Is Maryland Going to be the Next State to Enact COVID-19 Workplace Standards?

Josh SchmandJosh Schmand

Maryland may soon join Virginia and D.C. in establishing COVID-19 workplace safety requirements. The state’s House of Delegates and Senate recently passed the Maryland Essential Workers’ Protection Act, and it is awaiting approval from Governor Larry Hogan (even if Governor Hogan vetoes the Act, the legislature has the votes to override any such veto).

Under the new Act, each essential employer* must take certain actions related to occupational safety and health during an emergency. The requirements cover, not just for the current and ongoing COVID-19 pandemic, but also for any situation in which extensive loss of life or serious disability is threatened imminently because of exposure to a deadly agent (e.g. anthrax, Ebola, radiation, or chemical or biological agent capable of causing extensive loss of life or serious disability).

* Essential employers under the Act are any persons or entities identified by the Governor or a federal agency as critical to remain in operation, who employ essential workers. Essential workers are those individuals who perform work during an emergency that cannot be performed remotely or are required to be completed at the work site, and that the employer determines to be essential or critical to its operation.

More specifically, during an emergency, essential employers must:

  • Provide working conditions that comply with applicable safety standards by the relevant state or federal agencies;
  • Provide necessary safety equipment recommended for usage during the emergency, at no cost to essential workers;
  • Adopt, maintain, and post written protocols to ensure essential workers’ access to the applicable safety standards in effect;
  • Take proactive steps to minimize the risk of transmission, including paying for testing for the communicable disease; and
  • Report test results to the Maryland Department of Health, redacting any personal identifying information to protect the identity of the essential workers.

Essential employers will also be required to provide paid public health emergency leave, if the state or federal government provides funding that can be used for this purpose. Public health emergency leave will be allowed for essential workers to:

  • Isolate if they have been diagnosed with, or are experiencing symptoms of, the communicable disease that is the subject of the emergency;
  • Seek or obtain a medical diagnosis, preventative care, or treatment because they have been diagnosed with or are exhibiting symptoms of the communicable disease that is the subject of the emergency; or
  • Care for a family member who is isolating because of a diagnosis or symptoms of the communicable disease that is the subject of the emergency.

This leave will be in addition to any other leave or benefit, including Earned Sick and Safe Leave (see here for a primer for employers to comply with the Maryland Sick and Safe Leave Act).

Essential employers will be allowed to ask essential workers who use public health emergency leave to provide documentation of the need to use the leave. The Act will not require essential employers to compensate essential workers for unused public health emergency leave when the essential worker leaves employment.

The Act also provides that each essential worker has the right to refuse to perform assigned tasks and may not be discharged or otherwise discriminated against for filing a complaint or exercising rights under the Act.

Given the veto-proof margin of the vote on the Act, Maryland employers should either develop and implement or modify and update their COVID-19 workplace safety policies now to be ready when the Act becomes law.

For more information, contact Josh at 301-347-1273 or jcschmand@lerchearly.com.

Bereavement Leave Soon Covered By Maryland’s Flexible Leave Act

Michael NearyMichael Neary

A bill passed by the Maryland General Assembly on March 30, 2021 extends the Maryland Flexible Leave Act (“the Act”) to cover bereavement leave. The bill now awaits Governor Hogan’s signature.

Under the Act, covered Maryland employers must allow their employees to use earned paid leave to care for immediate family members (children, spouse, and parents) with an illness. Employees covered by the Act can use their paid leave to care for an immediate family member under the same rules that apply for an employee’s use of paid leave for their own illness.

If approved by Governor Hogan, the Act would now require covered employers to permit employees to use paid leave for the death of a member of the employee’s immediate family. If the employee has multiple forms of paid leave available, the employee may elect the type and amount of accrued leave to use. For purposes of this new bereavement leave, the definition of child includes adult children.

The bill passed with veto proof majorities. As such, Maryland employers should update their leave policies to comply with the changes to the Act before they become effective on October 1, 2021.

For more information, contact Michael at 301-657-0740 or mjneary@lerchearly.com.

The American Rescue Plan Act of 2021 and COBRA

Employment/Labor GroupEmployment/Labor Group

The American Rescue Plan Act of 2021 (the Act) became effective on March 11, 2021. It provides six months, from April 1, 2021 – September 30, 2021, of free health care coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA) to laid off employees and their covered dependents.

The Act applies to employees who have been laid off, i.e., involuntary termination or involuntary reduction in hours, over the past year and who would have been covered by COBRA at the time of their termination. Typically, upon termination, employees have 60 days from receiving notice of COBRA eligibility to sign up for the benefit. Under the Act, eligible employees are those who are already enrolled in COBRA, did not elect COBRA at the time it was available to them, or elected COBRA at the time it was available to them but let the coverage lapse. Coverage applies to individuals whose COBRA coverage expires, or would have expired had they elected it or did not allow it to lapse, during or after April 1, 2021 – September 30, 2021. This means that individuals are not receiving an extension to their 18-month COBRA period under the Act—generally, it is applicable to employees who were eligible in November 2019 or later. Notably, if a COBRA period starts after April 1, 2021 or ends before September 30, 2021, this subsidy will be provided for fewer than six months.

Under the Act, Employers will receive reimbursement for the premium amounts from the federal government as tax credits. Employees who qualify may sign up through their previous employer.

Individuals who begin working for a new employer and receive health insurance coverage through that new employer or those who receive Medicare, prior to the September 30, 2021 provision end date, will lose coverage under the Act.

Employers are required to send former employees COBRA notices of eligibility. These notices will provide employees with a notice of their right to the new subsidy, when their subsidy would end, an enrollment window, contact information for additional information, and the individual’s obligation to notify the plan when he or she becomes eligible for healthcare through a new employer or Medicare. The notices will need to be distributed by employers within 60 days of April 1, 2021. The Department of Labor will provide model notices by April 10, 2021.

For more information, visit https://www.lerchearly.com/services/employment-labor.

The District of Columbia’s New COVID-19 Workplace Safety Requirements

Josh SchmandJosh Schmand

In February, in a continued effort to protect workers in the District of Columbia and to prevent the spread of COVID-19, the D.C. Council passed the Workplace Safety During the COVID-19 Pandemic Emergency Declaration Resolution of 2021. The Workplace Safety Resolution repeals, updates, and expands the previous Protecting Businesses and Workers from COVID-19 Temporary Amendment Act of 2020 and the Protecting Businesses and Workers from COVID-19 Congressional Review Emergency Amendment Act of 2021.

Employer Policy Requirements

Previously, employers in the District had to comply with the Mayor’s mask orders, but not other orders pertinent and critical to workplace safety that address social distancing, personal protective equipment (PPE), or other such measures. Effective immediately, the Workplace Safety Resolution requires D.C. employers to adopt and implement social distancing and workplace protection policies to prevent the transmission of COVID-19 in the workplace.

While “workplace” means any physical structure or space where an employee performs work, it does not include the home or other location where an employee teleworks that is not subject to the employer’s control. For the Workplace Safety Resolution to apply, the employer must maintain control of the physical structure or space.

The Mayor may publish a notice of the relevant portions of the Workplace Safety Resolution, and if/when that happens, employers will have to post the notice in a conspicuous location in the workplace in English and any other language spoken by at least 10% of employees.

Employer Reporting Requirements

D.C.’s Workplace Safety Resolution requires employers to report instances of their employees contracting COVID-19 in the course of and within the scope of their employment, or whose contact with others in the course of and within the scope of their employment makes the contracting of COVID-19 probable, to the Mayor. Reports can be made here, and additional guidance on when to report can be found here.

Employers in D.C. may require their employees to report a positive test for COVID-19, but the Workplace Safety Resolution prohibits employers from disclosing the identity of their employees who test positive, except to the Department of Health (DOH) or as otherwise required by law.

Additionally, employers must cooperate with contact tracers, including by providing information about employees who were in close proximity to infected employees and by providing customer lists and contact information as requested.

Employee Protections

The Workplace Safety Resolution prohibits employers from retaliating or taking adverse employment actions against employees for:

  • Complying, or attempting to comply, with the requirements of a Mayor’s Order related to the public health emergency;
  • Reasonably attempting to prevent or stop a violation of a Mayor’s Order related to the public health emergency;
  • Submitting a complaint to the Mayor or the Attorney General about a violation of the Workplace Safety Resolution;
  • Raising reasonable concerns about workplace health and safety practices related to COVID-19; or
  • Testing positive for COVID-19, having close contact with someone with COVID-19 or experiencing symptoms, needing to quarantine in accordance with DOH or U.S. Centers for Disease Control and Prevention (CDC) guidance, experiencing COVID-19 symptoms and awaiting a test result, or caring for someone who is sick with COVID-19 symptoms, provided that the employee did not physically report to the workplace within appropriate timeframe recommended by current DOH or CDC guidance.

Prohibited adverse employment actions include a threat, verbal warning, written warning, reduction of work hours, suspension, termination, discharge, demotion, harassment, material change in the terms or conditions of the employee’s employment, or any other action that is reasonably likely to deter the employee from receiving the protections of the Workplace Safety Resolution.

Additionally, employers may not prohibit or discourage employees from using PPE or require employees to sign an agreement or comply with a workplace policy that would limit or prevent their right to disclose information about the employer’s workplace health or safety practices or hazards related to COVID-19.

Enforcement and Penalties

Both D.C.’s Mayor and Attorney General may receive and investigate complaints against employers who violate the Workplace Safety Resolution, to institute administrative or civil actions on behalf of the District against employers, and assess civil penalties. The Mayor’s office may post on the District’s Coronavirus website the name of each business for which a violation was found and a statement of the penalty imposed.

The Mayor may impose civil fines up to $1,000 per violation per employee per day for each violation of the policy and reporting requirements, and up to $2,000 per violation of the prohibited retaliation protections. The Attorney General, upon prevailing in an action against an employer, may recover up to the maximum amount of the civil fines for such violation, as well as (1) attorneys’ fees and costs, (2) restitution for lost wages, for the benefit of the aggrieved employees, and (3) other equitable relief as is necessary and appropriate.

In addition to the Mayor and the Attorney General, the Workplace Safety Resolution creates a private cause of action for violations of the prohibited retaliation protections. This means that employees may bring their own lawsuit against their employer, and, if successful, will be entitled to recover (1) attorneys’ fees and costs, (2) restitution for lost wages, (3) other equitable relief as is appropriate, and (4) punitive damages, if the employer acted with wanton or reckless disregard for the safety of the affected employee. And, unlike other employee claims against employers, under the Workplace Safety Resolution, employees need not exhaust administrative remedies before bringing suit.

PPE, Unemployment, and Workers’ Compensation

The Workplace Safety Resolution also addresses employer eligibility for grants for purchase or reimbursement of PPE, authorizes unemployment compensation for employees who voluntarily leave work due to an unsafe workplace condition, and extends workers’ compensation coverage to employees who contract COVID-19 in the course of and within the scope of their employment.

Takeaways

Employers in D.C. that have not already developed and implemented COVID-19 workplace protection policies need to do so without further delay. And, for those employers who already brought their policies, practices, and procedures into compliance with the prior workplace safety Acts, they now have to review and revise them to ensure compliance with the new Workplace Safety Resolution.

For more information, contact Josh at 301-347-1273 or jcschmand@lerchearly.com.

What Should Employers Do About the COVID-19 Vaccine?

A Webinar featuring Employment Attorneys Marc Engel and Michael Neary

The COVID-19 vaccine raises many questions for employers. Should you mandate it? Should you recommend it? What policies do you need? 

Lerch Early employment attorneys Marc Engel and Michael Neary on February 11 presented a webinar on how employers should handle issues surrounding the COVID-19 vaccine and plan for the day when the vaccine is readily available.

To view the webinar on Zoom, click here. The passcode is #tFhB3O3.

The webinar was hosted by the Greater Bethesda Chamber of Commerce, the Greater Silver Spring Chamber of Commerce, and the Gaithersburg-Germantown Chamber of Commerce.

If you have any follow-up questions or comments, feel free to reach out to Marc at mrengel@lerchearly.com or Michael at mjneary@lerchearly.com.

Vaccines Eliminate Need To Quarantine For Period Of Time According To CDC

Michael NearyMichael Neary

The big news of the week for employers did not come out of the Department of Labor or Equal Employment Opportunity Commission. Instead, it came out of the Centers for Disease Control and Prevention (“CDC”). After much discussion and speculation in the public health community, CDC announced that asymptomatic fully vaccinated individuals need not quarantine after a subsequent COVID-19 exposure within three months of full vaccination. The CDC guidance is available here.

We all hope the time after full vaccination where an individual need not quarantine following a COVID-19 exposure will extend further if the protection from the vaccine is shown to last longer than three months.

The ramifications of this decision for employers cannot be overstated. Had CDC come down the other way, there was literally no end in sight to the social distancing measures employers have been diligently following in the workplace since the pandemic started. Part of the reason employers follow social distancing is to minimize spread. But another big reason for social distancing within workplaces is to avoid quarantining large segments of employees if one of them contracts COVID. That is because most people within six feet of a confirmed COVID positive individual for 15 minutes or more are subject to a government-mandated quarantine. CDC’s new guidance means that a vaccinated employee can continue to work even if there is a close contact exposure. Given the CDC guidance, the risk of having to quarantine large groups of employees for an exposure will fall as more of the workforce is vaccinated.

Employers should update their own quarantine policies to align with CDC’s updated guidance. And employers should institute robust programs educating employees about the COVID-19 vaccine and encouraging employees to get the vaccine when it is available to increase the number of employees vaccinated. Doing so not only protects your workforce, it also, given the new CDC guidance, minimizes the disruption a confirmed COVID positive case will have on your day-to-day operations.

For more information, contact Michael at 301-657-0740 or mjneary@lerchearly.com.

Managing Your Employees: What New and Small Businesses Need to Know

Michael NearyMichael Neary

Employment attorney Michael Neary presented to new and small business owners on January 19 about managing their employees. You can watch a recording of the presentation here:

Micheal touched on several important topics, including:

1.  Hiring Process and Accompanying Risks
2.  Registering Employees With the State
3.  Immigration Compliance
4.  Documenting Employment Relationship: Offer Letters, Contracts, Equity Grants
5.  Best Practices for Employer Policies
6.  Wage and Hour Issues – Employee/Independent Contractors
7.  Protecting Your Intellectual Property and Trade Secrets
8.  Workplace Health and Safety – COVID-19
9.  Insurance
10.  Benefits

You can find a copy of their presentation here: https://www.lerchearly.com/events/managing-your-employees-what-new-and-small-businesses-need-to-know

For more information, contact Michael at mjneary@lerchearly.com.

Virginia Is First Again: COVID-19 Workplace Safety Rule Becomes Permanent

Josh SchmandJosh Schmand

This past summer, Virginia became the first state to pass mandatory workplace standards for employers to control, prevent, and mitigate the spread of COVID-19 to and among employees and employers. Those emergency workplace safety standards were temporary and were set to expire later this month, on January 26, 2021. With the expiration date fast approaching, on January 13, 2021, the Virginia Safety and Health Codes Board enacted a new rule, effective January 27, 2021, extending the protections permanently. This new permanent rule, like the temporary emergency one, is the first of its kind in the country.

The requirements in the new permanent rule are mostly the same as before, and you can read more about those safety standards for different jobs (which are based on risk level of exposure), physical distancing mandates, reporting obligations, return to work procedures, training requirements, infectious disease preparedness and response plans, and penalties here and here. Two key changes in the new rule that are worth highlighting deal with employer reporting obligations and return to work procedures:

  • For reporting, previously, the emergency temporary rule required employers to contact the Virginia Department of Health within 24 hours of the discovery of a positive case of COVID-19. In the new permanent rule, the notification requirement was changed so that now employers only need to contact the Virginia Department of Health when their worksite has had two or more confirmed cases of COVID-19 of their own employees present at the place of employment within a 14-day period who have tested positive for COVID-19 during that period.
  • For returning to work, previously, the emergency temporary rule allowed for employees who were known or suspected to be infected with COVID-19 to return to work after 10 days from when the symptoms first appeared or after they received two consecutive negative tests. In the new permanent rule, the testing based strategy for returning to work was eliminated, and only the symptoms based strategy remained. Specifically, symptomatic employees known or suspected to be infected with COVID-19 cannot return to work until the following three conditions have been met: (1) being fever-free (less than 100.0° F) for at least 24 hours, without the use of fever-reducing medications; (2) improvement of respiratory symptoms, such as cough and shortness of breath; and (3) 10 days have passed since the symptoms first appeared. And, employees known to be infected with COVID-19 who never develop signs or symptoms are excluded from returning to work until 10 days after the date of their first positive RT-PCR test.

Despite significant opposition to the new permanent rule, ultimately the Virginia Safety and Health Codes Board determined that the continuation of the workplace safety standards were still needed to prevent further COVID-19 outbreaks, including among workers who will choose not to be vaccinated once they are eligible. A discussion on employers considering mandatory COVID-19 vaccine policies can be found here.

While the new Rule is “permanent,” within 14 days after Governor Ralph Northam declares an end to the Commonwealth’s COVID-19 State of Emergency, the Virginia Safety and Health Codes Board will have to notice a meeting (not actually have the meeting) to determine whether there is a continued need for the workplace safety standards.

Since Virginia’s workplace safety standards are not going anywhere soon, employers who have not already done so need to develop policies and procedures for employees to report COVID-19 symptoms and subsequently return to work, as well as implement training presentations and written infectious disease preparedness and response plan. And for those employers who previously brought their policies, practices, and procedures into compliance with the emergency temporary requirements, they now have to review and revise them to ensure compliance with the new rule.

For more information, contact Josh at 301-347-1273 or jcschmand@lerchearly.com.

Families First Coronavirus Response Act Tax Credit Extension in 2021

Employment/Labor GroupEmployment/Labor Group

The Families First Coronavirus Response Act (FFCRA) sunsetted on December 31, 2020, but some provisions remain active.

On Sunday, December 27, 2020, former President Donald Trump signed a bipartisan pandemic relief bill into law. Because the leave provisions of the FFCRA were not extended employers were no longer required to provide leave under the FFCRA in 2021.

However, as part of this relief package the tax credit for FFCRA leave, which reimburses employers for FFCRA leave taken by employees, was extended through March 31, 2021. Therefore employers who voluntarily choose to provide employees with FFCRA leave may do so until March 31, 2021 and receive tax credit for the leave. Of course, employers may instead choose to adopt their own policies to grant paid or unpaid leave for COVID-related purposes or simply allow employees to use their existing leave.

If employers do choose to provide FFCRA through March 31, 2021 they should be aware that employees are not granted FFCRA leave in addition to what they received in 2020. Thus if an employee has exhausted 80 hours of paid sick leave and 12 weeks of expanded family medical leave in 2020 they will not receive additional leave in 2021. Moreover, there are no changes to eligibility, purposes of leave, caps on usage, or documentation requirements.

Lastly, state or local laws may impose additional requirements for COVID-19 related leave and employers are advised to ensure that they act in compliance with any applicable laws.

For more information, contact one of our employment attorneys.

D.C. Passes Ban on Non-Compete Agreements

Josh SchmandJosh Schmand

On December 15, 2020, the District of Columbia Council unanimously passed the Ban On Non-compete Agreements Amendment Act Of 2020. The Act generally prohibits the use of non-compete provisions in employment agreements and workplace policies. The Act will soon become law as D.C. Mayor Muriel Bowser is likely to sign the Act and Congress is unlikely to pass a joint resolution of disapproval.

The ban on non-competes in the Act will apply to all employers in the District and nearly any employee working in the District regardless of how much they are earning. Employers will also have to provide written notice of the Act to all of their employees.

What is a non-compete agreement?

Under the Act, a “non-compete provision” is a written agreement between an employer operating in the District and any individual who performs work (or who an employer reasonably anticipates will perform work) in the District that prohibits the individual from: (1) being simultaneously or subsequently employed by another person, (2) performing work or providing services for pay for another person, or (3) operating the individual’s own business.

The Act does not apply to otherwise lawful provisions that restrict an individual from disclosing their employer’s confidential, proprietary, or sensitive information, client list, customer list, or trade secrets. The Act also does not apply to otherwise lawful provisions contained within or executed contemporaneously with an agreement between the buyer and seller of a business where the seller agrees not to compete with the buyer’s business.

The Act does not address solicitation of employees or customers, so employers should review non-solicitation agreements with counsel to ensure compliance.

What does the Act prohibit?

Under the Act, no employer in the District of Columbia may require or request that an employee performing work in the District (or who an employer reasonably anticipates will perform such work) sign an agreement that includes a non-compete provision. Additionally, no employer in D.C. may have a workplace policy that similarly prohibits an employee from: (1) being employed by another person, (2) performing work or providing services for pay for another person, or (3) operating the individual’s own business. Any such agreements entered into after the Act becomes law will be void and unenforceable in court.

The Act also prohibits employers from retaliating (or threatening to retaliate) against employees for: (1) refusing to agree to a non-compete provision, (2) failing to comply with a non-compete provision or workplace policy made unlawful by the Act, (3) asking, informing, or complaining to an employer, a coworker, a lawyer, or governmental entity about the existence, applicability, or validity of a non-compete provision or a workplace policy that the employee reasonably believes is prohibited by the Act, or (4) requesting information that the Act requires be provided from an employer.

Are there any exceptions?

The ban on non-competes in the Act do not apply to:

  1. The District of Columbia government or the United States government;
  2. Volunteers engaging in the activities of an educational, charitable, religious, or nonprofit organization;
  3. Lay members elected or appointed to office within the discipline of any religious organization and engaged in religious functions;
  4. Individuals employed as a casual babysitter in the residence of their employer; and
  5. Licensed physicians that perform work on behalf of an employer engaged primarily in the delivery of medical services earning at least $250,000 per year.*

* Employers seeking to have medical specialists sign a non-compete agreement must provide the document to the employee for review at least 14 days before executing the agreement along with written notice of the Act.

Are there notice requirements?

Employers must provide their employees with the following text: “No employer operating in the District of Columbia may request or require any employee working in the District of Columbia to agree to a non-compete policy or agreement, in accordance with the Ban on Non-Compete Agreements Amendment Act of 2020.”

Employers must provide existing employees with this notice, in writing, within 90 days after the Act becomes law. Going forward, employers have seven days after an individual becomes an employee to provide the required written notice. And, employers have 14 days to provide the notice in response to a written request from an employee.

What are the penalties?

In addition to having a non-compete provision becoming void and unenforceable in court, employees who are asked to sign a non-compete agreement banned by the Act or who suffer retaliation from an employer for activities prohibited by the Act may file a complaint with the Mayor or take action in civil court.

The Mayor may assess administrative penalties of $350 to $1,000 for each violation, except that penalties for retaliation against employees shall be greater than $1,000. The Mayor and the Office of the Attorney General (OAG) may also require employers to submit records showing compliance with the Act upon demand at any reasonable time.

Employers that violate the Act shall be liable for relief payable to each employee of $500 to $1,000 for each violation, and at least $3,000 to each employee for subsequent violations. But, employers that attempt to enforce newly void or unenforceable non-compete provisions shall be liable for relief payable to each employee of at least $1,500, and at least $3,000 to each employee for subsequent violations. And, employers that retaliate against employees in violation of the Act shall be liable for relief payable to each employee of $1,000 to $2,500 for each violation, and at least $3,000 to each employee for subsequent violations.

How does the Act compare to Maryland and Virginia’s restrictions?

The original proposal of the legislation introduced in October 2019 prohibited the use of non-compete agreements for employees whose rate of pay was less than or equal to three times the minimum wage, similar to the restrictions in neighboring Virginia and Maryland, which have prohibited non-compete agreements for certain “low” wage earners. However, as discussed above, if the Act becomes law, it will expand the ban to nearly any employee in the District and become one of the Nation’s strictest laws concerning bans on non-compete agreements.

For more information, contact Josh at 301-347-1273 or jcschmand@lerchearly.com.