The Illinois Department of Labor (IDOL) has issued March 2021 guidance for employers on “Compensation, Paid Leave and the COVID-19 Vaccine,” advising employers on providing employees with time off and flexibility in order to get the first (and as necessary, the second dose) of the COVID-19 vaccine.

Mandatory Vaccination Programs

The IDOL guidance states that pursuant to the Illinois Minimum Wage Law and the federal Fair Labor Standards Act, if an employer requires employees to get vaccinated, then the time the employee spends getting the vaccine “is likely compensable,” even if the employee gets vaccinated during non-working time.

IDOL also advises that mandatory vaccination requirements by employers should be combined with paid leave for employees to receive both doses of the COVID-19 vaccine (if two doses are required). Alternatively, employers should provide compensation for the time taken by employees in order to comply with the employer’s mandatory vaccine requirement.

Optional Vaccination Programs

If employees choose to obtain the vaccine voluntarily, IDOL advises that they “should be allowed to use sick leave, vacation time or other paid time off” to receive the vaccine.

The guidance states that employers that do not provide paid leave should consider offering FLEX time so that employees can become vaccinated without having to take unpaid time off.  If the employer does not choose to provide FLEX time, then the employer “should allow the employee flexibility to take the time off unpaid” to get vaccinated.

Vaccination Requirements for Employee’s Family Members

Under the Illinois Employee Sick Leave Act, employers are required to allow their employees to use employer-provided sick leave benefits for absences due to, among other things, medical appointments of family members on the same terms that employees are able to use personal sick leave benefits for their own illnesses or injuries. The IDOL guidance clarifies that an appointment to receive a COVID-19 vaccine dose would qualify as a permissible medical appointment for purposes of the law if the employer allows the use of an employee’s sick leave benefits for vaccination purposes. As a result, IDOL advises that employers allow the use of sick leave benefits by employees for those taking qualifying family members to receive their COVID-19 vaccination doses.

IDOL recommends that employers review their leave and vaccination policies and revise accordingly to provide leave, time, and flexibility for employees to obtain the first and second dose of the COVID-19 vaccine.

Finally, although not mentioned in this latest IDOL guidance, Illinois employers should continue to carefully review applicable state and local Covid-19 workplace guidance, especially now that we are entering a new phase and employers are starting to prepare for a wider reopening.

The New York City Council is planning to evaluate how effectively both the City, as an employer, and private employers disseminated and implemented COVID-19 workplace guidance over the past year with the goal of strengthening how the public and private sectors manage future public health emergencies. On February 28, 2021, the Council enacted Int. 2161-2020 (the “Law”), which establishes a board to review the workplace health and safety guidance that agencies and private employers issued to their respective employees during the COVID-19 pandemic. The newly formed board will ultimately submit a final report and recommendations to the Mayor and Speaker of the Council by December 15, 2021. The Law is effective immediately.

Makeup of the Board

The board will consist of nine members who have “demonstrated expertise relevant to the purpose and duties of the board.” The members, who will receive no compensation for their service on the board, will include:

  • the commissioners of health and mental hygiene, citywide administrative services, consumer and workplace protection, and labor relations;
  • two members appointed by the Mayor;
  • two members appointed by the Speaker of the Council, one of whom is a member of organized labor; and
  • one member appointed by the Public Advocate.

Additionally, the Mayor will designate a chair from among the members of the board and an agency to provide administrative support. All members must be appointed by March 30, 2021. In the event of a vacancy, a successor will be appointed in the same manner as the original appointments.

The Board’s Task and Duties

The board’s mandate is to review how successful public and private employers were in communicating their health and safety policies and protocols to their employees and in providing any relevant employee training on these practices. Based on their evaluation of the information received, the board will then provide recommendations for improvement, as warranted. To be clear, the board’s mandate is limited; its job is not to evaluate how well or poorly the City fared in handling the pandemic as a government body, but rather, how it performed as an employer.

The board will hold two public hearings to solicit testimony from employees, relevant experts, organized labor, public employers, and private employers (with 10 or more employees) across a wide range of industries, including construction, non-profits, health care, retail, and hospitality. The board will assign dates for these hearings at its first meeting, which must be held by April 29, 2021.  Further, the board will provide 30-days’ public notice of the scheduled hearings and engage in a public outreach campaign to encourage participation by all relevant stakeholders.

Finally, the Law tasks the board with presenting its findings and recommendations in two reports: (1) a preliminary report produced within 60 days following the first public hearing, and (2) a final report by December 15, 2021.  The preliminary report will include initial recommendations to help both public and private employers more effectively protect and inform employees during the COVID-19 pandemic. In its final report, the board will finalize those recommendations and provide additional recommendations on health and safety protocols for future public health emergencies.

The board and its responsibilities will terminate 180 days after it submits its final report and recommendations.

We will continue to monitor the board’s progress and report any significant developments, such as hearing dates and other ways employers can participate in the process.

*Law Clerk – Admission Pending

We previously discussed the EEOC’s proposed new wellness program incentive rules under the ADA and GINA in our post, How Big Can the Carrot Be?  The proposed rules were to replace the EEOC’s previous “health-contingent” wellness program regulations, which had been struck down by the U.S. District Court for the District of Columbia because they allegedly permitted large incentives that the court found were essentially coercive and thus in violation of the ADA and GINA proscriptions permitting only voluntary disclosures of disability or genetic-related information (absent a business necessity).  The proposed regulations were issued pursuant to a 3-2 EEOC Commissioner’s vote shortly before the end of the Trump Administration, but had not been published in the Federal Register let alone completed the adoption process.  Now as part of the Biden Administration’s regulatory freeze, the EEOC has withdrawn them.

EEOC’s withdrawal of the proposed rules returns employers to the unhelpful status quo that existed prior to January 2021 with no regulatory guidance regarding how large an incentive is too large to meet the ADA and GINA voluntariness requirements with respect to health-contingent wellness programs incentives.  While the HIPAA wellness program rules remain in effect and may be relied upon for compliance with HIPAA, such HIPAA compliance does not assure that wellness program incentives would comply with the ADA and GINA.

One of the EEOC Commissioners, Keith Sonderling (a Trump appointee), stated in an interview on February 18, 2021, that the rules remain under consideration at EEOC and that employers should “stay tuned.”  Commissioner Sunderling did acknowledge that all stakeholders want clarity on the issue of incentives and suggested that EEOC will work to address the issue.

The incentive issue has particular currency and importance today as many employers consider whether to offer incentives to encourage employees to receive COVID-19 vaccinations.  It is unknown, however, when the EEOC will re-propose any incentive regulations; moreover, as a practical matter final adoption of any proposal could not be completed during the time when employers will be considering COVID vaccination incentives because the EEOC must provide a 60-day notice and comment period for any new proposed regulation and then must consider all comments submitted and whether any changes should be made to the proposed regulations before, finally, submitting the final regulation for publication in the Federal Register.

Thus, for now, employers will have to proceed on the issue of vaccination and other wellness program incentives without EEOC guidance.  Given this regulatory uncertainty, prudent employers should carefully consider the nature and value of any vaccination incentives if such incentives could be deemed a part of a health-contingent employee wellness program or otherwise subject to the ADA and GINA and should consider seeking appropriate advice of counsel.

On February 19, 2021, in a landmark decision that may have lasting effects on the gig economy, the United Kingdom Supreme Court unanimously ruled that Uber drivers are workers and are not self-employed contractors, and, as such, are entitled to certain rights, including minimum wage, holiday pay and rest breaks, among other benefits and protections.

Factual Background

The UK Supreme Court’s decision concludes nearly five years of litigation between Uber and a small group of former drivers.  These Uber drivers entered into partner agreements with Uber to drive passengers who were located through the Uber app.  The partner agreements describe the drivers as self-employed independent contractors.  These drivers claimed that they were workers and were entitled to employment rights and protections.  In 2016, an employment tribunal ruled in favor of the drivers.  Upon appeal, an employment appeal tribunal and court of appeal (by a majority decision) agreed with the drivers that they were workers and not self-employed contractors.  In each case, the tribunal/court found that the partner agreements did not reflect the actual relationship between the parties, and the agreements were disregarded accordingly.

Uber appealed to the Supreme Court, again claiming that its drivers are self-employed contractors and that Uber acts as an “agency” by connecting drivers and passengers via an app.

Supreme Court Decision

The Supreme Court dismissed Uber’s appeal.  The Court did not agree that Uber was an intermediary party and instead found that drivers were workers.  The Court rejected the argument, put forth by Uber, that the terms of the partner agreement are dispositive when deciding worker status, and concluded that the contractual terms should not be the starting point in determining whether individuals should be defined as workers.  The Court reasoned that such terms may prevent individuals from being eligible to receive statutory workers’ rights, because employers may unilaterally dictate contractual terms for vulnerable workers, thereby depriving them of their employment rights.

As opposed to reviewing the contractual terms, the Court analyzed the factual background in light of the statutory language and legislative purpose.  The Court stated that the legislative purpose is to protect vulnerable workers from (i) being paid too little for the work they do, (ii) working excessive hours and/or (iii) being subjected to other forms of unfair treatment (such as being victimized for whistleblowing).  Part of the assessment also includes analyzing the degree of worker subordination and dependence upon employers and the degree of control exercised over individuals’ work.

To arrive at its determination, the Court considered several elements:

  • Uber set the fare, which meant that Uber dictated how much money drivers may earn;
  • Uber set the contract terms unilaterally, and drivers had no ability to negotiate;
  • Uber constrains ride requests, and Uber may penalize drivers if they reject too many rides; and
  • Uber monitors drivers’ service through the star rating and may terminate the drivers’ relationship with Uber if drivers’ performance does not improve after repeated warnings.

After reviewing these factors, the Court found that the drivers were indeed workers.  Drivers were in a position of subordination to Uber and drivers could only increase their earnings by working longer hours.  Put differently, Uber exercises significant control over its drivers’ work, rejecting Uber’s argument that it simply facilitates transactions between drivers and passengers.

In addition, the Court stated that drivers should be considered working not only when driving a passenger, but also whenever they are logged in to the app.  This is a significant finding because Uber drivers typically spend time waiting for individuals to book rides on the app.  The Court ruled that drivers’ working time is not limited to the time when a passenger is in the car.

The case now returns to the employment tribunal, which could order Uber to pay compensation to the group of original claimants.

Practical Effect on the Gig Economy

Because this litigation was filed in 2016 and only concerned a small number of Uber drivers, it is unclear whether this verdict will have far and wide-reaching implications.  This is the case because Uber believes that it has made significant changes to its business since 2016.  Uber has stated that (i) it provides drivers with new protections such as free insurance in case of sickness or injury and (ii) drivers now have more control over how they earn money.

This ruling, however, may make it more difficult for employers to engage individuals via digital platforms and to assert that they are self-employed contractors, despite contractual documentation that may state otherwise.

Litigating drivers’ employment classification status is not new for Uber, as similar lawsuits have been and continue to be filed across the company’s global operations.  In Uber’s home state of California, for example, drivers have sued to invalidate a ballot measure (Proposition 22) that was approved last year and exempted Uber and other gig economy platforms from reclassifying drivers as employees.  In the European Union, policy makers are expected to publish recommendations for improving working conditions for gig-economy workers in the coming weeks.

Whether this Supreme Court decision sets precedent for other workers and employers in the gig economy throughout the United Kingdom and European Union remains uncertain, especially because the underlying legal analysis is highly fact-sensitive.

We are monitoring these developments closely and will report on any trends or decisions affecting the gig economy.

As featured in #WorkforceWednesday:  This week on our special podcast series, Employers and the New Administration, we look at how the Biden administration’s approach to wage and hour issues will impact employers. Special podcast episodes air every other #WorkforceWednesday.

The Wage and Hour Division of the U.S. Department of Labor (DOL) has already adopted the Biden administration’s commitment to enforcement, its movement against arbitration agreements, and a fresh view on worker classification. What other wage and hour developments can employers expect under President Biden?

This episode features special guest Jon Steingart, a senior reporter for Law360’s new and expanded Law360 Employment Authority, and attorney Paul DeCamp, a past Administrator of the DOL’s Wage and Hour Division. Attorney David Garland leads the conversation.

See below for the video and the extended podcast edition. Visit our site for more news.

Video: YouTube, Vimeo.

Extended Podcast: Apple Podcasts, Google Podcasts, Overcast, Spotify, Stitcher.

As we previously reported, the Massachusetts Department of Family and Medical Leave (“DFML” or the “Department”) continues to provide guidance as it rolls out the state’s Paid Family and Medical Leave program (“PFML” or the “law”), which provides eligible workers with partial income replacement benefits for qualifying reasons.  As a reminder, beginning January 1, 2021, workers may take paid family leave to: (i) bond with a newborn, newly adopted child, or new foster child; (ii) manage family affairs for a family member who is on active military duty in a foreign country; and (iii) care for a family member who is a covered service member.  Also as of January 1, 2021, workers may take paid medical leave to manage a personal illness or serious injury that incapacitates them from working.  Finally, beginning July 1, 2021, all PFML benefits will become available, including family leave to care for a family member with a serious health condition.

Interaction with Other Benefits

We also previously reported that, according to the DFML’s Frequently Asked Questions page, workers cannot “top off” PFML benefits by using accrued paid time off (“PTO”) provided by their employer (although an employer with a private plan exemption offering paid leave benefits that are equal to or more generous than those provided under the PFML can allow workers to supplement the private plan exemption benefit amount with accrued paid leave).  Based on the latest in the DFML’s gradual release of guidance on the PFML, as well as on conversations with DFML representatives via the Department’s hotline, there appear to be some nuances to this rule, namely:

  • PFML benefits run concurrently with employer-provided PTO, vacation, or sick time. Thus, for example, a worker may take a sick day under the employer-provided sick time policy, but that sick day will count against the worker’s eligibility for PFML benefits for that day (i.e., reduce the total PFML days available by one day) in situations where the reason for the sick day would also qualify for PFML benefits.
  • In cases where an eligible employee on leave receives benefits pursuant to an employer-provided short-term disability (“STD”) plan or a paid parental leave policy, and the plan or policy provides that it runs concurrently with PFML, the worker will be entitled to PFML benefits and then receive a “top off” amount from the employer’s STD plan or paid parental leave benefit. Thus, for example, an eligible employee on parental leave, who normally earns $1,200 per week would be entitled to the current maximum PFML benefit of $850 per week from the DFML; the employee would then be entitled to up to $350 paid from the employer’s paid parental leave policy, thereby receiving a total weekly benefit of the employee’s regular weekly pay, i.e., $1,200. Note, however, that if payments under an employer-provided STD and paid parental leave benefits exceed the employee’s average weekly salary, payments from the DFML will be reduced accordingly.

Covered employers that participate in the state’s plan, and that provide their own STD benefits and/or paid family and/or medical leave programs, may be eligible for reimbursement for payments made by the employer to workers, provided the employer’s benefit is equal to or greater than what the employee would be entitled to under the PFML.  To be eligible for reimbursement, the employer-provided STD and/or paid family and/or medical leave plans must be self-insured.  (See reimbursement guidance).  Employers will not be reimbursed for payments made by a third-party insurer.  In addition, the DFML will not reimburse an employer if the Department sent payments directly to the worker for the period claimed on the employer’s reimbursement application.  Lastly, payments made to workers for earned or accrued time (e.g., PTO, sick and vacation time) or under a private plan exemption are not eligible for reimbursement.

Intermittent Leave

The DFML also issued new guidance on intermittent leave and leave taken on a reduced schedule due to a personal illness or serious injury, to care for a family member, or to care for a covered service-member with a serious illness or injury.  As of January 1, 2021, employers may set minimum leave increments of between 15 minutes and one hour.  The one-hour ceiling is consistent with permissible intermittent leave increments under the federal Family and Medical Leave Act.  If the employer sets no minimum increment, the DFML will default to the 15-minute minimum increment standard.  Notably, the Department will only pay for intermittent or reduced leave claims where the increment is at least 15 minutes, and the worker has accumulated eight hours of leave.  In addition, the worker must notify his or her employer of the intended leave within 30 calendar days of the date of application to the DFML.

Finally, for child-bonding leave to be taken on an intermittent or reduced leave schedule, the worker and employer must agree to such an arrangement and an appropriate schedule.

We understand that more guidance may be forthcoming.  We continue to monitor PFML guidance, and will provide updates on any further significant changes or refinements to the PFML program.

*Law Clerk – Bar Admission Pending

face-mask-shutterstock_1647954946

Our colleagues Susan Gross Sholinsky and Jenna Russell* of Epstein Becker Green have a new post on the Health Employment and Labor blog that will be of interest to our readers: “Make Sure it’s a Good Fit: The CDC Issues Revised COVID-19 Mask Guidance”.

The following is an excerpt:

On February 10, 2021, the Centers for Disease Control and Prevention (“CDC”) issued updated guidance and a report emphasizing the importance of a wearing a mask that fits tightly over the face to slow the spread of COVID-19.  The report, which provides the basis for the CDC’s updated guidance, is based on CDC experiments that showed “substantially improved source control and reduced wearer exposure” when worn properly. The publications recommend two specific ways to ensure a mask works the best it can: (1) make sure the mask fits snugly against the face and (2) pick a mask with layers, or double mask.

The guidance, presented in the form of an illustrated poster, titled “Improve How Your Mask Protects You,” includes specific recommendations for how to wear a mask for maximum protection against contracting or transmitting the coronavirus including to:

    • Choose a mask with a nose wire;
    • Use a mask filter or brace to prevent air leakage;
    • Check for a snug fit over nose, mouth and chin;
    • Wear a cloth mask with multiple layers or a disposable mask under a cloth one; and
    • Knot and tie ear loops of 3-ply masks where they join the edge of the mask and tuck in any unneeded material around the edges (see CDC’s instructional video).

The guidance also includes recommendations of what not to do, including, not to:

    • Combine disposable masks; or
    • Combine a KN95 mask with any other mask.

Click here to read the full post on the Health Employment and Labor blog.

As featured in #WorkforceWednesday:  This week kicks off Employers and the New Administration, a special podcast series on how the Biden administration’s first 100 days will impact employers. In this episode, attorney David Garland interviews attorney Gregory Keating on what the nomination of Marty Walsh as Labor Secretary means for employers.

The series will air every other week in #WorkforceWednesday and on your preferred podcast platform.

See below for the video and the extended podcast edition. Visit our site for more news.

Video: YouTube, Vimeo, Instagram.

Extended Podcast: Apple Podcasts, Google Podcasts, Overcast, Spotify, Stitcher.