During a May 10, 2021 press conference, Governor Andrew Cuomo announced his intention to propose legislation aimed at stopping discrimination against those who choose to get vaccinated against the COVID-19 virus. Unlike many states that are introducing legislation to prevent discrimination against those who are unvaccinated, this bill would protect those who are vaccinated.  The Governor referenced a report that certain summer camps are not allowing campers to attend or staff members to work at the camp if they have received the vaccine. Audio of his remarks is available here.

Governor Cuomo stated, “I want to propose a law that says you can’t discriminate against a person who has a vaccine… I understand the anti-vaccine argument. In my opinion, there is no science to it. There is no science to it. You can have a theory, you can have a belief, but you can’t use that to make public policy without science and without data.”

The Governor did not lay out a timeline for when the legislation could be presented to state legislators, nor did he provide any further specifics regarding his proposal, including whether the bill could impact employers who are choosing to treat vaccinated and unvaccinated employees differently in terms of returning to the physical workplace. Epstein Becker & Green will monitor the proposed legislation and provide updates as they become available.

The Illinois Employee Sick Leave Act (“Act”) is what is known as a “kin care” law; i.e., it generally requires Illinois employers that provide paid or unpaid personal sick leave benefits to their employees to allow employees to use such leave to attend to a covered family member’s illness or injury, “on the same terms” as the employees would use their sick leave benefits for their own illness or injury. A “covered family member” means an employee’s “child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.” The Act does not mandate that employers provide sick leave benefits; rather, it only expands the purposes for which employees may use such benefits, should the employer provide them.

Now, under an amendment to the Act, signed into law on April 27, 2021 by Governor J.B. Pritzker, the Act permits employees to use their personal sick leave benefits to attend to the “personal care” of a covered family member. The amendment defines “personal care” as “activities to ensure that a covered family member’s basic medical, hygiene, nutritional, or safety needs are met, or to provide transportation to medical appointments, for a covered family member who is unable to meet those needs himself or herself.” “Personal care” also includes “being physically present to provide emotional support to a covered family member with a serious health condition who is receiving inpatient or home care.”

As a reminder, the Act permits employers to limit the use of personal sick leave benefits for kin care to “an amount not less than the personal sick leave that would be earned or accrued during 6 months at the employee’s then current rate of entitlement.” Employers who calculate personal sick leave benefits on an employee’s years of service, instead of on annual or monthly accrual, may limit the amount of sick leave to be used for family members “to half of the employee’s maximum annual grant.”

Further, an employer’s kin care policy may require employees to provide written verification of the employee’s absence for kin care from a health care professional, as long as the employer requires such verification when employees use sick leave for absences due to their own illness or injury.

Illinois employers that provide sick leave benefits should ensure that their policies reflect this recent change in the law.

As featured in #WorkforceWednesday: This week, we look at the return to Obama-era employment and labor policies, with a key difference: unionization.

The City of Chicago recently enacted the Chicago COVID-19 Vaccine Anti-Retaliation Ordinance.

The Vaccine Anti-Retaliation Ordinance allows workers in Chicago – including independent contractors — to get vaccinated during a scheduled “shift,” requires pay for hours taken to get vaccinated (if an employer mandates the vaccine), and prohibits retaliation for getting vaccinated during a scheduled shift.

Specifically, the Chicago Vaccine Anti-Retaliation Ordinance provides as follows:

  1. An employer may not require that a worker only be vaccinated during “non-shift” hours or retaliate against a worker for taking time during a “shift” to get vaccinated. A “shift” is defined as “the consecutive hours an Employer schedules a Worker to work, including Employer-approved meal periods and rest periods.”
  2. An employer must allow a worker to use accrued paid sick leave or other paid time off to get vaccinated.
  3. If an employer requires a worker to get vaccinated, the employer must compensate the worker for the time, up to four hours per dose, if the vaccine appointment is during a “shift,” and the employer cannot require the worker to use accrued paid sick leave or paid time off to cover the hours missed to get vaccinated.

The Ordinance provides that Employers found to have violated this Ordinance will be liable for “a fine of between $1,000 and $5,000,” but the Ordinance provides no further detail regarding how any potential fine is to be calculated. Additionally, workers subject to a violation of this Ordinance may recover in a civil action reinstatement to either the same position held before the retaliatory action or to an equivalent position, damages equal to three times the full amount of wages that would have been owed had the retaliatory action not taken place, as well as any other actual damages and attorney’s fees.

The bottom line is this:  Chicago employers should review their company policies to ensure that they do not run afoul of these newly enacted worker protections.

On March 3, 2021, New York City Mayor Bill DeBlasio issued Executive Order No. 64 (“EO”), which, effective immediately, imposes new sexual harassment reporting requirements on “human services” providers who contract with the City.  The EO requires the Department of Investigation (“DOI”) to review information about sexual harassment complaints and provide its findings to any City agency that contracts with the disclosing provider.

“Human services” is defined by the relevant section of the Administrative Code to include “day care, foster care, home care, homeless assistance, housing and shelter assistance, preventive services, youth services, and senior centers; health or medical services including those provided by health maintenance organizations; legal services; employment assistance services, vocational and educational programs; and recreation programs.”

The EO mandates that all City agencies that contract with outside entities for the provision of human services amend existing contracts to require that the contractors provide information about sexual harassment complaints, whether made by an employee, client, or other person.  Specifically, such amendment shall require the contractor to make available to the DOI the following:

  • The contractor’s anti-harassment policies, including reporting procedures (to be submitted to the DOI via PASSPort, the City’s digital procurement portal);
  • Any complaint or allegation of sexual harassment, or retaliation on the basis of a sexual harassment complaint, brought by any person against the Chief Executive Officer or equivalent principal of the organization in any venue, including the organization’s internal equal employment opportunity process. The contractor should redact the names and identifying information of individuals, except the accused, and provide the complaint to the DOI within 30 days of receipt via secure means to be determined by the DOI;
  • The final determination or judgment concerning any such complaint, also redacted as to the name and identifying information of individuals other than the accused; and
  • Any additional information the DOI requests in order to effectuate its review of any investigation and determination, including redacted information.

The contractor’s Board of Directors or “equivalent authority” must certify annually that it has made all required disclosures or that it has no new information to report.  Notably, the EO does not give contractors the discretion to withhold unsubstantiated complaints or allegations.  The reporting obligations under the EO do not relieve the contractor of its duty to investigate sexual harassment complaints or allegations, or of any other contractual obligations.

The DOI, upon review of a contractor’s disclosures, will share its findings with City agencies, which may consider the findings, as well as a contractor’s failure to comply with the disclosure requirements, when awarding or renewing a contract.  City agencies are to begin immediately amending existing contracts to include the new disclosure requirements and ensure that all future contracts reflect these provisions.

Epstein Becker & Green is continuing to monitor these developments and will provide further updates as they become available.

As featured in #WorkforceWednesday:  While the Equal Employment Opportunity Commission says that employers can institute mandatory vaccination policies, there are many legal considerations that come with those policies, especially as more employees return to work. And employers that do not mandate vaccines are wondering what workplace rules they can implement without legal risk. Attorneys Jennifer Barna and Nathaniel Glasser tell us more. You can also read more about the legal considerations of mandating vaccination.

Video: YouTubeVimeo.
Podcast: Apple PodcastsGoogle PodcastsOvercastSpotifyStitcher.

 

On May 3, 2021, New York Governor Andrew Cuomo and New Jersey Governor Phil Murphy announced a significant easing of COVID-19-related capacity restrictions on businesses in their respective states. Governor Ned Lamont of Connecticut, who joined the other two governors in the announcement, had previously ordered a comparable lifting of capacity restrictions in his state.

Specifically, effective May 19, New Jersey and New York will remove most capacity limitations on businesses, which are currently based on a percentage of maximum capacity, and replace them with limitations based on the space available for individuals to comply with the social distancing mandate of six-feet; Connecticut’s easing of restrictions will also be in place by May 19. It is not yet clear how the new social-distancing requirement will be enforced, since, as of this writing, only Governor Murphy has issued an executive order regarding the removal of capacity limitations for businesses, and it does not contemplate enforcement. Additionally, no other formal guidance has been issued.

The New York and New Jersey announcement provides that “this new distance-based maximum capacity will apply across commercial settings,” including retail stores, food services, gyms and fitness centers, amusement parks, museums, and beauty salons. As Governor Cuomo stated in the press conference accompanying the announcement, the new standard applies to office-based businesses as well, although the text of the announcement does not explicitly reference offices.

Governor Cuomo cited increased vaccination rates and the general decline of COVID-19 cases in New York when announcing the easing of the capacity restrictions, which he characterized as a move “towards returning to normal.”

The current announcement comes on the heels of Governor Cuomo’s announcement last week that, effective May 15, office capacity in the state would increase from 50 percent to 75 percent. Governor Murphy also made a similar announcement last week that, effective May 10, indoor room capacity for certain events would increase to 50 percent, with a maximum of 250 individuals. These decisions now appear to be superseded by the most recent announcement.

Epstein Becker & Green is continuing to monitor these developments and will provide further updates as they become available.

 

Christopher Shura Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.

As featured in #WorkforceWednesday:  This week, several COVID-19 vaccine news developments and updates were announced for employers.

Paid Leave Tax Credit for Employers

President Biden recently announced employers that offer full pay to workers for vaccinations and recovery may be entitled to a paid leave tax credit.

EEOC Promises Guidance on COVID-19 Vaccine Incentive Programs

EEOC acting legal counsel Carol Miaskoff said recently that the agency will release guidance on vaccine incentive programs.

OSHA Offers Guidance on Vaccine Reaction Reporting

Guidance from OSHA states that only employers that mandate vaccines are required to record adverse reactions. This applies to all employers that penalize employees with employment consequences if they don’t get vaccinated.

Video: YouTubeVimeo.

As featured in #WorkforceWednesday: This week, our special podcast series, Employers and the New Administration, concludes with a look at how President Biden’s landmark American Rescue Plan impacts employers.

As President Biden’s first 100 days come to a close, his $1.9 trillion American Rescue Plan Act of 2021 (ARPA) is having a big impact on employers. The plan, one of the largest stimulus bills in history, attempts to provide relief to constituents affected by the COVID-19 pandemic through several ways, among those ways are changes to employee benefits and compensation.

In this episode, Grace Melton, Washington National Tax Compensation and Benefits Practice Leader at Deloitte Tax, and attorney Gretchen Harders discuss how ARPA affects employers and what adjustments to benefits and compensation employers need to review. Attorney David Garland leads the conversation.

Employers and the New Administration is a special podcast series from Employment Law This Week®, with analysis on the first 100 days of the Biden administration. Listen to the full series on your preferred podcast platform.

See below for the video edition and the extended audio podcast:

Video: YouTubeVimeo.

Extended Podcast: Apple PodcastsGoogle PodcastsOvercastSpotifyStitcher.

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (“ARPA”).  ARPA is the latest COVID-19-related stimulus legislation passed by Congress, but, unlike prior legislation, ARPA provides expansive funding rule changes and significant financial assistance to deeply underfunded multiemployer pension plans, including a one-time payment to certain plans from the Pension Benefit Guaranty Corporation (“PBGC”) without any repayment obligations.

ARPA’s provisions regarding multiemployer pension plans focus primarily on the plans themselves as well as their participants and beneficiaries.  Nevertheless, employers who are contributing or who contemplate future contributions to a multiemployer pension plan (including those employers contemplating withdrawal) should all be cognizant of ARPA’s impact.

A. Relief to Improve Financial Status of Multiemployer Pension Plans

Under ARPA, eligible multiemployer pension plans may elect to retain for plan year 2020 or 2021 (known as the “designated plan year”) the zone status that applied to the plan for the prior year.  This pertains to the requirements set forth under the Internal Revenue Code Section 432 and ERISA Section 305, which provide funding rules for multiemployer pension plans in endangered, critical, or critical and declining status.  In general, multiemployer pension plans that are less than 80 percent, but not less than 65 percent, funded are referred to as being in endangered status (aka “yellow zone”), and plans that are less than 65 percent funded are referred to as being in critical status (aka “red zone”).  Plans that are in critical and declining status are plans that generally are less than 65 percent funded and projected to be insolvent in the next 10 years.

ARPA allows plans to freeze their funding status in a designated plan year, despite changes that occurred to their financial status since that election, thereby enhancing the stability of their regulatory treatment.  For example, if a plan was in endangered status for the plan year ending December 31, 2020, the plan can elect to retain its endangered status from 2019, despite any changes in other financial circumstances.  In addition, ARPA provides plans that are in endangered or critical status and that have already implemented funding improvement plans or rehabilitation plans, respectively, with the option to extend those plans by five years to allow more time to reach their funding targets.  This allows plans to delay taking any action to offset losses incurred as a result of the COVID-19 pandemic.

Relatedly, ARPA also allows trustees of underfunded plans to elect to amortize experience losses related to COVID-19 over 30 years (rather than the current 15) for either or both of the two plan years ending after February 29, 2020.  In addition, investment losses, losses due to reductions in contributions or employment, and deviations from assumed retirement rates can be recognized over the extended period.  Trustees of eligible plans may also elect to smooth asset losses incurred in either or both years over a period of 10 years (rather than 5) in determining the actuarial value of assets.  Essentially, this relief allows multiemployer pension plans to reduce detrimental COVID-19-related financial losses in a given year’s annual accounting.

That said, ARPA’s relief is subject to various limitations.  Certain of these elective provisions are available only if the plan is not receiving the financial assistance described below and otherwise passes a solvency test.  In addition, the plan may not improve benefits and simultaneously reap relief provided for under ARPA, unless the plan’s actuary certifies that certain tests have been met.

B. Financial Assistance to Multiemployer Pension Plans

Of particular note, ARPA also provides relief in the form of a lump sum cash payment to severely distressed plans. The law establishes a special financial assistance program that provides eligible underfunded multiemployer pension plans with direct financial support from the PBGC to help plans pay their participants’ benefits through 2051.  The relief, however, applies only to plans that are severely financially distressed and that meet one or more of the following criteria:

  • “the plan is in critical and declining status … in any plan year beginning in 2020 through 2022”;
  • the plan has been previously approved for “a suspension of benefits” under the Multiemployer Pension Reform Act of 2014 (“MPRA”);
  • the plan is in critical status, as certified by an actuary, for “any plan year beginning in 2020 through 2022,” with a current liability funded percentage below 40% and with the plan having a ratio of active plan participants to inactive plan participants of less than two to three; and/or
  • “the plan became insolvent … after December 16, 2014, and has remained so insolvent and has not been terminated as of [March 11, 2021].”

The deadline for plans to apply for special financial assistance is December 31, 2025, with revised applications due no later than December 31, 2026.  ARPA allows the PBGC to prioritize applications from plans that are within 5 years of failure, have unfunded liabilities eligible for guarantee by PBGC in excess of $1 billion, or have previously implemented benefit suspensions.  The PBGC may restrict applications to such priority plans during the 2-year period following ARPA’s enactment. Under ARPA, the PBGC has 120 days to review an application, after which the application will be deemed to be approved if the PBGC has not acted on it.

Plans in critical and declining status, and insolvent plans that receive assistance must reinstate suspended benefits.  In addition, the plans must provide participants and beneficiaries with retroactive payment―either in a lump sum or in level monthly payments over five years―for past benefits that were suspended (i.e., not paid).

Of importance, ARPA does not require multiemployer pension plans receiving financial assistance to repay the PBGC for any amount of the financial assistance payment; however, plans may use the financial assistance payments only for such things as benefit payments and plan expenses.

As explicitly directed by ARPA, the PBGC must publish regulations or guidance regarding the law by July 9, 2021 (i.e., within 120 days of ARPA’s March 11, 2021 enactment), to establish conditions plans must meet to receive financial assistance payments.  These may include, for example, conditions relating to increases in future accrual rates and any retroactive benefit improvements, allocation of plan assets, reductions in employer contribution rates, diversion of contributions to, and allocation of expenses to, other benefit plans, and withdrawal liability.  In addition, the PBGC may require repayment of some or all of the financial assistance payments, if a plan fails to satisfy required conditions.

C. ARPA’s Impact on Employers

ARPA’s primary impact on employers is to call their attention to anticipated regulatory developments and potential changes in plans’ policies resulting from plan elections allowed by ARPA discussed earlier in this article. As previously stated, Congress has directed the PBGC to issue “regulations or guidance” over the coming months, and more clarity on the potential impact of ARPA on multiemployer pension plans and employers is expected.  In the meantime, employers that are contributing to a multiemployer pension plan that elects one or more elements of ARPA’s funding relief should monitor possible changes in the plan’s policies affecting employer contributions.  Similarly, employers that are contemplating withdrawal from a plan that elects one or more elements of ARPA’s funding relief, or that receives financial assistance under ARPA, should also monitor the directions of ARPA rulemaking and guidance, and the effect they may have on how the plan deals with employers that are withdrawing from the plan and on withdrawal liability calculations.