Law360 (December 7, 2020, 1:56 PM EST) --
The emergency led to the creation of a new, albeit temporary law — the Families First Coronavirus Response Act — designed to protect employees who were unable to work during the pandemic, either due to forced business and school closures, exposure, or illness. The law, along with its regulations, was published in real time and required immediate analysis in order to make sure that employers were following protocols.
The pandemic certainly sidelined many employment developments in Pennsylvania that were anticipated in 2020, as the government's focus shifted to the national emergency and the courts essentially shut down. This article provides an overview of the employment law issues that did develop in 2020, with an eye towards what 2021 could bring.
Background on Pennsylvania State Executive Orders
In order to address the pandemic emergency, governors across the country have been issuing executive orders in an attempt to control the spread of COVID-19. Pennsylvania's Gov. Tom Wolf, in March, issued stay-at-home orders and forced the closure of nonessential businesses. As a result, unemployment skyrocketed.
Temporary changes were made to unemployment laws — in conjunction with federal aid action — to provide some relief to those who were out of work. As the first wave seemingly slowed, restrictions were lifted and businesses were permitted to resume operation so long as they followed safety protocols including social distancing, mask requirements and disinfecting guidelines. The health department issued guidance for employers concerning workplace exposures as well.
This fall, we have seen a drastic increase in cases in the region as well as throughout the country. Wolf has issued new travel restrictions for anyone who travels outside of Pennsylvania.
On Nov. 16, Philadelphia issued new restrictions that will be in place until Jan. 1, 2021. The new restrictions include the prohibition of indoor dining, a mandate for office employees to work from home unless not possible, the closure of indoor gyms and exercise classes, the prohibition of indoor gatherings of any size, and the requirement that college and high schools move to online/distance learning. As the second wave continues more restrictions are expected.
It is important to pay attention to new restrictions as they are released, to make certain that they are followed in a timely manner. States and cities around the country are issuing new restrictions on a daily basis in response to fluctuating circumstances so employers need to make certain to stay informed and remain in compliance with these quickly changing requirements.
Employers may have additional compliance requirements, such as the issuance and monitoring of daily employee health forms and record-keeping requirements for contact tracing, all of which need to be in conformance with local, state and federal employment laws. Businesses forced to fully or partially close again, like indoor gyms and indoor dining, will again have a lack of work for their employees. The hope this time around with a vaccine on the horizon is that these new restrictions will be temporary in nature.
FFCRA and Local Expansions
Congress passed the FFCRA in response to the growing coronavirus emergency. President Donald Trump signed it into law on March 18 and it became effective on April 1. The law contains several important paid leave and extended family medical leave provisions related to the pandemic.
Congress followed the FFCRA by passing a second bill, the Coronavirus Aid, Relief and Economic Security, or CARES, Act, which the president signed into law on March 27, effective immediately. The CARES Act included several additional paid leave and unemployment insurance provisions. Both laws expire on Dec. 31, unless they are extended.
Individual municipalities, including Philadelphia, have expanded paid sick leave benefits for workers not covered by the FFCRA through laws and executive orders. Philadelphia established by executive order that employers provide two weeks of what it called public health emergency leave.
A covered worker may utilize the leave for the same reasons laid out in the FFCRA, including issues related to government- or health care-advised quarantines or self-isolation, and caring for others affected by these issues. Unless otherwise renewed, the new leave requirements remain in effect until Dec. 31.
The ordinance requires that employers provide individuals with notice of their rights, prohibits employers from taking retaliatory actions against individuals for using the paid sick leave, and requires that employees who take public health emergency leave be restored to the same position they held before leave.
New Pennsylvania Overtime Exemption Minimum Salary Requirements
The commonwealth has enacted new overtime exemption regulations that will increase the salary minimums in stages over the next few years and will, by 2021, exceed the federal requirements. The minimum salary requirements for the white collar exemptions will increase as follows:
- $684 per week or $35,568 annually as of Oct. 3 — this is the current level required by the
Fair Labor Standards Act and has been in effect since Jan. 1;
- $780 per week or $40,560 annually on Oct. 3, 2021; and
- $875 per week or $45,500 annually on Oct. 3, 2022.
Starting in 2023, the salary threshold will increase automatically to an amount equal to the 10th percentile of all Pennsylvania workers who work in salaried exempt positions. If the automatic adjustment works as planned, those employees whose salaries are in the bottom 10% of salaried exempt employees in Pennsylvania will need to receive compensation increases to remain qualified for an exemption.
The new regulations also slightly modify the duties tests for Pennsylvania Minimum Wage Act white collar overtime exemptions. While the goal was to mold the duties to align more closely with the federal exemptions, there are still notable differences.
For example, Pennsylvania still does not recognize the FLSA exemptions for computer professionals paid on an hourly basis, highly compensated employees, teachers or other professionals. It is important for employers to understand these differences and to make sure that employee classifications comply with federal and state law.
The tiered increased minimum salary requirements will take effect beginning in October 2021. If Pennsylvania employers fail to comply with both the federal and state legal requirements for minimum wage and overtime exemption classifications, they run the risk of litigation and government enforcement.
Pennsylvania Medical Marijuana Act
In September, the U.S. District Court for the Eastern District of Pennsylvania held that there is a private right of action under the Pennsylvania Medical Marijuana Act. In Hudnell v. Thomas Jefferson University Hospitals Inc., U.S. District Judge Gerald Pappert denied the defendant's motion to dismiss the plaintiff's claims for violations of the Medical Marijuana Act. Judge Pappert is the second judge in Pennsylvania to uphold the right of a certified medical marijuana user to bring a cause of action for discrimination under the act.
Essentially, such decisions suggest that medical marijuana users can be considered a protected class entitled to pursue discrimination claims for tangible employment actions that they believe are linked to their health and/or disability status.
As with all other discrimination claims, an employer who has legitimate business reasons along with supporting documentation for taking tangible employment action will be in a good position to defend these claims if they arise.
Supreme Court Decided Two Cases of Significance
In its July ruling in the consolidated cases of Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, the U.S. Supreme Court determined that courts are barred from adjudicating employment discrimination claims brought by an employee who performs certain religious tasks for a religious employer.
By a 7-2 vote, the justices held that the so-called ministerial exception primarily requires an inquiry into whether an employee carries out important religious functions for its religious employer. The exception allows a religious employer to use the employee's status as a minister to invoke first amendment protections against government interference in the employer's selection of employees.
And, in the consolidated case Bostock v. Clayton County, Georgia, the Supreme Court in June issued a landmark 6-3 decision affirming that the prohibition on sex discrimination in Title VII of the Civil Rights Act extends to discrimination based on sexual orientation and gender identity, noting that "an employer who fires an individual merely for being gay or transgender violates Title VII."
Despite the holding's language and Bostock's focus on firing under Title VII, the potential impact of the decision for employers in Pennsylvania is much broader. The Supreme Court's opinion states that "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."
This decision will likely have implications at the state level as the Pennsylvania Human Relations Act generally mirrors the federal statutes and standards.
Looking Ahead to Pennsylvania Developments in 2021
As 2020 comes to a welcome end, we look to what 2021 might have in store for employers. At the federal level, a new administration will bring changes to the various administrative agencies and a pivot in policy.
One of the big issues at play is the Family and Medical Leave Act. In July, the U.S. Department of Labor published a request seeking public input about the way it interprets the federal leave law. The modifications made during the pandemic highlighted the potential need to modify the FMLA. What could that look like?
Perhaps an increase in the protected leave duration or perhaps mandating that some protected leave is paid leave. This is certainly an issue to watch. Additionally, classification of gig economy workers under the FLSA is an issue that the DOL has been evaluating. While the current administration has indicated that an independent contractor status could be forthcoming, the change in administration will likely place this issue in flux.
At the state level, there could be issues associated with the imminent approval and distribution of a COVID-19 vaccine and workplace mandates related to the same. Some employees have indicated that they do not intend to get a vaccine, but employers in some industries will likely attempt to implement policy making the vaccine mandatory for workers. Litigation will surely arise.
Employment issues that were not addressed in 2020 due to the pandemic will again become a focus in 2021. Attention will likely be focused upon the governor's attempt to raise minimum wage in Pennsylvania.
The last attempt, the governor's sixth try to implement a minimum wage hike, was made in January. Minimum wage, which stands at $7.25 an hour, has not been raised in Pennsylvania in more than 10 years. In January, the governor attempted to raise minimum wage to $12 per hour with a pathway to $15 per hour.
Another issue to watch as mentioned above is medical marijuana in the workplace, as usage continues to rise. The recent vote to legalize recreational marijuana in New Jersey could ignite similar attempts in Pennsylvania, further complicating this gray area issue for employers.
While the employment law landscape is ever changing no matter what the year, 2020 was a year like no other. As 2021 could potentially see even more changes, employers should make certain to pay attention to developments at the federal, state and local levels as all could impact their business practices in 2021 and beyond.
Stephanie K. Rawitt is a member at Clark Hill PLC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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