Navigating post-pandemic telework requests

For more than a year, many American workers have been working from home. Now, as restrictions are lifting across the country, employers are beginning to call employees back to the office. Employers may see an uptick in requests to work remotely, particularly given the popularity of working from home. In responding to such requests, employers must be mindful of the Americans with Disabilities Act (ADA) and similar state laws.

Large portions of the American workforce report that they enjoy working from home, and the pandemic has shown telework is possible.

A recent study conducted by Harvard Business School Online reveals that some employees are not interested in returning to the office. The survey showed that 81 percent of respondents either don’t want to go back to the office, or would prefer a hybrid schedule (allowing them to work from home 2-3 days a week) going forward. One in three employees report that they felt that their overall performance and quality of their work had improved in the remote work environment, and the same percentage indicated that they are able to focus more at home than they are in the office.

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Equal pay: Comparators in different establishments

In the long-running case of Asda Stores v Brierley and others, the Supreme Court ruled that, for the purposes of an equal pay claim, a group of female retail store employees could rely upon the work of mainly male depot distribution employees for comparison even though they are located at different sites.

Generally speaking, an equal pay claim can only progress if the claimant can establish a disparity between their contractual terms and those of an appropriate comparator of the opposite sex performing equal work at either:

  • the same establishment; or
  • a different establishment where “common terms” apply either generally or between the individual and their comparator.

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Biden’s pay equity priority: federal and state updates, and what federal contractors can expect going forward

Federal contractors and other employers should anticipate greater scrutiny related to their compensation policies and practices as a result of recent policy shifts. President Biden has made it clear that a key priority of his administration is closing the gender and racial wage gap that currently exists in the United States, and that he plans to encourage changes at both the state and federal levels. At the federal level, that means the reintroduction of the Paycheck Fairness Act, the rollout of new policy initiatives, and the issuance of executive orders. This prioritization of pay equity will likely result in renewed enforcement efforts related to pay discrimination from the Office of Federal Contract Compliance Programs (OFCCP). State legislatures also continue to pass laws enhancing pay equity and transparency.

Background

The Equal Pay Act (EPA), passed in 1963, was one of the first anti-discrimination laws enacted and was intended to abolish wage disparity based on sex. The act prohibits wage discrimination between men and women who perform jobs that require substantially the same skill, effort and responsibility within the same company. Despite the existence of the EPA, however, the gender-wage gap still exists with the focus on pay disparities across both gender and race, as evidenced by statistical data.

Biden priority

On International Women’s Day, March 8, 2021, President Biden created the White House Gender Policy Council via Executive Order, to ensure that gender equity and equality are pursued in domestic and international policy. Specifically, the Council is tasked with advancing gender equity and equality by coordinating federal policies and programs that address the structural barriers to women’s participation in the labor force and by decreasing wage and wealth gaps. The Council is to work closely with the Domestic Policy Council, which is coordinating the interagency, whole-of-government strategy for advancing equity, as set forth in Executive Order 13985 of January 20, 2021 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.) In addition, the President has promised additional funding for agencies such as the Equal Employment Opportunity Commission (EEOC), the U.S. Labor Department’s Office of Federal Contract Compliance Programs, and the Justice Department’s Civil Rights Division to investigate violations and enforce pay equity laws.

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Important upcoming changes that UK employers need to be aware of

The start of April sees a number of important changes that employers in the UK need to be aware of:

1st April 2021 – Increases to National Minimum Wage (employers should note the change to the age categories):

  • Age over 23: £8.91 (from £8.72 for over 25 year olds)
  • Age 21-22: £8.36 (from £8.20 for 21-24 year olds)
  • Age 18-20: £6.56 (from £6.45)
  • Age 16-17: £4.55 (from £4.62)
  • Apprentices: £4.30 (from £4.15)

4th April 2021 – Statutory rate increases:

  • Statutory sick pay: £96.35 per week (up from £95.85)
  • Statutory maternity, paternity, adoption, shared parental, and parental bereavement pay: £151.97 per week (up from £151.20)

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California requires new COVID-19 Supplemental Paid Sick Leave in 2021

On March 19, 2021, Governor Newsom signed Senate Bill 95 (SB 95), which creates, in part, new Labor Code Section 248.2.[1] As a reminder, Governor Newsom previously signed AB 1867, which added Labor Code sections 248 and 248.1 to provide COVID-19 Supplemental Paid Sick Leave to food sector workers and employees who worked for employers with 500 plus employees nationwide, respectively. Those requirements expired on December 30, 2020.

Section 248.2 provides covered employees with up to 80 new hours of COVID-19 supplemental paid sick leave (SPSL). SPSL is sick leave in addition to paid sick leave employers are already required to provide under the Health Workplaces, Healthy Families Act. This new requirement goes into effect on March 29, 2021 (although, as discussed below, leave provided on or after January 1, 2021 may be applied retroactively) and expires on September 30, 2021, unless otherwise extended. The Labor Commissioner has already published FAQs for Labor Code section 248.2 here.

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New Jersey issues guidance confirming employers can mandate COVID-19 vaccines

New Jersey has confirmed that employers can mandate their employees be vaccinated for COVID-19. This move aligns New Jersey with federal guidance previously issued by the EEOC. Other states, such as California, have also issued similar guidance and the trend is expected to continue.

Consistent with federal guidance from the EEOC, the New Jersey guidance provides that employers may require employees to be vaccinated to be present on the worksite, however, employers must provide reasonable accommodations for employees who: (i) have a disability, (ii) have been advised not to get the vaccine while pregnant or breastfeeding, or (iii) who will not get the vaccine due to sincerely held religious beliefs. Note, however, that if no reasonable accommodation can be provided, an employer can enforce its policy of excluding unvaccinated employees from the workplace. Continue Reading

Congress extends payroll tax credits to employers voluntarily providing FFCRA paid leave and expands leave provisions

As of January 2021, providing FFCRA paid leave is optional. Employers choosing to provide FFCRA Paid Leave to their employees on a voluntary basis can now receive a payroll tax credit to cover the wages paid through September 30, 2021 (subject to applicable caps). 

Last year, in response to the COVID-19 Pandemic, Congress passed the Families First Coronavirus Response Act (FFCRA), which mandated that most employers with fewer than 500 employees provide their workers with paid sick leave or expanded family and medical leave for COVID-19 related reasons. In doing so, employers received payroll tax credits for providing the paid leave. FFCRA’s mandate ended on December 31, 2020.

Congress extended the FFCRA through the Consolidated Appropriations Act of 2021 to March 31, 2021 on a voluntary basis to those employers who provided paid leave to qualified employees. Employers voluntarily providing paid leave could continue to receive a tax credit for the wages. On March 11, 2021, President Biden signed into law another COVID-19 federal stimulus package, the American Rescue Plan Act (ARPA). The ARPA extends the FFCRA and the employer tax credits through September 30, 2021 on a voluntary basis. The ARPA also adds qualifying reasons for paid leave.

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The California Department of Fair Employment and Housing blesses employers’ use of mandatory vaccination policies

Recently the California Department of Fair Employment and Housing (DFEH) released guidance stating that employers generally may require their employees to receive a Food and Drug Administration approved vaccination against COVID-19. Under California’s Fair Employment and Housing Act (FEHA), an employer may implement a mandatory vaccination policy so long as the employer:

  1. Does not discriminate against or harass employees or job applicants on the basis of a protected characteristic;
  2. Provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices; and
  3. Does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).

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New York eliminates quarantine for domestic travel effective April 1

New York is doing away with its quarantine requirement for out-of-state travelers.

By way of background, in June 2020, New York issued a COVID-19 Travel Advisory requiring certain travelers to quarantine upon entry to New York. In November 2020, New York modified its travel advisory to permit out-of-state travelers to test out of its mandatory quarantine. In a surprising move, however, on March 11, 2021, Governor Cuomo’s office issued a press release stating that domestic travelers will no longer be required to quarantine upon entry to New York from another state or U.S. territory.

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New York to provide paid leave for COVID-19 vaccination

On March 12, Governor Andrew Cuomo signed into law a bill requiring that all public and private employers in New York State provide their workforces with up to four hours of paid time off to receive the COVID-19 vaccine.

More particularly, the law requires that Empire State employers provide their employees with “a sufficient period of time, not exceed four hours,” to receive the vaccine. Notably, this is a per-injection entitlement, meaning that employees receiving a two-dose vaccine will be eligible for up to eight hours of paid time off. Additionally, time off under the new law cannot be charged against any other leave to which the employee is entitled (e.g., under New York State’s or City’s respective paid safe and sick time laws). The law also bars discrimination and retaliation against employees for exercising their rights thereunder, including for requesting or obtaining a leave of absence to be vaccinated for COVID-19.

The law took effect upon execution by the Governor and is presently set to expire on December 31, 2022. We will continue to monitor employer obligations and vaccine updates related to COVID-19 in New York. If you have any questions about how these measures impact your workforce, Reed Smith’s experienced Labor & Employment Group is ready to speak with you.

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