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The Texas Legislature has been quite busy over the most recent regular and two specially-called legislative sessions. It adjourned its second specially-called legislative session on September 2, 2021. Additional bills may be enacted into law if and when Governor Greg Abbott calls a third special session. So far, Governor Abbott has signed into law several bills that may have flown under the radars of many Texas employers. Here’s a brief recap of several new laws that may impact Texas businesses and their workforce.

Expansive new sexual harassment protections

As we noted in prior posts (July 6, 2021 and September 2, 2021), Texas passed several new laws that increase legal protections against sexual harassment. The laws, which went into effect on September 1, 2021, expand liability for sexual harassment to companies with just one employee and to individual supervisors and coworkers. The legislation also lengthens the deadline from 180 days to 300 days for a claimant to file a charge alleging sexual harassment with the Texas Workforce Commission.

Liability shield for Texas businesses from most COVID-19 claims

As we noted in prior posts (July 15, 2021 and August 19, 2021), Texas – along with 18 other states – passed statutory liability protections for businesses against claims arising from the ongoing COVID-19 pandemic. The Pandemic Liability Protection Act (PLPA), which went into effect on June 14, 2021, grants retroactive liability protection for both small and large businesses for claims commenced on or after March 13, 2020. The PLPA does not provide Texas businesses an absolute immunity shield, and claims can still be brought for a pandemic-related injury or death if the business:

  • Knowingly failed to warn of, or to fix, a condition it knew was likely to result in exposure, and the failure to warn or fix was the cause in fact of the exposure; or
  • Knowingly failed or refused to comply with government standards, guidance or protocols that are intended to lower the likelihood of exposure to COVID-19, and the failure or refusal to comply was the cause in fact of the exposure.

As written, the PLPA’s liability shield will continue to protect businesses until Governor Abbott terminates the current COVID-19 pandemic disaster declaration.
Continue Reading Overview of several new workplace laws Texas employers should know about following the recent legislative sessions

On August 26, 2021, the Virginia Department of Labor and Industry’s (DOLI’s) Safety and Health Codes Board (Board) voted 8 to 5 to update and continue its COVID-19 permanent workplace safety standard. That vote came despite the fact that the bulk of COVID-19 business requirements issued by Virginia Governor Ralph Northam ended on May…

With the lifting of COVID-19 legal restrictions in England on 19 July 2021, David Ashmore (Partner) and Alison Heaton (Knowledge Management Lawyer) from the Reed Smith employment team comment on the key issues/hot topics for employers.

What is changing on 19 July for employers?

The instruction to work from home if you can is being lifted from 19 July 2021. From this date it will be up to employers to decide whether employees should return to working in line with pre-COVID arrangements, retain the current work-from-home set-up, or move towards hybrid working.

Can an employer impose new arrangements from 19 July?

Although employers could require a return to a contractual place of work from 19 July, mandating an immediate change to current work-from-home arrangements is not recommended – not only does it run contrary to the government’s advice to implement any return to the workplace gradually, but is unlikely to be well-received by employees. Instead, employers are advised to prepare for a transition to new/previous arrangements over a period of weeks and months. Having a clear, robust and well-communicated health and safety and return-to-work plans, and adopting a flexible approach wherever possible, will allow for an easier adjustment. Where the employer wants to make changes to contractual arrangements, they will need the employee’s consent.

What if an employee does not want to return to the workplace – is that redundancy?

No. Where the employee is not willing to return to work, and alternative arrangements cannot be agreed, this will not be a redundancy situation (as redundancy only arises if the business closes, there is a closure of the workplace, or where there is a reduced need for employees).

How should employers deal with return-to-office anxiety?

Numerous circumstances may make some individuals reluctant to return to the workplace or previous working arrangements, certainly in the near term. Employers are encouraged to have an open dialogue with staff, taking time to understand each individual’s unique challenges and preferences, and to provide a supportive and flexible approach to find a mutually agreeable solution. They will need to be particularly vigilant in circumstances where the reluctance to return is linked to concerns about health and safety, and act reasonably when responding to concerns. Where it is not being offered, employers can perhaps expect to see a surge in flexible-working requests, and will need to treat these with care – where employees have successfully worked from home and/or flexibly during the pandemic, it may be harder to justify rejecting requests seeking to make that a more permanent arrangement.  
Continue Reading Preparing for a return to the workplace in the UK after 19 July 2021

As we approach the one-year anniversary of COVID-19’s upheaval of “business as usual,” we continue to field inquiries from Empire State employers regarding their pandemic-related workplace obligations.  Given that many of the pandemic-related regulations remain fully in effect, we have summarized in this blog post the primary employer obligations that remain in-effect in New York:…

The Families First Coronavirus Response Act (FFCRA), requiring employers with 50-500 employees[1] to provide supplemental paid sick leave and paid family leave to their employees, and California’s statewide COVID-19 supplemental paid sick leave requirement expired on December 31, 2020.  While employers may voluntarily continue to provide FFCRA and receive tax credits through March 31, 2021, the FFCRA mandates are now voluntary for employers to continue absent federal legislative action.  Despite this, numerous California counties and cities have extended their COVID-19 paid sick leave ordinances and imposed additional requirements for employers.  To date, these include: Los Angeles (City and County), City of Long Beach, Sacramento (City and County), San Francisco, City of Oakland, San Mateo County, Sonoma County, Santa Rosa, and San Jose.

City of Los Angeles. Los Angeles Mayor Eric Garcetti recently revised an order requiring an employer to provide COVID-19 Supplemental Paid Sick Leave (SPSL) if it has 500 or more employees in the city or 2,000 or more employees nationally. The February 10, 2021 revised order expanded coverage and provides SPSL benefits to employees employed with the same employer for 60 days, and expanded coverage to employees hired on or after March 5, 2020. Most importantly, the revised order mandates that employers calculate SPSL based on the employee’s respective two-week average pay over the last 60 days of employment. The order remains in effect until two calendar weeks after the expiration of the County of Los Angeles local emergency period.
Continue Reading Brief refresher for California employers: 2021 updates to local COVID-19 paid sick leave requirements

In September 2020, the New York Workers’ Compensation Board (WCB) issued guidance related to COVID-19 claims and their compensability under the State’s workers’ compensation laws. This guidance is especially noteworthy because workers’ compensation claims are expected to increase substantially as a result of COVID-19.

By way of background, New York is one of the few states that statutorily requires employers to obtain workers’ compensation insurance.  This insurance provides benefits to workers who become ill or injured due to their employment, i.e. a work-related illness or injury. The recently-released guidance, therefore, is particularly significant because it states that Empire State employees who contract COVID-19 while working will generally be eligible for workers’ compensation benefits. Compensable claims entitle an employee to payment of an injured worker’s medical treatment for the work-related illness, wage replacement benefits if the illness prevents the employee from working, benefits to an employee’s surviving dependents in the event of death, and reimbursement of funeral expenses.
Continue Reading New York employers may be “exposed” to COVID-19 workers’ compensation claims

The City of Pittsburgh is expected to enact the new Temporary COVID-19 Emergency Paid Sick Ordinance (the “Ordinance”), which provides Pittsburgh employees with a new entitlement of up to two weeks of paid time off for qualifying absences related to COVID-19. While this legislation may be well intended, it presents potentially significant challenges for employers with Pittsburgh-based workforces that have spent the past several months adapting to what seems like an ever-evolving carousel of federal, state, and local laws enacted in response to the pandemic.

With the federal Families First Coronavirus Response Act (FFCRA) set to expire on December 31, 2020, absent an extension by the federal government, the Ordinance appears to be the City’s effort to provide paid leave rights for qualifying reasons relating to COVID-19.

However, the Ordinance considerably exceeds the FFCRA in the scope of covered employers.  All Pittsburgh employers with 50 or more employees (including employers whose employees normally work in the City of Pittsburgh but are now teleworking from other locations as a result of the pandemic) are covered by the Temporary COVID-19 Emergency Paid Sick Ordinance.  By contrast, the FFCRA’s coverage was limited to only employers with fewer than 500 employees. As such, many larger employers with a workforce in Pittsburgh that were excluded from the FFCRA’s coverage will now immediately have to take steps necessary to provide for the requisite paid leave benefits. Further, even if an employer was subject to the FFCRA and previously took actions to provide for COVID-related paid leave, those employers should immediately update previously established policies to ensure compliance with the Ordinance.
Continue Reading Employers with Pittsburgh-based employees face new requirements to provide COVID-19-related paid sick leave

Pennsylvania’s Medical Marijuana Act (the “Act”) legalized the use of medical marijuana as of April 2016. Initially, the Act permitted the use of medical marijuana to treat 17 serious medical conditions when certified as such by a properly credentialed healthcare provider. The list included conditions such as cancer, HIV/AIDS, Parkinson’s disease, neurodegenerative diseases, and terminal illnesses. Since 2016, however, the Act’s list of qualifying conditions has expanded and now covers 23 conditions, including anxiety.

At the time that the Act was amended to include anxiety as a covered condition, approximately 19 percent of U.S. adults had experienced anxiety disorders in the prior year. These numbers appear to be on the rise, likely due at least in part to the COVID-19 pandemic. In April 2020, the National Center for Health Statistics partnered with the Census Bureau to implement the Household Pulse Survey, a 20-minute online survey designed to assess the impact of the coronavirus pandemic on mental health. This survey reveals that between April 23, 2020 and July 21, 2020, nearly 32 percent of adults reported symptoms of anxiety disorder. As a benchmark for comparison, the CDC points out that the National Health Interview Survey indicated that only 8.2 percent of adults aged 18 and over reported symptoms of anxiety disorder between January and June of 2019.
Continue Reading Pennsylvania medical marijuana use on the rise in times of COVID-19

In an effort to delay litigation deadlines, the Equal Employment Opportunity Commission (EEOC) has stopped issuing Right-to-Sue Letters amid the COVID-19 pandemic, unless specifically requested by an employee.  Although the EEOC has not publicly announced its new policy, it has confirmed this practice to several news outlets.

The EEOC is the federal agency responsible for enforcing federal anti-discrimination laws.  Workers who claim they have been subject to unlawful discrimination and wish to bring a claim under these federal laws must first file a charge with the Agency.  The EEOC can resolve the charge in a number of ways.  If the agency declines to bring a lawsuit itself, it issues the individual a “Notice of Right to Sue” (commonly called a “Right-to-Sue Letter”) allowing the employee to file the claim in court.  The EEOC’s issuance of a Right-to-Sue Letter starts a 90-day filing deadline for the employee to bring the lawsuit.  The EEOC’s new practice will keep this 90-day clock from starting.Continue Reading EEOC stops issuing right-to-sue letters in response to COVID-19, delaying litigation deadlines

As the novel coronavirus (COVID-19) spreads domestically in the United States, employers should take proactive action to address employee concerns regarding COVID-19, plan for the potential impact of its transmission at the workplace, and be ready to take action in the event of suspected or actual virus exposure at work.

Centralized communication and planning: Employers should ensure they have a centralized leadership team to address workplace communications regarding COVID-19. In addition, a COVID-19 taskforce should review employer policies in the context of virus outbreak.

  1. The COVID-19 taskforce should consist of members of operations, security, HR, legal, and IT.
  2. Employers should instruct supervisors to refrain from questioning employees regarding suspected illnesses. Further, employers should direct supervisors and employees to route all concerns regarding COVID-19 to specifically identified members of the employer’s COVID-19 taskforce.
  3. The COVID-19 taskforce should prepare communications to distribute to the workforce describing:
    • The steps the employer is taking to respond to COVID-19 to ensure a safe workplace.
    • The sources employees can consult for information regarding COVID-19 (e.g., the US Centers for Disease Control (CDC), the World Health Organization, and the local public health department).
    • Actions employees can take to reduce exposure risk (e.g., washing hands)
    • The employer’s leave, sick, and telecommuting policies.

Contingency plans: Employees may be absent from work not only due to illness, but also in the event of self-quarantine or to care for dependents who are ill or at home due to daycare and school closures. As a result, employers should plan now for how their businesses will continue to operate in the event that a large portion of the workforce is absent. Employer contingency plans should identify key personnel and duties, and provide for cross-training of personnel on duties that are essential to continuous operation of the business.Continue Reading Action items for employer task forces responding to novel coronavirus (COVID-19)