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Employment Law Updates: August 2020

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Federal & State Employment Law Updates: August 2020

Six States and the District of Columbia have updated their employment laws so far this month, alongside one Federal Law Update.  Our HR Advisors are versed and ready to answer your toughest HR questions to help your company through working remotely, coming back to work and all year long.

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August 2020 Law Alert Map

Labor Law Updates for August 2020

1

Telework and Work Hours

Guidance addressing employers obligation to track teleworking employees compensable hours.

On August 24, 2020, the U.S. Department of Labor released Field Assistance Bulletin No. 2020-5 to address employers’ obligation under the Fair Labor Standards Act (FLSA) to track teleworking employees compensable work hours.

Although the guidance is specific to the COVID-19 pandemic, it also applies to other telework or remote work arrangements and reaffirms that an employer must pay its employees for all hours worked, including work not requested but allowed and work performed at home.

Additionally, an employer’s obligation to compensate employees for hours worked can be based on their actual or constructive knowledge of that work. For instance, with telework and remote work employees, an employer:

  • Has actual knowledge of the employees’ regularly scheduled hours; and
  • May have actual knowledge of hours worked through employee reports or other notifications.

For overtime, an employer may establish constructive knowledge of their employees’ unscheduled hours by exercising reasonable diligence and establishing a process for employees to report their extra time. If an employee fails to report unscheduled hours through such a procedure, the employer is generally not required to investigate further to uncover unreported hours. However, if an employer is otherwise notified through a reasonable method, or if employees are not properly instructed on using a reporting system, then an employer may be liable for those hours worked.

2

Form I-9 Compliance Flexibility Extended to September 19

Another extension to the flexibility rules for Form I-9 compliance.

On August 18, 2020, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced another extension to the Employment Eligibility Verification (Form I-9) flexibility rule, which has been extended to September 19, 2020, due to necessary COVID-19 precautions. This flexibility rule, applicable only to remote workplaces, defers the physical presence requirements for in-person verification of identity and employment eligibility documentation for Form I-9. If there are employees physically present at the workplace, then there is no exception for in-person verification.

On March 19, 2020, the DHS first announced that the physical presence requirements were deferred due to COVID-19. Employers are required to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated and when normal operations will resume.

3

ADA and Opioid Abuse

The EEOC released guidancde addressing the use of codeine, oxycodone, and other opiods.

On August 5, 2020, the federal Equal Employment Opportunity Commission (EEOC) released a guidance addressing employees and the use of codeine, oxycodone, and other opioids. This guidance explains the nondiscrimination and reasonable accommodation provisions of the Americans with Disabilities Act (ADA) that are applicable those not engaged in current, illegal drug use and who are qualified for employment. This information is not new policy, instead it applies principles already established in the ADA, clarifies existing legal requirements, and discusses the following:

  • Disqualification from a job for opioid use, legal use of opioids, and drug testing;
  • On the job performance and safety when using opioids, reasonable accommodations, and addiction; and
  • Employee rights and legal process when a violation occurs.

4

Accommodation Strategies for Returning to Work During the COVID-19 Pandemic

Strategies to assist employers in accommodating employees with disabilities and return to work during the COVID-19 pandemic.

On August 3, 2020, the Job Accommodation Network (JAN) posted a blog with strategies covering the following topics to assist employers in accommodating employees with disabilities and their return to work during the COVID-19 pandemic:

  • General solutions for limiting the risk of exposure to COVID-19;
  • Solutions to address physical distancing needs; and
  • Solutions to address communication needs.

However, JAN reminds employers that in some cases it will be necessary to analyze the individual circumstances to provide customized reasonable accommodation solutions.

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Individual State Labor Laws

State Specific Labor Law Updates:

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What To Do If One of Your Employees Is Diagnosed With COVID-19

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What To Do If An Employee Has COVID-19

1. NOTIFY EMPLOYEES

If you have other employees who may have been exposed, you should notify them of the possible exposure immediately. By letting them know that an employee has been diagnosed they can gauge their own risk.

Remember that medical information must be kept confidential per the ADA, so it’s important not to disclose which employee was diagnosed. If your employees figure it out on their own that is ok, but make sure you are not the one to divulge that information.

Per the CDC, by following the Public Health Recommendations for Community-Related Exposure,  most workplaces should instruct potentially exposed employees to stay home for 14 days, telework if possible, and self-monitor for symptoms.

2. CLEAN & QUARANTINE

To prevent the spread of COVID-19, follow the CDC guidelines and your local health department recommendations on cleaning and possible quarantining.  For 24 hours (or as long as possible) you should close areas where the infected employee visited or worked and follow up with a thorough cleaning and disinfecting. 

3. Returning to Work

The employee who was diagnosed should work closely with their healthcare provider to determine when it’s safe for them to return to work.

For those that did not get tested but it is presumed they have COVID, they will probably be allowed to return to work when:

  • At least 24 hours have passed since recovery, defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms and,

  • At least 10 days have passed since symptoms first appeared.

4. maintain Healthy business operations

COVID-19 has the potential to impact your business operations immensely. Designating a point person to handle all COVID-related issues can help minimize the impact.

Other things to keep in mind:

  • The Families First Coronavirus Response Act (FFCRA or Act) requires certain employersexternal icon to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.
  • Employers with fewer than 500 employees are eligible for 100% tax creditsexternal icon for Families First Coronavirus ​Response Act COVID-19 paid leave provided through December 31, 2020, up to certain limits.
See more recommendations for maintaining healthy business operations.

Amber E.

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July 2020 Federal Employment Law Updates

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Federal & State Employment Law Updates: July 2020

Six States have updated their employment laws so far this month, alongside six Federal Law Updates.  Our HR Advisors are versed and ready to answer your toughest HR questions to help your company through working remotely, coming back to work and all year long.

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July Law Updates

Labor Law Updates for July 2020

1

CDC Guidance for COVID-19, Tests, and Discontinuing Home Isolation

A test-based strategy is no longer recommended to determine when to discontinue home isolation, except in certain circumstances and symptom-based criteria wer modified.

On July 20, 2020 the U.S. Center for Disease Control (CDC) announced:

  • A test-based strategy is no longer recommended to determine when to discontinue home isolation, except in certain circumstances.
  • Symptom-based criteria were modified as follows: 
    • Changed from “at least 72 hours” to “at least 24 hours” have passed since last fever without the use of fever-reducing medications.
    • Changed from “improvement in respiratory symptoms” to “improvement in symptoms” to address expanding list of symptoms associated with COVID-19.
  • For patients with severe illness, duration of isolation for up to 20 days after symptom onset may be warranted.
  • For persons who never develop symptoms, isolation and other precautions can be discontinued 10 days after the date of their first positive (RT-PCR) test for COVID-19 (SARS-CoV-2 RNA).

The CDC also provides, and regularly updates, the following resources:

  • A summary of current evidence and rationale for ending isolation and precautions for persons with COVID-19 using a symptom-based strategy; and
  • A website for businesses and workplaces to plan, prepare, and respond to COVID-19.

2

Form I-9 Flexibility Extended Due to COVID-19

An extension to the flexibility rules for Form I-9 compliance.

On July 18, 2020, the U.S. Immigration and Customs Enforcement (ICE) announced:

  • An extension to the flexibility rules for Form I-9 compliance to August 19, 2020; and
  • After July 19, 2020 no additional extensions will be granted to employers who were served notices of inspection by ICE during the month of March 2020.

On March 19, the physical presence requirements associated with the Form I-9 were deferred and set to expire on May 19. Then on May 19, and again on June 19, the deferral was extended for an additional 30 days respectively.

3

DOL Guidance as Workplaces Reopen During COVID-19

The U.S. Department of Labor released additional guidance on the following laws impacting workplaces reopening during COVID-19.

On July 20, 2020, the U.S. Department of Labor released additional guidance on how the protections of the following laws impact workplaces reopening during COVID-19:

These materials include the following:

The Wage and Hour Division also provides additional information on issues employers and employees face when responding to the coronavirus and its effects on wages and hours worked under the FLSA and job-protected leave under the FMLA.

4

FMLA Forms Updated

The EEOC publishes FAQ regarding the FEEOL and COVID-19.

On July 16, 2020, the U.S. Department of Labor (DOL) released new optional-use Family and Medical Leave Act (FMLA) forms that employers can use to provide required notices to employees; and employees can use to provide certification of their need for leave for an FMLA qualifying reason. These forms are electronically fillable PDFs and can be electronically saved. Employers may also use their own forms if they provide the same basic notice information and only require the same basic certification information.

The forms that were updated, in June 2020 and expire June 30, 2023, have more questions with check-box responses and include electronic signature features:

  • Notice Forms – Employers covered by the FMLA are obligated to provide their employees with certain critical notices about the FMLA so that both the employees and the employer have a shared understanding of the terms of the FMLA leave. Employers can use the following forms to provide the notices required under the FMLA: 
    • Eligibility Notice (Form WH-381) – informs the employee of their eligibility for FMLA leave or at least one reason why the employee is not eligible.
    • Rights and Responsibilities Notice (Form WH-381) (combined with the Eligibility Notice) – informs the employee of the specific expectations and obligations associated with the FMLA leave request and the consequences of failure to meet those obligations.
    • Designation Notice (Form WH-382) – informs the employee whether the FMLA leave request is approved; also informs the employee of the amount of leave that is designated and counted against the employee’s FMLA entitlement. An employer may also use this form to inform the employee that the certification is incomplete or insufficient and additional information is needed.
  • Certification Forms – Certification is an optional tool provided by the FMLA for employers to use to request information to support certain FMLA-qualifying reasons for leave. An employee can provide the required information contained on a certification form in any format, such as on the letterhead of the healthcare provider, or official documentation issued by the military. There are five DOL optional-use FMLA certification forms: 

The FMLA does not require the use of any specific form or format. Although the DOL revised the FMLA forms in June 2020 to make them easier to understand for employers, leave administrators, healthcare providers, and employees seeking leave, the revised forms convey and collect the same information, which can be provided in any format, as the old DOL forms.

Employers cannot require employees to provide new certification, using the updated form, when the employee already provided the required FMLA information using the old certification form. Additionally, the content of the information contained within an expired optional-use DOL form is still applicable, regardless of the expiration date. The expiration date on the DOL forms is related to the collection of information as required by the Office of Management and Budget (OMB), and not relevant to the content of the required information.

Lastly, these forms do not have any applicability to the Families First Coronavirus Response Act (FFCRA). The FFCRA has different documentation requirements located here (see #15 and #16)

5

SCOTUS Opinions, Religion, and the Workplace

The Supreme Court of the United States (SCOTUS) decided the following cases addressing religion and employment. 

On July 8, 2020, the Supreme Court of the United States (SCOTUS) decided the following cases addressing religion and employment:

  • In Our Lady of Guadalupe School vs. Morrissey-Berru, the court held that the ministerial exception under the religion clauses of the First Amendment forecloses the adjudication of employment-discrimination claims of Catholic school teachers in these cases. In its opinion, the court applied a modified ministerial exception where two teachers at Catholic elementary schools sued for workplace discrimination under the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA). Based on the First Amendment, clergy members cannot bring claims under the federal employment discrimination laws, including the ADA, the ADEA, the Equal Pay Act, and Title VII. The ministerial exception applies only to those employees who perform essentially religious functions. In the opinion, the court shifted from the Hosanna-Tabor four-factor analysis because “it was a rigid formula,” to “whether each particular position implicated the fundamental purpose of the [ministerial] exception.” The opinion concluded with, “[w]hen a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.” Thus, the Catholic elementary school teachers are “ministers, the exception applies, they cannot sue for employment discrimination.

In Little Sisters of the Poor Saints Peter and Paul Home vs. Pennsylvania et. al., SCOTUS held that the U.S. Departments of Health and Human Services, Labor, and the Treasury had authority under to create lawful exemptions under the Affordable Care Act (ACA) for employers with religious or moral objections from providing contraceptive coverage to their employees under their group health plans.

6

FFCRA and Reporting Qualified Sick Leave Wages and Qualified Family Leave Wages Paid

OSHA released interim guidance regarding enforcing its recordkeeping requirements in recording COVID-19 cases.

On July 8, 2020, the Treasury Department and the Internal Revenue Service released Notice 2020-54 guiding employers in their required reporting of the amount of qualified sick leave wages and qualified family leave wages they paid to their employees under the Families First Coronavirus Response Act (FFCRA). Employers will be required to report these amounts either on Form W-2, Box 14, or on a separate statement. This required reporting provides employees who are also self-employed with information necessary for properly claiming qualified sick leave equivalent or qualified family leave equivalent credits under the FFCRA.

Read more about the Credit for Sick and Family Leave and the Employee Retention Credit, which are two new employer tax credits for businesses severely impacted by COVID-19.

Download All Updates

Individual State Labor Laws

State Specific Labor Law Updates:

Compliance can weigh down even the most experienced professionals. Our HR Advisors, one click compliance Handbook ,Compliance Database, HR Tools and Employee Training are ready to help navigate HR all year long. Everything included with your AllMyHR™ Solutions. 

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10 Reasons Successful Companies Use Employee Handbook Builders

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10 Reasons Why Successful Companies Use an Employee Handbook Builder

1. time is essential

Coorporate will tell you anyone in HR will have a job description a mile long. HR positions can closely relate to therapists, employment lawyers, compliance experts, accountants, and let’s be honest, daycare providers.

Just kidding. Sort of. 

One thing is certain, time is not their friend. With so many projects and issues to handle every day, anything that can be streamlined should be streamlined. Every company worth it’s weight has a handbook, and when HR has to create a handbook, or update a seriously out of date one, using an Employee Handbook Builder instead of a template saves days of work. It also keeps everything digital for faster updating and reference. 

2. Automatic Compliance Updates

Keeping your handbook in compliance means editing your company handbook every time an employment law changes on a Federal, State, local or industry level. That’s a lot for your office manager or HR Person to keep up with. Depending on your location in the U.S, they could be looking at 2-20 changes every month. Depending on the handbook builder, these edits could go from hours of responsibility to an electronic system keep up with it for them.

(Not all builders are built the same, please ask about this feature or a free trial before purchasing.)

This is one that updates for you.

3. Editing is a breeze

In this digital age, keeping a handbook in an editable file is as simple as using Word. But Word won’t tell you when a policy is no longer compliant. This handbook builder will though. 

4. Policy Creation

No one relishes the day they have to create and implement new HR policies. Most of those in HR dread them. Researching, formatting and writing and possibly running it past the company lawyer for a sizable cost, can all be a headache. Not to mention implementing into company culture, obtaining employees signatures, and answering everyones questions.

Can you imagine your handbook writing these instead? Just a simple search and there’s an ERISA-Attorney approved policy to customize. It can’t chase down Warehouse John and make him sign it, but it can make the policy creation itself much more pleasant.

Your company may or may not have yet implemented a policy against creating employee nicknames. 

Have to create a policy now? see if this company has a sample of that policy free.

5. Electronic Signatures

So I lied. Some handbook builders do come with extra features, like electronic signatures, so it does actually chase down Warehouse John… digitally. If he hasn’t signed it, your office manager can just keep hitting send until he gives in and complies. Which makes compliance much easier on everyone. 

This feature may not be available for all builders, or may incur an additional cost. 

6. recordkeeping

“Is our handbook up to date? Who updated it and when was the last update? What was updated? Was everyone notified?”

Imagine a dashboard that keeps pristine records of every update without effort. 

7. Environmentally Friendly

Besides being HR Person friendly, having your handbook accessible digitally is environmentally friendly. And who isn’t on board with that?  

8. Makes Compliance Easy

All of a sudden, your handbook becomes its own compliance expert hands-free. A good employee handbook builder will help you build your handbook. A great handbook builder will update itself. And the latter can sometimes even cost less. Besides featuring automatic compliance updates, this particular handbook builder will alert your staff when policies are out of compliance. A few clicks is all it takes to get your handbook back in shape again. Sure beats paying for hours and hours for your HR person to research and update manually. 

9. Multistate Options

For companies with multiple state locations, compliance can prove incredibly difficult. Great handbook builders come with additional features, such as multi-state compliance options. I’ve had to use this feature for a few clients, and I’ll break down how easy this makes it by outlining the extra steps your HR Person will need to take.

Additional step one: Add the extra states. 

That’s it.

This handbook builder finds the necessary compliance for each state based on the number of employees present, city locations, industry and a few other specifications. They create one handbook, it breaks it into the number of states you’ve selected. Streamlined.

(This feature may not be available for all builders, or may incur an extra cost.)

10. Cost

If you’ve read this far, you are most likely really curious about what handbook builders cost companies. We’ve seen some HR companies sell just a simple handbook template for $50-$200. 

And many in HR will pay that not knowing there’s a better way.

The Employee Handbook Builder I referenced in the posts above, costs only $225 a year. That’s less than the two workdays it would take your staff to create one from scratch. I was skeptical, too. You can book a quick appointment to see how it works or check out a video tutorial. 

Better yet, for $99 a month a self-updating handbook could be the icing on the cake. Check out how you can get employee training, a Professional HR Team and much more free for two full weeks. 

If you decide you’d rather have them begin from scratch and spend days on a tedious project, at least take this handbook template free. 

Would you like to take a peek at 8 other tools all companies should know exist?

Amber E.

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HR Manager

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Schedule an AllMyHR™ Tour to see how our services help your business.

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State Employment Law Update: June 2020

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Federal & State Employment Law Updates: June 2020

Seventeen states have updated their employment laws so far this month, alongside eight Federal Employment Law Updates.  Our HR Advisors are versed and ready to answer all your HR questions and help your company through working remotely, coming back to work and all year long.

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June 2020 States Law Updates

Labor Law Updates for June 2020

1

DOL and Pandemic’s Effects on Employees and the Workplace

On June 26, 2020, the U.S. Department of Labor released the following two Field Assistance Bulletins (FAB) to clarify issues relevant to the pandemic’s effects on employees and the workplace.

  • FAB 2020-3: Schools that are physically closed in response to COVID-19 are in session under federal child labor laws for minors under 16 who are working in agricultural and nonagricultural employment. Generally, school is in session if the local, public school district requires its students to participate in virtual or distance learning, even if they are physically closed. Conversely, a physically closed school is not in session if virtual or distance learning is not required.
  • FAB 2020-4: An employee may take Family First Coronavirus Response Act (FFCRA) leave if they are unable to work or telework because they need to care for their child whose place of care is closed because of COVID-19. A place of care is a physical location in which care is provided for the employee’s child while the employee works and includes summer camps and summer enrichment programs.

See all FABs

2

Form I-9 Examples for Temporary COVID-19 Policies

On June 16, 2020, the U.S. Citizenship and Immigration Services updated its webpage with the following Form I-9 examples related to temporary COVID-19 policies:

  • How to notate remote inspections and subsequent physical inspections.
  • How to notate extended List B documents.

These examples demonstrate how the Department of Homeland Security recommends that employers notate Form I-9 when remotely inspecting employment authorization and identity documents and then subsequently performing the required physical inspection once their normal operations resume. Employers are not required to update their Forms I-9 based on these examples if there are differences.

3

COVID-19 and Immigration Suspensions

On June 22, 2020, President Trump continued and expanded limitations on immigration during COVID-19 by signing a Proclamation Suspending Entry of Immigrants and Nonimmigrants Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak. This is an extension of Proclamation No. 10014, Proclamation Suspending Entry of Immigrants Who Present a Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak, which was originally enacted on April 22, 2020.

Accordingly, entry to the U.S. pursuant to any of the following nonimmigrant visas is prohibited:

  • H-1B visa;
  • H-2B visa (unrelated to temporary labor or services essential to the U.S. food supply chain);
  • J visas (except for interns, trainees, teachers, camp counselors, au pairs, or in connection with a summer work travel program);
  • L visas.

These proclamations include additional suspension and entry limitations (see each proclamation for the specifications) and do not apply to U.S. citizens, lawful permanent residents, or valid immigrant visa holders. Additionally, they provide exceptions for the following:

  • Certain healthcare professionals critical to COVID-19;
  • Those seeking U.S. entry under an EB-5 investor visa;
  • U.S. citizens’ spouses and children (categories IR2, CR2, IR3, IH3, IR4, IH4);
  • U.S. Armed Forces members and their spouses and children;
  • Those seeking to enter the U.S. under an Afghan and Iraqi Special Immigrant Visa (SQ or SI-SIV).
  • Those seeking to provide temporary labor services essential the United States food supply chain; and
  • Those whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees. 

Routine visas services also continue to be suspended at U.S. posts worldwide as a result of the COVID-19 pandemic, but embassies and consulates may continue to provide emergency and mission-critical visa services. Mission-critical immigrant visa categories include applicants who may be eligible for an exception under these presidential proclamations, such as: IR/CR1, IR/CR2, IR/IH-3, IR/IH-4, SQ, SI, certain medical professionals, and those providing temporary labor or services essential to U.S. food supply chain, as well as cases involving an applicant who may age out of their visa category.  

The extended proclamation took effect June 24, 2020 and expires December 31, 2020.

4

COVID-19 and Taxpayer Relief for Retirement Plan Distributions or Loans

On June 19, 2020, the Internal Revenue Service (IRS) released guidance for COVID-19-related distributions and loans from retirement plans under the CARES ACT. Under the CARES Act, qualified individuals may treat as COVID-19-related distributions up to $100,000 from their eligible retirement plans (including IRAs) between January 1 and December 30, 2020. A COVID-19-related distribution is:

  • Not subject to the 10 percent additional tax that otherwise generally applies to distributions made before an individual reaches age 59 ½;
  • Can be included in income in equal installments over a three-year period; and
  • Individuals have three years to repay this distribution to a plan or IRA and undo its tax consequences.

 

The CARES Act also allows plans to suspend loan repayments that are due from March 27 through December 31, 2020, and the dollar limit on loans made between March 27 and September 22, 2020, is increased from $50,000 to $100,000.

As authorized under the CARES Act, the IRS guidance expands the definition of qualified individuals to anyone who:

  • Is diagnosed, or whose spouse or dependent is diagnosed, with COVID-19 by a test approved by the Centers for Disease Control and Prevention (including a test authorized under the Federal Food, Drug, and Cosmetic Act); or
  • Experiences adverse financial consequences because they, their spouse, or a member of their household is:
    • Quarantined, furloughed or laid off, or their work hours were reduced due to COVID-19;
    • Unable to work because of a lack of childcare due to COVID-19;
    • Closing or reducing the hours of their owned/operated business due to COVID-19;
    • Experiencing a reduction in pay or self-employment income due to COVID-19; or
    • Experiencing a job offer rescission or delay in start date due to COVID-19.

 

Employers can choose whether to implement these COVID-19-related distribution and loan rules, and qualified individuals can claim the tax benefits of COVID-19-related distribution rules even if plan provisions are not changed. Administrators may rely on an individual’s certification that they are qualified individual (and who provides a sample certification), but an individual must also actually be a qualified individual in order to obtain favorable tax treatment. Employers have a safe harbor procedure for implementing the suspension of loan repayments otherwise due through the end of 2020, but there may be other reasonable ways to administer these rules.

Read the guidance and more on the IRS Coronavirus Tax Relief pages.

5

Supreme Court Upholds DACA

On June 18, 2020, the Supreme Court of the United States (SCOTUS) ruled, in Department of Homeland Security v. Regents of Univ. of Cal., that the Department of Homeland Security (DHS) decision to rescind the Deferred Action for Childhood Arrivals (DACA) was arbitrary and capricious under the Administrative Procedures Act. The ruling states:

“In the summer of 2012, DHS announced an immigration program known as Deferred Action for Childhood Arrivals, or DACA. That program allows certain unauthorized aliens who entered the United States as children to apply for a two-year forbearance of removal. Those granted such relief are also eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity.

Five years later, the Attorney General advised DHS to rescind DACA, based on his conclusion that it was unlawful. The Department’s Acting Secretary issued a memorandum terminating the program on that basis. The termination was challenged by affected individuals and third parties who alleged, among other things, that the Acting Secretary had violated the Administrative Procedure Act (APA) by failing to adequately address important factors bearing on her decision. For the reasons that follow, we conclude that the Acting Secretary did violate the APA, and that the rescission must be vacated.”

SCOTUS’s decision was not a final resolution on the DACA program, but instead addressed the current Presidential administration’s attempt to terminate it without adequate justification. Subsequent to this holding, DACA and its protections, will remain in place pending any future legal action.

Read the ruling and archived material about DACA

6

SCOTUS Rules Federal Law Prohibits Employment Discrimination Against LGBTQ+ Employees

On June 15, 2020, the Supreme Court of the United States (SCOTUS) ruled in a landmark case, Bostock v. Clayton County, that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act (Title VII).

Under Title VII, it is unlawful for an employer to discriminate against any individual in any employment-related benefit, term, or condition (hiring, firing, promotion, etc.) because of their race, color, religion, sex, or national origin. In this case, the court discussed that an employer violates Title VII when it intentionally fires (or refuses to hire) an individual based in part on sex. It is irrelevant if other factors, aside from the individual’s sex, contributed to the employer’s decision. This is because it is a Title VII violation if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge them. In Bostock, the court held that because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individuals differently because of their sex, an employer who intentionally penalizes an individual for being homosexual or transgender also violates Title VII.

The court also clarified that:

  • It is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex. 
  • An individual’s sex does not need to be the sole or primary cause of the employer’s adverse action. It is of no significance if another factor, such as an individual’s attraction to the same sex or presentation as a different sex from the one assigned at birth, might also be at work, or even play a more important role in the employer’s decision.
  • Employers cannot escape liability by demonstrating it treats males and females comparably as group. An employer who intentionally fires an individual homosexual or transgender employee in part because of their sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.

The court clearly stated, “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”

This ruling takes immediate effect.

Read the ruling

7

Paycheck Protection Program Flexibility Act

On June 5, 2020, President Trump signed legislation (H.R. 7010) enacting the Paycheck Protection Program Flexibility Act (PPPFA), which amends the CARES Act’s Payroll Protection Program (PPP). Some of the key amendments are:

  • The covered period during which borrowers must spend PPP funds was expanded to 24 weeks (from eight weeks), or by December 31, 2020, whichever is earlier. This is effective immediately and applicable to all loans as if the language were part of the original CARES Act. However, borrowers may choose to retain the eight-week covered period if they received their PPP loans prior to June 4, 2020.
  • The date when workers must be rehired was extended to December 31, 2020 (originally June 30, 2020).
  • Rehiring requirements were relaxed through a new loan forgiveness exemption based on employee availability from February 15 – December 31, 2020. During this time, loan forgiveness will be determined without regard to a proportional reduction in the number of full-time equivalent employees if the borrower can document in good faith that:
    • They were unable to rehire former employees on February 15, 2020 and are unable to hire similarly qualified employees for unfilled positions by December 31, 2020; or
    • They are unable to return to their pre-COVID-19 level of business activity (prior to February 15, 2020) because of federal safety and health requirements (issued from March 1 – December 31, 2020) for sanitation, social distancing, or any other worker or customer COVID-19-related safety requirement.
  • Businesses now have five years to repay a loan and the first payment will be deferred for six months after a forgiveness determination. This is only applicable to loans made on or after June 5, 2020.
  • Borrowers must now spend 60 percent of the loan on payroll (the prior allocation was 75 percent payroll and 25 for other expenses).
  • Employers may delay paying Social Security payroll taxes through December 31, 2020. This is effective immediately and applicable to all loans as if the language were part of the original CARES Act.

The Small Business Association and Treasury Department are expected to release detailed guidance on the PPPFA and more.

Read US H.R. 7010.

8

Mental Health and Stress Resources

In response to the COVID-19 outbreak and subsequent fallout, the following federal resources are available to share with your employees:

  • The Centers for Disease Control and Prevention’s Coping with Stress page provides information about handling the stress of an outbreak, reactions, caring for yourself and your community, who is at a higher risk, and coming out of quarantine.
  • The U.S. Department of Health & Human Services (HHS) offers the following resources:
    • COVID-19 Behavioral Health Resources lists a collection of resources created by federal agencies and their partners to help healthcare providers, caregivers, and the general population prepare for and manage the negative behavioral effects that can accompany a public health emergency.
    • Mental Health and Coping links to resources and advice to help individuals cope and to support their mental and behavioral health during the COVID-19 pandemic. Many of these resources are available in multiple languages.
  • The HHS Substance Abuse and Mental Health Services Administration (SAMHSA) COVID-19 resources page links to resources to help individuals, providers, communities, and states across the country deal with mental health challenges related to the COVID-19 pandemic.
  • The Centers for Medicare & Medicaid Services (CMS) COVID-19 Partner Toolkit links to CMS and HHS materials on COVID-19. 
  • The National Council for Behavioral Health’s Resources for COVID-19 provides links to resources for managing mental health during COVID-19 as well as tax, loan, and leave information for employers and employees.
  • The National Association of State Mental Health Program Directors COVID-19 Resource Links page provides federal government COVID-19 compliance resource links, state health department links, and more.
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