The American Rescue Plan Act (“the Act”) signed in March 2021 provides for a 100% COBRA premium subsidy for certain individuals who are eligible for and enroll in COBRA coverage between April 1, 2021 and September 30, 2021. Employers sponsoring health plans should take action quickly to ensure that the subsidy is properly administered and consider its effects on any planned layoffs or other severance events.
HuntonAK labor and employment partner Emily Burkhardt Vicente was honored by the Los Angeles Business Journal’s 2021 Diversity & Inclusion Awards as a nominee for Best Diversity & Inclusion Executive of the Year.
The awards program recognizes diversity and inclusion champions in the Los Angeles region for their ongoing efforts to celebrate and respect the unique needs and perspectives of all their team members while simultaneously creating an inclusive environment that enables diversity to thrive.
Emily serves as co-chair of the firm’s Diversity & Inclusion Committee, which is dedicated to advancing the promotion, retention and advancement of diverse lawyers and staff within the firm and community. In her practice, Emily also helps clients design and implement effective diversity and inclusion programs. Beyond the firm, she dedicates time to advancing diversity and philanthropic causes in the community. Emily is actively involved in the LA County Bar Association’s Diversity and Inclusion Leadership Committee.
Emily was previously recognized by the Los Angeles Business Journal as part of the “Thriving in their 40s” award; and named among Women Worth Watching, by Profiles in Diversity Journal, 2020.
Read the Firm press release for additional information.
It is early in 2021 and already the NLRB has before it ALJ determinations that employee handbook policies conflict with the NLRA. When analyzing employee handbook policies, the Board generally applies the Boeing test, whereby a handbook policy’s potential interference with employee rights under the NLRA is balanced against an employer’s legitimate justifications for the policy, when viewing the policy from the employee’s perspective. While the NLRA and the Boeing test apply to a number of employee handbook policies, confidentiality, social media, and solicitation/distribution policies are especially vulnerable.
The Seventh Circuit Court of Appeals recently decertified a class of female correctional facility employees who alleged gender discrimination based, in part, on a theory of “ambient” harassment. The opinion underscores how the individualized nature of harassment claims can act as a barrier to class certification.
Nature of Claims
Female employees of the Cook County Jail Complex sued their employer for gender discrimination based on the County’s alleged failure to prevent and remedy male prison inmates’ sexual harassment of the plaintiffs. Plaintiffs claimed that Cook County permitted this harassment to go unchecked and failed to maintain effective procedures to prevent and remedy the harassment.
Employers with more than 25 employees must provide COVID-19 supplemental paid sick leave to their California employees under a recent law signed by the Governor. This new law is broader than California’s prior COVID-19 paid sick leave law and, unlike the prior law, also covers employees who telework. The new sick leave entitlement is retroactive to January 1, 2021 and extends until September 30, 2021.
Who Must Provide Supplemental Paid Sick Leave?
SB 95 covers all employers with more than 25 employees. California’s prior COVID-19 sick leave law (Assembly Bill 1867) expired on December 31, 2020, and applied only to private businesses with 500 or more employees.
California employers may mandate employee vaccination under new guidance from the State’s Department of Fair Employment and Housing (DFEH). With the opening up of California businesses and expansion of vaccine eligibility, a key question facing employers has been whether they can require their employees to get vaccinated. On March 4, 2021, California’s DFEH finally weighed in with its updated COVID-19 Guidance on several open questions regarding employee vaccination under California law. The U.S. Equal Employment Opportunity Commission (EEOC) provided similar initial guidance late last year on how mandatory vaccination programs could comply with federal law.
The U.S. Department of Labor recently issued guidance to state unemployment insurance agencies, expanding the categories of workers that are eligible for Pandemic Unemployment Assistance. The PUA program was created in March 2020 to provide payments to certain people affected by COVID-19, as well as independent contractors and gig workers who do not usually qualify for unemployment insurance. While funded by the federal government, states are responsible for administering it.
New Eligibility Categories
This new DOL guidance expands eligibility to three categories of workers:
- Workers receiving unemployment benefits who had been denied continued unemployment benefits claims because they refused to work or accept an offer of work at a worksite not in compliance with coronavirus health and safety standards;
- Workers laid off, or who have had their hours reduced as a direct result of the pandemic; and
- School employees working without a contract or reasonable assurance of continued employment who face reduced paychecks and no assurance of continued pay when schools are closed due to coronavirus.
The guidance does not pertain to individuals who quit their job due to COVID-19. The guidance states that this “new COVID-19-related reason applies only to individuals who had already been receiving unemployment benefits but were determined to be ineligible or disqualified under state law because they refused an offer of work at a worksite that was not in compliance with local, state or national health and safety standards directly related to COVID-19.” The DOL added that there is a separate item in the CARES Act providing eligibility to an individual who quits his or her job as a direct result of COVID-19.
Examples of New Eligibility
The DOL provided examples as part of its guidance. For example, an individual who was laid off in June 2020, received regular unemployment compensation, and was then recalled to work in October 2020, but because the worksite was not in compliance with the local mask mandate, the individual refused to return to work. Previously, the individual was disqualified from continued receipt of regular unemployment compensation under state law, but now the individual is eligible to apply for PUA under this new COVID-19-related reason.
In another example, an individual was laid off in October 2020 and received regular unemployment compensation, but was disqualified from continued receipt of the unemployment compensation when he declined a new job offer in January 2021 due to noncompliance by the workplace with physical distancing measures under state law. The individual is now eligible to apply for PUA under this new COVID-19 related reason.
The expanded eligibility categories can be applied retroactively – they apply as if they had been included from the beginning of the PUA program. Individuals filing their first initial PUA claim after Dec. 27, 2020, however, are limited to unemployment beginning on or after Dec. 6, 2020.
While COVID-19 may have hit the business community like a hurricane, whether the pandemic, in fact, qualifies for a natural disaster exception under the federal law requiring businesses to warn employees of impending layoffs, remains an open question.
This February, a federal judge paved the way for the Eleventh Circuit to weigh in on whether a class action can proceed against an employer who was forced to lay off employees due to COVID-19. That case, Benson v. Enter. Leasing Co. of Orlando, LLC, is one of the first to look at the application of pandemic-related layoffs to the Worker Adjustment Retraining Notification Act of 1988, 29 U.S.C. § 2100 et seq. (“WARN Act”). Underscoring the case’s importance to the business community, the U.S. Chamber of Commerce has just filed an amicus or “friend of the court” brief asking the Eleventh Circuit to take up the case and provide “much-needed guidance” to other courts across the country.
Closures of schools and day care centers during the COVID-19 pandemic have put heightened focus on the child care challenges faced by working parents. The California legislature is aiming to address these challenges by introducing a bill that, if passed, would require employers to provide subsidized backup child care benefits to employees. While this may help working parents, it also would place additional burdens on employers, many of whom are already over-taxed by the increased costs and depressed revenues caused by the pandemic.
Many employers use rounding methods to adjust the hours that an employee works to the nearest time increment, such as every five or ten minutes. The California Supreme Court has ruled, however, that this rounding practice is impermissible at the meal period. Equally as troubling for employers, the Court also held that time records showing a noncompliant meal period raise a “rebuttable presumption” of meal period violations.