By KarlaGrossenbacher, Jennifer A.Kraft, and Benjamin J.Conley

Seyfarth Synopsis: As COVID-19 vaccines become more readily available in coming months, employers are exploring ways to maximize vaccination rates within their workforce.  Some employers are  considering making vaccination mandatory.  Be sure to read our alert for more relating to legal considerations involved with a mandatory vaccination program.  Other employers are considering simply encouraging employees to get vaccinated, offering a voluntary vaccination program, or even offering an incentive to employees who receive the vaccine as part of a workplace wellness program.  Employers should be aware of the existing (and recently proposed) Americans with Disabilities Act (ADA) guidelines that may impact the design of any such program.

Background – ADA Restrictions on Wellness Programs

As described in greater detail here, the ADA applies to employer-sponsored wellness programs that include a medical exam or disability-related inquiry.  The ADA generally permits employers to make medical examinations or inquiries in connection with a wellness program, but only if such program is “voluntary.”  Under EEOC guidelines, that means:

  • The program is reasonably designed to promote health or prevent disease, is not overly burdensome, and is not a subterfuge for discrimination.
  • The program is not a “gateway plan”, requiring employees to submit to a medical exam or inquiry in order to access an enhanced benefits package.
  • The program offers a reasonable accommodation to persons for whom it is medically inadvisable to participate
  • Participants are provided with a notice informing them of why their information is being requested, how it will be used, and how it will be protected.
  • Incentives are limited.

The final requirement, relating to the level of permitted incentives, is in a state of flux.  Until 2016, there were no guidelines on how much of an incentive could be offered to encourage participation in a wellness program.  In 2016, however, the EEOC finalized regulations that would permit an incentive of up to 30% of the cost of self-only coverage under the employer’s health plan.  Those regulations were challenged by the AARP, however, and were ultimately struck down by the District Court who ordered the EEOC to reissue guidelines that engage in a more thorough process detailing how it determined that the incentive level met the ADA’s voluntary standard.

Last week, the EEOC issued a Notice of Proposed Rulemaking that would limit any incentives offered in a connection with a participation-only wellness program (i.e., one where participants are simply required to submit to a medical exam or inquiry but not required to achieve any particular outcome) to a “de minimis” threshold.  Examples of permissible incentives in the proposed regulations included a water bottle or a gift card of modest value.

Analysis of ADA’s Applicability to a Vaccination Program

The EEOC updated its Technical Assistance document on December 16, 2020, to provide that  the administration of a vaccine, in and of itself, does not constitute a medical examination.  That said, vaccine administration is almost always accompanied by medical questions to ascertain whether the person is susceptible to an allergic reaction, etc.  That type of inquiry could constitute a disability-related inquiry and therefore would be subject to restrictions under the ADA if the information is solicited by the employer or by an entity administering the vaccine to employees pursuant to a contract with the employer.

However, the ADA can be avoided altogether if the employee gets vaccinated by a third party provider who is not under a contract with the employer to administer the vaccine because the medical pre-screening questions are not attributed to the employer under this scenario.  Thus, an employer could structure its wellness program to provide a financial incentive to participants to receive a vaccine from a third-party vendor, not under contract with the employer (e.g., a local pharmacy chain), without running afoul of the ADA.  While the employer could require proof that the individual received a vaccination, that should not trigger ADA restrictions because, as noted above, vaccination status is not, in and of itself, a medical examination or inquiry under the ADA.

Duty to Accommodate

Current EEOC regulations on wellness programs require accommodation for disabilities absent undue hardship.  Although the proposed regulations on wellness programs do not address accommodations on the basis of religion, presumably the EEOC’s position on accommodation would be the same and the language from the current regulations regarding accommodation remains unchanged.  While current EEOC regulations do not specify what type of accommodation must be offered in a vaccination scenario, presumably the employer would have to come up with an accommodation that is an alternative requirement to getting the vaccine, such as wearing a mask, getting weekly COVID tests and social distancing, so the person with the disability-related or religious objection can earn the incentive.

Of course, the duty to accommodate would generally only be implicated in situations where an individual is actually unable to get the vaccine due to a disability (or potentially a bona fide religious objection) and reasonable accommodation need only be made absent undue hardship.  The viability of any such claim may be impacted by what the FDA says about any vaccine it approves in terms of any medical contraindication.

Level of Permitted Incentive

At present, it is unclear what level of incentive would be considered voluntary under ADA guidelines.  Prior regulations permitting incentives up to 30% of the cost of health coverage were invalidated by the courts.  The newly proposed regulations only permitting de minimis incentives are in proposed form, and the EEOC has stated that they are “simply proposals and they do not change the law or regulations.”  Further, there’s a possibility these regulations could be frozen by the incoming Biden Administration and/or revised before taking final form.  In any event, it’s unlikely the regulations would be finalized before more broad-based vaccine rollouts take place.

Even so, there is some risk that a plaintiff could seize upon this proposed regulations to argue that any incentive that exceeds a de minimis threshold is involuntary.  To be clear, the current regulations are only in proposed form and, as noted, the EEOC has made clear it is not “law.”  Further, courts can defer to, but often do not follow EEOC regulations.  But, employers should keep this proposal in mind as they implement an incentive-based COVID vaccination program.

By Christina Jaremus and Erin Dougherty Foley

Seyfarth Synopsis: In Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038 (10th Cir. 2020), the Tenth Circuit reversed dismissal and summary judgment in favor of Affinity Gaming Black Hawk, LLC (Affinity) on three of four discrimination claims brought by former Casino employees. The basis for the Court’s decision highlights several key takeaways for employers to consider in responding to discrimination claims after implementing layoffs.

The Frappied Plaintiffs were nine employees, eight women and one man, working at the Golden Mardi Gras Casino (Casino) in Blackhawk, Colorado. In 2012, Affinity purchased the Casino in 2012, and took over its operations in November. In January 2013, Affinity laid off many of the Casino’s employees, including the nine Plaintiffs. All of the Plaintiffs were over 40 years of age when Affinity terminated their employment. It was not a reduction in force. Affinity posted an advertisement listing 59 open positions and hired a large percentage of employees in their twenties. The female Plaintiffs brought “sex-plus-age” disparate impact and disparate treatment claims under Title VII of the Civil Rights Act of 1964 (Title VII), and all nine Plaintiffs brought disparate impact and disparate treatment claims under the Age Discrimination in Employment Act (ADEA) for age discrimination. The district court granted Affinity’s motion to dismiss the Title VII sex-plus-age claims and the ADEA disparate impact claim and granted summary judgment in favor of Affinity on the remaining disparate treatment ADEA claim.

The Tenth Circuit reversed all of the district court’s dismissals except the dismissal of the Title VII disparate treatment claim. Below are the key takeaways from the decision.

1. Sex-Plus-Age (or Another Factor) is a Cognizable Combination Claim Under Title VII Even if the “Plus” Factor Isn’t Protected by Title VII. It is no surprise that Title VII prohibits discrimination based on a combination of characteristics protected by Title VII, such as “sex-plus-race” discrimination, i.e., discrimination targeted only at employees of a particular race and sex. In Frappied, the “sex-plus” claim was based on sex discrimination combined with age discrimination. Age is not a protected characteristic under Title VII. Regardless, the Tenth Circuit noted that Title VII forbids “sex-plus” discrimination even when the “plus” characteristic is not protected under Title VII. The United States Supreme Court has recognized discrimination against women when the employer refused to hire women with preschool-age children, but not men with preschool-aged children. This was true even though Title VII does not prohibit discrimination against people with preschool-age children as a class.

As long as sex plays a role in the employment action, it is of no significance that a discriminatory factor other than sex might also be at work, even if that other factor plays a more important role than sex in the employer’s decision. Put in another way, as the U.S. Supreme Court explained in Bostock v. Clayton Cty., Ga., ––– U.S. ––––, 140 S. Ct. 1731, 1739, 1742 (2020), if a hypothetical employer has a policy under which it fires all Yankees fans, a termination based solely on that policy is because of status as a Yankee fan, not because of sex. But if its policy is to fire only female Yankees fans, it engages in prohibited discrimination because such terminations are based in part on sex.

In Frappied, the Tenth Circuit held that the sex-plus-age claims are cognizable under Title VII and reversed the district court’s dismissal of the Plaintiff’s Title VII disparate impact claims. It rejected Affinity’s argument that plaintiffs should not be able to bring Title VII sex-plus-age claims because of the availability of relief for age-based animus under the Age Discrimination in Employment Act, noting that each statute addresses different harms. The Court noted that recognizing “intersectional” claims best effectuates congressional intent to prohibit discrimination in its entirety.

However, it upheld the district court’s dismissal of plaintiffs’ Title VII disparate treatment claims because the lawsuit did not include any specific factual allegations that would suggest that Affinity discriminated against any individual plaintiff or the plaintiffs as a group because of sex. The lawsuit included statistical data, but it did not suffice to raise a plausible inference of sex discrimination because the Plaintiffs did not exclude younger workers in their statistical analysis. Instead, the statistics the Plaintiffs included in their lawsuit reflected at least three possibilities: discrimination based on: (1) sex alone, (2) a combination of sex and age, or (3) age alone. Because the plaintiffs did not compare older women to only older men, the statistics did not give rise to a plausible inference of discrimination because of sex necessary to allege a disparate treatment claim under Title VII.

2.  A “Sex-Plus” Plaintiff Need Not Show Discrimination Against an Entire Subclass. Citing Bostock, the Tenth Circuit also clarified that in order to prevail in a “sex-plus” claim, a female plaintiff does not need to prove that the subclass of women to which she belongs was unfavorably treated as compared to the corresponding subclass of men. Rather, if a sex-plus plaintiff shows that she (individually) would not have been terminated if she had been a man—in other words, if she would not have been terminated but for her sex—this showing is sufficient to establish liability under Title VII.

3.  Pay Attention to Lay-Off Demographics When Reorganizing Involves Rehiring. In Frappied, the district court dismissed the Plaintiffs’ disparate impact age discrimination claims because it concluded that the Plaintiffs did not offer statistics or data regarding the alleged disparate impact of age-neutral employment policies. The Tenth Circuit reversed. It found that the complaint alleged sufficient data to raise an inference of a disparate impact based on age. The Court found that the Plaintiffs provided data that showed Affinity laid off 67% of its workers forty or older and only 48-49% of its workers under 40. The statistical evidence also showed that there was less than a 5% chance that the correlation between age and termination was the product of random chance. The Court found that Plaintiffs’ claim was further buttressed by their allegations regarding the ages of the new hires who replaced Plaintiffs and the other terminated employees, 71% percent of whom were in their twenties. In short, when conducting layoffs where some employees may be rehired, pay attention to the relevant demographics of the employees who are laid off and rehired–a Plaintiff can plausibly allege an age-based disparate impact claim by alleging statistical evidence plus comparator (rehire) evidence.

4.  In the Absence of Individual Comparator Evidence, a Plaintiff in an Age Discrimination Disparate Treatment Claim Can Survive Dismissal By Showing That For Any Given Position, New Hires Were Materially Younger. The Tenth Circuit also reversed the district court’s decision to grant summary judgment to Affinity on Plaintiff’s disparate treatment age discrimination claims. Because many of the job positions were interchangeable and many of the terminated employees were fired on the same date, it was next to impossible for the Plaintiffs to ascertain who replaced whom. However, the Tenth Circuit found that because there was no clear one-to-one correlation between the terminated employees and the new hires, it would not require each plaintiff to show he or she was individually replaced by a significantly younger employee. Rather, the Plaintiffs needed only demonstrate that for any given position (even considering non-plaintiff data), the new hires were significantly younger than the terminated employees, which the Court found the Frappied Plaintiffs plausibly alleged.

5.  Be Consistent About the Basis for an Employee’s Termination. The Tenth Circuit also found that the Plaintiffs presented sufficient evidence to raise a genuine issue of material fact that Affinity’s proffered legitimate, nondiscriminatory reasons were pretextual because, in part, its reasons for terminating the Plaintiffs did not match the reasons given at the time of termination. (“The inconsistencies between Affinity’s contemporaneous stated reasons and its detailed post-hoc explanations for terminating Plaintiffs could support a jury’s finding that Affinity lacks credibility.”) In establishing a defense to any discrimination case, shifting explanations for the reasons an employee was terminated may be viewed suspiciously by a Court (and by a jury).

If you are navigating the legal implications of taking over a business previously owned by another company and making layoffs or other changes to the existing workforce, proceed with caution and (it’s strongly recommended) on the advice of counsel.

For more information on this or any related topics, please contact the authors, your Seyfarth attorney, or any member of Seyfarth Shaw’s Employment Law group.

By A. Scott Hecker

Seyfarth Synopsis: The EEOC recently issued guidance to employers considering mandating that their employees receive the COVID-19 vaccine. Employers are also left with other considerations, including how to address temporary workers at their worksites, whether FDA emergency use authorizations change the vaccine calculus, and how state laws may impact decision-making. We address some of the additional nuances to this fluid situation.

Seyfarth offered a comprehensive review of the EEOC’s December 16, 2020 guidance on whether employers can mandate that their employees receive the COVID-19 vaccine.  With this guidance in hand, and the prospect of widespread distribution of vaccines in 2021 on the horizon, employers are exploring their options for developing vaccination programs. Seyfarth has received a number of frequently asked questions from clients, both pre- and post-EEOC guidance, and the firm continues to monitor these developing issues.

The EEOC guidance made clear that employers can mandate employee vaccination, under certain conditions, and historically, federal OSHA has also indicated that employers can mandate vaccines. But employers will confront other issues with employer-mandated vaccination as the vaccine becomes more widely available, such as how to address contractors or other temporary workers at employer worksites.

Typically, employers have greater flexibility regarding vaccine requirements for contractors/temporary workers (or even visitors) – similar to testing and screening – because employers do not have a duty to accommodate these individuals (i.e., the ADA only applies to employees); however, some states have different legal requirements. For example, New York, allows “employees or applicants with disabilities . . . [to] request a reasonable accommodation, regardless of . . . employment status (permanent, contingent, temporary or provisional).”

Under section 296-d of New York’s Human Rights Law:

It shall be an unlawful discriminatory practice for an employer to permit unlawful discrimination against non-employees in its workplace. An employer may be held liable to a non-employee who is a contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace, with respect to an unlawful discriminatory practice, when the employer, its agents or supervisors knew or should have known that such non-employee was subjected to an unlawful discriminatory practice in the employer’s workplace, and the employer failed to take immediate and appropriate corrective action. In reviewing such cases involving non-employees, the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of the person who engaged in the unlawful discriminatory practice shall be considered.

“Unlawful discriminatory practice” includes “refus[al] to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment” based on, e.g., creed or disability.

For uniformity’s sake, employers may want to align their employee and contractor vaccination requirements. Employers should also remain cognizant of potential joint employment issues when addressing non-employee concerns, including whether to ask for and how to maintain confirmation of vaccination from these individuals.

Something else for employers to consider is that COVID-19 vaccines are currently only available under FDA emergency use authorizations (“EUA”). When permitting emergency use of a vaccine, the FDA has an obligation to:

[E]nsure that recipients of the vaccine under an EUA are informed, to the extent practicable under the applicable circumstances, that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.

This information is typically conveyed in a patient fact sheet that is provided at the time of vaccination. While the EEOC may not identify significant additional hurdles in considering vaccine mandates under an EUA, versus full FDA approval, we expect more robust development of the law in this space as employees (and perhaps others on worksites) test this approach in court.

In any event, arrival of the vaccine does not end the pandemic. Employers should maintain COVID-19 mitigation protocols during distribution of the vaccine. These policies may continue for a lengthy period as the vaccine is rolled out to different groups of workers and as employers work through accommodation requests. Employers who have operated with, e.g., social distancing, masks, etc., should be able to continue (and may be able to use these procedures as ongoing accommodations for those employees who do not receive a vaccine).

As with all things COVID-19, the states will have their say as well. Each state has developed a vaccine plan, and we generally expect states to follow federal guidance regarding the administration of COVID-19 vaccines. Our fingers are crossed that, in the interests of public health and broad vaccine deployment, California will adopt an interpretation of its Fair Employment and Housing Act consistent with the EEOC’s determination that the administration of the COVID-19 vaccination is not a medical examination and that employers’ requesting proof of vaccination is not a disability-related inquiry.

California’s COVID-19 vaccine page indicates that “there is no mandatory vaccination requirement from either the state or federal government. While vaccine doses will be limited in supply at first, we hope that by educating Californians about the safety and efficacy of a COVID-19 vaccine, we can encourage voluntary adoption of the vaccine.”

New York’s COVID-19 vaccine FAQs read “New York State is not mandating the COVID-19 vaccine.”

With dynamic circumstances and in the early stages of vaccine distribution, it is difficult to predict exactly how jurisdictions will proceed. States may continue to consider mandating vaccines (or prohibiting required vaccination). A number of state legislatures have pre-filed bills prohibiting or limiting vaccine mandates (e.g., Florida, Kentucky, Missouri, South Carolina, Tennessee, and Washington). New York and New Jersey are considering such proposals in current legislative sessions, while New York has also seen a contrasting proposal that would make the COVID-19 vaccination mandatory throughout the state. For a deeper dive into these state-level issues, take a look here,

For now, we have not seen any state-wide vaccination mandates, but indications are that employers can mandate vaccines, subject to relevant legal requirements.

Please reach out to your friendly, neighborhood Seyfarth attorney with additional questions.

Part Three: Employee Resource Groups

Wednesday, January 13, 2021
3:00 p.m. to 3:30 p.m. Eastern

Register Here

Implementing Employee Resource Groups (ERG) and/or Affinity groups are one commonly used strategy that employers use to enhance a culture of belonging. ERGs provide a framework through which people of similar backgrounds, cultures, and interests come together to build networking, mentorship, and engage in professional development. As with any diversity, inclusion and equity strategy, legal considerations must be analyzed when deciding whether ERGs are the right choice for a company and how to successfully implement an ERG program. In this micro-webinar, we will explore the different practical and legal considerations employers should be aware of when establishing and supporting ERGS, along with relevant guidelines and best practices.

Part Four: Diverse Slates

Friday, January 15, 2021
2:00 p.m. to 2:30 p.m. Eastern

Register Here

In 2020, employers have doubled-down on their diversity, equity, and inclusion programs to ensure they are driving their strategic efforts. In doing so, many employers are looking for ways to increase the diversity in their hires and promotions without running afoul of the law. While many employers have established diverse slate or diverse interview panel requirements, many struggle with the practical implications involved when implementing their programs. Seyfarth’s diversity and inclusion attorneys have deep experience advising employers on how to successfully execute such initiatives while minimizing risks under Title VII and other EEO laws. In this micro-webinar, we will explore the practical and legal risk spectrum and dive into practical considerations for this topic.

By Joshua D. Seidman, Ryan B. Schneider, Tracy M. Billows, Dana D. Howells, and William P. Perkins

Seyfarth Synopsis: Roughly two years ago we introduced Seyfarth’s Infographic tracking the spread of paid sick leave and anti-local sick leave laws around the country from pre-2014 to year-end 2018. We have since seen a torrential downpour of paid sick leave and derivative mandates, as well as some states’ tireless efforts to fend off the storm. This update expands on our initial Infographic, tracking the expansion of paid sick leave laws, both in terms of geography and variations, over the last two years and examining the status of the nation’s anti-local sick leave law stockpile.

 

At the end of 2018, the paid sick leave landscape consisted of a unique blend of leave and time off mandates. There were states with (a) only local paid sick leave mandates, (b) only a statewide paid sick leave mandate, or (c) both statewide and local paid sick leave mandates co-existing. Some statewide paid sick leave laws strip localities of the ability to regulate paid sick leave, while other states allow statewide and certain local paid sick leave mandates to coexist with an anti-local leave mandate.

A majority of the 2018 year-end “sick” leave laws and ordinances actually provided an amount of paid leave for reasons beyond just “sick” leave (e.g., an employee or family member’s illness, injury, health condition). Among an array of unique location-specific covered absences, the most common covered absences outside of “sick” leave reasons involved “safe” leave (e.g., instances involving absences due to domestic violence, sexual assault, stalking, etc.). However, even though covered absences may have been broader than just “sick” leave, the scope of covered absences was limited. That changed in 2019 when multiple jurisdictions at both the state and local levels introduced paid personal leave mandates providing covered time off for any reason.

Providing no reprieve to employers navigating the paid sick leave patchwork, 2019 also saw the nation’s first jurisdiction-specific separate paid sick and safe time mandates take effect. Beyond legislative developments, 2019 kept employers off balance with paid sick leave in the courtroom. Highlights included an ordinance that was supposed to debut in 2016 and then subsequently delayed for multiple years being brought back to life, and business-plaintiffs assailing three local ordinances in another state with identical arguments and wildly different outcomes.

Given 2019’s paid sick leave contributions, employers expected 2020 would be an active year on the sick and personal leave front. Enter COVID-19. Suddenly, the already volatile paid sick and personal leave landscape morphed into a constant state of flux. In various ways, governments and administrative agencies at the federal, state, and local levels honed in on the use of paid sick leave as part of their COVID-19 response. Supplemental paid sick and personal leave mandates sprouted up without much, if any, warning, often going into effect immediately upon enactment. Certain locations amended their existing paid sick leave mandates to incorporate broader covered reasons for use with a focus on “public health emergency” related absences. A number of other jurisdictions released COVID-19 administrative guidance on their existing sick leave mandates, and then regularly updated that guidance throughout the calendar year. Finally, 2020 saw multiple states pass non-COVID-19 statewide mandates, a reminder to employers that even after the pandemic subsides, the sick leave patchwork will persist.

Thus, while the impact of COVID-19 on employers’ paid sick and personal leave obligations, and operations more generally cannot be understated, general sick and personal leave mandates and the anti-local sick leave movement did not remain in lockdown. As we put it at the end of 2018, “[n]eedless to say, the paid sick leave landscape is constantly evolving.” We welcome our returning readers to refresh their memories with our Pre-2014 through 2018 maps and specific points about the development of paid sick leave laws during each of the four relevant time periods, and our new readers to get caught up to speed on the same. For the main event, we have two new maps for 2019 and 2020 respectively, which follow the movement of paid sick and personal leave laws and ordinances and monitor the stamina on the anti-local leave law front.

I. Pre-2014

Note 1: Local paid sick leave mandates present in: (1) San Francisco, CA; (2) Long Beach, CA (covers certain hotel employers only); (3) Seattle, WA; and (4) Washington, D.C. Outside of these locations, and the state of Connecticut, paid sick leave was an area left to employer discretion.

Note 2: A majority of the nine state anti-local paid sick leave laws in effect prior to 2014 preempted localities from regulating a wide range of employment-related matters, such “employment benefits” or a related term (which generally includes time off benefits and leave), as opposed to expressly preempting localities from regulating sick leave.

Note 3: A paid sick leave ordinance was enacted in Milwaukee, WI in 2008. However, due to judicial and legislative delays, the ordinance had not yet gone into effect when Wisconsin passed its statewide anti-local paid sick leave law in 2011.

II. 2014-2015

Note 1: In a matter of two years, the number of state and local paid sick leave laws around the country that were in effect or scheduled to go into effect increased from five to 23. The sick leave epidemic particularly impacted jurisdictions in the Northeast and Mid-Atlantic, and on the West Coast. To combat the epidemic, state anti-local paid sick leave laws emerged in four additional states.

Note 2: Local paid sick leave mandates present in: (1) San Francisco, CA; (2) Long Beach, CA (covers certain hotel employers only); (3) Oakland, CA; (4) Emeryville, CA; (5) Los Angeles, CA (covers certain hotel employers only); (6) Portland, OR; (7) Philadelphia, PA; (8) Jersey City, NJ; (9) Newark, NJ; (10) Passaic, NJ; (11) East Orange, NJ; (12) Paterson, NJ; (13) Irvington, NJ; (14) Montclair, NJ; (15) Trenton, NJ; (16) Bloomfield, NJ; (17) New York City, NY; (18) Seattle, WA; (19) SeaTac, WA (covers certain transportation and hospitality employers only); and (20) Washington, D.C.

Note 3: When California’s statewide paid sick leave law went into effect, it became the first state in which both state and local paid sick leave mandates were imposed.

Note 4: During this time period, New Jersey municipalities added nine local paid sick leave mandates and became home to the greatest number of municipal sick leave ordinances of any state in country.  New Jersey would retain this title until October 29, 2018.

Note 5: Pittsburgh, PA also passed a paid sick leave ordinance during this timeframe. It was scheduled to go into effect in early January 2016. However, it has not taken effect due to ongoing litigation regarding whether Pittsburgh could pass such an ordinance. The Pennsylvania Supreme Court heard oral arguments on the matter in October 2018.

III. 2016-2017

Note 1: During this 2016-17 window, the paid sick leave epidemic nearly doubled, increasing the number of laws with state or local mandates either in effect or scheduled to go into effect from 23 to 40. Notably, not only did the epidemic continue to intensify in the Northeast, Mid-Atlantic, and on the West Coast, but it also began spreading inward to Arizona and localities in Illinois and Minnesota. To combat the epidemic, state anti-local paid sick leave laws emerged in 7 additional states.

Note 2: Local paid sick leave mandates present in: (1) San Francisco, CA; (2) Long Beach, CA (covers certain hotel employers only); (3) Oakland, CA; (4) Emeryville, CA; (5) Los Angeles, CA (two ordinances – one covers certain hotel employers only and the other generally applies to private employers); (6) San Diego, CA; (7) Santa Monica, CA; (8) Berkeley, CA; (9) Chicago, IL; (10) Cook County, IL; (11) Montgomery County, MD; (12) Minneapolis, MN; (13) Saint Paul, MN; (14) Philadelphia, PA; (15) Jersey City, NJ; (16) Newark, NJ; (17) Passaic, NJ; (18) East Orange, NJ; (19) Paterson, NJ; (20) Irvington, NJ; (21) Montclair, NJ; (22) Trenton, NJ; (23) Bloomfield, NJ; (24) New Brunswick, NJ; (25) Elizabeth, NJ; (26) Plainfield, NJ; (27) Morristown, NJ; (28) New York City, NY; (29) Seattle, WA; (30) SeaTac, WA (covers certain transportation and hospitality employers only); (31) Spokane, WA; (32) Tacoma, WA; and (33) Washington, D.C.

Note 3: Oregon’s statewide paid sick leave law came with an anti-local preemption vaccine, which eliminated the local strain that was in effect in Portland and had been enacted in Eugene.

Note 4: In 2013, the Arizona legislature enacted a preemption law, preempting a wide range of employment matters, including paid sick leave. The 2017 Arizona statewide paid sick leave law, however, expressly permits localities to enact more generous local paid sick leave mandates. See Ariz. Rev. Stat. §§ 23-378, 23-379(b). Given this language and questions surrounding the propriety of the preemption law in a more general context, it is very likely that localities may attempt to regulate paid sick leave in Arizona. See generally United Food & Com. Workers Local 99 v. State, No. CV 2016-092409, 2017 WL 8776461 (Ariz. Super. Ct. Aug. 30, 2017).

Note 5: The North Carolina law prohibiting local regulation of private employment practices (which likely includes sick leave) is set to expire on January 1, 2020.

Note 6: Ohio’s paid sick leave preemption statute (Ohio Rev. Code Ann. § 4113.85) was enacted in 2016 via S.B. 331, a bill regulating a broad range of topics beyond preemption or employment law, and went into effect in March 2017. Many municipalities have filed lawsuits due to S.B. 331’s broad sweep. At least two county courts in Ohio have found that the bill violates the Ohio Constitution’s “one subject” clause and declared all provisions of S.B. 331 unrelated to pet store purchase supply regulation, the bill’s original purpose, unconstitutional. Regardless, localities in Ohio are likely preempted from passing paid sick leave legislation because (1) Ohio Rev. Code Ann. § 4113.85 is in effect, (2) at least one intermediate appellate court case found that because the plaintiffs did not challenge paid sick leave preemption, but rather another provision, the issue of paid sick leave preemption was moot, and (3) the county court decisions do not bind other courts.

Note 7: On January 1, 2017, the federal contractor paid sick leave requirements, as set forth in Executive Order 13706 and the United States Department of Labor’s corresponding Final Rule, went into effect, thereby providing paid sick leave benefits to many employees of certain federal contractors.

IV. 2018

Note 1: 2018 saw the paid sick leave epidemic spread to only three additional localities. However, the epidemic continued to evolve and expand as five additional statewide sick leave mandates either went into effect or were enacted this year.  The total number of paid sick leave mandates in effect or scheduled to go into effect at the time of our Initial Infographic at the end of 2018 was 35 (this figure excluded Pittsburgh, PA and Austin, TX in light of ongoing lawsuits challenging the cities’ respective paid sick leave ordinances).

Note 2: Local paid sick leave mandates either in effect or scheduled to go into effect in: (1) San Francisco, CA; (2) Long Beach, CA (covers certain hotel employers only); (3) Oakland, CA; (4) Emeryville, CA; (5) Los Angeles, CA (two ordinances – one covers certain hotel employers only and the other generally applies to private employers); (6) San Diego, CA; (7) Santa Monica, CA; (8) Berkeley, CA; (9) Chicago, IL; (10) Cook County, IL; (11) Montgomery County, MD; (12) Minneapolis, MN; (13) Saint Paul, MN; (14) Duluth, MN; (15) New York City, NY; (16) Westchester County, NY; (17) Philadelphia, PA; (18) San Antonio, TX; (19) Seattle, WA; (20) SeaTac, WA (covers certain transportation and hospitality employers only); (21) Tacoma, WA; and (22) Washington, D.C.

Note 3: March 30, 2019 was the expected effective date of the Westchester County, NY paid sick leave ordinance because this date was 180 days from the date the paid sick leave bill was “adopted” according to the language of the ordinance and corresponding certification page from the Clerk of the Westchester County Board of Legislatures. However, there were multiple interpretations of the effective date that could have resulted in a slightly different effective date. The ordinance ultimately went into effect on April 10, 2019.

Note 4: The Duluth, MN paid sick leave ordinance went into effect on January 1, 2020.

Note 5: The Texas update is based on the following: The cities of Austin and San Antonio both passed paid sick leave ordinances in 2018.  The Austin ordinance was originally scheduled to go into effect on October 1, 2018, while the San Antonio ordinance was scheduled to go into effect for most employers on August 1, 2019. In 2018, the Austin ordinance was involved in a lawsuit that found the ordinance to be unconstitutional. In addition, the Texas legislature previously introduced a bill that would prohibit all municipal paid sick leave ordinances in the state. However, as of 2018 year end, the lawsuit did not impact San Antonio and the status of the preemption bill was unclear (the preemption bill ultimately was not passed in 2019). As a result, as of 2018 year end, at least San Antonio’s paid sick leave ordinance was still “scheduled to go into effect” in August 2019.

Note 6: Like the California statewide paid sick leave law, the Washington statewide paid sick leave law, which went into effect on January 1, 2018, does not preempt municipalities within the state from passing more generous paid sick leave mandates.

Note 7: The Spokane, WA paid sick leave ordinance’s “sunset” provision took effect on January 1, 2018, and thus the Spokane ordinance is no longer in effect.

Note 8: Maryland’s statewide paid sick leave law preempted its political subdivisions from passing paid sick leave ordinances on or after January 1, 2017. As a result, Montgomery County’s paid sick leave ordinance, which went into effect in 2016, is still in effect and co-exists with the statewide paid sick leave law.

Note 9: When New Jersey’s statewide paid sick leave mandate went into effect on October 29, 2018, the law preempted the state’s 13 existing local paid sick leave ordinances and all future local New Jersey paid sick leave ordinances from being enacted.

Note 10: Michigan’s statewide paid sick leave law was scheduled to go into effect in late-March 2019.  As of 2018 year end, Michigan was the only state that (1) had a statewide paid sick leave mandate, and (2) preempted local paid sick leave ordinances via a law other than the statewide paid sick leave mandate. Michigan had prohibited local paid sick leave mandates since 2015, and thereafter passed its statewide paid sick leave law in 2018.

For the main event, we have two new maps for 2019 and 2020 respectively, which follow the movement of paid sick and personal leave laws and ordinances and monitors the stamina on the anti-local leave law front.

V. 2019

Note 1: At the end of 2019, the total number of paid sick/personal leave mandates either in effect or scheduled to go into effect had increased from 35 at the end of 2018 to 40 (this figure excludes Austin, TX and San Antonio, TX, which had been enjoined in ongoing lawsuits challenging the cities’ respective paid sick leave ordinances). While a passerby might look at the numbers and see a plateau, the circumstances surrounding the 2019 developments suggest quite the opposite.

Note 2: Local paid sick/personal leave mandates (plus Washington, D.C.) either in effect or scheduled to go into effect include: (1) San Francisco, CA; (2) Washington, D.C.; (3) Seattle, WA; (4) Long Beach, CA (hotel-specific law); (5) SeaTac, WA (hospitality and transportation industry-specific law); (6) New York City, NY; (7) Los Angeles, CA (1 general law, and 1 hotel-specific law); (8) Oakland, CA; (9) Philadelphia, PA; (10) Tacoma, WA; (11) Emeryville, CA; (12) Montgomery County, MD; (13) Pittsburgh, PA; (14) Santa Monica, CA; (15) Minneapolis, MN; (16) San Diego, CA; (17) Chicago, IL; (18) Berkeley, CA; (19) Saint Paul, MN; (20) Cook County, IL; (21) Duluth, MN; (22) Westchester County, NY (1 sick leave law, 1 safe leave law); (23) Dallas, TX; (24) Bernalillo County, NM (personal leave law).

Note 3: On May 28, 2019, Governor Janet Mills of Maine signed the Earned Paid Leave Law—the nation’s first paid time off mandate requiring employers to allow employees to use earned paid time off for any reason. The law ultimately went into effect on January 1, 2021. The law also prohibits municipalities or other political subdivisions from enacting any ordinance or other rule regulating earned paid leave, resulting in an anti-local leave mandate in Maine as well.

Note 4: Shortly after the enactment of Maine’s paid sick/personal leave law, the Nevada Paid Leave Law was enacted in June 2019. Like the Maine law, the Nevada Paid Leave Law also requires employers to allow employees to use available paid leave for any reason. When the Nevada Paid Leave Law took effect on January 1, 2020, it became the first jurisdiction in the United States with a fully operative paid personal leave mandate impacting private employers.

Note 5: In August 2019, Bernalillo County, NM became the first local jurisdiction to enact a mandatory paid time off ordinance, providing leave for any reason and covering employers with employees in the unincorporated portions of the County. Amendments to the ordinance later in the year did not extend similar requirements to employers in the incorporated portions of the County, despite the County considering such an expansion. Thus, the noteworthy exemption for City of Albuquerque, NM employers (and employers in other incorporated areas of the County) remained. While the Bernalillo County ordinance had originally been scheduled to take effect on July 1, 2020, its effective date was ultimately delayed until October 1, 2020 due to the COVID-19 pandemic. Recently, the City of Albuquerque, NM similarly voted on a proposed paid time off ordinance, with the result being to defer the bill until February 1, 2021.

Note 6: The Westchester County, NY Earned Sick Leave Law (“ESLL”), which was enacted in 2018 and went into effect on April 10, 2019, notably did not contain “safe” time provisions. This was unlike a number of other recently enacted or amended paid sick leave laws and ordinances throughout the United States, including, in the immediate vicinity, the New York City Earned Safe and Sick Time Act and the New Jersey Earned Sick Leave Law. An explanation for the missing safe time provisions appeared in May 2019 when the County passed the Safe Time Leave Law (“STLL”). This enactment made Westchester County the first jurisdiction in the country to impose mandatory paid safe leave obligations on covered employers that are separate and apart from the jurisdiction’s mandatory sick time obligations. Unlike existing paid sick leave laws and ordinances, including the Westchester County ESLL, the STLL did not contain accrual or carryover provisions. Closer to its October 30, 2019 effective date, the STLL FAQs confirmed there is no accrual of safe time leave, and covered employees are entitled to take up to 40 hours of paid safe time leave per year.

Note 7: The Dallas PSL ordinance was enacted in April 2019, and like the San Antonio PSL ordinance, was scheduled to go into effect on August 1, 2019. In July 2019, separate lawsuits to enjoin both ordinances were filed in a Bexar County district court and the U.S. District Court for the Eastern District of Texas, respectively. The lawsuits sought an enjoinment of the relevant PSL ordinances on the same grounds as those relied on by the Texas Court of Appeals for the Third District (“Third District”) to temporarily enjoin the Austin PSL ordinance. The parties in the San Antonio case agreed to stay enforcement of the San Antonio PSL ordinance and the related litigation while considering next steps in the coming months, while the Dallas PSL ordinance went into effect on August 1 despite the lawsuit filed to enjoin it.

In October 2019, the City of San Antonio amended its PSL ordinance. The corresponding litigation re-commenced and the San Antonio PSL ordinance, as amended, was temporarily enjoined in late 2019 on the same grounds as relied on to enjoin the Austin PSL ordinance in 2018. As the year came to a close, the City of Austin’s appeal of the Third District’s decision remained before the Texas Supreme Court, which had ordered briefs on the merits but had not decided whether or when it would hear the case. The federal district court hearing the case on the Dallas PSL ordinance had ruled on issues such as venue, but had not yet ruled on whether to temporarily enjoin the Dallas PSL ordinance on constitutional grounds. As a result, as of the end of 2019, the Dallas PSL ordinance remained in effect, while the San Antonio and Austin PSL ordinances remained temporarily enjoined.

Note 8: In July 2019, the Pennsylvania Supreme Court reversed 2015 and 2017 state trial and appellate court decisions ruling that Pittsburgh’s PSL ordinance — the Paid Sick Days Act (“PSDA”) that had been scheduled to go into effect in January 2016 — violated the state Home Rule Charter and Optional Plans Law (“Home Rule Law”). Notably, the decision did not appear to address when the PSDA would take effect as a result of the reversal. Finally, in December 2019, the City of Pittsburgh released PSDA Guidelines and announced that the ordinance would take effect on March 15, 2020.

VI. 2020

Note 1: 2020 saw an exponential increase in the complexity and number of paid sick/personal leave mandates, with the COVID-19 pandemic serving as the driving force behind a vast majority of developments. Throughout 2020, employers were faced with 66 paid sick/personal leave mandates arising out of 46 jurisdictions at the federal, state, and local level that were either (a) in effect at this time; (b) in effect at some point in 2020; or (c) scheduled to go into effect at a later time (this figure excludes Austin, TX, San Antonio, TX, and Dallas, TX, all of which remain enjoined in ongoing lawsuits challenging the cities’ respective paid sick leave ordinances). The status of certain COVID-19 specific paid sick leave mandates is current as of January 7, 2021. Further, only two of the mandates that appeared during this time period provide for non-COVID-19 or non-public health emergency related paid leave benefits. Meanwhile, the landscape for anti-local sick and/or personal leave largely remained the same, with the exception of one mandate expiring during this time period and one mandate preempting local paid sick and safe leave laws in-part.

Note 2: Local paid general or COVID-19 sick/personal leave mandates (plus Washington, D.C.) in effect in 2020 include: (1) San Francisco, CA; (1 general sick leave law; 1 COVID-19 leave law) (2) Washington, D.C. (1 general sick leave law; 1 COVID-19 leave law); (3) Seattle, WA (1 general sick leave law; 1 general sick leave law – temporary, emergency basis for gig workers);  (4) Long Beach, CA (1 hotel-specific general sick leave law; 1 COVID-19 leave law); (5) SeaTac, WA (hospitality and transportation industry-specific law); (6) New York City, NY; (7) City of Los Angeles, CA (1 general sick leave law; 1 hotel-specific general sick leave law; 1 COVID-19 leave law); (8) Oakland, CA (1 general sick leave law; 1 COVID-19 leave law); (9) Philadelphia, PA; (1 general sick leave law; 1 COVID-19 leave law); (10) Tacoma, WA; (11) Emeryville, CA; (12) Montgomery County, MD; (13) Pittsburgh, PA (1 general sick leave law; 1 COVID-19 leave law); (14) Santa Monica, CA; (15) Minneapolis, MN; (16) San Diego, CA; (17) Chicago, IL; (18) Berkeley, CA; (19) Saint Paul, MN; (20) Cook County, IL; (21) Duluth, MN; (22) Westchester County, NY (1 sick leave law, 1 safe leave law); (23) Bernalillo County, NM (personal leave law); (24) Los Angeles County, CA (COVID-19 leave law); (25) City of Sacramento, CA (COVID-19 leave law); (26) Sacramento County, CA (COVID-19 leave law); (27) San Jose, CA (COVID-19 leave law); (28) San Mateo County, CA (COVID-19 leave law); (29) Santa Rosa, CA (COVID-19 leave law); and (30) Sonoma County, CA (COVID-19 leave law).

Note 3: On March 11, 2020, Colorado became the first jurisdiction to pass a COVID-19 leave mandate with the adoption of the Temporary Health Emergency Leave with Pay (“HELP”) Rules. The HELP Rules initially provided 4 calendar days of leave to employees working in a limited number of industries with flu-like symptoms who were being tested for COVID-19, and through multiple amendments and re-adoptions, ultimately provided 2 weeks (up to 80 hours) of COVID-19 leave to employees in a far broader range of industries (e.g., office work) for flu-like or respiratory illness symptoms and who were getting tested for COVID-19 or under instruction to quarantine or isolate from proper government officials or a healthcare provider. The HELP Rules were ultimately terminated on July 14, 2020 in place of the Colorado Healthy Families and Workplaces Act (“HFWA”), which was enacted at the same time with broader COVID-19 leave requirements, general sick leave requirements, and more. See Note 17 below for further information on the HFWA.

Note 4: At the start of the year, New York State had its sights set on a statewide general sick leave law. However, with the arrival of COVID-19, the state first enacted a COVID-19 Emergency Leave Law, which went into effect on March 18, 2020. New York’s COVID-19 mandate is without an expiration date, and depending on an employer’s size, provides either unpaid sick leave, or 5 or 14 days of paid sick leave, when an employee is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19 issued by one of various state and local government health agencies. Employees may also be entitled to paid family or disability benefits, which are not covered in this Infographic. Soon after New York’s COVID-19 leave was on the books, the state followed through with its general sick leave plans, enacting the New York State Paid Sick Leave Law on April 3, 2020. The statewide general sick leave mandate took effect on September 30, 2020 and presented a number of challenges for employers, albeit closer to that time. See Notes 26 and 27 below for further information on the New York State Paid Sick Leave Law and related developments.

Note 5: Monumentally, the Families First Coronavirus Response Act (“FFCRA”) went into effect on April 1, 2020, requiring 2 weeks (up to 80 hours) of emergency sick leave for certain COVID-19-related absences at the federal level, as well as 10 weeks of more limited-use emergency family medical leave (not covered in this Infographic other than to the extent there is overlap with COVID-19 sick leave). With limited exceptions, the FFCRA applied to employers with fewer than 500 employees nationwide. Employees absence for a covered reason were paid either their regular rate of pay or 2/3 thereof, up to $511 or $200 daily caps and $5,110 or $2,000 aggregate caps depending on whether their use of COVID-19 leave is to care for themselves or another individual. While the FFCRA sick leave and expanded family medical leave payroll tax credits were extended through March 31, 2021, the FFCRA paid leave mandates were not extended and sunset at the end of 2020. Despite expiring on December 31, 2020, the impact of the FFCRA cannot be understated. As seen in a number of notes below, similarly structured mandates, one after another, would emerge out of jurisdictions looking to fill the federal law’s coverage “gaps.”

Note 6: Certain jurisdictions addressed COVID-19 by amending or expanding their existing general paid sick leave mandate to address the pandemic. On March 16, 2020, Philadelphia adopted emergency regulations providing COVID-19 specific reasons for use of employees’ existing sick leave balances under Philadelphia’s general sick leave law, and requiring conditions associated with use of such time. On March 18, 2020 and March 25, 2020, Seattle, WA and the State of New Jersey, respectively, amended their existing sick leave mandates to include certain public-health-related uses as protected uses of employees’ existing general sick leave benefits. Notably, while the New Jersey and Seattle paid sick leave laws were amended in response to COVID-19, they appear to be permanent, as opposed to “temporary” amendments, and geared towards sick leave use in public health crises more generally. The Philadelphia emergency regulations remain in effect for the duration of the local disaster emergency declared by the Mayor of Philadelphia in response to COVID-19. See Note 23 below for further information on Philadelphia’s separate supplemental COVID-19 leave mandate.

Note 7: Some jurisdictions responded more informally whether as their sole means of infusing sick leave requirements in light of COVID-19 or in addition to more formal COVID-19 oriented regulation. A number of administrative agencies responsible for sick/personal leave enforcement in their jurisdictions issued non-binding guidance or FAQs expanding on how their generally applicable sick or personal leave mandate applies in light of COVID-19 (e.g., an employee who uses general sick leave for medical diagnosis can use the leave to get tested for COVID-19). Interestingly and further complicating the COVID-19 leave landscape, some of this guidance came from health or other business regulatory agencies not responsible for enforcement of their jurisdiction’s sick or personal leave mandate and applied to employer-provided leave more generally (as opposed to such leave required under applicable law). Nonexclusive examples of such informal oversight include: Arizona; California; Emeryville, CA; City of Los Angeles, CA; Oakland, CA; San Diego, CA; San Francisco, CA; Chicago, IL (PSL Agency Guidance and Department of Health Guidance); Cook County, IL; Maryland (Attorney General Office Guidance on Employment Laws and COVID-19); Massachusetts; Duluth, MN; Minneapolis, MN; Saint Paul, MN; Nevada; New York City, NY; Oregon; and Washington State.

Note 8: On April 7, 2020, San Jose, CA became the first jurisdiction to roll out a COVID-19 leave mandate intended to provide benefits to workers in the city not covered by the FFCRA. Unlike a number of jurisdictions that would shortly follow suit, the COVID-19 leave mandate was the first sick leave law in San Jose, CA. The ordinance generally provided the same amount of leave, allowed use for the same COVID-19-related reasons, and compensated employees for use of leave at the same rate as required by the FFCRA. While the Ordinance technically expired on December 31, 2020, it was reenacted on January 6, 2021 and will remain in effect through  June 30, 2021, unless further extended.

Note 9: Also on approximately April 7, 2020, the City of Los Angeles, CA greeted employers with its third sick leave mandate. The COVID-19 leave order applies to employers with (a) 500 or more employees in Los Angeles or (b) 2,000 employees nationwide, and covers employees who worked in the City for the same employer between February 3, 2020 and March 4, 2020. Among other exemptions, the mandate most notably exempts a business that was closed or not operating for 14 or more consecutive calendar days due to a city official’s emergency order related to COVID-19 on or after March 4, 2020. The amount of leave required is the standard FFCRA amount; however, the mandate contains slight deviations from the FFCRA-covered reasons for use. The City of Los Angeles order also departs from the FFCRA in that it did not expire at the end of 2020, and instead remains in place until 2 weeks after the expiration of the local emergency period.

Note 10: Washington, D.C.’s COVID-19 leave mandate — added as a near-standalone provision within the general D.C. sick leave law — also went into effect on April 10, 2020. Following a set of substantive amendments and some extended expiration dates, the mandate is set to remain in place until May 21, 2021; however, it only requires COVID-19 leave during the COVID-19 emergency, leaving open the potential for an earlier expiration of the District’s COVID-19 leave requirements. The mandate applies to employers with between 50-499 employees, although it is not clear whether an employer should count D.C. employees only or all employees within the United States. The D.C. COVID-leave amount, while the same as required under the FFCRA and most derivatives, is (1) paid at the employee’s regular 2-week pay without any daily or aggregate cap, and (2) can only be used concurrently with or after exhaustion of leave provided under federal or district law or employer policy more generally that can also be used for COVID-19 covered reasons, with the employee choosing one or the other.

Note 11: The San Francisco, CA Public Health Emergency Leave Ordinance went into effect on April 17, 2020. Unless reenacted (which has occurred multiple times thus far), the ordinance will sunset on February 11, 2021 or upon the termination of the public health emergency, whichever occurs first. San Francisco’s second paid leave ordinance covers employers with 500 or more employees nationwide who are not covered by the FFCRA. The 2 weeks (up to 80 hours) of COVID-19 related leave required is in addition to any employer-provided paid leave prior to April 17 (including in compliance with the general sick leave ordinance), although potential offsets are available. Like other local COVID-19 leave ordinances, San Francisco’s COVID-19 leave ordinance expands on COVID-19 related absences permitted under federal law. It also provides leave at full pay and generally up to the same amount of COVID-19 leave as required for employees who work at least 40 hours per week under the FFCRA and a prorated amount for employees who work fewer hours per week.

Note 12: Unlike the City of Los Angeles, California’s Los Angeles County does not have a general sick leave ordinance either in effect or scheduled to go into effect. However, following the city’s footsteps with respect to COVID-19, on April 28, 2020, the county passed a COVID-19 leave ordinance that requires employers with 500 or more employees nationally to provide 2 weeks (up to 80 hours) of leave for certain COVID-19 related covered absences to employees working in the unincorporated portions of Los Angeles County. While the ordinance technically expired on December 31, 2020, the County Board of Supervisors is expected to extend the ordinance later in January 2021.

Note 13: Building on the surge of COVID-19 leave mandates from California localities, on May 12, 2020, the City of Oakland padded the sick leave required under the city’s local general sick leave mandate with up to 80 hours (and a prorated amount for employees who work fewer than 40 hours per week) of additional leave for reasons related to COVID-19, including additional reasons not covered under the FFCRA. When using COVID-19 leave, employees must be paid full pay and not less than the city minimum wage, subject to a $511 daily cap and $5,110 aggregate cap, regardless of the reasons for use. Notably, the Oakland COVID-19 leave ordinance also requires that employees laid off on or after May 12, 2020 have their general sick leave balances paid out, despite no requirement for such payout under the city’s general sick leave mandate. The Oakland COVID-19 leave mandate expired on December 31, 2020. It is unclear whether it will be extended by the Oakland City Council.

Note 14: Then, on approximately May 19, 2020, Long Beach, CA passed its first non-industry-specific sick leave ordinance, providing 2 weeks (up to 80 hours) of COVID-19 related leave to employees of employers not covered by the FFCRA in whole or in part working in the city. The ordinance contains rate of pay and cap requirements similar to those under the FFCRA, and is not set to expire on any particular date. Rather, the ordinance expires upon the Long Beach City Council’s determination it is no longer needed — an assessment that is required every 90 days.

Note 15: The City of Santa Rosa, CA’s first sick leave ordinance went into effect on July 7, 2020 and requires employers not covered by the FFCRA in whole or part to provide 2 weeks (up to 80 hours) of COVID-19 related leave. Unlike under the FFCRA, the rate of pay required when an employee takes COVID-19 leave is the employee’s regular rate, subject to a $511 daily cap and $5,110 aggregate cap, regardless of the reason for use. The Santa Rosa COVID-19 leave mandate expired on December 31, 2020. It is unclear at this time whether it will be extended.

Note 16: The next day, on July 8, 2020, the first sick leave ordinance in San Mateo County, CA became effective, requiring employers with 500 or more employees nationwide to provide employees in the unincorporated portions of the county with 2 weeks (up to 80 hours) of COVID-19 leave for reasons largely similar to those covered under the FFCRA. Unlike the FFCRA, the ordinance requires that employees be paid their regular rate of pay for COVID-19 leave, subject to a $511 daily cap and $5,110 aggregate cap, regardless of the reason for use. While the ordinance was originally scheduled to expire on December 31, 2020, on December 8, the San Mateo County Board of Supervisors extended the ordinance to remain in place until June 30, 2021, unless further extended.

Note 17: On July 14, 2020, Colorado enacted a statewide paid sick leave law — the Healthy Families and Workplaces Act — making it the 15th state with a general, permanent sick leave mandate either in effect or scheduled to go into effect at a later time. From that date until December 31, 2020, all Colorado employers, regardless of size, were required to provide paid leave in the amount and for the reasons required under the FFCRA to employees not eligible for such benefits under federal law. The law’s general sick leave provisions took effect for most employers on January 1, 2021. Also beginning on January 1, 2021, and on each subsequent date on which a date a public health emergency (“PHE”) — defined as (A) an act of bioterrorism, a pandemic influenza, or an epidemic caused by a novel and highly fatal infectious agent, for which: (I) an emergency is declared by a federal, state or local public health agency; or (II) a disaster emergency is declared by the Governor; or (B) a highly infectious illness or agent with epidemic or pandemic potential for which a disaster emergency is declared by the Governor — is declared, employers must provide employees with a one-time grant of 2 weeks (up to 80 hours) of sick leave for certain reasons related to the PHE. Employees can use this PHE sick leave — which accounts for any amended, extended, restated, or prolonged declaration of the initial PHE declared — until 4 weeks after the PHE’s official termination. Upon a public health emergency declaration, employees’ general sick leave accruals can be counted towards the PHE sick leave allowance and used for either general or PHE reasons.

Note 18: The first sick leave ordinance to arrive in the City of Sacramento, CA was enacted on June 30, 2020, went into effect on July 15, 2020, requiring employers with 500 or more employees nationwide who are not covered under the FFCRA to provide most employees in the city with 2 weeks (up to 80 hours) of COVID-19 leave, including for additional reasons not covered under federal law. The ordinance contains rate of pay and cap requirements similar to those under the FFCRA in that COVID-19 leave is paid at an employee’s regular rate and capped at $511 per day and $5,110 in the aggregate, except when used to care for a family member, the requirement is 2/3 of the regular rate, capped at $200 per day and $2,000 in the aggregate. While the ordinance was scheduled to expire on December 31, 2020, legislation to further extend the ordinance resulted in an extension until at least March 31, 2021.

Note 19: A near-identical ordinance was passed by the Sacramento County Board of Supervisors on September 1, 2020, with provisions requiring COVID-19 leave for employees working in the unincorporated portions of the County. The County ordinance became effective October 1, 2020 (although employer obligations did not take effect until October 15) and was scheduled to expire on December 31, 2020. After what appears to have been a brief sunset at 2020 year-end, the ordinance is scheduled to take effect again on January 14, 2021, and remain in effect until at least March 31, 2020.

Note 20: On August 11, 2020, the state of Nevada passed a law requiring employers operating “public accommodation facilities” (defined as a hotel and casino, resort, hotel, motel, hostel, bed and breakfast facility or other facility offering rooms or areas to the public for monetary compensation or other financial consideration on an hourly, daily or weekly basis) to provide employees with between 3-14 days of COVID-19 related leave for certain covered reasons, with the amount depending on the nature of the covered absence. Such leave is required in addition to personal leave required under Nevada’s general paid personal leave law (discussed in Note 4 under 2019 map above), which cannot be counted toward employers’ COVID-19 leave obligations.

Note 21: On August 18, 2020, the state of Washington issued a proclamation requiring employers to provide certain “food production workers” not covered by the FFCRA with 2 weeks (up to 80 hours) of leave for certain COVID-19 related covered absences, even if not “employees.” This proclamation expired on November 13, 2020.

Note 22: Sonoma County, CA’s first sick leave ordinance went into effect on August 18, 2020, requiring employers with 500 or more employees nationwide who are not covered under the FFCRA to provide most employees in the unincorporated portions of the County with 2 weeks (up to 80 hours) of COVID-19 leave, for reasons largely paralleling those covered under federal law. Unlike the FFCRA, the rate of pay required when an employee takes COVID-19 leave under the County ordinance is the employee’s regular rate, subject to a $511 daily cap and $5110 aggregate cap, regardless of the reason for use. The Sonoma County COVID-19 leave mandate originally expired on December 31, 2020. While the County announced an extension of COVID-19 leave benefits on its website, it is unclear whether this extension applies to only public employees in the County or to private employees as well (although appears to only apply to the former). Thus, it is unclear at this time whether the benefits for private employees have formally been extended into 2021.

Note 23: On September 17, 2020, Philadelphia, PA’s second sick leave mandate took effect, requiring that employers provide “covered individuals” (includes certain non-employee workers) not covered by the FFCRA with 2 weeks (up to 112 hours) of leave at their regular pay rate for certain reasons during a public health emergency (defined as declared or proclaimed emergency related to a public health threat, risk, disaster or emergency that affects Philadelphia that is made or issued by a  federal, state or local official with the authority to make or issue such a declaration or proclamation). The Philadelphia public health emergency leave mandate expired on December 31, 2020. It is unclear at this time whether it will be extended.

Note 24: Initially, the state of California only provided COVID-19 leave to certain “food sector workers” via Executive Order N-51-20 (signed April 16, 2020), covering employers with 500 or more employees nationwide. Such protections were codified into law for both food sector and non-food-sector employees (including health care workers and first responders excluded by their employers from the FFRCA), and went into effect on September 19, 2020 for non-food sector workers. Employers must provide food-sector workers, as well as other covered employees, with 2 weeks (up to 80 hours) of paid leave for a limited set of COVID-19 related reasons involving the worker/employee, and not including care of family members. While COVID-19 leave is required in addition to employer provided leave in general (including the state’s general sick leave law), certain offsets are permitted. California state’s COVID-19 leave provisions for all individuals expired on December 31, 2020, consistent with the FFCRA’s sunset. It is unclear at this time whether California COVID-19 supplemental paid sick leave will be extended.

Note 25: In addition, the California Department of Industrial Relations’ Office of Administrative Law approved a California OSHA emergency temporary standard (“ETS”) regarding COVID-19, effective November 30, 2020. The ETS mandates that when employees are excluded from work for certain COVID-19 related reasons (i.e., having, or having been exposed to COVID-19), but remain “otherwise able and available to work, employers shall continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status,” notably without reference to any caps on the amount of leave or monetary compensation required, and without employer coverage standards based on headcount (e.g., 500 or more employees nationwide). The ETS does not apply where the employer demonstrates the COVID-19 exposure is not work-related.

Note 26: The New York statewide general paid sick leave mandate went into effect on September 30, 2020, and marked the second statewide sick leave law in the state (see Note 4 above). Additionally, New York City employers remain subject to the city’s general paid sick leave law, which was amended effective September 30, 2020, predominantly to align with the new statewide general sick leave mandate. Westchester County, NY employers remain subject to at least the local safe time mandate (discussed in 2019 Note 6 above). Despite no known explicit action County legislature, the County Human Rights Commission, which aids in enforcement of both the sick and safe time mandates, posted language on its Earned Sick Leave Law webpage suggesting that the County sick leave ordinance is no longer in effect in light of the statewide general sick leave mandate while its separate Safe Time Leave Law remains in effect.

Note 27: In terms of anti-local leave and sick leave mandates in existence and going forward in the Empire State, the New York State general sick leave law provides “[n]othing in this section shall be construed to prevent a city with a population of one million or more from enacting and enforcing local laws or ordinances which meet or exceed the standard or requirements for minimum hour and use set forth in this section, as determined by the commissioner. Any paid sick leave benefits provided by a sick leave program enforced by a municipal corporation in effect as of the effective date of this section shall not be diminished or limited as a result of the enactment of this section.”

Note 28: Pittsburgh, PA’s second sick leave ordinance went into effect on December 9, 2020 and expirers upon the official termination or suspension of the state or local emergency disaster declaration, whichever is sooner. Employers with 50 or more employees (unclear whether employees in City of Pittsburgh only or nationwide should be counted) must provide covered employees with (1) 2 weeks (up to 80 hours) of leave for covered absences related to COVID-19 (in addition to sick leave required under general ordinance) until 1 week after the official termination or suspension of the state or local emergency disaster declaration, whichever is sooner); and (2) the maximum amount of general sick leave available to employees under the local general sick leave ordinance immediately upon hire, if a permissible request for use of such time arises directly from COVID-19.

Note 29: While not a distinct COVID-19 leave mandate at the state level, starting April 3, 2020 and continuing through August 2020, Michigan had seen a number of executive orders requiring employers to permit employees absences for certain reasons related to COVID-19 without adverse consequences. For some time, employers were required to permit employees to use sick leave provided under Michigan’s general statewide sick leave law for such absences as may be available, and if no general sick leave was available, provide the COVID-related leave unpaid. However, due to an October 2020 Michigan Supreme Court ruling against the Governor’s authority to issue COVID-19 related health orders, such employer-obligations no longer exist in Michigan.

Note 30: Outside of imposing requirements on employer-provided leave related to COVID-19 and regardless of any such leave, the following sick leave jurisdictions also have in effect laws and ordinances prohibiting adverse action against employees out of work due to COVID-19 infection and/or abiding by orders from appropriate officials/professionals directed at the employee to reduce the spread of COVID-19: (1) State of New Jersey (Effective March 20, 2020 – End of COVID-19 Public Health Emergency/State of Emergency Declaration); (2) State of Maryland (Effective March 19, 2020 – April 30, 2021); (3) Chicago, IL (Effective May 20, 2020); and (4) San Francisco, CA (Effective September 11, 2020 – January 9, 2021, unless re-extended).

Note 31: At this time, none of three local sick leave ordinances in Texas (i.e., Austin, Dallas, and San Antonio) are in effect as all have been temporarily enjoined as part of three separate ongoing lawsuits (see Note 7 of 2019 map). First, on March 30, 2020, a federal district court ordered a temporary injunction of the Dallas PSL Ordinance – which had taken effect on August 1, 2019, but had not been enforced apart from its retaliation provisions given an April 1, 2020 “grace period” provision. Second, on June 5, 2020, the Supreme Court of Texas denied the City of Austin’s petition for review in its sick leave ordinance litigation, in a one-line decision without any substantive opinion or analysis on the constitutionality of local sick leave ordinances and state law preemption of the same. As a result, the Third District’s decision — which does not bind courts outside its jurisdictions — temporarily enjoining the Austin ordinance on constitutional grounds has stood to date. Third, the San Antonio sick leave litigation continues. The Texas Court of Appeals for the Fourth District reinstated the City of San Antonio’s appeal of the temporary injunction of its sick leave ordinance, with the formal submission of briefs completed on October 21, 2020.

Note 32: North Carolina’s anti-local leave mandate, providing “[n]o local government in this State may enact or amend an ordinance regulating private employment practices” expired on December 1, 2020.

 

With the paid leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with these laws and paid leave requirements more generally. To stay up-to-date on Paid Sick Leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list. Companies interested in Seyfarth’s paid sick leave laws survey should reach out to paidleave@seyfarth.com.

By Camille A. Olson, Richard B. Lapp, Louisa J. Johnson, and Andrew M. McKinley

Seyfarth Synopsis: With the growth of the gig economy, the increased desire of some workers to control their own work hours to ensure a work-life balance, and the evolution of the modern workplace to one in which workers rarely retain one full-time job throughout their working years, the demand by workers and companies alike for independent contractor relationships has grown. The line between employee and independent contractor status, however, has remained frustratingly unclear. In more than 80 years since the FLSA’s enactment, neither the FLSA’s text nor formal rulemaking have provided businesses or courts a broadly-applicable rule regarding where to draw that line. That is, until now.

Tomorrow, the DOL’s final rule on “Employee or Independent Contractor Classification” will be published in the Federal Register, with an effective date of March 8, 2021.

The Notice of Proposed Rulemaking and Request for Comments (“NPRM”) was announced in September 2020, and we summarized it here. The final rule largely adheres to the rule proposed by the NPRM. In the final rule, the DOL has attempted to harmonize decades of its own employer- and industry-specific opinion letters and court decisions that have considered slightly different factors and interpreted similar factors in different manners. It has done so by articulating five non-overlapping factors to be considered in the determination of whether an individual qualifies as an employee or an independent contractor under the FLSA.

Be forewarned that it remains to be seen whether president-elect Joe Biden’s administration will permit the final rule to take effect, whether it could be rejected under the Congressional Review Act, particularly if the Senate majority changes, and whether certain state attorneys general might seek an injunction against the rule the way they did with respect to the DOL’s recent interpretation of the joint employer standard under the FLSA. Further, the independent contractor standard under other federal laws and some state laws also need to be considered for compliance. Nonetheless, the DOL’s new rule provides clearer guidance for companies on independent contractor classification under the FLSA.

What Does the DOL’s Final Rule Provide?

The DOL’s final rule adheres to the earliest Supreme Court decisions and long-standing DOL guidance by continuing to focus the inquiry on whether, as a matter of economic reality, the worker is dependent upon the company for work or is instead in business for him- or herself. The new rule, however, offers previously missing guidance on what factors should be used to assess a worker’s economic-dependence or independence and how much weight should be given to each factor. And while the rule falls short of providing absolute clarity—indeed, it expressly declines to set forth an exhaustive list of considerations—it provides a balanced approach to analyzing independent contractor status under the economic realities test, and sets forth five factors, with two of the factors being “core factors” on which greater weight should be placed.

These two core factors are (1) the nature and degree of the worker’s versus the potential employer’s control over the work; and (2) the worker’s opportunity to earn profits or incur loss based on either the worker’s exercise of initiative or the management of investments in or expenses for items such as helpers, equipment, or material to further the work.

With respect to the first core factor, examples of a worker’s control include setting one’s own schedule, selecting one’s own projects, and having the ability to work for other entities. More critically, the rule provides that a number of issues some courts have previously afforded weight—such as requiring compliance with laws and regulations, health and safety standards, contractual deadlines, and quality control standards—should not impact the analysis. On the other hand, a company’s vigilant enforcement of a non-compete clause or its punishment of a worker for turning down available work may demonstrate control by the company over the worker that is indicative of an employment relationship.

With respect to the second core factor, the worker need not have an opportunity for profit or loss based on both initiative and management of investments or expenses. The ability for a contractor to satisfy this factor through initiative without also needing to show investment, or vice versa, was a point of dissatisfaction for some commenters but, as the DOL noted, makes sense in the modern economy in which many contractors are in knowledge-based jobs that require little investment in materials or equipment. In addition, the DOL states in its preamble to the final rule that it agrees with comments submitted by Seyfarth Shaw that the worker’s use of initiative to impact profit or loss is intended to cover acumen that can be present in a wide variety of contractor jobs, such as acumen in sales, management, customer service, marketing, distribution, communications, and other learned and technical skills, and can exist independent of the skill set needed to perform the work, as in the case of the exercise of general business acumen that impacts a contractor’s ability to profitably run their own business.

If these two core factors point clearly toward either independent contractor or employee classification, they are substantially likely to yield the correct classification. If, however, these core factors do not point toward the same classification or if the considerations under one or both core factors point to different classifications or cause the factors overall to be in equipoise, then the three remaining factors gain importance in determining the correct classification.

The three remaining factors are (1) the amount of skill required for the work, (2) the degree of permanence of the working relationship between the worker and the company, and (3) whether the work is part of an integrated unit of production.

Significantly, the rule places the focus for all five factors primarily on the actual circumstances of the working relationship rather than what is merely contractually or theoretically possible in the relationship. And notably, with respect to the last factor, the rule declines to place import on whether an individual’s work is “integral” to the potential employer’s business, focusing instead on whether the individual’s work can be segregated from the potential employer’s production process.

What Happens Next?

The DOL’s final rule provides much-needed guidance for businesses and workers alike, particularly as technological, social, and business developments have highlighted a need for clarity and uniformity in the economic realities test. However, for now, businesses are well-advised to treat the new rule as precisely that: guidance.

While the final rule is slated to go into effect on March 8, 2021, it remains to be seen how the new administration will deal with the rule. Nevertheless, the rule provides necessary guidance that can be used to assist companies in understanding the impact of various modern workplace and business practices for independent workers and the businesses with which they contract.  A question remains as to the impact of the balanced approach provided by the DOL with respect to interpretation of various relevant factors that are present in the economic realities test under the FLSA and are also relevant to determination under other federal and state tests used for determining independent contractor status. The DOL has noted specifically in the rule that the various versions of the ABC test used in certain state laws have defined employment more broadly for certain purposes.

The official final rule is available here.

If you would like to discuss the impact of the DOL’s final rule, or the various state laws that are unaffected by the rule, please feel free to contact the authors or your typical Seyfarth contact.

By John P. Phillips and Linda Schoonmaker

Seyfarth Synopsis:  Often an employer’s valid safety requirements for a position can be at odds with a disabled employee’s request for a reasonable accommodation. A recent decision from the Fourth Circuit Court of Appeals reaffirms employers’ right to require compliance with valid safety requirements. And it serves as a helpful reminder that employers should ensure that job descriptions and safety requirements are routinely audited, to ensure they are up-to-date, accurate, and enforceable.

When an employee has a disability that preludes her from performing a portion of her job duties, employers have an obligation under the Americans with Disabilities Act to engage with the employee and find a reasonable accommodation. But sometimes the employee’s disability prevents the employee from performing her job duties in a safe manner and in accordance with the company’s safety policies. The Fourth Circuit Court of Appeals recently analyzed this fact pattern, and it held that because the employee was unable to comply with the valid safety requirements of her position, she was not protected by the requirements of the ADA.

This decision is a welcome ruling for employers, and it also serves as a helpful reminder for employers to ensure that their safety requirements and essential job functions are up-to-date, accurate, and defensible.

Background

In Holmes v. General Dynamics Mission Systems, Inc., the plaintiff brought an ADA action against her former employer. The plaintiff worked as a shelter fabricator for a number of years. Throughout the entirety of her employment, the job required the use of heavy equipment and machinery. In 2003, General Dynamics began requiring shelter fabricators to wear steel-toed shoes to protect against accidents. However, the plaintiff suffered from a disability that prevented her from wearing steel-toed shoes. Accordingly, she presented a doctor’s note explaining her condition, and for a number of years General Dynamics allowed her to wear tennis shoes instead.

This changed in July 2013 when General Dynamics received a negative audit finding after an inspector observed a different employee in the production area without steel-toed shoes. In addition, another employee had been injured a few years earlier while not wearing steel-toed shoes. Accordingly, the company decided that it needed to enforce the steel-toed shoe policy, and it instructed all supervisors to do so.

This decision presented a problem for the plaintiff. She provided a doctor’s note stating that her disability prevented her from safely wearing steel-toes shoes. The company placed her a on a leave of absence while it worked to find a reasonable accommodation. General Dynamics explored different shoe options for the plaintiff (which she and her doctors rejected), re-reviewed the steel-toed shoe requirement, and looked for suitable alternative positions. When no accommodation was possible, the company terminated the plaintiff’s employment.

The plaintiff subsequently filed an ADA claim against General Dynamics. Following discovery, the district court granted summary judgment for General Dynamics and dismissed the plaintiff’s claims. The district court found that the plaintiff was not a “qualified individual” under the ADA because she could not comply with the company’s valid safety requirements.

Fourth Circuit’s Decision

On appeal, the Fourth Circuit affirmed the district court’s order. The Fourth Circuit explained that the ADA protects “qualified individuals” from discrimination on the basis of disability. Under the ADA, a qualified individual is one “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds.”  And the Court held that the plaintiff was not a qualified individual because she was unable to comply with a valid safety requirement.

In doing so, the Fourth Circuit drew a distinction between whether the plaintiff could perform her essential job functions and whether the plaintiff could comply with a valid safety requirement. The Court recognized that in addition to essential job functions, it must also consider General Dynamic’s valid safety requirement when analyzing the plaintiff’s claims. The Court explained:

[T]he ADA simply does not mandate that a safety requirement be a part of the essential functions of a position for an employer to enforce it. Rather, as long as the requirement is valid, any employee who is categorically unable to comply—as [plaintiff] and her doctors have consistently maintained that she is—will “not be considered [a] ‘qualified’” individual for ADA purposes.

The Fourth Circuit found that there was no dispute as to the validity of the safety requirement that safety-sensitive positions wear steel-toed shoes and there was no dispute that the plaintiff could not comply with the safety requirement. Accordingly, the plaintiff was not a “qualified individual” under the ADA and was not entitled to any relief.

The Court also rejected the plaintiff’s argument that because she had performed the job for more than 10 years without wearing steel-toed shoes, she was a qualified individual under the ADA. The Court explained that just because she had performed the job without injury while not wearing steel-toed shoes did not mean that she had performed the job safely. And the Fourth Circuit rejected the argument that the plaintiff’s prior work established that an exemption from the steel-toed shoe requirement was a reasonable accommodation under the ADA. The Court explained:

Holding an exemption from an admittedly valid safety requirement represents a reasonable accommodation simply cannot be squared with an employer’s right to “require compliance” with such a requirement even when an employee cannot meet the requirement because of a disability. See EEOC Guidance at F., Example 45. If exemptions from valid safety policies were required as ADA accommodations, it is unclear under what circumstances an employer could ever enforce a valid safety policy.

Accordingly, the Fourth Circuit affirmed the grant of summary judgment in General Dynamic’s favor.

Takeaways

The Fourth Circuit’s decision is welcome news for employers, but it also illustrates the importance of ensuring that all safety policies and requirements are job-related, consistent with business necessity, and, above all, defensible. Although the validity of the steel-toed shoe requirement was not before the Fourth Circuit, in many cases the validity of a particular safety requirement will be at issue. Accordingly, it is important for employers to conduct period audits of the essential functions and safety requirements of positions, to ensure those requirements are accurate, up-to-date, and enforceable.

Seyfarth Synopsis: The Employment Law Lookout is taking a holiday break the week between the Holiday’s, but will resume delivering insightful discourse and updates on the day’s most pressing workplace issues next year.

We note that the CDC recommends that “the safest way to celebrate winter holidays is to celebrate at home with the people who live with you. Staying home is the best way to protect yourself and others. Travel and gatherings with family and friends who do not live with you can increase your chances of getting or spreading COVID-19 or the flu.”

We wish all of our readers, contributors, and editors a safe and happy (and warm) holiday season.

Rest assured knowing that we’ll be on the lookout for more management insights to bring you in 2021.

Thank you and Happy Holidays.

By Kevin A. Fritz

Seyfarth Synopsis: Emotional support animals will no longer be categorized as “service animals” under the Air Carrier Access Act under new Department of Transportation regulations. 

Questionable verifications for certain assistance animals have frustrated the airline industry for years. From peacocks to pigs, all sorts of furry and feathered companions have accompanied individuals on domestic and international flights in the guise of “emotional support animals” (ESAs) sitting pretty in cabins next to their owners.  While stories of such support animals are entertaining, complaints from passengers, increasing requests to transport unusual species of animals on board aircrafts disguised as ESAs, and thousands of comments in the rulemaking process prompted the U.S. Department of Transportation (DOT) to take action.  Just last week the DOT declared that airlines “are not required to recognize emotional support animals as service animals and may treat them as pets.” This recent final rule under the Air Carrier Access Act (ACAA) will change how emotional service support animals are categorized for air travel. The DOT also provided a brief summary of the rule on its website.

To understand the impact of this change, let’s review how other disability access laws address service animals and emotional support animals:

A service animal, under Title III of the Americans with Disabilities Act (ADA), is a dog that is individually trained to do work or perform tasks for people with disabilities.  Public accommodations must allow service dogs to accompany people with disabilities in all areas of a facility where the public is allowed to go, and are only allowed to ask two questions to determine if the animal is a service animal. The public accommodation cannot ask about the disability, require medical documentation, require a special identification card, certificate, or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task it has been trained to perform.  And while miniature horses are not technically service animals, the ADA requires public accommodations allow them to accompany individuals with disabilities who require their assistance due to a disability subject to weight and size limitations. The ADA does not require public accommodations to allow ESAs into their facilities.

ESAs provide comfort and support to their owners, but are not trained to perform any work or task.  Unlike the ADA, the Fair Housing Act (FHA) recognizes ESAs as “assistance animals”—defined as any “animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or that provides emotional support that alleviates one or more identified effects of a person’s disability.” The FHA requires housing providers to allow ESAs as a reasonable accommodation (regardless of any pet restrictions) when a resident makes a request that is supported by reliable disability-related information or when the disability-related need for the animal is apparent.

Things are different up in the sky.  The ACAA has maintained a much broader definition of “service animal” for many years—until now.  Previously, the ACAA defined “service animal” to include “any animal that is individually trained or able to provide assistance to a person with a disability; or any animal that assists persons with disabilities by providing emotional support.”  The DOT’s new rule brings this definition more in line with the ADA’s definition of service animal.  A service animal under the ACAA is “a dog, regardless of breed or type, that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”

Unlike the ADA, the ACAA allows airlines to require passengers to submit two forms created by the DOT.  The first concerns the behavior and health of the service animal(s), and the second requires assurances by the animal owner that the service animal(s) will not need to relieve themselves on flights longer than 8 hours.  These forms can be required up to 48 hours in advance of the date of travel if the travel was booked prior to that time.  In addition, each passenger may only bring up to two service animals, provided they all fit in the passenger’s foot space on the plane.  ADA regulations, on the other hand, do not limit the number of service animals a person with a disability can bring into a place of public accommodation.

The skies are not so friendly to horses either. Unlike the ADA, miniature horses—even those trained to perform work or tasks for an individual with a disability—can be excluded from aircraft cabins.

The bottom line: The ACAA now only requires airlines to allow two service dogs per passenger to fly for free.  All other animals are subject to whatever rules or fees the airlines choose to impose.  Keep in mind, however, that these new rules only apply to air travel and have no impact on existing regulations relating to service animals and ESAs in public accommodations and housing.

Learn more about service animals and other tips for ADA compliance here in honor of the 30th anniversary of the ADA!

Edited by Minh N. Vu and Kristina M. Launey

By Karla Grossenbacher and Gerald L. Maatman, Jr.

Seyfarth Synopsis: On December 16, 2020, the U.S. Equal Employment Opportunity Commission issued guidance for employers on the interplay of workplace bias laws and COVID-19 vaccinations. As all employers are facing these issues in the coming weeks with the roll-out of vaccinations, the EEOC’s guidance should be required reading for all businesses.

Introduction

In an effort to be responsive to the need of employers to have clear guidance on the extent to which they can mandate the COVID-19 vaccine under the Americans With Disabilities Act and Title VII in the wake of Emergency Use Authorization for the Pfizer/BioNTech vaccine, the EEOC updated its Technical Assistance guide “What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws” on the subject of vaccines. In this respect, the Commission acted quickly in terms of its responsiveness to the employer community that had publicly challenged the EEOC to detail this guidance in the fast-changing COVID-19 world this past month.

Essentially, the EEOC has said all employers can require mandatory vaccines as long the employer: (i) allows employees to receive the vaccine from a third party that does not have a contract with the employer, and (ii) follows accommodation requirements under the ADA and Title VII.

The Revised Guidelines

The main legal restriction on requiring employees to be vaccinated comes from the ADA, which contains strict restrictions on an employer’s ability to require employees to undergo a medical examination and make disability-related inquiries. Today, the EEOC stated in its revised guidance that a vaccine is not a medical examination and that asking employees about whether or not they have been vaccinated is not a disability-related inquiry. (On the latter point, at least one federal court has arguably held to the contrary, holding that inquiring about whether an employee is immune to a disease is a disability-related inquiry.)  However, the EEOC also stated that pre-screening questions asked by the employer, or a contractor administering the vaccine at the employer’s request, “may” implicate the ADA’s provision on disability-related inquiries as they are “likely” to elicit information about a disability. Thus, if an employer administers the vaccine, or a contractor does so on its behalf, the employer must show that such pre-screening questions are job-related and consistent with business necessity. In order to do this, an employer must show that an employee who refuses to answer pre-screening questions, and therefore cannot receive the vaccine, will pose a direct threat to the health or safety of him/herself or others.

Notwithstanding the above, the EEOC identified two scenarios in which an employer can ask such pre-screening questions without making a showing that they are job-related and consistent with business necessity. First, if an employer offers vaccination to employees on a voluntary basis and the decision to answer the pre-screening questions is also voluntary, this will not pose an issue under the ADA. The employee can choose not to answer the questions, and the only consequence will be that the employee will not receive the vaccine. Second, if the employer mandates that employees receive a COVID vaccine and an employee receives the vaccine from a third party with whom the employer does not have a contract, the ADA restrictions on disability-related inquiries are not implicated. Given this last point, it is permissible for all employers under the ADA to mandate the COVID vaccine (subject to accommodation requests as described below) as long as the employees receive the vaccine from a third party pharmacy or other medical provider with which the employer does not have a contract.

Reasonable Accommodation Issues Under The ADA

In terms of exceptions for the need to provide a reasonable accommodation, the EEOC reiterated its prior guidance that disability-related and religious objections must be accommodated to the extent required under applicable law. Regarding disability-related objections, the EEOC opined in its guidance that, if a vaccination requirement screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be reduced by reasonable accommodation.” The EEOC advised that employers should conduct an individualized assessment of four factors in determining whether or not a direct threat exists:

(a) the duration of the risk;

(b) the natured and severity of the potential harm;

(c) the likelihood that the potential harm will occur; and

(d) the imminence of the potential harm.

The EEOC further explained that a determination that an individual presents a direct threat would necessarily “include a determination that an unvaccinated individual will expose others to the virus at the worksite.” Even if such a determination is made, the employee cannot be excluded from the workplace or subject to any other action unless there is “no way” to provide a reasonable accommodation absent undue hardship that would eliminate or reduce the risk posed by the unvaccinated employee.  Exclusion from the workplace is not the same as termination from employment, as employees may be entitled to telework or take leave provided by law or under the employer’s policies.  In addition, employers must still engage in the interactive process regarding disability-related requests for accommodation. In considering whether undue hardship is presented, the EEOC stated that employers should consider the number of employees who have already been vaccinated in its workplace and the amount of contact with unvaccinated individuals in the workplace would occur. Employers may also consider CDC recommendations concerning what might be an effective accommodation and consider OSHA standards and guidance concerning particular job duties and workplaces.

Religious Accommodation Issues

Concerning religious objections, the EEOC opined that, once an employer is on notice that an employee’s sincerely held religious belief, practice or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation unless it would pose an undue hardship under Title VII, which has been defined by courts as more than a de minimus cost or burden on the employer. The EEOC reiterated its prior guidance that employers should normally assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief. However, if the employer has an objective basis for questioning the religious nature or sincerity of the belief, the employer can request documentation. At least one federal court has held that being an “anti-vaxxer” is not a religious belief. If there is no accommodation possible for an employee with a sincerely held religious objection to receiving the vaccine, the employer may exclude the employee from the workplace if it can establish undue hardship under Title VII standards.

Implications For Employers

Today’s guidance effectively provides employers with the authority they have been seeking on whether they can require employees to receive the COVID vaccine before entering the workplace when it is available; they can. Questions still remain about what circumstances might present an undue hardship on a specific employer with regard to a request for accommodation and what might be a reasonable accommodation for a specific employee. Of course, each employer will have to decide whether or not — legal considerations aside — the employer wants to mandate a COVID vaccine for its employees.