CO Sick Leave Update

There’s updated guidance to the CO Healthy Families and Workplaces Act (HFWA). Colorado’s Department of Labor and Employment (CDLE) now address leave carryover:

  1. An employee earns 48 hours of accrued leave in a benefit year, and uses 8 of those hours during the year. This means that (A) 40 hours of unused, accrued leave “carry forward” and the employee can use these 40 hours in the next benefit year, and (B) the employee will continue to earn accrued leave, up to an additional 8 hours (for 48 hours total), during the benefit year. Another employee earns 48 hours of accrued leave in a benefit year, and uses none of those hours; so, 48 hours “roll over” for use in the next benefit year, and the employee doesn’t earn any more accrued leave during that year, because they have already been provided with 48 hours for the benefit year.
  2. Any accrued but unused sick leave at the time a PHEL request is made may be counted toward the 80-hour entitlement as a “credit.” So, employers do not need to calculate the amount of PHEL an employee is entitled to until the employee actually makes a request for PHEL leave. However, employees must still be permitted to use the supplemental leave before using accrued leave.

HI Is Latest State To Restrict Non-Disclosures

Hawaii has now banned nondisclosure agreements (NDAs) In settlements and other contracts that would prevent employees from talking about claims of sexual harassment or sexual assault.

Gov. David Ige signed the legislation (HB 2495) into law on Tuesday. It updates the state’s law on NDAs first enacted in 2020.

  1. The law originally banned employers from requiring workers to sign NDAs “as a condition of employment,” meaning NDAs in settlement agreements or other types of contracts were permitted
  2. Hawaii is now one of 15 states that restrict employers’ use of nondisclosure agreements involving allegations of workplace sexual misconduct.

New EEOC Guidance on COVID Testing

On July 12, 2022, the EEOC updated its Guidance about “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” by updating several Questions and Answers (Q&As) including a question about administering COVID-19 viral tests in the workplace. A summary:

  1. Employers “will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing” for employees, the agency said in an update to its technical assistance guidance.
  2. Previously, it said COVID testing for on-site employees was legal across the board. Now, employers will have to prove that testing employees is a “business necessity,” which can be based on factors like community transmission, workers’ vaccination status, or certain working conditions.

More Reaction to Dobbs

The Biden Administration is relying on the Emergency Medical Treatment and Active Labor Act (EMTALA) for the proposition that abortions performed to save a patient’s life or well-being are legally protected regardless of state laws that may prohibit them. EMTALA requires hospitals to treat people experiencing emergency medical conditions, including pregnant patients whose health is in “serious jeopardy.”

“Under the law, no matter where you live, women have the right to emergency care — including abortion care,” HHS Secretary Xavier Becerra said in a press release. “Today, in no uncertain terms, we are reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care.”

RI Passed “Tipped Employee” Law Mirroring FLSA

RI  Public Law 2022-245 defines “tipped employee,” like the FLSA, as one who regularly and customarily receives at least $30 in tips per month. Employers and employees are prohibited from entering into any agreement that would allow the employer to keep any portion of an employee’s tips. However, employers may have a valid tip pooling or sharing arrangement among employees who customarily and regularly receive tips so long as they provide notice of the arrangement.

Fed Court Holds COVID Prep Time Isn’t Compensable

In Pipich v. O’Reilly Auto Enterprises, LLC (S.D. Cal. Mar. 15, 2022), a federal court in California held that “A pre-shift COVID screening is not the “principal activity or activities which [the] employee is employed to perform.” 29 U.S.C. § 254(a)(1). O’Reilly did not hire the employees to undergo health screenings, but instead to load and transport products to stores…. [T]he pre-shift COVID screenings were not “integral and indispensable” to the employees’ duties because the screening was not an intrinsic element of the loading and transporting of products to the stores. The screenings were not indispensable to the employees’ duties because O’Reilly could eliminate them completely without hindering the employees’ ability to perform their duties…. A pre-shift COVID temperature check and short questions regarding exposure do not share the required nexus with Plaintiff’s duties of retrieving automotive parts and delivering them to auto part stores to make the screening a compensable activity that is integral and indispensable to those activities.”

Biden Executive Order In Response To Dobbs

President Joe Biden signed an Executive Order on July 8, 2022, designed to protect access to reproductive health care service, including tasking:

  1. the Secretary of Health and Human Services (HHS) to consider actions, including HIPAA guidance, to strengthen the protection of sensitive information related to reproductive healthcare services and bolster patient-provider confidentiality. The Secretary also must work with the US Attorney General to consider actions designed to educate consumers on protecting privacy and limiting the collection and sharing of their sensitive health information.
  2. the Chair of the Federal Trade Commission (FTC) to consider actions to protect consumers’ privacy when seeking information about and provision of reproductive healthcare services.
  3. the Secretary to consult with the FTC Chair and Attorney General on ways to address deceptive and fraudulent practices related to reproductive healthcare services, including online, and to protect access to accurate information.

SCOTUS Allows Arbitration in CA

The Supreme Court ruled that employers can enforce arbitration agreements in California to the extent they require an employee to arbitrate individual claims under the state’s Private Attorneys General Act (PAGA). Logically, once the employee’s individual claims under PAGA are compelled to arbitration, the employee would not have standing to bring a representative claim under PAGA on behalf of other aggrieved employees.

IL CROWN Act In Effect

The CROWN (Create a Respectful and Open Workplace for Natural Hair) Act went into effect on July 1st. The law creates a definition of “race” under the Illinois Human Rights Act to include “traits associated with race, including, but not limited to, hair texture and protective hairstyles such as braids, locks, and twists.”

Written by: Gordon M. Berger, Partner 

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