As President Biden announced under his COVID-19 Action Plan, the Safer Federal Workforce Task Force issued its Guidance for Federal Contractors and Subcontractors on September 24. The guidance has already been approved by the Office of Management and Budget.

On September 9, President Joe Biden announced his COVID-19 Action Plan. The Plan, which includes two new Executive Orders to combat COVID-19 and the Delta variant, would require many employers to mandate that its employees be vaccinated. The mandates will not go into effect until government agencies issue regulations that more clearly explain the requirements. Potentially impacted employers should stay tuned for the upcoming regulations, prepare their workforce and policies for the impending requirements, and continue to monitor the legal landscape. 

On July 6, Kansas Gov. Laura Kelly issued an executive order expanding parental leave for Kansas state employees. Primary caregivers will now receive an extra two weeks of leave, and secondary caregivers will receive one extra week. Importantly, Kansas’s parental leave for state employees is paid at 100% of the employee’s regular salary.

Kansas employees first received paid leave under former Gov. Jeff Colyer in Nov. 2018. Previously, primary caregivers received six weeks of leave, and secondary caregivers received three weeks. Now, primary caregivers will receive eight weeks of leave, and secondary caregivers will receive four weeks. Gov. Kelly’s new executive order also provides the same leave to new foster parents, who previously would not have qualified.

On June 21, 2021, OSHA issued its Covid-19 Emergency Temporary Standards (“ETS”). The ETS is aimed at protecting workers facing the greatest risk of COVID-19—those working in healthcare settings where COVID-19 patients may be treated. Employees working in healthcare services and healthcare support services includes a broad range of employees, outside of just a hospital setting.

The ETS requires employers to implement COVID-19 plans that include the designation of a safety coordinator, a workplace-specific hazard assessment, and policies and procedures to minimize the risk of transmission of COVID-19 to employees. Specifically, this includes patient screening and management plans, standard and transmission-based precautions, PPE, aerosol-generating procedures for those with COVID-19, physical distancing, physical barriers, cleaning and disinfection, ventilation, health screens and medical management, vaccinations, trainings, anti-retaliation policies, recordkeeping, and reporting work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.

Here are some of the additional considerations that employers should be considering:

1. At the outset, it is important to note there are numerous carveouts that exempt a wide range of healthcare providers from the ETS requirements. Employers should carefully assess these carveouts to ensure they are truly covered by the ETS.
    
2. OSHA will use its enforcement discretion for employers who are making a good faith effort to comply with the ETS. It is important to document compliance efforts with the ETS.
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While we may all look back and laugh at Clark Griswold from National Lampoon’s Christmas Vacation and his meltdown from not receiving a Christmas bonus, that may be a very real scenario for many employees this year following the struggles the COVID-19 pandemic brought to most employers.

With elections looming on November 3, it is important for employers to prepare for leave requests associated with voting. Federal law does not require employers to provide leave to vote, but most states do, especially when work hours do not allow sufficient time to vote while the polls are open. Laws also vary between states on the amount of time, whether notice is required, whether the time is paid, and whether the employer can dictate which hours the employee may take leave to vote.

In Kansas, employees are entitled to two consecutive hours of paid time to vote. However, outside the lunch break, employers may specify when the two-hour period may be taken and can require that the two-hour period be taken prior to or after an employee’s regular working hours. For example, if the polls are open from 7:00 am to 7:00 pm and the employee’s scheduled shift is from 8:00 am to 5:00 pm, the employer does not have to provide paid leave because the employee has two consecutive hours after work to vote. Any employer who intentionally obstructs an employee from voting or imposes a penalty on an employee who takes leave to vote is subject to a class A misdemeanor.

One developing area of voting leave law is how employers handle the greater flexibility in voting. If the employee has the option to vote in advance or by mail, does the employee still qualify for leave? Kansas has not yet addressed this question, but      Continue Reading...

On September 8, the EEOC updated its guidance with respect to what employers should know about COVID-19, the ADA Rehabilitation Act, and other EEO laws. Generally, the updates act to clarify previously taken positions of the EEOC.

Two of the important clarifications involve the EEOC’s position on administering COVID-19 tests to employees, and an employers’ ability to invite employees to request disability accommodations.

1. Employers are still able to administer COVID-19 tests if they are accurate and reliable, but the EEOC notes the consideration of false positives and negatives. The EEOC also added the disclaimer that a negative test result does not mean the employee won’t contract COVID-19, and employers should continue requiring social distancing measures.
2. Many employers are still operating from home. In preparation for returning to the physical workplace, the EEOC allows employers to invite employees to submit requests for disability accommodations in advance of their return. This would simply start the interactive process. Those employees who do not request an accommodation in advance would not be barred from later asking.

The Department of Labor continues to update the Q&As regarding the Families First Coronavirus Response Act (FFCRA). The recent updates have big impacts on parents of school-aged children as schools tackle the decision of how to move forward. No matter what local schools and parents decide, it is important that employers be prepared.

Hybrid Learning: Under this model, children would alternate between days attending school in person and participating in remote learning. Here, parents would be allowed to take FFCRA leave on the days that the child is home participating in remote learning, because school is effectively “closed” on the days of remote learning. The requirement still applies that the employee must actually need to care for the child during that time and there is no other suitable person to do so.

Remote Learning: Some schools are choosing to proceed with only remote learning because of COVID-19. Employees with children who attend such schools would be eligible for FFCRA leave while the school is closed, as long as the employee meets the other requirements. In the event the school reopens at a later time, the employee may lose FFCRA eligibility.

Elective Remote Learning: If an employee has the option of allowing his or her child to attend in person classes or participate in remote learning, the situation changes. Employees who voluntarily sign up for remote learning out of fear their child will contract COVID-19 will lose eligibility for leave under the FFCRA because the school      Continue Reading...