On April 1, 2021, the government of Ontario activated its pandemic “emergency brake,” sending the entire province out of the five-tiered colour-coded framework and into the “shutdown” zone. The province implemented these shutdown zone measures on April 3, 2021, and they will remain effective “for at least four weeks.”
On April 5, 2021, Director of Ohio’s Department of Health (ODH), Stephanie McCloud, issued two new orders, including a consolidated Director’s Order for Social Distancing, Facial Coverings and Non-Congregating and a Director’s Order Rescinding Various Orders. The orders went into effect on April 5, 2021, and the Order for Social Distancing, Facial Coverings and Non-Congregating will remain in force until the ODH modifies or rescinds it.
On April 2, 2021, the U.S. Centers for Disease Control and Prevention (CDC) announced updated guidance on domestic and international travel. The guidance includes new recommendations for those fully vaccinated (defined as two weeks after the second dose in a two-dose series or two weeks after a single-dose vaccine) with a vaccine that the U.S. Food and Drug Administration (FDA) has authorized.
On March 10, 2021, nearly one year into the pandemic in the United States, the Mine Safety and Health Administration (MSHA) issued its first comprehensive guidance addressing COVID-19 protections for mine sites.
The ongoing COVID-19 pandemic has resulted in numerous presidential proclamations restricting travel and entry into the United States. Likewise, since the pandemic began, the criteria for “national interest exceptions” (NIEs) has also evolved. On March 2, 2021, the U.S. Department of State issued updated criteria for NIEs relating to certain travelers from the Schengen Area, United Kingdom, and Ireland. Given the frequency of the changes, it can be difficult to track the current state of these matters. The following information is a summary of the latest updates with regard to U.S. travel restrictions.
On March 18, 2021, the Biden administration extended ongoing travel restrictions along the United States-Canada and United States-Mexico land ports of entry through April 21, 2021. The restrictions, which were previously set to expire on March 21, 2021, prohibit all “non-essential” travel from entering the United States to prevent the spread of COVID-19. These restrictions have been in effect since March 21, 2020.
There is an old saying in Washington, D.C., that personnel is policy. It is common sense: whoever is in charge of a federal agency or subagency will impart his or her own particular policy preferences on the agency’s priorities, resource allocation, and regulatory agenda. In the current hyper-partisan political environment, where the U.S. Congress has ceded much of the federal policymaking apparatus to the federal agencies, this old saying is even more appropriate. The situation is more complicated, however, when talking about agencies that are helmed by bipartisan boards or commissions. One such agency is the U.S. Equal Employment Opportunity Commission (EEOC), where a continuing Republican majority plays a significant role in policy developments and prevents Democratic members from completely gaining control of the agency.
Philadelphia’s newest Public Health Emergency Leave law went into effect on March 29, 2021. Unlike the prior iteration of the law that sunset on December 31, 2020, this law will stay in effect “for the duration of the COVID-19 pandemic.”
Mexico’s federal government continues to relax restrictions on business and social activities in accordance with the four-tiered national traffic light monitoring system as COVID-19 pandemic conditions continue to improve in Mexico’s states.
During his January 2021 State of the State address, Arizona Governor Doug Ducey called for “COVID liability protection, so that a statewide emergency doesn’t line the pockets of trial attorneys with frivolous lawsuits.” On March 30, 2021, the Arizona State Legislature answered Governor Ducey’s call and passed Arizona’s pandemic-related liability shield legislation. Senate Bill (SB) 1377 establishes civil immunity for employers and health care providers for actions (or omissions to act) related to “a public health pandemic that is the subject of the state of emergency declared by the Governor.”
The U.S. Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) published EBSA Disaster Relief Notice 2021-01 in the nick of time on February 26, 2021. EBSA Disaster Relief Notice 2021-01 was released just two days before the date that certain benefit plan deadline extensions were potentially expiring. The DOL and the Internal Revenue Service (IRS) issued joint guidance on May 4, 2020, which provided that certain employee benefit plan deadlines for participants would be tolled or suspended during the COVID-19 “Outbreak Period,” which began on March 1, 2020, and which ends 60 days after the end of the COVID-19 national emergency. Certain deadlines applying to plan administrators were also tolled last year as set forth in EBSA Disaster Relief Notice 2020-01.
On March 12, 2021, New York State enacted a law that requires all employers to provide their New York employees with up to four hours of paid time off per injection to receive a COVID-19 vaccine. At the time of enactment, the law did not provide guidance on certain key issues. Recently, the New York State Department of Labor published answers to some questions that many employers have been asking.
The U.S. District Court for the Northern District of Alabama recently granted summary judgment to United States Steel Corporation, finding that the company did not deny Raymond Carr III, a former employee with chronic obstructive pulmonary disease (COPD), a reasonable accommodation or constructively discharge him for requesting an accommodation and filing a charge with the U.S. Equal Employment Opportunity Commission (EEOC).
On March 2, 2021, the City Council of San Diego, California, extended the “COVID-19 Worker Recall and Retention Ordinance” (O-21231/O-2021-20). The ordinance provides certain rights and preferences to hotel and janitorial workers affected by the COVID-19 pandemic. The ordinance originally took effect on September 8, 2020, and was set to expire on March 8, 2021. However, given the extraordinary loss of jobs in San Diego in the building services, leisure, and hospitality industries, the city council opted to extend the ordinance’s sunset provision until March 8, 2022, by way of an emergency ordinance (O-21296/O-2021-97).
On March 16, 2021, the City Council of Costa Mesa, California, passed an urgency ordinance establishing premium pay for retail grocery and pharmacy workers during the COVID-19 pandemic. Costa Mesa is a large city in Orange County located southeast of Los Angeles. The ordinance requires that large retail establishments that sell groceries or prescription and nonprescription drugs in Costa Mesa provide their workers with premium pay of $4.00 for each hour worked. The ordinance took effect immediately and will expire 120 days from its effective date.
On February 26, 2021, the U.S. Department of Labor (DOL), U.S. Department of Health and Human Services (HHS), and the U.S. Department of the Treasury issued guidance entitled “FAQs About Families First Coronavirus Response Act and Coronavirus Aid, Relief, and Economic Security Act Implementation Part 44.” The guidance addresses frequently asked questions (FAQs) that stem from the requirements under the FFCRA and CARES Act that group health plans and issuers cover COVID-19 testing (including certain related items and services) and vaccinations without cost sharing during the public health emergency declared by HHS. The declared public health emergency is expected to be in place until at least the end of 2021.
The New Jersey Division on Civil Rights (DCR) is the state agency responsible for enforcement of the New Jersey Family Leave Act (NJFLA). The NJFLA provides eligible employees up to 12 weeks of job-protected leave during any 24-month period: (1) to bond with a child within 1 year of the child’s birth or placement for adoption or foster care; (2) to provide care to a family member or one who is the equivalent of a family member who has a serious health condition or has been isolated or quarantined because of suspected exposure to a communicable disease during a state of emergency; or (3) to provide care or treatment for a child if the child’s school or place of care is closed by order of a public official due to an epidemic of a communicable disease (such as COVID-19) or other public health emergency.
Beginning March 29, 2021, California employers with more than 25 employees nationally will have to pay their California employees with up to 80 hours of COVID-19–related paid leave. On March 19, 2021, Governor Gavin Newsom signed Senate Bill (SB) 95, which creates new California Labor Code Sections 248.2 and Section 248.3.
Within days, California employers may have to provide employees with even more COVID-19–related paid leave. On March 18, 2021, the California Legislature passed Senate Bill 95, which creates new Labor Code Section 248.2 and Labor Code Section 248.3. These new Labor Code sections provide covered employees and in-home supportive service providers with up to 80 new hours of COVID-19 supplemental paid sick leave. As explained below, the bill is far more expansive than the California COVID-19 supplemental paid sick leave statute that expired on December 31, 2020. The new legislation covers more employers and requires paid sick leave for many more reasons. If Governor Newsom signs SB 95, the law will take effect 10 days later and expire on September 30, 2021, unless extended.
Pandemic conditions in Mexico are continuing to improve, prompting the federal government and local governments to ease restrictions on business and social activities in accordance with the four-tiered traffic light monitoring system, which is updated every other week.
On March 12, 2021, Minnesota Governor Tim Walz dialed back Minnesota’s COVID-19–related restrictions by issuing Emergency Executive Order (EO) 21-11, “Adjusting Limitations on Certain Activities and Taking Steps Forward.” Most provisions of the executive order went into effect on March 15, 2021, and relate to activities outside of the home, including relaxing restrictions on specific businesses (e.g., restaurants, bars, indoor gyms, and entertainment venues).
On February 26, 2021, the U.S. Department of Labor, along with the U.S. Department of Health and Human Services and the U.S. Department of the Treasury, issued answers to new frequently asked questions (FAQs) interpreting certain provisions of the Families First Coronavirus Response Act and the Coronavirus Aid, Relief, and Economic Security (CARES) Act. This article reviews the portion of the FAQs that directly apply to employer vaccination incentive programs. Previous guidance addressed coverage requirements for COVID-19 vaccines and diagnostic testing.
The American Rescue Plan Act of 2021 (ARPA), which became law on March 11, 2021, provides a 100 percent subsidy of premiums under the Consolidated Omnibus Budget Reconciliation Act (COBRA) beginning on April 1, 2021, through September 30, 2021, with employers to recoup the missing premiums through Medicare tax credits.
On March 11, 2021, President Joe Biden signed the American Rescue Plan Act of 2021 (ARPA). The ARPA is the latest installment of COVID-19–related stimulus packages passed by Congress in the last 12 months. Similar to the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES) Act, the ARPA contains a number of employee benefit plan and executive compensation provisions, which are highlighted below.
During the global COVID-19 pandemic, California Division of Occupational Safety and Health (Cal/OSHA) inspections have required greater coordination of personal protective equipment (PPE), remote witness interviews, social distancing at facilities, and visitor screenings. Wouldn’t it be more efficient if Cal/OSHA could call and arrange a worksite visit and witness interviews in a coordinated manner—saving money and resources while managing safe entry into a facility?
On March 4, 2021, the California Department of Fair Employment and Housing (DFEH) updated its “DFEH Employment Information on COVID-19” to include answers to some of the frequently asked questions (FAQs) about vaccinations.
On March 15, 2021, the City Council of West Hollywood added new categories of workers to its existing hero pay mandate of $5.00 per hour worked for large-chain grocery store employees. The new ordinance goes into effect on April 16, 2021, and expires on August 16, 2021.
The California Department of Industrial Relations (DIR) recently updated its “Guide to COVID-19 Related Frequently Asked Questions [FAQs]” to include wage and hour issues and vaccinations.
On March 1, 2021, the City Council of San Mateo, California, adopted “An Emergency Ordinance Requiring Large Grocery Stores and Large Drugstores to Provide Hazard Pay to their Employees” to ease the burdens caused by the COVID-19 pandemic. San Mateo is an incorporated city located in the San Francisco Bay Area.
We had pondered when this day would come. The doomsday scenario that the Pension Benefit Guaranty Corporation (PBGC) would become insolvent in five to six years is now old history. (The new estimated time of PBGC insolvency is the mid-2040s.) Plan participants, the plans, employers, unions, and the PBGC had all been patiently waiting for relief—and they have apparently been rewarded with the relief they were seeking.