to COVID vaccination mandates or anti-mandates. (Is that a term?) But you know – those laws, executive orders, or what have you that prohibit or limit vaccination mandates. If this is of interest to you, just scroll down to review our many posts on the topic, starting back on November 5. Special thanks to Lana Rupprecht, our Director of Product Compliance, for giving up normal life to stay on top of this fast-moving topic!

Here we’ll highlight all the changes to CT FMLA effective January 1, 2022, and provide a few notes on comparison of the Connecticut FMLA and PFML laws. (And by the way, there are no changes to the family violence job protection law but the CT paid leave law was designed to align with it in all respects.)

Broader Coverage

  • Through December 31, 2021
    • Applies to employers with 75 or more employees
    • Employees become eligible after 12 months of service with the employer and having worked 1000 hours in the 12 months preceding the first day of leave
  • As of January 1, 2022
    • Apply to all employers who employ 1 or more Connecticut employees
    • Employees become eligible after 3 months of service

More Covered Relationships

  • Through December 31, 2021
    • Employee’s spouse; minor or disabled child; or parent
  • As of January 1, 2022
    • Employee’s spouse; child (regardless of age or disability; parent (now including in-laws); grandparent; grandchild; sibling; and any other “individual related to the employee by blood or affinity whose close association the employee shows to be the equivalent of those family relationships”. Relationships are broadly defined to include individuals related through blood, marriage, or by adoption or foster placement.

Greater Total Leave Entitlement

  • Through December 31, 2021
    • 16 workweeks in a 24-month period
      • Co-employed spouses must share entitlement for birth, adoption, or care of a parent
    • 26 weeks for care of an ill or injured service member
  • As of January 1, 2022
    • 12 weeks in a 12-month period (so in effect, up to 24 weeks in a 24-month period of 2 leave years – plus the 2 weeks per year mentioned below for incapacity during pregnancy)
      • Co-employed spouses must share entitlement for birth, adoption, or care of all family members
    • An additional 2 weeks available for incapacity due to a serious health condition during pregnancy
      • The CT FMLA and PFML have identical language on this provision. And get this: Although the CT DOL has not yet spoken as to CT FMLA, the CT Paid Leave Authority takes the position that the extra 2 weeks are available for any incapacity during pregnancy, not just those related to or caused by the pregnancy.
    • 26 weeks for care of an ill or injured service member

The Connecticut Department of Labor recently issued guidance on how this transition will work for existing CT FMLA claims that cross over from 2021 into 2022; you can find it here (scroll down a little way – it’s in the body, not a link).

Reduced Employee Eligibility Requirements

  • Through December 31, 2021
    • 12 months of service with current employer plus 1000 hours worked in the 12 months prior to leave
  • As of January 1, 2022
    • 3 months of service with current employer

Eligibility for CT PFML is different. As of January 1, an employee only needs 3 months of service with the current employer to be eligible under the CT FMLA. On the other hand, to be eligible for the CT PFML, an employee must be currently employed, or employed in the last 12 weeks, and must have earned at least $2,325.00 in the employee’s highest quarter in the first 4 of the 5 most recent completed quarters. Eligibility is “portable” for PFML and can be established with an employer other than the current employer from whom leave is sought. Thus, it is possible, depending on the facts, that an employee may be eligible for job-protected leave but not pay benefits or vice versa.

Leave Reasons

Reasons for leave under the CT FMLA remain unchanged. An employee can take leave under the CT FMLA for his own serious health condition; for organ or bone marrow donation; to care for a family member with a serious health condition; for bonding with a new child; due to military exigencies relating to a family member’s call or order to active duty in the U.S. Armed Forces; and to care for a servicemember with a serious illness or injury incurred in the line of duty. These leave reasons are all covered under CT PFML as well, although the leave entitlement under CT FMLA for care of an ill or injured servicemember is 26 weeks, while under CT PFML it is only 12 weeks of benefits.

In addition, under a separate Connecticut statute, employees can take job-protected leave for up to 12 days for reasons related to being a victim of family violence. This is also a covered reason for 12 days of pay benefits under Connecticut PFML.

Sharing Leave Entitlement

  • Through December 31, 2021
    • Co-employed spouses must share leave entitlement for bonding with a new child or for care of a PARENT with a serious health condition
  • As of January 1, 2022
    • Co-employed spouses must share leave entitlement for bonding with a new child or for care of ANY COVERED FAMILY MEMBER with a serious health condition

But note that under CT PFML, each employee, even married co-employees, are entitled to their individual 12 weeks of pay benefits with no sharing.

Matrix Can Help!

States are always updating and expanding their leave laws. We’re always on the lookout for changes and new laws that impact the services we provide. Whether on this blog, at one of our quarterly compliance update webinars, or in compliance consultations with our client employers and business partners, you can count on Matrix to keep you updated on the latest developments in leave of absence, paid leave benefits, and ADA accommodations.

As mentioned above, the changes to the CT FMLA were intended to make the CT FMLA more compatible with CT PFML. However, there are still material differences and Matrix’s absence management services are ready to handle the changes and coordination of the Connecticut laws, the federal FMLA, and your company policies.

Contact your Matrix or Reliance Standard account manager, or one of our regional practice leaders for more information or send us a message at ping@matrixcos.com.

VACCINATION MANDATES: NEW YORK CITY AND OTHER KEY VACCINATION LAWS

Posted On December 08, 2021  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

December 07, 2021

 

New York City Vaccine Mandate for Private Businesses

What Happened?

Yesterday, New York City (NYC) announced a vaccination mandate applicable to private businesses with employees working in NYC. Here are the key points employers should know.

  • All private employers must require every NYC employee to have at least one dose of the COVID-19 vaccine by December 27th.
  • This vaccine requirement is applicable to all private employers with employees in NYC, regardless of the size of the business.
  • The mandate is based upon a directive from NYC Health Commissioner, Dr. Dave A. Chokshi.
  • Mayor de Blasio, stated in his announcement that vaccinations are the “central weapon in the war against COVID.”
  • The mayor also stated he wanted to take a preemptive strike in response to the presence of the Omicron variant and other factors such as colder weather and holiday events attributed to an ongoing rise in COVID-19 cases.
  • You can watch the complete announcement here.

Will there be Written Materials or Guidance?

The NYC news release summarizing the Mayor’s announcement can be found here. There are several unconfirmed questions at this point such as whether testing will be permitted as an alternative, whether remote workers are covered and the penalties for failing to comply with the mandate.

On December 15th, NYC will publish an “enforcement and reasonable accommodation guidance.”

The mayor further stated that NYC would be setting up a call center to answer questions and provide a strong outreach center to support impacted businesses.

Are Religious and/or Medical Exemptions Permitted Under the Mandate?

Employees may request religious and/or medical accommodations in accordance with federal, New York state and NYC law. Under the NYC Human Rights law, most employers must engage in a “cooperative dialogue” and good faith “written or oral dialogue” to discuss the employee’s accommodation needs. This NYC law requires employers to memorialize in writing whether any accommodation was granted or denied and provide a copy to the employee.

The law can be found here. Guidance on the NYC Human Rights laws is available here.

We will know more once the December 15th guidance is published. Meanwhile, here is the Key to NYC Pass guidance for employers. The Key to NYC Pass is a vaccine mandate currently applicable to NYC customers and workers using NYC indoor dining, fitness, and entertainment. This prior guidance may help employers predict the requirements and reasonable accommodations for the upcoming mandate.

What is Acceptable Proof of Vaccination?

According to the NYC news release, acceptable proof of vaccination includes a CDC issued vaccination card, the New York State Excelsior Pass, the Clear Health Pass, and the NYC COVID Safe App. Also, see the NYC guidance vaccine list here.

Other States with Vaccine Mandates

States such as CA, CO, CT, DE, HI, IL, KY, MA, ME, MN, MD, NC, NV, NJ, NM, NY, OR, PA, RI, VT, VA, WA, WI, and D.C. and several municipalities throughout the U.S. have implemented vaccine mandates for certain employees. Such mandates are generally limited to employees working in specific types of settings such as healthcare, nursing homes, schools, childcare facilities, or state or local government entities.

In September and October of 2021, NYC, through its Key to NYC Pass, implemented vaccine mandates for workers and customers ages 12 and up working or using indoor dining, fitness and entertainment venues.

NYC is now the first to impose vaccine mandates applicable to employees of all private businesses regardless of size and industry.

States with Restrictions on Vaccine Mandates

The following states currently allow additional exemptions to vaccine mandates other than those based upon medical or religious reasons. We previously discussed Florida’s new law here and will devote another blog discussing the specific statutes. For now, here is a list of these states with links to the applicable legal authority.

  • Alabama allows exemptions for prior COVID-19 infection. Bill Text: AL SB9 | 2021
  • Florida allows exemptions for prior COVID-19 infection, testing, or use of personal protective equipment. See our prior blog at 29-1 (matrix-radar.com)
  • Iowa allows medical and religious exemptions broader than federal law. Iowa Legislature
  • Kansas allows medical and religious exemptions broader than federal law. kslegislature.org
  • North Dakota allows exemptions if there are prior COVID-19 antibodies, periodic COVID-19 tests or sincerely held moral or philosophical beliefs. ENGROSSED House Bill No. 1511
  • Texas per EO, allows exemptions for prior COVID-19 infection. EO-GA-40
  • Utah allows exemptions for a “sincerely held personal belief.” utah.gov

As always, we will continue to keep you updated as we monitor these developments. And, our previous blogs on vaccination mandates can be found here, here , here, here and here – or just scroll down.

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

ILLINOIS EXPANDS ITS DOMESTIC VIOLENCE LEAVE LAW EFFECTIVE JANUARY 1, 2022

Posted On December 01, 2021  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

December 01, 2021

 

Would you like a break from all the updates on the vaccination mandates?

Well, here you go. This blog is devoted to discussing amendments to the Illinois Victims Economic Security and Safety Act (VESSA) taking effect in the New Year.

The law, which can be found here, currently permits employees working in Illinois who are victims of domestic or sexual violence or who have family or household members who are victims of such violence to take up to 12 weeks of unpaid leave per any 12 month period to seek medical help, legal assistance, counseling, safety planning, and other assistance.

More information about this law can be found in the table of domestic violence laws we created which can be found here. Also, check out Victims' Economic Security and Safety Act (VESSA) - Conciliation and Mediation Division (illinois.gov).

Effective January 1, 2022, the amended VESSA law:

  • Adds “crime of violence” as an additional leave reason.
    • Employees may take leave if they or their family or household members are victims of a “crime of violence” (in addition to domestic, sexual or gender violence already permitted).
    • “Crime of violence” is defined as homicide, sex offenses, bodily harm, harassment and obscene communication, terrorism and armed violence.
  • Expands definition of ”sexual violence” to include sexual assault.
  • Expands covered family and household members for whom the employee can take leave. Currently, a “family or household member” includes spouses, parents, children, persons related by blood or by present or prior marriage, persons who share a relationship through a son or daughter, and persons jointly residing in the same household. As of January 1, 2022, the definition of “family or household member” will be expanded further and will also include:
    • Parties to a civil union
    • Grandparents
    • Grandchildren
    • Siblings
    • Any other person related by civil union, or
    • Any other individual whose close association with the employee is the equivalent of a family relationship as determined by the employee
  • Adds consecutive leave in addition to previously permitted intermittent or reduced work schedule leave.
  • Modifies the Certification Process. Under the amendments, an employee may choose any one of the following documents in the employee’s possession, accompanied by the employee’s sworn statement, to support his or her leave request:
      • Documentation from the employee, agent or volunteer of a victim services organization, an attorney, a member of the clergy or a medical or other professional from whom the employee or the employee’s family or household member has sought assistance,
      • A police or court record, or
      • Other corroborating evidence
    • These categories were identified in the prior version of VESSA, but the amendments now specifically provide that the employee may choose which document to provide along with his or her sworn statement and clarifies that the employee provide if he or she is in possession of such a document.
    • Under the amendments, employers may not request or require submission of more than one document during the same 12-month period leave is requested or taken if the reason for leave is related to the same incident(s) of violence or the same perpetrator(s) of the violence.
  • Expands Nondiscrimination Provisions Against Perceived Victims. The amendments expand the discrimination prohibitions to include anyone who is perceived to be a victim or has a family or household member who is perceived to be a victim of domestic violence, sexual violence, gender violence or any other crime of violence.
  • Adds New Confidentiality Provisions. The amendments require that any information, documentation, records, corroborating evidence and the fact that the employee has requested or obtained an accommodation pursuant to VESSA be kept in the “strictest confidence” unless:
    1. The employee requests or consents to disclosures in writing; or
    2. Disclosure is required under applicable federal or state laws.

Pings for Employers

State laws that protect employees who themselves or whose family members are victims of domestic and similar crimes are proliferating. Employers should be aware of these protections and their various state obligations and take steps to ensure compliance. While Matrix will assist by managing an employee's need for time off, an employer's obligations don't stop there. We recommend:

  • Train your supervisors to be aware of these laws generally and to refer an employee with a possible need for leave or a job accommodation to Human Resources. You can use our table of domestic violence laws located here as a training resource.

To comply with the Illinois VESSA amendments as of January 1:

  • Be sure to revise policies and procedures to reflect the changes:
    • Employees may take leave for other "crimes of violence" in addition to domestic, sexual or gender violence for covered employees. Employees may take leave if their "family or household members" falls into the expanded definition.
  • Train Human Resources so they are aware that employees now have the option to select what categories of "Employee Documentation" they wish to provide to support a leave request, and that, the employer cannot require or request more than one document (plus the employee statement) in a 12-month period for the same incident(s) of violence or the same perpetrator(s) of the violence.
  • Take steps to keep separate and confidential information, documentation, records, or corroborating evidence provided by the employee in support of this leave request.
  • Remember, VESSA still entitles employees to reasonable work-related accommodations to address the needs of the victim(s). Accommodations may include, but are not limited to, an adjustment to the job structure, workplace facility, work requirements, or telephone number, seating assignment, or physical security of the work area. See DOL IL VESSA. Many other states have similar requirements in their domestic violence laws.

MATRIX CAN HELP! At Matrix we're always monitoring state legislatures to keep an eye on the state leave landscape. The Illinois VESSA amendments will be included in our suite of state leave of absence laws Matrix manages. Our trained staff of absence management experts specialize in understanding the intersection of state and federal leave protections. We take various steps to maintain an employee's (or victim's) privacy and safety. For example, we administer these domestic and sexual violence laws under the name "Personal Protected Leave." For more information about our leave management and accommodation solutions, contact your Matrix/Reliance Standard account manager now, or send us a message at ping@matrixcos.com.

VACCINATION MANDATES: MORE INJUNCTIONS – AND DOL EXTENDS NOTICE AND COMMENT PERIOD ON OSHA ETS

Posted On December 01, 2021  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

December 01, 2021

 

As promised, we are continuing to monitor the developments on the vaccination mandate front. This continues to be a fluid and fast-paced situation. In fact, while we were drafting this blog, we had to revise twice to incorporate the new changes.

For background, our previous blogs on vaccination mandates can be found here, here, here and here.

Here is the current update as of right now.

Court Activity

CMS – IFR Temporarily Blocked Nationwide

  • What happened?
    • Quite a lot has happened and continues to happen!
    • First on Monday, November 29th, a federal district court in Missouri (Eastern District) granted a preliminary injunction against the government temporarily stopping enforcement of the Interim Final Rule("IFR") issued by the Centers for Medicare and Medicaid Services ("CMS") in the following 10 states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.
    • Then, on Tuesday, November 30th, another federal district court in Louisiana (Western District) granted a preliminary injunction brought by 14 additional states against the government restraining it from implementing the IFR.
      • The court applied this injunction nationwide except for the 10 states already subject to the November 29th Order from the Eastern District of Missouri. The court stated: "due to the nationwide scope of the CMS mandate, a nationwide injunction is necessary due to the need for uniformity."
  • What does this mean? This means that the CMS, according to this court order, is prohibited from enforcing its IFR – which includes mandatory vaccinations of covered health care workers against Medicare and Medicaid certified providers and suppliers nationwide. More to come on CMS's position in response.
  • What is the IFR? The IFR—Interim Final Rule—is a government mandate from CMS (defined above) requiring health care workers in hospitals, nursing homes and other health care facilities to get fully vaccinated by Jan. 4, 2022—subject to medical or religious exemptions. Our prior discussion about the IFR can be found here.
  • Where are the decisions?
    • The Eastern District of Missouri court decision issued on November 29th can be found here.
    • The Western District of Louisiana court decision issued on November 30th can be found here.
  • What should employers do?
    • Employers subject to the IFR should confer with counsel on next steps. These lower district court decisions will likely be appealed to a higher court, and probably ultimately, to the U.S. Supreme Court.
    • These decisions do not prohibit employers from implementing their own mandatory vaccination policy (subject to state law).

Federal Contractor Vaccine Mandate Blocked in 3 States

  • What happened? Also, on Tuesday, November 30th, a federal district court in Kentucky (Eastern District) granted a preliminary injunction against the government temporarily stopping enforcement of the vaccine mandate required for federal contractors and subcontractors in the states of Kentucky, Ohio and Tennessee.
  • What does this mean? This means that the government is temporarily prohibited from enforcing the vaccine mandate under Executive Order (EO) 14042 for federal contractors and subcontractors in all covered contracts in the states of Kentucky, Ohio and Tennessee.
  • What is EO 14042? EO 14042, issued on September 9, 2021, requires, among other things, that employees of certain federal contractors and subcontractors be vaccinated--subject to medical or religious exemptions. The vaccination deadline was originally December 8th but this was pushed back to January 18th. Our prior blogs describing the EO can be found here and here.
  • Where is the decision? The Eastern District of Kentucky court decision issued on November 30th can be found here.
  • What should employers do?
    • Employers subject to EO 14042 without covered contracts in the 3 states identified above are not likely subject to the court order but should check with counsel.
    • Employers subject to EO 14042 with covered contracts in the 3 states identified above, should confer with counsel on next steps.
    • Again, the court's decision does not prohibit employers from implementing their own mandatory vaccination policy (subject to state law).

OSHA ETS-Notice and Comment Period Extended

  • What happened?
    • On November 30th, the U.S. Department of Labor issued a News Release stating that the notice and comment period for OSHA ETS (the OSHA ETS is explained here, here, here and here) is extended from December 6, 2021 to January 19, 2022 so that "stakeholders may have additional time to review the ETS and collect information and data necessary for comment." This means that interested parties have more time to submit any written comments either supporting or opposing the OSHA ETS.

The DOL news release can be found here.

As previously reported, OSHA has temporarily stopped implementation and enforcement of the ETS until this is resolved in the courts.

Keep checking in with us on this fast-changing topic, and we will continue to keep you updated.

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com

EVEN MORE VAX NEWS: FLORIDA’S RESTRICTIONS ON VACCINATION MANDATES

Posted On November 29, 2021  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

November 24, 2021

 

On the same day we were preparing our blog discussing the status of federal vaccination mandates applicable to private employers, the state of Florida enacted its own law significantly restricting—but not prohibiting—Florida private employers’ ability to impose vaccination mandates. 

Here is a quick rundown of this law as it applies to private employers subject to this law.

NOTE: The law also contains provisions relating to public employers, including educational or government institutions, which are not covered here.

  • The law applies to full-time, part-time or “contract” employees.
  • Private employers may impose a COVID-19 vaccination mandate in the workplace but if they do so, they must permit employees to choose to be exempt for any one of the following reasons:
    • Medical reasons. The statute states this also includes pregnancy or expectation of pregnancy. The employee is required to submit a statement from a medical provider certifying the COVID-19 vaccination is not in the best medical interest of the employee.
    • Religious reasons. Employees may receive an exemption based on a sincerely held religious belief – BUT Inquiries into the veracity of the employee’s religious beliefs are prohibited according to the state’s suggested exemption form.
    • COVID-19 Immunity from Prior Infection. Employees will need to provide “competent medical evidence that the employee has immunity to COVID-19, documented by the results of a valid laboratory test performed on the employee.” 
    • Periodic testing. Employees must be permitted to opt-out of a private employer’s vaccination requirements through testing “at no cost to the employee.”
    • Use of employer-provided personal protective equipment (PPE).This applies to employees who present “an exemption statement indicating that the employee agrees to comply with the employer's reasonable written requirement to use employer-provided personal protective equipment when in the presence of other employees or other persons.”
  • Employers are required to use forms created by the Florida Department of Health with respect to each exemption or substantially similar forms. These forms can be found here.
  • If an employer receives a completed exemption form for any of the 5 reasons stated above, the employer must allow the employee to opt out of its mandatory vaccination policy.
  • There is no private right of action under this law, but employees may report violations to the Florida Department of Legal Affairs.
  • Violations for which complaints can be filed include: 1) not being offered an exemption, 2) being improperly denied an exemption, or 3) being terminated as a result of a vaccine mandate.
  • For nontermination violations, the employer must be notified of the violation and given an opportunity to cure.
  • If an employer improperly terminates an employee as a result of the vaccine mandate, the Florida Attorney General has the authority to impose the following fines:
    • Up to $10,000 for private entities employing less than 100 people
    • Up to $50,000 for private entities employing 100 people or more
  • **The Attorney General may not impose a fine on an employer that reinstates a terminated employee with back pay.
  • Finally, the law directs the Florida Department of Health, Department of Legal Affairs, and the Department of Economic Opportunity to develop emergency rules to implement the law, which are expected to be out on or before December 4th. Employers will hopefully receive more guidance from these rules.

Tips for Employers

  • The fate of the OSHA ETS is still undetermined. If you are a Florida employer subject to the OSHA ETS and this law, you should consult with your attorney on next steps.
  • Employers in Florida who are also subject to the Interim Final Rule (“IFR”) issued by the Centers for Medicare and Medicaid Services (“CMS”) applicable to Medicare- and Medicaid-certified providers and suppliers which we discussed here OR are federal contractors or subcontractors subject to Executive Order (“EO”) 14042 which we discussed here should consult with their attorney. To the extent there is a direct conflict, the IFR and CMS might preempt this Florida law.
  • Employers mandating vaccinations who are subject to this law should, if they have not already done so, implement a robust process on exemption requests.
  • This law does not prohibit a private employer subject to this law from imposing vaccination mandates but as noted above, it imposes additional requirements.

Also, just in case you missed our previous blogs we prepared on vaccination laws, they can be here, here, here and here.   And as always, we will continue to keep you posted on key developments in this area.

Additional Resources

Florida Statute: h0001Ber.docx (myfloridahouse.gov)

Florida Department of Health COVID-19 Vaccination Exemption Forms | Florida Department of Health (floridahealth.gov)

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for our ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

YET ANOTHER UPDATE ON VACCINATION MANDATES

Posted On November 18, 2021  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

November 18, 2021

 

Yes, we have yet another blog on the current status of the federal vaccination mandates.  Our previous blogs on this topic can be found here, here  and here.

Here are some key updates and links to important resources.

  • On Friday, November 12th, the 5th Circuit Court of Appeals, as we previously reported here, issued an order continuing the temporary stay of the OSHA Vaccination and Testing Emergency Temporary Standard (“ETS”) pending further judicial review.  The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order."
    • As a refresher, the OSHA ETS, published November 5th in the Federal Register, required private employers with 100 employees or more to implement employee vaccination or weekly testing requirements by January 4, 2022. The applicable ETS is here.
    • The 5th Circuit’s opinion continuing the temporary stay can be found here.
  • Then, OSHA announced that it is suspending “activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
    • OSHA’s statement can be found here.
  • On the afternoon of November 16th, the Judicial Panel of Multidistrict Litigation, based upon a random selection, announced that the 6th Circuit Court of Appeals (which typically presides over disputes arising in Ohio, Michigan, Tennessee and Kentucky) will decide, in one consolidated action, challenges to the OSHA ETS.
    • The November 16th consolidation order can be found here.

Now what?

  • The fate of the OSHA ETS is undetermined. Right now, and as we previously reported, the stay is temporary. But, OSHA is standing down on enforcing the ETS until the courts resolve. If you are an employer subject to the OSHA ETS, you should consult with your attorney on next steps.
  • Regardless of the outcome of the OSHA ETS, nothing prevents employers from voluntarily implementing a mandatory vaccination and/or testing policy.
  • The OSHA ETS stay has no impact on employers subject to the Interim Final Rule (“IFR”) issued by the Centers for Medicare and Medicaid Services (“CMS”) applicable to Medicare- and Medicaid-certified providers and suppliers which we discussed here.
  • The OSHA ETS stay has no impact on federal contractors or subcontractors subject to Executive Order (“EO”) 14042 which we previously discussed here.
  • Therefore, employers subject to the IFR and EO 14042 must move forward with their mandatory vaccination requirements.
    • The deadline for federal contractors to get vaccinated is pushed back to January 18, 2022, per an updated Guidance from the Safer Federal Workforce Task Force which can be found here.

Don’t worry, we know this is changing quickly. We are monitoring and will continue to keep you posted!

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

3 FEDERAL VACCINATION MANDATES – WHICH ONE APPLIES TO YOUR BUSINESS?

Posted On November 15, 2021  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

November 15, 2021

 

By now, you and most employers have heard about OSHA’s Vaccination and Testing Emergency Temporary Standard (“ETS”) which requires private employers with 100 employees or more to implement employee vaccination or weekly testing requirements by January 4, 2022.  Our updates on this can be found here and here. The applicable ETS is here.

BUT not all private employers, even those with 100 employees or more, are subject to the OSHA ETS. Instead, they may be subject to the Interim Final Rule (“IFR”) issued by the Centers for Medicare and Medicaid Services (“CMS”) applicable to Medicare- and Medicaid-certified providers and suppliers or Executive Order (“EO”) 14042 applicable to federal contractors or subcontractors. If a workplace is already covered by EO 14042 or the IFR, the OSHA ETS will not apply.

Even though the ETS, EO, and IFR all contain vaccination mandates, each have important differences and specific requirements. But, the vaccination deadline for all three is January 4, 2022.

OSHA ETS

We previously reported here that on November 6, the 5th Circuit Court of Appeals issued a temporary stay of the OSHA ETS.  As we were writing this blog, on November 12, the 5th Circuit issued another order continuing the temporary stay of the OSHA ETS pending further judicial review.  (No rest for the weary! ) The opinion can be found here.  Also, check out the links below for additional information on the stay and the Court’s opinion.

This stay will not impact the vaccination mandates contained in the EO and IFR.  And as we previously advised, employers subject to the ETS should continue to plan for compliance as the stay is temporary.

Out of the three mandates, only the OSHA ETS permits regular testing instead of a mandatory vaccination policy. The OSHA ETS clearly permits employees to receive reasonable time, including up to four hours of paid time to receive each vaccination dose and reasonable time and paid sick leave to recover from vaccination side effects.

OSHA ETS also provides that employers who do not comply with the vaccine or paid time off requirements may face fines of up to $14,000 per violation, which is not contained in the IFR or EO.

The OSHA ETS specifically provides that it will not apply to workplaces already covered by the IFR or EO 14042, so read on!

CMS Interim Final Rule

What is it?

On November 4, 2021, CMS issued the IFR requiring health care workers in hospitals, nursing homes and other health care facilities to get fully vaccinated by Jan. 4, 2022.  For more information see: Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies | The White House.

As noted above, the IFR does not provide a testing alternative for unvaccinated staff.

What Entities are Subject to it?

  • Here is a list of the facilities subject to the IFR:

    ● Ambulatory Surgical Centers (ASCs) ● Hospices ● Psychiatric residential treatment facilities ● Programs of All-Inclusive Care for the Elderly (PACE) ● Hospitals ● Long Term Care Facilities, including Skilled Nursing Facilities (SNFs) and Nursing Facilities (NFs), generally referred to as nursing homes ● Intermediate Care Facilities for Individuals with Intellectual Disabilities ● Home Health Agencies ● Comprehensive Outpatient Rehabilitation Facilities ● Critical Access Hospitals ● Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services ● Community Mental Health Centers (● Home Infusion Therapy (HIT) suppliers ● Rural Health Clinics Federally Qualified Health Centers ● End-Stage Renal Disease (ESRD) Facilities

  • The IFR does not apply to religious nonmedical healthcare institutions, organ procurement organizations portable x-ray supplies, assisted living facilities, physician’s offices, group homes or home- and community-based services.

Who Must be Vaccinated?

All healthcare employees working at one of the covered facilities described above-- regardless of whether they work in a clinical or non-clinical position.  The IFR doesn’t just apply to employees but also students, trainees, contractors, and  volunteers and any other “staff” with direct or indirect patient contact.   

Are there Exclusions?

The IFR excludes workers who exclusively perform telehealth or support services outside the facility or who have no in person contact with patients or other staff.

Are there Exemptions?

The IFR permits exemptions based upon a  disability, medical condition, or sincerely held religious belief but in doing so, covered entities must ensure they minimize the risk of transmission of COVID19 to at-risk individuals, “in keeping with their obligation to protect the health and safety of patients.”    

The IFR also requires that an independent licensed practitioner acting within the scope of his or her practice, sign and date medical exemptions and provides,

Such documentation must contain all information specifying which of the authorized COVID-19 vaccines are clinically contraindicated for the staff member to receive and the recognized clinical reasons for the contraindications; and a statement by the authenticating practitioner recommending that the staff member be exempted from the facility’s COVID-19 vaccination requirements based on the recognized clinical contraindications.

Are there Tracking Requirements?

The IFR requires that providers and suppliers create a process to collect, evaluate, and  track exemption requests including keeping secure documentation on the request, the decision, and any resulting accommodations.

Are there penalties for noncompliance?

The IFR states that non-compliance may result in civil money penalties, denial of payment for new admissions, or termination of the Medicare/Medicaid provider agreement.  It does not provide a specific penalty amount.

EO 14042

What is it?

On September 9, 2021, the White House issued EO 14042, and on September 24, 2021, a corresponding Guidance requiring employees of certain federal contractors and subcontractors to be fully vaccinated.  Testing is not available as an alternative. The EO also contains masking and physical distancing requirements and a designated person to coordinate COVID-19 workplace safety.

Initially, the EO required employees to be fully vaccinated by December 8, 2021, but on November 4th, the White House announced a January 4, 2022 deadline.

What Contractors Are Covered?

We hope you already know if your company is a covered federal contractor but here’s the rundown.  The covered contracts are:  (1) for services, construction, or a leasehold interest in real property; (2) for services covered by the Service Contract Act; (3) for concessions under the Service Contract Act; or (4) in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.

The EO generally applies to federal prime contractors and subcontractors, even if they are small businesses, as follows:

  • new contracts to provide services to the federal government on or after November 14, 2021;
  • extensions/renewals after October 15, 2021, of existing contracts for services to the federal government; or
  • when elected in contracts agreed to between October 15-November 13, 2021.

Who Must be Vaccinated?

Any full-time or part-time employees working in connection with a covered contract, or at a covered contractor workplace. In other words, virtually all employees working for a covered federal contractor or subcontractor.

Are there Exclusions?

The EO does not provide an exception to remote workers on the vaccination requirement.

The EO provides a limited vaccination exception for employees beginning work on a “urgent, mission-critical need.”  In such situations, the unvaccinated employee must become fully vaccinated within 60 days after beginning the work and the employer must comply with masking and physical distancing requirements.

Are there Exemptions?

Like the ETS and IFR, the EO permits disability, medical, or religious exemptions as permitted under applicable law.

Are there penalties for noncompliance?

The Executive Order and Guidance do not address penalties for employer noncompliance.

Additional Resources

BREAKING NEWS: 5th Circuit issues new order continuing its stay of the OSHA vaccine-or-test ETS (ohioemployerlawblog.com)

Fifth Circuit Stays OSHA ETS (natlawreview.com)

Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies | The White House

CMS Omnibus Staff Vax Requirements - External FAQ (508 Compliant)

Biden-Harris Administration Issues Emergency Regulation Requiring COVID-19 Vaccination for Health Care Workers | CMS

Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors | The White House

New Guidance on COVID-19 Workplace Safety for Federal Contractors | The White House

Guidance for Federal Contractors and Subcontractors (saferfederalworkforce.gov)

COVID-19 Vaccination and Testing ETS | Occupational Safety and Health Administration (osha.gov)

Federal Contractors | Safer Federal Workforce

 

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

 

OSHA'S VACCINATION/TESTING ETS TEMPORARILY BLOCKED BY COURT

Posted On November 08, 2021  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Lana L. Rupprecht, Esq. - Director, Product Compliance

November 08, 2021

 

On Friday, we sent out an update on OSHA’s Vaccination and Testing Emergency Temporary Standard (“ETS”) which requires private employers with 100 employees or more to implement employee vaccination or weekly testing requirements by January 4, 2022. This blog can be found here and the ETS is here.

Shortly after its publication in the Federal Register, various states, businesses, and private advocacy groups filed legal actions against the government challenging the ETS in the 5th, 6th, 8th, and 11th U.S. Circuit Courts of Appeals. These actions generally assert that the ETS exceeds OSHA’s statutory authority and that implementation of the ETS will cause irreparable harm (i.e., employee resignations, “ruinous fines” and “employees taking an irreversible vaccine”).

On Saturday, November 6, 2021, the 5th Circuit Court of Appeals in New Orleans, in response to a joint petition from Louisiana, Mississippi, South Carolina, Texas and Utah and several interested businesses, ordered a temporary pause of the ETS pending expedited judicial review.  The Court stated, “Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.” The opinion can be found here.   

The Court directed the government to respond to the motion for permanent injunction by Monday (which is today!) at 5:00 p.m., and the petitioners to file a reply by Tuesday (tomorrow) at 5:00 p.m.

 

So, what does this mean for employers?

First, employers who wish to implement mandatory vaccination or testing requirements outside of the ETS may still do so.  Regardless of the outcome of the court challenges, there is nothing prohibiting employers from moving forward with a mandatory vaccination or testing policy.  Just remember to make accommodations for medical conditions that contraindicate a vaccination, disabilities and sincerely held religious beliefs.

This is a dynamic and fast-moving situation with potential compliance deadlines just around the corner – December 6th and January 4th. Therefore, employers should, in the meantime, continue with compliance preparation so they are ready if the ETS goes forward.  

Stay tuned! We are monitoring this and will keep you posted.  

 

Additional Resources

Information about the various states filing petitions relating to the ETS in the 5th Circuit may be found at the following links:

Mississippi Attorney General (state.ms.us)

South Carolina Attorney General (scag.gov)

Utah Attorney General (utah.gov)

Louisiana Attorney General (state.la.us)

Texas | Office of the Attorney General (texasattorneygeneral.gov)

 

Matrix Can Help!

Matrix offers ADA and vaccine exemption services for its clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

 

OSHA’S ETS IS HERE-NOW WHAT?

Posted On November 05, 2021  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Lana L. Rupprecht, Esq. - Director, Product Compliance

November 05, 2021

 

OSHA’s long-awaited Vaccination and Testing Emergency Temporary Standard (“ETS”) for private employers with 100 or more employees has arrived. The ETS, which can be found at Federal Register: COVID-19 Vaccination and Testing; Emergency Temporary Standard, requires the full vaccination (or the beginning of weekly testing) of covered employees by January 4, 2022.

Here are noteworthy points about the ETS:

  • Employers must determine, obtain proof, and maintain records of the vaccination status of their employees.
  • Employers must establish a mandatory vaccination policy OR an alternative policy requiring regular testing where unvaccinated employees submit to COVID-19 testing at least every 7 days and wear face coverings in the workplace.
  • Employers with a mandatory vaccination policy must require all current and new employees to be fully vaccinated –i.e., two weeks after receiving both shots of a two-dose vaccination or one dose for a single-dose vaccine. 
  • Effective dates:  Employees must be fully vaccinated and/or the employer must implement weekly testing by January 4, 2022. Other requirements such as implementing the mandatory policies in compliance with the ETS and masking and temporary removal of COVID-positive employees from the workplace are effective December 6, 2021
  • Employees do not need to be vaccinated if:
  • For vaccinations, employers must provide reasonable paid time for each primary vaccination dose (up to 4 hours per dose) and paid sick leave for recovery time due to side effects associated with the vaccination. 
  • There is no requirement for employers to pay the cost of employee testing.
  • Employees who work from their home, from a location with no other customers or coworkers present, or exclusively outdoors are exempt from the ETS.
  • Unvaccinated employees who have previously been diagnosed with COVID-19 must still meet the mandatory vaccination or weekly testing requirements.
  • Employees who test positive or are diagnosed for COVID-19 – whether previously vaccinated or not – must promptly notify their employer and employers must exclude them from the workplace regardless of vaccination status.

Here is a summary of the standard from OSHA.

US Department of Labor issues emergency temporary standard to protect workers from coronavirus | Occupational Safety and Health Administration (osha.gov)

An excellent summary is also available on this blog:  OSHA’s Vax-or-Test ETS: What Employers Need to Know - Labor & Employment Report (laboremploymentreport.com)

And our buddy Jeff Nowak’s blog specifically takes on the leave of absence requirements of the ETS here:  Under the ETS, What Paid Leave Must an Employer Provide an Employee to Obtain a COVID-19 Vaccine or Test? - FMLA Insights

Below are FAQs, summaries and additional compliance materials on the ETS. 

COVID-19 Vaccination and Testing ETS - Frequently Asked Questions | Occupational Safety and Health Administration (osha.gov)

COVID-19 Vaccination and Testing ETS (osha.gov)

US Department of Labor issues emergency temporary standard to protect workers from coronavirus | Occupational Safety and Health Administration (osha.gov)

COVID-19 Vaccination and Testing ETS | Occupational Safety and Health Administration (osha.gov)

Matrix Can Help!

Matrix offers ADA and vaccine exemption services for its clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

 

TRUE FMLA STORIES FROM RECENT COURT OPINIONS – THE FAQS: PART 2

Posted On November 03, 2021  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Lana L. Rupprecht, Esq. - Director, Product Compliance

November 03, 2021

 

In September, the Matrix compliance team presented a DMEC webinar, True FMLA Stories from Recent Court Decisions, which can be viewed here.  We received great questions from attendees during that webinar and answered some of them in a blog post last month.  Now we take on more questions raised by attendees to discuss discipline and performance management of employees that request or are already out on FMLA leave.

Q: Can an employer terminate an employee previously under investigation immediately following a request for FMLA leave?

A: Yes, provided the investigation of the employee and termination decision are unrelated to the employee’s FMLA request and are for legitimate business reasons.  If an employee is under investigation for misconduct or placed on a performance plan for a reason unrelated to the FMLA leave request, the employer is not prohibited by the FMLA from taking disciplinary action immediately, including termination, if supported by the employee’s conduct and the employer’s policies.  While this is especially true if the investigation or performance action was underway before the employee’s FMLA request, your hands are not tied by the FMLA from acting appropriately on employee issues discovered at any time after the employee’s request or during the FMLA leave.  Of course, make sure you keep all documentation supporting the investigation and resulting discipline/ termination.

Our webinar discussion of Blank v. Nationwide Corporation, (6th Cir. 2021), is illustrative. In that case, the court found that a call to an employee out on FMLA leave notifying him of a demotion due to racist comments he made before he went out on leave and a later phone call to that employee in response to his complaint about the demotion were de minimus contacts that did not interfere with his FMLA rights.  Also, in Krupa v. Support for You, LLC, (N.D. Ohio 2021), a federal district court found that an employer’s termination of an employee for payroll fund mismanagement while the employee was on FMLA leave did not violate the FMLA.  The court found no causal connection between the employee’s FMLA leave and the reason for her termination. 

Q. Is it appropriate to call the employee while on leave to discuss a PIP?

A. Yes, provided the discussion is short, concise and to the point. 

The mere delivery of and a short discussion about a Performance Improvement Plan (PIP) is generally permissible. Again, de minimus phone calls with employees out on FMLA leave are acceptable. There is no right under the FMLA to be “left alone” and employees out on FMLA are not completely absolved of responding to an employer’s inquiries.  Also, you should consider what is fair to the employee.  It is probably better to let the employee know there is a serious issue that needs tending to rather than springing it on the employee when he returns to work. 

On the other hand, in person meetings or prolonged telephone calls discussing the PIP such as an employee’s specific tasks and projects, the nature and quality of the employee’s work, the employee’s additional work obligations and how he or she can meet them going forward, look more like work than de minimus phone calls.  To minimize the risk of an interference claim, a better practice is to call the employee, let the employee know that you will be sending a PIP for review, and tell the employee that you will have follow-up discussions upon her return from leave. Then, don’t forget to schedule the PIP discussion immediately after the employee’s return to work!

Pings for Employers

  • Document and communicate performance and conduct problems as soon as you become aware. Do not wait! Apply this process consistently and uniformly with all employees.
  • Keep phone calls with the employee out on FMLA concise and discrete and relay the crucial information the employee must know.
  • When conducting a workplace investigation or making decisions about disciplinary actions, make sure the decision is fully documented showing the dates of the relevant events and dates in which the decision to discipline or terminate was made and before the message is delivered to the employee. This is not only a good HR practice but will protect you down the road in the event the employee requests or goes out on leave.
  • Employers sometimes fear that taking disciplinary action in close proximity to an employee’s FMLA request or leave will look like interference or retaliation, but you are not expected to ignore misconduct or bad performance. Whether you take action following the employee’s request, during the leave, or immediately upon the employee’s return to work, that action will be in close proximity to the employee’s exercise of FMLA rights. So, why wait and let the situation go untended?
  • Of course, each situation is fact specific and before making a final decision whether to hold that conversation or take disciplinary action, you should seek legal advice.

Matrix Can Help!

Matrix offers integrated FMLA/leave of absence, ADA, and integrated disability management services. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

PAID FAMILY AND MEDICAL LEAVE – AN UPDATE

Posted On October 29, 2021  

October 29, 2021

 

Employers, Employees, Consultants, and Carriers are struggling to keep up with nationwide legislative updates and what it means to them. Join us for this checkpoint of where things stand and where they may be heading.

Date and Time:
Thursday, November 11th at 2:30 pm ET

Host:
Marti Cardi, Esq.

VP, Product Compliance
Matrix Absence Management

Kevin Cranston
Director
Strategy, Product Development & Marketing, Reliance Standard

Click here to register for this event

OCTOBER: NATIONAL DOMESTIC VIOLENCE AWARENESS MONTH

Posted On October 20, 2021  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Lana L. Rupprecht, Esq. - Director, Product Compliance

October 20, 2021

 

In 1989, the U.S. Congress passed a law designating October as National Domestic Violence Awareness Month. Despite increased awareness of this issue, the following statistics from the National Coalition Against Domestic Violence are troubling:

  • More than 10 million adults experience domestic violence annually.
  • If each of these adults experienced only once incidence of violence, an adult in the US would experience violence every three seconds.
  • 1 in 4 women and 1 in 10 men experience sexual violence, physical violence and/or stalking by an intimate partner during their lifetime.

Leave Laws Protecting Domestic Violence Victims

U.S. jurisdictions continue to add laws mandating job-protected leave of absence and providing employment protections when an employee or a family or household member is a victim of domestic or sexual violence such as Missouri, California, Colorado, Connecticut, Florida, Hawaii, Illinois, Kansas, Maine, Massachusetts, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon and Washington. We’ve previously written about these domestic violence leave laws, herehere and here. In addition, and more recently, U.S. jurisdictions are also providing employees with paid time off through their family and medical leave legislation. 

Although these laws vary, the types of activities protected by these laws typically include getting medical attention, attending counseling sessions, seeking legal assistance, attendance in court proceedings, communicating with an attorney, and/or relocating to a permanent or temporary residence.  

In addition, do not forget that in some situations, leave under the Family and Medical Leave Act (FMLA) may also be available to employees and their family members to address certain health-related issues resulting from domestic violence. As noted by the Department of Labor in a FAQ, “An eligible employee may take FMLA leave because of his or her own serious health condition or to care for a qualifying family member with a serious health condition that resulted from domestic violence. For example, an eligible employee may be able to take FMLA leave if he or she is hospitalized overnight or is receiving certain treatment for post-traumatic stress disorder that resulted from domestic violence.”  See FMLA Frequently Asked Questions | U.S. Department of Labor (dol.gov)

How to stay on top of this Information

This is a lot of information and difficult for employers to keep up with – especially multi-jurisdictional employers.  To assist you, Matrix has created a table summarizing key portions of the domestic violence leave laws. This table provides a one-stop-shop for you to track the growing number of jurisdictions offering this type of leave and provides an overview of their requirements.  Matrix administers all of these laws for our leave of absence clients.

In addition to the specific “personal protection” leave (paid or unpaid) laws identified in this table, a number of states and municipalities have also enacted paid sick time laws containing “safe time” provisions to protect workers.  A good resource for state and municipal paid sick time laws can be found at A Better Balance.  The chart includes the following specific line item for each paid sick law:  “Can sick time be used for specific ‘safe time’ purposes (related to domestic violence, sexual assault, or stalking)?”

MATRIX CAN HELP!   At Matrix we’re always monitoring state legislatures to keep an eye on the state leave landscape. Our trained staff of absence management experts specialize in understanding the intersection of state and federal leave protections. We take various steps to maintain an employee’s (or victim’s) privacy and safety. For example, we administer these domestic and sexual violence laws under the name “Personal Protected Leave.” For more information about our leave management and accommodation solutions, contact your Matrix/Reliance Standard account manager now, or send us a message at ping@matrixcos.com

STAY IN THE KNOW WITH OUR QUARTERLY COMPLIANCE WEBINARS!

Posted On October 08, 2021  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Lana L. Rupprecht, Esq. - Director, Product Compliance

& Armando Rodriguez, Esq - Product Compliance Counsel, Compliance And Legal Department

October 08, 2021

 

Compliance updates show no sign of slowing down, but you can keep up with our new webinar series, The Docket:

The third quarter review of All Things Absence!  Although topics may change quarter to quarter, Matrix Absence Management Vice President Marti Cardi, Esq. together with her team Lana Rupprecht, Esq, and Armando Rodriguez will cover:

  • Pending and recently passed state and federal legislation
  • State and federal Paid Family and Medical Leave updates
  • New Equal Employment Opportunity Commission guidance, lawsuits/settlements and more concerning ADA
  • New Department of Labor guidance, lawsuits/settlements and more regarding FMLA
  • Court opinions on ADA, FMLA and other laws
  • COVID-19 updates
  • And more!

Click here to sign up for The Docket Q3 webinar on October 12, 2021 at 2:00 PM ET.

TRUE FMLA STORIES FROM RECENT COURT OPINIONS – THE FAQS

Posted On October 04, 2021  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

October 04, 2021

 

On September 14 (has it been that long ago?), the Matrix compliance team presented True FMLA Stories from Recent Court Decisions as a DMEC webinar (Disability Management Employer Coalition).  And if you don’t know DMEC, you should – check them out at dmec.org.  And here’s good news: the On Demand recording can be found here and is available to you for free even if you are not a DMEC member (yet).

We had so much fun at this webinar responding to your very good questions. Unfortunately, we ran out of time so we decided to answer a few more in this blog and future blogs.  Today we will address some of your questions on the topics of certifications and recertifications.

Question:  May an employer request a medical certification each time an employee is absent for a condition already approved for intermittent leave?

Answer:  No.  Once an employer already has a complete and sufficient certification it may not ask for more information, such as requiring a doctor’s note, for each FMLA-related absence.

The FMLA regulations allow an employer to require a request for leave due to the employee’s or a family member’s serious health condition be supported by a certification issued by the health care provider of the employee or the employee's family member.  29 C.F.R. § 825.305(a).  No information may be required beyond that specified in the regulations.  §825.306(b).

For intermittent leave, that information must include an estimate of the frequency and duration of the employee’s absences.  §825.306(a)(7).  Intermittent leave for medical treatment must include an estimate of the dates and duration of such treatments and any periods of recovery.  §825.306(a)(6).

Once the employee has provided a complete and sufficient certification on which the health care provider has stated the anticipated frequency and duration, the employer cannot ask for additional medical documentation for leave usage that falls within that estimated usage range or close to it.  If the employee’s usage is excessive as measured against the estimate, an employer may request recertification as permitted by the regulations.  More on that below!

Since it seems all things relate to COVID these days, here is a link to specific guidance from the Department of Labor relating to a similar question and COVID-19: 9.  May my employer require me to submit a doctor’s note to use FMLA leave if I am sick and unable to work because of COVID-19?  COVID-19 and the Family and Medical Leave Act Questions and Answers.

The court in the case, Oak Harbor Freight Lines v. Antti, 998 F. Supp.2d 968 (D. Ore. 2014), addressed a similar issue. There, the employer, Oak Harbor Freight Lines, became increasingly frustrated as its employees frequently took Fridays and Mondays for intermittent FMLA.  (Sound familiar?)  In response, Oak Harbor required employees to provide doctor’s notes supporting each absence and how such absences related to their FMLA-qualifying conditions. 

Two of these employees refused to provide doctor’s notes even though according to Oak Harbor, 88.99% of one employee’s FMLA time off and 94% of the other employee’s FMLA time off were adjacent to a weekend or holiday. Oak Harbor requested that the court declare that its practice of requiring these notes complied with the FMLA, but the court disagreed. It held requiring the doctor’s note was illegal given the FMLA’s specific and detailed regulations relating to medical certifications and recertifications.

The Court, quoting another case, stated: “[h[ad Congress, or the Department of Labor desired to permit employers to demand such intermittent verification, the statute or regulations would provide as much. Instead, the regulations provide that an employer can verify the absence-condition connection by means of recertification.”

So the lesson here is stick to the regulation regarding certification and recertification. If you already have a complete and sufficient certification, see if you can utilize the recertification process, which we discuss more in response to our next question below. 

Q:  How many times should an employer give an employee a grace absence approval before asking for recertification?         

This question is spot on in recognizing the recertification process as a useful and powerful tool—especially if the employee is exceeding the frequency and duration of the approved leave or has established “suspicious” patterns of usage.

Generally, for most leaves, recertification is permitted no more often than every 30 days or the expected duration of the leave, whichever is longer.  Shorter intervals for recertification are permitted if, for example, there is a significant change in the circumstances than what is set forth in the certification or if the employer has reason to doubt the stated reason for the absence. 

The FMLA regulations provide that a health care provider’s assessment of frequency and duration for an intermittent leave is an estimate only. That means just one or two “grace absences” – those allowed in excess of the number or duration of absences estimated by the provider – will not likely establish a significant change in circumstances or any reason to doubt.

But if an absence pattern that exceeds the scope of the current certification continues, that may constitute a significant change in circumstances enabling an employer to utilize the recertification process. Similarly, if the call outs are frequently near a weekend or holiday—like the employees in the Oak Harbor case, such a pattern likely casts doubt on the stated reason for the absences, also enabling use of the recertification process.  In fact, in Opinion Letter FMLA2004-2-A the DOL has opined that Friday/ Monday absence patterns can constitute “information that casts doubt upon the employee’s stated reason for the absence.”  See also 825.308(c)(2)-(3).

Pings for Employers

So where does this leave employers who struggle with combating repeated questionable FMLA absences?

  • Manage the medical certification process carefully at the outset by seeking clarification and verification and obtaining second and third opinions as needed. This is your chance if you have any reason to doubt the certification’s validity up front.
  • Once you receive a complete and sufficient certification, carefully track and document any and all absences that exceed the scope of the initial certification.
  • Utilize the recertification process if you observe a pattern of leave exceeding the frequency and/or duration of the initial certification.
  • Finally, if you have concerns about the employee’s absences and leave pattern, provide the health care provider with this information during the recertification process to inquire whether the absences are consistent with the employee’s serious health condition.  See Fact Sheet #28G for more information

Additional Questions?

We know there were additional questions and have not forgotten. We’ll take on more outstanding questions in a future blog post or two.

Matrix Can Help!

Matrix offers integrated FMLA/leave of absence, ADA, and integrated disability management services. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

WASHINGTON D.C. UPS ITS GAME – EXPANSIONS TO UNIVERSAL PAID LEAVE AND EMPLOYEE PROTECTIONS

Posted On September 27, 2021  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Lana L. Rupprecht, Esq. - Director, Product Compliance

September 27, 2021

 

Sitting in the shadow of the controversy over whether the Feds will pass a paid family and medical leave program, the District of Columbia has not shied away from its own PFML program.  Two significant new laws (well really, a collection of laws) have expanded D.C.’s Universal Paid Leave (UPL) program and, in effect, provide more pay for many employees using the medical portion of the paid leave. 

D.C.’s UPL program, which we previously wrote about here, was recently amended as part of D.C.’S budget for fiscal year 2022. The changes include:

  • Prohibiting short term or temporary disability insurance carriers from offsetting the UPL paid medical leave benefits against amounts owed under an STD policy effective October 1, 2021 (but see below: also in effect May 26, 2021, through March 11, 2022 under previous emergency and temporary bills); and
  • Increased duration of employee paid leave entitlements effective October 1, 2021.

The legislative history is confusing, so we chopped out that part of our original draft of the post.  What you need to know are the effective dates we share below. We’ll refer collectively to the succession of bills that got us to where we are now as “the Amendments.”

First up:  No UPL offsets for insured STD policies. 

The Amendments incorporate the previous offset prohibitions contained in prior emergency legislation.  These are in effect collectively from May 26, 2021, through March 11, 2022.

  • Under the prior laws and the Amendments, insurers are prohibited from offsetting or reducing temporary or short-term disability (STD) benefits under an insurance policy based upon actual or estimated UPL paid leave benefits received by an employee.
  • This prohibition does not apply to “self-insured employers” – defined as employers who use their own resources to pay its employees’ family, medical, STD, or related leave benefits rather than providing such benefits through an insurance company and employers who contract with a third-party insurer to administer their self-funded leave benefits program.
  • It also does not apply to insurance carriers administering employer-funded STD plans for employers.

    At the time of the initial emergency and temporary legislation, UPL provided only 2 weeks of paid leave benefits for an employee’s own medical condition.  Insurers will feel more of an impact due to the increased amount of paid leave contemplated by the Act discussed below.

    Next:  The UPL (Paid Leave) Changes.

    The Amendments expand UPL’s paid leave provisions, beginning October 1, 2021:

    Pre-natal Leave Added.

  • Employees may take up to 2 weeks of paid pre-natal leave relating to routine and specialty appointments, exams and treatments associated with a pregnancy provided by a health care provider. This includes pre-natal check-ups, ultrasounds, treatment for pregnancy complications, bedrest prescribed by a health care provided and pre-natal physical therapy. Pre-natal care was not previously called out separately as a UPL leave reason.
  • The two weeks of paid pre-natal leave is in addition to the total amount of paid parental leave permitted in a given year which, as of October 1, 2021, will be a total of 10 weeks of paid leave (2 weeks pre-natal + 8 weeks of parental).

    Additional Leave for an Employee’s Own Serious Health ConditionAs of October 1, 2021, employees may receive up to 6 weeks of paid leave associated with their own serious health condition.  Previously, the UPL permitted just 2 weeks.

    Progressive Annual Expansions of Leave.

  • The Amendments contemplate annual increases – up to 12 weeks – in the amount of paid parental leave, employee serious health condition leave, or family serious health condition leave.
  • Employees may still not exceed 8 weeks of paid leave benefits in a 52-workweek (or whatever the maximum amount of parental leave is at the time a claim is made) EXCEPT when combining pre-natal and parental leave as discussed above.

    No Elimination Period (At Least for Now)The 7-day elimination period is temporarily removed for claims filed “after October 1, 2021” until 1 year and 1 day after the end of the COVID-19 public health emergency.

    30-Day Claim Period.  Employees may submit a claim for paid leave up to 30 days after they qualify for leave.  An employer may waive this 30 day period if the employee is unable to apply for his or her paid leave benefits due to “exigent circumstances.”

    Temporary Revised Calculation of Average Weekly WageThe calculation of the average weekly wage for the employee contribution amount also will temporarily change (for claims filed “after October 1, 2021” until 1 year and 1 day after the end of the COVID-19 public health emergency) so that the lookback period is the highest four out of ten quarters—rather than the highest four of the last five quarters.

    Finally:  Changes Impacting D.C.’s FMLA

  • The Amendments also expand coverage under the District’s unpaid but job-protected Family and Medical Leave Act to employees who were employed by the same employer for at least 12 consecutive or non-consecutive months.
  • Leaves will still run concurrently if the leave qualifies under both D.C. UPL and D.C. FMLA.  However, as we previously reported, there may be situations where some employees may be entitled to UPL leave but not D.C. FMLA leave and thus be without job protection. 
  • As always, the federal FMLA will run concurrently with either law if it applies.

Universal Paid Leave Amendment Act Resources

Universal Paid Leave Amendment Act of 2016

Universal Paid Leave Emergency Amendment Act of 2021 (B24-0373)

Universal Paid Leave Amendment Act of 2021 (B24-0285)

Paid leave regulations:

D.C. Office of Paid Family Leave

Department of Employment Services

MATRIX CAN HELP!   At Matrix we’re always monitoring state legislatures to keep an eye on the state leave landscape. Our trained staff of absence management experts specialize in understanding the intersection of state and federal leave protections. For more information about our leave management and accommodation solutions, contact your Matrix/Reliance Standard account manager now, or send us a message at ping@matrixcos.com

TRUE FMLA STORIES FROM RECENT COURT OPINIONS

Posted On September 07, 2021  

by Marti Cardi, Esq. - Vice President, Product Compliance

September 07, 2021

 

Tuesday, September 14 | 12:00 pm ET

When dealing with leaves of absence, the Family and Medical Leave Act (FMLA) statute sets the framework, while the regulations provide more detail, and the Department of Labor’s (DOL) opinion letters give us the government’s side of the story. But there’s more to FMLA compliance than that. The rubber really meets the road with the resulting court opinions. Join Marti Cardi, Vice President – Product Compliance. Lana Rupprechet, Director – Product Compliance, and Armando Rodriguez, Compliance Attorney, for this session as we explore how employers fare in FMLA lawsuits, the lessons learned, and the absolute latest in FMLA case law.

 

This session qualifies for the following CEUs:

  • 1 ADMS
  • 1 CDMS
  • 1 CLMS
  • 1 PHR
  • 1 SHRM

Enter "21MATRIX1" at checkout and that should reduce the charge to $0.00!

MISSOURI OFFERS JOB-PROTECTED LEAVE TO VICTIMS OF DOMESTIC AND SEXUAL VIOLENCE

Posted On August 23, 2021  

by Armando Rodriguez, Esq - Product Compliance Counsel, Compliance And Legal Department

August 23, 2021

 

Effective August 24, 2021, Missouri becomes the latest state to mandate job-protected leave of absence when an employee or a family or household member is a victim of domestic or sexual violence. With this law, Missouri joins California, Colorado, Connecticut, Florida, Hawaii, Illinois, Kansas, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon and Washington as jurisdictions providing employment protection to victims of domestic and/or sexual violence, stalking, and the like.  

We’ve previously written about some of these laws here and here.

Key provisions of the Missouri law are as follows:

Covered employers under the law include the state or any agency of the state, political subdivision of the state, and private employers of at least 20 employees.

Covered employees.   Missouri employees are eligible as of date of hire.

Leave reasons and covered relationships. An employee is eligible to take leave under the law if the employee is a victim of domestic or sexual violence, or to care for a family or household member who is a victim of domestic or sexual violence. The law defines “family or household member” as:

  • Spouse
  • Parent
  • Son or daughter
  • Other person related by blood or by present or prior marriage
  • Other person who shares a relationship through a son or daughter, and
  • Persons jointly residing in the same household

Leave Duration. Employers with 20-49 employees must provide an employee 1 workweek of leave and employers with 50 or more employees must provide 2 workweeks of leave during any 12-month period. The employee can take the leave continuously, intermittently, or on a reduced schedule.

Leave is available for the following purposes for the employee or to assist the employee’s family or household member:

  • Seeking medical attention for, or recovering from, physical or psychological injuries caused by domestic or sexual violence to the employee or the employee's family or household member
  • Obtaining services from a victim services organization for the employee or the employee's family or household member
  • Obtaining psychological or other counseling for the employee or the employee's family or household member
  • Participating in safety planning, temporarily or permanently relocating, or taking other actions to increase the safety of the employee or the employee's family or household member from future domestic or sexual violence or to ensure economic security, or
  • Seeking legal assistance or remedies to ensure the health and safety of the employee or the employee's family or household member, including preparing for or participating in any civil or criminal legal proceeding related to or derived from domestic or sexual violence

Employee notice and documentation. An employee must provide at least 48 hours’ notice of the need for leave, unless providing advance notice is not possible. An employer may require documentation that an employee, or employee’s family or household member, is a victim of domestic or sexual violence. An employee may satisfy the documentation requirement by providing a sworn statement and:

  • Documentation from an employee, agent, or volunteer of a victim services organization, an attorney, a member of the clergy, or a medical or other professional from whom the employee or the employee's family or household member has sought assistance in addressing domestic violence or sexual violence and the effects of such violence;
  • A police or court record; or
  • Other corroborating evidence.

Employer’s Duty to Provide Safety Accommodations. The law imposes a duty on an employer to make reasonable safety accommodations in a timely manner resulting from circumstances relating to being a victim of domestic or sexual violence. The law defines reasonable safety accommodation as:

An adjustment to a job structure, workplace facility, or work requirement, including a transfer, reassignment, modified schedule, leave, a changed telephone number or seating assignment, installation of a lock, implementation of a safety procedure, or assistance in documenting domestic violence that occurs at the workplace or in work-related settings, in response to actual or threatened domestic violence.

Additionally, any exigent circumstances or danger facing the employee or his or her family or household member must be considered when determining whether the accommodation is reasonable. However,  the employer is under no such duty if it can demonstrate that the accommodation would impose significant difficulty or expense, when considered in light of the nature and cost of the accommodation.

Use of Other Paid Leave.  The law specifies that the leave is unpaid but is silent as to whether an employee can or must use accrued paid time off during a leave.   The safest interpretation will be to allow employee to use other accrued paid leave such as PTO or, in some cases, paid sick leave, at their option but not to mandate such use.

Confidentiality.  As with other similar laws, employers have a duty to maintain the confidentiality of information received about an employee’s status as a victim of domestic violence.

MATRIX CAN HELP!   At Matrix we’re always monitoring state legislatures to keep an eye on the state leave landscape. Our trained staff of absence management experts specialize in understanding the intersection of state and federal leave protections. We take various steps to maintain an employee’s (or victim’s) privacy and safety. For example, we administer these domestic and sexual violence laws under the name “Personal Protected Leave”. For more information about our leave management and accommodation solutions, contact your Matrix/Reliance Standard account manager now, or send us a message at ping@matrixcos.com.