As expected, the Emergency Temporary Standard (ETS) for mandatory vaccinations was published today.  The ETS is available here.

Contrary to news reports that the compliance date is January 4, the first compliance date is December 5.  The final compliance date is January 4.  From the ETS:

The effective date for this ETS… is the date of publication in the Federal Register [November 5, 2021]. The compliance date for all provisions in the ETS is 30 days after the effective date [December 5, 2021], except for (COVID-19 testing for employees who are not fully vaccinated), which requires compliance within 60 days of the effective date [January 4, 2022].

The confusion regarding compliance is understandable.  The 60 day compliance period is intended to allow time for businesses to develop policies and procedures and to allow employees to be vaccinated before employee testing becomes mandatory.  According to OSHA, employees receiving the Johnson & Johnson vaccine can be vaccinated anytime through January 4, 2022. But employees receiving the other vaccines must begin the vaccination process earlier.  For employees receiving the Pfizer-BioNTech vaccination, the first shot can be received “up to 39 days from” November 5, i.e., December 14. Employees receiving the Moderna vaccine must begin the process “up to 32 days from” November 5, i.e., December 7.  As of January 4, 2022, unvaccinated employees will be subject to weekly testing, and employers with unvaccinated employees will be subject to reporting requirements.

News reports this morning indicate that more than 20 states intend to take legal action challenging the mandate.  In the meantime, businesses covered by the mandate should begin planning to comply in case the legal challenges fail.  Covered businesses should develop:

  1. A vaccination policy
  2. An employee vaccination status tracking process
  3. An employee vaccination support policy
  4. A face coverings policy (for unvaccinated employees)

This is an evolving situation.  We’re here to help.  Please contact Jean Novak, at jnovak@smgglaw.com, or Matt Morella, at mmorella@smgglaw.com, if you have questions.

The unpublished version of the federal vaccine mandate for private employers was released today. (Federal workers and contractors were covered under prior Executive Orders.) The ETS (Emergency Temporary Standard) will be published and become effective tomorrow, Nov. 5.  Based on the unpublished version, the rule will contain a 60 day comment period to determine whether the ETS will become a final rule.

This mandate covers all private employers with 100 or more employees.  Despite its common name, the ETS requires vaccination OR “regular COVID-19 testing and face covering at work in lieu of vaccination.”  Employers may impose mandatory vaccination without the option of regular testing and masking, but that is more than is required under the ETS.

Employees who work 100% remotely or completely away from others (i.e., removed from co-workers, customers, clients, vendors) are not covered by the mandate.  Employees who work “exclusively” outside aren’t covered, but the ETS narrowly defines “exclusively.” Employees who spend most of their time outside but, for example, travel together to and from the job site don’t work “exclusively” outside.  Construction workers working in a partially constructed structure don’t work “exclusively” outside.  Although “de minimis” indoor time will not remove an employee from the definition of “exclusively” outside, OSHA will aggregate such time to determine whether the employee works “exclusively” outside.

The ETS does not change the exemptions for health or religious reasons and the requirement that employers provide reasonable accommodation for the same unless doing so would create undue hardship.

Employers will be required to provide paid time off for employees to receive vaccinations and to recover from side effects.  Employers, however, aren’t required to pay for weekly tests for employees who choose not to be vaccinated.  The compliance deadline is 30 days after publication, which will be December 5.

At this time, public employers in Pennsylvania, including local governments, municipalities, and school districts, will not need to comply with the ETS.  Note, however, the Pennsylvania General Assembly is currently considering two bills that would extend the mandate to the state’s public employers.

It’s likely that there will be challenges to the mandate – and it’s likely that there will be questions about the requirements, exemptions, and other portions of the mandate as employers work to comply.  We’re here to help.  Please contact Jean Novak, at jnovak@smgglaw.com, or Matt Morella, at mmorella@smgglaw.com, if you have questions.

A few years ago, employers in Pittsburgh became subject to the City’s paid sick leave ordinance.  Now, all employers with 26 or more employees are covered by a local paid sick leave law.  On September 14, the Allegheny County Council ratified the amendment to the Allegheny County Health Department Rules and Regulations, Article XXIV, providing for paid sick leave.

Similar to the Pittsburgh ordinance, employees of covered employers must earn at least one (1) hour of paid sick time for every 35 hours, worked within Allegheny County, up to 40 hours of paid sick time per calendar year.  Of course, covered employers may provide more paid sick time or allow employees to earn such time faster.  Exempt employees are assumed to work 40 hours per week unless their normal workweek is less than 40 hours.  New employees begin accruing paid sick time upon beginning work and can use the time after 90 days of work.  Current employees begin accruing time as of the effective date of the ordinance.  (The effective date will be 90 days after the designated county agency makes employer notice material available through the county website.)  If employees’ paid sick time is “front loaded,” i.e., 40 hours is available every January 1, then paid sick time need not be carried over year to year.  If less than 40 hours is provided every January 1, then employees must be permitted to carryover time up to a maximum 40 hours.  Employers that provide paid leave (e.g., paid time off) in at least the same amount for use as paid sick leave need not provide additional leave under this ordinance.

Also similar to Pittsburgh’s ordinance, paid sick time is to be used for an employee’s or family member’s illness, injury or health condition; need for diagnosis, care, treatment or preventive care; closure of the employee’s place of business due to a public health emergency; the employee’s need to care for a child whose school or place of care has been closed due to a public health emergency; or care for a family member when that the family member’s presence in the community would jeopardize the health of others because of the family member’s exposure to a communicable disease.

As with most ordinances, there are a number of other provisions including requirements regarding notice, excuses, and scheduling. The full text of the Health Department’s applicable rules and regulations as well as Allegheny County’s ratification of the same is available here, but if you have questions, please contact me at jnovak@smgglaw.com.

As many of you return to work, you may be paying particular attention to news about COVID and the delta variant.  Seems Pittsburgh City Council is, too.  On July 27, City Council approved new temporary COVID paid sick leave.

Temporary paid sick leave for COVID applies to all employers with 50 or more employees. (Employers with fewer than 50 employees are not covered by these temporary provisions.) Eligible employees must work in the City, normally work in the City but are working remotely due to COVID, or, work at least 51% of their time in the City if the employee works from multiple locations.

Covered employers that currently provide paid sick leave on an accrual basis (under Pittsburgh’s ordinance) must suspend accrual requirements and provide paid leave immediately if an eligible employee’s request for leave is COVID-related.  New employees are entitled to immediate use of the maximum amount of time if the employee’s request for paid sick time is for COVID-related reasons.  (Non-COVID-related paid sick leave requirements, including accrual and waiting periods, remain in effect.)

Employees who work 40 or more hours per week are entitled to at least 80 hours of paid COVID sick leave. Employees who work fewer than 40 hours in a week, are entitled to the greater of the amount of time they are scheduled to work or work on average in a 14-day period. (Exempt employees who don’t record hours are assumed to work 40 hours per week unless their normal workweek is less than 40 hours.)  All employees who have been employed by the employer for at least 90 days are eligible.  (Although this provision appears to contradict the immediate use by new employees provision, best practice may be to grant COVID paid sick leave to employees who qualify regardless of length of employment.)

COVID paid sick leave is in addition to any other sick leave provided by covered employers.  Employers aren’t permitted to change their policies to avoid being subject to COVID paid sick leave, and employers cannot require employees to use other available paid leave before granting COVID paid sick leave.

Eligible employees may take COVID paid sick leave if they are unable to work or telework because the employee:

  1. Has been exposed to COVID or has symptoms of COVID;
  2. Must care for a family member who has been exposed to COVID-19 or has symptoms of COVID-19;
  3. Must self-isolate due to COVID, must self-isolate due to symptoms of COVID, or must obtain diagnosis, care, or treatment for symptoms of COVID;
  4. Must care for a family member who must self-isolate due to COVID, must self-isolate due to symptoms of COVID, or must obtain diagnosis, care, or treatment for symptoms of COVID; or
  5. Must obtain a vaccine or vaccine booster for themselves or a family member.

The COVID situation is likely to change in the near future.  Please contact me if you have questions at jnovak@smgglaw.com or 412-281-5423.

After a year of trouble, Pennsylvania has revamped its Unemployment Compensation (UC) system.  To help employers and claimants, the Commonwealth is hosting a series of workshops.  Information regarding the workshops is available here: https://www.uc.pa.gov/unemployment-benefits/UCBenMod/Pages/Workshops.aspx.  No worries if you can’t attend.  The workshops will be recorded and uploaded to the Workshops page.

For questions, please feel free to contact Jean Novak at jnovak@smgglaw.com or at 412-281-5423.

In February we notified clients that the independent contractor rule scheduled to go into effect on March 8 was being delayed for further review.  On May 5, 2021, the US Department of Labor (DOL) announced that the “Independent Contractor Status Under the Fair Labor Standards Act” final rule was being withdrawn.  In support of its decision the DOL stated,

[T]he Rule is inconsistent with the FLSA’s text and purpose, and would have a confusing and disruptive effect on workers and businesses alike due to its departure from longstanding judicial precedent.

https://www.dol.gov/agencies/whd/flsa/2021-independent-contractor.  The withdrawal is available here: https://www.federalregister.gov/public-inspection/2021-09518/independent-contractor-status-under-the-fair-labor-standards-act-withdrawal.

Thus, effective May 6, 2021, we’re again bound by the “old” rule. That is, when determining the nature of a relationship, consider whether:

  1.  The person provides services that are ancillary (rather than integral) to your business.
  2.  You have a short-term (or recurring short-term) relationship with the person.
  3.  The person invests in items such as facilities and equipment to provide the service.
  4.  The person provides services with little control or direction.
  5.  The person, in providing services, has opportunities for profit.
  6.  The person is in open competition with others providing similar services.
  7.  The person maintains a business organization, such as an LLC.

            If, in anticipation of the rule becoming effective, you changed how you categorized such relationships, now is the time to re-evaluate those arrangements to ensure that you have an independent contractor, not an employee.

Still confused? Contact Jean Novak at jnovak@smgglaw.com or at 412-281-5423.

For those of you preparing for the change in independent contractor rule scheduled to take place on March 8, stop – at least for the time being.  On Friday, February 19, the Wage and Hour Division (WHD) announced that it had withdrawn Opinion Letter FLSA2019-6, which involved an analysis of the relationship between a virtual platform organization and its workers.  That Opinion Letter had determined that the workers were independent contractors.  (A summary of the withdrawn letter is available here: https://www.dol.gov/newsroom/releases/whd/whd20190429.) Friday’s announcement follows an earlier announcement by the WHD that there will likely be a delay of the effective date of the new rule, “Independent Contractor Status Under the Fair Labor Standards Act.” The additional time will be used for WHD review and consider the rule and is the result of “Regulatory Freeze Pending Review” issued by the Biden administration on January 20.  According to the WHD website, the WHD has proposed delaying the effective date of the rule until May 7, 2021.  The WHD now is in the process of soliciting comments on the delay only.

In the meantime, if your organization uses independent contractors, you may want to rely on the current rule.  That is, when determining the nature of the engagement, consider whether:

  1. The person provides services that are ancillary (rather than integral) to your business.
  2. You have a short-term (or recurring short-term) relationship with the person.
  3. The person invests in items such as facilities and equipment to provide the service.
  4. The person provides services with little control or direction.
  5. The person, in providing services, has opportunities for profit.
  6. The person is in open competition with others providing similar services.
  7. The person maintains a business organization, such as an LLC.

We’ll keep you posted on developments, but if you have questions, please contact Jean Novak at jnovak@smgglaw.com or at 412-281-5423.

As Pittsburgh gets ready to reopen, it’s a good time to reacquaint yourself with Pittsburgh’s Paid Sick Days Act, which went into effect on March 15, 2020, just days before the Governor’s stay-at-home order went into effect.  Here’s a summary of the major provisions of the law:

Employers with 15 or more employees must give their employees at least one hour of paid sick time for every 35 hours per week worked in the City, up to a maximum of 40 hours annually.   Employers can grant more time if they choose.

Employers with fewer than 15 employees may, in the first year (March 15, 2020 to March 14, 2021) only, provide unpaid sick days accrued at the rate of at least one hour of sick time for every 35 hours worked in the City, up to a maximum of 24 hours annually.  As of March 15, 2021, employers with fewer than 15 employees must provide paid sick time accrued at the rate of at least one hour of sick time for every 35 hours worked in the City, up to a maximum of 24 hours annually.  Employers can grant more time if they choose.

Sick time begins accruing on the first day of work, but employers can restrict the use (not accrual) during the first 90 days of employment.  After 90 days, the employee must be allowed to use sick time for the reasons outlined in the law.

Employers who provide paid sick days or paid time off (PTO) that may be used for sick days need not provide additional time off if the employer provides at least as much time as provided under the law and allows use of such time as outlined in the law.  Thus, sick days or PTO must be available for the employee’s diagnosis, care (including preventive care), treatment for physical or mental illness or injury; a family member’s diagnosis, care (including preventive care), treatment for physical or mental illness or injury; or closure of a business or school due to a public health emergency or quarantine of the person or family member due to a public health emergency.

Employers may require reasonable notification, and employers may require verification for absences of three days or more.  During the COVID-19 crisis, please consider that usual notification and verification may not be possible.  Be reasonable when requesting notification and verification

As of 2021, employers can comply with the law by either permitting employees to “roll-over” unused sick time from year to year (up to the maximum accrual of either 40 or 24 hours) or “front-load” hours at the beginning of the year.

Important reminders: Employees earn the time off as they work.  If your employees are not working, they are not earning time off under the law.

Paid time off earned under the Pittsburgh law is in addition to paid time off available under the Families First Coronavirus Response Act (FFCRA).

If you have questions, please contact me at jnovak@smgglaw.com or at 412-281-5423.

*Co-Written by Jean Novak and John Kelly

Under the CARES Act Paycheck Protection Program (PPP) loan program, employers are encouraged to hire back employees and restore pay to February 15, 2020 levels.  If the employer meets the various tests set by the program, then the employer is able to have the entire balance of the PPP loan forgiven.  More specifically, to receive loan forgiveness, the employer is required to spend 75% of the amount borrowed on payroll costs and the remaining 25% on rent, mortgage interest, and utilities in the eight weeks after the PPP loan is received.  In addition, the employer is supposed to hire back an equivalent number of fulltime employees and restore wages and salaries to February 15 levels by June 30, 2020.  There is no requirement that the borrower rehire the same employees; restoring the number of full-time equivalent (“FTE”) employees is sufficient.  If the employer fails to hire back 100% FTE workers or fails to restore 75% of wages, or fails to meet other tests, then a portion of the PPP loan will not be forgiven and will have to be paid back.

One concern of many employers is that the level of unemployment benefits paid to laid off workers is so high (the CARES Act offers laid off workers an additional weekly benefit of $600 per week through July 25) that many workers may prefer receiving unemployment benefits to receiving wages for actual work.  If former employees do not return to work, then the employer may not be able meet the June 30 deadline date for restoring employment and not have a portion of the PPP loan forgiven.

PPP Loan Forgiveness – US Treasury Guidance (Q/A 40 – May 3, 2020)

Under the Treasury guidance, an employer may exclude workers from the June 30 count because the employee refused the offer to be rehired, so long as:

  1. The employer offered the laid off worker the same wages and hours he had before he was laid off. The offer to rehire the worker must be made in good faith and in writing.
  2. The employer must document, for each worker, the date of the rejection by the laid off worker. Since many rejections will be oral or by text message, we recommend that you keep a log of your effort to rehire, organized by worker name.  Copies of the log, along with your written letter offering to rehire workers, may have to be submitted to your lender to qualify for PPP loan forgiveness.

Effect of an Offer to Rehire on PA Unemployment Benefits

Every PA employer may, within seven days of the worker’s refusal of an offer to rehire, inform the PA Office of Unemployment of the refusal using a Form UC-1921W.  If the department determines the that the worker’s refusal was not for a “necessitous and compelling reason” the department may terminate unemployment benefits for the worker. Determinations are made on a case-by-case basis. It is important to note that acceptance of part-time employment does not automatically terminate employment benefits. Employees may be eligible for partial unemployment benefits.  Under PA law the receipt of compensation for part-time work does not eliminate employment benefits, until the part-time earnings exceed 130 percent of the weekly unemployment benefits.  Should you need additional guidance on unemployment benefits, please contact Jean Novak of our office (direct dial – (412) 227-0272, or by e-mail jnovak@smgglaw.com)

With the concern surrounding COVID-19, you may have forgotten that as of Sunday, March 15, 2020, employers in the City of Pittsburgh are subject to a new paid sick days law.  Here’s a summary of the major provisions of the law:

Employers with 15 or more employees must give their employees at least one hour of paid sick time for every 35 hours per week worked in the City, up to a maximum of 40 hours annually.   Employers can grant more time if they choose.

Employers with fewer than 15 employees may, in the first year (March 15, 2020 to March 14, 2021) only, provide unpaid sick days accrued at the rate of at least one hour of sick time for every 35 hours worked in the City, up to a maximum of 24 hours annually.  As of March 15, 2021, employers with fewer than 15 employees must provide paid sick time accrued at the rate of at least one hour of sick time for every 35 hours worked in the City, up to a maximum of 24 hours annually.  Employers can grant more time if they choose.

Sick time begins accruing on the first day of work, but employers can restrict the use (not accrual) during the first 90 days of employment.  After 90 days, the employee must be allowed to use sick time for the reasons outlined in the law.

Employers who provide paid sick days or paid time off (PTO) that may be used for sick days need not provide additional time off if the employer provides at least as much time as provided under the law and allows use of such time as outlined in the law.  Thus, sick days or PTO must be available for the employee’s diagnosis, care (including preventive care), treatment for physical or mental illness or injury; a family member’s diagnosis, care (including preventive care), treatment for physical or mental illness or injury; or closure of a business or school due to a public health emergency or quarantine of the person or family member due to a public health emergency.

Employers may require reasonable notification, and employers may require verification for absences of three days or more.[1]

As of 2021, Employers can comply with the law by either permitting employees to “roll-over” unused sick time from year to year (up to the maximum accrual of either 40 or 24 hours) or “front-load” hours at the beginning of the year.

An important reminder: This law went into effect on March 15, shortly before non-essential businesses were ordered to close.  The law does not require that employers immediately provide paid time off (or unpaid time off for employers with fewer than 15 employees).  Employees earn the time off as they work.  If your employees are not working, they are not earning time off under the law.

If you have questions, please contact me at jnovak@smgglaw.com or at 412-281-5423.

[1] During the COVID-19 crisis, please consider that notification and verification may not be possible.