On the night before Christmas Eve, the Colorado Department of Labor and Employment (CDLE) issued a surprise opinion that Colorado employers are required to provide still more paid sick leave for COVID-19 in 2021.  In its Interpretive Notice & Formal Opinion #6C (INFO #6C), CDLE opined that all Colorado employers would be required, as of January 1, 2021, to grant employees up to 80 more hours of paid sick leave for COVID-related absences pursuant to the Healthy Families and Workplaces Act (HFWA).  INFO #6C can be found here.

Background:

• In response to COVID-19, Section 406 of the HFWA required all Colorado employers, in 2020, to provide the Emergency Paid Sick Leave described in the federal Families First Coronavirus Response Act (FFCRA), without regard to the coverage provisions of the FFCRA. As a result, in 2020, Colorado employers of all sizes were required to provide up to 80 hours of paid sick leave for certain COVID-related absences described in the FFCRA.  That requirement under Section 406 expired with 2020.
• To address possible future pandemics, the Colorado General Assembly also included Section 405 in the HFWA. Under Section 405, “on the date a public health emergency is declared, each employer in the state shall supplement each employee’s accrued paid sick leave as necessary to ensure that an employee may take” up to 80 additional hours of paid sick leave for an expanded list of authorized absences.  That requirement was commonly understood to apply if a new public health emergency were
  

Employers with at least one employee in Colorado should remember that they are now required to comply with the pay transparency and promotion transparency requirements of the Colorado Equal Pay for Equal Work Act, which took effect January 1, 2021.  The governing regulations can be found at 7 CCR 1103-13.  In addition, the Colorado Department of Labor and Employment (“CDLE”) has issued Interpretive Notice & Formal Opinion #9 (“INFO #9”), a non-binding interpretation regarding these requirements (“INFO #9”), which can be found here.

Pay Transparency

All job postings must now include the hourly or salary compensation, or compensation range, for the position and a general description of the benefits and other compensation that will be provided to the successful applicant.  Employers may use electronic links to compensation and benefit information, rather than including that information in the posting itself.

If compensation is stated as a range, that range must represent the lowest and highest pay that the employer in good faith believes it might pay for that particular job.  Relying on stale data regarding the filling of such positions in the past, or using the same blanket “range” for all positions, will not suffice.

CDLE has opined in INFO #9 that employers must disclose only significant benefits (such as health care, pension and vacation) and not “minor perks” (such as use of an on-site gym or employee discounts).  INFO #9 also states that benefits may be described generally (e.g., “health insurance”) without

New reporting requirements for COVID-19 exposures at work became effective on January 1, 2021. The new requirements impose obligations for employers to notify employees (and employers of subcontracted employees) of COVID-19 exposures and to notify public health officials of outbreaks in the workplace. The new law also expands the authority of Cal/OSHA to close down a workplace, or portion of a workplace, if Cal/OSHA determines that it is unsafe due to COVID-19.  We have summarized below the details of the new requirements.

Closures, Prohibitions on Use, and Posting at the Workplace.  When a place of employment, operation, or process, or any part thereof, exposes workers to the risk of infection from COVID-19 which creates an imminent hazard, Cal/OSHA may prohibit entry  or prohibit the operation or process.

• The prohibition must be limited to the immediate area where the hazard exists.
• The employer must post the notice provided by Cal/OSHA in a conspicuous location in the workplace, and the notice may only be removed by Cal/OSHA after a determination that the place of employment, operation, or process is safe.

Notice to Employees. If an employer receives notice of a potential exposure to an individual who was infected with COVID-19 or was subject to an order to isolate, the employer must take all of the following actions within one business day of notice:

• The employer must provide written notice to all employees and contractors who were at the same worksite as the individual during the infectious period that they
  

The United States Department of Labor (DOL) wrapped up 2020 by issuing COVID-related guidance under both the Family and Medical Leave Act (FMLA) and the Families First Coronavirus Response Act (FFCRA).

FMLA Guidance

The DOL issued new FMLA guidance in the form of two “Field Assistance Bulletins” (FAB)[1], noting in a press release that the guidance is part of the DOL’s “ongoing efforts to support the American workforce through the pandemic recovery.”

In FAB 2020-7, the DOL addressed the employer notice provisions of various federal labor laws.[2]  With respect to the required posting of the general FMLA notice, the DOL explained that it will consider electronic posting by employers to satisfy the posting requirement when: (a) all hiring and work is done remotely; and (b) the employer posts the FMLA notice on an internal or external website that is accessible to all employees and applicants at all times.   To the extent an employer has a hybrid workforce (i.e. employees who work remotely and employees who work on-site), the DOL encourages employers to use electronic postings to supplement, not replace, their posting requirement of the general FMLA notice.

In FAB 2020-8, the DOL indicated that it will continue to apply a policy previously adopted in response to the pandemic on the subject of telemedicine and the “in-person” visit aspect of the definition of serious health condition under the FMLA.  The DOL will consider a telemedicine visit to constitute an “in-person” visit so long as the

Late last night, President Trump signed the newest COVID relief bill into law.  The new law amends several federal relief laws, including the Families First Coronavirus Response Act (“FFCRA”).  Specifically, employers who voluntarily provide FFCRA benefits after the end of the year may receive tax credits for qualifying leave provided through March 31, 2021.

Additional information about the FFCRA amendments in the new law is available here.  We will continue to monitor developments, including any relevant guidance that the Department of Labor may publish.

BCLP has assembled a COVID-19 HR and Labor & Employment taskforce to assist clients with labor and employment issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com.   You can also view other thought leadership, guidance, and helpful information on our dedicated COVID-19 / Coronavirus resources page at https://www.bclplaw.com/en-GB/topics/covid-19/coronavirus-covid-19-resources.html

Late on December 21, 2020, Congress passed a new federal COVID relief bill, which, if signed into law, would amend a number of laws, including the Families First Coronavirus Response Act (“FFCRA”).  The FFCRA currently requires covered employers to provide eligible employees with paid sick leave and partially paid emergency family and medical leave benefits through December 31, 2020.

Notably, the new bill does not extend the FFCRA’s mandate that employers provide such leave beyond the end of the year.  Instead, the new bill allows covered employers to receive a tax credit for leave that they voluntarily provide to employees from January 1, 2021 through March 31, 2021, if such leave would otherwise be covered by the FFCRA.

In practice, this means that if the new bill becomes law, under federal law:

• Employers will not be required to provide paid sick leave or partially paid emergency family and medical leave under the FFCRA beyond December 31, 2020.
• Employers may voluntarily provide paid sick leave or partially paid emergency family and medical leave under the FFCRA after December 31, 2020.
• If an employer voluntarily provides such leave benefits after December 31, 2020, they may be eligible for a tax credit for leave taken between January 1, 2021 and March 31, 2021.
• Tax credits are only available for leave that would otherwise be covered by the FFCRA (i.e., the employee is eligible for leave, the need for leave is for a covered reason, the employee has leave available, etc.).
• If
  

As 2020 is nearing an end, so too are the leave entitlements available to certain employees under the federal Families First Coronavirus Response Act (FFCRA).  Below are key points to keep in mind as we approach this end date, along with recommendations for 2021:

• FFCRA leave is available only through December 31, 2020.
• Any leave taken beyond December 31, even if for a qualifying reason, and even if the leave begins before December 31, is not FFCRA leave.
• Tax credits under the FFCRA are not available for leave that occurs after December 31.
• Continue to review requests for FFCRA leave through the end of December carefully to ensure the employee has a qualifying reason for leave.
• As schools begin to close for winter break, employers should be mindful that an employee is not eligible for FFCRA leave if the leave request is based solely on a school closure due to winter vacation or the end of an academic semester, as these are not “COVID-19 related reasons.”
• FFCRA leave is essentially “use it [for a qualifying reason] or lose it.” Employees are not entitled to either “carry over” unused FFCRA leave into 2021 or be paid out for any such unused leave.
• Prepare for 2021 by:
  • Considering potentially applicable state and local laws which may provide leave rights in COVID-19 related situations.
  • Identifying your company’s strategy for handling COVID-19 related leave requests, under existing or perhaps new policies. Ensure consistency among similarly-situated employees.
  • Determining whether to communicate with employees
    

In our blog on 5 November 2020, we flagged that further government guidance on the extended Coronavirus Job Retention Scheme (“CJRS”) would be provided on 10 November 2020. HMRC has now published that guidance.

Key details of the government guidance

The updated guidance includes the following key details:

• During the period 1 November 2020 to 31 January 2021, the government furlough grant will pay 80% of wages for hours not worked up, capped at £2,500 per month. Employers will be liable for employer National Insurance contributions and employer pension contributions only. The government will review the terms of the scheme in January 2021 and may then require that employers make a contributions towards wages (as it did under the original scheme).  This is likely to be dependent on the state of the economy and the general prevalence of the virus.
• The extended CJRS applies to employees who were employed as at 30 October 2020, as well as employees who were made redundant or stopped working on or after 23 September 2020, if they are then re-employed by their employer.
• Employers can make a claim under the extended furlough scheme in relation to employees who have not previously been furloughed and claimed for, and there is no cap on the number of employees that an employer can claim for under the extended scheme.
• The scheme is fully flexible – employers can furlough employees for any amount of time and any work pattern.
• Any claims under the initial CJRS
  

As we reported previously, on 12 May 2020 the Chancellor of the Exchequer announced that the Coronavirus Job Retention Scheme (“CJRS”) would be extended until 31 October 2020.  With just over 5 weeks until the CJRS ends, the Chancellor of the Exchequer has, today, made an announcement setting out the government’s package of measures designed to protect UK jobs through the winter.

Job Support Scheme

With effect from 1 November 2020, the new Job Support Scheme (“JSS”) will come into force.  The key details of the JSS are as follows:

• It is designed to support the wages of employees who are in viable jobs, but on shorter working hours.
• Employees must work at least 1/3 of their normal working hours and be paid by their employer for those hours.
• For the hours not worked, the government and the employer will each pay one third of an employee’s salary.
• The level of grant will be calculated based on an employee’s usual salary, capped at £697.92 per month.
• All small and medium enterprises are eligible to participate in the JSS.
• Larger businesses, whose turnover has fallen as a result of coronavirus, are also eligible to participate in the JSS, subject to complying with certain conditions, including restrictions on capital distributions to their shareholders.
• The JSS is open to all employers, including those who have not participated in the CJRS.
• The JSS will remain in force for 6 months from 1 November 2020.
• Employers will not be permitted to issue notices
  

On September 9, California Governor Newsom signed a bill that establishes COVID-19 supplemental paid sick leave (“COVID-19 PSL”) for California workers generally not covered by the federal Families First Coronavirus Response Act (“FFCRA”).

Important Dates

Employers are required to begin providing COVID-19 PSL by September 19.

Employers must also post a notice in their workplace by September 19.  If employees are not physically present in the workplace, the employer may disseminate the notice electronically.

Starting in the first pay period after September 9, employers must provide notice in a wage statement (or a separate writing provided on pay day) of an employee’s available COVID-19 PSL each pay period.

The requirement to provide COVID-19 PSL expires on December 31, 2020 or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA.

Covered Employers & Employees

California’s new law applies to private employers with 500 or more employees in the United States.  It also applies to any public or private entity that employs health care providers or emergency responders and that has elected to exclude such employees from emergency paid sick leave under the FFCRA.

Workers are entitled to COVID-19 PSL only if they are (1) employed by a covered employer AND (2) leave home to perform work for their employer.

Reasons for Leave

Employees are entitled to COVID-19 PSL when they are unable to work because they:

• are subject to a federal, state, or local quarantine or isolation order related