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US COVID-19: COVID-Related Leave – When Does The FMLA Apply?

COVID-19 has led to significant employee absences from the workplace.  While the federal Family and Medical Leave Act (FMLA) may well apply to certain such absences, employers must avoid the temptation to count all COVID-related leave against employees’ FMLA entitlement without considering the specific circumstances.  Over-designating absences as FMLA leave when the FMLA does not actually apply can create just as many legal issues as failing to designate covered absences under the FMLA.

For example, an FMLA interference claim may result if an employee is denied additional FMLA leave after the employee’s FMLA entitlement is exhausted due to absences that did not truly count as FMLA leave.  Conversely, by offering FMLA protections when the FMLA does not apply, employers may be establishing a right to reinstatement or other benefits when no such right should exist.  At a minimum, improperly designating absences as FMLA leave can create confusion and administrative nightmares.

Accordingly, COVID-related absences must be evaluated carefully and designated as FMLA leave only in appropriate circumstances.  As a general overview – but with the caveat that this post is not intended to provide legal advice concerning specific situations – below are examples of COVID-related situations in which the FMLA typically will, and typically will not, apply (assuming employer coverage and employee eligibility).  Employers with specific questions about FMLA coverage for an employee’s absence should consult with legal counsel.

Leave Likely To Be FMLA-Protected Leave Not Likely To Be FMLA-Protected Employee has symptomatic COVID-19 that renders employee unable to work for

Coronavirus (UK): Is ‘long-covid’ likely to be classed as a disability under the Equality Act?

This post considers whether ‘long-covid’ is likely to be classed as a disability under the Equality Act 2010, and provides practical guidance for employers.

At the time of writing, it is estimated that approximately 100 million people have now contracted Coronavirus. Whilst the majority of those infected go on to make a full recovery, some suffer continuing symptoms once the initial infection has gone. These symptoms are commonly referred to as “long-covid”. According to the NHS, some of the most commonly encountered symptoms of long-covid include; (i) extreme tiredness; (ii) shortness of breath; and (iii) problems with memory and concentration. A recent study estimated that there are currently 60,000 people in the United Kingdom alone suffering from long-covid.

Ultimately, some of those suffering from long-term health conditions may be classed as disabled under the Equality Act 2010 (“EQA”). This article considers the circumstances in which long-covid would classified as a disability under the EQA.

Definition of a disability under the EQA

The EQA prohibits discrimination in respect of numerous protected characteristics, including disability. Section 6 and Schedule 1 of the EQA define a “disability”. It is important to note that the legal definition of disability does not always reflect what people may ordinarily class as a disability, and attention should be paid to the legal definition to prevent individuals who are not suffering from symptoms typically associated with a disability being overlooked.

Some conditions do not need to meet the legal test as they are classed as “deemed disabilities”.  These

U.S. COVID-19: OSHA Issues Guidance Addressing Mitigation and Prevention of COVID-19 in the Workplace

Partner and Practice Group Leader, Energy, Environment and Infrastructure, Bryan Keyt; Partner Brandon Neuschafer; and Associate David Brankin wrote an article on OSHA’s new guidance to help employers better identify risks of being exposed to and/or contracting COVID-19 and to ascertain appropriate control measures employers can implement to address those risks.

Click here to read the full article.

Coronavirus (US): Key vaccination issues for employers – Part 3

As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 3 of the three-part article, we address more of the most commonly asked questions.

As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

(Click here to see Part 1, questions 1-6 and Part 2, questions 7-12)

(13) Should employers have a written policy or program? What about training?

Yes and yes.  Having a written policy or program will help ensure that employees have notice of the program and understand how and when the program applies to them and the ramifications of non-compliance.  It can also establish a process for requesting an accommodation and emphasize the employer’s commitment to legal considerations, such

Coronavirus (US): Key vaccination issues for employers – Part 2

As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 2 of the three-part article, we address more of the most commonly asked questions.

As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

(Click here to see Part 1, questions 1-6.)

(7) What must an employer do if an employee refuses vaccination for a reason that requires a reasonable accommodation analysis (e.g. disability, religion, pregnancy, others)?

It depends.  Accommodation analyses are highly fact-specific, so will vary for each individual employee.  Nonetheless, employers should remember that they will not be required to:

  • provide an accommodation that would allow the employee to avoid performing essential job functions;
  • provide an accommodation if it would

Coronavirus (US): Key vaccination issues for employers – Part 1

As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 1 of the three-part article, we address six of the most commonly asked questions.

As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

(1) May an employer require employees who will be present on company property to obtain a vaccine when it becomes readily available to the general public?

Generally, yes; provided that employers comply with their obligations to accommodate employees with religious objections (under Title VII of the Civil Rights Act (Title VII)), a disability (under the Americans with Disabilities Act (ADA)), or other protected statuses under applicable federal or state law.   Notably, even when accommodations are not warranted, employees must be

Coronavirus (UK): 10 key vaccination issues for employers

1. Can an employer require an employee to be vaccinated?

No.  The Public Health (Control of Disease) Act 1984 provides that individuals must not be compelled to undergo any mandatory medical treatment or vaccination.  In addition, employees may have the protection of Article 8 of the European Convention on Human Rights which provides that individuals have the right to not be physically or psychologically interfered with.  Furthermore, any forced vaccination is likely to amount to a criminal offence.

ACAS guidance advises that employers should support staff in getting the vaccine, but cannot force them to be vaccinated.

2. What are the discrimination risks associated with vaccination?

Discrimination issues may arise either as a result of compelling employees to take the vaccine or putting in place measures which are detrimental to those employees who have not taken the vaccine.

The two key risks are likely to be disability discrimination (where an employee is unable to get the vaccine because of a health condition) and religious or philosophical belief discrimination (where, for example, there may be concerns for vegan employees due to animal testing on the vaccines).

3. What impact will vaccination have on the COVID-secure workplace?

As well as the fact that no vaccine will be 100% effective, there will be populations in the workforce who cannot or will not be vaccinated.  Accordingly, employers should be cautious (irrespective of government guidance on the point) about removing any COVID-secure measures in the medium to long term.

4. Can employers contractually oblige employees

For the New Year, Colorado Makes COVID-19 the Gift That Keeps Giving (Paid Time Off)

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

REMINDER: Colorado Now Requires Disclosure of Compensation and Benefits with All Job Postings and Advance Notice of Promotional Opportunities

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

REMINDER: New COVID-19 Reporting Obligations for California Employers Took Effect January 1, 2021

January 12, 2021

Categories

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
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